Interactive Textbook Included
CAMBRIDGE
Legal Studies STAGE 6
Seventh Edition
11
Paul Milgate • Kate Dally • Renata Hecimovic • Georgia James Tim Kelly • Hannah Liney • Kevin Steed •
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Shaftesbury Road, Cambridge CB2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India Cambridge University Press & Assessment is a department of the University of Cambridge.
U N SA C O M R PL R E EC PA T E G D ES
We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org First Edition © Kate Dally, Paul Milgate, Philip Webster and Tim Kelly 2006 Second, Third and Fourth Editions © Paul Milgate, Kate Dally, Phil Webster, Daryl Le Cornu and Tim Kelly 2010, 2013, 2016 Fifth Edition © Cambridge University Press 2020 Sixth Edition © Cambridge University Press & Assessment 2024 Seventh Edition © Cambridge University Press & Assessment 2026
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Cambridge University Press & Assessment acknowledges the Aboriginal and Torres Strait Islander Peoples of this nation. We acknowledge the traditional custodians of the lands on which our company is located and where we conduct our business. We pay our respects to ancestors and Elders, past and present. Cambridge University Press & 4th Assessment committed to honouring Aboriginal and&Torres Strait Islander Peoples’ unique and Uncorrected sample is pages * Cambridge University Press Assessment * © Milgate et al 2026.cultural 978-1-009-83999-0 (03) 8671 1400 spiritual relationships to the land, waters and seas and their rich contribution to society.
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Contents
iii
Contents x xii xvi xvii xvi
U N SA C O M R PL R E EC PA T E G D ES
About the authors How to use this resource Introduction Legal themes and skills Glossary of key words
Part 1 FOCUS AREA: Investigating the law
001
Chapter 1
002
Legal foundations
1.1
The meaning and function of the law 004
1.2
Characteristics of effective law 007
1.3
Ways to classify the law 009
1.4
Principles of justice 011
1.5
Ethics and the law 014
1.6
Principles of procedural fairness 016
1.7
Importance of the rule of law 020
1.8
Absence or misuse of law 023
End of chapter
Chapter 2 Aboriginal and Torres Strait Islander Customary Lore
026
028
2.1
The significance and diversity of Customary Lore 030
2.2
The roles of Elders in maintaining and upholding Customary Lore 035
2.3 The interconnectedness of Country, Peoples, Cultural Practices and kinship 038 2.4
Chapter 3
Responsibilities in caring for Country
043
End of chapter
045
Sources of law
048
3.1
Origin and development of common law in Australia 050
3.2
The doctrine of precedent 053
3.3
Statute law and the legislative process 055
3.4
Delegated legislation
060
End of chapter
061
Legal institutions
064
Chapter 4
4.1
Courts in New South Wales and Australia 066
4.2
New South Wales specialist courts 071
4.3
Features of the adversarial system 075
4.4
Parliament in New South Wales and Australia 077
4.5
Relationship between courts and parliament 081 End of chapter
082
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Cambridge Legal Studies Stage 6 Year 11
Chapter 5
The constitutional framework
084
5.1
The creation and function of the Australian Constitution
086
5.2
Division of powers
089
5.3
Separation of powers
094
5.4
Role of the High Court in interpreting the Australian Constitution
096
5.5
Amending the Australian Constitution through referendums
101
End of chapter
104
The global legal system
106
6.1
Formation of international law
108
6.2
State sovereignty
116
6.3
Responsibilities of nation-states
119
6.4
The purpose of the United Nations
122
6.5
The purpose of intergovernmental organisations
125
6.6
International courts and tribunals
126
6.7
Non-government organisations
128
End of chapter
130
Legal rights
132
7.1
Rights and responsibilities of individuals
134
7.2
Sources and protection of rights
138
7.3
Consequences of a breach of rights
141
End of chapter
145
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Chapter 6
Chapter 7
Part 2 FOCUS AREA: Disputes under the law
147
Chapter 8
Criminal law
148
8.1
The purpose and characteristics of criminal law
150
8.2
Elements of a crime
152
8.3
Types of crime
155
8.4
Burden and standard of proof in criminal law
163
8.5
Procedures in NSW criminal courts
164
8.6
The role of legal personnel and the jury in a criminal trial
168
8.7
Types and aims of punishments
173
8.8
Case study on key concepts of justice: R v Dawson [2022] NSWSC 1131
179
End of chapter
183
Civil law
186
9.1
The purpose and characteristics of civil law
188
9.2
Elements of civil law
190
9.3
Types of civil law
193
9.4
Burden and standard of proof in civil law
199
9.5
Procedures in NSW tribunals and civil courts
201
9.6
The role of legal personnel and the jury in a civil trial
206
9.7
Types and aims of remedies
208
Chapter 9
9.8 Case study on key concepts of justice: Donoghue v Stevenson [1932] End of chapter
210 213
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Chapter 10 Disputes with the state
216
10.1
Administrative law
218
10.2
Reasons for disputes with the state
222
10.3
Addressing disputes through non-government organisations and the media
225
Addressing disputes through government reviews, courts and tribunals address disputes
228
10.5
The Ombudsman
231
10.6
Royal commissions
234
10.7
Case study of a dispute: Societal demands for the establishment of a Royal Commission into the Bondi terrorist attack
237
End of chapter
242
U N SA C O M R PL R E EC PA T E G D ES
10.4
v
Part 3 FOCUS AREA: Changing the law
245
Chapter 11 Changing the law
246
11.1
Reasons for change
248
11.2
Drivers of change
252
11.3
Processes of change
263
11.4
Outcomes of change
266
End of chapter
268
Chapter 12 Changing the law: The recognition of land rights in NSW and native title for Aboriginal and Torres Strait Islander Peoples
270
12.1
Land rights, native title and the law
272
12.2
Reasons for change: Land rights
273
12.3
Reasons for change: Native title
276
12.4
Drivers of change
283
12.5
Processes of change
290
12.6
Outcomes of change
300
End of chapter
303
Chapter 13 Changing the law: Sport 13.1
Sport and the law
13.2
Reasons for change
13.3
Drivers of change
13.4
Processes of change
13.5
Outcomes of change
Digital-only chapter
End of chapter
Chapter 14 Changing the law: Sexual assault
306
14.1
Sexual assault and the law
308
14.2
Reasons for change
309
14.3
Drivers of change
314
14.4
Processes of change
320
14.5
Outcomes of change
323
End of chapter
326
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Cambridge Legal Studies Stage 6 Year 11
Chapter 15 Changing the law: Young drivers
328
Young drivers and the law
330
15.2
Reasons for change
332
15.3
Drivers of change
339
15.4
Processes of change
346
15.5
Outcomes of change
347
End of chapter
350
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15.1
Part 4 FOCUS AREA: Experiences with the law
353
Chapter 16 Young people
354
The nature of the experience
Access to justice
Responsiveness of the legal system
16.1
The need for protection under the law
356
16.2
Reasons for encountering the legal system
359
16.3
Issues arising from contact with the law
364
16.4
Protection under the law
370
16.5
Authorities that advocate for rights
378
16.6
Contact with legal processes
383
16.7
Alternative approaches to justice
390
16.8
The role of non-government organisations
395
16.9
Indicators of success in achieving justice
397
16.10 Barriers to achieving justice End of chapter
400 404
Chapter 17 Aboriginal and/or Torres Strait Islander Peoples
Digital-only chapter
The nature of the experience
Access to the justice system
Responsiveness of the legal system
17.1
Introduction
17.2
The need for protection under the law
17.3
Reasons for encountering the legal system
17.4
Issues arising from contact with the law
17.5
Protection under the law
17.6
Authorities that advocate for rights
17.7
Contact with legal processes
17.8
Alternative approaches to justice
17.9
The role of non-government organisations
17.10 Indicators of success in achieving justice End of chapter
Chapter 18 Asylum seekers, refugees and migrants
The nature of the experience Access to justice
408
A note on this chapter
410
ASYLUM SEEKERS
411
18.1
The need for protection under the law
412
18.2
Reasons for encountering the legal system
414
18.3
Issues arising from contact with the law
415
18.4
Protection under the law
417
18.5
Authorities that advocate for rights
419
18.6
Contact with legal processes
422
18.7
Alternative approaches to justice
428
18.8
The role of non-government organisations
429
18.9
Indicators of success in achieving justice
432
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18.10 Barriers to achieving justice REFUGEES The nature of the experience
435 437
18.11 The need for protection under the law
438
18.12 Reasons for encountering the legal system
440
18.13 Issues arising from contact with the law
441
18.14 Protection under the law
443
18.15 Authorities that advocate for rights
446
18.16 Contact with legal processes
448
18.17 Alternative approaches to justice
451
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Access to justice
18.18 The role of non-government organisations
452
Responsiveness of the legal system
18.19 Indicators of success in achieving justice
454
18.20 Barriers to achieving justice
456
The nature of the experience
18.21 The need for protection under the law
MIGRANTS
Access to justice
Responsiveness of the legal system
Access to justice
Responsiveness of the legal system
458
460
18.23 Issues arising from contact with the law
462
18.24 Protection under the law
464
18.25 Authorities that advocate for rights
467
18.26 Contact with legal processes
469
18.27 Alternative approaches to justice
471
18.28 The role of non-government organisations
472
18.29 Indicators of success in achieving justice
473
18.30 Barriers to achieving justice
475
Chapter 19 LGBTQIA+ people
The nature of the experience
457
18.22 Reasons for encountering the legal system
End of chapter
476
478
19.1
The need for protection under the law
480
19.2
Reasons for encountering the legal system
482
19.3
Issues arising from contact with the law
485
19.4
Protection under the law
487
19.5
Authorities that advocate for rights
497
19.6
Contact with legal processes
499
19.7
Alternative approaches to justice
501
19.8
The role of non-government organisations
502
19.9
Indicators of success in achieving justice
505
19.10 Barriers to achieving justice End of chapter
vii
506 508
Chapter 20 Older people
The nature of the experience
Access to the justice system
20.1
The need for protection under the law
20.2
Reasons for encountering the legal system
20.3
Issues arising from contact with the law
20.4
Protection under the law
20.5
Authorities that advocate for rights
20.6
Contact with legal processes
20.7
Alternative approaches to justice
20.8
The role of non-government organisations
Digital-only chapter
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Cambridge Legal Studies Stage 6 Year 11
20.9 Responsiveness of the legal system
Indicators of success in achieving justice
20.10 Barriers to achieving justice End of chapter
Chapter 21 People experiencing climate injustice 21.1
The need for protection under the law
514
21.2
Reasons for encountering the legal system
518
21.3
Issues arising from contact with the law
519
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The nature of the experience
512
Access to justice
Responsiveness of the legal system
21.4
Protection under the law
521
21.5
Authorities that advocate for rights
527
21.6
Contact with legal processes, including alternative approaches to justice 529
21.7
The role of non-government organisations
531
21.8
Indicators of success in achieving justice
534
21.9
Barriers to achieving justice
535
End of chapter
537
Chapter 22 People experiencing economic disadvantage
Digital-only chapter
The nature of the experience
Access to the justice system
Responsiveness of the legal system
22.1
The need for protection under the law
22.2
Reasons for encountering the legal system
22.3
Issues arising from contact with the law
22.4
Protection under the law
22.5
Authorities that advocate for rights
22.6
Contact with legal processes
22.7
Alternative approaches to justice
22.8
The role of non-government organisations
22.9
Indicators of success in achieving justice
22.10 Barriers to achieving justice End of chapter
Chapter 23 People experiencing issues of equity, discrimination or power imbalance Domestic violence and coercive control
The nature of the experience Access to justice
Responsiveness of the legal system
540
23.1
The need for protection under the law
542
23.2
Reasons for encountering the legal system
546
23.3
Issues arising from contact with the law
547
23.4
Protection under the law
551
23.5
Authorities that advocate for rights
558
23.6
Contact with legal processes
560
23.7
Alternative approaches to justice
563
23.8
The role of non-government organisations
564
23.9
Indicators of success in achieving justice
566
23.10 Barriers to achieving justice End of chapter
568 570
Chapter 24 People living in rural, regional or remote Australia Digital-only chapter
The nature of the experience
24.1
The need for protection under the law
24.2
Reasons for encountering the legal system
24.3
Issues arising from contact with the law
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Access to the justice system
Responsiveness of the legal system
24.4
Protection under the law
24.5
Authorities that advocate for rights
24.6
Contact with legal processes
24.7
Alternative approaches to justice
24.8
The role of non-government organisations
24.9
Indicators of success in achieving justice
ix
24.10 Barriers to achieving justice
U N SA C O M R PL R E EC PA T E G D ES
End of chapter
Chapter 25 People who are culturally and linguistically diverse
The nature of the experience
Access to the justice system
Responsiveness of the legal system
25.1
Introduction
25.2
The need for protection under the law
25.3
Reasons for encountering the legal system
25.4
Issues arising from contact with the law
25.5
Protection under the law
25.6
Authorities that advocate for rights
25.7
Contact with legal processes
25.8
Alternative approaches to justice
25.9
The role of non-government organisations
Digital-only chapter
25.10 Indicators of success in achieving justice End of chapter
Chapter 26 People with disability
The nature of the experience
Access to the justice system
Responsiveness of the legal system
26.1
The need for protection under the law
26.2
Reasons for encountering the legal system
26.3
Issues arising from contact with the law
26.4
Protection under the law
26.5
Authorities that advocate for rights
26.6
Contact with legal processes
26.7
Alternative approaches to justice
26.8
The role of non-government organisations
26.9
Indicators of success in achieving justice
Digital-only chapter
26.10 Barriers to achieving justice End of chapter
Chapter 27 People with a mental health condition
The nature of the experience Access to justice
Responsiveness of the legal system
576
27.1
Introduction to mental health
578
27.2
The need for protection under the law
581
27.3
Reasons for encountering the legal system
583
27.4
Issues arising from contact with the law
585
27.5
Protection under the law
591
27.6
Authorities that advocate for rights
594
27.7
Contact with legal processes
600
27.8
Alternative approaches to justice
607
27.9
The role of non-government organisations
609
27.10 Indicators of success in achieving justice
611
27.11 Barriers to achieving justice
613
End of chapter
615
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Cambridge Legal Studies Stage 6 Year 11
About the authors Paul Milgate DipTeach, BEd, Grad Cert in Theology and Masters in Educational Leadership.
U N SA C O M R PL R E EC PA T E G D ES
Paul is a Senior Manager of Strategy and Partnership at the diocese of Lismore Catholic Schools Limited (DLCSL). Throughout Paul’s teaching career he had extensive experience in teaching Legal Studies and developing professional networks, having taught it since its inception, and been the principal author of the Preliminary and HSC textbooks for Edition 3-6. Paul is also the author of Cambridge HSC Checkpoints Legal Studies (study guide).
Kate Dally BA DipEd, Grad Cert Inclusive Education, Grad Cert Asian Studies.
Kate Dally (she/her) is a highly experienced teacher, author and presenter for social sciences subjects and has been involved in HSC marking. Her roles with the NSW Department of Education have included Head Teacher of Social Sciences, Curriculum Advisor, and participant in the Overseas Teachers Exchange Program. Kate has also taught teaching methods at the University of Sydney. She has been awarded a Premier’s Scholarship and is a long-standing author on the Cambridge Legal Studies Stage 6 series.
Renata Hecimovic BLS, DipEd
Renata Hecimovic obtained a Bachelor of Legal Studies at La Trobe University and her Graduate Diploma in Education at Monash University, Melbourne. She has been teaching Legal Studies for 23 years in NSW and has also been an HSC Legal Studies exam marker. Renata is currently teaching at Aquinas Catholic College, Menai, and has had 14 years’ experience as the HSIE Leader of Learning at the college.
Georgia James
Georgia is an experienced teacher whose career began in law before she made the transition into education. After completing a Bachelor of Laws and Bachelor of Arts, she gained experience working in a law firm before pursuing a career in teaching. Following the completion of a Graduate Diploma of Education, Georgia taught in the New South Wales Department of Education before joining the Diocese of Lismore Catholic Schools Limited (DLCSL) in 2013. She has extensive experience teaching HSC Legal Studies and HSC Aboriginal Studies. Since 2016, Georgia has held Leader of Learning roles within DLCSL and currently serves as Leader of Learning Technologies.
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About the authors
xi
Tim Kelly BA DipEd Dip Law.
U N SA C O M R PL R E EC PA T E G D ES
Tim obtained his BA DipEd from the University of New South Wales in 1984 and completed his Diploma in Law from the Legal Practitioners Admissions Board in 1996. He began teaching Legal Studies in 1993 at St Mary’s Maitland. Tim was the HSIE Coordinator at St Mary’s in Casino from 1999 to 2010 and is currently an Education and Curriculum Officer for the Lismore Catholic Schools Office. Tim has facilitated the Legal Studies teachers network for Lismore Diocesan schools for several years.
Hannah Liney BEd (Sec)
Hannah is an accomplished educator within the Department of Education Public Schools. She has taught numerous HSIE subjects as well as working in learning and support teaching roles. She has coordinated and designed various programs within schools, such as life ready programs, peer support and literacy and numeracy interventions. Hannah is a passionate educator who actively engages in professional networks and is a skilled creator of high-quality Legal Studies teaching resources. She demonstrates a strong commitment to inclusive practice and ongoing professional development through her roles in professional networking and within the classroom.
Dr Kevin Steed BA LLB, BEd, MEd (Hons), Dip. Teach, PhD.
Kevin has served as both Head Teacher and Deputy Principal within the New South Wales Department of Education. He brings extensive experience to the teaching of the social sciences, having taught and developed Legal Studies programs for more than 25 years. Further, in recent years, Kevin worked within the Macquarie University School of Education as a doctoral research scholar, facilitating the publishing of his research in various international peer-reviewed journals.
Publisher acknowledgements
The authors and publisher wish to thank the following people for their meaningful contributions:
Distinguished Professor Larissa Behrendt AO (Euahleyai/Gamillaroi), who has longstanding and nationally recognised experience in Indigenous law and legal education, consulted with the authors of the chapters dealing with Aboriginal and Torres Strait Islander Peoples’ experiences with the law in Australia.
Fatma El Zahraa Mehana and Luke Philpotts contributed to the development of the suite of digital and teacher support materials, and provided feedback on the content of the book. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03) 8671 1400
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Cambridge Legal Studies Stage 6 Year 11
How to use this resource Syllabus coverage Syllabus outcomes are listed at the start of each focus area.
U N SA C O M R PL R E EC PA T E G D ES
Chapters are divided into numbered sections, each with a syllabus-derived learning objective. Objective are listed at the start of the chapter.
Learning tools
Practical colour-coding you to find video makes it easy for widget different types of activities and learning support.
reporting
note taking
download word
download pdf
reporting
note taking
scorcher
Glossary definitions appear in the margin where the key term first appears in the chapter.
IN COURT
Legal cases allow you to see how the legal system operates at all levels of the court hierarchy. quiz
questions
CASE STUDY
Case studies show you particular groups or situations in which legal issues have arisen.
MEDIA
Media articles help you understand how the law operates in real-world situations.
ANALYSIS
Analysis questions support you in engaging with media articles, court cases, videos and online resources.
ACTIVITY video
widget
scorcher
Activities give you ways of building on your understanding of the content.
Links to the Interactive Textbook
RESEARCH
Worksheetscan be completed online or downloaded.
Research tasks let you extend your knowledge by investigating relevant cases or issues using source material. quiz
questions
videos are embedded within the content. download word
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How to use this resource
xiii
Exam practice and revision tools
U N SA C O M R PL R E EC PA T E G D ES
CHAPTER REVIEW
The following features appear at the end of each chapter. A Chapter summary to consolidate learning.
Exam-style multiple-choice and short-answer questions related to the topic.
Exam-style extended-response questions related to the topic, with downloadable marking criteria.
Video guide to a sample exam question showing how to read the question, marking criteria, and a sample response.
REVIEW
A set of review questions at the end of each chapter section provide opportunities for revision and are also available in the Interactive Textbook:
Auto-marked quizzes provide instant feedback on your progress.
Questions can be completed online in workspaces, which include selfassessment functionality.
Access sample responses and results online
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Cambridge Legal Studies Stage 6 Year 11
Using the Interactive Textbook Glossary: Roll over key terms to view the definition.
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Videos are embedded in the content and include captions. Exam practice videos appear at the end of each chapter and walk you through how to answer an exam question.
U N SA C O M R PL R E EC PA T E G D ES
•
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Quiz: Complete an auto-marked quiz at the end of every section to quickly check your understanding.
•
Review: You can answer end of section Review questions online by typing into the provided workspaces. Self-assessment tools enable you to check your answers and mark your own work (if your teacher has provided access to suggested responses).
Using the Online Teaching Suite For your teacher
The Online Teaching Suite is integrated with your teacher’s copy of the Interactive Textbook and includes the powerful Edjin Learning Management System.
Teaching and planning tools • • • •
Create and view tasks for your class using the Task manager. Project editable chapter summary PowerPoint slides in class. Access teacher notes and suggested responses Download editable teaching programs for the course.
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Using the Interactive Textbook
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Writing focus worksheets
U N SA C O M R PL R E EC PA T E G D ES
Writing focus worksheets are included in every chapter and take you through a series of activities to improve your writing skills.
The activities progress from word- and sentence-level writing to paragraph composition, building in difficulty as the level of language, including directive verbs, increases. Download individual worksheets from each chapter section in the Interactive Textbook. You can also download them altogether as a student workbook in the Chapter review.
Assessment tools
•
• • •
Create custom practice exams using exam-style questions. Filters for topic, difficulty level and key words make targeted exam-practice easy. Download editable chapter tests. Download analysis, research, activity and review activity worksheets from the textbook. View students’ working and self-assessment. Student access to suggested responses for every actvity can be toggled on or off by the teacher.
Reporting tools •
View and export individual student reports or whole class reports.
Access in-platform support from the bottom right of your screen.
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Introduction To the student Congratulations on choosing Cambridge Legal Studies Year 11 Seventh Edition.
U N SA C O M R PL R E EC PA T E G D ES
Since the introduction of Legal Studies as a HSC discipline in 1989, the world has undergone incredible change. Predictions of increasingly ‘disruptive’ technologies will continue to challenge the ability of the law to balance the tension of individual and community rights. Regardless, Legal Studies continues to contribute to students completing their secondary schooling as better informed citizens, able to think more critically about the processes and institutions that shape their lives on a daily basis.
The rights people enjoy within democratic societies have at times been eroded by governments when citizens become apathetic about their rights, freedoms and liberties. Legal Studies will allow you to explore the power vested in our democratic institutions and wielded by our elected leaders. It explores issues that will change the way you view the world and how you understand the concept of achieving justice through legal and non-legal means. Recent student action on climate change and increasingly the polarised state of politics and policy making in Australia highlights a society undergoing rapid change socially and economically with the gig economy. Cambridge Legal Studies Year 11 Seventh Edition is a comprehensive resource that introduces you to a dynamic and challenging subject. It brings the law to life for you, both inside and outside the classroom. You will discover a wealth of material that introduces you to the Australian legal system and how the individual interacts with and is affected by the law, and you will gain insight into how the law works in practice in a variety of contexts. You will be engaged and stimulated by up-to-date case law and recent legislative developments. Practically, updated research and review activities will help you build your research skills and make sure that you are ready for your exam. We wish you luck and success.
Paul Milgate
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Legal themes and skills
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Legal themes and skills Content Legal themes
U N SA C O M R PL R E EC PA T E G D ES
The Legal Studies syllabus sets out three key themes that run through each unit of the work throughout the course. The key themes challenge each student to view the law in different contexts through an additional perspective. The three key Legal Themes are:
• Relationship between law, justice and society • Development of law as a reflection of society’s values • Effectiveness of legal and non-legal measures in achieving justice for individuals, groups and society
Legal skills
The syllabus also sets out key skills. These make explicit the essential competencies that students are to develop as they navigate the course work. These skills are important for all students to think critically about the issues that emerge and will be assessed throughout the course.
Analysis and use of sources
• Use and integrate a range of evidence, including legislation, cases, media, international instruments, documents, expert opinions and statistics • Analyse evidence to identify and account for the different perspectives of individuals and groups in society • Distinguish between fact and opinion
Interpretation
• Examine the nature of the relationship between law, justice and society • Analyse the development of law as a reflection of society’s values • Form judgements about the effectiveness of legal and non-legal measures in achieving justice for individuals and society
Investigation and research
• Acknowledge sources appropriately • Examine legal issues that illustrate how the law operates in practice
Evaluation
• Construct and develop reasoned arguments supported by relevant evidence • Evaluate the responsiveness of the legal system to changing values, events, the media, outdated laws and developments in technology
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U N SA C O M R PL R E EC PA T E G D ES
• Evaluate the effectiveness of the law using criteria. These include: > accessibility of the law > achievement of justice > application of the rule of law > capacity to meet society’s needs > capacity to uphold community standards > capacity to uphold the interests of justice > enforceability of legal measures > need for law reform > protection of individual rights > resource efficiency > responsiveness of the law (c) NESA Legal Studies 11–12 (2025)
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U N SA C O M R PL R E EC PA T E G D ES
PART
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Focus area: Investigating the law 40 INDICATIVE HOURS OF COURSE TIME OUTCOMES
In this focus area, the student: • • • • • •
describes legal principles and judicial processes used in the legal system explains the key features of Australian and international law explains the role, formation and reform of law explains methods to resolve conflict and encourage cooperation between individuals, groups and nation-states uses and analyses a range of sources to assess the effectiveness of the law in addressing issues uses legal concepts to communicate information and legal reasoning to form a judgement.
CHAPTERS
1. Legal foundations 2. Aboriginal and Torres Strait Islander Customary Lore 3. Sources of law 4. Legal institutions 5. The constitutional framework 6. The global legal system 7. Legal rights
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CHAPTER
Legal foundations
Enhance your learning with these integrated online resources: Digital workbook
• • •
Suggested responses Download or answer questions online Writing focus worksheets
Videos
• • •
Chapter tests and custom exam creation Writing focus workbook Planning documents
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U N SA C O M R PL R E EC PA T E G D ES
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • • • • • •
describe the meaning and function of law outline the characteristics of effective law outline ways to classify the law describe the principles of justice, including equality, access and fairness explain the relationship between ethics and the law describe key principles of procedural fairness and explain why they are important define the rule of law and explain its importance to individuals, groups, government and society explain the consequences of an absence of law or a misuse of law.
RELEVANT LAW SIGNIFICANT CASES R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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1.1 The meaning and function of the law LEARNING OBJECTIVE 1.1 DESCRIBE the meaning and function of law.
law official rules created by a government or an authority that everyone in society must follow, and which are backed by legal systems and have clear penalties if they are broken
The law is a dynamic thing – a complex mechanism. It has evolved from hundreds of years of tradition, culture and values, which can be different in every country. This means that laws may not be the same around the world, but they have the same function, which is to provide a framework for maintaining order by establishing standards of behaviour, having dispute resolution processes, and protecting collective and individual rights.
U N SA C O M R PL R E EC PA T E G D ES
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values fundamental beliefs or ideas that influence how a person or group acts and makes choices; show what people think is important or worth striving for
rules specific instructions or guidelines given by an authority, such as a school or workplace, download outlining pdf how people should behave in certain situations; less formal than laws and are enforced within that community
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In general terms, the law is a set of enforceable rules of conduct that set down guidelines for relationships between people and organisations in a society. The law provides methods for ensuring the impartial treatment of people and outlines punishments for those who do not follow the agreed rules of conduct. As society is ever-changing, the law often seems to be playing catch-up, but lawmakers do make a serious attempt to keep pace with changes.
To understand how these rules became laws, it is necessary to understand why we live in a society. A society is a group of human beings who are linked by mutual interests, relationships, shared institutions and a common culture. In earliest history, people usually banded together for basic survival and would agree to live by rules that protected their lives and their property. This tradition has carried on throughout history. As groups of people formed societies and cultural groups within these societies, enforceable rules and penalties for breaking them were established about the conduct of relationships. Laws today are imposed by the administrative institutions that govern a society; they cover all members of society and there are consequences if they are breached (i.e. broken).
Rules
Writing focus 1.1 Question words note taking
Rules are generally a set of directions for conduct in certain situations. They are usually made by groups and only affect people within those groups. These rules often vary between groups and are not enforceable by the state. For example, scorcher there are rules for playing games and for behaviour in a classroom. If these rules are broken, there is some form of punishment attached that is enforceable by those involved in making the rules. Rules can also be altered to deal with changes in situations. This usually happens after consultation with the members of the group. In a legal sense, rules form the basis of laws. However, rules can be changed quickly with the agreement of those involved. Laws and penalties, as you will discover, are more difficult to change and do not always involve a simple process.
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Chapter 1: Legal foundations
Law The law, as we know it, is made up of the formal rules of society. These “legal rules” have been agreed upon by the majority of those in the group and govern their behaviour and activities.
U N SA C O M R PL R E EC PA T E G D ES
Laws are different from rules. For example, at the shopping centre, a sign on the escalator requests that you stand to the left and do not take strollers on it. These rules exist for the safety and comfort of shoppers. However, they are just rules, and that is why you will still see people standing on the right and taking their prams on the escalator – there is no penalty for breaking this rule, apart from the ire of other users. On the other hand, there are also signs in the shopping centre telling you that you cannot smoke or vape. This is a law, and if someone did “light up”, they would be asked to leave the shopping centre by a security or police officer, and the smoker might incur a fine. The consequences of breaking rules are comparatively minor. The consequences of breaking a law will escalate depending on the severity of the crime. Laws allow and prohibit a whole variety of activities, from where rubbish should be placed to how we should treat our fellow human beings. Failure to follow laws incurs penalties ranging from a fine to imprisonment. Laws have certain characteristics that make them different from rules:
1. Laws are binding on the whole community – this means that they apply to all members of society. 2. Laws can be enforced – this means that penalties apply if a law is broken. 3. Laws are officially recognised – this means that governments and courts recognise laws and enforce them. 4. Laws are accessible (or discoverable) – this means that people can find out which law applies to a particular situation. 5. Laws relate to public interest – this means that laws exist for things that concern the whole of society, and that interest is considered to outweigh the costs or drawbacks of the government’s involvement in enforcing the laws. 6. Laws reflect rights and duties – this means that everyone in society has responsibilities to others (e.g. the duty to drive safely) and that everyone has the right to be treated in a certain way.
Figure 1.1.1 There are places where it is against the law to smoke.
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Table 1.1.1 Differences between laws and rules Rules
to be obeyed by all citizens of a society
to be obeyed by specific individuals or groups
made by a lawmaking body
made by individuals or groups
enforced through the courts
enforced by leaders of a group
a breach results in a prescribed sanction imposed by the courts
consequences of a breach are at the discretion of the leader of a group
U N SA C O M R PL R E EC PA T E G D ES
Laws
In Australia, laws are mainly decided by elected government officials at local, state and federal government levels. Judges also have the power to make laws in certain cases when they set a precedent. This concept will be discussed in greater detail in the following chapters. The laws made by these officials and judges are commonly known as “the law” and the procedures and processes in making them are known as “the legal system”.
ethics principles or standards about right and wrong that guide how individuals or groups behave, and are often based on societal expectations or professional codes of conduct
It is expected by society that the law looks after all members of the group and that laws are fair, just and equitable. It is also expected that laws reflect traditional and current ethics and values. Although this represents the ideal situation, what is attainable (in reality) may be another matter.
Lawmakers try to incorporate these values and ethics into laws. However, it is difficult to make rules, and thus laws, about everyone’s values, especially as there are often groups in society that have different standards of what is morally right or wrong. For this reason, laws can only cover the ethical values that are common to the majority or the dominant group. Over time, many groups have voiced their values and ethics in a public manner to try to influence the law and the legal system. The following are some examples (that had varying degrees of success):
• Abortion – On 2 October 2019, the Abortion Law Reform Act 2019 (NSW) came into effect, which legalised abortion for pregnancies up to 22 weeks’ gestation and with the approval of two doctors. This legislation was the result of decades of campaigning by advocates (such as the Women’s Abortion Action Campaign) that wanted the law changed. However, the changes have been criticised and remain controversial. • Anti-vaccination and lockdown campaigns – During 2020 and 2021 people rallied against the restrictions placed on the community in the government’s response to containing the spread of COVID-19. • Indigenous Voice of the Nation – Rallies were held around Australia during 2023 for and against the proposed changes to the Constitution. • March for Australia – Anti-migration protests were held around Australia in 2025 to express discontent at perceived high levels of mass migration.
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Relationship between rules and laws As people have joined together in communities, a relationship has developed between rules and laws:
U N SA C O M R PL R E EC PA T E G D ES
• Whenever people have lived together in groups, they have developed rules to govern their behaviour, thus maintaining the smooth running of activities. • These rules were based on the traditions, customs and values (or ethics) of the group. • These rules have penalties attached if members of the group fail to follow them. • Groups usually put someone, or a smaller group of representatives, in charge to enforce these rules and the associated penalties; in modern times, this became the government. • Over time, these rules became formalised laws, known in society as “the law”.
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Review 1.1 questions
1. Identify four rules that exist in your day-to-day life. This may be within your family, your favourite sport or at your video widget reporting note taking school. Describe the rules and the penalties that exist for breaking these rules. What do you think would happen if these rules became laws? Would everyone follow them? 2. Explain how laws are different from rules. 3. Outline how you think rules transform into laws. 4. Provide reasons why it would be difficult for the law to cover all of society’s ethics and values. 5. Describe the characteristics of effective laws. What makes a just law? Are effective laws and just laws the same thing? You will discover more about these later in this chapter. quiz questions, view questions Go online to assign and download results and more!
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1.2 Characteristics of effective law LEARNING OBJECTIVE 1.2
OUTLINE the characteristics of effective law.
Effective laws are ones that work. They are governed by a concept known as the “rule of law”. This means that laws need to regulate targeted antisocial behaviour in a way that is equal, fair and just, and protect people from random decisions. Thus, the rule of law means that the legal system applies to all members of society.
reporting and An effective law is one that isvideo clearly understood,widget widely known and accessible, accepted by the community. The law should be consistent, fair and stable, and it must be capable of being enforced by an independent judiciary. The law should also be flexible and amendable to adapt to changing societal values and needs. Ultimately, it must serve a purpose of influencing behaviour to follow the law’s objectives, that is, to stop antisocial behaviour.
Writing focus 1.2 Conjunctions note taking – (subordinating reasons why)
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To be effective, laws must have the following qualities. They must be:
U N SA C O M R PL R E EC PA T E G D ES
• clear and easy to understand – Laws should be written in language that is simple and clear so that everyone can understand what is expected of them. If laws are confusing or vague, people may not know what is allowed, or not allowed, and how to follow the laws. Clear laws help prevent misunderstandings and make enforcement easier. • fair and just for everyone – Effective laws treat all people equally, regardless of their background, race, gender or status. They should protect everyone’s rights and not favour one group over another. By being fair, laws help build trust in the legal system and promote social justice. • enforceable with consequences – For a law to work, there must be a way to make sure people follow it. This includes having clear penalties or repercussions if the law is broken. Without enforcement, laws will lose their power, and people may ignore them. • consistent with other laws – Laws should not contradict each other; they need to work together in harmony. Conflicting laws can cause confusion and make it difficult for people to know what to follow. • flexible and able to adapt when needed – Society changes over time, so laws must be able to change or be updated to stay relevant. Flexible laws are those that can respond to new issues or technologies and continue to serve the community effectively. • known and accessible to the public – People cannot follow laws they do not know about. Effective laws are communicated clearly and made available to the public. • protect rights and safety – A good law protects people’s basic rights like freedom, privacy and equality. Laws also help keep society safe by preventing harm such as laws against violence or theft. • promote fairness and order in society – Laws should help society function smoothly by setting legal rules that everyone agrees to follow. They need to promote fairness by ensuring disputes are resolved peacefully as well as help to maintain order so people can live and work together without chaos. Therefore, by having these characteristics, laws will be effective instruments to guide behaviour, protect individuals, and support a just and orderly society.
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1. Outline what the term “rule of law” means in relation to effective laws. 2. Identify the key qualities that make a law effective. Rank them in the order that you feel is the most important. Justify your top two choices. 3. Explain why laws must be clearly understood and widely known by the community. 4. Explain how fairness in laws helps build trust in the legal system. 5. Outline the role that enforcement plays in ensuring a law is effective. 6. Explain why consistency between different laws is important. 7. Explain the ultimate purpose of laws in influencing behaviour. 8. Discuss why laws must be effective to support a just and orderly society. Go online to assign and download questions, view results and more!
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1.3 Ways to classify the law LEARNING OBJECTIVE 1.3 OUTLINE ways to classify the law.
non-binding law guidelines, principles or decisions that do not have to be followed by law; they act as recommendations or persuasive advice but are not mandatory
U N SA C O M R PL R E EC PA T E G D ES
The legal system is not a simple structure in Australia or anywhere else in the world. Laws fall into different classifications to provide organisation for the legal system’s vast and complex nature. This helps define the relationships and behaviours the legal system oversees, its sources, and the specific areas of society it addresses. All of these classifications will be studied throughout the course, but a general overview is provided below.
binding law laws or court decisions that must be followed and applied by courts and all parties involved; it creates compulsory rules that cannot be ignored
Binding or non-binding
Laws can be binding, which means that they are legally enforceable to the parties involved. Whereas non-binding laws refer to moral commitments, or doing the right thing. These terms usually refer to civil law, where by individuals will take legal action against another individual or a group.
Written or unwritten
Most laws are written ones, but in society there are also unwritten laws. While the written laws are obvious, unwritten laws are entrenched in society, so the assumption is that people will know them and do the right thing. These days they usually exist around consumer transactions; for example, when you buy something it should do the job that it is meant to do.
Public or private (criminal or civil)
Public law is the law that covers the whole of society. If an individual breaks a public
law, the government will deal with this (through the police and the courts). Public law is a wrongdoing under criminal law. Criminal law is the body of rules and statutes defining crimes and providing punishments for those who commit them. It serves to protect the community and uphold public order.
Private law covers disputes between individuals. The courts will usually deal with these disputes, but they rarely need the intervention of the police. Private law is also known as civil law because it involves private disputes between citizens and/or groups of citizens. It happens where one party claims their rights have been infringed by another’s actions or lack of action.
written law laws that are formally recorded in documents such as statutes, Acts, regulations or constitutions unwritten law laws that are not officially written down but come from customs, court decisions and traditions such as common law public law the part of law that deals with the relationship between individuals and the government including constitutional, administrative and criminal law criminal law the set of laws that deal with crimes, their prosecution and penalties for actions considered harmful to society
Common or statute
private law the area of law focusing on relationships between private people or organisations, covering things such as contracts, property and family matters
Statute law is the body of written laws created by parliament as formal Acts. These laws go through parliamentary processes so that they suit most of society. Common law is judgemade law developed through centuries of court decisions and the principle of precedent. Judges can create a common law from a statute when they interpret it to make a ruling on a case.
civil law the area of law that manages disputes between private parties, usually involving compensation or specific actions, not punishment
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statute law the body of laws created and passed by a legislativenote body taking such as parliament that are written down as statutes or Acts
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Laws can also be divided into domestic and international categories. Domestic law, or scorcher national law, controls activities within a specific country’s borders. International law is a set of rules, norms and standards that govern the behaviour of countries and international organisations, and their relationships with each other. While it is easy to enforce domestic laws, it is more difficult to enforce international laws.
U N SA C O M R PL R E EC PA T E G D ES
common law the body of laws developed by judges through decisions in individual court cases, relying on previous rulings (precedents) rather than written laws
Domestic or international
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download pdf domestic law the set of laws that apply within a specific country or nationstate, regulating behaviour within its borders
international law the group of rules that manage the relationships between different countries and international organisations, including treaties and accepted customs
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Writing focus 1.3 Conjunctions note taking – (subordinating contrast)
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Figure 1.3.1 Courts will hear both criminal and civil cases.
ACTIVITY 1.3.1
Multiple-choice and short-answer questions often test concepts and their meanings. Write a strategy to help you remember new terms. Identify the positives and possible negatives of your strategy. Discuss it with a fellow student.
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1. Outline the difference between binding and non-binding law. 2. Construct a table that contains each of the classifications of law and its meaning. 3. Outline why it would it be easier to enforce domestic law than international law. Go online to assign and download questions, view results and more!
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Chapter 1: Legal foundations quiz
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1.4 Principles of justice LEARNING OBJECTIVE 1.4 DESCRIBE the principles of justice, including equality, access and fairness.
U N SA C O M R PL R E EC PA T E G D ES
The concept of justice involves the fair and impartial treatment of all persons, especially under the law. In simple terms, justice is the continued effort to do the fair thing by everyone. When it comes to making laws in a democratic society, justice involves consulting the people and carrying out the decisions of the majority, while ensuring that the minority are able to put forward their point of view. A just law is one that allows everyone to receive fair treatment and outcomes, as well as ensuring video and respected. widget that human rights are recognised This is not always anreporting easy thing to do, as you will learn throughout the Legal Studies course.
The nature of justice
The interpretation and enforcement of laws by a country’s system of courts (and those who work within the courts such as judges and legal practitioners, prosecutors and police officers) is known holistically as the legal system. It is the task of the legal system to ensure that all citizens have equal access to the law and that the law provides equality, fairness and justice to all members of society. Equality, fairness quiz questions download word and justice are central concepts that allow us to distinguish good law from bad law. However, if not all citizens are able to have full and equal access to the legal system, then equality, fairness and justice are just empty concepts. It is only by combining these principles that a legal system can provide justifiable and appropriate outcomes.
Writing focus 1.4 Noun phrases note taking (identify)
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justice the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved download pdfthe system legal system of courts, prosecutors and police within a country
equality the state or quality of being equal; that is, of having the same rights or status fairness freedom from bias, dishonesty or injustice; a concept commonly related to everyday activities
Figure 1.4.1 Lady Justice can be seen in courts around the world. She symbolises fairness and the rule of law. She is shown with a blindfold for impartiality, scales for weighing evidence, and a sword representing authority and swift justice.
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Equality
U N SA C O M R PL R E EC PA T E G D ES
Equality means that all people in a society are treated in the same way with respect to political, social and civil rights, and opportunities; and that no-one enjoys unfair advantage or suffers unfair disadvantage. Although we would like to think that the principle of equality applies to everyone, our society tolerates many levels of equality and inequality. For example, depending on the situation, a 10-year-old child will be treated different from a 17-year-old teenager or a 40-year-old adult.
doli incapax (Latin) incapable of wrong; the presumption that a child under 10 years of age cannot be held legally responsible for their actions and cannot be guilty of a criminal or civil offence access the right or opportunity to make use of something
The law considers different capacities, such as maturity, and recognises that some people are more vulnerable than others. The law aims to provide protection for these differences. For example, children under 10 years of age cannot be held legally accountable for their actions and therefore cannot be convicted of a criminal offence. This presumption is known as doli incapax. In the case of 10-to 14-year-old children, the court will make an assessment about whether the child can tell the difference between right and wrong, and this will influence the way in which the matter is handled (this is studied in greater detail later in the Legal Studies course).
Fairness
Fairness and justice are usually associated with each other. The difference is that “fairness” applies to everyday life, whereas “justice” has legal connotations. People may have different opinions about what is fair, but justice should be entrenched in the legal system.
For example, suppose one team wins a sport competition because all its players, randomly selected, happen to be taller than the players on the other team, even though they fall into the guidelines of team membership (such as age and gender). If the rules of the competition do not specify that both teams must have players of the same size, it may seem unfair to the losing team, but there is no absolute or fundamental truth. If Ann places a bet on the team she knows has the taller players, and none of the other people who placed bets knows anything about the teams or how tall the players are, Ann’s winning of the bet may also be regarded as unfair – because she had knowledge the others lacked. In other words, even if an opinion about what is fair is justified or mistaken, there is no single social mechanism for deciding what fair is or for ensuring fair outcomes occur. When rules are made, the expectation is that they will be fair to those who have to follow them. In the same way, when a rule is translated into law, it is expected that it will be fair to all members of society. Justice is more specific than fairness, as the term is applied to situations covered by the law, which tries to ensure that everyone has the same opportunities. If a legal decision is seen to be unjust (so not fair), there are legal ways to question this decision. The same does not apply to rules.
Access
In a democratic society such as Australia, protecting the rights of all citizens is the paramount goal of the law. However, for the legal system to meet this goal, all people must have the same level of access to the institutions and agencies of the law. Access is the ability to obtain or make use of something. The concept of justice suggests that
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everyone who is covered by a legal system and its laws should have equal access to that system. This includes ensuring that all members of society are aware of the laws that affect them and understand their rights and responsibilities under these laws.
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In reality, the legal system is not accessible to everybody in an equal way. Such things as income, education and English-language skills can affect people’s access to the law. Groups may have trouble finding appropriate legal solutions, including women, financially disadvantaged people, people from non-English speaking backgrounds, people living with disability, Aboriginal and Torres Strait Islander people, and those who are institutionalised. These issues are covered further in this course.
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Review 1.4 questions
1. Identify the characteristics that make a law just. 2. Outline the meaning of the concept of justice in relation to the treatment of people under the law. How does a democratic society ensure justice when making laws? 3. Outline how the legal system and those who work within it contribute to justice. 4. Outline the difference between fairness and justice. 5. Explain, with examples, why some groups in society might experience less access to the legal system and, therefore, justice. 6. Outline the significance of the presumption doli incapax in law. 7. Outline the ways that the legal system provides a way to challenge decisions that are seen as unjust. 8. Identify the factors that can affect an individual’s ability to access legal institutions or services. Go online to assign and download questions, view results and more!
Figure 1.4.2 Demonstrators take part in a national rally calling for an end to gender-based violence at Hyde Park, Sydney, 18 April 2026. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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1.5 The relationship between ethics and the law LEARNING OBJECTIVE 1.5 EXPLAIN the relationship between ethics and the law.
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“Ethics” and “ethical behaviour” are difficult concepts to define, especially since different people have different ethical standards. Simply put, ethics is doing the right thing; that is, making a judgement about what is the best thing to do in certain situations, and what would be the wrong thing to do. For example, the law does not say that you should open a door for someone whose hands are full of packages or to scorcher help a parent with a stroller down a flight of stairs; but many people carry out these actions as they feel that they are the right thing to do. Often, ethical behaviour affects our integrity; that is, how we feel about ourselves and how others see us.
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The difference between laws and ethics is that ethics are not legally enforceable, and because most people behave in an ethical (or moral) way, laws do not have to be put in place to ensure people’s behaviour is ethical. As different people will have different values, it is not easy to translate these into laws; but because most groups have bonded together over similar values and beliefs, rules and laws have developed around these beliefs. However, over time, as groups changed in their size and nature, laws have developed to enforce correct behaviour. These include laws around discrimination and confidentiality. To summarise the difference between ethics and laws: Ethics are:
• moral principles or values that guide individuals about what is right and wrong behaviour • often personal and can vary between cultures, groups or individuals • not enforced by the government but by social expectations, conscience and professional codes. Laws are:
• formal rules established by a governing authority (such as the government) that dictate what is legally permissible or forbidden • objective and apply to everyone within the jurisdiction • rules that, if broken, result in legal consequences such as fines, penalties or imprisonment.
Differences and connections between ethics and the law can be seen in the following examples: Example 1: Cheating on a test
• Ethics – Cheating is considered unethical because it involves dishonesty and unfairness. • Law – Cheating on a test is generally not illegal, but it may lead to academic penalties such as failure or expulsion.
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Example 2: Littering • Ethics – Most people agree that littering is unethical because it harms the environment and community. • Law – Many places have laws against littering, and offenders can be fined.
Interaction of ethics and law
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Ethics and the law interact in several important ways. These include the following:
• Ethics influence lawmaking – Ethical principles often guide the creation of laws. Many laws are based on widely accepted moral values such as fairness, justice and respect for human rights. For example, laws against theft reflect the ethical belief that taking someone else’s property is wrong. • Law enforces ethical standards – Laws provide a formal mechanism to enforce certain ethical standards, ensuring that behaviours harmful to society are regulated or prohibited. Breaking these laws can result in penalties such as fines or imprisonment. • Laws evolve from ethical debates – Changing social and ethical views can prompt legal reform. For example, ethical discussions about privacy and technology have led to new laws on data protection. In summary, many laws are based on ethical standards because there is a common belief in society that agrees these principles are essential for social order, safety and fairness. While ethics guide what we ought to do, laws provide formal rules to ensure these ethical standards are maintained.
Figure 1.5.1 A NSW Police penalty notice for littering
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1. Write a simple definition for ethics. Outline why it is difficult to have a single definition of ethics and ethical behaviour. 2. Provide an example of an ethical action that is not required by law but is often done because it is considered the right thing to do. 3. Outline the main difference between ethics and laws in terms of enforcement. 4. Explain how laws developed in relation to the values and beliefs of groups in society. Provide some examples of laws that have been created to enforce ethical behaviour. 5. With reference to the example of littering, explain how ethics and laws interact. 6. Explain the ways that laws enforce ethical standards in society. 7. Outline how you think changes in ethical views can lead to changes in laws. Go online to assign and download questions, view results and more!
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scorcher 1.6 Principles of procedural fairness
LEARNING OBJECTIVE 1.6 DESCRIBE key principles of procedural fairness and EXPLAIN why they are important. Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes. It is closely linked to the concept of natural justice and the terms are
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procedural fairness/ natural justice the body download pdf of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia, it generally refers to the right to know the case against you and to present your case, the right to freedom from bias by decision-makers and the right to a decision based on relevant evidence
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often used interchangeably.
Both procedural fairness and natural justice mean that everyone should be treated fairly in legal situations. All citizens are entitled to a fair hearing of their case. This refers to a legal proceeding where all parties have a reasonable and impartial opportunity to present their case before a competent, independent and unbiased decision-maker. In addition, a citizen’s case should be heard without bias. The “rule of bias” is a fundamental principle and requires that decision-makers be impartial and approach a matter with an open, unprejudiced mind to ensure a fair hearing. Three main principles of natural justice and hearings without bias are:
• the right to be heard – this includes the right to a fair hearing, adequate notice about any hearings and the disclosure of relevant information • the right to have a decision made by an unbiased decision-maker – even an appearance of bias is enough to constitute a breach of natural justice • the scorcher right to appeal against a decision.
The assertion that “justice should not only be done but should be seen to be done” comes from the English case of R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256. During this criminal trial – which resulted in McCarthy being convicted of dangerous driving – it was discovered that a clerk to the magistrates was also a solicitor who had represented the person suing McCarthy in a separate civil case arising out of the accident. Although the magistrates did not consult the clerk for his opinion, and the clerk gave them no advice on the matter, McCarthy’s conviction was overturned based on the possibility of bias.
Figure 1.6.1 A case should be heard by a competent, independent and unbiased decision-maker.
In legal studies, students are regularly asked to assess the effectiveness of the law in providing equality and justice. Reference to media items assist in defending your opinion in these questions. The following article and the associated activities will assist in building ability in this area.
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MEDIA 1.6.1 Judges need better education and structures to improve impartiality: report Gabrielle Appleby, The Conversation, 2 August 2022 Australians expects judges to make decisions impartially: that is, free from a range of improper and unacceptable political, financial and personal influences. Not only must they make decisions impartially, they must be seen to make their decisions impartially.
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However, as the cases before the courts continually show, judges can make mistakes. Even when judges are not at fault, developments in behavioural psychology tell us bias and interference can get in the way of good decisions.
Today’s release of the Australian Law Reform Commission’s report into judicial impartiality in federal courts is a much-needed examination of how the whole court system supports judges to deliver justice impartially. Its recommendations would change how judges are appointed, monitor judicial diversity, unleash the transformative potential of judicial education, and create an independent avenue to deal with complaints against the federal judiciary. If the government and the courts pursue these recommendations, there would be major changes to the federal court system.
Why look at judicial impartiality?
The report stemmed from concerns by the then attorney-general, Christian Porter, that there might be misunderstanding of the test for bias among the judiciary, the legal profession and the public. Porter’s concern arose out of a Western Australian family law case involving a judge who refused to step down after it was revealed that he had had coffee with, spoken on the phone and sent text messages to a senior lawyer involved in a case he was deciding. A majority of the Full Court of the Family Court agreed with him that there were no apparent bias concerns. But the High Court unanimously found apparent bias and ordered the matter be retried. How could so many senior federal judges have got the law wrong?
The test and procedure for judicial bias
Was there a problem with the test, which requires the judge to adopt the perspective of an ordinary, informed member of the public in relation to their own circumstances? No, according to the commission. But there is more work to be done in developing and reviewing guidelines for judges and the public to create better clarity and understanding of the principles and processes involved.
The commission also recommended changes to the process whereby judges must determine their own bias. The idea is a hard one for the public to accept. It also cuts against the findings of behavioural psychology, which raises questions about judges’ capacity to assess their own bias from the perspective of a third party.
The need for more wide-ranging reform
These are all important reforms. But the commission goes further and makes a number of recommendations that, if adopted, would transform the judiciary as an institution by elevating the values of impartiality, representativeness, accountability and transparency. This would bring Australia into line with international standards and trends.
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Judicial appointments The commission recommends that the Australian government develop a more transparent process for judicial appointments. This would involve the publication of criteria for an appointment, public calls for expressions of interest, and a commitment to promoting diversity in the judiciary.
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This recommendation reflects the need for a transparent system to minimise the perception that appointments are political. It also responds to the need for excellent legal minds on the bench that are informed by a diversity of backgrounds and life experiences. This would expose and reduce social and cultural bias at an institutional level. The current system of appointments, which amounts to an opaque “captain’s pick” by the government of the day, is increasingly being abandoned internationally. Put simply, it is incapable of meeting these objectives.
An independent commission to deal with complaints
The commission also recommends the Australian government establish a federal judicial commission. This would provide an independent body to receive and deal with complaints against judges, including complaints about bias.
The establishment of an independent federal judicial commission to deal with complaints and discipline is long overdue. We see movement in this direction internationally, as well as in Australian states and territories. The absence of such a body would not be tolerated in any other workplace in Australia. Indeed, we have recently seen the Australian Human Rights Commission recommend the establishment of something similar for the federal parliament.
Yes, it would have to be established carefully, with appropriate respect for judicial independence and the separation of powers. But its establishment would support judicial impartiality and public confidence in the independence and integrity of the courts.
There is ample evidence that while most judicial officers perform their task with the highest integrity, they are not above human error and misconduct. Yet there is no effective mechanism for addressing poor behaviour, sometimes of a very serious nature.
An independent commission would provide an avenue for complaints to be dealt with fairly for both the complainant and the judicial officer. A transparent, independent, proportionate response could then be determined.
The Law Reform Commission accepts this is a significant reform and so recommends further consultation before it’s implemented. But it was seen as crucial by key stakeholders, including the Australian Bar Association and the Law Council of Australia. The horizon looks promising for this reform: Attorney-General Mark Dreyfus has indicated he intends to introduce a commission to investigate alleged misconduct by judges after the government introduces its federal integrity commission.
Educating and supporting judges
Finally, the commission recommends greater structure and transparency from within the courts relating to how judges receive ongoing education. There is currently an expectation (that is, unenforceable) that judges will undertake five days of education and training on appointment, and then a five further days each year. Of course, judicial education is important to ensure judges stay up to date on the substantive law – including the law and process relating to impartiality.
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But judicial education can have a deeper and more transformative role. Well-designed training programs can be directed at exposing cognitive biases in judicial decision-making. The shortcuts and stereotypes that judges (like all of us) use can lead to gendered and racial outcomes. Training can also equip judges with the tools needed to manage the very demanding work they do. It is no surprise, then, that the commission identifies core topics for education of judges, such as:
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• emotional awareness and emotion management • trauma-informed approaches • cultural competency • cultural humility and understanding diversity • reflective practice • mental health and wellbeing • critical reflection on social and cultural bias. A separate recommendation explicitly calls for a structured and ongoing program of Aboriginal and Torres Strait Islander cross-cultural education for members of the judiciary. This would be led by Aboriginal and Torres Strait Islander people and organisations.
A recent report for the Australasian Institute of Judicial Administration that I’ve been involved with reveals the provision of and attendance at judicial training at the moment is, shall we say, haphazard. What we do know is the bulk of education is directed at substantive law training by judges for judges. The commission’s recommendations, if adopted, provide an avenue for judicial education and training to provide a platform that supports – and potentially transforms – judicial impartiality.
ANALYSIS 1.6.1
Read Media 1.6.1 and complete the following questions. 1. 2. 3. 4. 5.
Who published this article? When was it published? What is it about? List the problems with the legal system identified by the Australian Law Reform Commission. Outline the possible solutions provided. Write two to three paragraphs discussing the ability of the Australian legal system to provide procedural fairness. This article was written in 2022. Carry out some online research to see if its theme remains unchanged. Write a statement about your findings.
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Outline the meaning of procedural fairness and how it is related to the concept of natural justice. Identify the key rights that procedural fairness or natural justice guarantees in Australian legal processes. Identify the main principles of natural justice and fair hearings. Outline the role that adequate notice and disclosure of relevant information play in ensuring a fair hearing. Explain the significance of the phrase “justice should not only be done but should be seen to be done”. Assess what it means for a decision-maker to be unbiased and why even the appearance of bias is problematic. Go online to assign and download questions, view results and more!
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1.7 Importance of the rule of law LEARNING OBJECTIVE 1.7 note taking
DEFINE the rule of law and EXPLAIN its importance to individuals, groups, scorcher government and society.
The principle of the rule of law is that no-one is above the law, including those who make the law. This means that all the groups and individuals who are involved in the legal system – such as the legislators and judges who make, administer and interpret the laws; the police officers who enforce the law; and the lawyers who represent and advise people about the law – are answerable to the same laws as every other citizen. Thus, the rule of law means that everyone is subject to the same laws. Obvious breaches of the rule of law occur when officials make favourable decisions for relatives and friends but apply the law fully for everyone else.
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rule of law the principle that nobody is above the law; this can be seen in the requirement that download pdf governmental authority must be used in line with written, publicly disclosed laws, for which established procedural steps (due process) have been taken in their adoption and enforcement tyranny rule by a single leader holding absolute power in a state
Without the rule of law, procedural fairness would be severely compromised. Thus, the rule of law is important because it ensures fairness in legal decision-making (and so provides justice); it supports democratic decision-making; it promotes order and certainty about laws – reducing the chance of anarchy; and, by making decisionmakers accountable, it prevents tyranny.
To expand on the importance of the rule law, it is seen as a necessary part of our legal system for the following reasons.
Individuals
The rule of law has importance to individuals by providing:
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• protection of rights and freedoms – this guarantees that individuals have legal protections and can seek justice through courts if their rights are violated; for scorcher example, laws protect freedom of speech, privacy and property rights • fair treatment – this ensures all individuals are treated equally before the law regardless of race, gender, wealth or position, which means no one can be unfairly punished or discriminated against • access to justice – individuals have the right to a fair trial and due process, including knowing the case against them and having the opportunity to defend themselves, which helps to prevent wrongful convictions and abuses of power.
Groups
The rule of law has importance to groups by providing:
• dispute resolution – groups (such as businesses, unions or community organisations) rely on clear and consistent laws to resolve conflicts fairly, whether over contracts, property or rights, which encourages cooperation and trust • protection of collective rights – groups often rely on laws to protect their rights and interests; for example, environmental groups may use the law to enforce regulations to protect natural resources • predictability and stability – knowing that laws are stable and consistently applied helps groups plan and operate with confidence in society.
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Society The rule of law has importance to society by providing:
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• order and stability – by ensuring everyone obeys the law, the rule of law creates social order, reducing conflict and chaos, and stability, which is essential for economic growth, safety and community wellbeing • fairness and justice – this promotes social justice by ensuring that laws apply equally to all members of society and protect vulnerable groups from abuse or neglect • trust and legitimacy – when laws are applied fairly, people are more likely to trust institutions such as the courts, police and government, which supports social cohesion and peaceful coexistence.
Government
The rule of law has importance to government by providing:
• limits on power – this prevents governments and officials from acting beyond their legal authority, ensuring power is exercised according to established laws rather than personal whim or authoritarian control • accountability – government decisions can be reviewed and challenged in courts, ensuring transparency and responsibility, such as, if a government agency discriminates unlawfully, courts can intervene • separation of powers – this supports dividing government power among branches (executive, legislative, judicial) to avoid concentration of power and protect democracy. (This concept will be explored in more detail later in the course.)
In summary, the rule of law is crucial because it protects individual freedoms, supports groups in pursuing their interests, limits government power to prevent abuse, and provides the foundation for an orderly, fair and prosperous society. Without the rule of law, society risks chaos, injustice and arbitrary rule.
Figure 1.7.1 An Australian government building.
RESEARCH 1.7.1
The World Justice Project carries out research on the rule of law and its implications for nations of the world.
In its annual global rule of law rankings, Denmark regularly tops its list as the most law-abiding country with Australia featuring in the top 20. Venezuela has been noted as one of the least law-abiding nations in the world. • •
Jot down some reasons that would make a country feature in the top nine. Alternatively, what would make a country be at the bottom of the list. Go to the website of the World Justice Project and list which countries are in the top and bottom positions this year. Identify the reasons provided for these ranks.
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U N SA C O M R PL R E EC PA T E G D ES
1. Outline the meaning of the rule of law and its relationship to fairness. 2. Outline how groups such as businesses or environmental organisations depend on the rule of law when solving problems or protecting their interests. 3. Outline why is it important that people trust the law and government. What could happen if people stop trusting them? 4. Describe how the rule of law is important to individuals. 5. Explain why it is important that “no one is above the law”, even people who make the laws. 6. Assess the importance of the rule of law to society in terms of maintaining order and stability, promoting fairness and justice, and building trust and legitimacy. 7. Discuss how the rule of law helps protect democracy and stop governments from becoming too powerful. In your discussion, address whether a country can have a true democracy without the rule of law. Go online to assign and download questions, view results and more!
Figure 1.7.2 Ben Roberts-Smith departs the Federal Court of Australia on 9 June 2021, in Sydney. Roberts-Smith attempted to sue three Fairfax newspapers for defamation over reports he committed war crimes while serving in the Australian Special Air Services in Afghanistan.
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1.8 Absence or misuse of law LEARNING OBJECTIVE 1.8 EXPLAIN the consequences of an absence of law or a misuse of law.
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The rules and laws that have evolved for different societies are based on the longstanding values and ethics that are part of their lives. Most people want and accept rules as a necessary part of everyday life due to the belief that all people should be treated equally and with fairness. video widget reporting
When people believe that the law has let them down in some way, they may declare, “We live in a state of anarchy!” What exactly do they mean by this? The word “anarchy” is derived from anarchia, the Greek word for “without a ruler”. Anarchy, therefore, is a term used to describe a state of chaos and disorder resulting from the absence of rules and laws. Rules are needed to ensure that behaviour is regulated to meet the common expectations of society. Legal rules, called laws, enforce these societal expectations. The absence of laws and thequiz inability to enforce laws, or the unfair and unequal questions download word application of laws, can result in states of anarchy or tyranny.
Writing focus 1.8 Transitional note taking phrases
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anarchy the absence of laws and government
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As you have seen throughout this chapter, rules transpire into laws and these laws are necessary for a just and orderly society. The consequences of a lack of laws, or ineffective laws, can lead to the following outcomes:
• Anarchy and chaos – Without laws, there would be no formal rules to regulate behaviour. This can lead to disorder and potentially violent conflicts when individuals act according to their own interests without restraint. • Lack of protection – Individuals and property would not be protected, so people might be vulnerable to harm, theft and exploitation without legal recourse. • No dispute resolution – There would be no formal system for resolving disputes, which could lead to ongoing conflicts and social instability. • Economic instability – Commercial transactions depend on laws to enforce contracts and property rights; without these, economic activities could decline due to lack of trust and predictability. • Erosion of rights – Basic rights and freedoms might be ignored or violated without legal frameworks to ensure their protection. The rule of law has also been looked at throughout this chapter. Its role is to limit the misuse of law, playing an important part in a just and orderly society. When a misuse of law occurs, it can lead to the following unfavourable outcomes:
• Injustice – Laws applied unfairly or inconsistently can lead to discrimination, oppression or wrongful punishment. • Erosion of trust – Misuse of law reduces public confidence in legal and governmental institutions, which can lead to civil unrest or disengagement. • Corruption – When laws are manipulated for personal or political gain, corruption can become entrenched, weakening governance.
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• Social inequality – Misuse of law may reinforce existing social inequalities by protecting the interests of powerful groups at the expense of others. • Violation of human rights – Laws used oppressively can lead to human rights abuses including wrongful imprisonment, censorship and suppression of disagreement.
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Therefore, in summary, both the absence and misuse of law undermine social order, justice and the protection of individuals, which are essential for a stable and functioning society.
Anarchy
A state of anarchy may break out during a revolution or after a natural disaster because the law-enforcement agencies no longer exist or are unable to enforce the laws. Violence and widespread looting are two early indicators that a society or group is on the verge of anarchy. While most people believe that an absence of rules and laws leads to a disorganised and chaotic society, certain philosophers, theorists and anarchist movements believe that anarchy does not imply chaos, but rather a ruler-free society with voluntary social harmony.
RESEARCH 1.8.1
Prepare a report that analyses anarchy and modern-day anarchist organisations. In your report include: • • • •
a definition of anarchy a history of anarchy information about two anarchist organisations and their beliefs modern-day anarchists and their activities.
Three possible anarchist organisations are the Anarchist Federation, the Iberian Anarchist Federation and the Melbourne Anarchist Communist Group. Search online for information about these organisations. Alternatively, you may choose your own group to research.
Anarchist organisations often protest at:
• G7 summits (or similar meetings of world leaders) • European Union meetings • World Trade Organization meetings.
Tyranny
If anarchy is the absence of laws and law-enforcement agencies, then tyranny is the opposite. By definition, a tyrant is a single leader who has unlimited power over the people in a country or nation-state. Generally, tyrannical power involves severe punishment for any infringements of the law. Some twenty-first century examples of tyrannical power in action include Saddam Hussein’s rule in Iraq before his arrest in 2003, Bashar al-Assad’s presidency in Syria until he was overthrown in 2024, Robert Mugabe’s 30-year control of power in Zimbabwe before his overthrow in 2017, and Kim Jong-un, the current president of North Korea.
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Review 1.8 questions
U N SA C O M R PL R E EC PA T E G D ES
1. Identify some possible consequences of having no laws in a society. 2. Outline how the absence of laws affects the protection of individuals and property. 3. Outline why dispute resolution is important in society. 4. In what ways can a lack of laws lead to economic instability? 5. Explain how the erosion of rights and social inequalities occur without legal frameworks. 6. Identify the negative outcomes that can result from the misuse of laws. 7. Define anarchy. Identify some of the early signs of it in a society. 8. Outline the conditions that might cause a state of anarchy to arise. 9. Outline why modern anarchist groups might protest at international summits and meetings. 10. Outline how tyranny is the opposite of anarchy. 11. Identify the characteristics of a tyrannical leader or a tyrannical government. Go online to assign and download questions, view results and more!
Figure 1.8.1 Thousands of demonstrators protest against the G7 summit in Schloss Elmau June 7–8 2015.
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U N SA C O M R PL R E EC PA T E G D ES
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The law of a country develops from the rules of the dominant community. These rules are based on the customs, values and ethics of that community. Rules and laws have different characteristics. The term for the absence of government is “anarchy”. The law is based on the notions of fairness, equality and justice. The law covers all members of society, and there are penalties for infringements of the law. People follow the law because it provides them with protection against wrongful behaviour.
Multiple-choice questions
1. How do lawmakers try to get people to follow the law? A. By ignoring small mistakes and only punishing big ones B. By giving punishments such as fines or jail time to make people think twice before breaking the law C. By giving rewards to people who do not break the law D. By letting people avoid punishment if they negotiate with lawmakers 2. What is anarchy? A. Anarchy is constant violence and disorder. B. Anarchy is the absence of law and government. C. Anarchy is wearing black clothes and breaking the rules. D. Anarchy is rebellion against the government.
3. What does the principle of the rule of law mean? A. Only Australian citizens must follow the law, not lawmakers or judges. B. Everyone, including lawmakers, judges, police and lawyers, must follow the same laws. C. Officials can make special decisions to help the less privileged when laws are broken. D. Police officers do not have to obey the law, just enforce it.
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4. How does the law treat children differently because of their age and maturity? A. Children under 10 can be punished like adults for crimes. B. Children under 10 cannot be held legally responsible for their actions. C. All children aged between 10 and 14 are always treated as adults in court. D. The law does not consider age or maturity when dealing with crimes.
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5. A police officer charges a man for crossing the road against the lights but does not book a woman doing the same thing. Why is this unjust? A. The police officer should concentrate on serious crimes. B. The police officer applied the law inconsistently and unfairly based on gender. C. The man was faster than the woman. D. The woman had permission to cross. 6. What is the purpose of the law? A. The purpose of the law is to divide power among all the different groups in society. B. The purpose of the law is to provide stability for the ruling government. C. The purpose of the law is to maintain order in society. D. The purpose of the law is to make people do things that others do.
Short-answer questions
1. Compare and contrast “rules” and “laws”.
2. Outline the relationship between rules, laws and customs.
3. Explain the relationship between fairness, equality and justice.
4. Assess whether anarchy and a structured system of law are compatible. 5. Discuss why people have different perceptions of the law.
6. Explain the mechanisms that can be put in place to prevent the misuse of laws in a society. 7. Discuss how laws protect individual rights while also limiting the misuse of power.
Extended-response question
Assess the importance of the rule of law in maintaining justice and order within a democratic society. In your response, describe the key principles of the rule of law and explain how it protects individual rights, limits the power of government, and supports fairness in the legal system. Marking criteria for extended-response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 1.9.1 Answering an exam question
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Aboriginal and Torres Strait Islander Customary Lore
U N SA C O M R PL R E EC PA T E G D ES
CHAPTER
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • • •
explain the significance of Customary Lore for Aboriginal and Torres Strait Islander Peoples describe the diversity of Customary Lore describe the roles of Elders in maintaining and upholding Customary Lore explain the interconnectedness of Country, Peoples, Cultural Practices and kinship that underpins Customary Lore describe the responsibilities in caring for Country, including land and water management.
RELEVANT LAW
IMPORTANT LEGISLATION
Native Title Act 1993 (Cth)
SIGNIFICANT CASES Mabo v Queensland (No 2) (1992) 175 CLR 1 Yanner v Eaton (1999) 201 CLR 351 R v Sydney Williams (1976) 14 SASR 1
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2.1 The significance and diversity of Customary Lore LEARNING OBJECTIVE 2.1
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EXPLAIN the significance of Customary Lore for Aboriginal and Torres Strait Islander Peoples. DESCRIBE the diversity of Customary Lore.
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Aboriginal nation sovereign group with defined territory, not a modern political nation-state
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Aboriginaldownload Customary pdf Lore the traditional laws, beliefs and practices of Aboriginal and Torres Strait Islander Peoples, passed down through generations and deeply rooted in the Dreaming
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Aboriginal and Torres Strait Islander Peoples represent the oldest living cultures in the world today. For at least 65,000 years, First Nations Peoples have lived on the continent now known as Australia. At the time of British colonisation in 1788, there were more than 250 distinct Aboriginal nation across Australia, each with unique languages, customs and territories. These nations were not homogenous; each had its own spiritual beliefs, social structures and languages (approx. 250) with 800 dialects. This diversity was greatly influenced by geography (the landscape), climate (coastal to inland), and across thousands of years of cultural evolution reflected in customary practices and lore.
Aboriginal Customary Lore refers to the unwritten system of rules, values and traditions
that governs Aboriginal life. It includes moral codes, social norms, spiritual beliefs and laws about behaviour, relationships and land. It is deeply anchored in a spiritual connection to Country and governed by strict social norms around marriage and kinship. It has governed the Australian continent for more than 65,000 years.
It is distinct from Western legal systems. It is not codified into written statutes but is deeply embedded in oral traditions, ceremonies and cultural practices, and is often referred to as “the Lore” to emphasise its sacred and cultural significance.
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Writing focus 2.1 Question words note taking
totem in Aboriginal and download pdf Torres Strait Islander cultures, this can be an animal, plant or other natural feature that serves as a spiritual emblem
Significance of Customary Lore
For Aboriginal and Torres Strait Islander Peoples, Lore is the connective fabric between the physical and spiritual worlds. Its significance is reflected in the following: scorcher • The Dreamtime (The Dreaming) – Lore is rooted in the creation period. It dictates how the landscape was formed by Ancestral Beings, and provides the moral and ethical framework or guidelines for human behaviour. • Governance of the “whole” – Unlike Western law, which separates the idea of church (religion) and the state (government), Lore through kinship systems integrates everything from marriage and land management to conflict resolution and trade. • Sustainability – Lore provides guidance on ecological practices to sustain life and natural environments developed over thousands of years. It provides for many examples of sustainable practices, such as totemic management, where individuals have obligations to never hunt or harm their own totem, and communities not harvesting natural resources beyond what was necessary. It also is responsible for the continual renewal of the natural environment through cultural practices, such as patchwork burning, which creates various stages of regrowth to optimise the biodiversity of a range of habitats.
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Diversity of Customary Lore The Customary Lore of Aboriginal and Torres Strait Islander Peoples is not a large, singular customary and legal code but rather a vast, intricate tapestry of interconnected systems that have sustained life and society for more than 65,000 years. Spanning hundreds of distinct nations across the Australian continent, this diversity reflects the unique environmental, spiritual and social requirements to thrive and survive across many different parts of the country.
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From the arid interior, where Lore dictates the vital management of hidden waterholes, to the coastal regions, where maritime protocols govern the rhythms of the sea, each group maintains a sovereign, localised and highly sophisticated body of knowledge. This diversity is the hallmark of a system that is profoundly place-based. It is fundamentally shaped by specific landscapes, ancestral songlines and language groups that define the boundaries and identity of every Aboriginal or Torres Strait Islander nation.
songlines (also called Dreaming tracks) invisible pathways (“musical maps”) that crisscross Australia, representing the journeys of ancestral spirits who created the land, animals and people during the Dreaming; used by First Nations Peoples to navigate vast distances by encoding landmarks, water sources and topography into the rhythm and lyrics of traditional songs
As such, it was a common misconception that there was one single Aboriginal and Torres Strait Islander group. In reality, the diversity of Lore matches the diversity of the groups across the continent, as outlined in Figure 2.1.1 (see pages 32–33).
Much of the diversity of traditional Customary Lore is evident when compared regionally and locally. While the foundations are the same, variations exist in regard to Ancestral Beings, borders and boundaries, songlines and skin names. There are also different ceremonies which are restricted to local people, and there are variations on the types of punishments that can be handed down for breaking the Lore. See Table 2.1.1 for a summary of the common and diverse features of Aboriginal and Torres Strait Islander Peoples’ traditional Customary Lore.
Table 2.1.1 The diversity of Aboriginal and Torres Strait Islander traditional Lore Feature
Commonalities
Regional and local differences
Origin and authority
The Dreaming: The belief that Ancestral Beings shaped the land and created the laws during a timeless era.
Specific ancestors: Some areas follow the Rainbow Serpent, while others focus on the Wandjina, Baiame or Bunjil.
Land connection
Custodianship: No one “owns” land; rather, the land “owns” the people. Lore dictates a duty to care for Country.
Territorial borders: Specific boundaries and “songlines” are unique to each clan’s geographical terrain (e.g. desert vs. rainforest).
Social structure
Kinship systems: Complex rules governing marriage, social interaction and responsibility to family.
Skin names: The number of divisions (classes or moieties) varies; some groups have 2, 4 or 8 distinct “skin” categories.
Law and justice
Restorative justice: Focus on maintaining social balance and harmony rather than just “punishment”.
Specific penalties: Traditional punishments (such as spearing the leg) or dispute resolution rituals varied by regional custom.
Knowledge transfer
Oral tradition: Use of storytelling, dance and art to pass down Lore and survival skills.
Language and ceremony: The specific songs, languages and “secret/sacred” rituals are strictly local and often restricted to initiates.
Economic law
Resource sharing: Strict laws against greed; resources must be shared according to kinship status.
Trade goods: Rules governed specific local commodities, such as pituri (tobacco) in the desert or pearl shells in the North.
skin name a social marker used by Aboriginal and Torres Strait Islander cultures to define an individual’s place within their community; it dictates family relationships, marriage possibilities and ceremonial responsibilities, while connecting the person to specific totems and the land
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Tribal / Language group name
No published information available
SCALE = 1 : 4 700 00
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0
100
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THE AIATSIS MAP OF INDIGENOUS AUSTRALIA David R Horton (creator), © AIATSIS, 1996. No reproduction without permission.
This map attempts to represent the language, social or nation groups of Indigenous Australia. It shows only the general locations of larger groupings of people which may include clans, dialects or individual languages in a group. It used published resources from the It is not suitable for native title or other land claims.
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Chapter 2: Aboriginal and Torres Strait Islander Customary Lore
Figure 2.1.1 This map attempts to represent the language, social or nation groups of Aboriginal Australia. It shows only the general locations of larger groupings of people, which may include clans, dialects or individual languages in a group. It used published resources from 1988–1994 and is not intended to be exact, nor are the boundaries fixed. It is not suitable for native title or other land claims. David R. Horton (creator), © Aboriginal Studies Press, AIATSIS, 1996. No reproduction without permission. To purchase a print version, visit the AIATSIS website.
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Figure 2.1.2 <caption to come>
RESEARCH 2.1.1
Go to the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) website and complete the following activities.
1. Using the AIATSIS Indigenous Map of Australia, locate and identify the nation – language/clan group – for your local area. 2. Describe the geographical area that this group has custodianship over. 3. Research different dialect groups within each nation.
REVIEW 2.1 Online quiz
Review questions
Access sample responses and results
Review 2.1 questions
1. Outline, with reference to one example, the significance of Aboriginal Customary Lore. 2. While the foundations of Customary Lore were the same among Aboriginal nations, describe the areas where Lore diversified between nations and across different parts of the continent. Go online to assign and download questions, view results and more!
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Chapter 2: Aboriginal and Torres Strait Islander Customary Lore quiz
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2.2 The roles of Elders in maintaining and upholding Customary Lore LEARNING OBJECTIVE 2.2
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the roles of Elders in maintaining and upholding Customary Lore.
Elders are not defined simply by their age, but by the wisdom they impart, knowledge that they hold and spiritual authority they possess in the eyes of the community. They serve as the critical custodians of Customary Lore, which regulate and guide the cultural, spiritual and physical dimension of society. videoand enforcers ofwidget reporting Elders are the primary teachers Lore. As traditional Customary Lore is a complex system of rules and ethical standards passed on through oral traditions, it is critically important that its understanding across communities does not diverge from what was derived from the Dreaming.
Elders are responsible for preserving sacred knowledge held in stories, songs and ceremonies that have been handed down over thousands of years. Through kinship systems this knowledge was adapted for local conditions to contain the rules for living. Elders retell and reinforce sacred knowledge, and perform or guide ceremonies that provide an outward signquiz and personal experience of the questions for all members download word community. This includes everything from marriage laws and land management to dietary restrictions.
Writing focus 2.2 Conjunctions note taking – (subordinating reasons why)
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Elders oversee the transition of younger generations into adulthood, ensuring that “The Law” is passed down accurately through rigorous education and initiation processes.
As the spiritual authority within Country, Elders act as a conduit between the physical world and the ancestral spirits. As such they seek to provide guidance for the “right ways of living” and ensure, for example, that rituals are performed correctly to maintain the health of Country.
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Mediation and dispute resolution mediation a form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement
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restorative justice a way of dealing with crime that emphasises the perpetrator taking responsibility for the effect of their crime on others, and trying to do something that makes things better for the vicims
In traditional Aboriginal communities, the concepts of mediation and dispute resolution are deeply rooted in the preservation of social harmony and the restoration of relationships, rather than just the delivery of a judgment. The Elders play a critical restorative justice role in resolving disputes as mediators who are able to provide a historical and spiritual context to the dispute, ensuring that any resolution is aligned with traditional teaching. As impartial facilitators Elders prioritise the survival of the group over the needs of the individual. When Customary Lore is broken or disputes arise within traditional communities, the family and the community are often involved. Discussions or meetings, rather than formal judicial processes, are held during ceremonial times. Elders and influential members of the community meet with those in conflict, and use discussion and dialogue in an attempt to mediate and settle the dispute. In Western legal systems, the focus is often on determining guilt and applying a penalty. In traditional Aboriginal cultures, the primary goal is to heal the breach or in discretion. This is essential because everyone in a community is connected through complex kinship systems, and a dispute between two people is a dispute between families. Elders seek, where possible, to return the community to a state of “oneness” and, as such, the resolution involves the community, ensuring that the conflict doesn’t simmer and lead to future violence.
Enforcement and sanctions
sanction a penalty imposed on those who break the law, usually in the form of a fine or punishment
Elders also play an important role in guiding decisions related to enforcing the law and handing down sanctions. Where sacred law has been broken, Elders are often directly involved in applying sanctions. Sanctions vary from place to place. The relatives of the wronged party, ceremonial leaders or both may be involved in the punishment, the form of which may be determined through negotiations and/or kinship relationships. For the most serious offences, Elders may need to ensure that the punishment is appropriately carried out and restraint is exercised.
There are a range of different traditional punishments and responses to disputes. When deciding which one to apply, factors considered include the location; the wrongdoer (their prior history, gender and status in the community); the victim (their behaviour and status); and how the community as a whole views the offence.
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Sanctions that could be imposed include:
payback a ritualised form of restorative justice designed to settle a grievance and “clear the air” between families or groups; it involves a controlled, public act of punishment or compensation that, once completed, officially ends the dispute and prevents further retaliation
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• Ridicule/shaming – This involves social pressure and public acknowledgement of wrongdoing to encourage the offender to correct their path. It could also include mockery to humiliate the offender. • Circle sentencing/meetings – Elders and respected community members sit with the parties to discuss the impact of the behaviour. • Ritual punishment – In some cases, a controlled physical “punishment” (such as a spear to the thigh) serve as “payback” to provide a definitive end to the matter, preventing ongoing blood feuds. • Exile – This is a severe type of social death, where an individual is physically or spiritually removed from their Country and kin, without the protection and identity provided by the group. This is often considered one of the most profound forms of punishment possible.
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Outline the main role that Elders play in maintaining and upholding Customary Lore. What are the principal dispute - resolution methods in Aboriginal and Torres Strait Islander societies based on? What are some of the sanctions that could be handed out? What is the notion of payback? Go online to assign and download questions, view results and more!
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2.3 The interconnectedness of Country, Peoples, Cultural Practices and kinship LEARNING OBJECTIVE 2.3
U N SA C O M R PL R E EC PA T E G D ES
EXPLAIN the interconnectedness of Country, Peoples, Cultural Practices and kinship that underpins Customary Lore.
Interconnectedness to Country
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Writing focus 2.3 Transitional note taking phrases
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terra nullius (Latin) “land belonging to no-one”; the idea and legal concept that when the first British people came to the continent now known as Australia, the land was owned by no-one and thus was open to settlement; this concept has been judged to be legally invalid moiety a fundamental social system that divides all people, spirits and natural elements into two complementary halves to maintain universal balance; under this system, individuals must marry someone from the opposite moiety, ensuring a continuous cycle of connection and mutual responsibility between different groups and the land
Interconnection to Country is the deep, enduring relationship that Aboriginal and Torres Strait Islander Peoples hold with their lands, waters, skies and all living things. It is a way of describing the complex, reciprocal relationship where every part, scorcher spiritual, cultural and ancestral, is interrelated and mutually reliant on each other. It is a bond that shapes identity and belonging, and is an integral aspect of individual and collective wellbeing. In this sense, “Country” is understood not as a place to own, but as the spiritual and cultural foundation that sustains life and identity. Country is a living presence that cares for people as much as people care for it.
This spiritual connection to Country is lived and expressed through totems, ancestral spirits and ceremonial responsibilities. This connection also implies an inherent notion of guardianship, which through Lore dictates how individuals are to care for Country, which includes sustainable traditions and practices, including protection of sacred sites.
This connection to land through collective guardianship does not present a sense of tangible ownership of the land through deeds of ownership, fences etc. This is one way the British justified their colonisation and imposition of British property law on the continent now known as Australia. The British falsely declared the land terra nullius, a Latin expression meaning “land belonging to no-one”. The notion of terra nullius was overturned by the Mabo v Queensland (No 2) (1992) 175 CLR 1, which established that native title existed at the time of colonisation. This was later embodied in the Native Title Act 1993 (Cth).
Interconnectedness of people
Aboriginal social structure is based on a “moiety” system, which is the foundational “binary” (two) parts of Aboriginal social structure. The word itself comes from the French word moitié, meaning “half”. Under this system, everything in Aboriginal society – the universe, people, animals, plants and even stars – are divided into two complementary halves. In this sense, an Aboriginal society is not one giant whole; it is two distinct groups of people that have an interconnectedness to each other to create a whole. This division is the primary driver for marriage, ceremony and environmental care.
Traditional society is non-hierarchical in that there are no “kings” or “chiefs”. Instead, authority is earned through sacred knowledge. A person’s status is based on how
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much “Lore” (spiritual and traditional knowledge) they have acquired and whether they can be depended upon to provide wisdom and council when required. Elders are held in high esteem as the custodians of Dreaming stories and are responsible for settling disputes and passing on traditions.
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Men’s business and women’s business also provide a gender balance because both genders have their own sacred sites, ceremonies and spheres of influence that are equally vital to the community’s health. These are often separate but complementary.
Figure 2.3.1 Yolngu People during the Garma Festival 2022 at Gulkula on 29 July 2022 in East Arnhem, Australia. The annual Garma festival is held at Gulkula, a significant ceremonial site for the Yolngu people of North-East Arnhem Land.
RESEARCH 2.3.1
The Yolngu people of North-East Arnhem Land have one of the more clearly documented moiety systems. In their culture, everything from a drop of water to a constellation is either Dhuwa or Yirritja.
1. What is meant by the terms Dhuwa or Yirritja? 2. What are some of the key aspects of society under the Dhuwa and Yirritja structure? 3. Compare and contrast the Aboriginal system of “moiety” with contemporary Australia.
Kinship system that underpins Customary Lore
Kinship is the cornerstone of Aboriginal social organisation. It defines and guides relationships, responsibilities and roles within each community. Traditional Aboriginal social structures are among the most complex and sophisticated in human history. Rather than being based on wealth or material power, the system was built on kinship, spirituality and connection to Country.
kinship family relationships, including all extended family relationships; an important part of Aboriginal and Torres Strait Islander cultures and values, which dictates how all people in the group behave towards each other
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The concepts of kinship and social structure were the foundational laws that determined how a people interacted with every other being’s living soul, the land and the spiritual world. Under Customary Lore, these kinship systems ensure harmony, survival and, through ritual and oral tradition, the preservation of knowledge.
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Importantly, they determine a person’s place in society through a series of extended family networks that are broader than the Western understanding of a “nuclear family”. This provides a rich and intricate system of relationships that allows the community to draw on the vast knowledge and experience held collectively. It also performs critically important functions, such as the following:
• Extended parenting, which ensures every child is cared for by not only their biological parents but also a number of “aunties” and “uncles”, who have the same authority, responsibility and emotional bond to the child as the birth mother and father. This ensures that if one parent is absent or dies, there are multiple people with the same legal and spiritual obligations to the child under Lore. • Elder guidance from grandparents and Elders as keepers of the “Lore” who are responsible for teaching children, the sacred stories, songs and, importantly, the boundaries of their Country. “Grandmother” carers, when interviewed in Kinship and Cultural Strengths–Learning from an Aboriginal Perspective (2024), frequently stated that their primary job is to ensure the child “knows who they are” and “where they belong” in the spiritual landscape of their Country. • Transferring intergenerational knowledge, as kinship care is not just about physical safety; it is also about the transfer of spiritual identity. A child is born into a spiritual legacy. Their kinship group (skin name) dictates which sacred sites they must protect and which songlines they are responsible for learning.
Marriage
totemic affiliations the spiritual and social bonds that link an Aboriginal person or group to particular animals, plants, natural forces or Ancestral Beings; they are not just symbolic labels – they shape identity, responsibilities, marriage rules and a person’s place within the wider kinship system
The tradition and regulation of marriage under Customary Lore is also governed by complex kinship rules. Rules around marriage maintain social harmony and uphold spiritual laws and traditions. Marriage also provides strategic alliances between families, which reduces conflict and promotes cooperation. The Australian Law Reform Commission in its review the Recognition of Aboriginal Customary Laws, Report No. 31 (1986) stated that, “marriage wasn’t just a romantic union between two people; it was a strategic alliance between families and a fundamental mechanism for maintaining the kinship system”. Marriage tradition defines who one can marry, who must be avoided, and who holds authority in rituals and decision-making. As outlined earlier “moiety systems” are used, which means that a person must marry someone from the opposite moiety.
Underlying this, and perhaps the most critical regulator of marriage, is the skin system. Every person is born into a specific “skin group” and totemic affiliation based on their parents’ groups, and this system acts like a complex societal compass. For example, you generally must marry someone who is a member of a group that is different from your own. As such, the system determines exactly which groups are “marriageable” and which are not permitted.
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This social rule or custom is known as “exogamy” and helps build vital political and resource-sharing alliances between different groups. Regulation does not end at the wedding as traditional Lore also dictates strict avoidance relationships, most notably between a man and his mother-in-law. They are often forbidden from speaking to, looking at or being in the same immediate space as one another. This prevents domestic friction and maintains a high level of formal respect between the joined families.
exogamy a social rule or custom that requires an individual to marry outside their own specific group, such as a clan, tribe or kinship section; in traditional Aboriginal societies, this served to build vital political and resource-sharing alliances between different groups
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This type of marriage system ensures a balance and continuity within and across society, which is vital to survival, and is a practice that has evolved over thousands of years.
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Cultural practices as an expression of Customary Law
As discussed earlier, kinship defines and guides relationships, responsibilities and roles within each community and can be referred to as the “social map” that dictates an individual’s identity. Cultural practices, meanwhile, are the active rituals that bring those aspects to life. Practices, such as specific dances or food taboos, serve as physical reminders of one’s obligations to family and the land. Through ceremonies, the kinship system determines who has the authority to pass down sacred knowledge and who is responsible for receiving it. This relationship ensures that social order is maintained, as every person knows their exact role in the community’s survival. Ultimately, practising culture is how the kinship system is enforced and preserved across generations.
avoidance relationships strict social protocols that forbid specific kin – most notably a man and his mother-in-law – from direct contact, speech or eye contact; these rules minimise domestic friction and reinforce deep mutual respect by maintaining formal boundaries between joined families
Such cultural practices have been passed from generation to generation by word of mouth (oral expression) and through ritual, ensuring the essential framework that provides the legal, educational and environmental tradition is kept alive. Stories, songs and dances are also used to help people remember the laws of their people.
During ceremonial meetings at communal gathering places, laws are passed on by, and to, the appropriate people and are reinforced often through dance and storytelling. Many of these ceremonies are sacred and people from outside the community are not permitted to participate nor, in some instances, watch. The stories have been handed down for thousands of years and explain concepts such as the creation of all things, why events happen, tribal boundaries, family relationships, cultural practices and forbidden acts. Such stories captivate and enthrall younger generations, but they also impart vital knowledge for survival, such as where to find water, which plants are toxic and how to navigate vast distances. Songlines are also another important form of oral expression and a way of storing vital information. It has been suggested that Aboriginal “songlines” are one of the most sophisticated systems of navigation and cultural preservation ever created, as they provide functional maps of the Earth and the sky. Certain types of songlines have been described as melodic paths that cross the continent. By singing the correct sequence of songs, an individual can navigate hundreds of miles, as the song describes specific landmarks created by Ancestral Beings. Songlines could also carry moral lessons that reinforce certain laws or ethics. They can be used to explain the migration patterns of animals and the blooming cycles of plants. They also recorded ancient geological events, such as the rising of sea levels and volcanic eruptions from thousands of years ago.
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CASE STUDY 2.3.1 The Filling of the Great Bay This case study comes from Nunn, P. D. & Reid, N. J. (2016). Aboriginal Memories of Inundation of the Australian Coast Dating from More than 7000 Years Ago, Australian Geographer, 47(1). One of the most scientifically significant examples of a Songline is the story of the Great Flood, preserved by the Gungganyji people (and other coastal nations) of North Queensland.
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While Western science only recently confirmed these events through sonar and core sampling, Aboriginal oral traditions have maintained the record for over 10,000 years.
The Songlines of the Cairns region describe a time when the Great Barrier Reef was not an ocean, but a dry, grassy coastal plain where people hunted kangaroos and walked to islands that are now miles offshore.
The stories tell of a time when the “coastline was where the reef is now.” They describe a massive, permanent rise in the sea level that forced the people to flee their camps and move into the mountains. This corresponds exactly to the end of the last Ice Age. Between 15,000 and 7,000 years ago, melting ice caps caused the sea level to rise by roughly 120 meters, eventually flooding the Australian continental shelf. The oral tradition identifies specific landmarks — now underwater — by their original terrestrial names. For example, some stories name “Fitzroy Island” as a mountain peak that was once part of the mainland. This isn’t just a “myth”; it is a high-fidelity data record. The fact that these stories survived for 10,000 years without being written down proves the power of the cultural practices.
Figure 2.3.2 Fitzroy Island. Some stories named this as a mountain peak that was once part of the mainland.
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Describe the kinship system. Outline the benefits of the kinship system. What is the importance of totemic affiliations? What is the purpose of songlines? Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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2.4 Responsibilities in caring for Country LEARNING OBJECTIVE 2.4 DESCRIBE the responsibilities in caring for Country, including land and water management. video
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U N SA C O M R PL R E EC PA T E G D ES
The idea of individual land ownership is alien to Aboriginal and Torres Strait Islander thought. Being a member of a group means that a person is able to live on and use the resources of certain lands. Thus, the land belongs to the local community, and loss of this land means losing the group’s culture and history. In the same way, Aboriginal and Torres Strait Islander Peoples have links with the sea, lakes, rivers and all bodies of water. These are not owned by individuals but are also cared for by each group under Customary quiz Law. questions
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Each group has distinct responsibilities governing how they look after their land and bodies of water. These responsibilities are tied to their traditional laws and the stories and rituals that pass on these laws and responsibilities. Failure to uphold Figure 2.4.1 The summit of Wollumbin (Mt Warning) is a sacred place to the Bundjalung People and was these obligations can be seen as a failure to show respect for declared an Aboriginal Place in 2014. In 2022 the the land (including bodies of water) and traditional values. summit was closed to non-Indigenous people.
Responsibilities in caring for Country include the following key areas.
Maintaining sacred sites and protection
This responsibility goes beyond physical upkeep, such as removing weeds or preventing erosion. It is about stewardship of the Dreaming (or ancestral narratives). It involves: • physical maintenance, such as cleaning and protection of sites, clearing debris video widget reporting from rock art galleries, ensuring water sources remain uncontaminated and preventing erosion around significant landmarks • custodianship and guardianship of specific sites, for example, controlling access to ensure that “men’s business” or “women’s business” areas are not desecrated by those who shouldn’t be there • protection from harm by guarding against the desecration of these sites, ensuring that the “living” energy of the Ancestral Being residing there is not disturbed. quiz Following cultural laws
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Caring for land and water bodies through cultural laws ensure as much as possible that there is a sustainable harvest. This guides when certain plants can be picked or animals hunted. Laws often forbid hunting a species during its breeding season or not taking more than is needed. This is reinforced through totemic lore (discussed earlier), by which every person has a legal and spiritual duty to ensure the survival of their totem, which naturally creates a built-in conservation system for all species across different groups. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Participating in ceremony and rituals
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Participating in ceremony, such as performing rituals, song, dance and storytelling, spiritually renews the land and ensures the “increase” of species. Depending on Country, there are specific ceremonies performed at sacred sites to ensure the abundance of a particular resource. By singing, dancing and performing specific rites, the community is said to have activated the fertility of the land to ensure plenty of rain, yams or kangaroos for the coming season.
The Mabo Oration
The Mabo Oration is an event hosted by the Queensland Human Rights Commission and Queensland Performing Arts Centre. The 2025 Mabo Oration was presented by Katie Kiss, Aboriginal and Torres Strait Islander Social Justice Commissioner, on the subject “One Land – Two Laws – It’s Black and White”.
The speech is a powerful modern look at how Customary Lore and Western law intersect today. It moves beyond the idea of “recognition” and argues that Aboriginal traditional law is an active, enduring system that exists alongside the Australian legal framework. Commissioner Kiss speaks about using traditional governance models to ground communities in their obligations to kin and Country. It also addresses the need for the legal system to evolve further to protect cultural heritage and respect First Nations decision-making powers.
You can read the text of the speech at https://cambridge.edu.au/redirect/12026, or watch a video of the presentation at https://cambridge.edu.au/redirect/12027
RESEARCH 2.4.1
Traditional Aboriginal and Torres Strait Islander Customary Lore is still used in parts of Australia today. There has been some recognition through the courts over time for its application in contemporary Australia. Research the following cases and outline the legal principle established in them: • Yanner v Eaton (1999) 201 CLR 351 • R v Sydney Williams (1976) 14 SASR 1. Research other cases that have added to the clarification of the place of traditional Lore in the modern legal system.
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How does Aboriginal understanding of land ownership influence their responsibility to care for Country? In what ways does Lore guide how sacred sites are protected and maintained? How do cultural laws ensure caring for Country is followed? What part do ceremony and rituals play? Go online to assign and download questions, view results and more!
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U N SA C O M R PL R E EC PA T E G D ES
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Customary Lore refers to the unwritten system of rules, values and traditions that govern Aboriginal and Torres Strait Islander life. It includes moral codes, social norms, spiritual beliefs and laws about behaviour, relationships and land. It is deeply anchored in a spiritual connection to Country. The Dreaming and kinship systems are common to all communities but there is great diversity of traditional lore according to ancestors, borders and boundaries, totems and skin names. Elders are not determined simply by their age, but by the wisdom they impart, knowledge that they hold and spiritual authority they possess in the eyes of the community. They serve as the critical custodians of Customary Lore, which regulates and guides the cultural, spiritual and physical dimensions of society. Dispute resolution is based on restorative justice and uses mediation as a tool to bring offenders, victims and their families to agreement. Interconnection to Country is the deep, enduring relationship that Aboriginal and Torres Strait Islander Peoples have with their lands, waters, skies and all living things. Each group has distinct responsibilities governing the way in which they look after their land and bodies of water. These responsibilities are tied into their traditional laws and the stories and rituals that pass on these laws and responsibilities. Aboriginal social structure is based on a “moiety” system, which is the foundational “binary” (two) parts of Aboriginal social structure. In this sense, an Aboriginal society is not one giant whole; it is two distinct groups of people who are interconnected. This division is the primary driver for marriage, ceremony and environmental care. Kinship is the cornerstone of Aboriginal social organisation. It defines and guides relationships, responsibilities and roles within each community. Importantly, it determines a person’s place in society through a series of extended family networks that are broader than the Western understanding of a “nuclear family”. Each nation has distinct responsibilities governing the way that they look after their land and bodies of water. These responsibilities are tied into their traditional laws and the stories and rituals used to pass on these laws and responsibilities.
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Multiple-choice questions
U N SA C O M R PL R E EC PA T E G D ES
1. Which of the following best describes the nature and diversity of Aboriginal and Torres Strait Islander Customary Law (often referred to as “Lore”)? A. A single, centralised written code of conduct that applies uniformly to all First Nations Peoples across the Australian continent B. A static set of ancient rules that remained unchanged until the arrival of European settlers in 1788 C. A complex system of oral traditions, spiritual beliefs and kinship obligations that varies significantly between different nations, clans and language groups D. A purely symbolic set of guidelines that holds no practical authority over land management, social behaviour or dispute resolution 2. Which of the following best describes the primary role of Elders in upholding Aboriginal and Torres Strait Islander Customary Lore? A. Acting as formal political representatives who draft written legislation for the Australian government B. Serving as the custodians of traditional knowledge, responsible for interpreting Lore, settling disputes and passing on cultural protocols to younger generations C. Functioning as historical archivists whose only role is to record past events without influencing current community decisions D. Providing purely recreational guidance on traditional arts and crafts without any authority over social or legal conduct 3. Which of the following statements is INCORRECT regarding how Aboriginal and Torres Strait Islander Customary Lore is enforced? A. Enforcement is often carried out through social mechanisms such as public shaming, exile from the group or the loss of specific cultural privileges. B. Sanctions for breaking Lore are determined and overseen by Elders and initiated by members who hold the authority to interpret traditional protocols. C. Lore is enforced by a nominated group of Elders who operate across all nations. D. Ritual or physical punishments are sometimes used for serious breaches of Lore to restore spiritual and social balance within the community. 4. Which of the following best explains the relationship between kinship and cultural practices within Aboriginal and Torres Strait Islander Customary Lore? A. Kinship is a purely biological family tree that has no influence over who is allowed to perform specific ceremonies or manage certain areas of Country. B. Kinship functions as a rigorous social and spiritual framework that determines an individual’s rights, responsibilities and specific roles in cultural ceremonies and land management. C. Kinship is a modern administrative system introduced by European settlers to help organise First Nations communities into manageable labour groups. D. Kinship and cultural practices are entirely separate; cultural knowledge is shared equally with everyone regardless of their family connections or status.
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5. Which of the following statements about songlines (also known as Dreaming tracks) in Aboriginal and Torres Strait Islander cultures is INCORRECT? A. Songlines function as oral maps of the land, with the words of the song describing specific geographical landmarks, waterholes and boundaries. B. Songlines are essentially modern musical compositions created by contemporary First Nations artists to compete in international folk festivals. C. Songlines recount the journeys of Ancestral Beings who created the world and the laws for living within it. D. A person can navigate vast distances across the Australian continent by singing the correct sequence of songs associated with that specific track.
Short-answer questions
1. In what ways does Aboriginal and Torres Strait Islander Customary Lore vary from nation to nation? 2. How does a person become an Elder?
3. Why is exile one of the harshest sanctions a person could receive?
4. In what ways do Aboriginal and Torres Strait Islander Peoples maintain their sacred sites?
Extended-response question
Outline the roles of Elders in maintaining and upholding Customary Lore, including mediation and traditional dispute resolution. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 2.5.1 Answering an exam question
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3
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CHAPTER
Sources of law
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • •
describe the origin and development of common law in Australia describe features of the doctrine of precedent and explain its application in law describe statute law and the steps in the legislative process outline the role and types of delegated legislation.
RELEVANT LAW
IMPORTANT LEGISLATION
Commonwealth of Australia Constitution Act 1900 Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) Combatting Antisemitism, Hate and Extremism Act 2026 (Cth) Terrorism and Other Legislation Amendment Act 2025 (NSW) The Online Safety Act 2021 (Cth) Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth)
SIGNIFICANT CASES Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
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3.1 Origin and development of common law in Australia LEARNING OBJECTIVE 3.1
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the origin and development of common law in Australia.
Common law
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The term “common law” has many different uses in our contemporary legal system today and can be used in the following contexts:
• court-made law (as opposed to laws made by parliament or statute law) scorcher • law developed by the courts of common law, as distinct from the courts of equity • the system of court-based law used in the United Kingdom and many of its former colonies, including Australia, New Zealand, Canada and the United States.
Development of common law The British legal system
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The British legal system itself developed from a number of sources. In Anglo-Saxon England, for example, questions about rights and obligations were decided based on local custom, and disputes were resolved by local courts. After the Normans invaded England in the eleventh century, they began a system of travelling judges who applied a common set of laws to all areas of England. These judges, also known as magistrates, dealt with petitions from people who felt that the local courts had been unjust. They used the premise that similar cases should be treated in a similar way. The decisions made by the judges provided the standards, or precedents, for later cases, and the laws they applied became the basis of the British legal system.
How British law shaped Australia
This system was the one brought over to Australia with the First Fleet. Since then, Australia has gradually developed a legal system based on its own statute law and common law; however, many British legal principles have been retained in the Australian system. These include the principles of natural justice.
Early law enforcement in England
From about the sixth to the eleventh century in England, the law was enforced by local administrative bodies. The king’s appointees, the church and local landlords all had a role in court resolution of legal matters. Crimes were treated as wrongs for which the offender had to compensate the victim. If the court accepted a case, both the person against whom the illegal act was allegedly committed (the plaintiff) and the person who was said to have committed it (the defendant) had to swear an oath. The defendant might have the help of “oath-helpers” – people willing to swear to their innocence. If the court found the defendant’s oath believable, they could simply walk away. If, however, the plaintiff had witnesses who would swear that the defendant had committed the act, the defendant might be required to participate in a “trial by ordeal”.
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Trials by ordeal
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Before the ordeal, the defendant had to fast for three days and attend a special Mass. They were then given a painful task to complete or to bear, such as carrying a red-hot iron bar a certain distance in their bare hands, retrieving a stone from a cauldron of boiling water, putting their hand into a flame, or being thrown into a river or pond. If the defendant completed the task without injury or death, if the wound healed within a prescribed period, or if the defendant sank, they were considered innocent and set free; if not, execution usually followed. Trial by ordeal continued after the Norman Conquest, though there were new requirements imposed by the church; for example, that no-one could be made to undergo an ordeal without a bishop’s permission. The practice was eventually condemned by the church in 1215 and abolished by royal decree in 1219.
How travelling judges created common law
In order to consolidate his hold on the country, in the eleventh century, William the Conqueror sent judges (or justices) around the country with three main tasks to carry out:
Figure 3.1.1 William the Conqueror
• administer a common set of laws throughout the country • report on any threats to the throne • assess the wealth of the country so that taxes could be levied.
When Henry II came to the throne in 1154, there was a well-established practice of sending royal justices throughout the countryside to listen to disputes, work out solutions, apply punishments and ensure that common rulings were made overall.
equity the body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness
These judges also had authority to make decisions when they heard new cases. In this way, a set of uniform laws developed throughout England. Thus, common law as we know it today has evolved from judicial decisions that were based in tradition, custom and precedent.
Development of equity
The procedure for bringing a case before the court was rigidly formal. In Anglo-Saxon times, if a party failed to follow the prescribed steps, they could lose their case. Even later, the common law would hold that a person was bound by a contract, even if they had made a mistake or been tricked into signing it. By the fifteenth century, people were bringing petitions to the king claiming that the common law courts had made unjust decisions. It became the job of the Chancellor to deal with these petitions. For many years, the Chancellor was a priest as well as a judge. Chancellors did not base their judgments on precedent and form; instead, they were influenced by Christian principles. This body of law, which developed to deal with the injustices that had crept into the common law and was set up to hear these petitions, became known as equity.
Figure 3.1.2 King Henry II
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As a court of equity, the Court of Chancery looked at the features of each case to decide what was fair or just in the particular circumstances. The moral principles on which equitable decisions were based were called the rules (or maxims) of equity, and these are still used today.
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The systems of common law and equity co-existed, but not always peacefully. In the early seventeenth century, a dispute between the Chancellor and the Chief Justice of the King’s Bench was resolved through the personal intervention of the king, James I, who called a conference of judges. They concluded that in the case of conflict between the common law and equity, equity should prevail. As a result, rules of equity always override common law.
There are equitable remedies for wrongs not recognised by the common law. Some of these remedies are non-financial; for example, the court may order someone to do what they had promised but then failed to do, or the court may set aside an unfair contract.
Figure 3.1.3 King James I
In the 1870s, the British parliament passed legislation merging the courts of common law and the courts of equity, allowing judges to apply the rules of common law or equity (or both) in a particular case. The Australian colonies followed suit with similar legislation.
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Define what “trial by ordeal” involved in the early English legal system. Identify the three main tasks that William the Conqueror’s travelling judges were required to carry out. Describe the role of the Chancellor in dealing with petitions about unjust common law decisions. Explain why equity was developed as a separate body of law alongside common law. Compare the basis on which common law judges and Chancellors in equity courts made their decisions. Go online to assign and download questions, view results and more!
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3.2 The doctrine of precedent LEARNING OBJECTIVE 3.2 DESCRIBE features of the doctrine of precedent and EXPLAIN its application in law.
U N SA C O M R PL R E EC PA T E G D ES
The doctrine of precedent
As stated in section 3.1, the common law (or case law) is the law developed by judges when deciding cases. In addition to rules on the presentation of evidence and the running of the case, judges must resolve disputes by considering previous decisions made in video on similar circumstances widget reporting, and it similar cases. A previous judgment is called a precedent provides the authority for the legal principle contained in the decision. The concept that like cases must be treated alike is called the doctrine of precedent or stare decisis.
The purpose of precedent is to ensure that people are treated fairly and that the law develops in a consistent and coherent fashion. It means that old cases retain an authority, which allows their decisions to be used as the basis for decisions in newer court cases. Thus, the doctrine of precedent works to limit a judge’s ability to be too creative when it comes to making a decision. quiz
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Making and following precedent
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When there has been no previous decision to provide guidance for determining a case, a court must use principles of the existing common law and statute law to make its decision. The judge(s) will also pay attention to social developments and common sense. This new decision creates a new precedent. Another way in which precedents are created is in the interpretation of legislation. Where there is a dispute about the meaning or application of a section of an act, or about the meaning of a word, a court may have to resolve the question. For example, if a statute requires that the local council must approve the removal of trees from any land, a developer might not agree that the term “trees” includes dead trees. Judicial interpretation of the legislation might be needed to determine whether council approval must be sought for the removal of dead trees just as for live ones. While courts are not bound to follow other courts’ interpretations of statutes, they are usually expected to do so. This is because, if a court decision has not resulted in parliament changing the wording of legislation, it suggests that parliament is satisfied with the court’s interpretation.
Writing focus 3.2 Conjunctions note taking – (subordinating reasons why)
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precedent a judgment that is authority for a legal principle and that serves to provide guidance for deciding cases that have download pdf similar facts stare decisis (Latin) “the decision stands”; the doctrine that a decision must be followed by all lower courts ratio decidendi (Latin) the legal reason for a judge’s decision obiter dicta (Latin) comments from a judge in a case that are not directly relevant to the case and, therefore, not legally binding (singular: obiter dictum)
When a judge gives a decision in a case, it usually is made up of two parts: • ratio decidendi – the essential legal reason why a judge came to a particular decision; a decidendi in a higher court sets a binding precedent on lower courts • obiter dicta – other remarks made by the judge about the conduct of the trial (e.g. about the credibility of a witness); these remarks do not form part of the decision and, thus, do not set a precedent.
Figure 3.2.1 Court house building in Orange, NSW
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When precedent does not have to be followed If the facts or relevant points of law are significantly different from a previous case, the case may be distinguished from the earlier one and its ratio decidendi will not have to be followed. When a higher court upholds an appeal against a lower court’s decision, the decision of the lower court is reversed.
U N SA C O M R PL R E EC PA T E G D ES
A court may refuse to follow a decision of another court that is at a lower or equal level in the hierarchy. This refusal is called overruling the decision of the lower court.
Rules of precedent Binding precedent
Figure 3.2.2 Joseph Gutnik argued that he had been defamed on the internet. The Supreme Court of Victoria found in his favour, and the High Court of Australia upheld this decision (see In Court 3.2.1).
Lower courts are bound to follow decisions of superior courts, regardless of whether the judge believes that court’s decision was correct. This is known as “binding precedent”. For example, the Local Courts and District Court of New South Wales must follow the decisions of the Supreme Court of New South Wales, and all state and federal courts in Australia are bound by the decisions of the High Court of Australia. Only the ratio decidendi of the superior court is binding. The High Court is not strictly bound by its own decisions, though it usually follows them.
Persuasive precedent
Superior courts do not have to follow decisions made in lower courts. They may, however, use them to help make a decision. This is called “persuasive precedent”. Persuasive precedent may also include obiter dicta of a judge in a higher court.
jurisdiction the powers of a court, depending on its geographic area, the type of matters that can be decided, and the type of remedies that can be sought
defamation the act of making statements or suggestions that cause damage to a person’s reputation in the community
Decisions made in other Australian states or other common law countries, such as the United States or the United Kingdom, may influence an Australian judgment. The higher the court in its own jurisdiction’s hierarchy, the more persuasive the precedent.
IN COURT 3.2.1
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
In this case, the plaintiff (Gutnick) argued that he had been defamed on the internet. The defendant (Dow Jones) is the publisher of an online news magazine. An article in that magazine discussed the business dealings of the plaintiff – who is a prominent Melbourne businessman – and alleged that he was involved in money laundering and fraud.
Even though the article originated in New York, the plaintiff successfully argued that he had been defamed in his own city because more than 300 people had accessed the article in Melbourne. The Supreme Court of Victoria held that publication occurs when an article is downloaded, and that a plaintiff can bring proceedings in any jurisdiction where the offending statements can be accessed. The High Court of Australia upheld this decision in 2002. This was one of the first legal cases to look at the internet as a source of defamation. It set a precedent for defamation claims being brought across jurisdictional boundaries and sparked international interest. The decision shows that internet communication is no different from other forms of communication and is subject to the same laws.
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ANALYSIS 3.2.1 Read In Court 3.2.1. Evaluate the importance of Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 in the development of the law of defamation.
REVIEW 3.2 Review questions
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Review 3.2 questions 1. 2. 3. 4. 5.
Describe how common law originated. Outline how people were tried for crimes in medieval England. Discuss the problems with this system. Define equity law and explain how it differs from common law. Describe how the principle of precedent is used in court decisions. Explain why Australian law is based on common law principles. Go online to assign and download questions, view results and more!
3.3 Statute law and the legislative process LEARNING OBJECTIVE 3.3
DESCRIBE statute law and the steps in the legislative process.
Statute law is the law made by parliament. It is also known as “legislation” or “Acts of Parliament”. In Australia, any parliament has the power to make statute law. This means that state, territory and federal governments all have the right to make laws. The Australian Constitution established through the Commonwealth of Australia Constitution Act 1900, sets out the powers of the state and federal parliaments with respect to making law.
The legislative process Passing legislation
One of the most important functions of parliament is the passing of laws. The party that holds government introduces most laws. A proposed new law is known as a Bill. Ministers, who are responsible for their preparation, usually introduce Bills; however, any member of parliament can introduce a Bill. When a non-ministerial member (backbencher) introduces a Bill, it is known as a private member’s Bill.
Video 3.3.1 View the video from the State Library of NSW (10:47). It provides an overview of how parliamentary law is made at both state and federal levels. It also describes what delegated legislation is and how this works together with Acts of Parliament. This video will consolidate your understanding of both. Bill a drafted law that has not yet been passed by parliament
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Writing focus 3.3 Transitional note taking phrases
The making of a law can be time-consuming and difficult. The process is open to public scrutiny and, as a result, well-organised pressure groups and members of the public can influence parliamentarians’ opinions. The British Monarch scorcher (represented by the Governor-General)
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Government members of parliament
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Executive members of parliament
Non-government members of parliament
House of Representatives
Senate
Figure 3.3.1 The Parliament of Australia – the number of government members of parliament in each house is determined at the conclusion of each election. Act of Parliament statute law, resulting from a Bill successfully passing through parliament and gaining royal assent
bicameral containing two chambers or Houses of Parliament
As members of parliament are subject to elections every few years, they are well aware of the consequences of passing unpopular legislation. This means that proposed legislation often undergoes much discussion in parliament and may be redrafted many times.
Before a Bill passes and becomes federal law, it requires the approval of both Houses of Parliament and the Governor-General. It then becomes an Act of Parliament.
The process for passing laws through the New South Wales parliament (as well as in other states with bicameral parliaments) is generally the same as passing laws through Federal Parliament. This process is outlined in Figure 3.3.2.
The process for passing laws in the Legislative Assembly of the Australian Capital Territory has fewer steps, as there is only one legislative chamber. Bills of the Australian Capital Territory are not given royal assent by the Governor-General, and this territory has no governor or administrator.
Figure 3.3.2 To become law, a Bill requires the approval of both Houses of Parliament and the Governor-General. In this photo from 2018, parliament was discussing national security legislation. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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The process of passing a Bill through parliament Influences on governments to make laws come from many and varied sources. These include: • community interest/lobby groups Need for new law • electoral mandate • the need to continue or enhance existing laws is identified • party policy • national/international events • proposals put forward during election campaigns.
First reading
The first “formal” reading of the Bill takes place: the Clerk of the Parliament reads out the title of the Bill. Each member receives a copy of the proposed Act.
Second reading
The minister then speaks about the proposed Act, elaborating on its general aims. Debate over the Bill takes place. This stage is completed by the clerk, who reads the title of the Bill for the second time.
Committee stage
The Bill is examined and debated in detail and changes (known as amendments) are made if necessary.
Third reading
During the third reading, a vote is taken on the Bill. If the Bill passes, it moves to the upper house.
Upper house
In the upper house, the process is repeated. If the Bill does not pass in the upper house, it may be returned to the lower house for amendments or may be rejected.
Royal assent
If the Bill is passed in the upper house, it is presented to the Governor (in the case of New South Wales legislation) or Governor-General (in the case of federal legislation) for formal approval. The Bill now becomes an Act of Parliament and is law as of the date specified in the Act.
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Cabinet approves the drafting of a Bill. The proposed Bill is drafted by parliamentary clerks and timetabled for its first reading in the lower house. The Bill is presented by the minister, ready for its first reading.
Figure 3.3.3 The passage of a Bill through parliament
Factors that influence lawmaking by parliament
Parliamentary lawmaking in Australia is rarely a static process; it is a dynamic reaction to the shifting values and the challenges of the society of the day. The main factors that influence law made by parliament are reflected through the following groups, organisations or events.
Public opinion
Public opinion refers to the collective views of the community on specific issues. Members of the public or groups within society can legitimately put pressure on the government to introduce or amend laws. This can be through petitions, protests and opinion polls, which alert the government that sections of the electorate are thinking about particular issues. An example of the power of public opinion is the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which legislated same-sex marriage. This was a result of continued lobbying and legislative changes to de-facto relationships over a period of 20 years. The government of the day preceded the legislative change with
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the Australian Marriage Law Postal Survey, which showed 61.6% support for same-sex marriage. Parliament moved quickly to legislate the change, reflecting the clear will of the public.
Advocacy groups (pressure groups)
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Advocacy groups are organisations that seek to influence government policy for a specific cause or interest they have been formed to advocate for. They usually provide expertise, lobby members of parliament, undertake research and run media campaigns. These groups write submissions to parliamentary inquiries and meet with ministers to argue for legislative reform. Equality Australia and Beyond Blue are two examples of influential advocacy groups in social and health policy. Historically, the Australian Conservation Foundation was an important body that made submissions in 2025 to the federal government, which passed a landmark package of seven Bills that were centred on the Environment Protection Reform Act 2025 (Cth). This represented the most significant overhaul of national environmental laws (the EPBC Act) in more than 25 years.
National and global events
Major events often force the government’s hand, requiring rapid legislative responses to ensure safety, economic stability or international compliance. The Bondi shooting tragedy in December 2025 was an event that affected the whole nation. Parliament was recalled earlier than usual in January 2026 to discuss and introduce “hate speech laws”, which resulted in the Combatting Antisemitism, Hate and Extremism Act 2026 (Cth). Further reforms were introduced in relation to gun control reforms, including a national gun buy-back scheme; enhanced background checks, citizenship requirements and import restrictions; and making it a federal offence to use a carriage service to access or share instructions for the 3D printing or illegal modification of firearms. Global events such as the September 11 attack on the World Trade Center in New York in 2001 prompted Australia to pass more than 50 pieces of anti-terrorism legislation.
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Technology As technology evolves, “legal gaps” appear where existing laws no longer protect citizens or regulate new behaviours. There are many examples over the years where the parliament, usually after the event, passed laws to regulate or mitigate harmful or exploitative aspects of technological changes.
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The Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth), which bans the use of identified social media platforms for people under 16 came into effect in December 2025. It was introduced as a result of the documented harm being caused to youth mental health; algorithmic social harms which make platforms addictive to use and provide the user access to harmful content; and the rise of cyberbullying. As of early 2026, the Australian government is introducing mandatory guardrails for high-risk AI, such as facial recognition and automated decision-making in hiring, to prevent bias and privacy breaches.
The media
In a liberal democracy, a free press (media) is critical as a non-legal check on government power. The media acts as a “watchdog”, bringing issues to light that parliament might otherwise ignore. Social media has further accelerated this by allowing “viral” campaigns to reach members of parliament instantly.
Independent investigative journalism (such as the program Four Corners) can spark royal commissions, which then lead to new laws. Reports on the treatment of the elderly in aged-care facilities led to the Royal Commission into Aged Care Quality and Safety, which resulted in the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth). This significantly tightened regulations for aged-care providers.
REVIEW 3.3 Online quiz
Review questions
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Review 3.3 questions 1. 2. 3. 4.
Describe the differences between court-made law and statute law. Explain how an Act of Parliament is made. Define what advocacy groups are and their role in influencing government policy. Outline the main ways that public opinion can be expressed to influence parliamentary lawmaking. Go online to assign and download questions, view results and more!
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3.4 Delegated legislation LEARNING OBJECTIVE 3.4 OUTLINE the role and types of delegated legislation. Delegated legislation is legislation made by non-parliamentary bodies. It involves
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reporting
“less important” laws that parliament does not have time to draft, consider and pass, and so delegates (passes on) the responsibility to “subordinate” bodies such as government departments or local councils. The Act that authorises a body to make delegated legislation is called an “enabling Act”. scorcher
Writing focus 3.4 Conjunctions note taking (subordinating – contrasting)
delegated legislation laws made by authorities other than parliament, which are delegated the power to do this by an Act of Parliament
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Types of delegated legislation include:
• regulations – laws made by the Governor-General, state governors or members of the Executive Council • ordinances – laws made for Australian territories (e.g. Norfolk Island and the Australian Antarctic Territory) • rules – legislation made for government departments, usually by the department involved • by-laws – laws made by local councils, which are restricted to the area governed by that council.
Table 3.4.1 Advantages and disadvantages of delegated legislation Advantages
Disadvantages
•
•
• •
The people making the legislation are usually experts in that field. Delegation of minor legislation frees up parliamentary time for serious issues. It is easier to amend delegated legislation; thus, it is more flexible.
•
•
Elected members of parliament do not have the time or expertise to fully check the delegated legislation. With many different bodies involved in making delegated legislation, there can be inconsistencies. Little publicity surrounds delegated legislation; thus, the public usually cannot voice their views.
REVIEW 3.4 Online quiz
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Review 3.4 questions
1. Using examples, explain the need for delegated legislation. 2. Describe the extent to which delegated legislation can be undemocratic. Go online to assign and download questions, view results and more!
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Common law was inherited from the British legal system at the time of Australia’s colonisation. It still forms an important part of the Australian legal system through the operation of the system of precedent, where courts interpret existing laws or make law where there is no existing solution to a legal issue. Precedent decisions bind lower courts to follow the same legal reasoning and principles established in higher courts. Statute law refers to law made by parliaments through a legislative process of a draft law (a Bill) being passed in both Houses of Parliament. This is called a bicameral system. A political party can only form a government if it has a majority of seats in the lower house and usually has to negotiate with other parties in the upper house to get laws passed. As such, the upper house acts as a house of review, and provides checks and balances of the power of the government. Delegated legislation allows the government to authorise bodies to make laws on its behalf, such as local government bodies, which make by-laws for the effective order and functioning of their local communities.
Multiple-choice questions
1. In the Australian legal system, how is “common law” primarily created? A. Via executive orders issued by the Governor-General on behalf of the Crown B. By judges through the application of the doctrine of precedent in court decisions C. Through the passing of Bills by federal and state parliaments D. Through public referendums that change the wording of the Australian Constitution
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2. What is a primary distinction between “common law” and “equity” in the Australian legal tradition? A. Equity law provides discretionary remedies based on fairness, while common law provides remedies based on precedents that have been developed over time. B. Common law is based on the Australian Constitution, whereas equity is based on British legislation. C. Common law rights are enforceable throughout the whole world, while equitable rights focus on the “conscience” of specific individuals. D. Equity is the primary source of criminal law, whereas common law governs only civil disputes.
3. Which of the following best describes the role of “statute law” within the Australian legal system? A. It consists of traditional customs that have been followed for centuries without being written down. B. It is a set of guidelines issued by the High Court to advise the government on policy. C. It is the supreme form of lawmaking that can override or codify existing common law. D. It is law made by judges to fill gaps where no parliamentary rules exist. 4. Which of the following best describes delegated legislation? A. Laws made directly by parliament to address urgent national issues B. Laws made by non-parliamentary bodies that have been given lawmaking power through an enabling Act C. Laws created by judges in higher courts through statutory interpretation D. Laws made by international organisations that Australia agrees to follow
5. Which of the following best describes how various external factors influence the lawmaking process of the government? A. Governments are strictly bound by the results of media polls and must change laws immediately if public opinion shifts. B. Advocacy groups and lobbyists are legally prohibited from contacting members of parliament during the drafting of a new Bill. C. Lawmaking is a reactive process where advocacy groups, media scrutiny and national events create pressure for reform that the government must balance against its own policy agenda. D. Technological advancements are the only factors that can override the Australian Constitution when a new law is being drafted.
Short-answer questions
1. Why did the law of equity develop?
2. What is meant by the term “stare decisis” in relation to the doctrine of precedent? 3. What are the stages a draft Bill must go through before it becomes law in Federal Parliament? 4. Provide examples of how national and global events can influence lawmaking by governments.
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Extended-response question To what extent does parliamentary law override all other forms of lawmaking? In your response refer to: Video 3.5.1 Answering an exam question
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a. how laws are made in parliament, including delegated legislation b. the role that court-made precedent plays in shaping the law c. how legislation and court-made decisions as sources of law shape and inform each other. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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CHAPTER
Legal institutions
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • • •
describe the role, jurisdiction and hierarchy of courts in New South Wales and Australia explain the purpose of New South Wales specialist courts, including the Children’s Court and the Coroners Court describe the features of the adversarial system describe the role and structure of parliament in New South Wales and Australia explain the relationship between courts and parliament.
RELEVANT LAW
IMPORTANT LEGISLATION
Federal Circuit and Family Court of Australia Act 2021 (Cth) Federal Court of Australia Act 1976 (Cth) Drug Court Act 1998 (NSW)
SIGNIFICANT CASES Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] 280 CLR 137 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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4.1 Courts in New South Wales and Australia LEARNING OBJECTIVE 4.1 DESCRIBE the role, jurisdiction and hierarchy of courts in New South Wales and Australia.
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reporting
Australia has two overlapping jurisdictions of law: state and federal. As a result, there are separate state and federal courts, each with their own respective jurisdictions that allows them to hear certain matters. A court jurisdiction is the legal power or authority of a court to hear particular types of cases. Without jurisdiction, a court’s ruling is not legally binding. The jurisdiction of each court provides a sense of order and scorcher procedural fairness for parties to a matter.
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Writing focus 4.1 Question words note taking
court jurisdiction the ability of a court to hear certain matters determined by its location (state), by the type of matter (criminal and civil), its seriousness or complexity (higher courts), or the abilitydownload of a court to pdf hear a matter on appeal from lower courts appeal an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law
court hierarchy the structured arrangement of courts based on their authority and the types of cases they are permitted to hear (their “jurisdiction”)
All courts have the power to hear a case for the first time. Some courts can also hear appeals from lower courts. This means they can reconsider the decision of a lower court, where the losing party believes there has been an error in the lower court’s legal reasoning.
Court hierarchy
A court hierarchy exists in New South Wales and all other states to ensure the court process is consistent, fair and efficient. A court hierarchy achieves this through enabling:
• consistency, in that precedent decisions in higher courts must be followed by lower courts • fairness, by providing a pathway for parties to appeal decisions made in court if there was an error or mistake made in the application or interpretation of the law • specialisation, as courts can only hear matters within their jurisdiction, which allows expertise to be developed in those areas • efficiency, with lower courts dealing with 90% of all matters and handling larger volumes of minor and everyday matters.
Figure 4.1.1 shows the structure of state courts in New South Wales and federal courts in Australia. The arrows show the specific courts that can hear appeals from each of the lower courts. (Figure 4.1.1 does not show specialist courts which are discussed later.) High Court of Australia
Federal superior courts Federal Court of Australia
State and territory superior courts Land and Environmental Court of NSW Supreme Court of NSW Court of Appeal and Court of Criminal Appeal
Inferior and intermediate courts Federal Circuit and Family Court of Australia
State intermediate courts District Court of NSW State lower courts Local Court of NSW Coroners Court of NSW Children’s Court of NSW
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State and territory courts The state court system in New South Wales operates under the following hierarchy: 1. lower courts 2. intermediate courts 3. superior courts.
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The Australian Capital Territory does not have the intermediate level but is otherwise similar. Each court has its own jurisdiction or area over which it has authority. Minor matters are dealt with in lower courts in the court hierarchy, and the higher courts are reserved for more serious matters and appeals from the lower courts. In criminal cases, minor offences such as loitering and obstructing traffic are called summary offences – these are dealt with in the lower courts. More serious criminal offences, such as assault and murder, are called indictable offences – these are dealt with in the higher courts.
Lower courts
Local Court in NSW and Magistrates Court in the ACT
In New South Wales, the Local Court deals with minor criminal matters and minor civil disputes. In this court, a judge will hear and decide the case and will set the punishment for criminal offences. In the Australian Capital Territory, the court performing these functions is the Magistrates Court.
Most criminal matters are heard in the Local Court or Magistrates Court, as only serious crimes are referred to the District Court or Supreme Court. A committal hearing (or committal proceeding) is conducted as a preliminary stage in the legal process for serious criminal charges, known as indictable offences (such as murder, sexual assault or serious fraud). The hearing provides an opportunity for an accused to put in an early plea and requires a mandatory case conference between all parties regarding specifics of the case, which are contained in the case conference certificate.
The Local Court of New South Wales has jurisdiction to deal with the following areas:
• minor criminal and summary offences • civil matters with a monetary value of up to $100,000 (this can be extended to $120,000 if both parties agree) • committal hearings • a limited range of family law matters (e.g. property settlements and residence orders for children); for these matters, the Local Court has federal jurisdiction and is essentially part of the Federal Court hierarchy.
summary offence a criminal offence that can be dealt with by a single judge without a jury and does not require a preliminary hearing indictable offence a serious criminal offence that requires an indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to greater penalties than summary offences committal hearing an inquiry held in the Local Court or Magistrates Court to ensure the brief of evidence is completed and charge certificates are in order for more serious criminal charges larceny when one or more people intentionally take another person’s property without consent and without intention of returning it
Intermediate courts
District Court of New South Wales
The District Court of New South Wales deals with more serious criminal matters. These range from charges of larceny up to charges such as manslaughter, sexual assault and large-scale drug importation. The only charges the District Court cannot deal with are murder, treason and piracy; these need to be dealt with by the Supreme Court.
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A judge, and sometimes a jury, will hear cases tried in a District Court. The District Court deals with criminal offences such as: • • • •
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manslaughter, malicious wounding and dangerous driving assaults sexual assaults offences relating to property, including robbery, breaking and entering, larceny and embezzlement • importing, supplying or possessing prohibited drugs • offences involving fraud, including forgery, obtaining money by deception and passing valueless cheques.
appellate jurisdiction the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions corporations law legislation that regulates corporations and the securities and futures industry in Australia; it is administered by the Australian Securities and Investments Commission
The District Court’s jurisdiction is unlimited in cases of claims for damages for personal injuries arising out of a motor vehicle accident. It also handles civil cases where the amount claimed is below $1,250,000, or larger amounts if both parties agree. It also has appellate jurisdiction.
Superior courts
Land and Environment Court
The Land and Environment Court is a specialist court responsible for interpreting and enforcing environmental law in New South Wales. It has a wide jurisdiction and deals with matters related to environmental planning (e.g. zoning of park lands), environmental offences (e.g. illegal polluting or dumping) and appeals against local council rulings.
Supreme Court of New South Wales
The Supreme Court is the highest court in the state or territory hierarchy. It deals with the most serious criminal matters, civil cases involving large sums of money and most cases where an equitable remedy is sought. It also deals with appeals from the lower courts in that state or territory. The Supreme Court of New South Wales has criminal jurisdiction over the most serious indictable offences, such as manslaughter and murder, attempted murder, kidnapping, major conspiracy and drug-related charges. It also deals with Commonwealth prosecutions for major breaches of the corporations law.
In civil matters, there is no upper limit to monetary damages that can be awarded in the Supreme Court. This court hears matters on claims for damages for personal injury, professional negligence, breach of contract, defamation and possession of land. A judge alone deals with most civil matters, but a jury is used in some limited circumstances.
The Supreme Court also hears appeals. The Court of Appeal is the highest court in each state and territory for both civil and criminal matters. In New South Wales, there is also a Court of Criminal Appeal, which is constituted separately from the Court of Appeal. It also makes decisions about procedural fairness in lower courts. Appeals are usually heard by three judges, but in some cases there are only two, and in special cases, more than three. If the judges cannot agree, a majority view is taken. It is possible to appeal from the Court of Appeal or Court of Criminal Appeal to the High Court, but only with special permission from the High Court.
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Federal courts The federal court system has a hierarchy similar to the state court system.
Federal Circuit and Family Court of Australia
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In 1975, the Australian Parliament established the Family Court of Australia to rule on cases related to specialised areas in family law such as divorce, parenting orders, the division of property and spousal maintenance. In its appellate jurisdiction, it could hear appeals from a decision of a federal magistrate or a Family Court judge. The Federal Magistrates Court was established by Parliament towards the end of 1999 and conducted its first sittings in July 2000. The aim was to relieve some of the caseload of the Federal and Family Courts, and reduce the cost and time required to deal with minor federal matters. In November 2012, the Federal Parliament passed legislation changing the name of the Federal Magistrates Court to the Federal Circuit Court of Australia. The title of “federal magistrate” was changed to “judge”.
The Federal Circuit Court had jurisdiction over areas such as family law and child support, human rights, copyright, bankruptcy, migration, consumer protection and trade practices, privacy, administrative law and industrial law. It did not deal with criminal matters. It played a strong role in settling disputes in regard to trade practices, human rights, copyright, industrial law and privacy. It also dealt with migration, bankruptcy applications and issues for Fair Work Australia, such as where workers had been underpaid. On 1 September 2021, a new Federal Circuit and Family Court of Australia was created by the Federal Circuit and Family Court of Australia Act 2021 (Cth). This merged the Federal Circuit Court with the Family Court, in order to address non-compliance with court orders, provide a single point of entry to the family law system and streamline the appeals pathway for family law matters.
Federal Court of Australia
The Federal Court of Australia was established by the Federal Court of Australia Act 1976 (Cth). It assumed some of the jurisdiction previously managed by the High Court of Australia and the entire jurisdiction of two courts that had dealt with industrial matters and bankruptcy. It deals with civil disputes governed by federal law (except for family law matters), as well as some summary criminal offences. The Federal Court’s position in the federal court hierarchy is equivalent to that of the Supreme Courts in the states and territories. In terms of the federal court hierarchy, it is above the Federal Circuit and Family Court of Australia. The Federal Court also hears appeals from the Administrative Review Tribunal on a range of matters, including migration, taxation and unlawful discrimination decisions.
Figure 4.1.2 In Sydney, the Federal Court is located in the Law Courts Building in Queens Square, along with the Supreme Court of New South Wales.
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High Court of Australia The High Court of Australia was established in 1901 under section 71 of the Australian Constitution. It is the highest court in the Australian judicial system and deals with appeals from the Federal Court of Australia, the Federal Circuit and Family Court of Australia, and the state and territory Supreme Courts. It also deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws.
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In 2017, the High Court had to make a decision about the validity of the Australian Marriage Law Postal Survey on same-sex marriage when two challenges were raised about the validity of using the Australian Bureau of Statistics and the Australian Electoral Commission to conduct this survey. The High Court ruled in favour of the government and the survey went ahead (Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] 263 CLR 487).
Figure 4.1.3 Members of Federal Parliament celebrate at Parliament House after passing the Bill to legalise same-sex marriage on 7 December 2017 in Canberra, Australia.
In November 2023, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] 280 CLR 137, the High Court ruled that the stateless refugee known as “NZYQ” was to be immediately released from immigration detention. NZYQ had previously had his protection visa refused due to a criminal conviction. The implication of this case overturned 20 years of settled cases in regard to “stateless people” (people who do not have nationality of any country). Legally speaking, such individuals are not recognised as “belonging” to any country in the world. The High Court’s decision is a crucial first step in protecting stateless people from being deprived of their liberty indefinitely.
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1. Define court jurisdiction. 2. Explain what “court hierarchy” means. 3. Identify the four key purposes that a court hierarchy achieves in New South Wales. 4. Identify the highest court in Australia. 5. Outline the main matters heard by the Local Court. 6. Describe the types of cases that are dealt with in the District Court of New South Wales. Identify who decides these cases. 7. Describe the role of the Supreme Court of New South Wales. 8. Compare the District Court and the Supreme Court criminal jurisdictions. 9. Explain why the Federal Circuit and Family Court of Australia was created in 2021. 10. Explain the importance of the High Court of Australia. Go online to assign and download questions, view results and more!
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4.2 New South Wales specialist courts LEARNING OBJECTIVE 4.2 download pdf
U N SA C O M R PL R E EC PA T E G D ES
EXPLAIN the purpose of New South Wales specialist courts, including the download word Children’s Court and the quiz Coroners Court. questions
In New South Wales, specialist courts exist to hear matters that predominantly address complex subject matter (expertise) or underlying social issues that traditional legal processes often struggle to adequately address. Traditional generalist courts are often too slow, expensive or technically limited to hear these types of matters as effectively as specialist courts. Examples of specialist courts in New South Wales are the Children’s Court, the Coroners Court and the Drug Court. At the federal level, the Federal Circuit and Family Court of Australia is an example of a specialist court.
Children’s Court
The Children’s Court of New South Wales deals with civil matters concerning the protection and care of children and young people. It also deals with criminal cases involving persons under the age of 18 at the time of the offence or under the age of video widget under the age of reporting 21 when charged with a crime they committed while 18.
The Children’s Court was established because the legal system and the community recognised that children and young people have different levels of cognitive maturity, vulnerability and capacity for positive change compared to adults. Hence, the court has a focus on rehabilitation and protection. Children’s Courts are closed to the public and are less formal than other courts. This protects children’s privacy and reduces the possibility of them being stigmatised for committing crimes while their brains are still developing.
Coroners Court
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The purpose of the Coroners Court of New South Wales is to ensure that unexplained or suspicious deaths (or suspected deaths), fires and explosions are properly investigated. These courts may also make recommendations to government for changes to the law, professional training requirements, and procedures and protocols around safety. This was the case for the introduction of 40-kilometre speed limit signs on school buses after the death of a primary-school aged child who was getting off a bus. If a coronial inquest finds evidence of criminal action(s), the case is handed to a higher court for trial. Notable coronial inquests in New South Wales include the 1977 Granville Rail Disaster, the 1991 Strathfield Massacre and the 1995 death of Anna Wood.
Unlike other courts, the Coroners Court is not there to “punish” a defendant. It follows a fact-finding procedure that is focused on determining the cause of death and, where relevant, recommends changes to prevent future deaths. The Coroners Court can also declare that missing persons in the eyes of the law are dead. This can assist relatives when dealing with such things as wills, estates and life insurance.
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coronial inquest an investigation into a death that has occurred in unusual circumstances, held in the Coroners Court and overseen by a judge called the coroner
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Figure 4.2.1 The Registrar General’s Office during the NSW Special Commission of Inquiry into the Drug “Ice” on 7 May 2019 in Sydney, Australia.
Drug Court
recidivism continuing to commit crimes after receiving punishment
The Drug Court was established under the Drug Court Act 1998 (NSW) and is a specialist court that sits in the same level of hierarchy as the Children’s Court, although it can exercise dual jurisdiction because a case can be referred to it by the Local Court and District Court. Its main purpose is to manage an offender’s rehabilitation to prevent future crimes, also known as recidivism. It does this by working with the offender to reduce drug dependency and promoting community re-integration. This type of activity is outside the scope of generalist courts.
MEDIA 4.2.1
Inside the growing push for more drug courts in regional NSW Kelly Fuller, ABC News, 17 April 2025
New South Wales public defender Talitha Hennessy has spent her career working with people caught in the justice system – many shaped by childhoods scarred by trauma, addiction, and abandonment.
At a roundtable in Wollongong on Wednesday night, where the ABC and other local media were invited to observe, Ms Hennessy joined senior members of the judiciary, government, local councils and unions to discuss what it would take to establish a drug court in the Illawarra and Shoalhaven. Speaking after the event, Ms Hennessy said it was not uncommon for clients facing serious charges to have grown up in homes where drug use was normalised and in some cases, where children were exposed to drugs by their own parents. Wollongong, the Far North Coast and Central Coast were named in the 2024 NSW Drug Summit report as priorities for a specialist drug court.
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Justice by postcode Lawyer Matt Ward, a partner at a Wollongong firm, has been leading the push for a regional drug court and hosted this week’s roundtable. He said the case for expansion was compelling, particularly given that while overall drug use was declining across NSW, the Illawarra had seen amphetamine-related crime rise by 60% annually over the past two years.
U N SA C O M R PL R E EC PA T E G D ES
Drug courts, currently operating in Sydney, Parramatta, Toronto (Lake Macquarie), Dubbo and the Hunter, provide a tightly supervised rehabilitation pathway for people whose offending is driven by drug addiction. Participation is only available to adults who plead guilty and meet strict eligibility criteria – those convicted of serious drug supply, sexual, or violent offences are excluded.
Offenders must also live in or have been arrested in one of the court’s designated postcodes. Mr Ward said offenders who complete the program were 17% less likely to reoffend than those in the regular system.
They are also 65% less likely to commit a violent offence, 58% less likely to commit another drug offence and 35% less likely to commit a property crime. Around 40% of participants complete the full program.
There are currently around 13,500 people in prison in NSW.
The cost of incarcerating one person for a year is more than $153,000.
“The reality is that jail is highly expensive – and it doesn’t work in terms of reducing reoffending,” Mr Ward said.
Wollongong MP and Labor minister Paul Scully also attended the roundtable and said he was heartened the area was recognised in the Drug Summit report. The group agreed to progress the campaign and contact the Illawarra Shoalhaven Local Health District about supporting the program’s rehabilitation needs.
The NSW government has committed to responding to the Drug Summit report within six months.
ANALYSIS 4.2.1
Read Media 4.2.1 and answer the following questions.
1. Who is more likely to appear before the Drug Court? 2. Why have there been calls for the introduction of a drug court in the Wollongong/Illawarra area?
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NSW Civil and Administrative Tribunal While specialist courts can address issues that generalist courts may not be suitable for, they still offer a formal process that may be expensive, take a long time and involve complex procedures. An alternative to the court system is a tribunal: a specialised body that is usually more informal and designed to resolve specific types of disputes more quickly and cheaply.
U N SA C O M R PL R E EC PA T E G D ES
The NSW Civil and Administrative Tribunal (NCAT) is the primary “one-stop-shop” for tribunal services in New South Wales. Established in 2014, it consolidated 22 separate tribunals into a single, accessible body designed to resolve disputes and review government decisions efficiently and cost effectively. The NCAT website contains a section about the different case types that can be heard, which demonstrates the breadth of its jurisdiction.
Figure 4.2.2 NSW Civil and Administrative Tribunal (NCAT), located in John Maddison Tower, Sydney, NSW
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Explain why specialist courts exist. Outline the types of civil and criminal cases heard by the Children’s Court of New South Wales. Explain the purpose of the Coroners Court of New South Wales. Identify the main purpose of the Drug Court of New South Wales. Explain why a specialist court is appropriate for drug offences.
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4.3 Features of the adversarial system LEARNING OBJECTIVE 4.3 DESCRIBE the features of the adversarial system.
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U N SA C O M R PL R E EC PA T E G D ES
quizheavily influenced questions word The English system of law has Australian law anddownload practice, including the way court cases are conducted. Australia inherited the adversarial system as part of both criminal and civil court proceedings. The word “adversary” means “opponent”. In a trial, the two sides involved in the case try to prove their version of the facts and disprove the other side’s version. In theory, the defendant in a criminal trial does not have to prove anything, as they are assumed innocent until proven guilty. However, the opposing sides to a trial, either civil or criminal, will have the opportunity to present arguments, and both parties have the right to challenge the arguments each side is presenting. Most people involved in a trial will usually retain the services of a legal team to present and argue their case.
An impartial judge (and sometimes a jury) will listen to the evidence presented by both parties and make a decision in favour of one party. In some limited cases, the defendant and their legal team can decide if they want to be heard by only a judge or a judge and jury. videoselection of thewidget reporting Juries are made up of a random public, and there is a good chance that one day you, or someone you know, will be called for jury duty. In New South Wales, the jury-selection process begins with the jury roll, which is randomly compiled by the New South Wales Electoral Commission from the list of registered voters. Potential jurors are issued a summons to attend court, where they undergo a -voir dire or screening process to ensure they are eligible and do not have a conflict of interest or a valid reason for exemption from jury duty.
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adversarial system a system of resolving legal conflicts – used in common law countries such as the United Kingdom and Australia – that relies on the skill of representatives for each side (e.g. defence and prosecution lawyers) who present their cases to an impartial decision-maker
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Figure 4.3.1 Juries are made up of a random selection of the public, and there is a good chance that one day you, or someone you know, will be called for jury duty. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Under the Jury Act 1977 (NSW), not everyone on the electoral roll can serve. The law divides these people into those who are excluded and those who can be excused. Those who are excluded include legal professionals and criminals. Those who can be excused are people who have a valid reason for not serving, such as being a medical professional, running their own business or living more than 65 kilometres from the court. The adversarial system of trial can be further understood through comparing it to the inquisitorial system of trial. In an inquisitorial system, the court is actively involved in determining the way in which the competing claims are presented. It is different from the adversarial system, where the court is required to act impartially, like a referee.
U N SA C O M R PL R E EC PA T E G D ES
inquisitorial system a legal system where the court or a part of the court (e.g. the judge) is actively involved in conducting the trial and determining what questions to ask; used in some countries that have civil legal systems rather than common law systems
The inquisitorial system derives from the Roman and Napoleonic codes. It is found in Europe, as well as in Japan and some other countries. In this system, called the civil law system, a judge (or group of judges) has the task of investigating the case before them.
Indonesia uses an inquisitorial system for criminal trials. This means that the judges will conduct an inquiry into the truth of what occurred (i.e. the facts behind the legal issues in dispute). The judges are able to admit evidence that might not be admitted in an Australian court. Judges are empowered to decide which witnesses will be called and can call for outside testimony that had not been requested by either side. Adversarial
Inquisitorial
Lawyer
Lawyer
Investigation
Lawyer
Judge
Decision
Judge
Judge
Defence
Trial
Figure 4.3.2 Comparison of the role of lawyers and judges in the adversarial and inquisitorial systems
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Describe the adversarial system. Describe the role of the judge and jury in the adversarial system. Outline the main features of the inquisitorial system used in countries such as Indonesia. Contrast the role of judges in adversarial and inquisitorial systems.
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4.4 Parliament in New South Wales and Australia LEARNING OBJECTIVE 4.4 quiz
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DESCRIBE the role and structure of parliament in New South Wales and Australia.
A parliament is a body of elected representatives. It debates proposed legislation, passes or rejects it, and amends legislation. Apart from Queensland and the territories, all state parliaments and the Federal Parliament are bicameral. This means that they have two houses, an upper house and a lower house. In Federal Parliament, the lower house is known as the House of Representatives and the upper house is the Senate. In New South Wales, the lower house is known as the Legislative Assembly and the upper house is called the Legislative Council.
The political party that wins the majority of seats in the lower house forms the government. Sometimes different parties will unite to form a government (such as the Liberal–National Coalition). The leader of the winning party in Federal Parliament becomes the Prime Minister; hence, the leader of the government. In New South Wales, the leader becomes the Premier. The political party or parties who have the video widget reporting remaining seats in the lower house form the opposition.
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Ministers are those members of the government who have a special responsibility for particular departments (e.g. Minister for Education or Minister for the Environment). The Prime Minister/Premier offers positions (or portfolios) to some members of parliament, and these ministers usually form the Cabinet, or the “front bench”, as they sit at the front in parliament sittings. Cabinet makes decisions on policy and laws to be drafted for consideration by parliament. questionsas the “back bench”. download word Non-ministerial members ofquiz parliament are known When changes are made to the front-bench positions, this is known as “reshuffling the Cabinet”.
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The opposition party appoints shadow ministers, who are responsible for forming and promoting the opposition’s position on such areas as defence, health and education.
The Executive Council is made up of the Governor (NSW Parliament) or Governor– General (Federal Parliament) and selected ministers. It is the body that enables legislation to be put into operation. The British monarchy still plays a role in parliament in Australia – the British monarch must assent to laws. At the federal level, the monarch is represented by the Governor–General and at the state level by a governor.
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Table 4.4.1 The parliaments of New South Wales and Australia – the number of government members of parliament in each house is determined at the conclusion of each election. Australian (federal) Parliament
New South Wales (state) Parliament
Structure
Bicameral (two houses)
Bicameral (two houses)
Lower house
House of Representatives (150 members)
Legislative Assembly (93 members)
Upper house
Senate (76 members)
Legislative Council (42 members)
Head of State representative
Governor–General
Governor of NSW
Leader
Prime Minister
Premier
Focus
National and international issues
Service delivery and state infrastructure
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Feature
Federal Parliament
In Federal Parliament, the upper house is the Senate and the lower house is the House of Representatives.
House of Representatives
The House of Representatives is the “lower house” where the government is formed. It currently has 150 members (this number changes slightly based on population shifts). Each member represents an electorate (geographic districts) and these are drawn with approximately the same number of voters (about 100,000–120,000 people). Members are elected through a preferential voting system where voters rank candidates in order of preference (1, 2, 3, etc.). To win, a candidate must get more than 50% of the vote. If no one gets 50% on the first count, the candidate with the fewest votes is eliminated, and their votes are redistributed to the voters’ second choices. This continues until someone has a majority.
Each member serves a term up to three years, as the Prime Minister can call an election earlier, but three years is the maximum term any government can serve. The party (coalition of parties) that has majority of seats in the house forms government. To be Prime Minister, you have to be a member of the House of Representatives. Most laws begin in this house and this where the “money bills” are introduced.
Senate
The Senate is the “upper house”, which is designed as a “house of review” to doublecheck the laws passed by the lower house. It represents the interests of the states rather than local districts. There are 76 senators in total. Each of the six states has 12 senators, regardless of population. The two territories (ACT and NT) have two senators each.
Each senator serves a six-year term. However, elections are “staggered” so that half of the senators are elected every three years. Territory senators are the exception as they can serve only three years. This means that 40 senators are up for re-election every federal election.
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Laws can start in the Senate but predominantly do not. Legislation such as “money bills” required for the government to govern, cannot be initiated in the Senate.
U N SA C O M R PL R E EC PA T E G D ES
The Senate is elected through a method called “proportional representation”, which is different from the House of Representatives. This is a complex system designed so that the percentage of seats a party gets in the Senate closely matches the percentage of the total vote they received. Instead of voting for one person to represent a small district, everyone in the state votes for a group of senators to represent the whole state. Candidates must reach a certain “quota” of votes to be elected. This makes it much easier for smaller parties (such as the Greens or One Nation) to win seats in the Senate than in the House. As a result, it is not uncommon for minor parties to hold the “balance of power”. This means that their vote is required for the government to pass legislation through the Senate. This ensures greater scrutiny of legislation and allows minor parties to negotiate for policies they are advocating. For information about the Federal Parliament, go to the Parliament of Australia’s website.
Figure 4.4.1 Voters at Bondi Surf Bathers’ Life Saving Club during the 2025 federal election
Parliament of New South Wales
The parliament of New South Wales is Australia’s first and oldest parliament. It also operates under the Westminster system, meaning it is a representative democracy. It follows the same conventions as the Federal Parliament in the formation government and the operation of the opposition.
Legislative Assembly
This is the lower house where the government is formed. The leader of the party with the majority of seats becomes the Premier. Most legislation begins here, and it is the only house that can introduce “money bills” (legislation regarding taxes or government spending). There are 93 seats (electorates) that represent approximately 86,000 to 90,000 people. Members serve fixed four-year terms and are elected using a preferential system of voting similar to the House of Representatives in the Federal Parliament.
Westminster system a democratic parliamentary system of government modelled on that of the United Kingdom, which is characterised by the notion of responsible government where the executive (Prime Minister and Cabinet) is directly accountable to parliament and the executive, legislative and judicial powers are separated
Legislative Council
This is the upper house and is also called the house of review because its primary job is to scrutinise legislation passed by the Legislative Assembly. It has 42 members who serve eight-year terms, with 21 members being up for election every four years. It uses a “proportional representation” voting system, the same as the Senate in the Federal Parliament. It often includes minor parties and independents, ensuring that the government of the day does not have absolute control over the lawmaking process.
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Table 4.4.2 Legislative Assembly and Legislative Council Legislative Assembly
Legislative Council
Common name
“The bearpit”
“House of review”
Number of members
93 members (MLAs)
42 members (MLCs)
Representation
One member per local electorate
Represents the entire state
Term length
Four years (fixed term)
Eight years (staggered; half elected every four years)
Primary colour
Green (tradition from UK House of Commons)
Red (tradition from UK House of Lords)
Key official
The Speaker
The President
Symbol of authority
The Mace
The Black Rod
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Feature
ANALYSIS 4.4.1
Visit the following websites and comment on the ability of the federal and NSW governments to pass legislation through both houses of their respective parliaments. Parliament Education Office: House of Representatives current numbers https://cambridge.edu.au/redirect/12066
Parliament of New South Wales: party representation https://cambridge.edu.au/redirect/12067
Figure 4.4.2 President of the New South Wales Legislative Council Ben Franklin, New Zealand’s Prime Minister Christopher Luxon, New South Wales’s Premier Chris Minns, and Speaker of the New South Wales Legislative Assembly Greg Piper pose for a photo prior to the annual Australia–New Zealand Leaders’ Meeting in Sydney on 15 August 2024.
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Define bicameral. Identify which Australian parliaments have a bicameral structure. Outline the composition and electoral system of the Australian Senate. Describe the role of the House of Representatives in forming government. Compare the voting systems used for the House of Representatives and the Senate. Explain why the Senate is referred to as a house of review.
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4.5 Relationship between courts and parliament LEARNING OBJECTIVE video 4.5
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EXPLAIN the relationship between courts and parliament.
separation of powers a political doctrine that divides government into three distinct branches – the legislative, executive and judiciary – to prevent download pdf the concentration of absolute power in any one body
U N SA C O M R PL R E EC PA T E G D ES
In the Australian Westminster system, the relationship between the parliament and the courts is defined by the separation of powers (which is discussed in detail in Chapter 5) and the principle of responsible government. While they are independent branches, they exist in a “dialogue” where each influences and checks the other. In this way, there is no unchecked power in a mature functioning democracy. quiz questions download word
Parliaments have influence over the courts through:
• enacting legislation that can override common law (judge-made law) and nullify a decisions made in court • appointing judges and controlling the resources that the courts have available to fulfil their function; the executive of the parliament has this capacity removing judges from office for misbehaviour or incapacity. Courts serve as the ultimate check on the exercise of government power through:
• statutory interpretation, which can narrow or broaden the impact of a piece of legislation through the interpretations judges give of the intent or wording of the law • the High Court of Australia, which can rule a law unconstitutional, effectively striking the law down • the creation of law by judges through precedent in areas where parliament may video where the lawwidget reporting not have legislated or in areas is unclear.
responsible government a core principle of the Westminster system where the executive (the Prime Minister and Cabinet) is directly accountable to the elected legislature rather than a monarch or president
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1. Outline three ways parliament can influence the courts in Australia. 2. Describe the role of the judiciary as a check on government power. 3. Explain why judicial independence is essential for a functioning democracy in Australia.
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There two overlapping jurisdictions for courts in New South Wales. These are state and federal courts with jurisdiction to hear cases in the first instance or on appeal. A court hierarchy exists in New South Wales to enable consistency, specialisation and fairness. The High Court is the final court of appeal in Australia (its appellate jurisdiction), but it also has original jurisdiction for some matters, notably constitutional law. Specialist courts exist to hear complex matters that are specific to certain aspects of society. The adversarial system of trial has an impartial judge (and sometimes a jury) where both sides have an opportunity to present their cases and test the evidence of the opposing side. Courts provide a check on the exercise of power by governments. Parliaments in Australia (except Queensland and the territories) are bicameral, which means they have two houses, an upper house and a lower house. Most laws begin in the lower house, with the upper house predominantly being a house of review to scrutinise proposed legislation.
Multiple-choice questions
1. Which of the following groups are not allowed to serve on a jury? A. Medical professionals B. Legal professionals C. People who run their own business D. People who live more than 65 km from the court
2. A court hierarchy ensures consistency in that precedent decisions in higher courts must be followed by lower courts. Based on this, which of the following best describes the impact on a judge in a lower court? A. They must apply the legal reasoning established by a higher court when dealing with similar facts. B. They are free to interpret the law independently to ensure the process remains efficient. C. They must consult with higher court judges before making any decision on minor matters. D. They only need to follow higher court decisions if the case involves more than 90% of all matters.
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3. The NSW Coroners Court operates under a specific jurisdiction compared to the other NSW state courts. Which of the following best describes the primary role of the coroner when conducting an inquest? A. To interpret constitutional law and ensure it is consistent across all New South Wales local courts B. To award financial compensation and damages to the families of deceased persons C. To establish the identity of the deceased and the date, place and medical cause of a reportable death D. To determine the criminal guilt or innocence of a person suspected of causing a death
4. Which of the following best describes the primary function and structure of the bicameral system of parliament in Australia? A. It consists of a single legislative chamber, such as the Legislative Assembly, to ensure that laws are passed quickly without unnecessary bureaucratic delays. B. It is a system where the Governor-General holds the power to veto any law passed by the House of Representatives, acting as the second “chamber” of parliament. C. It features two separate houses – an Upper House (Senate/Legislative Council) and a Lower House (House of Representatives/Legislative Assembly) – designed to provide a system of “checks and balances” on legislation. D. It requires that all laws be passed by a national referendum before they can be enacted, ensuring that the “will of the people” is directly represented in every Bill.
5. Parliaments influence courts by enacting legislation which can override common law (judge-made law) and can nullify the decisions made in a higher court. What does this ability primarily demonstrate about the Australian legal system? A. That common law is considered more powerful than legislation enacted by parliament B. The principle of parliamentary sovereignty, where elected legislatures have the power to change laws established by judges C. A system where higher courts must seek permission from parliament before delivering a ruling D. The courts’ inability to ever make significant legal changes without parliament’s prior approval
Short-answer questions
1. Outline the role of specialist courts in New South Wales and provide an example to support your answer.
2. Why does Australia use an adversarial system of trial and what are some key features? 3. What are the benefits of having a bicameral system of parliament in New South Wales and Australia?
Extended-response question
The ability of governments to pass laws promised at an election is dependent on the results of the voting in both houses. Discuss with reference to the Federal Parliament or New South Wales Parliament. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 4.6.1 Answering an exam question
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The constitutional framework
U N SA C O M R PL R E EC PA T E G D ES
CHAPTER
Enhance your learning with these integrated online resources: Digital workbook
• • •
Suggested responses Download or answer questions online Writing focus worksheets
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Chapter tests and custom exam creation Writing focus workbook Planning documents
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to:
• • • • • •
describe the processes that led to the Federation of Australia outline the key features of the Australian Constitution describe the division of powers between federal, state and territory governments describe reasons for the separation of powers describe the role of the High Court of Australia in interpreting the Australian Constitution to reflect contemporary values outline the processes of amending the Australian Constitution and explain why it is difficult for referendum proposals to be successful.
RELEVANT LAW
IMPORTANT LEGISLATION
Commonwealth of Australia Constitution Act 1900 (UK) Migration Act 1958 (Cth) World Heritage Properties Conservation Act 1983 (Cth) Australia Act 1986 (Cth)
SIGNIFICANT CASES
Murphyores Inc Pty Ltd v Commonwealth [1976] 136 CLR 1 (Fraser Island case) Commonwealth v Tasmania [1983] 158 CLR 1 (Tasmanian Dam case) Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] 263 CLR 284 (Citizenship Seven case) Love v Commonwealth of Australia [2020] 270 CLR 152 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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5.1 The creation and function of the Australian Constitution LEARNING OBJECTIVE 5.1 DESCRIBE the processes that led to the Federation of Australia.
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OUTLINE the key features of the Australian Constitution.
Video 5.1.1 Introducing the Australian Constitution (02:25)
A constitution is a set of rules or principles that may apply to a social club, a large-scale organisation or even a nation. A constitution provides the framework, or guidelines, outlining how these institutions function. On 1 January 1901, Australia gained a Commonwealth Constitution, which outlined the legal framework and rules that apply to the governance of Australia. Across the world a nation’s constitution is considered to be the overarching document that all other laws and rules must adhere to; otherwise, they are deemed to be unconstitutional and not applicable. Prior to the Australian Constitution coming into force, Australia consisted of six colonies, which were independent of each other. Each colony had the right to govern within their own borders; for example, they had different tariff levels and even used different rail gauges, which down the track had major ramifications for train transport along the east coast of Australia. Throughout the 1800s, many groups and individuals began to promote the concept that the six colonies should amalgamate into one nation under one centralised government. An emotional and sometimes bitter debate raged for the two decades in the lead up to Federation in 1901.
The colonies with less economic power – South Australia, Tasmania, Queensland and Western Australia – Figure 5.1.1 The Federation Pavilion in Centennial Park, Sydney, perceived they would be “consumed” by New South Wales during the swearing-in ceremony of Australia’s first government and Victoria and this had a significant influence in shaping the final constitution document. In any democratic process, politicians have Federation the process of uniting several states to persuade the public to vote for their proposals, and sometimes they have to make to form a single national trade-offs to gain voter approval. This was essential to get the necessary votes in each of government the Federation referendums. referendum the referral of a particular issue to the electorate for a vote
After a series of referendums in 1898, 1899 and 1900, the colonies eventually found a compromise on a proposed constitution that clearly highlighted the “trade-offs”. This persuaded the less powerful colonies to vote for Federation. To take effect, approval from the British Parliament was required. The Commonwealth of Australia Constitution Act 1900 (UK) was passed, and Australia came into existence as a federated nation on 1 January 1901.
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video Table 5.1.1 Arguments for and against Federation in 1901 widget
Arguments for Federation
Arguments against Federation
•
•
•
Trade – tariffs could be used to protect industries in certain colonies from competition in other colonies • Fear – smaller states believed that the more populous and “richer” states would override their interests • Apathy – many people felt that Federation was irrelevant to their daily lives; this was questions download word compounded by the severe economic depression of the 1890s • Expense – a Federation would be expensive to achieve, and a national government would be expensive to run • Cheap labour – Queensland was determined to protect its sugar industry by allowing Pacific Islander “kanakas” to work on the sugar plantations
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•
•
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rail gauge the distance between the inner sides of the two rails of a train track White Australia Policy the government policy of allowing only Europeans download pdf and English-speaking people to immigrate to Australia; so-called “undesirables” were kept out by use of the infamous dictation test
U N SA C O M R PL R E EC PA T E G D ES
•
Economics – the removal of trade barriers between the colonies would promote a more efficient economy Transport – a national rail network would overcome problems caused by the colonies having different rail gauges Defence – as the colonies were far from Britain and from Britain’s ability to assist in the event of quiz an attack, a unified military force would reduce vulnerability Nationalism – there was a desire to foster a unique Australian identity and culture distinct from the “mother country” of England (in 1900, 96% of Australians were of British origin) Racial “purity” – implementing national policies restricting immigration would “keep Australia white” (the White Australia Policy)
reporting
tariff a tax that must be paid on imports or exports
The following are the key features of this British Act:
• Australia became a federated nation consisting of six states (Western Australia joined shortly after the other states). The Northern Territory gained selfgovernment in 1978 and the Australian Capital Territory in 1988. • There would be a bicameral federal parliament (House of Representatives and Senate). video widget reporting • A High Court of Australia would be established to oversee any other courts and provide “final and conclusive” judgments upon any appeals it hears (s 73). • It outlined both the division of power (s 51) and the separation of powers as they would apply in Australia. • It enabled the Constitution to be altered by a referendum (s 128).
The Constitution itself is section 9 of the Commonwealth of Australia Constitution Act 1900 (UK). Although the Constitution came into force through an Act of the British Parliament, the Act brought the Commonwealth of Australia into existence as a nation, quiz only by a referendum questions of Australian download and the Constitution can be changed voters. word
Writing focus 5.1 Question words note taking
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The “founding fathers” were also very wary of foreign interference in the functioning of the new parliament of Australia and inserted sections that have had a lasting, and surprising, impact. Neither Britain, the United States, Canada nor New Zealand exclude dual citizens from becoming a member of parliament, but section 44 of the Australian Constitution states: Australian Constitution 44. Disqualification Any person who: (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
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Throughout the latter half of 2017, this section of the Australian Constitution had a dramatic impact on the makeup of Federal Parliament, with the development of a parliamentary eligibility crisis. Several parliamentarians were ruled ineligible by the High Court and many more referred themselves to seek clarification of their status. The High Court’s role in this will be examined later in the chapter. The Australian Constitution contains certain “checks and balances” as a result of debate and discussion during the Federation process:
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• The Senate provides a “check” (restraint) on the power of the House of Representatives. The Senate is sometimes called the “states’ house”, since all states have the same number of senators (12) regardless of population. Each territory has two senators. • Section 128, which covers the process for altering the Constitution via a referendum, specifies that a majority of states need to vote “yes” on a proposal for it to succeed; that is, four out of six states. In addition, an absolute majority of voters Australia-wide must vote “yes”; that is, 50% of voters plus one (this includes the voters from the Northern Territory and the Australian Capital Territory). These requirements have made constitutional change very difficult: no referendum has succeeded since 1977. • The “division of power” outlined in section 51 ensures that the states have control over the “residual powers”; that is, those not listed in section 51. This will be examined in detail later in this chapter.
RESEARCH 5.1.1
1. Australia has six states and two territories. Refer to section 121 of the Australian Constitution and identify whether this is the maximum number of states that Australia may have. 2. Go online to find the current senators from New South Wales and Tasmania. Using each state’s population, calculate how many people a Tasmanian senator represents compared to a New South Wales senator. Assess the implication of this difference.
REVIEW 5.1 Online quiz
Review questions
Access sample responses and results
Review 5.1 questions
1. 2. 3. 4.
Describe the Australian Federation process. Why is the Australian Constitution a result of a British Act of Parliament? Outline the key features of the Constitution. Outline the key “checks and balances” contained within the Australian Constitution. Using examples, explain how the Australian Constitution reflects the concerns of the former colonies.
Go online to assign and download questions, view results and more!
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5.2 Division of powers LEARNING OBJECTIVE 5.2 DESCRIBE the division of powers between federal, state and territory governments.
U N SA C O M R PL R E EC PA T E G D ES
The actual makeup of the Australian Constitution clearly reflects the chief concerns of the Federation process as outlined in Table 5.1.1. The reluctance of the states to hand over complete control to the Commonwealth is evident in Chapter I, Part V of the Constitution, in sections 51 to 60. These sections provided the split (or division) of powers between the Commonwealth and the states. video widget reporting
Writing focus 5.2 Transitional note taking phrases
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Legislative powers
Section 51 of the Constitution specifies the legislative powers of the Federal Parliament. The Federal Parliament has the power to make laws with respect to all of the matters listed in section 51. These are sometimes referred to as the “enumerated powers”. It is important to realise that the states can also make laws in many of the areas listed in section 51; namely, those areas over which the federal and state governments have concurrent powers . quiz questions download word
legislative power the legal power or capacity to make laws concurrent powers existing at the same time; powers held by both state download pdf and federal parliaments
Australian Constitution
51. Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i)
trade and commerce with other countries, and among the States;
(ii) taxation; but so as not to discriminate between States or parts of States; […] (v)
postal, telegraphic, telephonic, and other like services;
(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; […]
(xii)
currency, coinage, and legal tender;
[…]
(xv)
weights and measures;
[…] (xix)
naturalization and aliens;
[…]
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(xxi)
marriage;
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
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[…]
(xxvi) the people of any race, for whom it is deemed necessary to make special laws; (xxvii)
immigration and emigration;
(xxviii) the influx of criminals; (xxix)
external affairs;
[…]
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth;
(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; […]
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;
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Exclusive powers Section 52 outlines the exclusive powers of the federal government; that is, only the Commonwealth (Federal) Parliament can legislate on:
exclusive powers those powers that can be exercised only by the Federal Parliament
Australian Constitution 52. Exclusive powers of the Parliament […]
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(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes
atters relating to any department of the public service [controlled by the (ii) m Commonwealth, according to the Constitution] (iii) other matters declared by the Constitution to be within the exclusive power of the Parliament.
The exclusive powers of the federal government include the areas of trade and commerce with other countries, foreign relations (“external affairs”) and national defence. While section 90, for example, states clearly that the federal government has exclusive power over customs, and section 114 forbids the states from raising or maintaining any military force, determining how the Constitution applies to a real-life question or dispute is not always clear-cut. As society, technology, and values and ethics have evolved over time, it has fallen to the High Court to interpret how the Constitution applies in a contemporary context (see High Court cases). Obviously there needs to be a conflict-resolution mechanism in place if a state and the Commonwealth make contradictory laws. This is found in section 109: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” This will be discussed later in this chapter.
Residual powers
Those powers that belong solely to the states are known as the residual powers; that is, all the powers left over (not listed in section 51) that are not otherwise given to the Commonwealth exclusively. Each state has its own constitution, which enables the state to make laws in various areas, but excludes any area directly denied to the states by the Australian Constitution. Chapter V of the Constitution outlines some of these prohibitions. This has led to some interesting scenarios; for example, for students in schools on the New South Wales and Queensland border undertaking their Ls (learner driver training), those who have an address in New South Wales have to complete 120 hours of driving (including 20 at night), while the student sitting next to them in class who has an address in Queensland only has to complete 100 hours (including 10 at night).
residual powers those matters on which the states can legislate, as they are not referred to in the Australian Constitution
Some of the key residual powers are in the areas of de facto relationships (in New South Wales this includes same-sex relationships), crime, the environment, hospitals and public transport. There are legal mechanisms, such as the “referral of powers”, that do enable the federal government to take control of the residual powers of the states in specific circumstances. These mechanisms will be covered later in this chapter. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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IN COURT 5.2.1 Commonwealth v Tasmania [1983] 158 CLR 1 (Tasmanian Dam case) If either the Federal government or a state government passes a law that contravenes the Australian Constitution, that law is unconstitutional and invalid. Technically, the government passing the contravening law is acting ultra vires (beyond legal authority). But what happens if the state and Commonwealth laws are both valid, as can often be the case with a concurrent power? This situation arose in the case of Commonwealth v Tasmania [1983] 158 CLR 1, known more commonly as the “Tasmanian Dam case”.
U N SA C O M R PL R E EC PA T E G D ES
ultra vires (Latin) beyond the power or authority legally held by a person, institution or statute to perform an act
Tasmania wanted to build a hydroelectric dam on the Franklin and Gordon river system. A group of environmentalists began a campaign against this proposal, and the Wilderness Society and the Australian Conservation Foundation got actively involved. Nationwide protests were organised under the “no dams” slogan, and a range of high-profile personalities took up the cause.
The Tasmanian government argued that the building of the dam was a residual power and the protesters, while entitled to their view, were not going to change the Tasmanian government’s decision. In the lead-up to the 1983 federal election, the leader of the Australian Labor Party promised to stop the dam if elected. Labor won the election, but Tasmania continued to build the dam. Figure 5.2.2 People in rubber dinghies lined up on the Franklin River as a “no dams” protest, 15 December 1982
external affairs power the power of the Commonwealth to legislate on international matters involving Australia; interpreted by the High Court to mean that when the Commonwealth signs an international treaty or convention, it has the authority to enact laws to give effect to this international law within Australia
The federal government recognised the Wild Rivers area in Tasmania as a region of special significance, and it was listed under the World Heritage Convention. The federal government also passed the World Heritage Properties Conservation Act 1983 (Cth), which specified that such areas of special significance should be protected. The Franklin River was included as one such area. Technically, there was now a state law allowing the construction of the dam and a federal law that demanded it be stopped. The case went to the High Court.
There are seven judges on the full bench of the High Court. In a four-to-three decision, the court ruled that the federal government was validly using the external affairs power of the Constitution (s 51(xxix)), which gives it the authority to legislate on any matter of “international concern”. Although the Tasmanian government argued that the construction of the dam and the regulation of that area were purely internal or domestic affairs, the High Court held that the Commonwealth had the power to make laws with respect to international obligations that also govern conduct within Australia. Under section Figure 5.2.3 Rock Island Bend, Franklin River, in 2020 109 of the Constitution, the federal law
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overrides the state law; section 109 states that “when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”. The construction of the dam was stopped and the Franklin River was ultimately preserved for future generations.
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Interestingly, in September 2025, the precedent that arose in the Tasmanian Dam case was raised as an opportunity for the federal government to intervene to set the minimum age of criminal responsibility as 14 years old nationwide. Legal advice from the Justice and Equity Centre stated that the federal government could use the “external affairs” power to override any state legislation that contravenes any international law; in this case, the Convention on the Rights of the Child, which in Article 37 (b) states: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”
However, in 2019 the Committee on the Rights of the Child recommended a minimum age of 14, which, according to the United Nations, is the most common minimum age of criminal responsibility worldwide. In October 2025, the Northern Territory announced it was reducing the age of criminal responsibility to 10.
ANALYSIS 5.2.1
Read In Court 5.2.1 Commonwealth v Tasmania [1983] 158 CLR 1. Discuss how the decision in the Tasmanian Dam case gave the federal government the power to make a law over the environment when this is considered a state residual power.
Referral of powers
There is a provision in section 51(xxxvii) of the Australian Constitution that allows for a “referral of powers”, whereby states are able to “give” power to the Commonwealth to make laws with regard to a specific matter. Both the state and the Commonwealth must pass laws reflecting the “powers” being handed to the federal government. Examples of this include:
• in 2003, the states referred powers to the Commonwealth for uniform counter-terrorism laws (Criminal Code Amendment (Terrorism) Bill 2003) • in 2009, New South Wales referred some industrial relations matters to the Commonwealth under the Industrial Relations (Commonwealth Powers) Act 2009 (NSW).
REVIEW 5.2 Online quiz
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Review 5.2 questions 1. Identify the “powers” of the federal government. 2. Identify the “powers” of the states. 3. Describe the purpose of section 109 of the Australian Constitution. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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5.3 Separation of powers LEARNING OBJECTIVE 5.3 DESCRIBE reasons for the separation of powers.
In 1887 Lord Acton, an English historian, writer and member of the British House of Commons, famously stated: “Power tends to corrupt, and absolute power corrupts absolutely”.
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Writing focus 5.3 Conjunctions note taking – (subordinating reasons why)
This well-known quote emphasises the fundamental reasoning behind the separation of scorcher powers doctrine that underpins modern democracies. It was developed by the eighteenth-century French political philosopher Charles de Secondat Montesquieu. He believed that the civil liberties of society were at risk if the key organs of government were controlled by one person or group. Montesquieu identified these key organs of government as:
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• the legislature – the lawmakers (in Australia this is the parliament: the House of Representatives and the Senate) • the executive – the ministers and government departments who administer the laws made by parliament (in Australia the Governor–General, the Prime Minister and the Cabinet are members of the executive) • the judiciary – the courts, which interpret and apply the law. If one person or group controls all three organs or arms of government, then that person or group has unfettered power, so the risk of dictatorship is very real.
Figure 5.3.1 Prime Minister Anthony Albanese, Governor–General Sam Mostyn and members of the Cabinet, 13 May 2025
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If the three arms of government are independent, each arm acts as a check on the others, ensuring that no branch has absolute power and that civil liberties are protected. The fact that the first three chapters of the Constitution are set out in accordance with the separation of powers doctrine clearly illustrates that upon Federation it was important. The first three chapters are:
civil liberties basic rights of individuals that are protected by law, such as the freedom of religion and freedom of speech
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• Chapter I – The Parliament (sections 1–60) • Chapter II – The Executive (sections 61–70) • Chapter III – The Judicature (sections 71–80).
In theory, Australia has adopted the doctrine of the separation of powers. However, the Australian Constitution only partially realised this because some members of the executive are also members of the legislature; that is, the ministers and the Prime Minister are members of both the executive and the legislature. Therefore, the separation of powers does not exist in its pure form in Australia.
The key feature of the separation of powers in Australia in regard to the functioning of democracy is that there is a clear distinction between the judiciary and the other arms of government. For a true democracy to operate and in the interests of justice, it is imperative that there be no overlap between the judicial and non-judicial arms of government. Protecting the independence of the judiciary is one of the cornerstones of our democracy. This becomes evident when a court makes a decision that is not in accordance with government policy. For example, during 2023 and 2024, the High Court ruled that “indefinite detention” was unlawful and unconstitutional, leading to the release of numerous immigration detainees, even though this was against the Australian government’s policy at the time.
ACTIVITY 5.3.1
Construct a Venn diagram of the “separation of powers” indicating the members of each arm of government.
RESEARCH 5.3.1
1. Investigate the concept of mandatory sentencing and discuss how this may come into conflict with the independence of the judiciary when determining punishments. Go online to identify current New South Wales crimes that have mandatory sentencing provisions. 2. Explain how the “separation of powers” operates under the leadership of Kim Jong-un in North Korea.
REVIEW 5.3 Online quiz
Review questions
Access sample responses and results
Review 5.3 questions 1. Outline the role of the three “arms” of government. 2. Explain how the separation of powers operates in Australia. 3. Outline the significance of the separation of powers for the functioning of a democracy. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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5.4 Role of the High Court in interpreting the Australian Constitution LEARNING OBJECTIVE 5.4 DESCRIBE the role of the High Court of Australia in interpreting the Australian Constitution to reflect contemporary values.
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Chapter III of the Australian Constitution is titled “The Judicature” (the definition being the administration of justice according to the law) and it is within this chapter that the judicial system of the Commonwealth was created. Section 71 created the High Court of Australia and specified that it must contain one Chief Justice and at least two other judges. scorcher
The first sitting of the High Court was on 6 October 1903, with three judges. In 1906, the number of judges was increased to five, and in 1912 the number of judges was further increased to its current number, seven. Section 71 also allows the Commonwealth Parliament to create other courts. Currently, the federal court system is comprised of the:
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• High Court of Australia • Federal Court of Australia (civil disputes such as corporations, taxation but not family law) • Federal Circuit and Family Court of Australia which has two divisions:
> Division 1: Focuses on family law and child support > Division 2: Deals with broader federal matters such as migration and administrative law. An important element of the functioning of the federal courts is to remember that their jurisdiction is in alignment with the federal legislative powers outlined in sections 51 and 52.
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Section 72 outlines how High Court judges are appointed, and, as a result of a successful referendum in 1977, specifies that they must retire when they reach the age of 70. Most High Court judges come from the bench of the state Supreme Courts or the Federal Court. They are chosen by the “Governor-General in Council”, which essentially means they are chosen by the government of the day. While most sittings are in Canberra, cases can be heard in the other capital cities and even by video-link if it is warranted.
original jurisdiction the ability or power of a court to hear a case in the first instance special leave where the High Court grants approval for the case to come before it in its appellate jurisdiction
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High Court jurisdiction
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The High Court has both original and appellate jurisdiction. The original jurisdiction of the High Court is outlined in sections 75 and 76. Section 73 outlines the appellate jurisdiction of the High Court. It stipulates that the High Court has jurisdiction to “hear and determine all judgments” from any cases emanating from appeals from the High Court exercising its original jurisdiction, any Federal Court exercising federal jurisdiction and the Supreme Court of any state. Section 73 also states that “the judgment of the High Court in all such cases shall be final and conclusive”. Currently, all appeal cases must be granted special leave before the case will be heard by the High Court.
Australian Constitution
75. Original jurisdiction of High Court In all matters –
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) i n which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (vi) b etween States, or between residents of different States, or between a State and a resident of another State;
(xii) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.
mandamus a court order compelling a government official or organisation to perform a particular task prohibition a court order that forbids a lower-level court from hearing or taking further action in a case or matter injunction a court order requiring an individual or organisation to perform, or (more commonly) not to perform, a particular action
76. Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on the High Court in any matter – (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(vi) relating to the same subject matter claimed under the laws of different States.
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Interpretation of the Australian Constitution Cases that come under original jurisdiction begin in the High Court itself. Matters relating to the interpretation of the Australian Constitution fall under section 76(i), and this role of the High Court has, at times, had an enormous influence on determining the division of power between the states and the Commonwealth.
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As community conditions, standards and attitudes evolve, they should be reflected in the views and decisions of the judiciary. This is another way in which the law maintains its relevance, effectiveness and acceptance by the community.
When a case concerning the interpretation of the Constitution comes before the High Court, generally all seven judges hear and decide the matter (in some cases, a panel of five of the judges decides the case). This ensures a final decision, even though decisions need not be unanimous. The High Court is the highest court in the Australian judicial system and, since 1986, there are no other avenues of appeal available. Prior to this time, appeals from the Australian judicial system could go to the Privy Council in England for final determination; however, the Australia Act 1986 (Cth) severed this judicial link with England.
While the High Court has various roles, such as determining whether a particular body has the jurisdiction to exercise judicial power, one of its fundamental duties is to make final determinations about how the Constitution is to be interpreted. Invariably, the High Court’s interpretation of the Constitution involves stipulating what areas the Commonwealth can legislate on and what areas belong to the states. In association with such decisions, the High Court makes statements on how each level of government can use its powers and outlines any limits on such powers. For example, in the Tasmanian Dam case, the High Court said in obiter dicta that the Commonwealth can only use the external affairs power when entering legitimate international treaties or conventions. In other words, the Federal government could not enter a treaty with another country simply to gain legitimacy to override a state law that it disagreed with. Initially, High Court decisions favoured the states but, over time, a broader approach to interpreting the Constitution has seen a shift in the legislative balance between the states and the Commonwealth. The In Court 5.4.1 cases below are examples of the High Court exercising its original jurisdiction to interpret the Constitution.
Figure 5.4.2 The east coast of K’gari (Fraser Island). In Murphyores Inc Pty Ltd v Commonwealth [1976] 136 CLR 1, the High Court held that under section 51(i) of the Constitution, the Commonwealth government could prohibit the Murphyores mining company from exporting minerals extracted from sands on K’gari. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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IN COURT 5.4.1 Love v Commonwealth of Australia [2020] 270 CLR 152
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In February 2020, the High Court of Australia – in a four-to-three decision – held that First Nations people cannot be considered to be “aliens” (see s 51(xix) Australian Constitution) even if they were born overseas and do not have Australian citizenship. The case was brought by lawyers on behalf of two First Nations men, Brendan Thoms, a Gunggari man, and Daniel Love, a Kamilaroi man, both of whom were born overseas but have Indigenous heritage. Both men live in Australia and – due to their criminal convictions – faced deportation to the country of their birth under the Migration Act 1958 (Cth). Justice James Edelman said that “the sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation”.
Justice Virginia Bell determined that an Indigenous person cannot be considered to be an alien because “an Aboriginal Australian cannot be said to belong to another place”. In the article “The High Court has widened the horizon on what it is to be indigenous and belong to Australia” (ABC News, 15 February 2020), Indigenous commentator Stan Grant emphasised the High Court’s obiter dictum that “Indigenous Australians don’t enjoy the same political sovereignty as Native Americans or New Zealand Maori”.
Murphyores Inc Pty Ltd v Commonwealth [1976] 136 CLR 1 (Fraser Island case) The Murphyores mining company extracted certain minerals from sands on K’gari, otherwise known as Fraser Island, under a lease granted by the Queensland government. Such a lease was constitutionally valid, and the environmental consequences were also a state concern. The Commonwealth government disagreed with the mining project, partly on environmental grounds, but had no constitutional power to shut down the operations on K’gari. Instead, the Commonwealth government relied on one of its legislative powers – specifically, section 51(i) of the Constitution regarding trade and commerce – to prohibit the export of the minerals. Also, under section 112 of the Customs Act 1901 (Cth), the Commonwealth government can prohibit the export of any goods from Australia, either absolutely or unless certain conditions are complied with.
The financial viability of Murphyores’ mine relied on being able to export the minerals to overseas markets, so Murphyores took the matter to the High Court. Murphyores argued that the Commonwealth government had acted outside its constitutional power. However, the High Court noted that – while the effect of using section 51 of the Constitution may well be to override a traditional state power – the Commonwealth government was within its rights to prohibit the export of the minerals. The motivation for the Commonwealth’s use of the power (e.g. a concern about the environmental effects of the mine) was irrelevant.
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] 263 CLR 284 (Citizenship Seven case)
While challenges to parliamentarians’ eligibility have been a feature of Australian politics for more than 50 years, the crisis that emerged in 2017 once again shone a spotlight on the binding nature of the specific wording of the Australian Constitution (in this case, s 44 – see earlier in this chapter).
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In 1950, Henry William Crittenden took legal action in the High Court against Gordon Anderson (the successful candidate for the seat of Kingsford Smith) on the grounds that since Anderson was a Catholic, he would be under allegiance to a foreign power, namely the Vatican. Crittenden lost the case and was ordered to pay costs. The court ruled that excluding Catholics from public office would breach section 116 of the Constitution as it would, in effect, place a religious test on any person applying for public office.
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A series of disclosures throughout 2017 highlighted that many members of Federal Parliament had dual citizenship. Some parliamentarians were completely unaware of this, as often their “citizenship” was automatically inherited from parents and grandparents when they were born. The “Citizenship Seven” case was actually a number of cases heard in the one sitting by the High Court to clarify the situation. In October 2017, the High Court handed down a unanimous decision on its interpretation of section 44 of the Constitution. This section provides that a person will be disqualified from parliament if they are a dual citizen unless they have taken “all steps that are reasonably required” to renounce any other citizenship than Australian. On the ABC’s Q&A, then Prime Minister Malcolm Turnbull stated:
“The reality is that the courts adopted a very literal meaning of section 44(i) … Yes, I think the section 44(i) should be amended … but in the meantime, we have to live with the section as it is and as the High Court has interpreted it.” In an attempt to restore public confidence in the parliamentary system, all members of parliament had to disclose their family heritage on a register. Turnbull noted:
“The only creatures in Australia that have more of their pedigree published than Australian politicians now are thoroughbred race horses.”
RESEARCH 5.4.1
Divide the class into pairs and choose one month from the last year. View the summary of High Court decisions from that month as outlined in the monthly bulletins. Each pair is to select one case and prepare a presentation that includes: • •
an outline of the case handed down by the High Court a brief overview of the facts of the case and the decision.
REVIEW 5.4 Online quiz
Review questions
Access sample responses and results
Review 5.4 questions
1. Outline the High Court’s original jurisdiction 2. Outline the High Court’s appellate jurisdiction. 3. Assess how the decisions in Love v Commonwealth and the Fraser Island case highlighted the High Court’s evolving role in interpreting the Constitution. Go online to assign and download questions, view results and more!
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5.5 Amending the Australian Constitutiondownload word quiz questions through referendums
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LEARNING OBJECTIVE 5.5 OUTLINE the processes of amending the Constitution.
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EXPLAIN why it is so difficult for referendum proposals to be successful.
The law and the legal system must be dynamic to be effective. Mechanisms must be in place to change ineffective, obsolete or unfair laws. Statutes (Acts of Parliament) can be changed through the parliamentary process. Common law can be changed through the courts when a judge sets a new precedent. The Australian Constitution, while technically a statute, has a uniquevideo alteration process widget contained within it. This process reporting is found in section 128 under Chapter VII, “Alteration of the Constitution”, and is known as a referendum.
Writing focus 5.5 Noun phrases note taking (identify and develop)
Once again, the smaller colonies’ fear of being made irrelevant by Federation resulted in a process that makes constitutional change difficult. Of the 45 proposed amendments to the Constitution, only eight have been successful. In some published copies of the Australian Constitution, these successful amendments are shown in bold type or by having deleted parts ruled through (see section 51(xxvi)). quiz
questions
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Figure 5.5.1 Servicemen voting in the 1944 referendum to give the Commonwealth additional powers to support reconstruction after World War II. This referendum was not successful.
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The margin notes also indicate alterations made to the Constitution after a successful referendum. The specifics of successfully altering the Australian Constitution, as set out in section 128, are:
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• the proposed change must pass both houses (the Senate and House of Representatives) with an absolute majority • the proposed change must be put to the electors “not less than two months nor more than six months” after going through both houses • there must be an absolute majority of voters Australia-wide who approve the change; that is, 50% of voters plus one • there must be a majority of states that approve the change; that is, four of the six states must vote for the change (note: this excludes the territories) • the alteration must go to the Governor-General for royal assent. In 1967, the most successful referendum in Australian history (90.77% vote in favour) altered section 51(xxvi) and deleted section 127, which enabled the Commonwealth government to pass laws in relation to First Nations Peoples. This ensured consistency of laws, as some states had discriminatory laws and were reluctant to change them. Further, prior to this, First Nations people were not allowed to be included in the national census.
The last successful referendum was in 1977, when section 72 was amended so that judges in the High Court and the other federal courts were required to retire at age 70. The next nine referendum proposals were all defeated. Two recent referendums:
bipartisan having the support of the two major political parties
• On 6 November 1999, a referendum was held to change Australia to a republic with a president appointed by a two-thirds majority of both Houses of Parliament, which would require bipartisan support of the nomination. The proposal was soundly defeated. • In October 2023, a referendum to provide First Nations Peoples with a “Voice” to Parliament was also defeated.
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ACTIVITY 5.5.1 Class activity – Conduct your own “referendum” (use your class or year level to “vote”)
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1. Decide on an issue (e.g. Is NRL better than AFL? Is a Kit Kat a better chocolate bar than a Crunchie?) Create ballot papers with your “issue”; voters must answer “yes” or “no”. 2. Divide the class or year into Australia’s six states and two territories. Use the following approximate percentages: New South Wales – 30%, Victoria – 20%, Queensland – 20%, Western Australia – 10%, South Australia – 5%, Tasmania – 5%, Australian Capital Territory – 5%, Northern Territory – 5%. 3. Give each student one ballot paper and tally the votes. Apply points three and four of the referendum rules (note that the territories are only counted as part of the Australia-wide vote) and determine whether your referendum would succeed.
RESEARCH 5.5.1
1. Conduct online research into the state and territory breakdown of the Yes/No votes for the 2023 Voice referendum. Specify the grounds on which it failed under section 128. 2. Investigate section 59 of the Australian Constitution. Conduct a class discussion on what section 59 means.
REVIEW 5.5 Online quiz
Review questions
Access sample responses and results
Review 5.5 questions
1. Outline the requirements for a referendum proposal to be successful under section 128. 2. How many referendums have there been and how many have been successful? 3. How are successful referendums indicated in the actual Constitution document? Go online to assign and download questions, view results and more!
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End of chapter Revise and consolidate your learning with these online tools: •
• • • •
Individual and whole class student reports Assign tasks and track results Print chapter tests Create and print custom practice exams
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Teachers can access these additional downloadable resources and Learning Management System features:
Chapter summary • • •
• • • •
The Australian Constitution took shape during the Federation process. The constitutional division of powers outlines the responsibilities of the Commonwealth and the states by reference to concurrent, exclusive and residual powers. The Australian Constitution sets out the fundamental rules of the Australian legal and political systems, including the roles of the state governments and the federal government. It shows the division of powers among the levels of government to make laws. The separation of powers ensures that individual rights and the democratic system are protected. The Australian Constitution indicates how the separation of powers operates in Australia. It is important to note that only the judiciary is truly independent in Australia. The High Court has the ultimate responsibility for interpreting the Australian Constitution. The Australian Constitution can only be amended by a successful referendum.
Multiple-choice questions
1. What section of the Australian Constitution outlines the “division of power”? A. Section 51 B. Section 73 C. Section 109 D. Section 128
2. How many High Court judges usually hear a case involving the interpretation of the Constitution? A. One – the Chief Justice only B. Three – the Chief Justice and two others C. Six – the Chief Justice of each state’s Supreme Court D. All seven judges
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3. A government minister contacts a judge in the Federal Court and directs them to make a decision that is favourable to the government’s interests. Why would this decision be overturned by the legal system? A. It offends the division of powers. B. It offends the separation of powers. C. It would be ultra vires. D. It is not allowed under the referendum provisions of section 128.
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4. A High Court decision orders an organisation to perform, or (more commonly) not to perform, a particular action. What is this legal remedy called? A. Prohibition B. Injunction C. Mandamus D. Damages
5. What legislative power did the federal government use to protect the Franklin Gordon River system? A. Section 51(i) trade and commerce B. Section 52(i) acquiring a place for a public purpose C. Section 51(xxix) external affairs power D. Section 109 to override state laws
Short-answer questions
1. Describe the different “checks and balances” provided by the Australian Constitution. 2. Describe the process for amending the Australian Constitution under section 128. 3. Use examples to describe the various roles of the High Court.
Extended-response question
Explain the difference between the “division of power” and the “separation of powers” under the Australian Constitution. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 5.6.1 Answering an exam question
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The global legal system
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CHAPTER
Enhance your learning with these integrated online resources: Digital workbook
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Chapter tests and custom exam creation Writing focus workbook Planning documents
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CHAPTER OBJECTIVES
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By the end of this chapter, you will be able to: • define international law and how it is applied • explain how international law is formed and how it becomes domestic law • define state sovereignty and explain its impact on international and domestic law • outline the responsibilities of nation-states under international laws , including Australia’s obligations • explain the legal protections in place to safeguard human rights and ensure nation-states comply • outline the purpose of the United Nations • explain the United Nations’ participation in international law • explain how intergovernmental organisations encourage cooperation among nation-states • explain the roles of the International Court of Justice and the International Criminal Court in resolving disputes • explain how non-government organisations participate in international law.
RELEVANT LAW
IMPORTANT LEGISLATION
Universal Declaration of Human Rights (1948) International Covenant on Economic, Social and Cultural Rights (1966) International Covenant on Civil and Political Rights (1966) Vienna Convention on the Law of Treaties (1969) Agreement between the Republic of Indonesia and Australia on the Framework for Security Cooperation (2006) Statute of the International Criminal Court (2002) Sex Discrimination Act 1984 (Cth) Convention on the Rights of the Child (1989) Statute of the International Court of Justice European Convention on Human Rights International Convention for the Regulation of Whaling (1946) Charter of the United Nations (1945)
SIGNIFICANT CASES Roper v Simmons (2005) 543 US 551 Nicaragua v United States (1986) ICJ The Trail Smelter Arbitration (United States v Canada, 1941) Space Activities Act 1998 (Cth) Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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6.1 Formation of international law LEARNING OBJECTIVES 6.1
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DEFINE international law and how it is governed. EXPLAIN how international law is formed and how it becomes domestic law.
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Writing focus 6.1 Question words note taking
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Each country has laws for its own people, known as domestic law. A country can make these laws because it is an autonomous (independent) nation-state that has sovereignty (i.e. the authority to rule itself).
International law, while having similar characteristics, is the set of rules, norms and scorcher standards generally accepted in relations between nations. It acts as the “operating system” for the global community, ensuring that nation-states can interact with a level of predictability and security. International law enables nation-states to participate in trade and commerce, and provides mechanisms for the maintenance of peace and security and the reduction of conflict. International law also covers fundamental human rights, making it illegal to do such things as torture political prisoners or commit genocide.
Unlike domestic law, which is enforced by a central government (police, courts, etc.), international law relies heavily on the consent and reciprocity of nation-states to abide by the law. One of the main criticisms of international law is that it lacks the power to enforce the constraints contained in this law. There are many examples around the world of nation-states breaching international law, especially in the area of human rights. International law could not prevent genocide in Rwanda in the 1990s, and has not prevented the crimes against humanity committed in the Darfur region of Sudan since 2003. It also did not prevent the Russian invasion of Ukraine.
In this sense, international law is different from domestic law. Nation-states are powerful entities, and to force another nation-state to take a particular course of action can have far-reaching implications for the international community. As a result, international law relies on countries agreeing to cooperate in the enforcement of these laws.
A further point of difference is that the law is adhered to not simply because it can be enforced, but because it is generally accepted by the whole community. As the world is made up of diverse cultures with different values, not all countries will agree with all international laws and may ignore a law if they feel that it is not in their national interest to adhere to it. However, nation-states are interdependent in many ways and the recognition of this global interdependence, creating a world community, provides one of the motivating forces for following international law.
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Chapter 6: The global legal system
Figure 6.1.1 Eleanor Roosevelt holds up The Universal Declaration of Human Rights, 1948.
Sources of international law
The main sources through which international law is developed are customs, declarations, treaties, legal decisions and legal writings.
Customary international law
Customary international law is not contained within a written document. Instead it is based on long-established traditions or common practices followed by many nationstates to the point that they are accepted as being fair and right by the international community. For example, customary international law regulating war had been in existence well before The Hague (1899) and Geneva Conventions (1864, 1906, 1929, 1949) and explicitly outlined rules governing the conduct of nation-states in conflict, such as the manner in which prisoners of war and civilians were to be treated. This form of international law develops over time as it requires “constant and uniform” practice of nation-states in order to be accepted as law. It should be noted that, even if there is constant and uniform practice, it is still not considered law unless the nation-states accept that the practice is binding upon them. This principle is termed opinio juris sive necessitatis (shortened to opinio juris). Critics of customary international law point out that it can be difficult to establish that it exists, and the time lag involved in its being accepted as law has rendered it secondary to treaties and conventions as a source of international obligations. The number of nations in existence since the end of World War I (1918) has also grown considerably, so getting consensus has become more problematic. In addition, the rate of change in the world today is rapid and at times requires a more immediate
opinio juris sive necessitatis (Latin) “opinion that an act is necessary by rule of law”; the principle that for the practice of a nation-state to be customary international law, the nation-state must believe that international law requires it convention a legally binding international treaty between nation-states that typically addresses a specific issue, such as racial discrimination
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response. For example, what was the most effective means of limiting damage from the economic crisis of 2008? Would customary law or treaties be the more appropriate way of regulating global financial markets? Most of the laws prohibiting crimes against humanity originated as customary international law. Important examples include the condemnation of slavery and genocide.
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Declarations
Declarations are international instruments that state and
clarify the parties’ position on particular issues, but that do not impose legally binding provisions that must be followed. A famous example is The Universal Declaration of Human Rights (1948) – the first universal statement on the basic Figure 6.1.2 The original Geneva Conventions, 1864 principles of human rights. The United Nations Commission on Human Rights was established to draft the Declaration following World War II and the Holocaust. Among its chief purposes was to define the terms used in the United Nations Charter: “human rights” and “fundamental freedoms”. In 1948 the Declaration was ratified by a proclamation by the United Nations General Assembly. declaration a formal statement of a party’s position on a particular issue; a declaration is not legally binding under international law
covenant a legally binding international treaty between nation-states, usually dealing with broad and fundamental human rights
treaty defined by the Vienna Convention on the Law of Treaties (1969) as “an international agreement concluded between states in written form and governed by international law”; treaties may also be referred to as conventions or covenants signatory a person, organisation or country that has signed an agreement
Forty-eight countries voted in favour of it, with none voting against it and only eight abstaining (not voting). The Declaration is the basis for two binding United Nations human rights covenants (“twin convenants”): the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966). Its principles are contained in other treaties as well.
Treaties
Treaties are the most commonly used source of international law. According to the Vienna Convention on the Law of Treaties (1969), a treaty is “an international agreement concluded between states in written form and governed by international law”. Another way of looking at it is that a treaty is an agreement between legal equals and may cover any sphere of international relations between the parties. Treaties can be either:
• bilateral – between two nation-states; for example, the Agreement between the Republic of Indonesia and Australia on the Framework for Security Cooperation (2006) (“The Lombok Treaty”), concerning the countries’ common security and respective national security • multilateral – between many nation-states; for example, the Charter of the United Nations (1945), which established the United Nations and its organs and agencies, where each country that is a signatory to this treaty has a seat in the General Assembly and participates in United Nations’ processes.
The more nation-states that sign a treaty, the more powerful that treaty will be. Treaties are used to make specific laws and to control conduct and cooperation between and within nation-states. A treaty may also establish an international organisation; for example, the Statute of the International Criminal Court (2002).
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There is no set way of making a treaty, but most treaties are made through direct negotiations between nation-states. If all parties involved agree, the treaty will be signed. A document will only become a treaty if all parties have the intention of being bound by its provisions and obligations at the time of signing. The treaty only becomes binding on a nation-state when that nation-state ratifies it; that is, confirms that it intends to be bound by the conditions placed on it by the treaty. For some countries, such as France, treaties that the country has ratified automatically become part of the domestic law. Other countries require domestic legislation to be passed in order for the treaty to be implemented into their law. In other cases, whether domestic legislation is required will depend on the type of treaty. In Australia, human rights treaties such as the International Covenant on Civil and Political Rights (1966) have been ratified through the passing of a number of pieces of legislation such as the Sex Discrimination Act 1984 (Cth).
Figure 6.1.3 Former Minister for Employment, Education and Training Susan Ryan celebrates the passing of the Sex Discrimination Act in 1984.
CASE STUDY 6.1.1
Child executions
ratify to formally confirm that the country intends to be bound by the treaty
There are still a handful of countries in the world today that execute offenders for crimes committed when they were under the age of 18.
It is evident that child executions breach international treaties. Article 6 of the International Covenant on Civil and Political Rights (1966) says that a “sentence of death shall not be imposed for crimes committed by persons below 18 years of age”. Article 37 of the United Nations Convention on the Rights of the Child (1989) provides that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age”.
In Roper v Simmons (2005) 543 US 551, the US Supreme Court found that executing offenders who were minors when they committed the crime violates the Eighth Amendment, which prohibits “cruel and unusual punishments”. In 1989, the same court had held that it was within the US Constitution to execute 16- and 17-year-old offenders, but it found that standards of decency had evolved since the US Constitution had been written. There was now a national consensus that death is a disproportionate punishment for juveniles. In addition to nation-state legislation and practice, the court also considered international trends.
Bodies, including the Inter-American Commission on Human Rights and Amnesty International, believe that “the exclusion of child offenders from the death penalty is now so widely accepted in law and practice that it has become a rule of customary international law”. However, the practice continues in some parts of the world, with Amnesty International recording that between 1990 and 2022 there were 163 juvenile offenders executed across 10 different countries. Between 2023 and 2025, Amnesty International and the United Nations believe there were at least seven (two in Saudi Arabia and five in Iran) known executions of people who were children at the time of the offence.
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United Nations a world organisation dedicated to world peace and the sovereignty and equality of all its members
Legal decisions The International Court of Justice (ICJ), which is part of the United Nations, is the judicial body that deals with disputes between nation-states. Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty.
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Stare decisis (or precedent) does not apply to decisions of the ICJ. According to Article 59 of the Statute of the International Court of Justice, a decision of this court only binds the parties to the particular dispute. However, the court considers past rulings in its decisions, and decisions of the ICJ may help to shape the content of treaties. There are other international courts and tribunals whose judgments contribute to establishing international law. The International Criminal Court and the European Court of Human Rights are two examples. The International Criminal Court was set up to prosecute the most serious crimes concerning the worldwide community; the European Court of Human Rights is a regional court that rules on violations of the European Convention on Human Rights. Specialised courts have also been set up for particular purposes and timeframes, such as to deal with war crimes committed during a specific conflict. Examples of this type of court are the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
Legal writings
Due to the changing international political landscape and the developing nature of international law, the writings of respected international lawyers, judges and academics have an important part to play in guiding decision-making and treaty formation. Along with judicial decisions, scholarly writings are mentioned in Article 38(1)(d) of the Statute of the International Criminal Court as a means of determining the rules of international law. Scholarly legal writings may be drawn upon for the purpose of interpreting treaties or determining their application in international disputes.
Governments may also seek the advice of experts on matters of international law. For example, in 2007 the Sydney Panel of Independent International Legal Experts provided advice to the Australian government on whether the legality of Japan’s “scientific” whaling program could be challenged under the Antarctic Treaty System, the International Convention for the Regulation of Whaling (1946) and two other treaties. Although commercial whaling has been prohibited since 1986 for all members of the International Whaling Commission, Japan has relied on an exemption in the whaling treaty that still permits killing whales for scientific research. As of early 2026, Japan has transitioned from “scientific research” whaling in international waters to commercial whaling within its own territory. According to the International Fund for Animal Welfare, Japan, Norway Figure 6.1.4 Kristjan Loftsson, Icelandic fishing magnate, and Iceland are the only countries in the world that holds a box of frozen whale meat destined for the Japan still carry out commercial whaling. market, 2015.
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MEDIA 6.1.1 Is international law powerless against Russian aggression in Ukraine? No, but it’s complicated Andrew Harnik, The Conversation, 25 February 2022
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The world was treated to a grotesque spectacle this week. Russia, the current president of the UN Security Council, launched an invasion of Ukraine while the Security Council was holding an urgent meeting to try to resolve the crisis. This has many people asking whether there is any point to international law – is it powerless to control the conduct of states? Has Russia broken the law?
Yes. There is no question Russia has breached the rules of international law. Ukraine has a right to territorial integrity and political independence. Russian “recognition” of the independence of Donetsk and Luhansk does not change this, nor do any historical claims to Ukrainian territory on the part of Russia.
Russia has also committed an act of aggression against Ukraine. Aggression is an old concept in international law, predating the creation of the UN. War has been outright illegal since the 1928 Kellogg-Briand pact. The charter establishing the International Military Tribunal at Nuremberg in 1945 also declared the “planning, preparation, initiation or waging of a war of aggression” to be crimes against peace. Finally, Russia’s acts constitute a serious breach of the UN Charter, which states:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.
What can the UN Security Council do?
But what is the point of all this international law if Russia can still invade Ukraine? Where is the enforcement?
Article 24 of the UN Charter grants the Security Council primary responsibility for the “maintenance of international peace and security”. This includes taking collective measures to prevent and counter threats to peace and suppressing acts of aggression.
The UN was established specifically to prevent a global war between great powers from happening again. And since we haven’t seen this sort of event in the past 75 years, the UN has been largely successful at this primary goal. But here’s the rub: the UN Security Council (and the UN Charter more generally) was established by the allied powers who “won” the second world war. In establishing the UN, these powers (China, France, the UK, the US and Russia as successor nation-state to the USSR) were positioned functionally above the law.
They were made permanent members of the Security Council (known as the P5) and given veto power over UN action.
This was done expressly to prevent the UN from being able to take action against them and to allow them to act as a balance to each other’s ambitions. The system only works, however, when the P5 agree to abide by the rules.
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This worked through the Cold War because no P5 nation-state felt comfortable enough in its own power to act unilaterally and upset that balance. Once that uneasy balance of power fell apart with the collapse of the USSR, the willingness of the P5 members to act with restraint began to chip away.
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In the 1990s, the US and UK used the Security Council to rubber stamp their expansive military activity. Later, when Russia and China felt confident enough to use their veto power (most prominently in the Iraq invasion in 2003), the US and UK simply acted unilaterally. The Security Council – by design – was powerless to prevent it. The same scenario is playing out now, with Russia as the aggressor. The restraint of the P5 in their use of military action has been hanging by a thread for decades. We may have just seen it permanently snap.
Are there other responses under international law?
Russia’s ongoing transgression of the law is not the end of the story. There are other ways international law can be used to either defend Ukraine or punish Russia that go beyond economic sanctions. One option is the invocation of Article 51 of the UN Charter, which gives states the right of individual and collective self-defence.
Ukraine can legally use force to defend itself from attack, and moreover, can request military assistance from other countries. When Iraq invaded Kuwait in 1990, Kuwait issued a number of such requests to help it defend itself. Questions have also been asked about whether Russia could be stripped of its permanent membership on the Security Council.
The simple answer is no. Arguments are now being made that Russia should not have inherited the USSR’s seat on the council. But all the states arising from the collapse of the USSR (including Ukraine) did agree to this in 1991.
As for the question of reforming the UN Charter to remove Russia, that is also functionally impossible.
While Article 108 of the UN Charter does allow for amendments, it requires all of the P5 to agree. So, in order to remove Russia from the Security Council, Russia would have to agree, and that’s never going to happen.
This, again, is by design, so the P5 would feel confident in their security when taking action to police the world. Unfortunately, peace can’t be enforced when your enforcer is the one breaching the peace.
Can Putin be prosecuted for crimes?
There is also international criminal law. Putin has committed the crime of aggression by launching an illegal war, and any Russian war crimes on Ukrainian territory are within the jurisdiction of the International Criminal Court (ICC). But Putin will not stand trial before the ICC for aggression, due to the court’s narrow jurisdiction.
Uniquely, the aggressor nation-state and the victim of its actions must both accept the Rome Statute (the treaty that established the court) and its jurisdiction over aggression. While Ukraine has accepted the ICC’s jurisdiction, Russia is a not party to the Rome Statute.
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So, the ICC has no jurisdiction over Russian aggression without the Security Council referring Russia to the court as a non-party. And, of course, Russia can veto this action as a permanent member of the council. While the ICC also has jurisdiction over war crimes, tying a president to the crimes of foot soldiers is complex and not something the court has ever succeeded in doing.
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However, the ICC is not the only game in town. Any country in the world can prosecute grave war crimes, such as intentionally attacking civilians. And countries can prosecute nationals of other states for aggression, if they have laws in place to do so. Germany, the Netherlands, Ukraine and even Russia all have such “universal jurisdiction” laws that apply to acts of aggression.
Similarly, the doctrine of command responsibility is also subject to universal jurisdiction. So, war crimes prosecutions need not stop with front-line soldiers.
However, the difficulty with universal jurisdiction is bringing suspects into custody. Heads of state, in particular, are generally immune from being prosecuted for crimes in foreign courts. Not only that, for such prosecutions to happen, Russian political and military leaders would need to be removed from their posts, arrested and then extradited to face trial. So, in the short run, will anyone be hauled before a court? No. In the long run? Maybe.
Meanwhile, the job of the international community is to gather evidence of crimes as they occur, and to support Ukraine’s right of self-defence. International law is there; states now must use it.
ANALYSIS 6.1.1
Read Media 6.1.1 and complete the following questions.
1. In what ways has Russia broken international law? 2. Can the Security Council do anything about Russia’s breach? 3. What other ways can Russia be punished?
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1. Identify what is meant by the term “international law”. Outline the different ways in which international law is made. 2. Outline what needs to occur before a treaty becomes binding on a nation-state. 3. Outline some of the strengths and weaknesses of the enforcement of international law. Go online to assign and download questions, view results and more!
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6.2 State sovereignty LEARNING OBJECTIVES 6.2 note taking
scorcher DEFINE state sovereignty. EXPLAIN its impact on international and domestic law.
The concept of state sovereignty is central to international law and to the capacity of the world to enforce nation-states’ compliance with recognised human rights. Nationstates often cite infringements of their state sovereignty as a justification for failing to comply with international human rights standards.
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state sovereignty the authority of an independent nation-state to govern itself (e.g. to make and apply laws, impose and collect taxes, make war and peace, and formdownload treaties with pdf foreign states) nation-state a government and the people it governs; a country
nation a people that share a common heritage, language or culture and sometimes a common race
The principle of state sovereignty has its origins in the Peace of Westphalia (1648), which was a treaty that established that a ruler had the right to determine the religion and laws of their own realm or country, effectively giving birth the idea of the “nation-state” model we use today. The principle recognised in international law established that each nation-state:
• holds the supreme authority to make laws, enforce them and maintain order within its own borders • is independent of all other nation-states • has borders that are not to be infringed or changed by force by another nation-state.
Impact on international and domestic law
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To understand state sovereignty and its impact on international and domestic law, the concept of a “nation-state” needs to be clarified. A nation-state is the basic unit of the international system. Generally known as countries, nation-states are the only entitiesscorcher in international law capable of exercising full political capacity.
Statehood should not be confused with political entities within a federal system, such as the domestic states of Australia or the United States. Strictly speaking, a nation-state should also be distinguished from a nation, which is a people who share a common heritage, language, culture or race – nations do not always correspond with nation-state borders. Nations or peoples seeking independent statehood will often claim a right to self-determination.
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A nation-state, in the legal sense, is an independent entity that is recognised by other nation-states on an international basis. In order to be a nation-state, a place must have: • • • •
a defined territory a permanent population an effective government the capacity to enter into international negotiations.
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A sovereign state is a geographical area that is controlled by a central government that exercises supreme independent authority over that area internally and externally. Therefore, a nation-state must also be recognised by a number of other nationstates so that it can exercise its full political and legal capacity. This recognition is sometimes controversial. In most cases, membership of the United Nations is the clearest mark of statehood. However, there is no clear definition of “statehood” that binds the international community. In practice, the granting of statehood is usually a political matter, with recognition by leading nation-states being the most influential factor, rather than legal considerations.
The sovereignty of nation-states is one of the most essential components of the international system. State sovereignty refers to the ultimate law-making power of a nation-state – its independence and freedom from external interference in its affairs. Sovereignty is the source of a nation-state’s legal and political power to make laws over its own population and to enforce those laws.
It is also a major issue in the enforcement of international law, as in its strictest sense it means that no foreign nation-state or law can interfere in another nation-state’s domestic jurisdiction unless it has the consent of that nation-state. Under the Charter of the United Nations (1945), all nation-states are fundamentally equal – Article 2(1) of the charter states: “The [UN] is based on the principle of the sovereign equality of all its members.” Critically, however, in the modern international system, a state’s sovereignty is not absolute. It is limited under international law by certain duties nation-states owe to the international community. For example, nation-states may sign international treaties such as the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966) and then ratify these into domestic law, which then affords those rights to its citizens.
One of the major problems of state sovereignty, however, is that not all governments equally accept the idea that their own people have certain rights. While robust democracies may have developed institutional respect for their citizens’ rights, with internal mechanisms to enforce them, some countries without democratic processes may rely on sovereignty to justify mistreatment of their own citizens. In extreme cases, such countries may ignore their international obligations and commit human rights abuses through their own use of domestic law with impunity, with little or no avenue for their citizens to respond. In such cases, state sovereignty may be used as a shield against outside interference.
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The issue of statehood therefore does have implications for its citizens. People may be able to claim protections under the law of the nation-state and enjoy the rights and freedoms that come with this. Conversely, nation-states may use their sovereignty to oppress their populations or to ignore international law for their own political or economic self-interest.
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Lastly, countries do not exist in a vacuum. They form part of a community and are interdependent and interrelated – politically, financially, environmentally and legally. In particular, nation-states have signed numerous international agreements (treaties), including the Charter of the United Nations (1945), that create concrete legal obligations. These agreements are by nature consensual so do not infringe on sovereignty, but they do put responsibility squarely on the sovereign state to uphold its commitments or face the agreed consequences, which may be severe.
Figure 6.2.2 Ukrainian flags and flowers in Kyiv on 9 February 2025 honouring fallen heroes during Russia’s invasion of Ukraine. Russia’s military action in Ukraine has violated international human rights law and international humanitarian law.
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1. Explain what is meant by the sovereignty of nation-states. 2. Outline how the sovereignty of a nation-state can be used by some countries to commit human rights abuses. 3. Recall what the clearest mark of statehood can be. Go online to assign and download questions, view results and more!
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6.3 Responsibilities of nation-states LEARNING OBJECTIVES 6.3 OUTLINE the responsibilities of nation-states under international laws, including Australia’s obligations. quiz questions download word
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EXPLAIN the legal protections in place to safeguard human rights and ensure nation-states comply.
Sovereignty provides nation-states with many rights recognised under international law. It also confers a number of responsibilities under the rules-based norms of international law. Table 6.3.1 outlines the main rights (not all) and corresponding responsibilities of nation-states. Table 6.3.1 The rights and responsibilities of nation-states Rights
Responsibilities
Sovereignty
To respect the borders and laws of other nations
Jurisdiction
To protect the human rights of all people within that territory
Treaty-making Self-defence
To follow the rules agreed upon in “good faith”
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To use force only when necessary and proportionate
The modern framework for nation-state responsibility is largely codified in the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001. These articles distinguish between primary rules (the substantive obligations nation-states have) and secondary rules (the legal consequences of breaching those obligations). The UN Charter (1945) is considered the fundamental authority on state sovereignty and non-intervention also sets out quiz download word the core responsibilities of nation-states suchquestions as:
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• Article 2(1): Establishes the principle of “sovereign equality” • Article 2(4): Prohibits the threat or use of force • Article 2(7): Protects a state’s “domestic jurisdiction” from UN intervention, though this is increasingly balanced against humanitarian needs.
Respect for sovereignty and territorial integrity
State sovereignty is the bedrock of the international legal system and is based on the principle that every nation-state is equal in the eyes of the law and has control over its territory. Nation-states are responsible for staying out of the internal affairs of others and refraining from the use of force against the territorial integrity or political independence of any nation-state. Nicaragua v United States (1986), an ICJ case, clarified the boundaries of state sovereignty and the legal limits of using force.
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Protection of human rights
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There are several human rights treaties that have enshrined the universal human rights of all individuals regardless of where you live in the world. As discussed earlier, the “twin covenants” are the two foundational human rights treaties that, together with The Universal Declaration of Human Rights, form the International Bill of Human Rights. These are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. They were both adopted by the United Nations General Assembly in 1966 and entered into force in 1976. Essentially all nation-states are to ensure the basic rights, freedoms and liberties of their people as outlined in these treaties.
Fulfilment of treaty obligations
When a nation-state signs and ratifies a treaty, for example, on climate change, trade or arms control, they are legally bound to abide by and implement the provision within each treaty. They must do this in good faith but often many nation-states use their own domestic laws as a reason for not meeting some or all of the international obligations.
Nation-state responsibility for internationally wrongful acts
This essentially means that all nation-states are responsible for any harm committed when they break an aspect of international law. The nation-state is responsible for the arms of government and any of its organs, such as police, military and parliament. Nation-states are legally required to make reparation for any harm of injury caused.
Environmental stewardship
A nation-state must ensure that activities within its jurisdiction (such as a factory or a mine) does not cause significant damage to the environment or the environment of other nation-states or areas beyond national control (such as the high seas). The Trail Smelter Arbitration (United States v Canada, 1941) heard by an ad hoc international tribunal (which pre-dated the establishment of the ICJ post-World War II) is arguably the most significant case in the history of international environmental law. It established the bedrock principle that no nation-state has the right to use its territory in a way that causes serious injury to the territory of another.
Figure 6.3.1 Trail Smelter, 1929
This is commonly now known as the “No-Harm Rule” (or the principle of transboundary harm).
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Australia’s responsibilities under international law As a founding member of the United Nations, Australia has a deep-seated commitment to the “rules-based international order”. Because Australia follows a dualist system where law-making powers are divided between the federal government and the states, these international responsibilities only become “hard” domestic law once the Australian Parliament passes specific legislation to implement them.
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As a nation-state, Australia has the same responsibilities and obligations as all other recognised countries. It is a signatory to many international conventions and treaties and hence has many corresponding obligations that have been ratified into Australian domestic law as allowed by the Australian Constitution. Australia has implemented several “landmark” Acts to meet obligations and uphold international human rights treaties. The Racial Discrimination Act 1975 (Cth) was passed to legislate the provision contained in the International Convention on the Elimination of All Forms of Racial Discrimination. Similarly, the Sex Discrimination Act 1984 (Cth) ratified the Convention on the Elimination of All Forms of Discrimination against Women. Further examples include the area of money laundering and terrorism financing under the obligations imposed by the International Financial Action Task Force standards. As a result, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) was passed.
Enforcement of nation-state responsibilities
Today the ICJ is the primary body to adjudicate on disputes between nation-states. Unlike domestic courts, the ICJ does not have its own police force to compel compliance. Instead, it relies on a combination of UN Charter mandates, political pressure and the actions of other international bodies.
Figure 6.3.2 Ruling delivered by the International Court of Justice at The Hague for the Nicaragua v United States case
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How is a nation-state defined? Explain two different ways that the word “state” can be used. Outline the main responsibilities of a nation-state under international law. How does the UN Charter enshrine the notion of state sovereignty? Go online to assign and download questions, view results and more!
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6.4 The purpose of the United Nations LEARNING OBJECTIVES 6.4 OUTLINE the purpose of the United Nations.
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EXPLAIN the United Nations’ participation in international law.
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Video 6.4.1 Overview of the United Nations
General Assembly the main body of the United Nations, made up of all of the member nation-states soft law international statements, such as declarations, that do not create legal obligations upon nation-states but do create moral and political pressure to act in accordance with them
hard law covenants, conventions and treaties that under international law create legally binding obligations once ratified by a nation-state
The United Nations is the chief organisation involved in international law. The Charter of the United Nations was established in 1945. At its first meetings, 51 countries were represented; in 2026, there were 193 members. The main objectives of the United Nations are to: scorcher
• maintain global peace and security • develop good relations between nation-states based on recognition of equal rights and each nation-state’s right to govern its own political, economic and social development • to promote cooperation in solving international problems. The United Nations has been central to the protection of human rights and to developing a legal framework to address terrorism, drug trafficking, the clearing of landmines and protection of the environment. It has also been active in concrete efforts to fight disease, reduce poverty, provide emergency relief in natural disasters and in many other humanitarian operations.
The UN International Law Commission is the body primarily responsible for codifying and developing international law. The UN General Assembly’s Legal Committee (Sixth Committee) receives the Commission’s reports and considers its recommendations. It may then organise a conference to draw up a convention based on those recommendations, which the member nation-states then vote upon. Critics of the United Nations believe that reform is necessary for its continued relevance. State sovereignty often poses a challenge to the authority of the United Nations, especially in situations involving peace and security. It has also been suggested that the structure of the Security Council should be re-examined. Since the United Nations has no powers to make nation-states enact its resolutions into domestic law or to follow a particular course of action, its effectiveness is greatly dependent on the political will of nation-states.
The General Assembly
The General Assembly is made up of representatives from all member nation-states and is the main forum for multilateral discussion on all international matters covered by the UN Charter. It is the forum for which many declarations, called “soft law”, are developed and voted on. It also acts as the chamber for where international treaties (hard law) are discussed and developed. Through its members an issue is identified, debated and drafted if there is sufficient consensus. Notable examples include The Universal Declaration of Human Rights (1948) and the Convention on the Law of the Sea, which both started their journey through General Assembly processes.
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It also discusses and makes recommendations on the operation of the United Nations, on conflicts between nation-states, and on practical questions regarding political cooperation, human rights and international law. It appoints the non-permanent members of the Security Council and oversees the UN budget. It has established a number of committees, commissions and working groups for particular purposes. The General Assembly meets every year and can meet more often if required.
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The Security Council
The Security Council is the most powerful part of the United Nations. It is the executive of the United Nations and has the final say about the security and peacekeeping activities of the General Assembly. The Security Council consists of five permanent members: the United Kingdom, the United States, Russia, China and France (countries that were victorious in World War II). There are also 10 nonpermanent members who serve for two years each. Australia has been a member of the UN Security Council on five occasions: 1946–1947, 1956–1957, 1973–1974, 1985–1986 and 2013–2014.
Security Council the arm of the United Nations responsible for maintaining world peace and security
Under the Charter of the United Nations, the Security Council has primary responsibility for maintaining international peace and security. As such, it is able to investigate disputes that could lead to conflict. It can issue economic sanctions against nation-states to persuade them to change their policies, or to prevent or stop aggression. It can also send “peacekeeping” troops from member nation-states into areas where there is conflict to separate opposing forces and to reduce tension. It may also authorise collective military action. Security Council resolutions require a unanimous vote of all five permanent members of the Security Council. If one of the permanent members votes against the resolution, then it is not carried.
Figure 6.4.1 Members of the Security Council attend a meeting at the United Nations headquarters in New York to discuss the situation in the Middle East in 2026. The five permanent members of the Security Council are the United States, China, the Russian Federation, France and the United Kingdom. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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This is called the “veto power” and is considered one of the fundamental weaknesses of the current structure of the Security Council. For example, in 2004, the Security Council held continuing discussions to address the humanitarian crisis in the Darfur region of Sudan. There, Arab militias, with Sudanese government backing, were engaged in a horrific campaign of forcible relocation of certain groups (“ethnic cleansing”) involving rape, murder and torture. China and Russia, which had significant oil interests in Sudan, threatened to veto any Security Council resolution involving economic sanctions. Resolution 1564, passed in September 2004, disappointed many human rights groups due to the absence of stronger measures, such as an immediate oil embargo and targeted sanctions against government officials. In 2019, the United Nations imposed economic sanctions on North Korea as it had been increasing its nuclear testing. These sanctions are still in place today. Farreaching economic sanctions have been imposed on Russia for the illegal invasion of Ukraine in 2023. Punitive measures have also been taken against a number of Russian oligarchs, who are extremely wealthy, such as freezing money and assets held in the United States and the European Union as well as taking possession of “super yachts” and restricting the oligarchs’ movements. A criticism of the Security Council is that, having been set up more than 60 years ago, it does not reflect a broad spectrum of the cultural values evident in the world today. For example, it could be argued that the inclusion of a Muslim nation as a permanent member would make the Security Council a more representative body. The other main organs of the United Nations are the Economic and Social Council, the Trusteeship Council, the Secretariat and the ICJ.
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Identify why the United Nations was established. Summarise the functions of the United Nations. Describe the functions of the UN General Assembly. Explain the importance of the UN Security Council. Recall which five countries are permanent members of the Security Council. On what basis were they appointed? Explain one criticism levelled against the Security Council. Assess how this issue could be addressed and how it may improve the role it plays in the current global landscape. Go online to assign and download questions, view results and more!
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6.5 The purpose of intergovernmental organisations LEARNING OBJECTIVES 6.5
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EXPLAIN how intergovernmental organisations encourage cooperation among nation-states. video widget Intergovernmental organisations serve as formal platforms for nation-states to collaborate on global issues that no single nation-state can solve alone, such as climate change, trade and security. By establishing shared rules, they provide a framework to mitigate conflict and foster international stability.
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Intergovernmental organisations are created by nation-states through multilateral treaties that act quiz questions like a constitution in that the nation-states’ parties download word download pdf are consenting to be bound by the treaty that sets up the agencies, functions and purposes of the organisation. Many intergovernmental organisations are subsidiary agencies of the United Nations and others have been formed to make collective decisions Figure 6.5.1 A European Council meeting in Belgium, 2025. about international issues such as refugees, tariffs or Regional organisations such as the European Union exercise their regulatory powers for the betterment of the region. wealth. The International Labour Organization is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it was the first and remains the oldest specialised agency of the United Nations. Regional organisations also play an important role in international decision-making. For example, the European Union is an economic and political partnership of European nations that have agreed to cooperate for the common good. It has regulatory powers video widget reporting covering areas such as human rights, the environment, economic policies and trade.
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1. Explain how intergovernmental organisations are established. 2. What intergovernmental organisations is Australia part of? 3. How do intergovernmental organisations contribute to cooperation among nation-states?
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6.6 International courts and tribunals LEARNING OBJECTIVES 6.6 EXPLAIN the roles of the International Court of Justice and the International Criminal Court in resolving disputes.
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International Court of Justice (ICJ)
Writing focus 6.6 Transitional note taking phrases
The ICJ is the primary judicial body of the United Nations. It was established in 1945 and its principal activities are to settle disputes submitted to it by nation-states and to give advisory opinions on legal questions submitted by the General Assembly, the Securityscorcher Council or other bodies as permitted by the General Assembly. The ICJ can only hear disputes if the nation-states involved accept the jurisdiction of the court. The court may rule on two separate types of cases. The first type is legal disputes (contentious issues) between nation-states, on which the court produces binding rulings. For example, Australia initiated action against Japan and whaling in the ICJ. The court ruled that Japan had to cease whaling in Southern Ocean waters.
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The second type of case is advisory proceedings, in which the General Assembly or the Security Council requests the court’s opinion on any legal question. Other United Nations organs may request advisory opinions, but only with respect to their own activities. Advisory opinions often concern particular controversies between nationstates, although they do not have to do so. Cases heard by the ICJ can be seen on its website, such as Nicaragua v United States (1986), where the United States had been supporting right-wing rebel groups against the Nicaraguan government. The ICJ ruled that this was a violation of international law.
Figure 6.6.1 First hearing at the ICJ in which Myanmar is accused of committing genocide against the country’s Muslim minority, January 2026.
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International Criminal Court
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The Rome Statute of the International Criminal Court (1998) (“Rome Statute”) is a treaty signed by 121 nation-states, including Australia. It established the International Criminal Court (ICC) as a permanent court in which individuals can be tried for mass atrocity crimes such as genocide, war crimes and crimes against humanity. The ICC has held this jurisdiction since 2002.
State party
Signatory that subsequently withdrew its signature
Signatory party that has not ratified
Non-party, non-signatory
State party that subsequently withdrew its membership Figure 6.6.2 Parties and signatories of the Rome Statute
ANALYSIS 6.6.1
Use the ICJ website (https://cambridge.edu.au/redirect/12068) to answer the following questions. 1. Outline the types of cases that the court can hear. 2. Explain what “contentious cases” are. 3. Explain what “advisory proceedings” are.
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Review 6.6 questions 1. Outline the role of the ICJ. 2. Identify the main limitation of the ICJ. 3. Explain the reason the International Criminal Court was established as a permanent international court. Go online to assign and download questions, view results and more!
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6.7 Non-government organisations LEARNING OBJECTIVES 6.7 EXPLAIN how non-government organisations participate in international law.
Non-government organisations (NGOs) are associations based on common interests and aims, and which have no connection with any government. They form an important part in influencing the development of international law and the action of international scorcher agencies. They contribute to a wide range of areas, from world peace, disaster relief and environmental protection to promoting education and alleviating poverty.
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Writing focus 6.7 Noun phrases note taking (identify and develop)
NGOs do this by informing the public and lobbying governments to take action on issues of concern. Examples of international NGOs include the Red Cross, Greenpeace and World Vision.
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A well-known human rights NGO is Amnesty International, a “global movement of over seven million people committed to defending those who are denied justice or freedom”. It is independent of any national government; that is, it does not rely on funding from any national government. It campaigns on a wide range of issues, including the rights of women, refugees and First Nations Peoples; regulation of the global sale of weapons; and the abolition of torture and the death penalty.
Figure 6.7.1 Agnes Callamard, Secretary General of Amnesty International, holds a press conference in London, United Kingdom, on 20 April, 2026.
RESEARCH 6.7.1 The Amnesty International website shows “latest news” on its homepage. Use one or more recent news items as a starting point to complete the following tasks. 1. Investigate and explain one area of global human rights abuses. 2. Outline what the issue is and what role the United Nations and other NGOs can play in helping to resolve the issue. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Relevance of international law to Australian law As discussed earlier, in some countries ratification of a treaty automatically makes it part of that country’s domestic law. This is not the case in Australia. For some treaties, new legislation may be required to implement it into Australian law. For others, existing federal or state/territory legislation is sufficient (in other words, domestic law is already satisfying the terms of the convention).
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To pass new legislation implementing a treaty, the federal government may rely on the external affairs power in section 51(xxix) of the Australian Constitution.
It may also rely on other powers, such as trade and commerce power in section 51(i) of the Australian Constitution, if the subject matter involves shipping.
International law does not dictate the way in which Australia implements the obligations it has under treaties. The preferred method of giving effect to most treaty obligations is by incorporating the actual text of the treaty provisions into domestic legislation. For example, the Space Activities Act 1998 (Cth) contains provisions from several United Nations treaties Figure 6.7.2 The Australia Telescope Compact Array radio regulating the exploration and use of outer space. telescope at Paul Wild Observatory in Narrabri is one of Treaties also influence Australian law in the development of common law, in judicial review of decisions and in the judicial interpretation of statutes.
the most important astronomical facilities in the southern hemisphere. The Space Activities Act 1998 (Cth) contains provisions from several United Nations treaties regulating the exploration and use of outer space.
Examples of human rights treaties that have some of their provisions reflected in state/territory and federal legislation include:
• International Covenant on Civil and Political Rights (1966) – for example, Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2019 (Qld) • United Nations Convention on the Rights of the Child (1989) – for example, Family Law Act 1975 (Cth), in particular section 67ZC • Convention on the Elimination of All Forms of Discrimination against Women (1979) – Sex Discrimination Act 1984 (Cth) • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) – division 274 of the Criminal Code Act 1995 (Cth).
REVIEW 6.7 Online quiz
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Review 6.7 questions 1. Write a definition for non-government organisations (NGOs). 2. What do you think is the importance of NGOs in the modern world? Use one example of an international NGO to support your response. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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End of chapter Revise and consolidate your learning with these online tools: •
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U N SA C O M R PL R E EC PA T E G D ES
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Customary law is a source of international law, with long-established traditions or common practices followed by many nation-states to the point that they are accepted as being fair and right by the international community. The main source of international law is through the creation and signing of international declarations and treaties. Declarations are considered to impose moral obligations on nation-states, whereas conventions or treaties impose legal obligations under the international legal framework. Treaties can be bilateral or multilateral. Legal decisions of international courts and tribunals shape international law through the legal principles they re-affirm or, in rare cases, create. Legal writings (the opinion of respected international lawyers, judges and academics) have an important part to play in guiding decision-making and treaty formation. State sovereignty is the absolute authority of a nation-state to govern itself without interference from outside sources. It is the legal and political principle that defines a nation-state as an independent actor on the global stage that can enter into international agreements on behalf of its people. With international legal rights, nation-states also have legal obligations to respect other nation-states’ sovereignty, to fulfil their treaty obligations, to protect the human rights of their people, to be responsible for any wrongful act committed by it, and to be a steward or custodian to the environment. The United Nations is the chief organisation involved in international law established under the Charter of the United Nations in 1945. The two main organs of the United Nations include the General Assembly and the Security Council. Intergovernmental organisations are created by nation-states through multilateral treaties that act like a constitution in that the nation-states’ parties are consenting to be bound by the treaty that sets up the agencies, functions and purposes of the organisation. The main international courts are the International Court of Justice (ICJ) and the International Criminal Court. Non-government organisations are associations based on common interests and aims, and which have no connection with any government. They contribute to a wide range of areas, from world peace, disaster relief and environmental protection to promoting education and alleviating poverty.
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Multiple-choice questions 1. A criticism of international law is that it lacks: A. stability and predictability. C. ethical underpinnings.
B. enforcement power. D. community acceptance.
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2. Which of the following is NOT one of the “primary sources” of international law as defined by the Statute of the International Court of Justice? A. International treaties B. Resolutions of the UN General Assembly C. Customary international law D. General principles of law recognised by civilised nations 3. What types of cases can the ICJ rule on? A. War crimes and legal disputes between states B. Legal disputes between states and advisory proceedings C. Advisory proceedings and war crimes D. The ICJ cannot rule on cases.
4. Which of the following is NOT a role typically performed by an intergovernmental organisation? A. Providing a forum for member nation-states to negotiate and resolve disputes. B. Coordinating international responses to global crises C. Overriding the domestic laws of a non-member nation-state without its consent D. Monitoring compliance with international standards or regulations 5. How does a treaty become part of Australian domestic law? A. Ratification automatically incorporates the treaty into Australian law. B. The High Court must approve the treaty before it can take effect domestically. C. Parliament must pass legislation implementing the treaty. D. The Governor-General issues a regulation giving the treaty legal force.
Short-answer questions
1. Discuss the limitations of international law.
2. Outline the role of three organisations that influence international law.
3. Explain the role of non-government organisations in regard to international law.
Extended-response question
Assess the effectiveness of the global legal system in regulating the international community. Include examples in your response.
Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 6.8.1 Answering an exam question
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CHAPTER
Legal rights
Enhance your learning with these integrated online resources: Digital workbook
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • •
describe the rights and responsibilities of individuals and explain the relationship between them describe the sources of rights in Australia explain the domestic and international protection of rights describe the consequences faced by individuals, government agencies, businesses or other organisations who breach the rights of others.
RELEVANT LAW
IMPORTANT LEGISLATION
Racial Discrimination Act 1975 (Cth) Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth) Freedom of Information Act 1982 (Cth) Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Anti-Discrimination Act 1977 (NSW) Health Records and Information Privacy Act 2002 (NSW) Residential Tenancies Act 2010 (NSW) Crimes Act 1900 (NSW) Government Information (Public Access) Act 2009 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Anti-Discrimination Act 1977 (NSW) Disability Inclusion Act 2014 (NSW) National Parks and Wildlife Act 1974 (NSW) Work Health and Safety Act 2011 (NSW)
SIGNIFICANT CASES Donoghue v Stevenson [1932] AC 562 Dietrich v R [1992] 177 CLR 292 Roach v Electoral Commissioner [2007] 233 CLR 162 Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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7.1 Rights and responsibilities of individuals note taking
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LEARNING OBJECTIVE 7.1 DESCRIBE the rights and responsibilities of individuals. EXPLAIN the relationship between them.
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rights legal or moral entitlements or permissions download pdf
responsibilities legal or moral obligations to others
tortious wrongful; constituting a tort or breach of duty to others
duty of care a moral or legal obligation to ensure the safety or wellbeing of others
Writing focus 7.1 Question words note taking
Legal rights and responsibilities are two sides of the same coin. Legal rights empower individuals, whereas responsibilities ensure those rights are respected and protected for everyone to enhance both collective citizenship and societal obligation.
Rights are entitlements that people have under the protection of the law and/or moral authority. Rights refer to a way that people should be treated. In most cases, this treatment must be fair, respectful and equal. If you have a right to something, others are legally or morally prohibited from taking it from you. A person has a right to do something or possess something as a result of simply being human; hence, the expression “human rights”. For example, students with disabilities have the right to attend a public school in their local residential area. The “local” school (under the Disability Discrimination Act 1992 (Cth)) must treat students with disabilities in the same way as all other students. Responsibilities are legal or moral obligations that a person may have to another person; to a group; or to the state, society or other people generally. There are responsibilities to act in particular ways, as well as responsibilities to refrain from certain acts. For example, parents have both a legal and moral responsibility to care for their children, and all persons have a responsibility not to commit criminal and scorcher tortious acts. Similarly, states, groups, organisations, corporations and societies have responsibilities, just as individuals do.
Other legal responsibilities are based in common law, such as the duty of care. As expressed in Donoghue v Stevenson [1932] AC 562, a duty of care is owed to all persons who are likely to be “closely and directly affected” by your behaviour. In short, a supplier, such as a soft drink manufacturer, must take care to ensure their products do not injure or harm consumers.
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Rights and responsibilities are related. Where citizens have particular rights, the state has a responsibility to protect those rights and ensure that individuals, groups or the state itself does not violate them. Where particular members of a specific group have a legal responsibility to do something, the rest of that group have a right to expect it. For example, school principals have the responsibility and duty of care to allow a disabled student the right to attend their local school by facilitating such things as wheelchair access and/or teacher professional learning where required.
Figure 7.1.1 Employers owe a duty of care to their employees, such as putting control measures in place to protect workers’ health and safety by providing appropriate protective equipment (e.g. hard hat and reflective jacket). Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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In another context, employers owe a duty of care to their employees. Any breach of the duty of care, resulting in harm that could have been foreseen, entitles the person harmed to bring an action for negligence. For example, a recent Fair Work Commission (FWC) case of Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115 attracted significant attention in Australian employment law circles. The case raised important questions about an employer’s duty of care towards its employees, particularly in relation to workplace safety, mental health and the management of workplace grievances.
negligence a tort involving the violation of a duty of care that results in harm which was foreseeable
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IN COURT 7.1.1
Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115
Karlene Chandler, a part-time employee of Westpac Banking Corporation, brought an application before the Fair Work Commission alleging that the conduct of her employer breached her rights regarding their duty of care. The case centred on Chandler’s claims of inadequate response to complaints, and the psychological harm she suffered as a result of her employer’s actions and omissions.
The Fair Work Commission’s findings in Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115 demonstrates how an employer’s failure to address workplace complaints and provide appropriate support can breach the duty of care owed to employees. Therefore, this case reinforced the importance of proactive, compassionate and effective employer responses to workplace issues being central to both legal compliance and employee wellbeing.
The findings in this case reaffirmed that employers have both a common law and statutory duty of care responsibility to provide a safe and healthy working environment for their employees. This duty extends beyond physical safety to include psychological wellbeing. Employers must therefore take reasonable steps to prevent foreseeable harm including bullying, harassment and, in this case, undue work-related stress.
CASE STUDY 7.1.1
Rights and responsibilities in the fashion industry
Rights and responsibilities can also be identified in the global fashion business. Stella McCartney, a renowned British fashion designer, is widely recognised for her commitment to sustainability and ethical practices in fashion. She has leveraged her position to advocate for significant change, particularly around the issue of fast-fashion (mass-produced, cheap, disposable clothing) and its detrimental impact upon the environment (e.g. carbon emissions, water usage and pollution from microplastics and toxic chemicals). She argues that consumers have rights and responsibilities. Namely: •
•
a right to access information about the environmental sustainability of the products they purchase a responsibility to make mindful purchasing decisions, opting for quality over quantity, as well as supporting brands that prioritise environmental sustainability.
Figure 7.1.2 Stella McCartney believes consumers have a responsibility to the global environment when purchasing fast-fashion.
Video 7.1.1 Stella McCartney speaking at the COP 26 Climate Conference.
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MEDIA 7.1.1 Fair Work has ruled a Sydney woman can work for Westpac from home. Can you WFH too? This week, a longtime Westpac employee, Karlene Chandler, won her Fair Work Commission (FWC) case to work from home, overturning an order from the bank to attend a corporate office two days a week.
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Chandler lives with her partner in Wilton, south of Sydney, and two six-year-old daughters. She had worked full-time or near full-time from home for lengthy periods during her 23 years at the bank before receiving the return mandate. Chandler, who is in the bank’s mortgage operations team, formally asked for flexible work arrangements in January, relying on a section of the Fair Work Act which allows eligible employees with carer responsibilities to make such requests.
The obstacle to the office mandate was that it would take about two hours for Chandler to travel from her daughters’ school to Westpac’s nearest corporate office in Kogarah. Given the working arrangements of her partner, Chandler was responsible for school pick-ups and drop-offs. Chandler put forward an alternative arrangement to work from a local Westpac branch two days a week, which was rejected.
Why did Westpac lose?
Westpac’s first misstep was that it was found to have breached various procedural requirements, including failing to respond to the request within the required 21 days. The relevant manager also “did not discuss the request” or “genuinely try to reach agreement”, according to the decision.
The bank also unsuccessfully argued it had reasonable business grounds for refusing the request. While Westpac’s view was that in-person “huddles”, activities, training sessions and the use of “call boards” helped employees keep a customer focus, the benefits were deemed to be too general. Besides, Chandler had worked remotely for years and had retained high individual performance ratings. Her team was also spread out across the country, undermining the benefits of attending a corporate site in Sydney.
The commission ruled on 20 October that Westpac must grant Chandler’s request. The Finance Sector Union national secretary, Julia Angrisano, said the decision paved the way for workers who have caring responsibilities to secure work-from-home rights. A Westpac spokesperson said it was unable to comment on matters relating to individual employees. “We believe our current approach of two to three days per week in the office strikes the right balance for our people and customers,” the spokesperson said.
Can anyone work from home now?
The Labor government’s industrial relations changes – the Secure Jobs, Better Pay Act 2022 – cleared the way for cases like Chandler’s by putting new conditions on how employers must respond to flexible work requests. Employees who have worked for an employer for at least 12 months may request flexible work arrangements if they are a parent or carer, have a disability, are 55 or older, are pregnant, or are experiencing, or supporting someone experiencing, family and domestic violence.
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ANALYSIS 7.1.1 Read Media 7.1.1 and answer the following questions.
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1. In terms of “duty of care”, how does the legal decision made by the Fair Work Commission pave the way for employees with caring responsibilities? 2. Outline the Westpac “office mandate”. Why was it problematic for Chandler? 3. Why did Westpac lose its case in the Fair Work Commission? 4. Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), who is eligible to submit a request for flexible working conditions?
ANALYSIS 7.1.2
Use the Fair Work Commission link below to undertake further research regarding the Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115 case and answer the following questions. https://cambridge.edu.au/redirect/12069
1. Upon which section of the Fair Work Act 2009 (Cth) did this case rely? Why did Chandler seek a legal remedy under it? 2. What was the alternative arrangement offered by Chandler? How did it differ from the original mandate from her employer? 3. Why was Chandler’s partner not able to assist her with school drop-offs and pick-ups? 4. What is the significance of section 65A of the Fair Work Act 2009 (Cth) to this case? Did Westpac comply with this section?
REVIEW 7.1 Online quiz
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Review 7.1 questions 1. 2. 3. 4. 5.
Outline what you understand a “right” to be. Provide an example of a right. Contrast the difference between a “right” and a “responsibility”. What is a “duty of care”? Justify the significance of this common law doctrine. What is negligence? Provide an example of negligence. Assess the significance of the Karlene Chandler v Westpac Banking Corporation [2025] FWC case.
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LEARNING OBJECTIVE 7.2 DESCRIBE the sources of rights in Australia. EXPLAIN the domestic and international protection of rights.
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Individuals in New South Wales are protected by a range of legal rights, which stem from various sources. Understanding these sources helps clarify the origin of rights and how they are enforced.
Sources of rights Statute law
Writing focus 7.2 Transitional note taking phrases
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Statute law, or legislation, is one of the most significant sources of rights in New South Wales. Laws passed by the New South Wales parliament (such as Acts and Regulations) scorcher provide specific rights and protections. Examples include:
• Anti-Discrimination Act 1977 (NSW) – protects individuals from discrimination based on race, sex, disability and other attributes • Crimes Act 1900 (NSW) – sets out criminal offences and the rights of individuals in criminal proceedings • Health Records and Information Privacy Act 2002 (NSW) – provides rights regarding the privacy and handling of health information • Residential Tenancies Act 2010 (NSW) – gives tenants’ rights regarding fair treatment, privacy and safety in rental accommodation. Rights are also enshrined in Commonwealth legislation such as the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth). For example, an employer would not be able to dismiss an employee because they were from a certain racial group. Nor would a political party be able to refuse an individual membership because of their ethnic origin.
Common law
habeas corpus a legal requirement that a person who has been detained must appear in court before they can be forced by law to stay in prison
Common law refers to rights developed through decisions made by courts. These judicial precedents fill gaps where legislation may not cover specific issues. For example, in Dietrich v R [1992] 177 CLR 292, the High Court ruled that individuals have the right to a fair trial, which includes legal representation paid by the state in serious criminal trials. Further, in Roach v Electoral Commissioner [2007] 233 CLR 162, the High Court ruled that imprisoned individuals serving less than three years have the right to vote in elections. Other instances of judge-made common law include: • the right to silence in criminal proceedings • the right to seek compensation for negligence or personal injury • protection against unlawful detention through habeas corpus.
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The Australian Constitution Although the Australian Constitution is a federal document, it provides for the protection of fundamental rights in New South Wales, namely: the right to vote in federal elections (s 41) Right to freedom of religion (s 116) the right to trial by jury for Commonwealth offences (s 80) Right to just compensation for property acquired by the Commonwealth (s 51xxxi) protection against discrimination on the basis of State residence (s 117).
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Administrative law
Administrative law provides rights related to government decision-making, including: • the right to seek judicial review of government decisions • access to information under the Government Information (Public Access) Act 2009 (NSW) • the right to complain to the NSW Ombudsman about government agencies
judicial review a process by which a court examines a decision made by a public authority to determine if it was made legally and fairly
Freedom of Information Act 1982 (Cth) provides a right to access information held by the federal government, the Department of Home Affairs and other Commonwealth agencies.
Protection of rights under domestic law
Unlike countries such as the United States, Australia (and New South Wales) does not have a comprehensive human rights charter, but bodies such as the NSW AntiDiscrimination Board and the NSW Ombudsman help protect and enforce individual rights. The Australian Human Rights Commission also plays a role at the federal level.
RESEARCH 7.2.1
View the US Bill of Rights online (the first 10 amendments to the US Constitution). Read the rights contained in its First, Fourth and Sixth Amendments and complete the following questions. 1. In your own words, summarise the rights contained in each of these three amendments. 2. Explain why these three rights were important amendments to the US Bill of Rights. 3. Assess whether these considerations are still relevant today. Justify your response.
Figure 7.2.1 Voting in the 2022 federal election. The right to vote in federal elections is protected in section 41 of the Australian Constitution.
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Protection of rights under international law Australia is party to various international treaties and conventions, such as the International Covenant on Civil and Political Rights. While these treaties do not automatically create enforceable rights in New South Wales, they influence the development of laws and policies and may well be reflected in New South Wales legislation. Specific New South Wales laws influenced by international treaties and conventions include:
U N SA C O M R PL R E EC PA T E G D ES
• Children and Young Persons (Care and Protection) Act 1998 (NSW) – reflects Convention on the Rights of the Child (1989) principles • Anti-Discrimination Act 1977 (NSW) – influenced by the Convention on the Elimination of All Forms of Discrimination Against Women (1979), Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (1966) • Disability Inclusion Act 2014 (NSW) – draws on the Convention on the Rights of Persons with Disabilities (2006) • National Parks and Wildlife Act 1974 (NSW) – informed by the Convention on Biological Diversity (1992) and other environmental treaties • Work Health and Safety Act 2011 (NSW) – incorporates International Labour Organization conventions.
ANALYSIS 7.2.1
Read the article “Could a landmark court decision undermine the right to peacefully protest in NSW?” from The Guardian. Use the link below to answer the follow questions regarding the “right” of citizens in New South Wales to peacefully protest. https://cambridge.edu.au/redirect/12070
1. Outline the significance of the landmark ruling that the NSW Court of Appeal handed down on 9 October 2025. Did it affect NSW citizens’ right to protest? 2. Was the right to protest eroded in this instance? Why?
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Explain the difference between statute and common law. Outline four rights that are explicitly stated in the Australian Constitution. Identify three common law rights the people of New South Wales enjoy. Justify the importance of habeas corpus. Outline two types of rights that are protected under New South Wales legislation. Assess the extent to which New South Wales laws are affected by international law. Give two examples of that influence.
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7.3 Consequences of a breach of rights LEARNING OBJECTIVE 7.3 DESCRIBE the consequences faced by individuals, government agencies, businesses or other organisations who breach the rights of others.
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Types of consequences
In Australia, including New South Wales, legal entities – whether individuals, government agencies, businesses or other organisations – must comply with laws designed to protect citizens’ rights. Breaching these rights can result in a range of consequences, both legal and otherwise. The main consequences faced when they violate citizens’ rights under New South Wales law and broader Australian law are many and varied.
legal entity an individual, company or organisation that has legal rights and obligations, and as such can be sued
Legal consequences
• Compensation and damages – Institutions found to have breached legal rights may be ordered by courts or tribunals to pay compensation or damages to affected individuals. For example, under anti-discrimination or privacy laws, individuals can seek redress for harm suffered. • Injunctions and orders – Courts can issue injunctions requiring institutions to cease unlawful conduct or to take specific actions to remedy breaches. • Criminal penalties – In serious cases, breaches of certain rights (such as those involving discrimination, privacy or workplace safety) may result in criminal charges, fines or even imprisonment for responsible individuals. • Administrative sanctions – Regulatory bodies (such as the NSW Ombudsman, Australian Human Rights Commission or Office of the Australian Information Commissioner) may impose administrative penalties, including fines, enforceable undertakings or other sanctions.
Financial consequences
• Fines and penalties – Institutions or individuals may be required to pay substantial fines, especially for breaches of anti-discrimination, privacy, consumer protection or workplace laws. • Legal costs – Defending actions in court or before tribunals can result in significant legal costs, including the possibility of paying the other party’s costs if the institution is found liable. • Compensation payments – As noted, compensation or damages awarded to individuals can be a significant financial burden.
legal costs fees and other expenses a lawyer charges a client for their expertise and other payments that arise out of the provision of legal services, such as court fees
Reputational consequences • Public scrutiny – Breaches of citizens’ rights often attract media attention, which can damage an institution’s reputation and erode public trust.
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• Loss of business or funding – For private organisations, reputational damage can lead to loss of customers or contracts. For public institutions, it may result in increased oversight or loss of public confidence. • Impact on staff morale – Internal issues arising from breaches can affect staff morale and retention, especially if the institution is perceived as unfair or unlawful.
Regulatory oversight and enforcement Various agencies oversee compliance with citizens’ rights, including:
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Ombudsman an independent, fair and impartial person who investigates and resolves complaints between parties
• NSW Ombudsman – investigates complaints about unfair treatment by most New South Wales government agencies, local councils and government-funded community service providers • Australian Human Rights Commission – investigates and resolves complaints of discrimination and human rights breaches, provides advice to the government, promotes human rights awareness through education and research, and advocates for systemic change to ensure human rights are respected in Australia • Office of the Australian Information Commissioner – upholds information rights in the public interest, promoting openness by public bodies and data privacy for individuals • Fair Work Ombudsman – monitors, investigates and enforces compliance with Australia’s workplace laws • NSW Anti-Discrimination Board – investigates discriminatory acts in New South Wales.
These bodies can investigate complaints, make findings, recommend remedies and, in some cases, enforce legal penalties. Examples of common rights breaches and consequences include:
• Privacy breaches – Under the Privacy Act 1988 (Cth) and New South Wales privacy laws, organisations can be investigated, fined and ordered to compensate
individuals for unauthorised disclosure of personal information. • Discrimination – Breaches of antidiscrimination laws (e.g. the AntiDiscrimination Act 1977 (NSW), Racial Discrimination Act 1975 (Cth)) can result in orders to pay damages, apologise or change policies. • Workplace rights – Breaches of fair work laws can result in penalties, orders for back payment and enforceable undertakings.
Figure 7.3.1 Police detain a music festival patron on suspicion of drug possession.
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MEDIA 7.3.1 NSW Police lost a huge strip search lawsuit. It has national implications Vicki Sentas, The Conversation, 2 October 2025 video
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This week, the Supreme Court of New South Wales delivered a landmark judgment (Meredith v State of New South Wales (No 5) [2025] NSWSC 1133) against the NSW Police Force for unlawful strip searches. The class action was brought by lead plaintiff Raya Meredith on behalf of all people unlawfully strip searched at music festivals between July 2016 and July 2022.
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class action a claim by seven or more people who have suffered similar losses or injuries; usually brought together and resolved via a single case
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The court found Meredith’s strip search was unlawful. It also found there was “a gross failure” by police to follow the law, caused by “wholly inadequate” training and supervision of police in the exercise of strip search powers. This resulted in “a flagrant disregard of the rights of the plaintiff”.
Writing focus 7.3 Conjunctions note taking (subordinating – contrast)
With currently more than 3,000 people involved in the class action, this win is likely to have a quizincluding potential questions download word significant impact on them too, payouts.
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This is the largest class action against police in Australia, and the first to clarify the law on strip searches. The findings apply to strip searches more broadly, beyond music festivals. While it’s about NSW law, it’s a lesson to police forces across Australia about what to stop doing now.
The rules of strip searches
In NSW, police can only strip search a person in the field if they suspect, on reasonable grounds, the strip search is “necessary for the purposes of the search” and that “serious and urgent” circumstances make it necessary. But as my 2019 co-authored research and the Law Enforcement Conduct Commission’s 2020 report shows, rules weren’t always being followed. Police have been improperly strip-searching people for years on the basis that they were suspected of possessing a prohibited drug, or only because a drug dog showed interest.
The court unequivocally said this is unlawful. This is what happened to Raya Meredith at the Splendour in the Grass musical festival in 2018.
“Total loss of liberty”
After a drug detection dog sniffed in her direction and then moved on, Meredith was taken to a makeshift cubicle. A personal (pat) search found nothing, but police then directed her to remove her clothing and lift her breasts. Police also directed her to remove her tampon while a female officer inspected her vagina.
After being directed to bend over naked, a male officer entered the search cubicle without warning.
The court said this was an egregious harm to Meredith’s privacy, dignity and bodily integrity that caused her significant humiliation, degradation, fear, distress and a total loss of liberty. Police broke mandatory safeguards to protect privacy, including to conduct the least invasive search possible and not question during the search. These rendered the strip search unlawful.
None of the officers who conducted strip searches that day made any record why the strip search was necessary, serious or urgent, or whether safeguards were complied with. Along with the drug dog detection sniff, one officer recorded that Meredith “had a smoke with a joint that morning”. Justice Yehia found Meredith never said this: it was likely a mistake by the officer. For more than two years, the state denied Meredith’s account of what happened and insisted the search was lawful. Then just before the hearing, the position changed, with NSW Police admitting the search was unlawful on some grounds.
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Yet the state maintained there were serious and urgent circumstances that justified it. For example, they relied on statistics about the number of hospitalisations for overdoses and deaths, arrests for drug offences and the fact music festivals are known locations for recreational drug use. Justice Yehia rejected these grounds. These general police experiences and contexts don’t meet the “serious and urgent” tests. It could not be seriously suggested, the judge said, that smoking cannabis before the festival (which Meredith had not) justified a strip search to prevent drug-related harm to her.
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Institutional failure The judgment gives detailed evidence of the systemic failures of NSW Police. In sum, NSW Police’s education, training and monitoring of police conducting strip searches were “wholly insufficient”.
This case grew out of years of advocacy by Redfern Legal Centre for their clients, resulting in sustained criticism of police strip searches, including in academic research, the NSW State Coroners Court, and the Law Enforcement Conduct Commission’s inquiry. The court also found “exemplary damages” should be awarded for systemic police failures, but deferred decision on the amount to a later date. This means hundreds of millions of damages could be paid out to those who signed up to the class action. The NSW government ignored the commission’s 2020 recommendations for law reform, deferring to police. It now faces major legal and financial consequences.
For other Australian jurisdictions, the judgment should be a persuasive checklist for interrogating how their police forces are interpreting and following their own specific laws. This class action forces public police accountability. The question though, is whether the state and NSW Police will simply see it as the cost of doing business.
ANALYSIS 7.3.1
Read Media 7.3.1 and answer the following questions.
1. 2. 3. 4.
Explain why Meredith v State of New South Wales (No 5) [2025] NSWSC 1133 was considered to be a landmark case. What do you understand by the notion of a class action? Summarise the reasons why the NSW Police Force lost this case. Explain why the court held that Meredith’s search caused egregious harm to her personal rights.
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Review 7.3 questions
1. Outline the major legal consequences for organisations that violate citizens’ rights under New South Wales and broader Australian law. 2. What type of financial consequences can be imposed on legal entities that breach individual rights? 3. What do you understand by the notion of reputational consequences? How do these affect those organisations that are found to have breached the rights of others? 4. What is regulatory oversight? How does it ensure that citizens’ rights are protected under Australian law? Go online to assign and download questions, view results and more!
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End of chapter Revise and consolidate your learning with these online tools: •
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Chapter summary • • • •
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Rights are entitlements protected by law or moral authority, ensuring fair, respectful and equal treatment. Responsibilities are legal or moral obligations to act or refrain from certain acts. Rights and responsibilities are interconnected; for example, schools must accommodate students with disabilities. Duty of care is owed to those affected by one’s actions, as established in Donoghue v Stevenson. Employers have a duty of care to provide a safe and healthy working environment, including mental health such as in Karlene Chandler v Westpac Banking Corporation. Rights in New South Wales stem from legislation, common law, the Australian Constitution, administrative law and human rights bodies. Examples of New South Wales legislation that serve to protect the rights of New South Wales citizens include the Anti-Discrimination Act 1977, Crimes Act 1900, and Health Records and Information Privacy Act 2002. Australia is party to various international treaties that influence its domestic legislation. A good example of this includes the Convention on the Rights of the Child (1989). Legal consequences for a breach of citizens’ rights include compensation, injunctions, criminal penalties and administrative sanctions. Financial consequences for a breach of individual rights can include fines, legal costs and compensation payments. Reputational consequences of a legal entity breaching the rights of citizens can result in non-legal outcomes such as increased public scrutiny, a loss of business and/or a lowering of staff morale. Balancing individual rights with state needs involves tensions in areas such as national security, public health, law enforcement, freedom of expression and economic rights. Mechanisms for balancing the interests of the individual and the needs of the state include judicial review, legislative oversight, public debate and international human rights standards.
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Multiple-choice questions 1. Which of the following best describes a “right” as outlined in the chapter? A. A privilege given to certain groups only B. An entitlement protected by law or moral authority ensuring fair, respectful and equal treatment C. A rule that must be followed by everyone D. A personal opinion
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2. According to the chapter, what is the main relationship between rights and responsibilities? A. They are completely unrelated. B. Responsibilities always override rights. C. Rights and responsibilities are interconnected. D. Responsibilities only apply to employers.
3. Which court case established the general principle of duty of care in Australia? A. Mabo v Queensland (No 2) [1992] HCA 23 B. Donoghue v Stevenson [1932] AC 562 C. Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115 D. Marbury v Madison 5 U.S. (1 Cranch) 137 (1803)
4. Which of the following is not listed as a consequence for breaching citizen rights? A. Compensation B. Promotion C. Criminal penalties D. Loss of business
5. How does Australia balance individual rights with state needs, according to the chapter? A. Through strict government control only B. By way of judicial review, legislative oversight, public debate and international human rights standards C. By ignoring international treaties D. Only by using administrative law
Short-answer questions
1. From where do legal rights in New South Wales originate?
2. Why are the balancing of individual rights and state needs so difficult in our society? 3. Give three examples of statutes that have been designed to protect citizen rights. 4. Explain the significance of judicial review in the protection of rights.
Extended-response question
Video 7.4.1 Answering an exam question
Analyse the legal interrelationship between rights and responsibilities in New South Wales, discussing how legal principles – such as duty of care and anti-discrimination – are implemented through legislation, common law and international treaties, and evaluate the consequences of breaches for both individuals and organisations.
Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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Chapter 1: Health of Australians
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PART
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Focus area: Disputes under the law 25 INDICATIVE HOURS OF COURSE TIME OUTCOMES
In this focus area, the student: • • • • • •
describes legal principles and judicial processes used in the legal system explains the role, formation and reform of law explains methods to resolve conflict and encourage cooperation between individuals, groups and nation-states analyses legal issues to determine the extent to which the law achieves justice for individuals, groups and society uses and analyses a range of sources to assess the effectiveness of the law in addressing issues uses legal concepts to communicate information and legal reasoning to form a judgement.
CHAPTERS
8. Criminal law 9. Civil law 10. Disputes with the state
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CHAPTER
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8
Criminal law
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: describe the purpose and characteristics of criminal law outline the elements of a crime describe the different types of crime define what is meant by “burden of proof” and “standard of proof” identify the burden of proof and standard of proof in criminal law describe the procedures in New South Wales criminal courts explain why legal representation is important in criminal cases describe the roles of legal personnel and the jury in a criminal trial describe the different types of punishments and their aims explain the key concepts of justice as illustrated in the case R v Dawson [2022] NSWSC 1131.
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• • • • • • • • • •
RELEVANT LAW
IMPORTANT LEGISLATION
Crimes Act 1900 (NSW) Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) Crimes Amendment (Intimate Images) Act 2017 (NSW) Summary Offences Act 1988 (NSW) Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Young Offenders Act 1997 (NSW) Criminal Assets Recovery Act 1990 (NSW)
Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW) Jury Act 1977 (NSW) Evidence Act 1995 (NSW) Legal Aid Commission Act 1979 (NSW) Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
SIGNIFICANT CASES
Swan v The Queen [2020] 269 CLR 663 R v Thomas Sam; R v Manju Sam (No 18) [2009] NSWSC 1003 Boughey v The Queen (1986) 161 CLR 10 Campbell [2014] NSWCCA 102 Burns v The Queen [2012] HCA 35 R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58 Dietrich v R (1992) 177 CLR 292 R v Dawson [2022] NSWSC 1131
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8.1 The purpose and characteristics of criminal law LEARNING OBJECTIVE 8.1
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DESCRIBE the purpose and characteristics of criminal law.
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Writing focus 8.1 Question words note taking
crime an act or omission against the community at large that is punishable by the state
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The purpose of criminal law is to maintain social order, protect the community and provide a framework for dealing with unlawful conduct. It is distinct from civil law, as it involves offences committed against the state, or society as a whole, rather than disputes between private individuals. The Australian Legal Dictionary says the purpose of criminal law is to “outlaw any conduct which violates the rights of the community scorcher at large, punishable by a recognised criminal sanction upon proof of guilt in a criminal proceeding initiated and presented by officers of the Crown or its agencies”.
There is no definition, however, that tells the community what actually constitutes criminal behaviour and activity. If a person wanted to know if certain behaviour was a violation of the law, they would be none the wiser by the definition provided. This is because a crime is any act that lawmakers in a particular society have deemed to be criminal, which in itself may cause injustice. As such, the nature of what is criminal is determined by the values and beliefs of each society: its sense of public morality, which informs and guides conduct or behaviour that causes offence, harm or injury to an individual and hence to the community at large.
Many countries and societies have different views about what kinds of acts society needs to be protected from and which acts should be considered criminal. Culture, history, legal traditions, social attitudes, religious beliefs and political systems are all factors in every society that combine to determine how crime is defined and punished. In other words, what one society deems a crime, another may not. This often results in frustration with the legal system. For example, the act of murder is considered a crime throughout the world, though with varying definitions and qualifications. However, other acts, which are entirely legal in Australia, such as sex outside marriage or the consumption of alcohol, are deemed crimes in other societies. One important characteristic of criminal law is that it is constantly evolving as values and understanding change over time. For example, for centuries the practice of witchcraft was considered a serious offence punishable by death throughout Europe. As society’s attitudes evolved, the position was eventually reversed in Great Britain with the introduction of the Witchcraft Act 1735, 9 Geo II, c 5, which removed the offence of witchcraft and instead made it a crime to pretend to practise acts of witchcraft. In Australia today, such acts would be governed by consumer protection regulations that protect against fraudulent activity.
Similarly, new crimes are often created where none existed before. For example, the Crimes Amendment (Computer Offences) Act 2001 (NSW) introduced a new part titled “Computer Offences” to the Crimes Act 1900 (NSW). The Commonwealth Copyright Amendment Act 2006 (Cth) also introduced a number of new offences aimed at dealing with the growing problem of internet piracy and copyright infringement. The Copyright Amendment (Online Infringement) Act 2015 (Cth), which commenced in June 2015, is a further amendment to the Copyright Act 1968 (Cth). It introduces new laws to give rights holders who discover
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infringing material online a way of requiring carriage service providers to take reasonable steps to block access to the content, via an injunction from the Federal Court.
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More recently, and with a greater understanding of the link to coercive control and escalation into domestic violence related offences, the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) was introduced. The Act makes coercive control in current and former intimate partner relationships a criminal offence. Digital harassment and the non-consensual distribution of images have become problematic for many Australians, leading to the introduction of the Crimes Amendment (Intimate Images) Act 2017 (NSW). Criminal law has a number of important characteristics that distinguish it from other areas of the law:
Figure 8.1.1 The Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) makes coercive control in current and former intimate partner relationships a criminal offence.
• Criminal law is about protecting society. A crime is punishable by the state because it is an offence against society as a whole. This differs from civil law, which relates primarily to the rights and responsibilities of individuals. • Criminal actions can include crimes against a person, the state and/or property. The law provides for the state to take legal action against an accused; that is, to prosecute them in a court of law to achieve some type of punishment or sanction. • The decision to prosecute the offender in court is made by the police and/or the Director of Public Prosecutions. They are known as the state or the Crown, and the offender is known as the defendant or the accused. This differs from civil law, where an action against the alleged perpetrator is brought before the courts by an individual who is affected (the plaintiff). • The Crown must prove its case beyond reasonable doubt. If any other reasonable conclusion besides proving the criminal charges can be drawn from the evidence, there is reasonable doubt. If there is any doubt as to the guilt of the defendant, a “not guilty” verdict must be given. This differs from civil law, where a much lower standard of proof is required (the balance of probabilities). • The aim of criminal law is to protect the community and to provide a sanction or punishment to an offender who is found guilty by a court of law. This differs from civil law, where the aim is to address the defendant’s wrong by way of a remedy or court order in favour of the plaintiff.
accused the person or alleged offender charged with having committed a criminal offence, also known as the defendant prosecute when the Crown or state takes action against an accused person in a court of law Crown the state party that commences a criminal action in a court of law; in New South Wales, the action is usually commenced by the Director of Public Prosecutions; if the alleged crime is against a federal criminal law, the action is usually commenced by the Commonwealth Director of Public Prosecutions
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Recall the purpose of criminal law. Identify two recently created criminal law amendments in New South Wales. Discuss the nature of influences that determine criminal laws. Compare how criminal and civil laws are handled in court. Go online to assign and download questions, view results and more!
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8.2 Elements of a crime scorcher
LEARNING OBJECTIVE 8.2 OUTLINE the elements of a crime.
In New South Wales, the Crimes Act 1900 (NSW) is the main body of law that defines and sets the penalties for the major, traditionally understood, serious crimes (known as indictable offences) against people, property and public order. It encompasses the critical elements of a crime that must be considered to determine if a crime has been committed.
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actus reus (Latin) “guilty act” thatdownload refers to the pdf physical act of carrying out a crime
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mens rea (Latin) “guilty mind”, meaning that the accused intended (to some degree) to commit the crime, knowing their actions were wrong
Before a criminal act can be brought to trial, the police and prosecutors need to prove that the elements of the particular offence are present. There are two fundamental elements applicable to most offences: • that the accused person actually committed the crime (actus reus) • that the accused person sufficiently intended to commit the crime (mens rea).
Actus reus
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Writing focus 8.2 Conjunctions note taking – (subordinating reasons why)
Actus reus is a Latin term meaning “guilty act” and refers to the physical act of carrying out the crime. The prosecution must prove that the accused did in fact carry out the relevant act required for the crime. Physical evidence and witness testimony can helpscorcher the prosecution prove that it was the accused that carried out the act. This is often the easiest element for the prosecution to prove. The actus reus must be a voluntary act but can also include an omission or failure to act, particularly in cases of criminal negligence, if the accused failed to take a course of action when they had a duty to do so.
Mens rea
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Video 8.2.1 Actus reus and mensdownload rea (01:30) pdf
Mens rea is a Latin term meaning “guilty mind” and refers to the mental state of the accused. In order for the prosecution to succeed, it must be able to prove that, to the necessary degree, the accused intended to commit the crime.
There is no widely accepted definition for mens rea. One common understanding, however, is that it is the state of mind of a defendant and their knowledge of the facts that make the conduct criminal. In other words, the defendant understood what was happening when the act was committed. Another view is to regard mens rea as the conscious and willing mind that was present in performing a crime. Often, if the police or Crown cannot prove that the defendant acted intentionally, fraudulently, maliciously, negligently, recklessly or willfully, the charge will not be proved. For example, when a person intentionally shoots someone, that person has probably intended to commit a criminal act and cause harm. Whether that person intended to kill or only injure the victim is something that will need to be established. Another situation is when a defendant knows what will happen if they continue certain behaviour but recklessly carries on. For example, the shooter may have been reckless about whether the victim might die from the injuries inflicted. In all cases, except for
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strict liability offences (discussed in section 8.3),
the prosecution must prove that the accused was aware (at least to some degree) that their actions would result in the likelihood of a crime being committed.
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The degree of intention required to prove a crime can differ and will often be specified in the legislation where the crime is defined. The three main levels of mens rea are:
• intention – a clear, malicious or wilful intention to commit the crime. This is the Figure 8.2.1 Shoplifters will be prosecuted sign highest and usually most difficult level of mens rea for the prosecution to prove. • recklessness – an intermediate level of intent where the accused was aware that strict liability offence their action could lead to a crime being committed but chose to take that risk an offence where the mens rea does not need to be anyway. Perhaps the accused wanted to show off or was unable to make a sensible proved; only the actus reus decision. In the case of recklessness, the prosecution will attempt to prove that the (the guilty act) needs to be risk was obvious to a reasonable person and, although the accused knew the risk proved they were taking, they didn’t care about the consequences. recklessness when the • criminal negligence – where the accused fails to foresee the risk where they should accused was aware that their action could lead to a have and so allows the avoidable danger to occur, usually resulting in harm to, crime being committed, but or the death of, another person that the accused had a duty to protect. This is chose to take that course the lowest level of intention for mens rea, but it is still a much higher standard of action anyway than the civil law requires for negligence. An example of a case involving criminal criminal negligence negligence is R v Thomas Sam, referred to in In Court 8.2.1. where the accused fails to
In 2019, 18-year-old Christopher Cassaniti died at the scene of a workplace scaffolding collapse. In 2022, New South Wales District Court Judge Andrew Scotting found the company Synergy Scaffolding Services had put workers in “significant peril” and the collapse was the consequence of a “culmination of events”, including the unauthorised removal of building ties. He fined the company $2 million, after a 10% reduction for the guilty plea. Cassaniti’s parents said the fine was “laughable”, as this amount would not be a deterrent for a big company. They called for New South Wales to introduce industrial manslaughter laws, in line with other states.
foresee the risk when they should have and so allows the avoidable danger to occur
IN COURT 8.2.1
R v Thomas Sam; R v Manju Sam (No 18) [2009] NSWSC 1003
In this case, a father and mother were charged with manslaughter by criminal negligence. The case revolved around the death of the couple’s nine-month-old daughter, who suffered from eczema. The parents had repeatedly rejected conventional medical treatment, and instead relied on ineffective homeopathic treatments, despite the child constantly crying in pain and having broken skin that was oozing fluid. The court found that eczema was medically treatable, yet because treatment was denied the child had unnecessarily suffered and died from the condition. The court found that both
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parents were well educated and should have known to seek appropriate medical treatment for their daughter, which they failed to do. The court also found that the father had a higher duty of care, as he was a trained homeopath with a higher degree of medical knowledge. The judge in the case, Justice Peter Johnson, concluded that it was the “most serious case of manslaughter by criminal negligence” he had ever dealt with.
sentence the sanction imposed by the state in relation to the offender’s criminal conduct (e.g. fines, imprisonment and rehabilitation)
U N SA C O M R PL R E EC PA T E G D ES
The parents were both found guilty of manslaughter and sentenced to imprisonment. On appeal, both sentences were increased, with the father receiving eight years’ imprisonment and the mother receiving a sentence of imprisonment of five years and four months.
Causation
causation the link between the behaviour of the accused and the result (i.e. that the behaviour of the accused actually caused the alleged criminal act)
A further consideration that is relevant when establishing the elements of a crime is causation – proving that there is sufficient causal link between the actions of the accused and the result. This will often be relevant in proving the actus reus and requires the prosecution to prove a substantial link between the act and the crime.
IN COURT 8.2.2
Swan v The Queen [2020] 269 CLR 663
In this case, the High Court extended the law of causation in homicide cases. The court found that in order for someone to be held legally responsible for a homicide, it must be proven beyond a reasonable doubt that the person’s actions were “a substantial or significant cause of the death”. Mr Swan was appealing against a finding that he had murdered Mr Kormilets when he attacked him after breaking into his house. Mr Kormilets suffered significant injuries, and after four months in hospital he was transferred to a nursing home. He died eight months after the initial attack, following a fall in the nursing home. Mr Swan could not have foreseen the fall in the nursing home, but in 2016 he and an accomplice were found guilty of homicide. Mr Swan appealed the decision, but both the Court of Criminal Appeal, and then the High Court, found that the chain of causation had not been broken, and so dismissed Mr Swan’s appeal against the conviction.
REVIEW 8.2 Online quiz
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Review 8.2 questions
1. Explain the difference between actus reus and mens rea. 2. Using a specific crime as an example (e.g. drink-driving, murder, robbery), describe the crime’s actus reus and mens rea. 3. Why is the level of intention explicitly named in some legislation in order to get a conviction? Go online to assign and download questions, view results and more!
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8.3 Types of crime LEARNING OBJECTIVE 8.3 DESCRIBE the different types of crime.
U N SA C O M R PL R E EC PA T E G D ES
Strict liability offences There are particular offences that do not require the prosecution to prove mens rea. For some offences, only the element of actus reus will need to be shown. These offences are known as strict liability offences. video
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A strict liability offence is one where the prosecution only needs to prove that the accused carried out the act and is not required to show that the accused intended to commit the crime. Strict liability offences dramatically lower the level of proof required to achieve a criminal conviction and so lessen an accused’s rights in the criminal process. Because of this, they are generally restricted to minor offences, such as traffic offences or breaches of regulations. For example, a speeding offence is a strict liability offence and as such the police do not need to show that a person intended to break the speed limit (that is, had mens rea); they only have to show that the person did so (committed the actus reus). questions That is, a person onlydownload has to be caught quiz word speeding to incur a fine.
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Another example of strict liability offences is selling alcohol or cigarettes to people under the age of 18 – it does not matter whether the seller knew the buyers were underage; the only thing that matters is that they were underage. Strict liability is applied to offences because of its administrative advantages – for example, to assist the legal system in coping with the daily volume of traffic violations – or to put a greater onus on society to comply with a particular law. In some cases, there can be a defence to strict liability: if the accused can prove the act was an “honest and reasonable mistake”.
Summary and indictable offences
All criminal offences are separated into two important categories, according to their severity: a criminal offence is either a summary offence or an indictable offence. Whether the offence is summary or indictable is crucial to the way the case is prosecuted and heard in court.
Summary offences are considered less serious offences and will usually incur lesser penalties than indictable offences, although they may still have serious consequences. They will be heard and sentenced in the Local Court before a judge and not tried in front of a jury. Penalties may range from a bond or fine to a jail sentence of up to two years, or five if a person is convicted of more than one offence. Many summary offences are listed in the Summary Offences Act 1988 (NSW); they include regulatory offences. Indictable offences are more serious offences, such as assault, and are generally heard in the District Court. An initial committal hearing will be held in the Local Court, where a judge will determine whether the prosecution’s evidence is sufficient to go to trial. Indictable offences will then be heard and sentenced by a judge or, where a “not guilty” plea is entered, before a judge and jury.
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Many indictable offences will also be “triable summarily”. This means that the accused will be able to choose to have the case heard by a judge in the Local Court or a judge and jury in the District Court. Cases heard in the Local Court can have significant administrative advantages, such as an earlier hearing date, a faster hearing, less formality and cost, and the possibility of a lesser sentence due to Local Court restrictions on maximum sentences. However, where a “not guilty” plea is entered, the District Court offers the advantage of a jury trial, which might be more inclined to acquit, although this would not be guaranteed.
U N SA C O M R PL R E EC PA T E G D ES
The main differences between summary and indictable offences are outlined in Table 8.3.1. Table 8.3.1 A comparison of summary and indictable offences Summary offence
Indictable offence
Less serious offence tried by a judge in the Local Court
More serious offence (such as murder or rape) tried by a judge and jury
Judgment and punishment determined by a judge
Judgment determined by a jury, punishment determined by a judge
Charge usually laid by a police prosecutor or a government officer
Charge brought by a public prosecutor working for the state
Punishment usually less severe, such as a fine or community corrections order
Punishment usually imprisonment or a hefty fine
Crimes against people
homicide the unlawful killing of a human being
Offences against the person involve some form of harm or injury to an individual. Because there are so many ways that someone can cause injury to another person, these types of crimes are predominantly divided into three main areas, each including numerous offences: homicide, assault and sexual offences.
Homicide
In the criminal justice system, homicide is defined as the unlawful killing of another person. This includes both deliberate and accidental acts of killing, with varying degrees of mens rea applicable. In a homicide case, causation must be established between the actions of the accused and the death of the victim.
murder the deliberate killing of a person
manslaughter the killing of a person in a manner that is considered to be less intentional than murder infanticide the death of a baby under the age of 12 months at the hands of its mother
There are four main categories of homicide in New South Wales law: murder, manslaughter, infanticide and dangerous driving causing death. Murder
Murder is the most serious homicide offence and is punishable by life imprisonment. In order to prove in court that a killing was murder (that is, directly related to the actions of the accused), the prosecution must show that at least one of the following exists:
• the accused intended to deliberately kill the victim • the accused set out to inflict serious bodily harm, which resulted in death • the act was done with reckless indifference to another human life; that is, the doing of an act with the foresight of the probability of death arising from that act • the act was done while committing or attempting to commit another serious crime punishable by life or 25 years’ imprisonment.
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The third of these elements is usually the hardest to prove. In Boughey v The Queen (1986) 161 CLR 10, a doctor strangled his wife during a sex “game”. The court held that there was a substantial or good chance of harm, that Boughey had the knowledge and capacity to know better, and that the act constituted a “reckless indifference to human life”. Boughey was convicted of the murder. See also Campbell [2014] NSWCCA 102.
U N SA C O M R PL R E EC PA T E G D ES
Murder is one of the most serious crimes possible and attracts some of the harshest penalties. As a result, murder cases often receive a great deal of media attention as the impacts of these crimes for victims, their families and the community are devastating. In reality, murder is rare. The murder rate per person in New South Wales is one of the lowest in Australia, and in the 12 months to March 2026 there were 87 murders recorded in New South Wales. Of those 87 murders, 33 were family violence-related incidents. According to the Australian Institute of Criminology, most murder victims are killed by a family member or friend, and up to 43% of all homicides are domestic violence related. Manslaughter
Manslaughter is the second type of homicide. It differs from murder in the intent of the accused. Manslaughter involves a reduced level of intent and is punishable by up to 25 years’ imprisonment. A person may be charged with manslaughter where it cannot be proved that they intended to kill the victim to the degree required for murder. For example, in Burns v The Queen [2012] HCA 35, the accused, Burns, was a participant in a methadone program conducted by a Sydney clinic. Burns had made a business of selling some of her methadone to friends and acquaintances. On one occasion, she sold methadone to a person who died after taking the drug. The deceased person’s body was discovered in a toilet block behind Burns’ unit. The deceased had died as a result of using a prescription drug combined with the methadone provided by Burns. Subsequently, Burns was convicted of manslaughter. There are three main types of manslaughter:
• Voluntary manslaughter occurs when a person kills with intent, but there are mitigating circumstances (such as the partial defence of extreme provocation), which reduces their culpability from murder to manslaughter. • Involuntary manslaughter is the killing of a person where the death occurred because the accused acted in a reckless or negligent way, but without intention to kill the person. The prosecution only has to prove that the accused deliberately and consciously performed the act that caused the death. It does not need to show that the accused intended to cause death or serious injury. However, the act must have been carried out in a way that fell far below the standard of care expected of a reasonable person and involved such a high risk of causing death or serious injury that it deserved criminal punishment. • Constructive manslaughter is the killing of a person while the accused was carrying out another dangerous or unlawful act. The manslaughter is “constructed” from the other unlawful act. For example, where a person assaults another person without intention to kill or inflict serious bodily harm, but death results, then the death may be construed as manslaughter.
voluntary manslaughter the killing of a person where the accused intended to kill or was reckless about killing someone but there were mitigating circumstances extreme provocation the defence where the defendant claims that their actions were a direct result of another person’s actions, which caused them to lose control of their own actions mitigating circumstances circumstances that make an offence less severe; they can lead to a reduced sentence involuntary manslaughter the killing of a person where the death occurred because the accused acted in a reckless or negligent way without intending to kill constructive manslaughter the killing of a person while the accused was carrying out another dangerous or unlawful act
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Infanticide
U N SA C O M R PL R E EC PA T E G D ES
Infanticide is a special category of manslaughter that applies to the death of a baby under the age of 12 months at the hands of its mother. The Crimes Act 1900 (NSW) requires that the court take into account the state of mind of the mother at the time she committed the crime. Many women suffer from a condition called post-natal depression after the birth of a child. If the accused is found to have been suffering from this condition when she killed her baby, it can be seen as a mitigating circumstance. Dangerous driving causing death
Dangerous driving occasioning death is another type of manslaughter. It occurs when a person drives in an unsafe and reckless way, such as under the influence of alcohol or a drug, or at excessive speed, and in so doing causes the death of another human being. A conviction for this crime carries a maximum penalty of 10 years in prison. However, if the offence is aggravated by certain circumstances the penalty can be as much as 14 years’ imprisonment.
assault a criminal offence involving the infliction of physical force or the threat of physical force
common assault where there is no actual physical harm to the person assaulted; it includes threatening to cause physical harm to another person
Figure 8.3.1 One of the cars involved in a crash on the Harbour Bridge is taken away on the back of a safety vehicle on 27 August 2020 in Sydney, Australia.
RESEARCH 8.3.1
Go online and search for two high profile homicide cases. Draw up a table and identify the following: • • •
the case name and court reference the charges brought against the defendant and the relevant facts of the case the actus reus and mens rea for each case.
Assault Assault is the most common form of crime against the person. Assault includes the offence of causing physical harm to another person and of threatening to cause physical harm to another person (known as common assault). Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Physical assault is a direct act in which force is applied to another person’s body unlawfully and without their consent and is punishable by up to five years’ imprisonment (or seven years’ imprisonment, depending on the location of the assault and the identity of the victim). A threat to cause physical harm can also be a form of assault where it causes the victim to fear immediate and unlawful violence – threatening phone calls, text messages or emails might constitute such a form of assault.
U N SA C O M R PL R E EC PA T E G D ES
Sexual assault
Sexual assault is a type of assault where someone is forced into sexual intercourse
against their will and without their consent. It was formerly known in common law as “rape”. The definition of sexual assault includes where consent is withdrawn during the act of sexual intercourse. Sexual intercourse is defined broadly in the Crimes Act 1900 (NSW) to include different types of sexual acts including oral sex and penetration. Sexual assault can occur to both men and women. Although the majority of such assaults are against women, it is suggested that there are more male victims than is shown by statistics. Victims’ fear of reporting the crime is a serious problem in cases of sexual assault. Lack of consent is central to the crime of sexual assault and is defined in detail in the Crimes Act 1900 (NSW). It states that a person is not consenting where they are:
• substantially intoxicated by drugs and alcohol and therefore lack the capacity to consent • intimidated or coerced into the act • if the accused is abusing their position of trust or authority over the victim.
sexual assault when someone is forced into sexual intercourse against their will and without their consent sexual intercourse broadly defined in the Crimes Act 1900 (NSW) to include oral sex or penetration of the vagina or anus by any part of another person’s body or by an object manipulated by another person indecent assault an assault and “act of indecency” on or in the presence of another person without their consent
Further reforms to consent laws were introduced by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). In addition to the times when a person cannot legally give consent, the new laws now require parties to give and obtain consent at the “time of the act”. Sexual assault is one of the least reported crimes and has a low conviction rate due to the difficulty of proving consent. (See Chapter 14 Sexual Assault for the key issues that make sexual assault problematic to prosecute and get a conviction.)
Aggravated sexual assault
The crime of aggravated sexual assault will be applicable where there are aggravating circumstances, such as where violence is used, the victim is under 16 years old or the victim has a serious physical or intellectual disability. A child under the age of 16 is not legally able to give consent. Indecent assault
Indecent assault is another type of sexual offence, where the accused commits an
assault and “act of indecency” on or in the presence of another person without their consent. “Indecent act” is not defined in the Crimes Act 1900 (NSW) but it includes assaults with a sexual element. This offence covers many sexual acts that are not included under the offence of sexual assault, such as touching the genitals or other parts of the body in a sexual manner without the person’s consent.
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Aggravated sexual assault in company
The most serious sexual offence in New South Wales is aggravated sexual assault in company. Punishable by the highest criminal sanction of life imprisonment, the offence is viewed by the law as equivalent in seriousness to murder. The offence includes the elements of sexual assault but is performed with another person or people present together with either depriving the victim of their liberty or the infliction or threatened infliction of bodily harm. The offence of aggravated sexual assault in company was introduced in New South Wales in 2001 following a series of so-called “gang rapes” across Sydney’s inner west that led to a public outcry for reform of the law.
U N SA C O M R PL R E EC PA T E G D ES
aggravated sexual assault in company sexual assault performed with another person or people present together with aggravating circumstances
IN COURT 8.3.1
R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58
Video 8.3.1 Aggravated sexual assault in company (03:33)
In New South Wales, the catalyst for the introduction of the law of “aggravated sexual assault in company” was the case of R v AEM. The facts of the case of R v AEM are three men (two brothers and their cousin, who were 19, 16 and 16 years old respectively at the time of the crime) lured two 16-year-old girls to the offenders’ home in Villawood. The girls were then forcibly detained and sexually assaulted over a period of several hours. The girls were threatened with knives and were verbally threatened with death. At the time, the only applicable crime was aggravated sexual assault: the highest penalty for this was 20 years’ imprisonment. The men were originally sentenced to five to six years’ imprisonment each.
robbery when property is taken directly from a victim, usually forcefully
break and enter commonly known as burglary, break and enter offences usually occur when a person enters a home with intent to commit an offence
The abhorrent nature of these crimes led to a public outcry over the existing rape laws, which were thought by a large segment of the public to be too lenient given the nature of the men’s crimes. Following the case, the New South Wales Parliament moved quickly to introduce new laws and tougher penalties, creating a new offence of “aggravated sexual assault in company” in section 61JA of the Crimes Act 1900 (NSW). The new offence carries a maximum penalty of life imprisonment, equivalent to that for murder. Notably, on appeal by the Crown in 2002, the judges decided to significantly increase the offenders’ original sentences, substituting them with 13 to 14 years’ imprisonment each.
Crimes against property
In New South Wales, there are a range of offences against property. The three main types of offence against property are larceny, robbery and break and enter.
Larceny
Figure 8.3.2 Theft from a motor vehicle is an example of larceny.
arceny is the most common property offence and is more commonly known L as “theft” or “stealing”. It is also one of the economic offences that people are most likely to fall victim to at some time in their lives. Larceny occurs when one or more people intentionally take another person’s property without their consent and without the intention of returning it. One of the most common forms of larceny is shoplifting. The offence of larceny is punishable by up to five years’ imprisonment, depending on the type of larceny involved.
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Robbery Robbery is a more serious offence than larceny. Robbery occurs when the use of force is present in the act of stealing goods or when property is taken directly from a victim. If the robbery is accompanied by the use or threatened use of a weapon, the crime is called “armed robbery” and will carry an even higher sentence.
Break and enter
embezzlement when a person steals money from a business over a period of time while they are employed at that workplace
U N SA C O M R PL R E EC PA T E G D ES
Break and enter is another common economic crime, also known as “burglary”. The term refers to a series of offences in the Crimes Act 1900 (NSW) that generally occur when a person enters a room or building, such as a private residence, with the intention of committing an offence. Usually, the offender will be doing so with the intention to commit another property offence, such as larceny.
white-collar crime a general term for various non-violent crimes associated with professionals or businesspeople, such as embezzlement, tax evasion or insider trading
White-collar crime
White-collar crime is a general term given to various non-violent crimes associated with
the unlawful acquisition or deprivation of property (usually money or assets) through non-violent means. It is usually committed by businesspeople or professionals who are in a position of trust and have opportunity to carry out these crimes. White-collar crime is considered a crime against property, but such crimes are often difficult to detect and can be time-consuming and expensive to investigate. Three of the most common white-collar crimes are embezzlement, tax evasion and insider trading.
tax evasion an attempt to avoid paying the full amount of taxes due by, among other things, concealing or underestimating a person’s or business’s income or assets insider trading when a person illegally trades on the share market to their own advantage using confidential information
Figure 8.3.3 Defence lawyer Robert Heathcote outside the Supreme Court in Sydney, 15 April 2005. He represented Ray Williams, the former chief executive of HIH Insurance, who was jailed for four-and-a-half years for white-collar crimes.
MEDIA 8.3.2
New South Wales Recorded Crime Statistics, March Quarter 2026 NSW Bureau of Crime Statistics and Research Every three months, the NSW Bureau of Crime Statistics and Research releases a data report from the NSW Police Force’s Computerised Operational Policing System (COPS).
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Table 8.3.2 Recorded criminal incidents for major offences, all NSW, 2022 to 2026 Offence category
12 months to March 2023
12 months to March 2024
12 months to March 2025
12 months to March 2026
2 Year Trend
10 Year Trend
61
49
71
80
87
Stable
Stable
Domestic violence related assault
32,357
34,618
36,808
38,217
38,314
Stable
Up 3.1%
Non-domestic violence related assault
28,132
32,421
34,998
34,627
34,073
Stable
Stable
Sexual assault
8,061
9,710
10,787
12,275
13,089
Stable
Up 10.2%
Sexual touching, sexual act and other sexual offences
7,625
8,484
8,198
8,788
8,829
Stable
Up 2.3%
Robbery
1,714
1,897
1,953
1,906
1,750
Down 8.2%
Down 3.3%
Break and enter dwelling
17,445
19,025
20,426
18,829
17,999
Stable
Down 5.3%
Break and enter non-dwelling
7,258
7,563
8,666
8,209
7,782
Stable
Down 4.2%
Motor vehicle theft
10,596
12,865
14,591
15,055
14,518
Stable
Up 1.1%
Steal from motor vehicle
27,472
27,432
28,710
26,120
25,054
Stable
Up 5.2%
Steal from retail store
17,588
24,357
27,606
28,947
31,588
Up 9.1%
Up 3.2%
Other stealing offences
34,956
36,350
39,269
38,065
39,264
Up 3.1%
Down 3.8%
Malicious damage to property
48,405
49,093
49,617
48,214
47,034
Stable
Down 3.1%
U N SA C O M R PL R E EC PA T E G D ES
Murder
12 months to March 2022
Source: Bureau of Crime Statistics and Research (BOCSAR) Recorded Crime Statistics, quarterly update March 2026
ANALYSIS 8.3.1
1. Refer to Table 8.3.2. What crimes have increased the most in the last five years? What reason’s might be responsible for this?
REVIEW 8.3 Online quiz
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Review 8.3 questions
1. Describe the key characteristics of a summary offence and of an indictable offence. 2. Identify some of the advantages and disadvantages for an offender having their case heard as a summary offence instead of an indictable offence. 3. Outline the difference between murder and manslaughter. 4. Why has the law provided for varying degrees of manslaughter? Explain their differences in regard to the required mens rea. 5. What law reform was instigated as a result of the R v AEM case in 2002? 6. Most property crimes involve the deprivation of one’s property by another person. What is the main distinction of property offences in regard to mens rea? 7. How does white-collar crime differ from other property crimes? Go online to assign and download questions, view results and more!
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8.4 Burden and standard of proof in criminal law LEARNING OBJECTIVE 8.4 DEFINE what is meant by “burden of proof” and “standard of proof”. IDENTIFY the burden of proof and standard of proof in criminal law. widget
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U N SA C O M R PL R E EC PA T E G D ES
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Writing focus 8.4 Noun phrases note taking (identify and develop)
Central to the criminal justice system is the principle that a person is innocent until proven guilty in a court of law. In practice, this means that it is the responsibility of the prosecution to prove in court that the accused committed the offence they have been charged with. This is known as the burden of proof: the burden (or onus) is on the prosecution to prove the case.
The accused defendant is presumed innocent until proven guilty. They are not required to prove their innocence. Thequiz defence’s role isquestions simply to challenge the prosecution’s download word case and demonstrate that the required standard of proof has not been met.
Exception (reverse onus): in rare cases, usually involving a specific statutory defence (such as self-defence or mental impairment), the defendant may have an evidential burden (the duty to raise enough evidence to satisfy that they have met the required test for someone to have acted in self-defence or that at the time of the offence they were mentally impaired).
burden of proof in criminal matters, the responsibility of the prosecution is to prove the case against the accused standard of proof the level of proof required for a party to succeed download pdf in court beyond reasonable doubt the standard of proof required in a criminal case for a person to be found guilty
The prosecution must also meet the standard of proof for criminal matters: they must prove the case beyond reasonable doubt. This means that, to succeed, the prosecution must show that there is no reasonable doubt that the accused in fact committed the offence. The burden and standard of proof are essential to criminal proceedings and essential to achieving justice in criminal law. Due to the severe consequences if an innocent person is found guilty, the standard for criminal law is much higher than the standard for civil law.
Generally, the Director of Public Prosecutions will not bring a case before the courts unless it feels that a jury will be Figure 8.4.1 The standard of proof “beyond reasonable doubt” is codified in section 141 of the Evidence Act convinced by the evidence and convict the accused. Criminal trials cost time, money and other resources, so it is important 1995 (NSW). that the case is winnable. The evidence and arguments must be sufficient to convince the jury of the case beyond any reasonable doubt.
RESEARCH 8.4.1
The standard of proof in a criminal case is “beyond reasonable doubt”. This is codified in section 141 of the Evidence Act 1995 (NSW). The application of what this means when applied a criminal trial has been tested over time. Several landmark cases have tested what it means, how it should be explained to a jury and when a judge is allowed to step in if they believe the standard has not been met. Research the following High Court cases in regard to the standard “beyond reasonable doubt”, outline the issue, the ruling and the significance in expanding the understanding of how to apply the standard: • •
Green v the Queen (1971) 126 CLR 28 M v the Queen (1994) 181 CLR 487
• •
Doney v the Queen (1990) 171 CLR 207 R v Dookheea (2017) HCA 36.
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REVIEW 8.4 Online quiz taking note
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Review 8.4 questions
U N SA C O M R PL R E EC PA T E G D ES
1. Explain what is meant by “burden of proof” and who is responsible for it. 2. Explain what is meant by “standard of proof”. 3. Explain why evidential burden might shift to the defence. Go online to assign and download questions, view results and more!
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8.5 Procedures in NSW criminal courts LEARNING OBJECTIVE 8.5
DESCRIBE the procedures in New South Wales criminal courts. EXPLAIN why legal representation is important in criminal cases.
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Writing focus 8.5 Transitional note taking phrases
The procedures in New South Wales criminal courts are largely determined by the type of offence: summary (less serious) or indictable (more serious). All criminal matters commence in the Local Court, which hears approximately 95% of all criminal cases. Only a small percentage are heard in the District Court or Supreme Court, but these are the ones that generally get media attention, particularly in the most serious scorcher of cases. (The criminal jurisdiction across the hierarchy of criminal courts will be discussed in the Year 12 textbook.) Both civil and criminal matters in Australia are heard using the adversarial system of law, where two opposing sides (“adversaries”) present their own positions, and an impartial judge or jury determines the truth in the case.
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plea a formal statement of guilt or innocence by the accused
charge negotiation an agreement between the Director of Public Prosecutions and the accused that involves the acceptance of a guilty plea, usually in exchange for a lesser charge or some other charges being withdrawn
In criminal law the adversarial system pits the prosecution representing the state against the accused. The accused’s guilt or innocence is determined based on the evidence and arguments presented. The procedures will differ depending on whether the matter is a summary offence, heard in the Local Court, or an indictable offence, heard in either the District Court or Supreme Court. Cases in the Local Court do not have juries, so the decision is made by a judge alone. Juries are used in the District Court and the Supreme Court, although in some cases the accused has the option to have the matter heard by a judge alone.
The accused is asked to enter a plea of guilty or not guilty. Whenever a guilty plea is submitted, there will be no testing of the evidence or trial, but the case will proceed to sentencing at a later date for indictable offences. In serious matters, a process called “charge negotiation” or “case conferencing” may take place when the accused agrees with the prosecution to plead guilty to a particular charge or charges. It usually involves pleading guilty to a lesser charge in exchange for other higher charges being withdrawn.
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Serious matters will go through what is called a committal hearing, which is a procedure that progresses serious criminal matters to trial. It is to ensure the brief of evidence is completed and charge certificates are in order for more serious criminal charges. It provides an opportunity for an accused to put in an early plea and requires a mandatory case conference between all parties regarding specifics of the case, which are contained in a case conference certificate.
U N SA C O M R PL R E EC PA T E G D ES
The procedures in a criminal trial are in place to present and test the evidence against the accused. The accused is presumed “innocent until proven guilty” and the evidence must be tested to the highest standard of proof, which is “beyond a reasonable doubt”. The burden of proving the case against the accused lies with the state, which is represented by the prosecution. The defence has to shed sufficient doubt on the evidence to prevent a conviction.
The jury is selected and sworn in
If a matter is defended, a trial in the District Court or Supreme Court will follow a set of procedures to provide both sides an opportunity to present their evidence and arguments. A criminal trial will go through the following phases:
The judge addresses the jury
• Discovery and jury selection – A jury is selected through a predetermined empanelling process outlined under the Jury Act 1977 (NSW). The judge will instruct the jury of the rules they need to follow in determining guilt or innocence. Note, however, that some criminal trials can be heard by a judge alone. • Presentation of evidence – Both the prosecution and the defence will provide an opening address and call their witnesses and present all evidence. Both sides will have the opportunity to test each side’s evidence through cross-examination and the rules of evidence and procedure outlined in the Evidence Act 1995 (NSW) and the Jury Act 1977 (NSW). Both sides will sum up their case in a closing address to persuade the jury what verdict they should arrive at in the matter. • Instruction to the jury – The judge instructs the jury on the specific laws they must apply to the evidence presented to them in coming to a decision. • Verdict – The jury is required to reach a decision, or verdict. If the jury cannot reach a verdict, it is known as a hung jury. This could result in a re-trial or the prosecution deciding not to recontest the matter. • Sentencing – If a guilty verdict is determined, the judge will determine what the most appropriate sentence ought to be in the matter at hand. This often happens on a different day from the trial or summary hearing.
The prosecution and defence make their opening statements
The prosecution witnesses give evidence-in-chief, are cross-examined and may be re-examined
The defence witnesses give evidence-in-chief, are cross-examined and may be re-examined
The prosecution and defence make closing addresses
The judge sums up the evidence for the jury
The jury goes to another room to consider the verdict
Verdict and outcome:
Not guilty
Guilty
Accused is free to go
Judge holds a sentence hearing
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ANALYSIS 8.5.1 Visit the Local Court of New South Wales website at https://cambridge.edu.au/redirect/12147
U N SA C O M R PL R E EC PA T E G D ES
1. Outline the role of the Local Court in prosecuting crime in New South Wales. 2. Describe the types of matters that are heard. 3. Identify some of the differences that exist between the Local Court and the District Court or Supreme Court. Visit https://cambridge.edu.au/redirect/12034 for more information.
Legal representation
In the Australian legal system, a defendant has the right to a fair trial, and Australian courts have ruled that a trial will rarely be fair for an accused if they do not have adequate legal representation. If a case goes to trial, it is unlikely that the defendant will have a fair trial if they represent themselves or arrange for an unqualified person to defend them. The High Court recognised this in a 1992 decision, Dietrich v R (1992) 177 CLR 292, which for the first time established a limited right to legal representation in Australia. This right is limited to serious indictable cases where the accused will most likely be denied justice if they appear without legal representation. Access to justice is crucial to ensure that the legal system functions fairly and equally for everyone who comes before it. This is particularly so in criminal matters, where the price of representation in an indictable criminal matter is high. The quality of legal services can vary depending on the experience and expertise of the lawyer who is representing a defendant. This usually comes down to the amount defendants are able to pay for legal representation. In most cases this advice and representation will cost a significant amount of money. In rare circumstances, an accused may elect to represent themselves in court, but due to the complexities of court processes and the consequences of inadequate representation in criminal matters, this is not advised unless the offence relates to a very minor matter. Often a judge will advise the accused to adjourn the matter until they obtain legal representation. The courts prefer people to be represented by solicitors or barristers, so that they will receive a fair trial.
Legal Aid Commission
legal aid a subsidised legal service provided by the state for those on low incomes
Not everyone has the money to pay for, or the skill to find, proper legal representation. This can result in injustices in the courtroom and denial of a fair trial. In 1979, the New South Wales government created the Legal Aid Commission, under the Legal Aid Commission Act 1979 (NSW). The commission provides legal assistance and representation to people who are socially and economically disadvantaged, to ensure that they have equitable access to the law. It aims to safeguard people’s rights in the legal system and to improve their access to justice. Legal Aid NSW is usually accessed by marginalised and disadvantaged groups in society, such as people with a disability, women, Aboriginal and Torres Strait Islander Peoples and those who are financially disadvantaged through unemployment or are low-income earners. The Legal Aid Commission provides free, brief legal advice sessions to anyone. However, to access subsidised legal representation in court, the defendant must
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be means-tested. A means test assesses the defendant’s income and assets to determine whether they have the means to pay for legal representation. Along with the means test there is also a merits test, although for criminal matters the commission does not usually assess the merits or likelihood of the case succeeding, except for matters on appeal. Also, not all matters can be covered by Legal Aid NSW, so the cases it takes on must fall within specific areas of law in order to be eligible.
For those matters that Legal Aid NSW takes on, it will either provide a legal representative or contribute towards the cost of a private lawyer. Unfortunately, even a grant of legal aid is not Figure 8.5.2 Legal Aid office, Sydney CBD free, and in most cases the user must make a contribution. Initial contributions are calculated using the means test. Legal Aid NSW is largely funded by the federal government, the New South Wales government and the NSW Law Society, but funding is limited and is often considered inadequate to meet the demand. There are many instances where people who are in need of assistance are unable to receive it.
RESEARCH 8.5.1
Restorative justice as an alternative
Go to the NSW Corrective Services website and find the answers to the following questions. 1. 2. 3. 4. 5. 6.
What does restorative justice mean and how does it work? Explain who takes part in these programs and how people with mental health needs are supported. Describe why these programs are helpful for people and communities. Outline what you believe to be the good points and problems of restorative justice. Make an evaluation on how restorative justice helps people heal and keeps communities safe. Construct a simple report or presentation about what you learned.
REVIEW 8.5 Online quiz
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Review 8.5 questions
1. To what extent do people have a right to legal representation? 2. What are the implications of the right to legal representation for the majority of people in Australia? 3. Is it possible that individuals with significant wealth can evade punishment by acquiring the best defence money can buy? Explain your response. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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8.6 The role of legal personnel and the jury in a criminal trial LEARNING OBJECTIVE 8.6
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the roles of legal personnel and the jury in a criminal trial.
Introduction
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Criminal trials often involve a large number of participants, both behind the scenes and in the courtroom itself. The non-legal participants in a criminal trial include the accused, any witnesses called to testify and the police responsible for investigating the case. Most criminalscorcher trials also involve a number of legal personnel (outlined in Figure 8.6.1).
Judges
Judges are judicial officers who preside over court cases in the Local Court, District Court and Supreme Court, and make determinations in court based on the evidence presented. Judges are legally qualified professionals who have considerable experience in the law. They act as the umpires of court cases, making sure that the rules are followed and that a fair trial is carried out (procedural fairness).
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police prosecutor a NSW Police Force officer trained in prosecution; usually prosecutes summary offences
public prosecutor a legal practitioner employed by the Director of Public Prosecutions; usually prosecutes indictable offences
In the District Court and Supreme Court, the judge will make decisions about points of law and give instructions to the jury to make sure they understand the proceedings and the evidence presented to them. Once the jury has reached a verdict, the judge will hand down sentences and rulings. In some cases, the judge will sit without a jury and the judge will determine the verdict. In the Local Court of NSW, the judge will hear summary proceedings, as well as indictable offences triable summarily, where the accused has consented to the case being heard in the Local Court. These judges oversee proceedings and make a determination on the basis of the evidence presented. Once an accused person has been found guilty, the judge will pass sentence. Judges in the Local Court also conduct committal proceedings for indictable offences and will usually hear bail proceedings.
Prosecutors
In criminal trials, the state or “Crown” is represented by a prosecutor, who brings the action against the accused. It is the prosecutor’s role to prosecute the offender in a court of law with the intention of obtaining an appropriate form of sanction or punishment for the offence. There are two types of prosecutors in criminal trials: police prosecutors and public prosecutors.
Police prosecutors Each criminal investigation begins with the police, who are an essential part of any criminal case. The police must undertake an intensive and exhaustive investigation of the matter, and gather all the evidence and information that will be used at trial
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to form the case against the accused. The police will often also be required to give testimony at the trial to aid the prosecution’s case. For summary offences in the Local Court and Children’s Court, cases will usually be prosecuted by police prosecutors. Police prosecutors are members of the NSW Police Force with specialised legal training. Police prosecutors handle most summary cases in New South Wales. More serious offences are dealt with by the public prosecutors (see below).
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Director of Public Prosecutions
For indictable offences and some summary offences, cases will be prosecuted by the New South Wales Office of the Director of Public Prosecutions (DPP). The DPP will also conduct some committal proceedings for indictable offences. The DPP is an independent authority that prosecutes all serious offences on behalf of the New South Wales government.
Prosecutors employed by the DPP are barristers or solicitors and have numerous years of experience in the criminal justice system. It is their job to prosecute the case using the evidence gathered by the police. In court their role is to present evidence, ask questions of the witness on the stand, and draw out the truth from the evidence and testimony given by the witnesses. The DPP does not investigate crime – that is the responsibility of the NSW Police Force – but it prosecutes cases once sufficient evidence has been gathered. It reviews cases proposed by the police to determine if there is enough evidence to succeed. The independence of the DPP from government is vital to ensure that cases selected for prosecution are chosen on their merits and not because of political interference or public pressure. The decision to prosecute will depend on many factors, including:
• whether the evidence is sufficient to establish the elements of the offence • whether the evidence is sufficient to gain a conviction by a reasonable jury • certain discretionary factors that relate to the public interest, which include the seriousness of the offence; the special circumstances of the offence, accused or victim; the need to maintain public confidence; the likely length and expense of the trial; and the likely outcome and consequences of a conviction • whether it is in the public interest to do so.
Barristers and solicitors
A person charged with an offence will usually contact a solicitor, who will be able to give the accused advice on a range of matters, including the charge, the alleged offence and the procedures surrounding a trial, and will assist in interactions with the police investigating the case. Solicitors may advise on any available defences, the likelihood of conviction and possible sentences. Many solicitors specialise in criminal law or particular areas of criminal law.
Figure 8.6.1 Barristers Sophie Stafford and Colin Mandy, followed by solicitor Ophelia Holloway, leave the Latrove Valley Magistrates’ Court on 7 July 2025.
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A solicitor may also represent the accused in court, particularly in the Local Court. Where the case will be heard in a higher court, it is more common for the solicitor to engage (employ) a barrister to represent the accused. This is because barristers are specialists in their field and deal specifically with criminal law. The solicitor will usually prepare a brief for the barrister. The brief will overview the case and outline the key facts, legal issues and relevant law such as legislation and precedents. Barristers have two main roles in court proceedings: to provide legal advice for the accused on the likely outcome of the case and to present that case in court.
Public defenders
public defender a public barrister who can appear for an accused in a serious criminal matter where legal aid has been granted
Public defenders are paid public barristers who are independent of the government
and perform the same duties as other barristers. They will appear or advise in relation to criminal trials, sentencing matters and appeals in the District Court or Supreme Court, and may be briefed (instructed) by a private solicitor through the Legal Aid Commission or through a community-based legal group.
If an accused has been charged with a serious indictable offence and is eligible to receive legal aid because they cannot afford to pay for a barrister or solicitor, they may be granted a public defender to represent them in court.
Juries
Juries are a central part of the adversarial system of criminal law. They reflect the historic right of an accused person to be judged, impartially, by a group of their peers, based on evidence presented at a trial. A jury is a group of citizens who are randomly chosen from the electoral roll. Their role is to listen to the evidence presented during the trial and use this to decide whether the accused person is guilty or not guilty.
Their decision is called a verdict. It is a task that brings with it enormous responsibility. In most cases, a criminal trial involves a jury of 12 people. In New South Wales, juries are used to hear most indictable offences where a plea of “not guilty” is entered and may be used in either the District Court or the Supreme Court. The Local Court does not have jurisdiction to conduct trials with a jury. Many of the rules about juries are found in the Jury Act 1977 (NSW).
Eligibility for jury duty
Australian citizens aged 18 years or over become eligible to sit on a jury once they are on the electoral roll (enrolled to vote). It is very difficult to gain an exemption from jury duty, and some people view jury duty as an inconvenience and a burden, especially when they are selected to sit on a long trial. Jurors are paid for their attendance on the jury and employers are required to give leave to their employees for jury duty. It is an important part of our justice system for an accused person to be tried by a group of their peers. Some people can ask to be exempted – such as those who are aged over 65 years, are pregnant or care for children full-time. There are also some groups of people who are ineligible to sit on a jury, including people who do not speak English; emergency services workers (police, fire and ambulance); people with a disability, convicted criminals and members of the legal profession. If you fail to
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attend jury duty when requested, you can face a $1,100 fine from the Justice Office of the Sheriff. If a jury is empanelled and you are not selected, you may be requested to attend another selection over the course of the next one to three months. One criticism of the jury system is that too many people are able to avoid jury duty due to the exemptions available, and as a result, it calls on a smaller cross-section of the community for the accused to be judged by.
U N SA C O M R PL R E EC PA T E G D ES
Challenging jurors In a criminal trial, both the prosecution and the defence have the right to challenge either the selection of the entire panel of jurors or individual jurors. Both sides can also exercise a certain number of peremptory challenges of prospective jurors. This is when they disqualify individual jurors without having to give a reason. However, challenging the selection of a juror can be difficult: neither side knows anything about them in advance apart from their names, and peremptory challenges are usually based on nothing more than name or appearance (e.g. age, gender, race, clothing or physique).
A challenge for cause is a challenge based on the person not being qualified to serve on a jury – through being ineligible or disqualified, or because of being suspected of bias. For instance, one of the jurors may be acquainted with the defendant or have been a victim of a similar crime and therefore may be thought to be biased.
peremptory challenge when the legal team rejects a juror without needing to provide a specific reason challenge for cause when the legal team rejects a juror because they believe that for some reason the juror will be prejudiced
Jury role
Before a court case begins, jurors are sworn in. During the trial, the role of a juror is to listen to the evidence presented to the court, apply the law as directed by the judge and come to a verdict about the accused’s guilt or innocence.
Jurors are permitted to make notes to refresh their memory of what has happened in court. They are not permitted to talk to anyone, except for their fellow jurors, when they are all together, about the case. They may also ask for clarification on matters from the judge. Throughout the case, they have to be alert and focused on what is being presented to them in the courtroom. Their role is to be unbiased and impartial, and to make a judgment based solely on the evidence presented. Each jury elects a foreperson to speak on their behalf.
The jury must remain fair and open-minded when reaching their decision. The jury should not be influenced by the media or their own personal beliefs while deliberating a verdict. When deciding on the verdict, the jury does not have any set time limits. Jurors are encouraged to take their time and discuss the court proceedings as much as they need to. The Jury Amendment Act 2004 (NSW) focused on criminalising juror misconduct, prohibiting improper inquiries and research, and the disclosure of information by jurors during a trial. Furthermore, it codified specific punishments for jurors who engage in prohibited behaviour.
Verdict A jury has to reach a verdict of guilty or not guilty and present that verdict to the court. The accused will then be acquitted if found not guilty. If the accused is found guilty, the judge will then pass sentence. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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The system of unanimous verdicts in criminal trials was inherited from British law. Unanimous verdicts mean every single one of the jurors must agree. Sometimes it is easy for the jury to arrive at a decision, but in other matters they can deliberate for days and still not reach a verdict. A jury that is unable to reach a verdict is called a “hung jury”. In these situations, the case is dismissed and a re-trial will be ordered. This means that the whole case will begin all over again. A hung jury puts significant strain on all parties to a case and places a subsequent burden on the time and cost for the accused and the prosecution. If the accused is in remand during the trial, it may result in an extended period of custody for an offence they may ultimately be acquitted of. Also, a prolonged or repeated trial can cause great anguish to victims and witnesses.
In 1967, the United Kingdom changed the requirement for unanimous verdicts, to allow for majority verdicts of 10 or 11 jurors. Arguments for the change to majority verdicts include that a majority verdict removes the power of rogue or unreasonable jurors who are unrepresentative of the community, and it avoids the time delays, cost and stress on the victim of a re-trial. Arguments against majority verdicts include that a majority verdict removes the possibility of a “reasonable doubt” decision if only one juror is disagreeing, that disagreements are rare, and that the possibility of a majority verdict may change jury deliberations from the beginning of the case. In 2006, the New South Wales Parliament amended the Jury Act 1977 (NSW) with the Jury Amendment (Verdicts) Act 2006 (NSW) to allow majority verdicts in cases where reasonable time for deliberation has passed, and the court is satisfied that a unanimous verdict will not be reached. Under section 55F of the Jury Amendment (Verdicts) Act 2006 (NSW), a “majority verdict” is defined as: • a verdict agreed to by 11 jurors where the jury consists of 12 persons, or • a verdict agreed to by 10 jurors where the jury consists of 11 persons.
At the time the amendment was passed, it was suggested the changes were more political than practical as the prevalence of hung juries was not as great as had been suggested (the prevalence of hung juries was the stated reason for the amendment). The available evidence suggests that hung juries occur in less than 5% of criminal trials, according to the results of an Administrative Review Council–funded study of sexual assault trials in 2022. Recent high-profile examples include the Hayne and the de Belin sexual assault trials, which highlighted the implications of hung juries in terms of delaying justice, additional costs and the impact on the complainants and witnesses.
Figure 8.6.2 Bruce Lehrmann, charged with sexually assaulting Liberal staffer Brittany Higgins, leaves the ACT Magistrates Court on 26 October 2022 in Canberra, Australia. The jury in Lehrmann’s trial was dismissed for misconduct.
The Act does not apply to Commonwealth offences, as unanimous verdicts for those offences are protected under section 80 of the Australian Constitution.
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REVIEW 8.6 Online quiz
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Review 8.6 questions
U N SA C O M R PL R E EC PA T E G D ES
1. Identify who is eligible to video sit on a jury, what groups are ineligible and who can be asked to be exempted. widget reporting note taking 2. Compare the roles of public prosecutors and public defenders. 3. Describe what happens in the case of a hung jury, and the changes brought about by the Jury Amendment (Verdicts) Act 2006 (NSW). 4. Describe the types of cases heard by a judge in criminal cases in the Local Court versus the judge in District Court and Supreme Court. 5. Why might some indictable offences be heard by a judge alone without a jury?
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8.7 Types and aims of punishments LEARNING OBJECTIVE 8.7
DESCRIBE the different types of punishments and their aims.
Once a crime has been committed, the police investigate it and lay a charge or charges, and then the relevant authority prosecutes the case. If the person accused of the crime pleads not guilty, the case will be tried in court by a judge, or a judge and jury. If the accused is found not guilty, they will be acquitted and set free. videoor if the jury reaches widget a guilty verdict at reporting Where an accused pleads guilty, the trial, the accused will be sentenced. It is the responsibility of a judge to set the most appropriate sentence. The jury is not involved in sentencing an offender.
Sentencing occurs in a sentencing hearing. The sentencing hearing is where the judge hears and considers arguments and evidence about the relevant law and what the most appropriate sentence ought to be in the matter at hand. The judge will then determine and announce the sentence. This may take place at the same time a verdict is reached or a guilty plea is given, but it often will happen on a different day from the trial or summary hearing. quiz questions download word
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sentencing hearing a hearing following a finding of guilt in which a judge will determine the sentence to be given to the accused download pdf
The sentence is the sanction imposed by the state in relation to the offender’s criminal conduct. As such, the sentencing of an offender is one of the most crucial steps in the criminal process. It involves a determination about the severity of the offence, the mens rea of the accused and the need for the crime to be punished. In high-profile cases, sentencing can attract significant publicity or become heavily politicised. However, regardless of the publicity, all sentences require careful balancing of the interests of all parties concerned. This includes the victims, the community, the state and the accused. This can be the most difficult role the judge has to perform. It is usually the discontent of the victim or the family of the victim that is conveyed through the media.
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The Crimes (Sentencing Procedure) Act 1999 (NSW) is the primary source of sentencing law in New South Wales. It sets out the purposes for which a sentence may be imposed, the types of penalties that can be imposed and when they can be used, as well as a number of factors and guidelines for sentencing generally. Crimes (Sentencing Procedure) Act 1999 (NSW) 3A Purposes of sentencing
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The purposes for which a court may impose a sentence on an offender under the Act are as follows:
a. to ensure that the offender is adequately punished for the offence b. t o prevent crime by deterring the offender and other persons from committing similar offences c. to protect the community from the offender d. to promote the rehabilitation of the offender e. to make the offender accountable for his or her actions f. to denounce the conduct of the offender g. to recognise the harm done to the victim of the crime and the community.
Types of penalties
There are many different penalties that a court can apply in its sentencing of an offender. The Crimes (Sentencing Procedure) Act 1999 (NSW) lists the various penalties that can be imposed, from no conviction recorded, cautions and fines, through to imprisonment and even deportation. The type of penalty imposed will depend on how the judge ultimately weighs all the factors discussed above, and the penalty cannot exceed the maximum penalty specified for the offence.
Caution
caution a formal warning given by police to a person who has committed a minor offence, serving as an alternative to a court procedure
Before a charge is laid and a person goes to court, police have the power to issue a person with a caution. A caution is a formal warning and is used for certain less serious offences as a way to avoid the court system, in the hope that the offender has learnt a lesson and will not re-offend. For example, under the Young Offenders Act 1997 (NSW), police can issue a formal caution to offenders between the ages of 10 and 18 years for a variety of minor offences, such as damaging property, stealing or a minor assault. A formal caution can only be issued when the offender admits to the offence in the presence of an appropriate adult. It usually involves a formal conference where the offender, police, family and support people meet and discuss the crime. It includes discussion of the offence, its implications and the reasons why it occurred. The caution is kept on police record, and the offender will be told what will happen if they re-offend. Another example in New South Wales is the Cannabis Caution Scheme, where police may issue a caution for minor offences involving cannabis if a person has no prior conviction. It does not apply to people caught supplying cannabis. It involves a warning about the health and legal consequences of cannabis use as well as information about certain counselling and support services. The NSW Bureau of Crime Statistics and Research suggests that the New South Wales government
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scheme has been quite successful in diverting minor offences away from the court system. Cautions were predominantly issued for possession (96%).
Criminal infringement notice criminal infringement notice a notice issued by the police outside of court alleging a criminal infringement and requiring payment of a fine
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A criminal infringement notice is another type of penalty that can be issued by police. Introduced in New South Wales in 2007, it allows police to issue on-the-spot fines for certain offences, including larceny of goods valued at less than $300, offensive behaviour or language, and obstructing traffic. The aim of criminal infringement notices is to remove some of the burden on the criminal court system by allowing police to issue fines for these minor offences. Although they do represent an increase in police powers, the notices are not final, and offenders can choose to have the matter heard in court. The benefit to offenders is that no conviction is recorded when they accept the notice.
Conviction or no conviction recorded
When a person is charged with an offence and declared guilty by a judge or jury, that person is considered convicted of that offence. In sentencing, the judicial officer can either record the conviction against the offender or pass sentence with no conviction recorded. Normally, a conviction will be recorded and an appropriate sentence imposed. For less serious offences, particularly where they involve young offenders or first-time offenders, a judicial officer might choose not to record a conviction. Alternatively, the court may decide to record the conviction but impose no other sentence.
fine a monetary penalty imposed for infringement of a law
Fine
Fines are the most common sentencing option used in
Australia. A fine is a monetary penalty imposed on an offender and usually applies for less serious offences, such as driving offences or breaches of local laws, or for particular types of offences, such as some violations of environment law or corporate law. For minor offences, a fine will usually be issued outside of court by the police or by local-law enforcement officers (such as council parking officers). These are often referred to as “on-the-spot” fines. Such fines can be challenged in court.
Forfeiture of assets
Figure 8.7.1 Parramatta Correctional Centre
Where an offender has obtained money or property through their criminal activities, a court may order that the money or property be recovered. Such assets might have been obtained through theft, fraud, money laundering, drug trafficking or tax evasion. The court might order that the assets be recovered in addition to any other form of punishment.
When the state believes that a person has acquired assets through the proceeds of crime it will confiscate these unless that person can prove how those assets were acquired. This is called forfeiture of assets and is provided for under the Criminal Assets Recovery Act 1990 (NSW). In 2010, the New South Wales government reversed the onus of proof onto the person suspected of acquiring the assets through the proceeds of crime.
proceeds of crime any property, money or assets that are derived or realised, directly or indirectly, as a result of criminal activity; l enforcement agencies use specific legislation to freeze or confiscate these gains to ensure that individuals cannot financially benefit from their illegal conduct
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The laws are wide-ranging and can allow examination of an offender’s financial affairs and allow the assets to be restrained, seized and forfeited. The court might also require the offender to pay an amount assessed as the value of the proceeds (profits) of their crimes.
Conditional release order A court may decide to issue an offender with a conditional release order (CRO), either by itself or in conjunction with another penalty, for up to two years. If the offender breaches the CRO, they will have to appear in court again and may be sentenced to more serious penalties, such as imprisonment. Other conditions imposed can include:
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conditional release order an order requiring an offender to accept compulsory restrictions for up to two years, during which time the offender undertakes to regularly report to and obey directions from their community corrections officer
• • • • •
attending family counselling attending anger management courses avoiding visiting a particular place or associating with certain people attending a drug and/or alcohol rehabilitation program refraining from particular activities such as gambling.
Community service orders
community correction order a penalty that can be imposed by the court involving compulsory supervised work in the community, supervision by community corrections officers and curfews
Community service orders were among the penalties abolished under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). They have been replaced by community correction orders.
Community correction order
A community correction order (CCO) is a penalty that can be imposed by the court for a period of up to three years instead of a period of detention or imprisonment. They replace two previous penalties: community service orders and good behaviour bonds. CCOs usually apply to theft, common assault, property damage and drug possession where a fine or a bond is insufficient, but imprisonment is considered unwarranted. They are a flexible sentence allowing the court to take into account the nature of the offender and the offence. Compulsory supervised work in the community, supervision by community corrections officers and curfews are imposed so that offenders are held accountable.
Imprisonment
Imprisonment is the most severe sentence that can be imposed in Australia and is considered a sentence of last resort. Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes this clear, stating that “a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”. A sentence of imprisonment deprives a person of their liberty and removes them from the community.
A judicial officer must carefully consider the purposes of sentencing as well as all the relevant factors of the case. All purposes may be relevant: deterrence, retribution, rehabilitation and incapacitation. The judge will consider the severity of imprisonment that can be imposed in New South Wales. If the court deems imprisonment appropriate, the judicial officer will need to announce the total sentence as well as a non-parole period. The non-parole period is Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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the minimum amount of time the offender is kept imprisoned before being eligible for release on parole. Unless there are special circumstances, the non-parole period will be at least three-quarters of the total sentence.
parole release of a prisoner before the expiry of an imprisonment term, temporarily or permanently, on the promise of good behaviour
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Use of imprisonment still raise many issues in regard to the objectives of punishment and the impacts on offenders and costs to the community. Since the 1980s, the imprisonment rate in Australia has tripled from 66 per 100,000 of the adult population in 1985 to 218 per 100,000 in 2025. Australia now has one of the highest incarceration rates in OECD countries. Furthermore, the already disproportionate number of First Nations people who are incarcerated has doubled in the past 30 years – from 14.4% in 1991 to 37% in 2025.
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As well as the cost to taxpayers in the billions, imprisonment further entrenches disadvantage given that most people in prison come from a background of unemployment, social disadvantage, family breakdown, homelessness, and poor physical and mental health. Rates of recidivism remain high, but for many nonviolent offenders the system seems unable to effectively explore the range of diversion options that already exist. 50,000 45,000
Number
40,000 35,000 30,000 25,000 20,000
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2017
2018
2019
2020
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Prisoners
Figure 8.7.2 Prisoners in Australia, 2016 to 2025
Intensive correction order
On 1 October 2010, periodic detention (where offenders serve a period of time each week or month in prison, rather than the full period of a sentence) was replaced by intensive correction orders (ICO). This was brought about by an amendment to the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW). A further amendment, the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), strengthened ICOs to improve community safety and support victims as well as aiming to reduce re-offending by increasing supervision by trained community correction officers.
intensive correction orders an alternative to a custodial sentence where an offender has restricted movement and must attend a rehabilitation program
An offender who has been sentenced to a maximum term of two years is eligible for an ICO. An ICO is not available for offenders guilty of murder, manslaughter, sexual assault, any sexual offence against a child, discharge of a firearm, terrorism offences or organised crime. An ICO has strict conditions, not unlike bail conditions. Offenders who breach these conditions may be liable for a Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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full-time custodial sentence for the remainder of their sentence. Some of those conditions are: strict curfews and association restrictions electronic monitoring 24 hours a day, seven days a week random breath tests and urine analyses completion of mandatory community service (32 hours per month) restrictions on travel and behaviour mandatory participation in rehabilitation and education programs.
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• • • • • •
ICOs aim to reduce the likelihood of re-offending, which periodic detention failed to address. This is a far more flexible system as it enables people to keep their full-time employment and attend rehabilitation and counselling services, which are aimed at making lifestyle changes better for them.
Figure 8.7.3 Climate Activist Deanna “Violet” Coco (R) arrives at NSW District Court on 15 March 2023 in Sydney, Australia. Coco was arrested and jailed for 15 months over a protest that blocked the Sydney Harbour Bridge in April 2022, but after appealing her conviction, she was given a 12-month conditional release order.
ANALYSIS 8.7.1
Read the following media articles: •
• •
“NSW Chief Justice Andrew Bell issues rare statement on growing number of people on remand”, ABC News, 27 May 2025. https://cambridge.edu.au/redirect/12028 “‘A wake-up call’ – new data shows that NSW Government is doubling down on cruel mass incarceration policies”, Aboriginal Legal Service, 14 August 2025. https://cambridge.edu.au/redirect/12029 “NSW prison population reaches five-year high due to rise in Aboriginal incarceration”, NSW Bureau of Crime Statistics and Research, 21 May 2025. https://cambridge.edu.au/redirect/12030
1. What is the substantive reason cited by the first two articles for an increase in the number of people in New South Wales incarcerated? 2. What are some of the implications of these increases for the government and various sections of the community? 3. Using the report from the NSW Bureau of Crime Statistics and Research, explain some of the reasons cited for the increase in First Nations adults in custody in early 2025.
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REVIEW 8.7 Online quiz
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Review 8.7 questions 1. 2. 3. 4. 5.
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Outline the main reason for sentencing offenders who are found guilty of a crime. What influences a judge in regard to the sentence handed down? What makes forfeiture of assets as a criminal punishment different from other forms of sentences? What is the purpose of not recording a conviction if a person is found guilty of an offence? Imprisonment determines that some offenders need to be incarcerated to protect the community and future victims as well as paying for their crimes. Outline some of the criticisms of imprisonment as it currently stands in New South Wales. Go online to assign and download questions, view results and more!
8.8 Case study on key concepts of justice: R v Dawson [2022] NSWSC 1131 LEARNING OBJECTIVE 8.8
EXPLAIN the key concepts of justice as illustrated in the case R v Dawson [2022] NSWSC 1131.
There are a number of legal protections that are enshrined in the criminal justice system, particularly in criminal trials to ensure, to the extent possible, there is balance between the rights of community to be safe and the rights of individuals (victims) for justice and (accused) a fair trial. The fundamental cornerstones of justice, pre-trial and criminal trial include:
• rules regarding investigation and limits of police powers • guidelines in regard to gathering and presenting evidence • the burden of proof (prosecution) and a high criminal standard of proof (beyond a reasonable doubt) • trial procedures in line with the adversarial system of trial to allow both the prosecution and defence to present and test the evidence before the court • judicial discretion and guidelines for sentencing • the pathway to appeal as appropriate. Some of these have been discussed previously or will be covered in depth in the HSC Core Topic – The Criminal Justice System. Many of these rules and procedures are relied on in all criminal trials but more so in serious and complex cases such as the case R v Dawson [2022] NSWSC 1131, more popularly known because of “The Teacher’s Pet” podcast.
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Facts of the case The parties Christopher Michael Dawson (a former high school PE teacher) was charged with the murder of his wife, Lynette Dawson.
The disappearance
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Lynette disappeared from the couple’s home in Bayview, Sydney, in January 1982. Her body was never found, and she left behind two young daughters.
The motive
The prosecution alleged that Chris Dawson was obsessed with a 16-year-old student (referred to as JC). He wanted to replace Lynette with JC to start a new life without the financial burden of a divorce.
The delay
Despite two coronial inquests recommending charges be laid in the early 2000s, Dawson was not charged until 2018, following renewed public interest generated by the podcast “The Teacher’s Pet”. This podcast, hosted by journalist Hedley Thomas and published by The Australian, was an investigation into Lynette’s disappearance. It ran for 14 episodes, from 17 May to 14 August 2018, with some follow-up episodes after Chris Dawson’s arrest.
Issue to be proven
Because there was no body, no murder weapon and no eyewitnesses to the killing, the prosecution had to rely entirely on circumstantial evidence. They had to prove beyond reasonable doubt:
Figure 8.8.1 Chris Dawson was found guilty of his wife Lynette Dawson’s murder on 30 August 2022.
• direct proof of death – that Lynette Dawson was dead and had not simply walked out on her family (as Chris Dawson claimed) • causation – that her death was caused by a conscious and voluntary act of Chris Dawson • intent – that he intended to kill her or inflict grievous bodily harm
• exclusion of alternatives – the court had to be satisfied that no other rational explanation for her disappearance existed except for her murder by the accused.
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Outcome (the decision) Justice Ian Harrison, sitting without a jury (judge-alone trial) in the Supreme Court, found Dawson guilty of murder. Key findings included:
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• The “runaway” theory – The judge rejected Dawson’s claim that Lynette had called him or had been seen alive after January 1982, describing the claims as “entirely fabricated”. • The motive – The judge accepted that Dawson’s “possessive” and “unsettled” obsession with JC provided a powerful motive. • Reasoning – The judge concluded that the probability of Lynette – a devoted mother – voluntarily abandoning her children without ever contacting them again was so low that it could be discounted.
Significance
This case is significant for a number of reasons:
• No-body conviction – The case is a significant example of a successful murder prosecution in the absence of a body (corpus delicti), demonstrating the power of a strong circumstantial case. • Impact of media – The case raised serious legal questions about pre-trial publicity. Dawson’s legal team argued that the podcast “The Teacher’s Pet” had biased the community, leading to the decision for a judge-alone trial rather than a jury. • Justice for families – The case was seen as a major victory for the families of missing persons, proving that “time is no barrier to justice”. • Sentencing – Dawson was later sentenced to 24 years in prison with a non-parole period of 18 years.
This case was also an example of the “beyond reasonable doubt” standard applied in a circumstantial case (where there is no body, no weapon and no direct witness). To find Dawson guilty, the judge had to be satisfied that there was no other rational explanation for the evidence other than that Chris Dawson killed his wife.
When handing down his decision on 30 August 2022, Justice Harrison famously stated: “I am satisfied beyond reasonable doubt that the only rational inference is that Lynette Dawson died … as a result of a conscious or voluntary act committed by Christopher Dawson.” By systematically eliminating every other possibility (that she ran away, was kidnapped by a stranger or died of natural causes), the judge reached a point where only one conclusion remained. The following sources provide more information about the case:
• The complete, 200+ page judgment is available on the official New South Wales Caselaw website: https://cambridge.edu.au/redirect/12031 • The Rule of Law Education Centre has a Case Note on Chris and Lynette Dawson: https://cambridge.edu.au/redirect/12032 • “The Teacher’s Pet” podcast was removed from broadcast in Australia in the lead-up to the trial, but all episodes are now available at https://cambridge.edu.au/ redirect/12033
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Figure 8.8.2 Hedley Thomas, host of the popular “Teacher’s Pet” podcast, speaks to the media at the NSW Supreme Court after Chris Dawson was found guilty on 30 August 2022 in Sydney, Australia.
ANALYSIS 8.8.1
Explore the R v Dawson case in more detail from the sources listed or your own research.
1. Highlight the area where decisions about criminal trial rules or procedures in the case were inferenced by Justice Harrison to the case before the court. 2. Chris Dawson appealed all the way to the High Court. Review the decisions in the Dawson v R [2024] NSWCCA 98 (June) and Dawson v The King [2025] HCASL (June) and briefly explain the reason for the decisions of the Court of Criminal Appeal and the High Court.
REVIEW 8.8 Online quiz
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Review 8.8 questions
1. Outline three legal protections that ensure balance between rights of the community and individuals and rights of the accused to a fair trial. 2. Identify why a judge-alone trial was used in the R v Dawson case. 3. Identify the challenges for the prosecution in the R v Dawson case. 4. Analyse why the fundamental cornerstones of justice are important using R v Dawson as an example. Go online to assign and download questions, view results and more!
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The purpose of criminal law is to maintain social order, protect the community and provide a framework for dealing with unlawful conduct. What is deemed to be criminal is significantly influenced by the historical notions of rights and wrongs, and the values and beliefs of the community at the time. Criminal law is fundamentally about protecting society from acts that are deemed harmful to individuals and the community. Two elements must be proven for a crime to have been committed: actus reus, which is a Latin term meaning “guilty act” and refers to the physical act of carrying out the crime, and mens rea, which is a Latin term meaning “guilty mind” and refers to the mental state of the accused. For some offences, only the element of actus reus will need to be shown. These offences are known as strict liability offences. There are two categories of crime: summary offences, which are less serious, and indictable offences, which are more serious. Two main types of crimes are offences against people, which usually involve harm or injury to an individual(s), and property offences, which predominantly involve depriving a person(s) or other legal entities such as businesses or government, of their property. In a criminal trial, the burden of proof rests with the state (prosecution) and the standard of proof is “beyond a reasonable doubt”. Criminal trials in Australia are based on the adversarial system and have wellestablished procedures that must be followed to ensure a fair trial is held. These include rules of evidence and procedure, and the opportunity for both sides to present their case (evidence) and test the evidence of the opposing side. A person has a limited right of legal representation in New South Wales to ensure a fair hearing at the trial. Juries are empanelled to hear the facts of the case and, under the direction of the trial judge, to apply the law explained to them in delivering a verdict. There are a range of sentences that can be applied to people found guilty of a crime. These vary depending on the nature and severity of the crime and if there are any mitigating or aggravating factors to be considered by the judge.
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Multiple-choice questions 1. Of the following statements, which best defines the nature of crime? A. An act or omission that harms society B. An act or omission that harms society and the people in it C. An act or omission that harms society and is punishable by the state D. An act or omission that harms society in the context of the public morality of the time
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2. Which of the following refers to the physical element of a crime? A. The ratio feature B. The mental and physical elements combined C. The mens rea D. The actus reus, which includes causation
3. Which of the following statements best reflects the difference between an indictable offence and a summary offence? A. Indictable offences usually involve juries, whereas summary offences are matters only heard on appeal. B. Summary offences must be committed first, followed by a more serious/indictable offence. C. Indictable offences are serious matters, whereas summary offences are minor matters. D. Summary matters are heard in the District Court, whereas indictable offences are heard in the Supreme Court.
4. Which of the following statements is correct in reference to the burden and standard of proof in criminal matters? A. The burden of proof is on the plaintiff, and the standard of proof is “beyond reasonable doubt”. B. The burden of proof is on the state, and the standard of proof is “on the balance of probabilities”. C. The burden of proof is on the victim, and the standard of proof is “beyond reasonable doubt”. D. The burden of proof is on the state, and the standard of proof is “beyond reasonable doubt”.
5. Which of the following best explains why a judge may order a “judge-alone” trial in a criminal matter? A. Because the defendant automatically has the right to choose a trial without a jury. B. Because pre-trial publicity may risk influencing jurors and affect the fairness of the trial. C. Because judge-alone trials allow the prosecution to introduce more types of evidence. D. Because the court system requires serious offences to be heard without a jury.
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Short-answer questions 1. Outline why criminal law should reflect the moral and ethical standards of the community. 2. Describe the purpose of possible penalties a judge could consider before sentencing an offender. 3. Explain the role of the jury during a criminal trial.
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4. What are the key concepts of justice that underpin criminal law?
Extended-response question
There is a constant tension between the interests of the community and individuals’ rights and freedoms. Outline how the legal system attempts to balance the competing rights of individuals and the community during a criminal trial.
Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 8.9.1 Answering an exam question.
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CHAPTER
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9
Civil law
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • • • • • • • •
describe the purpose and characteristics of civil law outline the elements of civil law describe the key features of tort law and contracts define what is meant by “burden of proof” and “standard of proof” identify the burden of proof and standard of proof in civil law describe the procedures in NSW tribunals and civil courts describe alternative methods of resolving disputes describe the roles of legal personnel and the jury in a civil trial describe the different types of remedies and their aims explain the key concepts of justice as illustrated in the case Donoghue v Stevenson [1932].
RELEVANT LAW
IMPORTANT LEGISLATION
Civil Procedure Act 2005 (NSW) Civil Procedure Regulation 2017 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Civil Liability Act 2002 (NSW) Defamation Act 2005 (NSW)
SIGNIFICANT CASES Redrouge Nominees Pty Ltd v Canberra Institute of Technology [2024] ACTSC 362 Donoghue v Stevenson [1932] AC 562 Brose v Baluskas (No 6) [2020] QDC 15 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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9.1 The purpose and characteristics of civil law LEARNING OBJECTIVES 9.1 DESCRIBE the purpose and characteristics of civil law.
reporting
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Purpose of civil law
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In Chapter 8, you learned that criminal law is about protecting society. This is different from civil law, which relates primarily to rights and responsibilities between individuals. Civil law regulates the relationships between persons, companies and scorcher It governs private disputes when someone believes their rights have organisations. been infringed by another person or group. The purpose of civil law is to restore the injured party to their original position by providing a remedy to the dispute.
Civil law rights are protected by both statute and common law. Different countries have different views of what people’s rights should be, and views also change over time as our values change, which means that civil law is always evolving. For example, it used to be the case that if a person wanted to divorce their spouse, they had to provide reasons that their spouse was to blame. The Matrimonial Causes Act 1899 No. 14 (NSW) gave a list of reasons that would allow a husband or wife to petition for divorce, but proof had to be provided to the court. This was also the case in the Matrimonial Causes Act 1959 No. 104 (Cth). However, the Family Law Act 1975 (Cth) introduced no-fault divorce.
The core purpose of civil law is to uphold fairness, restore parties to their rightful positions and maintain social cohesion by addressing issues such as contracts, property, personal injury, defamation and family matters. Civil law ensures that when someone suffers loss or harm due to another party’s actions, there is a logical pathway to obtain remedies, such as damages, injunctions or enforcing obligations. For example, in Nationwide News Pty Limited v Rush (2020) FCACFC, actor Geoffrey Rush sued the Daily Telegraph for publishing allegations implying he had engaged in sexual harassment during a theatre production. The Federal Court found the articles were defamatory and based on unsubstantiated claims, describing the reporting as “recklessly irresponsible journalism”. Rush was awarded a record $2,872,753.10 in damages to compensate for the serious harm to his reputation, emotional distress and loss of future income. The case demonstrates how civil law provides a process to restore a person’s standing, ensures accountability for harmful conduct and protects Figure 9.1.1 Geoffrey Rush speaks to the media outside the Supreme Court the rights of individuals against large media of New South Wales after being awarded damages on 11 April 2019. organisations when their rights are infringed.
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Characteristics of civil law Just as criminal law has a number of important characteristics that distinguish it from other areas of the law, so too does civil law:
balance of probabilities the standard of proof required in a civil case for a plaintiff to succeed in proving the case against the defendant – it requires the court to be satisfied that the claim is more likely than not to be true plaintiff the person who initiates a civil action
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• Civil disputes are concerned with disputes between individuals and are initiated by one of the parties. • In a civil dispute, the standard of proof required to be successful is on the balance of probabilities. • The burden of proof lies with the plaintiff in a civil dispute. The plaintiff must prove that their version of events is the most likely. • In a civil dispute, the court may award a civil remedy. A civil remedy aims to restore the injured party to their original position, provide compensation or prevent further harm. In civil law, remedies include damages, injunctions and specific performance orders.
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Scenario illustrating key features of civil law
Emma owns a small graphic design business. She signs a written contract with Lucas, a local cafe owner, to create a new logo and new menu designs for $2,000. Emma completes the work on time and delivers all final files, but Lucas refuses to pay, claiming he has “changed his mind” and no longer wants the designs. After several attempts to resolve the issue privately, Emma initiates a civil dispute by filing a claim in the Local Court seeking payment. As this is a civil matter between two individuals, Emma becomes the plaintiff, and Lucas is the defendant.
damages monetary compensation for harm or loss suffered specific performance an order requiring the defendant to perform the acts that a contract obliged them to perform defendant person accused of causing harm or failing to fulfil a legal obligation, such as in breach of contract or personal injury cases, and must defend their actions in court
In court, Emma must prove on the balance of probabilities that her version of events is more likely than not to be true. The burden of proof lies entirely with her, as she is the party bringing the claim. Emma provides emails, the signed contract and evidence that she completed the work. The judge determines that Emma’s account is more credible than Lucas’s and that a valid contract existed. As a result, the court awards a civil remedy:
• damages requiring Lucas to pay the $2,000 owed • an injunction preventing him from using Emma’s designs without payment. These remedies aim to restore Emma to the position she would have been in had the contract been honoured, reflecting the purpose of civil law.
Figure 9.1.2 Civil law in practice
REVIEW 9.1 Online quiz
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Review 9.1 questions 1. Define civil law. 2. Outline the purpose of civil law. 3. Describe the key features of civil law in relation to the scenario above. Go online to assign and download questions, results and* more! Uncorrected 4th sample pages * Cambridge University Press view & Assessment © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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9.2 Elements of civil law
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LEARNING OBJECTIVES 9.2 OUTLINE the elements of civil law.
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To succeed in a civil action, the plaintiff must prove certain essential elements that establish the defendant’s responsibility. These elements help the court determine whether the defendant should be held liable and whether a civil remedy should be awarded. A civil claim generally requires the plaintiff to demonstrate breach, causation and loss.
Breach
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Writing focus 9.2 Conjunctions note taking (subordinating contrast)
Breach occurs when a person or organisation fails to meet a legal duty or obligation. For example, in negligence, failing to provide a safe work environment, or in contract law, not delivering services as agreed. In a civil case, the plaintiff must establish that scorcher breached their legal obligations towards them in some way. A person the defendant can only take civil action if there has been some form of breach by the defendant. This means the defendant failed in their responsibilities in tort law or they have broken a term of a contract.
Causation
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In civil law the breach must have directly caused harm or loss. For example, an employee suffers a back injury due to a lack of manual handling training. Courts assess whether the harm would have occurred “but for” the breach. Causation is the connection between the defendant’s actions and the plaintiff’s loss. Once breach has been proven the plaintiff must prove the actions by the defendant was the cause of the plaintiff’s loss. This means the plaintiff must prove causation by the defendant.
Loss
The plaintiff in a civil case must show they have experienced actual damage. The loss suffered by a plaintiff can be either physical loss, financial loss or emotional loss – for example, medical expenses, lost income or emotional distress. Without proven loss, a remedy (such as compensation) may not be awarded. Once the plaintiff has established both breach and causation, the final requirement is to demonstrate that they have suffered some form of loss because of the defendant’s actions. If the loss has been shown, then the plaintiff will be successful in their civil claim because they have proven breach, causation and loss.
Figure 9.2.1 Training is an essential part of starting a new job.
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MEDIA 9.2.1 Injured motorcyclist awarded $13.5 million in NSW Supreme Court legal test case Hannah Ross, ABC News, 22 November 2024 A motorcyclist who suffered lifelong injuries in a northern NSW road accident in 2019 has won a legal test case allowing him to claim third party damages amounting to $13.5 million.
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In a case finalised in the NSW Supreme Court this month, Kyogle Shire Council was found negligent for not installing warning signs on the Summerland Way about the loose gravel which caused the rider to lose control.
The Gold Coast man, now aged 74, was on a Sunday ride with a group of friends in a rural area popular with touring motorcyclists. He was leading the group when he slid on loose gravel and hit an embankment.
The spinal injuries he suffered mean he now requires 24-hour care and will use a wheelchair for the rest of his life.
“The vibe” argument
Ballina law firm senior partner Ben Crawford said the case tested an argument being run by the council’s insurer, the NSW Government agency icare.
Mr Crawford said the ruling set a legal precedent, meaning other icare recipients who wanted to claim further compensation may not face the same legal hurdles.
“Once the judge agreed with our senior counsel’s submission that the interpretation of the legislation they were trying to make was akin [to] the ‘the vibe’ argument in [the movie] The Castle, I think that really has snuffed out the argument being made in other cases,” he said. He said the lawyers for Kyogle Shire Council tried to argue the man could not make a claim against the council because he was already receiving money under the NSW government’s icare statutory lifetime care and support scheme.
The scheme covers people who have been catastrophically injured in motor vehicle accidents on NSW roads. Mr Crawford the scheme led to his client being awarded $1 million for his pain and suffering. He was also allocated $4.5 million in funds he could apply for to cover his ongoing care and support for the rest of his life.
“It was driving him into the ground, constantly having to deal with the statutory authority to have things that he needed, having things knocked back,” Mr Crawford said. After the Supreme Court ruling, the man was able proceed with his common-law claim for third-party compensation from the council. Mr Crawford said his team had to prove significant negligence by the council, which was difficult because all councils had legislated protections. The long-running case came to an end last week when the man received a lump sum compensation pay out from Kyogle Council’s insurer, which also happens to be icare. Mr Crawford said his client was “over the moon”. “He is suffering significant psychological issues as you would, given his injuries,” he said.
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“His mood has been very low right the way through the running of this very difficult case. “To tell him the good news last week was probably the first time I’ve heard a sense of relief in his voice.” As part of the outcome, the man has agreed to repay $2.6 million he has already received from icare for his ongoing care and support.
Insurer reviewing judgement
U N SA C O M R PL R E EC PA T E G D ES
Statewide Mutual is a collective insurer that has 108 members made up of local councils and county councils across New South Wales. Board member Troy Green, who is also the general manager of Tweed Shire, which borders Kyogle, said the insurer would be looking closely at the Supreme Court judgement.
“Roadworks on roads, particularly roadworks on roads with high speeds, is a risk; that’s not something new to us,” Mr Green said.
“But that is a pretty big judgement finding, so we will certainly be doing our due diligence on that judgement to see if there are any learnings for our member councils.” In a statement, icare said it “adhered to strict privacy obligations, both as the manager of various schemes and as the insurer under different funds”. Kyogle Shire Council declined the ABC’s request for comment.
ANALYSIS 9.2.1
Read Media 9.2.1 and answer the following questions. 1. 2. 3. 4. 5.
Identify the duty owed by the council in this case. Describe how the plaintiff demonstrated that duty was breached. Explain why causation (the link between breach and injury) was established. Outline the loss suffered by the plaintiff. Which elements of civil law would fail or be more difficult to prove if the facts were slightly different, for example, if there had been a warning sign?
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Define the three essential elements a plaintiff must prove in a civil action. Identify an example of a breach in civil law. Describe the concept of causation and how courts determine whether a defendant’s actions caused the plaintiff’s loss. Summarise the types of loss a plaintiff may claim in a civil case. Go online to assign and download questions, view results and more!
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9.3 Types of civil law LEARNING OBJECTIVES 9.3 DESCRIBE the key features of tort law and contracts. quiz
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U N SA C O M R PL R E EC PA T E G D ES
In New South Wales, civil law covers a wide range of disputes between individuals, groups and organisations. Unlike criminal law, which involves offences against the state, civil law focuses on resolving conflicts and providing remedies to those that have been wronged. The civil law system is divided into key areas such as contract law, tort law, property law, family law, administrative law and industrial law, each dealing with specific types of legal relationships and obligations. These branches operate to protect individuals’ rights, enforce agreements, settle private disputes and ensure fair decision-making across society.
Tort law
Torts are “civil wrongs”. The word “tort” comes from the French word meaning “wrong”. Tort cases deal with situations in which someone (or an organisation) has done something to interfere with the rights of someone else. Another way of video widget or fails to fulfilreporting putting it is that a tort occurs when someone breaches a duty that an individual owes to someone. Tort law protects an individual’s safety, security and physical and intellectual property as well as and reputation. Where a civil wrong has been committed, tort law allows the injured party to recover money or an other remedy in compensation.
Writing focus 9.3 Noun phrases note taking (identify)
The law of torts tries to restore the plaintiff to the Nuisance position they were in before the wrong was committed. For example, someone who slipped on the floor of a quiz questions supermarket might sue the supermarket for medical TORTS download pdf download word costs. All torts entitle the alleged victim to take legal action against the alleged perpetrator in a civil court Trespass and claim compensation. However, court action can be expensive and time-consuming, so it is important that plaintiffs consider this when deciding whether a wrongdoing is worth bringing a case. Figure 9.3.1 Tort law arises from four main activities.
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Negligence
Defamation
There are many different types of torts, all of which are regulated by statute and common law. Torts arise from different types of activity and include: • • • •
negligence nuisance (public and private) trespass (on land) defamation.
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Negligence
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Negligence is a civil wrong that occurs when someone fails to take reasonable care, causing harm to another person. Negligence is a very common tort and revolves around the concept of “duty of care”. The legal concept of duty of care states that every person and organisation has the responsibility to ensure that their actions do not cause harm to others or their property. For example, a supermarket employee mops the floor but forgets to put up a “wet floor” warning sign. A customer walks through the aisle, slips on the wet surface, and breaks their arm.
Nuisance
Figure 9.3.2 It is the property owner’s responsibility to ensure customer safety.
Nuisance occurs when a person interferes with another person’s enjoyment of their rights. For example, a homeowner regularly plays loud music late at night, disturbing their neighbours’ sleep. Despite repeated complaints, the noise continues.
Trespass
Trespass occurs when an individual interferes with another person’s property. For example, a person walks into their neighbour’s backyard without permission and sets up a tent for the weekend. The neighbour did not invite them and asks them to leave, but they refuse.
Defamation
Defamation occurs when a person’s reputation is damaged. For example, a local business owner posts on social media that a competitor is “a fraud who scams customers”, even though the statement is false and harms the competitor’s reputation.
Defamation can occur in two forms, either libel or slander. Libel refers to defamation that is written, printed or published in a permanent form, such as in newspapers, online articles or social media posts. As it can be widely distributed and preserved over time, libel is often considered more damaging. In contrast, slander is defamation that is spoken or expressed in a temporary form, such as during a conversation or speech. Slander can be harder to prove, as it typically relies on witness testimony and is not recorded. Both forms of defamation can harm a person’s reputation.
Defamation is governed under the Defamation Act 2005 (NSW) and it plays a crucial role in the operation of defamation law in New South Wales. It defines what defamation is, sets out how a person’s reputation is protected and works to safeguard free speech by balancing it against the need to prevent harm. The Act also regulates both online and offline publication, recognising that defamatory material can spread through many forms of communication. It ensures national consistency by forming part of an informed defamation law scheme across Australia.
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In 2015, in a high-profile (and expensive and lengthy) case, the actor Rebel Wilson successfully sued Bauer Media for defamation. Wilson claimed that articles published by Bauer Media about her led to her losing work opportunities. Wilson was awarded more than $4.7 million in compensation, which was the largest defamation damages payout ever ordered by an Australian court. However, Bauer Media appealed the decision, and the Court of Appeal ordered Wilson to pay back $4.1 million of those damages and 80% of the magazine publisher’s legal costs. The court found that “there was no basis in the evidence for making any award of damages for economic loss”. The actor’s legal team took this decision to the High Court who upheld the decision made by the Court of Appeal.
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Figure 9.3.3 Rebel Wilson outside the Supreme Court of Victoria during her defamation trial against the magazine publisher, Bauer Media
MEDIA 9.3.1
Mount Tamborine school principal wins defamation case over parents’ social media posts Gemma Sapwell, ABC News Gold Coast, 28 February 2020
A school principal from a small town on the Gold Coast has won her defamation case against two parents who made derogatory comments about her on social media.
Video 9.3.1 Rebel Wilson speaks to the media after the High Court judgment
Judge Catherine Muir ordered Donna and Miguel Baluskas to each pay Tamborine Mountain State High School principal Tracey Brose $3,000 in damages over their posts to Change.org in 2016. The cases against two other parents were dismissed.
Another three settled their cases out of court prior to the lengthy and taxing trial, with Ms Brose receiving a total amount of $182,500 from them.
Speaking outside court, Ms Brose said the case was “never about the money” but to stop the harassment. At one point she said she feared for her family’s safety when people arrived at her home late at night to bang on her door and call her names.
The principal, who has lived in the community for 20 years, also said she sobbed uncontrollably when she first heard about the online comments and considered taking her own life.
She told the court that Mr and Mrs Baluskas had made “pig snorting noises” at her outside the courtroom.
Rumour and innuendo started during suspension
The longstanding principal of the school, which is the only high school in the mountain community of 7,000, was suspended from her role in 2016 for alleged inappropriate conduct. The school and the broader community were told that the principal was “on leave” but news of the suspension filtered out almost immediately, the judgement read. Judge Muir said speculation over the reasons for Ms Brose’s absence led to rumour and innuendo within the community.
President of the school’s Parents and Citizens Association, David Hows, set up a Change.org discussion website to reinstate Ms Brose, and also set up a private Facebook page to support her.
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Over the next few days, around 600 people signed the petition. While most comments were complimentary, some were highly critical. Ms Brose was reinstated to principal a few months later and commenced legal proceedings against eight of the 34 individuals who posted criticism, the judgment said. She originally claimed $150,000 in damages from each of the defendants as well as an injunction restraining them from making further defamatory statements.
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“$600,000 in legal costs”
However, Judge Muir on Friday awarded Ms Brose $6,000, following the four-week trial in the Southport District Court. Judge Muir also ruled for each party to pay their own legal costs, which Ms Brose estimated was about $600,000. “The damages I have awarded are modest and well below what the plaintiff has sought,” Judge Muir wrote. “But I consider them sufficient to vindicate the plaintiff in light of the unique contextual features of social media forums.
“I am satisfied that there is a real risk of further publication of the defamatory comments made by the first and second defendants [Donna and Miguel Baluskas], so I have ordered that they be permanently restrained from making them again. “The fiscal and emotional toll on all those involved has been high.
“It has involved many hours, many witnesses and caused much antagonism and distress for all parties.”
“Obsession to destroy us”
Ms Brose said she was harassed during the four-year ordeal. “This was always about our safety,” Ms Brose said. “Now we’re protected from these people.
“There has been an obsession to destroy us. I would have loved an apology, I would have loved a retraction from the very beginning, and we all would not have ended up here. “There was a price to pay if I didn’t do it, and that was my safety and the safety of my kids. And there’s a price to pay if you do take this action. “I would do it again.”
ANALYSIS 9.3.1
Read Media 9.3.1 and answer the following questions.
1. Define the term defamation. 2. Explain why this case was considered libel rather than slander. 3. Explain how this case illustrates the tension between freedom of speech and protecting a person’s reputation. 4. Describe the impact this case might have on how people use social media. 5. Do you agree with the final decision of the court? Justify your answer.
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Contracts A contract is a voluntary agreement made between two or more people that is recognised by the courts as being legally binding on the parties. The basis of a contract is an agreement, which in most cases consists of:
offeror the person making an offer of an agreement
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• an offer made by one party to another person • an acceptance of the offer by that person • consideration for the promise made. The person making the offer is referred to as the offeror and the person to whom the offer is made is known as the offeree.
contract a voluntary agreement made between two or more people that is recognised by the courts as being legally binding on the parties
Types of contracts
offeree the person to whom the offer of an agreement is made
Contracts can be written or oral. Written contracts
Written contracts are commonly used in consumer agreements, especially when large sums of money are involved, such as buying or renting property. These contracts clearly state who is involved, what the agreement includes and the exact terms in writing, so there is less confusion later. They are usually signed by both parties, and it is assumed that everyone has read and agreed to all the terms. People choose written contracts because they make it easier to prove that a contract exists and to show exactly what was agreed to. Written contracts also limit the agreement to what is written, rather than what was discussed during negotiations. However, many written contracts are standard form contracts created by large businesses and can be long and difficult to understand. As a result, consumers often rely on what they are told by the seller, which may not fully match what is written in the contract. Oral contracts
Oral contracts are agreements that are made through spoken words rather than being written down. Many everyday transactions, such as buying food or drinks, are oral contracts, and the only written record may be a receipt. Because oral agreements are not written, they can be harder to prove and remember clearly, which can lead to disagreements. If a dispute goes to court, the court will look closely at what was said and how each party behaved before and during the agreement.
Oral contracts can be supported in court by examining the actions of each party, their behaviour before and after the agreement, and any previous dealings between them. Some contracts include both written and oral terms, known as written–oral contracts. If a written contract appears incomplete, the court may consider spoken promises and conduct as part of the agreement. However, when a written contract appears to be a complete and final record, the court will usually rely on what is written and ignore any oral terms that contradict it.
Elements of a contract The law of contract is one of the areas of civil law and is essential to the successful operation of modern capitalist economies. It attempts to define the circumstances under which parties who make promises to each other are legally bound by them. For a contract to exist, the following elements must be present: Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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• The intention of both parties to create legal relations. Both parties must intend for the agreement to be legally enforceable, not just a social or informal agreement. • An offer by one party (the offeror). One party (the offeror) must make a clear proposal that outlines the terms of the agreement and shows a willingness to be bound by those terms. • The unconditional acceptance of that offer by the other party (the offeree). The other party must clearly and unconditionally agree to the terms of the offeror. • Consideration from the offeree. Each party must give or promise something of value as part of the agreement, such as money, goods, services or a promise to act. • Legal capacity of both parties. Both parties must have the legal ability to enter into a contract, meaning they are of sound mind, not under duress and meet the legal age requirements. Contract law is concerned with the recognition of this agreement and the actions taken to enforce it. When one of the parties to a contract believes that all or part of the contract has been breached, they can bring a legal action in a civil court.
IN COURT 9.3.1
Redrouge Nominees Pty Ltd v Canberra Institute of Technology [2024] ACTSC 362
In this case, the ACT Supreme Court ruled that the Canberra Institute of Technology (CIT) breached its contract with consultant Patrick Hollingworth’s company when it cancelled a nearly $5 million agreement. The court awarded him about $2.4 million in damages. The contract, which was for training and consultancy services, was paused and then effectively terminated by CIT, despite Hollingworth’s objections that it should not be put on hold indefinitely. The court found that, while Hollingworth was not entitled to the entire contract price, he was entitled to compensation for the portion of the contract he had earned before termination. The case illustrates how civil law enforces contractual obligations and provides remedies when one party improperly breaches a legally binding agreement.
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Review 9.3 questions
1. Outline the different types of tort law. 2. Describe the elements of contract law. 3. Explain how the decision in Redrouge Nominees Pty Ltd v Canberra Institute of Technology [2024] ACTSC 362 demonstrates the largest principles of breach of contract. Go online to assign and download questions, view results and more!
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9.4 Burden and standard of proof in civil law LEARNING OBJECTIVES 9.4 DEFINE what is meant by “burden of proof” and “standard of proof”.
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IDENTIFY the burden of proof and standard of proof in civil law.
In a civil case, the burden of proof is on the injured party (the plaintiff) to prove their allegations. The rules of civil procedure give the defendant the chance to provide evidence that rebuts the case made by the plaintiff. To disprove a statement or evidence presented by another is generally referred to as a rebuttal. widget of probabilities”.reporting In civil cases, the standard ofvideo proof is “on the balance This means that the plaintiff, who has the burden of proof, must prove that it was more probable than not that they suffered injury or loss because of the defendant’s actions or that “his or her claim is correct in law”.
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The civil standard of proof is codified in section 140 of the Evidence Act 1995. Evidence Act 1995
140 Civil proceedings:quiz standard of proof questions
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(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account— (a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and (c) the gravity of the matters alleged.
Figure 9.4.1 In 2019, former SAS soldier Ben Roberts-Smith commenced defamation proceedings against three Fairfax newspapers. The court found that on the balance of probabilities he had not been defamed. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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The Act also provides a framework for the court to use in deciding whether the standard of proof has been satisfied on the balance of probabilities, such as:
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• the nature of the cause of action or defence, where the court looks at what type of civil case it is (e.g. a simple contract dispute versus a serious allegation like fraud) • the nature of the subject matter of the proceedings, where the court considers what the case is about and how significant the issue is • the gravity of the matter alleged, for instance how significant or serious the allegations are, which can affect how strongly the evidence needs to establish the facts. Therefore, the civil standard of proof requires courts to carefully weigh all evidence and determine, on the balance of probabilities, which version of events is more likely to be true.
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Review 9.4 questions
1. Who carries the burden of proof in a civil case? What does this mean? 2. Identify the standard of proof in civil cases. Explain how it is different from criminal cases. 3. Outline the factors that section 140 of the Evidence Act 1995 says the court must consider when deciding if the standard of proof has been met. 4. Taylor is suing Jordan for $5,000, claiming that Jordan’s dog damaged Taylor’s garden. Taylor provides photos of the damaged garden and a statement from a neighbour who says they saw Jordan’s dog in Taylor’s yard. Jordan denies the claim and provides evidence that his dog was at a boarding kennel on the day of the alleged damage. a. Identify who has the burden of proof in this case. b. Discuss the factors listed in section 140 of the Evidence Act 1995 that the court should consider when deciding if the standard has been met. c. Discuss whether it is more difficult to prove a case in criminal law or civil law. Explain your answer. Go online to assign and download questions, view results and more!
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9.5 Procedures in NSW tribunals and civil courts LEARNING OBJECTIVES 9.5 DESCRIBE the procedures in NSW tribunals and civil courts. DESCRIBE alternative methods of resolving disputes.
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Civil courts
Civil proceedings are court actions that occur due to disputes between individuals, such as breach of contract, property disputes and negligence. They are initiated by individuals or organisations, rather than the state. Civil proceedings must be heard in video widget reporting a court exercising civil jurisdiction.
There are many differences between criminal and civil law court cases. Before we look at civil court procedures in more depth, we should be familiar with some of the key differences and the relevant terminology. Some of these are outlined in Table 9.5.1. There can be an overlap between criminal and civil law. The victim in a case that has been heard in a criminal court may also wish to gain compensation for injuries caused by the defendant. They can, therefore, take their case to a civil court as well. In both cases, the adversarial system of trial will be used to decide the legal outcome. That is, representatives of the parties put forward both sides of theword case to quiz involved willquestions download a judge and sometimes to a jury. The judge will consider the evidence and make a decision in favour of one of the parties.
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Table 9.5.1 Key differences between criminal and civil court proceedings Criminal
Civil
People
A prosecutor and a defendant
A plaintiff and a defendant
Who brings the case to court
The state
An individual or organisation
Onus to prove the case
On the prosecutor
On the plaintiff
Standard of proof
The prosecutor must prove the case beyond reasonable doubt. (This is a higher standard of proof than is required in civil cases.)
The plaintiff must meet the balance of probabilities. (This is a lower standard of proof than is needed in criminal cases.)
Video 9.5.1 Criminal and civil court procedures
Court procedures
The person who brought the civil action, called “the plaintiff”, begins proceedings by issuing a statement of claim or a summons to “the defendant”, who is the individual or organisation that committed the breach or wrong. The process in a civil claim, a statement of claim, outlines the facts of a dispute and the parties involved in the dispute. There are strict rules for the way in which a statement of claim must be “served” on the defendant. As discussed in Chapter 4, which court has the jurisdiction (i.e. authority) to decide a civil matter depends on the type of claim and the monetary amount involved. The documents that the defendant and plaintiff exchange and file with the court (these documents set out the issues to be decided by the court) are
statement of claim an official court document lodged by the plaintiff to start a civil case, explaining what the dispute is about, the key facts involved and what outcome or remedy the plaintiff is asking the court to order
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pleadings written statements of the parties to a civil dispute that set out the issues to be decided by the court
called pleadings. Therefore, the statement of claim or originating application is the first pleading in the sequence of the case. There may be many pleadings, alternating between the parties, over the course of a case. The defendant responds with a statement of defence. This statement may deny or challenge the plaintiff’s allegations or admit them, but they may also plead additional facts to counter the effect of admitting to them. A defendant may also file a counterclaim against the plaintiff.
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At this stage, the parties can obtain more information about each other’s arguments through a process called “discovery”. This process allows each party to obtain information to assist them to respond to the other party’s claims and allegations. Interrogatories are written questions submitted to the other party, which must be answered. They must be relevant to a matter in question. At this point, many civil disputes are resolved, as a settlement can be agreed on by both parties. In most cases, legal practitioners prepare the documents, as they have an understanding of the processes and can give appropriate and timely advice on legal matters. If a dispute cannot be settled, the matter is referred to trial. During a trial, each side has the right to produce evidence, call witnesses and carry out cross-examinations. When both sides have presented all their evidence, the judge makes a ruling. If the plaintiff is successful, the judge determines the amount of relief (or compensation) to be Figure 9.5.1 First page of a statement of claim given to the plaintiff by the defendant. This compensation usually takes the form of damages in a monetary form or an injunction, which is a court order prohibiting specified activities. Sometimes a specific performance is required under the judgment.
Tribunals
Tribunals offer a less formal and less expensive method of dispute resolution than courts. Individuals do not normally need legal representation as often it is not even permitted, and the person presiding over the tribunal may have specialist expertise rather than specific legal training. Their background should enable them to understand the details of the dispute, and they ensure that the principles of natural justice are applied, so that all the parties have an opportunity to put forward their position, and nobody is disadvantaged.
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Division, Guardianship Division and the Occupational Division) and deals with various types of disputes between individuals, as well as between individuals and organisations.
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NCAT resolves civil disputes through a clear and accessible process designed to promote fairness and efficiency. A dispute begins when the applicant lodges an application outlining the issue and the remedy sought, after which the respondent is notified to ensure procedural fairness. Before a formal hearing, parties may exchange evidence and participate in conciliation or mediation to resolve the matter early. If the dispute proceeds to a hearing, it is conducted by an NCAT member in a less formal setting than a court, with parties presenting their evidence and arguments without the need for legal representation. Decisions are made on the balance of probabilities, and the member may issue legally binding orders such as compensation, repairs or enforcement of agreements. Disputes between individuals are often heard by NCAT’s Consumer and Commercial Division. This includes disputes about repairing or replacing a fence between two residential properties, excessive noise or pet ownership within a block of units or townhouses, as well as appeals from previous judgments. For example, in Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1, Howarde disputed a decision made by the Consumer and Commercial Division. This appeal was based around Howarde and his partner being able to live permanently in a cabin they purchased at the Hacienda Caravan Park. Hacienda attempted to evict Howarde under the Residential Parks Act 1998 (NSW), on the basis that Howarde had purchased the cabin from another tenant, so he did not have a permanent arrangement with Hacienda and therefore could not live on Hacienda’s property. NCAT upheld the appeal. NCAT procedures enhance access to justice by providing a low-cost, timely and fair alternative to traditional court processes.
RESEARCH 9.5.1
The NSW Civil and Administrative Tribunal (NCAT) plays an important role in resolving civil disputes quickly, cheaply and fairly. In this task, using the website of NCAT, you will investigate how NCAT operates and evaluate its effectiveness in achieving justice for individuals and society.
1. Outline the steps involved in resolving a dispute at NCAT, including application, conciliation/mediation and hearing. 2. Explain how alternative dispute resolution, such as conciliation, is used at NCAT and why it is encouraged. 3. Research ONE real NCAT civil dispute and complete the following: • identify the parties involved • describe the civil issue(s) in dispute • outline the outcome or decision • describe the remedy ordered (if any). 4. Evaluate how effective NCAT is in achieving justice using at least two criteria, such as: • accessibility of the law • achievement of justice • resource efficiency • enforceability of legal measures • protection of individual rights.
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Alternative dispute resolution
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Seeking a court-based remedy can be expensive in terms of both money and time. There has been pressure to provide alternatives to court processes for solving legal disputes. It has been estimated that the average civil case costs between $30,000 and $40,000, which puts many average wage earners in a precarious position should they lose. Logically, any claim against another party for less than this amount would seem useless, yet the financial cost of loss or damage below this amount may still be significant to the person who suffers it.
Alternative dispute resolution uses a variety of methods to resolve disputes between parties without Figure 9.5.2 Israel Folau made an unfair dismissal claim against Rugby Australia in 2019. The case highlighted a rise in employees involving court processes. It allows the participants to being sacked for social media posts and underscored tension save time and money and to have more control over between perceived religious freedoms and employee codes proceedings. Alternative dispute resolution may be as of conduct. In the end, this claim was resolved through courtsimple as two parties talking through their dispute or ordered mediation. as complex as court-ordered mediation or arbitration. Mediation involves a neutral third party attempting to help parties come to an agreement. In arbitration, the neutral third party makes a decision that is binding on the parties involved in the dispute. These dispute-resolution options are negotiation, mediation and conciliation, and arbitration.
Negotiation
Negotiation is a discussion between two or more parties with the aim of reaching a mutually beneficial outcome. It involves consideration of the other party’s views and, often, some degree of compromise. Many parents teach their children negotiating skills and you would probably be surprised at how often you negotiate with friends, teachers and parents. In a legal sense, negotiation is frequently the first stage of resolving a dispute between parties. Negotiation only involves the parties to a dispute and hence is usually low in cost.
Mediation and conciliation
Mediation and conciliation are similar procedures and are usually confidential. Both processes involve a neutral and independent third party who helps the parties to negotiate their disagreement and come to a decision that is mutually acceptable. A mediator does not provide advice on the matters or impose a decision on the parties. They may not have specific expertise in the subject area but will be highly skilled in the process of mediation. By using their negotiation and listening skills, the mediator is able to assist conflicting parties to examine the issues and develop their own strategies for dispute resolution. In conciliation, the third party also helps the parties to identify the issues, consider alternative options to solve the dispute and reach an agreement. In contrast to a mediator, the conciliator may advise the parties. However, they do not make a decision for them. A conciliator may be a legal practitioner or professionally qualified in the subject matter of the dispute. They will be responsible for managing the process, explaining the rules and acting as an umpire. The disputing parties may also have their own legal advisers during a conciliation process.
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Arbitration
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Arbitration is a formal process in which an independent third party (the arbitrator) is used to determine how a dispute can be resolved. It is useful when the subject matter of the dispute requires an expert and/or when a court-like procedure is desired (with a greater degree of confidentiality). The process is used, for example, when a contract specifies the use of arbitration to resolve disputes in industrial relations matters or in tenant and landlord disagreements. Moreover, it has become the preferred procedure in Australia for the resolution of commercial contract disputes. Table 9.5.2 Strengths and weaknesses of alternative dispute resolution Strengths
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Alternative dispute resolution (ADR) can be very informal. Parties not experienced in the legal system feel more at ease and are therefore more likely to exercise their rights. The informal process is less intimidating and less rigid than court procedures. ADR can provide a quick resolution to a dispute. Many cases can be resolved quickly, providing for more timely resolution of disputes. ADR processes are generally cheaper than court proceedings as there are fewer legal fees and shorter time frames. Discussions and outcomes are private, unlike court hearings, which are public. Parties have more input into the outcome and can create flexible solutions. Parties are more likely to be satisfied with the outcomes as they are part of the decision-making process. When parties reach a decision, it is a “winwin” situation The less adversarial nature of ADR encourages cooperation rather than conflict. Legal representation is not required.
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There may be an imbalance of power with informal processes because one party may dominate negotiations, leading to unfair outcomes. In mediation and negotiation, parties are not required to reach or follow an agreement unless it is formalised. ADR may not be suitable for serious matters where cases are complex or involve public interest, and therefore may require court determination. An arbitration decision is made for one party and as a result one party may be antagonised by the decision made. There may be enforcement issues. If an agreement is not formalised, enforcement may require going to court anyway. Parties may settle for less than they are entitled to in order to avoid further stress or cost.
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1. Identify the differences and similarities between civil and criminal court cases. 2. Draw a diagram that shows the steps taken in civil legal action. 3. Describe the role of a neutral third party in mediation. Go online to assign and download questions, view results and more!
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9.6 The role of legal personnel and the jury in a civil trial LEARNING OBJECTIVES 9.6 DESCRIBE the roles of legal personnel and the jury in a civil trial. note taking
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Like criminal trials, civil court proceedings involve a number of legal and non-legal participants. There are some overlaps with criminal trials, but also some differences. 1
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Figure 9.6.1 Court cases involve a number of participants, including: 1 judge; 2 judge’s associate; 3 tipstaff; 4 barristers and solicitors; 5 witnesses; 6 court officers; and 7 court reporter.
Judges
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Writing focus 9.6 Transitional note taking phrases
Civil proceedings, like criminal cases, are presided over by a judge. Judges sit in intermediate and superior courts (District and Supreme Courts) and adjudicate cases. In most civil cases, the judge sits without a jury and therefore is responsible for the scorcher A judge is in charge of the NSW Local Court. After hearing both sides of final decision. the case, and if there is no jury, a judge decides in favour of the plaintiff or defendant, and the amount of money to be awarded.
Plaintiffs and defendants
The person who brings a civil action against someone else is called the “plaintiff”. This is different from a criminal trial, where the action is brought by the Crown, who is represented in court by the prosecutor – there is no plaintiff.
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The person who must defend their actions in a civil case is called the “defendant”. In criminal cases, the defendant may also be known as the “accused”, but this term does not apply in civil proceedings.
Barristers and solicitors For each state and territory, there are separate associations for solicitors and barristers, and in New South Wales, solicitors and barristers are issued different practising certificates. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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People seeking legal advice usually contact a solicitor first. Solicitors give legal advice to people on a wide range of legal issues, both civil and criminal. Solicitors have completed a law degree and have carried out relevant work experience to achieve their qualification. Solicitors may work in a number of practice areas. Some of the main areas of civil law that solicitors work in are family law, conveyancing for real estate transactions, and the preparation of wills and contracts.
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If a case seems likely to go to court, the solicitor will do research and provide legal advice. They may also prepare a brief for a barrister to represent their client. However, in the Local Court in NSW, or Magistrates Court in the ACT, it is more common to see solicitors appearing on behalf of their clients. Barristers are more often seen in higher courts. Barristers often specialise in one area of law (e.g. family law), which allows them to develop a depth of knowledge and expertise in the area. They have two main roles in court proceedings:
• to provide legal advice on the likely outcome of a court case, based on the facts provided to them by their client; this allows the client to decide which course of action is best • to present their client’s case in court.
Witnesses
In a civil trial, a witness gives evidence regarding the case in court. Both parties can call witnesses to support their claims.
Jury
Civil proceedings, like criminal trials, may be heard by a jury: a panel of citizens randomly selected from the jury list, which is compiled from the electoral roll. Members of the jury consider the evidence presented and decide on questions raised in a case. Their job can be described as “fact-finding”, and a jury’s decision is called a verdict. Civil cases may be heard by a judge alone or sometimes (in NSW) with a jury of four people; however, in the Supreme Court, the court may order a jury of 12 jurors under the Jury Act 1977, section 20.
Before a civil court case begins, members of the jury are sworn in. If a civil jury is used, parties can challenge jurors; however, the rules are different from criminal trials. Challenges for causes apply in civil trials; for example, a party may challenge a juror if they are ineligible, disqualified or biased. Peremptory challenges exist; however, the number is much smaller than in criminal trials. In NSW civil trials, each party is entitled to three peremptory challenges. These challenges do not require a reason.
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Review 9.6 questions 1. Outline the role of a judge in court proceedings for the NSW Local Court versus the NSW District Court or NSW Supreme Court. 2. Identify the types of legal representations available to a person who is having legal problems in a civil case. 3. Describe the roles of the judge and the jury in a civil court case. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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9.7 Types and aims of remedies LEARNING OBJECTIVES 9.7 DESCRIBE the different types of remedies and their aims.
Civil remedies are legal solutions designed to redress harm or enforce rights when a civil wrong occurs. In NSW civil law, the aims of remedies are to achieve justice by addressing the harm suffered by the plaintiff and to restore the parties to their original position before the wrong.
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Remedies can also serve a punitive or deterrent function, discouraging particularly wrongful or negligent behaviour in the future. They promote enforcement by ensuring that laws, contracts or rights are respected and followed, and they provide recognition and justice by formally acknowledging that the plaintiff’s rights have been violated. Together, these aims allow civil remedies to uphold fairness, accountability and the rule of law within society.
Damages
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The most common remedy for any civil action is an award of damages. Damages are a monetary compensation awarded by the court and paid by the defendant to the plaintiff. scorcher
Where the action is for breach of contract, damages are viewed as a substitute for performance of the contract – that is, for the other party doing what they agreed to do by signing the contract. Thus, damages are designed to put the plaintiff in the position they would have been in if the contract had been performed properly, that is, to compensate them. The amount of compensatory damages is intended to provide the plaintiff with the benefits that they would have had if the defendant had kept the agreement. Damages are not intended to punish the defendant. The amount awarded will depend on the sum claimed by the plaintiff and the jurisdiction of the court. Monetary damages ensure that the plaintiff is financially or materially restored for any losses or injuries. Damages fall into the following categories:
• Specific or special damages compensate the plaintiff for items that can be measured, such as medical and hospital expenses and loss of income. • General damages are awarded to compensate a plaintiff for non-economic loss that cannot be precisely measured in money. This includes pain and suffering, loss of enjoyment of life, emotional distress, psychological injury and loss of amenities resulting from the defendant’s wrongful conduct. Unlike special damages, general damages are not based on receipts or exact calculations. Instead, the court assesses them by considering factors such as the severity of the injury, its impact on the plaintiff’s daily life and how long the effects are likely to last. The aim is to fairly compensate the plaintiff for the intangible harm they have suffered.
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For example, if a person is injured in a motor vehicle accident due to another driver’s negligence and suffers ongoing back pain and anxiety that prevents them from working or enjoying hobbies, the court may award general damages to compensate for their physical pain and reduced quality of life, in addition to any special damages for medical expenses or lost income. • Exemplary damages, (also known as punitive damages) in a NSW civil case, are awarded in exceptional circumstances to punish the defendant for particularly egregious, malicious or reckless conduct, rather than to compensate the plaintiff for loss. The purpose of exemplary damages is to deter others from acting in the Figure 9.7.1 Unauthorised electrical work could be a breach of contract. same way and to make the defendant an example to the rest of the community. In New South Wales, courts will only award exemplary damages where the defendant’s conduct shows a conscious disregard for the rights or safety of others, such as abuse of power or deliberate wrongdoing.
Other remedies
There are a number of other remedies the court may award to a successful complainant, including:
• Injunction – This is an order usually directing a party not to do something (e.g. ordering the defendant to cease the conduct breaching the contract). In some cases, an injunction may require the party to do something (e.g. require a telephone customer to remove wiring that they installed and that was not authorised by the telephone company). • Specific performance – This is an order in which the court specifies the way in which the breaching party to a contract must perform their obligations. Specific performance is only ordered if the amount of damages provides insufficient compensation. • Rescission and modification of contract – In this case, the court will set aside a contract and restore the parties to their original precontractual position. • Special order – This is an order for rectification of the wrong (e.g. the repair of defective goods).
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Review 9.7 questions 1. 2. 3. 4. 5.
Define civil remedies in the context of civil law. Describe the purpose of damages as a civil remedy. Distinguish between special (specific) damages and general damages. Explain the purpose of exemplary (punitive) damages in civil law. Outline two non-monetary remedies that a court may award in a civil case.
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9.8 Case study on key concepts of justice: Donoghue v Stevenson [1932] LEARNING OBJECTIVES 9.8
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EXPLAIN the key concepts of justice as illustrated in the case Donoghue v Stevenson [1932].
Figure 9.8.1 The Donoghue v Stevenson case transformed the tort of negligence.
Civil law includes a set of protections and processes designed to ensure fairness between parties in dispute, particularly where one party alleges harm caused by another. In negligence cases such as Donoghue v Stevenson, civil law establishes the principles that guide how responsibility is determined, including the existence of a duty of care, whether that duty was breached and whether the plaintiff suffered loss as a result. These rules operate alongside procedural safeguards such as standards of proof, rules of evidence, judicial oversight and avenues for appeal to ensure that both plaintiffs and defendants are treated fairly. Together, these elements form the foundation of modern civil liability and underpin the development of negligence law that emerged from landmark cases, such as Donoghue v Stevenson.
Key civil law protections and processes:
• Rules regarding the establishment of duty of care – Courts determine whether a legal relationship exists that requires one party to take reasonable care to avoid harming another, as established in Donoghue v Stevenson through the “neighbour principle”. • Guidelines for assessing breach of duty – The court evaluates whether the defendant failed to meet the standard of a reasonable person in the circumstances. • Causation – Plaintiffs must show that the defendant’s breach caused their harm. • Burden and standard of proof – The plaintiff carries the burden of proof and must establish their case on the balance of probabilities, a lower standard than in criminal law. • Rules for gathering and presenting evidence – Both parties may present evidence, challenge the other side’s claims and rely on expert testimony where needed. • Judicial discretion in awarding remedies – Judges determine appropriate remedies, such as damages or injunctions, ensuring compensation aligns with the loss suffered. • Appeal pathways – Parties may appeal decisions on questions of law, procedure or, in some cases, the amount of damages awarded. A key court decision in civil law, which laid the foundation for modern laws around negligence and duty of care, was Donoghue v Stevenson [1932] (also known as the “snail in the bottle” case). This case was heard in the English House of Lords.
Facts of the case A friend bought May Donoghue some ginger beer in a dark glass bottle, which prevented Donoghue from seeing the contents. Some ginger beer was poured into a glass for her, which she drank. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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When the remaining ginger beer was poured into the glass, a decomposing snail came out of the bottle. This made Donoghue feel quite ill, and later she suffered from severe gastroenteritis. She sued David Stevenson (the respondent), who was the manufacturer of the ginger beer.
Issue to be proven Donoghue alleged that Stevenson had failed in his duty of care to provide:
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• a system of working his business that would prevent snails from getting into ginger beer bottles • an efficient system of inspection of the bottles before they were sold to consumers, including clear bottles that would make it easier to inspect them. Until Donoghue v Stevenson, individuals had no rights against suppliers with whom they did not have a contract. As Donoghue did not actually buy the ginger beer and, thus, had no contractual relationship with the manufacturer, this was a key issue of law the court had to consider.
Outcome
The 1932 case was the culmination of a series of appeals. In 1930, the Scottish Court of Session, Outer House (roughly the equivalent of a state Supreme Court in Australia) found that Stevenson had been negligent. Stevenson appealed to the Court of Session, Inner House, which allowed the appeal. In 1931, Donoghue appealed to the House of Lords, which handed down its judgment in May 1932. The court held that a manufacturer is under a legal duty to the consumer to take reasonable care that the article will not cause injury to health.
Lord Atkin, one of the presiding judges, referred to the precedent case of Heaven v Pender (1883) 11 QBD 503, which established that “under certain circumstances, one man may owe a duty to another, even though there is no contract between them”.
However, Lord Atkin went further than the narrow decision in the Heaven case, citing obiter dicta (comments other than the main legal tenet of the case) of the dissenting judge, Brett MR, who extended the notion of a duty of care to anyone in a position where failing to use “care and skill in his conduct … would cause danger of injury”. The majority of the judges agreed that manufacturers owe a duty of care to consumers, especially where consumers cannot reasonably inspect the product before use. Lord Atkin explained that negligence law is based on the idea that people should not act in ways that harm others. He introduced the “neighbour principle”, stating that people must take reasonable care to avoid actions that could foreseeably harm others who are closely and directly affected by their actions. In law, a person’s “neighbour” is anyone who could reasonably be expected to be affected by their behaviour.
Significance Donoghue v Stevenson became a landmark decision and formed the basis of the tort of negligence worldwide. This occurred not only because of the judgment relating to non-contractual duty of care but also because of Lord Atkin’s “neighbour principle”:
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[T]here must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances … The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. Lord Atkin, Donoghue v Stevenson [1932]
The decision promoted justice by ensuring that individuals could seek legal remedies even without a contractual relationship. Before this case, consumers had no rights against manufacturers if they did not purchase the product themselves. By establishing a general duty of care, the court recognised that manufacturers must take reasonable steps to prevent harm to consumers. This change protected individuals from negligence and held businesses accountable, creating a fairer system. For the community, the ruling reinforced public safety and trust in products, as companies were now legally required to maintain standards. Lord Atkin’s “neighbour principle” extended justice beyond contracts, ensuring that anyone who could foreseeably be harmed by an act or omission was protected. This principle remains essential for fairness because it balances rights and responsibilities, preventing harm and promoting accountability in society.
ANALYSIS 9.8.1
Investigate the case Strong v. Woolworths Limited T/as Big W and Anor [2012] HCA using the following link and answer the questions below. https://cambridge.edu.au/redirect/11822
1. Explain how the “neighbour principle” in Donoghue v Stevenson has been applied in Strong v Woolworths Limited. 2. Explain how this case highlights the relationship between law, justice and society.
Figure 9.8.2 A slip hazard lead to serious injuries and a lawsuit.
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Review 9.8 questions 1. Outline the brief facts in Donoghue v Stevenson. 2. Describe the features of the neighbour principle. 3. Outline the features of the law of negligence that came out of Donoghue v Stevenson. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Civil law governs the relationships between individuals or between individuals and organisations or companies. The key elements of civil law include breach, causation and loss. Different types of civil law include tort law, contract law, family law, property law, industrial law and administrative law. Torts are civil wrongs, which include negligence, trespass, nuisance and defamation. Where a civil wrong has been committed, tort law allows the injured party to recover money or other remedy in compensation. Contracts are voluntary agreements made between two or more people that are recognised by the courts as being legally binding on the parties. Contracts can be either written or oral, or both. For a contract to exist, the following elements must be present: the intention of both parties to create legal relations, an offer by one party (the offeror), the unconditional acceptance of that offer by the other party (the offeree), consideration from the offeree and legal capacity of both parties. Determining which court hears a civil case depends on the amount of damages sought in civil cases. In a civil matter, the burden of proof is on the plaintiff and the standard of proof is on the balance of probabilities. Alternative dispute resolution uses a variety of methods to resolve civil disputes between parties without involving the court process. These methods include negotiation, mediation, conciliation and arbitration. The New South Wales Civil and Administrative Tribunal resolves disputes through a clear and accessible process designed to promote fairness and efficiency. Civil cases may be heard by a judge alone or with a jury of four people. Civil remedies are legal solutions designed to redress harm and enforce rights. Civil remedies can include general damages, specific damages, exemplary damages, injunctions or a specific performance. Donoghue v Stevenson was a significant case that established a duty of care to others outside of a contractual relationship: the “neighbour principle”.
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Multiple-choice questions
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1. Which of the following best explains what a plaintiff must prove to succeed in a civil action? A. That the defendant intended to cause harm, acted dishonestly and refused to apologise B. That the defendant breached a legal duty, that the breach caused the harm and that the plaintiff suffered actual loss C. That the defendant broke a criminal law, the police investigated the matter and the plaintiff experienced emotional distress D. That the defendant acted unfairly, the plaintiff disagreed with their behaviour and a contract existed between the parties 2. Which of these statements about the burden and standard of proof in civil law is true? A. The defence in a criminal trial must prove that the defendant is innocent, beyond reasonable doubt. B. The defendant in a civil trial must prove that the plaintiff’s case is flawed, on the balance of probabilities. C. The plaintiff in a civil trial must prove their case on the balance of probabilities. D. The plaintiff in a civil trial must prove that the defendant is guilty beyond reasonable doubt. 3. What can a plaintiff expect from a successful tort claim? A. A plaintiff can expect compensation from the defendant in the form of damages. B. A plaintiff can expect compensation from the state. C. A plaintiff can expect an injunction to prevent the defendant from approaching the plaintiff’s solicitor. D. A plaintiff can expect an order of specific performance. 4. What principle did Lord Atkin establish in Donoghue v Stevenson? A. That consumers should always check items that they buy for defects B. The “neighbour principle” C. The law of tort D. That contracts only protect parties to a contract 5. How many jurors are typically selected for a civil trial? A. 8 B. 12 C. 6 D. 4
6. Which of the following best describes defamation under the Defamation Act 2005 (NSW)? A. Any statement that offends another person, regardless of whether it harms their reputation B. Any negative comment made online, even if it is true and supported by evidence C. A false statement that damages a person’s reputation, whether published in permanent form or spoken temporarily D. A statement that only becomes defamatory if the person suffers proven financial loss
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Short-answer questions 1. Describe tort law. 2. Discuss the notion that tort law has turned us into a society that sues each other when things go wrong. 3. Distinguish between conciliation and mediation. 4. Explain how civil remedies can be a deterrent.
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5. Distinguish between nuisance and trespass.
Extended-response question
Assess the effectiveness of the New South Wales Civil and Administrative Tribunal (NCAT) in achieving justice for individuals. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 9.9.1 Answering an exam question
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Disputes with the state
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • • • • • •
describe the purpose and characteristics of administrative law outline reasons that individuals and groups have disputes with their governments describe ways to address disputes through non-government organisations and the media describe ways to address disputes through government reviews, courts and tribunals describe the role of the Ombudsman in investigating complaints and providing remedies explain the purpose of a Royal Commission outline the findings and recommendations of some Royal Commissions explain the key concepts of justice as illustrated in the response to the Bondi terrorist attack.
RELEVANT LAW
IMPORTANT LEGISLATION
Judiciary Act 1903 (Cth) Administrative Review Tribunal Act 2024 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Commonwealth Electoral Act 1918 (Cth) Referendum (Machinery Provisions) Act 1984 (Cth) Privacy Act 1988 (Cth) Electoral Act 2017 (NSW) Administrative Decisions Review Act 1997 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Health Records and Information Privacy Act 2002 (NSW) Criminal Records Act 1991 (NSW)
SIGNIFICANT CASES Commissioner of Police (NSW Police Force) v Joshua Lees [2025] NSWSC 858 Bagley v NSW Police Force [2025] NCATAD 318 FEB19 v Minister for Immigration and Citizenship [2025] FedCFamC2G R v Dawson [2022] NSWSC 1131 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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10.1 Administrative law LEARNING OBJECTIVE 10.1 DESCRIBE the purpose and characteristics of administrative law.
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Administrative law is a key branch of public law in Australia, governing the actions and decisions of government agencies and officials. Its purpose is to ensure that public administration is conducted lawfully, fairly and efficiently, by providing mechanisms for oversight and accountability. This area of law plays a crucial role in protecting the rights of individuals when interacting with government authorities. scorcher Administrative law in Australia is governed by key federal legislation such as the Administrative Review Tribunal Act 2024 (Cth) for merits review, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for judicial review, and the principles of common law. At the state level, New South Wales relies on the Administrative Decisions Review Act 1997 (NSW) for merits review as well as common law and constitutional principles for those matters under judicial review.
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merits review a review of a government decision whereby an unbiased tribunal “stands in the shoes” of the original decision-making agency in order to determine if the initial assessment was made in an impartial, download pdf transparent and equitable manner
natural justice a process whereby decision-makers must act fairly, in good faith and without bias, while providing each party to a dispute an opportunity to adequately state their case
Purpose of administrative law Administrative law:
• holds government decision-makers accountable for their actions, ensuring they act within the powers granted to them by law and follow proper procedures • provides means for individuals to challenge government decisions that affect them, safeguarding against misuse of power and ensuring fair treatment • requires that decisions are made impartially, transparently and based on relevant considerations, promoting procedural fairness (natural justice) • encourages government agencies to operate efficiently and transparently, improving public confidence in administrative processes • provides predictability in government decision-making and ensures that like cases are treated alike by setting out clear rules and procedures. Not all government actions can be contested through administrative law; matters such as policy choices and the provision of advice are excluded. An example of a decision that cannot be challenged is a government decision to increase taxes. However, the actions of government departments administering policy determinations can be challenged under administrative law. In this way, a taxpayer could challenge their tax assessment under administrative law, on Figure 10.1.1 Administrative law holds government decision-makers certain specific grounds. accountable for their actions.
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In Australia, administrative law is complicated due to our different levels of government. An individual must be aware of which government body was responsible for the action before they can challenge it. An individual has a number of options for requesting a review of a decision made by a government agency. These include internal review, external review and judicial review.
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• An internal review occurs where a decision made by an officer of an agency is reviewed by another person in the agency. • An external review involves an outside party who reviews the decision independently and formally, similar to a tribunal. • A judicial review is where a court determines if the decision is lawful and rational by focusing on legal validity under relevant legislation.
Key characteristics of administrative law
Administrative law oversees government actions and decisions, focusing on both their substance and procedural fairness. It ensures rights such as a fair hearing and unbiased decision-making. Legal remedies include merits review by tribunals, judicial review in courts, Ombudsman investigations and freedom of information requests.
MEDIA 10.1.1
NSW anti-protest law ruled unconstitutional after Palestine Action Group court challenge Jordyn Beazley, The Guardian, 16 October 2025
The New South Wales supreme court has struck down a law that had given police expanded powers to prevent protests near places of worship.
Josh Lees, on behalf of the Palestine Action Group, had challenged the law on the basis that it was unconstitutional. Justice Anna Mitchelmore ruled on Thursday that the police powers impermissibly burdened the freedom of political communication implied in Australia’s constitution. The challenge came after the NSW government in February made changes aimed at curbing antisemitism. This included a law which gave police the power to move on protesters who were “in or near” a place of worship. It raised fears that the broad powers could see police shut down protests at major sites in Sydney, including Town Hall and Hyde Park, which are near places of worship. The move-on powers did not stipulate that the protest needed to be directed at the place of worship – it could be about anything.
During the hearing in June, lawyers for the Palestine Action Group argued the “vagueness” of the legislation’s wording created a “chilling effect” as neither protesters nor police officers could determine the reach of the powers. The state of NSW had argued that the laws had an “obvious and legitimate purpose” of protecting religious communities trying to access a place of worship from physical obstruction, physical or verbal harassment, intimidation or incitement to fear.
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However, Mitchelmore said in her judgment that she did not accept that submission by the state. “[The law] is directed at protest activity, removing a limitation on police giving directions in relation to an apparently genuine demonstration or protest,” she wrote. “Protests and procession routes in areas of civic significance will likely place protestors in close physical proximity to places of worship, and the marginal burden imposed by [the law] goes further than the constitutionally valid baseline in a meaningful way.”
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Catalyst for the bill The court heard the catalyst for the places of worship bill was a protest outside the Great Synagogue where a member of the Israel Defense Forces was speaking.
Figure 10.1.2 Josh Lees, from the Palestine Action Group, announces his challenge regarding protesting laws at the Supreme Court of NSW on 17 March 2025.
“[It] was not a religious event,” PAG’s barrister, Felicity Graham, had told the court.
Lees told reporters after the judgment was delivered: “The Palestinian group has not organised a single protest targeting a place of worship.
“These laws were about targeting anyone who protested near a place of worship, even if it had nothing to do with that place of worship.”
After the judgment was handed down, NSW Greens MP Sue Higginson said the premier, Chris Minns, should have heeded the calls from members of his own party.
“When governments create moral panics, they make grave mistakes and they do go too far,” she said. The ABC: “There have been 700 instances of antisemitic attacks over the summer”.
ANALYSIS 10.1.1 Read Media 10.1.1 and answer these questions. 1. 2. 3. 4.
Who mounted a challenge to the New South Wales anti-protest laws and why? Why were the Palestine Action Group (PAG) worried about these legislative changes? What was the principal argument presented to the court on behalf of the PAG? How did Justice Mitchelmore respond to the state of New South Wales’s court submission? Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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RESEARCH 10.1.1 The NSW Police Force derives most of its powers from the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Use the New South Wales Supreme Court link below to answer the following research questions regarding recent challenges to this state power. https://cambridge.edu.au/redirect/12071
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1. Identify both the plaintiff and the defendant in Commissioner of Police (NSW Police Force) v Joshua Lees [2025] NSWSC 858. 2. Why did this dispute occur? What was the result of this challenge to state power? 3. According to the statutory framework (law), what is the procedure that must be followed if a citizen or group wishes to organise an authorised public assembly?
Figure 10.1.3 Palestine Action Group protesters march across Sydney Harbour Bridge, 3 August 2025.
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1. Outline the main purposes of administrative law in Australia and how it ensures government accountability. 2. Describe the three types of review available to individuals who wish to challenge a government agency’s decision. Provide a brief explanation of each. 3. Explain why administrative law is considered complicated in Australia. 4. Why is procedural fairness (natural justice) important in administrative law? What are two key elements of this principle? Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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10.2 Reasons for disputes with the state
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LEARNING OBJECTIVE 10.2 OUTLINE reasons that individuals and groups have disputes with their governments.
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Disputes between individuals and groups with the state are typically rooted in perceived injustices, administrative errors or conflicting interests. Addressing these conflicts often involves legal processes, Ombudsman services, or negotiation and mediation. Understanding the main reasons for such disputes can help inform fairer policies and more effective conflict resolution mechanisms.
Disagreements over laws and regulations
Writing focus 10.2 Conjunctions note taking – (subordinating reasons why)
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Individuals may find themselves in conflicts with the state when people disagree with laws or regulations. For example, in 2014, Sydney’s so called lockout laws were introduced to curb alcohol-related violence. This legislation faced criticism for being scorcher too strict and harming nightlife and small businesses, despite reducing assaults in Kings Cross. The lockouts and alcohol sale bans changed the culture of the city and led to business closures. Recently, however, these laws have been relaxed, with new measures introduced to balance patron safety, responsible service of alcohol protocols, security, and incident registers.
Administrative decisions and bureaucratic actions
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Many disputes arise from government decisions, such as denying permits or benefits, which individuals may perceive as unfair. In Bagley v NSW Police Force [2025] NCATAD 318, Bagley appealed the revocation of their gun licence after a welfare check. The NSW Civil and Administrative Tribunal ruled in favour of Bagley, overturning the decision and reinstating the licence with conditions. Refusals of social welfare benefits are also a common source of disputes between individuals and the state. Arguments over social welfare benefit refusals often occur when individuals are denied support, such as unemployment payments or disability pensions, due to unmet eligibility criteria, documentation issues or administrative errors. Applicants may feel their circumstances were not properly considered or that decision processes lacked transparency. Issues such as language barriers or insufficient legal help can also hinder applicants.
Figure 10.2.1 Refusals of social welfare benefits are a common source of disputes between individuals and the state.
When refused benefits, people can request an internal review or appeal to independent tribunals, which check if decisions were lawful and fair. Legal aid and advocacy groups assist with appeals to ensure rights are protected.
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RESEARCH 10.2.1 Explore the following links and answer the research questions that follow: https://cambridge.edu.au/redirect/12072 https://cambridge.edu.au/redirect/12073 https://cambridge.edu.au/redirect/12074
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1. Describe the evolution of what became known as “robo-debt”. 2. Prior to robo-debt, how did Centrelink calculate the fortnightly payments for those people in receipt of social security payments such as Newstart, Austudy and Youth Allowance? 3. How did robo-debt change the above system? 4. What do you understand by the notion of the robo-debt’s reverse onus? How did Centrelink penalise individuals that had not engaged with the new system? 5. How did the victims of robo-debt challenge state power? To what end?
Property and land use issues
Conflicts can also arise from compulsory land acquisition, zoning rules or property tax disputes. For example, property owners may object to a government’s compulsory acquisition of their land for a new rail line or airport if compensation seems inadequate or the process feels unfair. Zoning changes can also spark disagreements, especially when they affect property values or restrict development, prompting owners to challenge the rezoning that limits their plans.
Taxation and financial obligations
Disputes between individuals and the state are also common in areas such as taxation and financial obligations. These usually relate to individuals contesting assessments, fines or the fairness of the tax system itself. Disagreements can arise over the amount owed, eligibility for deductions or the transparency of the tax process. Tax disputes often arise when individuals challenge assessments due to perceived errors in income reporting, deductions or tax law interpretation. Taxpayers may dispute calculations, exemption applications or overlooked exceptional circumstances by seeking review or appealing to tribunals to ensure fairness. These processes are essential for public trust in the tax system and provide clear means for resolving disagreements.
Enforcement of rights and civil liberties
As previously covered in Chapter 7, individuals may feel that their basic rights and freedoms are being infringed upon by government actions. Examples include disputes over freedom of speech, assembly, privacy or discrimination. Actions such as police searches, restrictions on protests or surveillance can lead to legal challenges against the state.
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Access to services and benefits Conflicts can arise when people are denied essential public services, such as medical care, schooling or help with housing, due to eligibility disputes, administrative errors or unclear requirements. Individuals may feel that the criteria for accessing these supports are too strict, unfairly applied to their circumstances or not properly communicated, leading to appeals or legal advocacy to ensure transparency in decision-making.
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Immigration and citizenship issues
quash to say officially that something, especially an earlier official decision, is no longer to be accepted
Issues related to visas, residency status, deportation or citizenship applications can lead to disputes with immigration authorities. Individuals may challenge decisions they perceive as unjust or not in accordance with the law. For example, in FEB19 v Minister for Immigration and Citizenship [2025] FedCFamC2G, the applicant sought a judicial review of an Administrative Appeals Tribunal decision affirming a Minister for Immigration resolution to refuse the issue of a protection visa. In this case, the Federal Court found that a jurisdictional error had been made by the Administrative Appeals Tribunal and ordered that its original decision should be quashed and reconsidered according to law.
Figure 10.2.2 Refugee supporters participate in a Justice for Refugees rally in Sydney 2022.
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Describe two reasons why individuals or groups may have disputes with the state. Explain how administrative decisions can lead to disputes between individuals and the state. Explain how disagreements over taxation or financial obligations can result in conflict with the state. Discuss how one type of dispute reflects tensions between individual rights and government authority. Go online to assign and download questions, view results and more!
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10.3 Addressing disputes through non-government organisations and the media
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LEARNING OBJECTIVE 10.3
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DESCRIBE ways to address disputes through non-government organisations and the media.
Non-government organisations (NGOs)
People can form groups based on shared political values or aims. Individuals can join these groups and engage in activities of various types or donate money to fund their activities. Within their spheres of interest, NGOs are often known for raising video widget reporting public awareness of issues, challenging the activities of corporations, and pushing governments for policy reform.
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They also use administrative law to challenge government decisions. NGOs can bring matters to administrative tribunals for review, and launch or support court actions to test the legality of government decisions. Following are some examples of NGOs that engage in disputes with the state.
Greenpeace
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download word Greenpeace is an international environmental organisation that aims to protect and conserve the environment by campaigning against threats such as climate change, deforestation, overfishing and pollution. Its primary focus is to promote sustainable solutions, influence policy changes and raise public awareness on critical environmental issues through non-violent direct action and lobbying efforts.
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In Australia, Greenpeace uses administrative law to monitor enforcement of nature laws, such as looking at government development approvals. Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143 is often viewed as the first case to specifically litigate climate change. In this case, Greenpeace challenged Singleton Council’s granting of consent to the construction of a power station in the Hunter Valley, on the grounds that it would increase the greenhouse effect. This case was unsuccessful, but it was an important landmark in environmental disputes with the state.
Australian Conservation Foundation (ACF)
The Australian Conservation Foundation (ACF) is dedicated to advocating for the protection of Australia’s natural environment. Its main goals are to preserve Australia’s unique wildlife, habitats and ecosystems; address the impacts of climate change; and encourage the transition to clean energy. The ACF works by mobilising communities, conducting research and engaging in policy advocacy to ensure a healthy and thriving environment for current and future generations. In October 2025, the ACF lodged a legal challenge against federal Minister for the Environment and Water, Murray Watt, who had granted an extension for the operation of Woodside gas plant. The ACF argues that this decision was not made
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lawfully under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) because the Minister did not allow for the climate impacts of Woodside’s plans. The case is listed to be heard in July 2026.
GetUp!
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GetUp! Action for Australia describes itself on its website as “an independent campaigning community … working to build a progressive Australia and put people back into politics”. It seeks to influence government decision-making and increase public participation in politics.
Campaigns GetUp! has been involved in include calls to increase regulation of poker machines, close tax loopholes for corporations, protect freedom of information, and review the AUKUS security partnership with the UK and the US.
The organisation engages its members through email and social media to coordinate campaigns and advocacy. In particular, it provides online petitions and form letters to make it easy for individuals to add their voices to campaigns.
In addition to pushing for policy changes, GetUp! uses the tools of administrative law to challenge government decisions. One example of this was Getup Ltd v Electoral Commissioner [2010] FCA 869. In this case, GetUp! successfully challenged a decision by the Australian Electoral Commission to reject an online application to enrol to vote.
Trade unions
Figure 10.3.1 In September 2024, nurses and midwives across New South Wales went on a 24-hour strike and marched to NSW Parliament, demanding a better pay rise. conciliation a form of alternative dispute resolution where disputing parties make use of a conciliator who advisers both parties, suggesting alternatives and encourages both sides to reach an agreement; the conciliator does not make the decision arbitration a form of alternative dispute resolution in which disputing parties present their case before an arbitrator, who makes a decision that is binding on both parties
Trade unions are formed by groups of workers to protect their rights and negotiate conditions such as safety, wages and employment terms. In Australia, industrial relations have focused on conciliation and arbitration, with strikes used only as a last resort.
In the 1970s, the Builders Labourers Federation implemented “green bans” to prevent the demolition of heritage sites in Sydney for development. These actions successfully preserved areas including a park in Hunters Hill, terrace houses in Victoria Street Potts Point, and The Rocks.
Trade unions in NSW have recently been involved in a number of disputes with the state over pay and working conditions. Nurses and midwives staged statewide strikes to demand higher wages and better staffing, while rail workers used industrial action, such as work bans and reduced services that disrupted transport, during a prolonged pay dispute. Doctors and paramedics have also taken action, arguing that staff shortages and low pay affect both workers and public safety. These disputes show how trade unions address conflict with the state through negotiation, industrial action and public campaigning to pressure governments to respond.
The media The media addresses disputes with the state by investigating issues, raising public awareness and placing pressure on governments to act. This can include investigative
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reporting, exposing government wrongdoing, amplifying public concerns and influencing public opinion. Citizens can voice concerns about perceived unfair decisions through petitions, campaigns or media outreach. Major media coverage has sometimes led to decisions being overturned, as seen in R v Dawson [2022] NSWSC 1131.
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In this example, renewed media attention on the disappearance of Lynette Dawson, including investigative reporting and podcasts, brought the case back into the public spotlight. This increased public pressure contributed to further police investigation and legal action, eventually resulting in a conviction. This shows how the media can influence dispute outcomes by holding the state accountable and encouraging further investigation or review.
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Review 10.3 questions 1. 2. 3. 4.
Outline ways in which non-government organisations address disputes with the state. Describe how the media can influence the outcome of disputes with the state. Explain how trade unions use industrial action and negotiation to address disputes. Analyse how either the media or a non-government organisation has influenced the resolution of a specific dispute. Go online to assign and download questions, view results and more!
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10.4 Addressing disputes through government reviews, courts and tribunals
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LEARNING OBJECTIVE 10.4
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DESCRIBE ways to address disputes through government reviews, courts and tribunals.
Challenges to decisions of government or government bodies can also be made on a formal legal basis. The avenue of review that is pursued depends on the nature of the complaint and whether it is made against a federal or state decision.
Government reviews
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freedom of information the principle that people should be able to have access to information relating to the administration of government decisiondownload pdf making and information held by the government
In New South Wales, government departments can conduct internal reviews regarding their own decisions, procedures or behaviour. This is a cost-effective way of addressing disputes, but it means that sometimes the people undertaking the review may be scorcher also part of the action under investigation. This can reduce the effectiveness of the outcome. A significant example of an internal review in New South Wales involved the Combined Pensioners and Superannuants Association of NSW (CPSA). After a booking fee was introduced for country train fares for its membership in 2006, the CPSA requested documents from RailCorp under the now-repealed Freedom of Information Act 1989 (NSW) regarding community consultation, because the Minister for Transport had claimed there was strong public support for the new fee. The CPSA’s application was denied, so it requested that RailCorp perform an internal review. Interestingly, the review of the decision contradicted the Minister’s claim, finding that there had been no community consultation.
CASE STUDY 10.4.1
Privacy bodies
Laws at both state and federal levels restrict the release of your personal information to companies, government agencies or individuals. The Privacy Act 1988 (Cth) allows a person to file a complaint if the Federal government or a private organisation misuses their data, including health details. Government departments must legally protect individuals’ personal information when collecting and storing it.
For example, if a person is convicted of a criminal offence, disclosure of this information is limited. Under the Criminal Records Act 1991 (NSW), most minor offences become “spent” after a period without further crimes. A spent conviction does not need to be disclosed to employers, insurers or banks, and releasing such information without authorisation is penalised. In New South Wales, privacy is mainly protected by the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002. Individuals who believe their personal information has been misused can request an internal review or file a complaint with Privacy NSW.
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The courts: Judicial review Australian law courts, at both state and federal levels, are empowered by the Australian Constitution to provide remedies for unlawful actions by federal government officers. Section 39B of the Judiciary Act 1903 (Cth) grants the Federal Court similar authority over administrative decisions. Judicial review allows courts to assess whether government decisions were made lawfully but does not evaluate the quality or appropriateness of those decisions.
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What is legal can vary depending on the circumstances of each case, but generally, decisions are subject to the following requirements:
• The decision must be unbiased, and the person affected must have the opportunity to be heard (natural justice). • The decision must be authorised by the Act under which it was made and must be based only on relevant considerations. • The decision-maker must have jurisdiction to make the decision. • The decision must be justified by appropriate evidence. • The decision-maker must have observed all procedures required by law in making the decision, and there must have been no errors in law.
Judicial review requires standing, meaning only those directly affected by an issue may seek it. Allowing anyone to request judicial review would lead to significant costs. If a court finds a decision flawed, remedies depend on the type of error made by the decision-maker. They include:
• prohibition – an order that stops a decision from being made or implemented • certiorari – an order that reverses a decision that has already been made • mandamus – an order that compels the decision-maker to perform certain types of public duties that have not been performed • injunction – an order that prohibits the decision-maker from implementing an invalid decision or compels the performance of a duty in decisions where mandamus is not available.
New South Wales statutory bodies
Statutory bodies are authorities created by statute for a public purpose. Some statutory bodies can investigate complaints and disputes of certain types. For example, the Anti-Discrimination Board of NSW, part of the NSW Attorney-General’s Department, was established under the Anti-Discrimination Act 1977 (NSW) to promote equal opportunity and protect against discrimination based on disability, age, race and sex. It advises the government, informs the public of their rights and responsibilities, investigates complaints, and can issue fines for violations.
Commissions of inquiry can be set up to investigate specific issues. They cannot prosecute offenders but can issue reports with recommendations, which may include suggesting prosecutions. Governments can choose whether to follow these recommendations. Notable examples are Commonwealth and state Royal Commissions (see Section 10.6) and the Independent Commission against Corruption in New South Wales.
Royal Commission the highest form of independent public inquiry in Australia and other Commonwealth countries, established by the government to investigate serious matters of public importance
RESEARCH 10.4.1 Go to the Independent Commission Against Corruption (ICAC) website and answer the following questions. 1. What are the functions of the ICAC?
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Administrative and other tribunals quasi-judicial relating to a body or process that resembles a court and can make decisions, but is not a formal court of law
Administrative and quasi-judicial tribunals review certain government decisions, providing a faster, cheaper way to resolve legal matters. Unlike courts, they have limited jurisdiction, are informal, often exclude lawyers, and can consider various factors beyond strict evidence rules.
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One example at the federal level is the Administrative Review Tribunal (ART), which conducts merit reviews of decisions made by Australian government agencies, departments and ministers. Areas it offers reviews of include immigration and citizenship, Centrelink payments, taxation, and many other decisions made under Commonwealth (federal) laws. The ART began operating on 14 October 2024, replacing the previous Administrative Appeal Tribunal.
One tribunal in New South Wales is the NSW Civil and Administrative Tribunal (NCAT), which deals with disputes between consumers and businesses, or tenants and landlords, as well as between individuals. The NCAT was established in 2014, replacing several other tribunals, including the former Administrative Decisions Tribunal of New South Wales. The NCAT consists of four divisions and an appeal panel:
• The Administrative and Equal Opportunity Division reviews administrative decisions by NSW government agencies in areas such as privacy, community services, firearm licensing and working with children checks. It also handles complaints from the NSW Anti-Discrimination Board. • The Consumer and Commercial Division is responsible for resolving everyday disputes around housing, consumers and businesses. • The Guardianship Division takes applications about adults who have a decisionmaking disability and may need a legally appointed decision-maker. • The Occupational Division reviews government agency decisions about occupational licensing, including drivers, security guards and travel agents. It also hears discipline cases dealing with professionals working in the health, legal, veterinary, architectural and building fields. • The Appeal Panel offers an avenue for those who want to appeal a decision made by one of the other NCAT divisions. It can also hear designated external appeals.
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Review 10.4 questions 1. 2. 3. 4.
Define judicial review. What are some remedies a court can provide if a government decision is found to be unlawful? Explain the difference between internal and external reviews when challenging government decisions. Explain the role of the NSW Civil and Administrative Tribunal (NCAT) in resolving disputes. Explain how statutory bodies such as the Anti-Discrimination Board of NSW and the Independent Commission Against Corruption (ICAC) contribute to addressing disputes with the state. Go online to assign and download questions, view results and more!
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10.5 The Ombudsman video
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LEARNING OBJECTIVE 10.5 DESCRIBE the role of the Ombudsman in investigating complaints and providing remedies.
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The Swedish Parliament established the Justitieombudsmannen (citizens’ defender) in 1809. Australia later adopted this idea, creating Ombudsman offices by statute in New South Wales in 1974 and quizfederally in 1977. questions download word
The office serves as an external authority with legal power to investigate citizen complaints. Public sector and relevant private agencies, such as non-government schools and childcare providers, can use the Ombudsman to address grievances against them or their staff. While the NSW Ombudsman cannot impose penalties, they may make recommendations to the department involved or to the NSW Parliament. The Commonwealth Ombudsman acts as an independent office designed to ensure fairness and accountability in public administration. The Ombudsman’s aims are as follows:
• Investigate complaints – The Ombudsman receives and reviews complaints from the public about government departments, agencies or officials; it looks for evidence of maladministration, unfairness or improper conduct. • Resolve disputes – Rather than taking sides, the Ombudsman seeks to resolve disputes impartially, often by recommending solutions, improvements or video widget reporting compensation without the need for costly or lengthy legal action. • Improve government practices – By identifying patterns of complaints or recurring problems, the Ombudsman suggests changes to administrative policies and procedures, helping make government services more effective and responsive. • Uphold citizens’ rights – The Ombudsman ensures that all individuals are treated fairly and lawfully by government bodies. For example, the Commonwealth Ombudsman reviews issues including Centrelink payments, immigration decisions and law enforcement conduct, and can recommend quiz changes or solutions. Each Australian state andquestions territory also has its own Ombudsman download word for local concerns.
Any citizen may submit a written complaint to the Ombudsman. Complaints are addressed only if there is a prima facie case, meaning it is supported by witnesses or strong, irrefutable evidence. If a written complaint is received, the Ombudsman will investigate and, if valid, recommend solutions.
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Video 10.5.1 Commonwealth Ombudsman Iain Anderson talks about the role of the Ombudsman.
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prima facie (Latin) at first sight; the evidence is enough to prove the facts
The Ombudsman plays an important educational role in raising public awareness about citizens’ rights and the proper processes for lodging complaints. By providing clear, accessible guidance and resources, the office ensures that individuals understand both the standards expected of public authorities and the avenues available for redress. Outreach activities, public reports and the publication of guidelines all contribute to a culture where government accountability is proactively encouraged. This educational function also supports vulnerable or marginalised groups, enabling them to seek fair outcomes when they might otherwise be unaware of their rights or hesitant to come forward.
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2024–25 NSW Ombudsman snapshot
Figure 10.5.1 A snapshot of the work of the NSW Ombudsman in 2024–25 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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A key feature of the Ombudsman’s process in New South Wales is its commitment to thorough, independent and confidential investigations. When a complaint is received, the office conducts its inquiries impartially, gathering evidence from both the complainant and the agency concerned. This impartiality is essential to maintaining public trust, as citizens must have confidence that their concerns will be treated seriously and not influenced by political or organisational interests. The Ombudsman also has the authority to access documents, interview witnesses and inspect premises, if necessary, ensuring that investigations are robust and comprehensive.
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Following an investigation, the Ombudsman’s recommendations often lead to specific remedies for individuals and broader changes within agencies. In cases where maladministration or improper conduct is found, the office can suggest reforms to procedures, request apologies or facilitate compensation. Importantly, even when no formal finding is made, the Ombudsman may still identify areas for improvement, prompting agencies to review their practices to prevent future issues. Over time, this ongoing oversight not only resolves individual grievances but also strengthens the overall integrity and responsiveness of public services in New South Wales.
CASE STUDY 10.5.1
Ombudsman NSW Casebook January 2026
Use the link below to view the case study:
https://cambridge.edu.au/redirect/12076
ANALYSIS 10.5.1
Read Case Study 10.5.1 and answer the following questions.
1. Outline one of the NSW Ombudsman’s central functions. 2. According to the Ombudsman Act 1974 (NSW), under what conditions may the Ombudsman investigate the conduct of a public authority? 3. According to the Case Study regarding “CCTV confirms damaged number plates”, what was the complaint the Ombudsman investigated? 4. How did the Ombudsman resolve the complaint outlined in “CCTV confirms damaged number plates”?
REVIEW 10.5 Online quiz
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Review 10.5 questions
1. Identify the years in which the Commonwealth Ombudsman and the NSW Ombudsman were set up in Australia. 2. Outline the role of the Office of the Ombudsman in New South Wales. What are its main aims? 3. Explain how the educational role and investigative powers of the NSW Ombudsman contribute to improving public administration and protecting citizens’ rights. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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10.6 Royal Commissions LEARNING OBJECTIVE 10.6 EXPLAIN the purpose of a Royal Commission.
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OUTLINE the findings and recommendations of some Royal Commissions.
Aboriginal and Torres Strait Islander students are advised that the following content contains discussion about Aboriginal deaths in custody. Students are encouraged to choose their level of engagement and should be supported by educators to prioritise their wellbeing, cultural safety, and that of their families and communities.
The purpose of a Royal Commission
A Royal Commission is an independent investigation carried out for the public. In Australia, Royal Commissions represent the most serious and authoritative type of inquiry into issues of major national importance. They are only created in rare situations when the matter is considered highly significant.
Royal Commissions can happen at either the federal or the state level. Commonwealth Royal Commissions can only inquire into matters that relate to the Commonwealth’s responsibilities, such as the 1991 Royal Commission into Aboriginal Deaths in Custody; the 2019 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry; and, more recently, the 2026 Royal Commission into Antisemitism and Social Cohesion. An example of a state-based Royal Commission is the 1997 Royal Commission into the New South Wales Police Service.
How a Royal Commission operates
Letters Patent a published legal order issued by an Australian GovernorGeneral (federal) or Governor (state), granting a Royal Commissioner authority to lead an inquiry
The Prime Minister or Premier initiates a Royal Commission by advising the King’s representative to establish the inquiry. The Governor-General or state Governor then issues “Letters Patent”, formally creating the Commission under the Royal Commissions Act 1902 (Cth). A Royal Commission, once established by Letters Patent, operates independently. The government sets its terms of reference and timeframe but cannot halt it. The final report goes to the Governor-General (or Governor) and is then tabled in parliament. Royal Commissions are highly authoritative bodies. They have the power to:
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find out why specific events happened work out who is accountable for actions and decisions make findings and recommend changes to policies and legislation summon witnesses to appear before it request individuals or organisations to produce documents as evidence.
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The findings and recommendations of Royal Commissions The Royal Commission into Aboriginal Deaths in Custody The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was a landmark 1987–1991 Australian inquiry investigating deaths of First Nations people in custody. video reporting It identified systemic failures and racism as the widget main cause of high incarceration rates of Aboriginal people.
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Key findings
The main findings of the RCIADIC were that:
• First Nations people died in custody at similar rates to non-Indigenous people, but their disproportionate presence in the justice system meant more deaths overall. • Aboriginality played a dominant role in being in custody and dying in custody. police andquestions prison authorities were identified. • Major failures by governments, quiz download word
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Key recommendation areas
In 1991, the RCIADIC made 339 recommendations for systemic change, focusing on preventing deaths by:
• addressing underlying causes of First Nations deaths in custody • improving justice system practices (e.g. making imprisonment a last resort, diversionary programs, easier bail and non-custodial options for intoxicated persons) • reducing First Nations over-representation in the justice system • improving prison conditions (e.g. ending solitary confinement for Aboriginal and Torres Strait Islander prisoners and careful treatment around mental illness) • ensuring rigorous, independent investigations of deaths in custody • enhancing police practices (e.g. mandatory training on cultural awareness, better liaison with First Nations communities and rigorous independent investigation for all deaths in custody) • increasing the culture of self-determination by supporting Aboriginal-led legal services and community-controlled programs to address underlying causes for over-representation of First Nations people in the judicial system • providing better healthcare for First Nations people • establishing independent, accountable bodies to monitor the implementation of recommendations • improving coronial inquiries • creating national statistics to monitor First Nations deaths in custody.
Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry
The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was established on 14 December 2017 to investigate wrongdoing in these sectors. Its focus was on actions by financial institutions that caused financial loss and other harm to customers while increasing their own profits. The Commission’s findings were submitted to the Governor-General on 1 February 2019 and tabled in the Australian Parliament on 4 February 2019. Its findings and recommendations can be found at the following website: https://cambridge.edu.au/ redirect/12077.
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Findings
The main findings of the 2019 Banking Royal Commission were that:
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• 22 entities were identified by the Commission as having engaged in possible misconduct • the conduct of these financial organisations was driven by the pursuit of profit and individual gain • this conduct was enabled by an imbalance of power and knowledge between those providing the products and services and those purchasing them • financial service intermediaries (e.g. in superannuation, insurance and mortgage brokers) had conflicts of interest (e.g. commission payments) while acting for customers • the financial service entities that broke the law were not properly held to account by managers or external regulators • inappropriate and misleading practices were used in the sale of insurance products • the Australian Securities and Investments Commission’s (ASIC) approach to enforcement needed to be strengthened, with a greater focus on court action rather than infringement notices • ASIC and the Australian Prudential Regulation Authority (APRA) should be retained, but a third independent authority should be created to assess whether ASIC and APRA carry out their responsibilities • some entities in the finance sector, according to Commissioner Hayne, had been charging fees for “no-service” to an estimated value of $850 million in contravention of the Corporations Act 2001 (Cth). Recommendations
The Banking Royal Commission made 76 recommendations aimed at shifting the finance industry from being a “profit-first” to a “consumer-first”, ethically driven model with a stronger regulatory oversight with clear consequences for misconduct. The main recommendations included:
• introducing BEAR (Banking Executive Accountability Regime) to promote honesty, fairness and greater executive accountability in banking and finance • boosting finance sector accountability by expanding ASIC and APRA’s enforcement powers to address misconduct more assertively • improving consumer protection for those who purchased financial products (e.g. superannuation and insurance) • banning the “hawking” (pressure selling) of superannuation and insurance products to consumers • reforming mortgage broker commissions to reduce conflicts of interest and ensure that brokers act in the borrower’s best interests.
RESEARCH 10.6.1
Conduct research into another Federal or New South Wales Royal Commission (excluding the 2026 Royal Commission on Antisemitism and Social Cohesion). 1. What was the background for the Royal Commission? 2. Create a dot point list of the findings. 3. Create a dot point list of the recommendations. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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REVIEW 10.6 Online quiz
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Review 10.6 questions
U N SA C O M R PL R E EC PA T E G D ES
1. What is a Royal Commission? How is a Royal Commission established in Australia? 2. Outline some of the key powers of a Royal Commission. 3. According to the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC), what were the main causes for the high rates of deaths of First Nations people in custody? 4. Outline some of the key recommendations made by the Royal Commission into Aboriginal Deaths in Custody. 5. Summarise the major drivers of misconduct in the banking, superannuation and financial services industries according to the 2019 Banking Royal Commission. 6. Identify some of the main recommendations the Banking Royal Commission made to improve accountability and consumer protection in the finance sector. Go online to assign and download questions, view results and more!
10.7 Case study of a dispute: Societal demands for the establishment of a Royal Commission following the Bondi terrorist attack LEARNING OBJECTIVE 10.7
EXPLAIN the key concepts of justice as illustrated in the response to the Bondi terrorist attack.
Administrative law helps ensure that government decisions are fair, transparent and accountable. It is based on key principles such as fairness, equality before the law and the right to review decisions. The 2025 Bondi terrorist attack led to widespread demands for a Royal Commission to investigate the incident and the institutional responses.
Facts of the case
On 14 December 2025, around 1,000 people were attending “Chanukah by the Sea” at Bondi Beach Park in Sydney. This annual event is a celebration of the Jewish holiday of Hanukkah (or Chanukah). During the event, two men (a father and son) made an attack on the crowd, throwing in four home-made bombs, and firing on people with a rifle and a shotgun. The bombs failed to detonate, but the attackers shot dead 15 people, and 40 more were injured. The older gunman was killed by police; the younger man was arrested, charged and is facing trial on numerous charges including murder, attempted murder and terrorist acts.
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Authorities and news outlets declared that the attack was motivated by antisemitism and the ideology of the Islamic State (designated by the United Nations as a terrorist organisation). In a press release the day after the attack, Prime Minister Anthony Albanese said it was, “deliberately targeted at the Jewish community”. Although there was no evidence the men were part of a terrorist cell, they had placed Islamic State flags on their car, and had reportedly pledged allegiance to the group.
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The shooting was the worst terrorist attack to happen in Australian history. It was also the first fatal antisemitic attack in this country.
Calls for a Royal Commission
Since late 2023, when the Gaza war began, there had been an increase in the number of antisemitic attacks on Jewish individuals and institutions in Australia. These included a 2024 attack on a Melbourne synagogue, which resulted in property damage and one person being injured. In a news report after the Bondi Beach attack, Prime Minister Anthony Albanese acknowledged that his government could have taken stronger action to combat antisemitism. Immediate government responses to the attack were focused on gun laws, hate speech legislation and improved education about antisemitism. However, there were increasing calls for a federal Royal Commission into antisemitism from prominent leaders of Jewish groups in Australia, other members of the community and from a range of politicians, including the federal opposition. Allegra Spender, the independent federal member for Wentworth (the electorate that includes Bondi Beach), actively engaged with her constituents and advocated on their behalf for increased safety measures and a federal Royal Commission.
Figure 10.7.1 Prime Minister Anthony Albanese (C), his wife Jodie Haydon (2nd L) and Deputy Prime Minister Richard Marles (2nd R) arrive for a memorial for the victims of the mass shooting at Bondi Beach in 2025.
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On 29 December 2025, Anthony Albanese argued against holding a Royal Commission, saying that this would require people to provide public evidence, and so would give a platform for antisemitic voices. He instead presented the terms of reference for a review, conducted by Dennis Richardson, former Director-General of Security, into whether federal agencies performed effectively. He argued that this would be “the sort of inquiry that keeps Australians safe and that does not provide a platform for the worst voices”.
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The Prime Minister’s initial reluctance to establish such a commission highlighted tension between government discretion and public accountability. The following explores the key concepts of justice within administrative law, applying them to the context of the Bondi attack, and examines their relevance to both individual and collective demands for inquiry.
Key concepts of justice in administrative law Fairness
Fairness, or procedural fairness, means that people affected by a decision should have a chance to present their case and respond to information used against them. This includes the right to be heard. In the context of the Bondi attack, fairness meant that victims, communities and the public should have a chance to be heard. The call for a Royal Commission reflected a collective desire for fair treatment, not only in uncovering the facts but also in ensuring that future policies and institutional practices would be shaped by the experiences and concerns of those most affected.
Equality before the law
Equality before the law is a fundamental concept of justice, mandating that all individuals and groups receive equal treatment in administrative processes regardless of status or background. This concept is particularly relevant when state responses to terrorism or extremism risk disproportionately affecting certain communities. The demands for a Royal Commission into the Bondi attack showed how important it is to have impartial investigation and reform. This is to ensure that no group would be unfairly targeted or neglected in the pursuit of security or justice. By adhering to equality before the law, administrative agencies ensure a firm commitment to non-discrimination and inclusivity. This is an essential element for maintaining social cohesion in times of crisis.
Transparency
Transparency in administrative law refers to the openness with which decisions are made and communicated. It involves clearly explaining decisions and making information available to the public. In high-profile incidents such as the Bondi attack, transparency is crucial for building and sustaining public trust. The initial reluctance of the prime minister to initiate a Royal Commission was met with criticism partly because it appeared to lack openness regarding the government’s rationale and decision-making processes. A transparent inquiry procedure, such as that offered by a Royal Commission, allows the public to understand how decisions are made and to examine the evidence behind them.
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Accountability
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Accountability is the obligation of government agencies and officials to answer for their actions and decisions. Administrative law includes processes – such as judicial review, parliamentary oversight and independent commissions – that hold government officials accountable for their decisions. In the aftermath of the Bondi attack, accountability became a central concern for those demanding a Royal Commission. Advocacy organisations and community leaders argued that only an independent, comprehensive inquiry could ensure that failures or shortcomings in institutional responses were properly identified and addressed. The principle of accountability thus underpins public calls for an investigation, helping to maintain public trust in the system and safeguarding against abuses of power.
The right to review or appeal
The right to review or appeal administrative decisions is a key safeguard within the justice system. It allows people to challenge government decisions through courts or tribunals if they believe those decisions are unfair. In the Bondi context, this right is reflected in the persistent advocacy for independent scrutiny, particularly when the initial government response is seen as unclear or inadequate. The ability to seek review or appeal is essential for maintaining confidence in the legal system, as it reassures the public that no decision is beyond challenge and that justice is accessible to all.
Application to the Bondi attack: Principles in practice
The Royal Commission established in response to the Bondi terrorist attack demonstrates the practical application of administrative law’s justice principles. The commission’s terms of reference, investigative procedures and public engagement mechanisms were designed to ensure fairness, equality, transparency and accountability. By providing a forum for both individual and group submissions, the Royal Commission upheld the right to be heard and ensured that diverse perspectives inform its findings. The requirement for reasoned decision-making ensured that all recommendations were supported by evidence and articulated clearly, further reinforcing transparency and procedural fairness.
The Royal Commission’s public reporting and recommendations also served as mechanisms for accountability, requiring government agencies and officials to respond to identified failures and implement reforms. The right to review or appeal is preserved through the possibility of judicial scrutiny of the Royal Commission’s processes and findings, ensuring that the inquiry itself remains subject to the rule of law. In this way, administrative law operates not merely as a set of abstract principles but as a system for safeguarding rights and maintaining public confidence, particularly in moments of national crisis. The response to the 2025 Bondi terrorist attack and the subsequent establishment of a Royal Commission provides a clear case study in the operation of key justice principles within administrative law. Fairness, equality before the law, transparency, accountability, and the right to review or appeal are not merely abstract ideals; they are practical safeguards that guide the conduct of public inquiries and protect the rights of individuals and groups. The tension between government discretion and public demands for investigation highlights the ongoing relevance of administrative law in maintaining procedural fairness and public confidence. As Australia continues to confront challenges posed by extremism and social division, the key concepts of justice remain vital for ensuring that justice is not only done but is seen to be done.
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RESEARCH 10.7.1 1. Outline the type of legislation that was put before the Federal Parliament in the wake of the Bondi terrorist attack. 2. What were the terms of reference for the Royal Commission on Antisemitism and Social Cohesion 2026? 3. At the time this textbook was published, the Bondi Royal Commission was still in progress, but by the time you are reading it they should have been delivered. Investigate the outcomes and outline the findings and recommendations.
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REVIEW 10.7 Online quiz
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Review 10.7 questions
1. Explain how the concept of fairness was essential to societal demands for the establishment of a Royal Commission into the Bondi terrorist attack. 2. Why is equality before the law fundamental to the concept of justice? How was this relevant to the Bondi attack and the Royal Commission that followed? 3. Justify why it is important for Royal Commissions to be transparent. 4. Explain the significance of accountability in the Royal Commission on Antisemitism and Social Cohesion 2026. 5. Explain how the right to review or appeal was important in the context of the Bondi attack. Go online to assign and download questions, view results and more!
Figure 10.7.2 Mourners gather at Bondi Pavillion, 15 December 2025 to honour victims of the shooting at Bondi Beach
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End of chapter Revise and consolidate your learning with these online tools: Download or answer questions online View suggested responses Writing focus worksheets
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Individual and whole class student reports Assign tasks and track results Print chapter tests Create and print custom practice exams
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Teachers can access these additional downloadable resources and Learning Management System features:
Chapter summary • •
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Administrative law in Australia regulates government actions and decisions to ensure legality, fairness and efficiency in public administration. Major federal laws are the Administrative Review Tribunal Act 2024 (Cth) for merits review, the Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review plus relevant common law. State laws such as the Administrative Decisions Review Act 1997 (NSW) offer comparable oversight at the state level. Administrative law ensures accountability for government decisions, protects individual rights and upholds procedural fairness. Government decisions may be reviewed internally by agencies, externally by tribunals or through judicial review by courts. Not all decisions are reviewable: policy decisions (e.g. taxation changes) are generally excluded, although the administration of policy can be challenged. Procedural fairness includes the right to be heard and the right to an impartial decision-maker. Legal remedies include merits review, judicial review, Ombudsman investigations and freedom of information requests. Administrative law is complex, as individuals must identify the correct government body before contesting decisions. Disputes arise from perceived injustices, administrative errors or conflicting interests. Common causes include: • disagreement with laws and regulations (e.g. 2014 Sydney lockout laws) • administrative decisions such as refusal of permits or benefits (e.g. Bagley v NSW Police Force) • social welfare decisions, including eligibility and documentation issues (e.g. robo-debt) • property and land use issues, including compulsory acquisition and zoning disputes • taxation and financial obligations, including challenges to assessments and fines • enforcement of rights and civil liberties (e.g. speech, privacy, discrimination) • access to services such as healthcare, education and housing • immigration and citizenship decisions (e.g. visa refusals) Disputes may also reflect broader tensions between individuals and government authority.
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Individuals may seek internal review, appeal to tribunals or challenge government actions in court. Individuals and groups may organise collectively to challenge state decisions. Non-government organisations (e.g. Greenpeace, the Australian Conservation Foundation and GetUp!) address disputes through advocacy, lobbying, research, public campaigns, and challenges in courts and tribunals. Trade unions represent workers by negotiating with government and employers, and may use industrial action as a last resort (e.g. historical “green bans”). Media coverage and public campaigns can highlight issues and influence government decision-making. State actions affect: • individuals (rights, access to services, opportunities) • groups (recognition, support and resources) • society (order, equity, development and values) Independent bodies such as the Independent Commission Against Corruption, the Ombudsman and Royal Commissions investigate misconduct and administrative issues. Royal Commissions have broad powers to investigate, gather evidence and recommend reforms. These processes promote transparency, accountability and public confidence in government. Case studies such as the call for a Royal Commission following the Bondi terrorist attack show how administrative law principles support justice through fairness, equality, transparency, accountability and opportunities to review or appeal government decisions.
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Multiple-choice questions
1. Which Act provides for judicial review of administrative decisions at the federal level in Australia? A. Administrative Decisions (Judicial Review) Act 1977 (Cth) B. Freedom of Information Act 1982 (Cth) C. Anti-Discrimination Act 1977 (NSW) D. Privacy Act 1988 (Cth) 2. In the case of Bagley v NSW Police Force [2025] NCATAD 318, what was the main issue that led to a dispute with the state? A. Disagreement over business licensing fees B. Revocation of a gun licence following a welfare check C. Denial of a passport application D. Failure to pay parking fines 3. The Ombudsman will only investigate a complaint if: A. there is no existing review process B. the complaint is formally raised by an NGO C. there is a prima facie case D. at least two independent people have submitted a complaint
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4. In the case of FEB19 v Minister for Immigration and Citizenship [2025] FedCFamC2G, what was the outcome? A. The applicant was immediately granted a protection visa. B. The Administrative Appeals Tribunal’s decision was upheld without review. C. The Federal Court found a jurisdictional error and ordered the decision to be reconsidered according to law. D. The immigration authorities’ actions were found to be entirely lawful and unchallengeable.
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5. Which principle of administrative law requires that decision-makers act fairly, in good faith and without bias? A. Judicial review B. Natural justice (procedural fairness) C. Merits review D. Parliamentary sovereignty
Short-answer questions
1. What is the main purpose of administrative law in Australia?
2. What are some common reasons why individuals or groups may have disputes with the state? 3. How can individuals challenge government decisions that they believe are unfair or incorrect?
4. Which types of government actions cannot be challenged through administrative law, according to the state?
5. Why is it important for there to be transparent and accessible processes for resolving disputes between citizens and the state? 6. What are two key elements of the principle of natural justice (procedural fairness) in administrative law?
Extended-response question
Video 10.8.1 Answering an exam question
Discuss the ways in which administrative law in Australia provides mechanisms for individuals and groups to challenge the state. In your answer, refer to the available legal avenues and, where possible, use examples from case studies to illustrate your answer. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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PART
245
Focus area: Changing the law
25 INDICATIVE HOURS OF COURSE TIME
Students are required to complete TWO case studies of law reform: • •
the recognition of land rights in New South Wales and native title for Aboriginal and Torres Strait Islander Peoples ONE other case study of law reform.
OUTCOMES
In this focus area, the student: •
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•
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describes legal principles and judicial processes used in the legal system explains the role, formation and reform of law analyses differing perspectives of individuals, groups and society in influencing the law analyses legal issues to determine the extent to which the law achieves justice for individuals, groups and society uses and analyses a range of sources to assess the
•
effectiveness of the law in addressing issues uses legal concepts to communicate information and legal reasoning to form a judgement.
CHAPTERS
11. Changing the law 12. The recognition of land rights in NSW and native title for Aboriginal and Torres Strait Islander Peoples 13. Sport 14. Sexual assault 15. Young drivers
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CHAPTER
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Changing the law
Enhance your learning with these integrated online resources: Digital workbook
• • •
Suggested responses Download or answer questions online Writing focus worksheets
Videos
• • •
Chapter tests and custom exam creation Writing focus workbook Planning documents
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • • • •
identify the factors which influence change in Australia’s legal system describe the various means of influencing and effecting change in Australia’s legal system outline the established processes which exist to develop and implement legal reform describe the benefits and limitations of the outcomes of legal reform.
RELEVANT LAW
IMPORTANT LEGISLATION
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT) Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Crimes (Amendment) Act 1984 (NSW) Young Offenders Act 1997 (NSW) National Disability Insurance Scheme Act 2013 (Cth) Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth) Family Law Act 1975 (Cth) Crimes (Forensic Procedures) Amendment Act 2007 (NSW) Crimes (Forensic Procedures) Act 2000 (NSW) Family Law Amendment Act 2024 (Cth) Australian Law Reform Commission Act 1996 (Cth) Law Reform Commission Act 1967 (NSW) Jury Amendment (Verdicts) Act 2006 (NSW)
SIGNIFICANT CASES Mabo decision (Mabo v Queensland (No 2) [1992] 175 CLR 1 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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11.1 Reasons for change LEARNING OBJECTIVE 11.1 IDENTIFY the factors which influence change in Australia’s legal system.
U N SA C O M R PL R E EC PA T E G D ES
reporting
Australian society is constantly evolving. Given the speed at which social values change, the law can sometimes seem anachronistic, or slow to respond to the times. The commonly quoted phrase is “society moves ahead and the law limps behind”.
Writing focus 11.1 Question words note taking
anachronistic existing out of its time in history
The law needs to be dynamic for the community to respect and follow it. But mere change scorcher is not enough to constitute “reform”. As the Hon. Justice Michael Kirby, a former member of the High Court bench, wrote: In our language, the word “reform” tends to connote an improvement, an advance: not just for change, a change for the better.
Michael Kirby, 1983, Reform the law: Essays on the renewal of the Australian legal system, Oxford University Press, Melbourne, p. 7.
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social values ethical standards that guide people in their thinking about aspects of their society
public morality standards of behaviour generally agreed upon by the community
Changes to the law should not only recognise the changes taking place in society but should also reflect the changes that have produced better circumstances for significant portions of society, as well as providing protections against harm.
However, changes to the law are not always smooth or easy, as not all members of society may agree with particular changes to the law or see the need for them. The extent of disagreement often depends on the factors that are influencing the need or the impetus for change. Often changes to the law can occur for a range of factors that combine to push the social consciousness to a different perspective or view about a social issue, a change impacting people’s lives to the way the community operates.
Recognising changing values
Social values are standards or principles that guide people
in their thinking about aspects of their society and are underpinned by beliefs about right and wrong. Social values are not necessarily the same as individual values, but they both influence and are influenced by individuals’ judgement. Both individual and social values are shaped by various cultural factors, often including religion.
When the majority of people within a society hold similar views about an issue, the views can be said to reflect public morality. The law must reflect the social values of the majority of the community if it is to stay relevant and be assured of a high rate of compliance.
Figure 11.1.1 Individual and social values are shaped by various cultural factors, including religion.
As Australia is a diverse multicultural society, it can sometimes be difficult to gauge if there is anything approaching consensus on an issue.
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The problem for lawmakers is that public morality is not static; it continues to evolve. These changing social values are an impetus for law reform. There are many examples of legislation that has been introduced, repealed or amended after courts have handed down decisions. Judicial decisions are one way in which legislators and others recognise that the existing law no longer reflects the community’s social values.
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One case of where the law has responded to changing social values is the gradual decriminalisation of homosexuality across the Australian states, starting with South Australia in 1975 and finishing with Tasmania in 1997. In New South Wales, this was enacted through the Crimes (Amendment) Act 1984 (NSW). Other examples include the introduction of same-sex marriage through the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) and raising the age of criminal responsibility to 14 in some jurisdictions, such as the Australian Capital Territory, through the Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT). As recently as 2024 in response to concerns around work–life balance, the introduction of the right to disconnect laws was enacted through the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).
Maintaining relevance in society
Over time the law can cease to be relevant or fail to reflect the society it operates within. It is said that there can be a gap between the law as it is written (de jure) and the way society actually functions.
de jure (Latin) having a right or existence as stated by law
Public intoxication is one example where it was once considered a criminal offence, but over time it has become regarded as a health issue. For more than a century, being “drunk in public” was a criminal offence in New South Wales. This law was increasingly viewed as irrelevant because it treated a health and social issue (addiction/homelessness) as a police matter. Research also showed that these laws were unfairly targeting people who were poor or homeless, or First Nations people. The Summary Offences (Repeal) Act 1979 (NSW) was passed to repeal S22 of the Summary Offences Act 1970 (NSW). More recently the emergence of the “gig” economy posed challenges for industrial laws, which were written for a world of factories and offices. They didn’t account for the “gig economy” where an app acts as an employer but calls the worker a “contractor” to avoid providing employee benefits. The old definitions of “employee” from the 1900s were being used to deny basic protections (such as minimum wage or protection from unfair dismissal) to thousands of digital-platform workers. As a result, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) was passed to address these loopholes.
Figure 11.1.2 A worker set to deliver goods gig economy
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Adapting to technological change
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Advances in technology always put the law under pressure to remain current. New technology contributes to changes that may be either radical and sweeping, or subtle and incremental. For instance, the invention of the petrol-powered motor vehicle changed the way people in industrialised countries lived over the course of the twentieth century, and required the introduction of new laws for safety, ownership and licensing, and (eventually) environmental protection.
Figure 11.1.3 Progress made in birth technologies has required the law to resolve issues about parentage, inheritance and financial maintenance.
The development of life-support devices and treatments since the 1960s has meant that the legal definition of death had to be changed. As it is possible to keep a person’s heart and lungs operating, without brain function, for a significant period, most jurisdictions now define death as the irreversible cessation of all functions of the entire brain, rather than just referring to the cessation of respiration and heartbeat. Under the old common law precedent, a person could not be charged with murder if the victim died more than a year and a day after the assault. However, changes in life-support technology means that they could stay alive for much longer.
More recently, the progress made in “birth technologies” has seen changes made to laws at both state and federal levels to resolve issues about parentage, inheritance and financial maintenance. As children can now be conceived from donated biological material, the law had to clarify and differentiate biological rights and obligations from “social” rights and obligations deriving from the family roles and relationships in which people actually live.
Upholding international standards
Australia is a signatory to many international conventions and treaties, and hence has many corresponding obligations that have been ratified into Australian domestic law as allowed by the Australian Constitution. Australia has implemented several “landmark” Acts to meet obligations and uphold international law under United Nations human rights treaties. The Racial Discrimination Act 1975 (Cth) was passed to legislate the provision contained in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Similarly, the Sex Discrimination Act 1984 (Cth) enabled Australia to ratify the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Further examples include the area of money laundering and terrorism financing under the obligations imposed by the International Financial Action Task Force standards. As a result, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) was passed. Table 11.1.1 Examples of changes to Australian law to uphold international standards Field
International treaty
Australian legislation
Race rights
CERD (1966)
Racial Discrimination Act 1975
Gender rights
CEDAW (1979)
Sex Discrimination Act 1984
Environment
World Heritage Convention (1972)
Environment Protection and Biodiversity Conservation Act 1999
Refugees
Refugee Convention (1951)
Migration Act 1958
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Amending existing or outdated laws Sometimes a law simply goes out of date, because the reasons for passing it in the first place no longer apply. For example, the National Security Act 1939 (Cth) was enacted at the start of World War II to “make provision for the Safety and Defence of the Commonwealth and its Territories in the present state of War”. Once the war was over, many of the provisions in this Act were removed through the Defence (Transitional Provisions) Act 1946 (Cth).
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Addressing the needs of individuals, groups or society
When the law is unable to deliver just outcomes to individuals and the community, there may be a need for law reform. For example, if criminal law is failing victims, the community and/or the accused, new concepts of justice may need to be formulated. In the past, capital punishment for particular murder offences was seen as the most effective way of dealing with the most heinous crimes. This punishment was a case of society delivering pure retribution for a crime: “a life for a life”. It was also suggested that capital punishment provided a strong deterrent to those who might commit murder. However, in a significant number of homicides, the offender and the victim knew each other and many involved extreme breakdowns of family relationships. Many murderers could be described as one-time killers who are unlikely to re-offend. When capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting this punishment had little effect as a deterrent for individuals or gave further protection to the community.
capital punishment the practice of sentencing a person to death by judicial process; also referred to as the “death penalty”
Youth Justice Conferences, established by the Young Offenders Act 1997 (NSW), were introduced to divert young, first-time offenders away from the court system – and help these young offenders avoid getting a criminal record. The aim of these conferences is to act as a “circuit breaker” in a young person’s behaviour trajectory. The flow-on effects of successful interventions reduces individual re-offending and saves significant resources for the community.
The introduction of the National Disability Insurance Scheme Act 2013 (Cth) was designed to change the way the community supported people with a disability, and it recognised that the “group” surrounding a person with a disability (families and informal carers) was under immense pressure. The law moved from a “charity model” (where the state decides what a person needs) to a “rights-based model” (where the individual has the agency to choose their own support). Also, the intention of the Act is for the whole community to benefit when people with a disability can participate in the economy and community life.
REVIEW 11.1 Online quiz
Review questions
Access sample responses and results
Review 11.1 questions 1. Outline some examples where changing social values have influenced changes to the law. 2. Why is it important for the law to remain relevant within the society it operates? 3. Provide some examples where the law has changed to update existing laws or to change outdated laws. Go online to assign and download questions, view results and more!
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11.2 Drivers of change LEARNING OBJECTIVE 11.2 DESCRIBE the various means of influencing and effecting change in Australia’s legal system.
reporting
U N SA C O M R PL R E EC PA T E G D ES
Ways to influence change
Writing focus 11.2 Conjunctions note taking – (subordinating contrast)
There are many strategies that individuals and groups can use to influence change. These strategies depend on the extent to which individuals or groups are organised, have resources at their disposal or their experience, such as a media background or an scorcher of how the channels of the government work. understanding
Activism
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Activism is taking some form of direct public action to advocate for a political or social aim and is widely used in democratic societies, as it aims to create disruption or create pressure through highlighting, or placing in the spotlight, an issue or concern. Sometimes the activism is legal and sanctioned, such as the solidarity march for Gaza in 2025 (estimated participation was 300,000), which was used to signal to the federal government that a significant portion of the population disagreed with its foreign policy.
Figure 11.2.1 Thousands of people march in legally sanctioned protest marches across the country, including Sydney.
Other types of activism can be illegal, such as the 2022 blockading of the Sydney Harbour Bridge by the “Blockade Australia” climate activist group. The group parked a car across several lanes of traffic on the Sydney Harbour Bridge during morning peak hour, and an activist in the car locked her neck to the steering wheel with a “bike lock” device. The protest was unannounced and unauthorised. It caused a total standstill of one of Sydney’s most vital transport arteries. The activist was arrested and initially sentenced to 15 months in prison (later reduced on appeal). This specific event was a primary catalyst for the NSW government passing much harsher “anti-protest” laws shortly after.
Advocacy
Advocacy involves publicly supporting a particular issue or group to influence those in power through raising awareness, making submissions to parliamentary inquiries or directly meeting with ministers of the government. Unlike activism, advocacy often works “inside the system” through established channels such as meetings, letters and lobbying. Advocacy groups are discussed in more detail in “informal methods of change”.
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Public opinion Public opinion is a powerful driver in democratic societies. When there is an overwhelming sense that the public thinks or feels a certain way on an issue, governments tend to pay attention. Public opinion can be defined as the desires, attitudes and beliefs of the majority of the people at a point in time in response to an issue.
U N SA C O M R PL R E EC PA T E G D ES
When the Albanese federal government introduced its world first “social media” bans for children under 16, it was under significant pressure from the major social media platform companies, and even the United States, to not do so. The documented harm to teens and the overwhelming support from the public on the issue convinced the government to continue with the development of the laws, even though there were going to be issues regarding their enforcement. The Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth) was enforced from 10 December 2025.
Investigations, findings and recommendations
There are a range of methods in which issues or concerns within the community can be investigated. This can be through, for example, a Coroners Court, parliamentary inquiry, Royal Commission or special investigation that may be set up after a tragic or terrorist event. Formal methods of change discussed later outline the main formal avenues for investigations to be undertaken. Some are established as permanent bodies with a defined jurisdiction while some are set up in response to incidents, such as the Royal Commission into the Bondi terrorist shooting (see Chapter 10).
Other methods include informal investigations, such as “investigative journalism” into issues like the alleged corruption and intimidation by the CFMEU, the neglect and abuse of children in the early learning sector and conditions in aged-care residences. Many investigations that commenced in the media have led to the establishment of a Royal Commission, a parliamentary inquiry or the questioning of a minister in parliament during question time. The findings and recommendations that are the result of informal investigations can be considered by the government of the day. Some or all the recommendations may be adopted through legislative change, or they may be ignored.
Thousands of protesters gathered in Sydney, Canberra and Melbourne during the visit of Israeli President Isaac Herzog. Activists labelled the visit a “normalisation tour” and protested Herzog’s previous comments about the conflict in Gaza. To manage this, the NSW government declared parts of Sydney “major event areas”. This gave police extraordinary powers to search people and vehicles without a warrant. Following reports of police violence during the protests, independent bodies and members of parliament have called for investigations into police conduct and the use of pepper spray or kettling (a police tactic to contain large crowds or protest). An investigation may be called to assess if the police response was “disproportionate” to the threat posed by peaceful marchers. Not all people within the community agree as they believe the police were acting within the authority given to them by the NSW government.
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Informal methods of change Individuals
U N SA C O M R PL R E EC PA T E G D ES
Informal methods of change are usually a bottom-up process: the individual concerned may be driven by a personal experience, such as a tragedy or financial loss, or they may have encountered an area of the law that \ they believe is failing them or the community. There are many examples of passionate individuals who have been able to harness public awareness, which ultimately results in amendments to or changes in the law. The Wells family played a critical role in the 2007 reform of NSW P-plate laws following a tragic accident that claimed the life of 17-year-old Bryce Wells. Bryce was one of four teenage boys killed in a high-speed crash near Broken Head, NSW. The vehicle was driven by a P-plater who was the sole survivor. Following the tragedy, Bryce’s father, Robert Wells, became a vocal advocate for stricter licensing conditions to prevent similar incidents.
Robert Wells’s advocacy was a primary motivation for the NSW government’s decision to re-examine novice driver safety. He was a prominent member of a government panel tasked with reviewing P-plate restrictions. His emphasis was on limiting the number of passengers a P-plater can carry and increasing the supervised hours required for learners before they can drive on their own.
Figure 11.2.2 P1 drivers under the age of 25 are restricted to carrying only one passenger under the age of 21 between 11 p.m. and 5 a.m.
The result of this advocacy shaped the rules for P-plate drivers in effect today. This includes the “one passenger” rule, which means P1 drivers under the age of 25 are restricted to carrying only one passenger under the age of 21 between 11 p.m. and 5 a.m. Logbook hours were increased to 120 hours of supervised driving (including 20 hours of night driving) to ensure better preparation for solo driving. A total ban on mobile phones was also strengthened for learners and P1 drivers.
RESEARCH 11.2.1
Research one of the following individuals, or one of your own choosing, who has changed the law through their advocacy and answer the questions that follow. • • • • •
Saxon Mullins or Chanel Contos Clarke and Clarke-Johnston families Abdallah and Sakr families Grace Tame Brittany Higgins.
1. Outline the issue or area of law that was the focus of the advocacy. 2. What methods of advocacy did they pursue? 3. What changed as a result of their advocacy and what was the impact of this change?
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Advocacy groups
U N SA C O M R PL R E EC PA T E G D ES
Advocacy groups are organised groups of people who try to influence government ministers or other members of parliament to advance their social or political agenda. These groups provide a key method of engaging the community in the democratic process outside of more formal legal channels. They are sometimes called interest groups or pressure groups. While they can vary from local neighbourhood associations to larger non-government organisations that advocate for change or take direct action such as erecting buildings, they predominantly share the following attributes: • They have a shared mission or cause, usually around a specific issue. • Their purpose is to change outcomes through campaigning, lobbying, taking legal action or mobilising the community.
Figure 11.2.3 First Nations people occupy the foyer and front entry of Parliament House in 2019 in Canberra, calling for government action on climate change and water protection in Australia. Lobby groups often target parliament to advance their social or political agendas.
• They operate outside the structure of government to remain independent, even if they work with government officials or receive government funding that is aligned to their issue or cause. • They usually possess specific expertise in their area of interest and can be another source of credible information outside of vested interests, including the government. • Their goal may be to change the law, to keep a particular existing law or to introduce new laws. • They target members of parliament, parliamentary committees, the media and the public as well as governmental inquiries. • They may do this by writing letters, requesting a meeting with a representative or senator, making policy submissions, writing letters to the editor or calling talkback radio.
CASE STUDY 11.2.1
Protecting NSW Beachwatch
A more recent grassroots example is the “Protecting NSW Beachwatch” campaign to protect the funding for the service that provides information to local community members about whether it is safe to swim at their local beach by monitoring water quality and bacteria levels (especially after rain). In late 2024 and early 2025, there were significant concerns about the program’s long-term funding and the “piecemeal” way data was being shared. Some communities feared they would lose their regular water testing, leaving families in the dark about hidden pollution.
Local community members combined with 12 local councils in Sydney to put a focus on public health and argued that, without Beachwatch, the state was risking the health of thousands of kids and tourists. The group posted real-time photos of stormwater runoff at popular spots such as Coogee and Manly on social media, proving that “official” testing needed to be more frequent and permanent. The campaign was successful: the NSW government committed to sustained, long-term investment in the Beachwatch program, ensuring that councils have the resources to keep testing water quality and communities are provided with the information they need. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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CASE STUDY 11.2.2 Advocacy group – Lone Fathers Association
U N SA C O M R PL R E EC PA T E G D ES
Lone Fathers Association of Australia has been a strong advocate for “shared equal parenting”. This association is a national peak body for separated parents and states on its website that it is a non-sexist, non-sectarian, non-profit and self-help educational and welfare organisation devoted to the interests of lone fathers and their children, as well as their friends, extended family and carers. Membership is open to all separated parents – with the proviso that members must be willing to help financially support their children. Thirty-five per cent of the association’s membership are women. This advocacy group influenced amendments made to the Family Law Act 1975 (Cth) in 2006 intended to encourage the use of non-court-based services to deal with relationship difficulties and separation, and to ensure that children have meaningful relationships with both parents after a separation or divorce. A number of organisations – including the Women’s Community Shelters, Legal Aid NSW and the Women’s Legal Service NSW – made submissions to a state inquiry into the effects of the amendments, expressing concern that they not only subordinated children’s best interests to the interests of the parents, but also offered reduced protections for victims of family violence. A former Chief Justice of the Family Court, Alastair Nicholson, commented that the amendments were “ill-researched, unduly influenced by fathers’ groups and did little to reform family law”. Further reform to the Family Law Act 1975 (Cth) to attempt to address the adverse fallout of the previous reforms, came into effect in June 2012. This is an example where advocacy groups can be important agents of law reform as long as some groups’ interests are not favoured over others simply because they are better organised and can more effectively articulate their views.
Other examples of advocacy groups include the following:
• Young Men’s Christian Association (YMCA) helps to secure millions of dollars through the Housing Australia Future Fund for crisis and transitional housing for women and children. • Australian Childcare Alliance was one of a number of groups that lobbied for the Worker Retention Payment – a 15% pay rise for childcare workers to retain staff in the sector. • Full Stop Australia was influential in changing the consent laws to “affirmative consent” models across various states, including New South Wales.
RESEARCH 11.2.2
View the website of an advocacy group of your choosing and complete the following. 1. Explain their purpose or mission (why do they exist?) 2. What tactics do they use to advocate their issue or cause? 3. Describe with examples how they have influenced changes to the law.
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The media One of the hallmarks of a sound working democracy is a “free and fair” press. This means that the government is not meant to be able to influence what is reported and how it is reported, so stories that reach the public are an accurate account of what is really happening. Another essential feature of a working democracy is diversity of media ownership to dilute the influence of individuals or media companies that may have a particular ideological view to push.
U N SA C O M R PL R E EC PA T E G D ES
Because of their large audience and geographical reach, current affairs programs such as the ABC’s 7.30 are able to interview important political figures, such as the prime minister, state premiers and cabinet ministers, about contentious issues. Keeping citizens informed allows members of the public to apply pressure on governments to address injustice, incompetence or corruption. Thus, the media can be a powerful vehicle for holding governments accountable. The effectiveness of the media in influencing law reform can depend on the politics of the day. For example, an issue that affects voters in a hotly contested electorate, or an electorate that is part of the government’s key support base, is more likely to apply further pressure through media exposure. If an issue does not threaten votes in an electorate or pose a threat to seats in parliament, then the issue may be ignored in the hope that it will eventually fade from public attention. The modern media, particularly in the age of social media, can promote law reform simply by reporting the stories of individuals who suffer discrimination, persecution or financial loss due to a poorly framed law. For example, the plight of victims of sexual assault has received significant attention by all forms of mass media over the past few years as have victims of financial fraud and scams.
Figure 11.2.4 Sarah Ferguson, host of ABC’s 7.30 current affairs program
ANALYSIS 11.2.1
Read the article at and answer the following questions. 1. 2. 3. 4.
Identify the facility with the highest number of hanging deaths and describe what contributed to these incidents. Identify two groups that expressed concern about the continuing prison deaths. Identify one type of hanging point mentioned in NSW prisons. Describe the action the federal attorney-general, who responded to the findings, pledged to take.
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Formal methods of change Legislative process Parliaments today are the institution where most law reform is realised. The process of changing the law occurs through the passage of Bills.
U N SA C O M R PL R E EC PA T E G D ES
However, the impetus for this type of change usually comes from other sources; namely, the conditions or reasons that drove the law reform process. Detailed knowledge of the subject matter is often required to report and comment accurately on areas where reform is needed, and parliamentarians’ expertise does not always extend to this level. The parliament is still a place, though, where proposed laws are debated. This can be a rigorous and intense process, especially if a proposed law is controversial or is a radical departure from previous laws. If a political party holds government, it obviously has a greater chance of its Bills being passed. A Bill’s fate, however, may depend on which party or parties hold the balance of power in the Senate or, in New South Wales, in the Legislative Council.
Judicial decisions
Figure 11.2.5 The Legislative Council, NSW balance of power the power held by the political party whose vote is needed to pass legislation; under the Westminster system of government in Australia, usually determined in the upper house of parliament
The way courts make law through precedent (as outlined in Chapter 3) can be considered a means of law reform. Precedents made in higher courts clarify what the law should be in cases where the law is in an early stage of development or where there is a need to clarify the meaning of words contained in legislation.
Sometimes, matters come before a court before they have been considered by parliament. However, courts do not consciously set out to reform the law. The role of judges is to apply the law to the situation presented to them, so law reform in the courts comes about in an ad hoc way. Although changes to the law do occur because of judicial decisions, they do so over an extended period.
Royal Commissions
A Royal Commission is a major public inquiry into a particular issue, normally one that is considered of great public importance and with strong public sentiment behind it. The Governor-General or a state Governor, on the advice of parliament, appoints a Royal Commission and it has very specific terms of reference. The findings of the Royal Commission are published in a report that also contains recommendations for policy changes.
Examples of federal Royal Commissions include the Royal Commission into Aboriginal Deaths in Custody (1987–1991) and the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (2017–2019). Royal Commissions can also be held at the state level, such as the Royal Commission into the New South Wales Police Service (1994–1997).
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Law reform commissions Law reform commissions have been established by various parliaments within their own jurisdictions to report on matters referred to them under what is called the terms of reference for a particular inquiry. The reports may contain recommendations for ways to modernise or simplify the law, or to eliminate defects.
statutory body an organisation with the authority to check that the activities of a business or organisation are legal and follow official rules
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An essential feature of law reform commissions is that they are independent of the parliament that established them. This is important because political interference in the research and reporting process can skew the findings. It has also been said that when a government provides the terms of reference for an inquiry into an area of law reform, it should not already know the answer. In other words, the government should not know what the end result or recommendations will be.
terms of reference a set of guidelines used to define the purpose and scope of an inquiry
Australian Law Reform Commission
The Australian Law Reform Commission (ALRC) was established in 1975 and operates under the Australian Law Reform Commission Act 1996 (Cth). It is an independent statutory body (i.e. it was established by an Act of Parliament).
harmonisation agreement among the laws of different jurisdictions
The main role of the ALRC is to review Commonwealth laws relevant to matters referred to it by the Attorney-General, to conduct inquiries into areas of law reform in these areas, and to advise the government on how the law can be changed to meet current needs. The ALRC also works to bring about harmonisation of Commonwealth, state and territory laws where possible. The ALRC must ensure that laws, proposals and recommendations do not trespass on personal rights and are consistent with Australia’s international obligations, particularly in the area of human rights. An inquiry involves a process of research and consultation. Once the ALRC has completed an inquiry and report, it makes recommendations to the federal government through the Attorney-General.
Video 11.2.1 Justice Berna Collier talks about her time as a Commissioner of the ALRC. (02:12)
ANALYSIS 11.2.2
Scan the QR code to hear Justice Berna Collier talk about her time as Commissioner of the ALRC.
1. What ALRC contribution to law reform did Justice Berna Collier identify as being the most significant? Discuss why Justice Collier found this contribution to be the most significant. 2. Explain why she believes that the difficulties of keeping up with technological change rank highly as a challenge for law reform in the next decade. 3. Suggest why challenges like these make the ALRC the “ideal vehicle” to assist government in the law reform process.
The government can accept all or some of the recommendations or can ignore the report altogether. Sometimes the political climate at the time may determine whether the ALRC’s recommendations become enacted into law.
In its annual reports, the ALRC publishes a summary of the implementation status of its recommendations. More than 80% of the ALRC’s recommendations have been either substantially or partially implemented by the government. Some of the areas of law recently examined by the ALRC are the federal laws affecting elder abuse, the family law system and the incarceration rates of First Nations Peoples.
elder abuse an act or failure to act to the disadvantage of an older person occurring in a relationship of trust
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NSW Law Reform Commission
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The NSW Law Reform Commission was set up under the Law Reform Commission Act 1967 (NSW). It was the first of its kind in Australia. It has a similar role to that of the ALRC, but at the state level. It considers the laws of New South Wales with a view to eliminating aspects of the law that are out-of-date, unnecessary, too complex or defective. The commission’s role includes consolidating overlapping legislation, hence simplifying the law. The NSW government refers issues to the commission for investigation as to what, if any, law reform is necessary. In its research, the commission will generally consult with the public.
CASE STUDY 11.2.3
Unanimous versus majority jury decisions
hung jury a jury that is unable to reach agreement
In 2005, the NSW Law Reform Commission investigated changing the requirement that verdicts by juries be unanimous to verdicts being majority decisions of 11 out of 12 jurors, or 10 out of 11 jurors. Prior to this inquiry, research in 2002 by the NSW Bureau of Crime Statistics and Research showed that eight per cent of trials in the District Court between 1998 and 2001 resulted in a hung jury. This research also showed that in over 90% of these hung juries the vote was 7–5 or 8–4. Given these statistics, there did not appear to be a strong basis for changing the system. There were not many cases in which a jury was unable to return a verdict because of one juror. Other arguments put forward in favour of majority verdicts were that they would make verdicts quicker and easier, would create less pressure on jurors and would be consistent with most other Australian jurisdictions. Arguments put forward for retaining unanimous jury verdicts included the following: •
• • • • •
unanimity accords with the principle of “beyond reasonable doubt”; arguably, if one or two jurors are not confident that the accused is guilty, that is enough to constitute reasonable doubt unanimity allows for greater deliberation of the issues juries may disagree for good reasons unanimity promotes community confidence in the justice system unanimity is consistent with the requirement of unanimity in trials for Commonwealth offences the number of hung juries is relatively small.
In its conclusions, the commission stated:
“We believe that until a comprehensive study is conducted in New South Wales to determine the existing practices in New South Wales jury trials, and what improvements need to be made, no major overhaul of the jury system should be attempted … The facts are that we simply do not know enough about how actual juries really deliberate and why they reach the decisions they do … Until more information is uncovered as to the problems that need to be addressed, the introduction of majority verdicts would be of limited value”. Despite this advice, the NSW government passed the Jury Amendment (Verdicts) Act 2006 (NSW). It amended the Jury Act 1977 (NSW) to allow majority verdicts of 11–1 or 10–1 after a reasonable time for deliberation has passed (not less than eight hours) and where the court is satisfied that it is unlikely the jury will reach a unanimous verdict.
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This case study, although historical, clearly illustrates that the changes may have been politically motivated, rather than to reform a law that was not working. An appeal to the “law and order” vote has been a common feature of the political landscape since the late 1980s in New South Wales. A reason given for the introduction of the law was to protect the victims of crime from the anguish of a lengthy retrial.
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The extent to which this law will compromise the right of the accused to a trial with the highest standard of proof remains to be seen. The extent to which New South Wales adopts recommendations of the NSW Law Reform Commission usually depends on economic and political considerations at the time. Further, the work of law reform commissions may provide evidence-based advice for governments that can be ignored subject to the political agenda of the government.
RESEARCH 11.2.3
View the website of the Australasian Legal Information Institute and select one of the NSW Law Reform Commission’s completed reports. Provide a brief outline of the following: • •
the purpose of the report the findings of the report.
Ask your teacher for some assistance as you review the report you have chosen.
Parliamentary committees
Parliamentary committees can be established by both Houses of Parliament. For example, at the federal level, the House of Representatives and/or the Senate may not have sufficient time in parliamentary sitting sessions to discuss issues that arise from a particular piece of legislation. There may be flaws in the effectiveness of a law or the legislation may be particularly complex, requiring greater scrutiny. Committees scrutinise government activity, including policy and administrative decisions, and oversee the expenditure of public money. A vote is usually taken to take something to a committee. A committee may involve only senators or only members of the House of Representatives. A “joint committee” has both members and senators.
A “standing committee” is a committee that is permanent during the life of the body that appointed it. Standing committees inquire into and report on matters referred to them by the Senate or House of Representatives, including estimates of expenditure, Bills and the performance of departments allocated to them. An example of such a committee is the Senate Standing Committee on Finance and Public Administration. “Select committees” are small committees appointed for a particular purpose, or a once-only task.
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Hansard a full account of what is said in parliament or in parliamentary inquiries; named after the English printer T.C. Hansard (1776–1833), who first printed a parliamentary transcript
As the hearings are conducted in public, every submission is recorded in Hansard and is available on the internet. At the end of an inquiry, the committee writes and tables a report in parliament.
Independent oversight bodies
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table to begin consideration or discussion
Once a committee has been asked to undertake an inquiry, the terms of reference are drawn up. Members of the public and experts in a field may be asked to give submissions. The committee hears witnesses, examines evidence and formulates conclusions. The media usually attends and reports on committee proceedings.
Permanent specialist agencies investigate particular areas within its jurisdiction or legislative authority. Some examples include:
• Anti-corruption – The National Anti-Corruption Commission or state-based bodies such as the Independent Commission Against Corruption (NSW) investigate “corrupt conduct” by public officials. • Sector-specific – The Australian Competition and Consumer Commission (consumer/competition), Australian Securities and Investments Commission (banking/finance) and the Ombudsman (government administration).
Figure 11.2.6 Submissions are recorded in Hansard.
RESEARCH 11.2.4
View the website of one of the independent oversight bodies listed above.
1. Identify if they are a state or federal body and explain their purpose or mission (why do they exist?). 2. Describe an area of investigation and the outcome.
REVIEW 11.2 Online quiz
Review questions
Access sample responses and results
Review 11.2 questions 1. 2. 3. 4. 5. 6.
Identify one example of how activism can influence law reform. Explain how public opinion can pressure governments to introduce laws. Outline the role of investigations (such as Royal Commissions or parliamentary inquiries) in shaping law reform. Explain how the Wells family contributed to P-plate law reform in New South Wales. Describe the purpose of advocacy groups. Explain how they can influence legislation, using an example. Explain what role the media played in highlighting the issue of “hanging points” in NSW gaols. (Refer to Media 11.2.1 “New data reveals increase in staggering death toll from known hanging points in Australian jails”.)
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11.3 Processes of change LEARNING OBJECTIVE 11.3 OUTLINE the established processes which exist to develop and implement legal reform.
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Legislative methods
Legislative methods are those which take place in parliament and comprise the majority of Australia’s legal reform. Political parties present their policies to the voters before each election, and if voted into power they are expected to fulfil these video widget reporting promises. For example, the Labor Party, under former leader Kevin Rudd, campaigned in 2007 with the promise of repealing John Howard’s “Work Choices” legislation. By the end of 2008, the Rudd government had introduced new workplace relations legislation that abolished some of the harsher elements of Work Choices. In 2012, the Gillard government, being a minority government, had to make many compromises with the Greens Party and independent members of parliament to pass legislation. In contrast, the commanding majority of the Baird Liberal NSW government (2016) made the passage of legislation a smoother process. quiz questions The Albanese government also holds a commanding majority after the 2025 federal election. Powerful evidence has documented that children have suffered as a result of exposure to social-media platforms, cyber bullies and online predators. The Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth) was passed by the Australian Parliament in late 2024 (and came into full effect in December 2025) primarily as a response to what the government described as a “national crisis” in youth mental health.
download word
Writing focus 11.3 Noun phrases note taking (identify)
scorcher
minority government is formed when no political party has enough seats in the House of Representatives to govern on its own, and therefore relies on support from other members download pdf
As parliament is the branch of government that makes law, it will continue to be the main mechanism by which major law reform is carried out.
Amending Acts
Figure 11.3.1 The Social Media Minimum Act 2024 (Cth) came into
effect late 2025. Parliament must pass another Act to amend an existing Act. For example, the Crimes (Forensic Procedures) Amendment Act 2007 (NSW), which changed several sections of the Crimes (Forensic Procedures) Act 2000 (NSW), was enacted and came into force through normal parliamentary procedures. However, you will not find it in the current statutes of New South Wales, because it has been repealed. Indeed, section 4(1) of the Act states that “this Act is repealed on the day following the day on which all of the provisions of
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this Act have commenced”. Amending Acts are passed for a very specific purpose: to amend another piece of legislation. Once this is done, they are often no longer needed, though they must contain a provision to guard against their purpose being “undone” when they are repealed. Section 4(2) of the Crimes (Forensic Procedures) Amendment Act 2007 (NSW) states that “the repeal of this Act does not … affect any amendment made by this Act”.
U N SA C O M R PL R E EC PA T E G D ES
The Family Law Amendment Act 2024 (Cth) contains provisions that took effect on 10 June 2025, which significantly amends the Family Law Act 1975 (Cth). It changes how courts determine property settlements and introduces a specific framework for the ownership of family pets in relationship breakdowns. It also further expanded the definition of “family violence” to explicitly include economic or financial abuse and dowry abuse. The function of an amending Act is just that: to amend. The Act that it amends is called the “principal Act”. View some amending Acts, and previous versions of principal Acts, by choosing “historical notes” or “Acts (as made)” in an online legislation database. Lists of “consolidated Acts” and “in force legislation” will contain Acts that are currently in force; that is, that have not been repealed.
Figure 11.3.2 The Family Law Amendment Act 2024 (Cth) includes ownership of family pets in relationship breakdowns.
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Executive methods
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The executive is the branch of government responsible for putting laws into action and running the country day-to-day. While the legislature (parliament) makes the laws and the judiciary (courts) interprets them, the executive puts laws into effect. In regard to changing the law, the executive initiates the majority of legal changes through developing policy, which at times involves government departments developing discussion papers to test the thinking regarding proposed changes. As the most senior members of the government are a part of the executive, including ministers, they are usually responsible for drafting news laws (Bills) and sponsoring these through the parliamentary process to formal assent.
Judicial methods
Statutory law is made by parliament, but it is interpreted by the courts. They primarily focus on the meaning of the words, viewed in the context of the stated purpose of the legislation. This interpretation sets a precedent, although it may be overruled by a higher court.
A court may also decide that a law made by parliament is not valid; for example, if the law clashes with another law, or if the parliament did not actually have the power to make that law under the state or Commonwealth constitution.
It is well recognised that courts, especially the High Court of Australia, have delivered and will continue to deliver decisions that revolutionise the legal landscape in Australia. An obvious example is the 1992 Mabo decision (Mabo v Queensland (No 2) [1992] 175 CLR 1, which declared that native title still existed within Australia and that the concept of terra nullius was a legal lie perpetuated by the British at the time of settlement. This will be discussed in more detail in Chapter 12.
REVIEW 11.3 Online quiz
Review questions
Access sample responses and results
Review 11.3 questions 1. 2. 3. 4.
Identify the main legislative method used by governments in Australia to develop and implement legal reform. Outline the purpose of an amending Act. Explain how an amending Act operates in relation to a principal Act. What role does the executive play in changing the law? Give reasons why a court may decide a law made by parliament is not valid.
Go online to assign and download questions, view results and more!
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11.4 Outcomes of change LEARNING OBJECTIVE 11.4 DESCRIBE the benefits and limitations of the outcomes of legal reform.
reporting
U N SA C O M R PL R E EC PA T E G D ES
Benefits of reform
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Writing focus 11.4 Noun phrases note taking (identify and develop)
liberal democracy a system of government based on the belief that freedom and equality between people should be protected, and in which power is limited and is held either by elected download pdf representatives or by the people themselves
In a liberal democracy, such as Australia, the law must continue to reflect the public morality of the time but also be responsive to the numerous changes that societies undergo. As Roscoe Pound stated regarding the law, “it must be stable, but it must not scorcher stand still”. Benjamin N. Cardozo, a former US Supreme Court Justice, described the law as a living thing. He stated, “it is meant to breathe and grow alongside the society it protects”. The following section explores the reasons and drivers of change and the processes through which the law changes in state and federal democracies. As a result of these processes, subject to the politics of the time, they predominantly produce positive change, even if that change may be a long time coming. There are many examples contained in this chapter and the case studies that follow. Essentially the benefits of reform can ensure that the law: • r emains socially relevant to individuals and the broader community and is reflective of the times in which it operates • keeps pace with technological and economic changes, and that the gap between the reality of what is going on in society and the law does not widen too far • improves access to justice for all groups • protects the vulnerable, who are not in a position to advocate for their rights or lack of rights.
Figure 11.4.1 Legal reform is for the benefit of a modern, evolving society. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Limitations of reform Sometimes changes to the law are rushed, politically or ideologically motivated, or disconnected from reality, evidence and research. Instead of solving a problem, the law can create greater problems or unforeseen impacts. For example, it has been argued that the current tax system does not favour younger generations, who are increasingly locked out of home ownership.
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The law can also be said to be a blunt instrument. Sometimes one size does not fit all, and laws passed in one area can have an adverse effect on other members of the community. Changes to the law also may address the symptoms of an issue but not the cause, such as public drunkenness laws in the past. The law cannot solve all society’s ills; education and public awareness can be just as effective.
The changes to the law may improve the situation but not solve it. The process can occur over a number of years, moving with society at a pace it is able to accept. The changes to same-sex relationships through state-based de facto relationship laws effectively rendered these relationships the same in law without officially being able to marry. The federal government eventually passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) to change the words “the union of a man and a woman” to “the union of two people”.
Figure 11.4.2 Australia’s legal system is not a one-size-fits-all.
REVIEW 11.4 Online quiz
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Access sample responses and results
Review 11.4 questions 1. Identify two key benefits that legal reform can provide in a liberal democratic society such as Australia. 2. Outline how legal reform helps ensure that the law remains socially relevant and reflective of public morality. 3. Describe some limitations of the law. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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U N SA C O M R PL R E EC PA T E G D ES
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Australian society is constantly evolving and changing. This includes changing societal values, which the law must reflect. At times, the law can become out of date and can be deemed not relevant for the times. International obligations through treaties that the federal government has signed put a responsibility on Australia to ratify these into domestic law. Some laws may need amending or may not meet the needs of individuals, groups or the society as a whole. There are many ways to influence changes to the law. Changes can be achieved through activism (legal or illegal), proactive advocacy, raising awareness and swaying public opinion through the findings and recommendations of formal investigations. Informal methods of change are usually a bottom-up process, where the individual concerned is usually driven by a personal experience, such as a tragedy or financial loss, or has encountered an area of the law that from their perspective is failing them or the community. These can be initiated by individuals, advocacy groups and the media. Formal methods of changing the law include the legislative process through parliaments, precedent decisions of courts, law reform commissions and parliamentary inquiries. Changes to the law can also be through independent oversight bodies such as the National Anti-Corruption Commission. The main benefits of reform include the law remaining relevant, keeping pace with technological change, improving access to justice and protecting the vulnerable.
Multiple-choice questions
1. Which of the following statements is the most correct way to describe public morality? A. Public morality is a shared set of religious beliefs. B. Public morality refers to the crimes committed against the community. C. Public morality refers to the similar values and beliefs held by the majority of the community at a particular point in time. D. Public morality is the shared set of beliefs held by the Australian Parliament. 2. Changes to the law are necessary at times because technology is advancing so fast. Which of the following is NOT an area in which the law has had to change due to technological change? A. Identity theft B. Same-sex relationships C. DNA evidence in criminal cases D. Legal definition of death
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3. Law reform commissions have been set up by parliaments to investigate which areas of the law need to be reformed. Which of the following determines the scope of their investigation? A. Ministers’ directions to the law reform commission B. Terms of reference C. Public opinion D. Media commentary
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4. Which of the following is NOT a driver of change? A. The media B. The Queen or King C. Court decisions D. Advocacy groups
5. What could citizens do about a federal law that explicitly discriminates against naturalised citizens who were born overseas? A. Form a law reform commission at the local level B. Bring defamation proceedings against TV or radio stations that run programs on that law C. Call talkback radio stations and form an advocacy group to pressure parliament D. Lobby the state Supreme Court
Short-answer questions
1. Explain why changing social conditions contribute to the need for law reform.
2. Explain, using examples, how and why the law has lagged behind technology. 3. How can Australia’s international obligations result in changes to the law? 4. Outline the two types of activism.
5. What are the limitations of reform?
Extended-response question
The law must keep pace with the community it regulates. Discuss this statement with reference to the following questions. a. Outline the main drivers for changing the law.
b. Describe the informal and formal methods for changing the law.
c. Assess with examples the ability of the law to change in response to the dynamic nature of the community it operates within. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 11.5.1 Answering an exam question
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CHAPTER
Changing the law: The recognition of land rights in NSW and native title for Aboriginal and Torres Strait Islander Peoples
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: define land rights outline the role and impact of land rights legislation in New South Wales identify the reasons for legal reform in relation to land rights laws define native title outline how the doctrine of terra nullius was overturned outline how land rights and native title are related identify the reasons for legal reform in relation to native title laws describe the drivers influencing and effecting to changes in land rights and native title laws explain how land rights and native title laws have been developed through judicial decisions and legislation describe the Mabo and Wik decisions explain the outcomes, including benefits and limitations, from changes to land rights and native title laws
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• • • • • • • • • • •
RELEVANT LAW
IMPORTANT LEGISLATION
National Parks and Wildlife Act 1974 (NSW) Racial Discrimination Act 1975 (Cth) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Aboriginal Land Rights Act 1983 (NSW) Native Title Act 1993 (Cth) Native Title Amendment Act 1998 (Cth) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Native Title Amendment Act 2007 (Cth) Native Title Amendment Act 2009 (Cth) Native Title Amendment Act (No 1) 2010 (Cth) Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) Native Title Legislation Amendment Act 2021 (Cth)
SIGNIFICANT CASES
Milirrpum v Nabalco Pty Ltd [1971] 17 FLR 141 Mabo v Queensland (No 1) [1988] 166 CLR 186 Mabo v Queensland (No 2) [1992] 175 CLR 1 (Mabo case) Wik Peoples v Queensland [1996] 187 CLR 1 (Pastoral leases case) Yarmirr v Northern Territory [2001] 208 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422 Bennell v Western Australia [2006] FCA 1243 Bodney v Bennell [2008] FCAFC 63 Manado on behalf of the Bindunbur Native Title Claim Group v Western Australia [2018] FCAFC 238 Galarrwuy Yunupingu (on behalf of the Gumatj Clan or Estate Group) Compensation Claim (DP2019/001)
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12.1 Land rights, native title and the law
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This case study will examine the process of recognising land rights and native title for Aboriginal and Torres Strait Islander Peoples in New South Wales and Australia. It highlights their deep cultural and spiritual connection to land, disrupted by colonisation, and the legal frameworks established to restore these rights. These laws are aimed at acknowledging First Nations ownership and management of land, protecting sacred sites and supporting cultural preservation. They provide legal protection for traditional practices, such as hunting and fishing, and promote First Nations self-determination and economic development through greater control over land use. By recognising land rights and proving native title, the legal system provides a path for returning land as compensation for dispossession, as well as working to address historical disadvantage and encourage greater equity in future outcomes for all Australians.
Despite progress, challenges remain in proving native title and balancing First Nations rights with other land interests. Overall, the case study shows the vital role of land recognition in affirming First Nations identity and advancing social justice in Australia. It is important to understand that land rights and native title are two different things. Figure 12.1.1 outlines the differences, which are covered in more detail in the next two sections of this chapter. Native title
NSW Land Rights
Aboriginal Land Rights Act 1983 (NSW)
Native Title Act 1993 (Cth)
Law
• Native Title Tribunal • Federal Court of Australia
Decision-making bodies
• NSW Aboriginal Land Council • NSW government
Land where native title remains in force, such as national parks and state forests, but not usually private land, except that owned by Local Aboriginal Land Councils (LALCs).
Type of land recognised
Unused Crown land in NSW.
Traditional Owners with a proven unbroken connection to land through their traditional laws and customs.
Who can claim?
Local Aboriginal Land Councils (LALCs) that represent Aboriginal communities throughout NSW.
Proof of a continuous cultural and spiritual connection to the land; in effect native title rights have not been extinguished.
Evidence/proof required
Certain criteria that must be met include that the land is not being lawfully used and is not required for an essential public purpose. It is not necessary to prove cultural connection to the land.
May include accessing the land, hunting and fishing. In some cases it will include control of how the land is used, but this varies depending on the circumstances of the case.
Rights given
Freehold title. This means the LALC owns the land outright, and can lease it or develop it as it chooses.
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12.2 Reasons for change: Land rights LEARNING OBJECTIVE 12.2 download pdf
U N SA C O M R PL R E EC PA T E G D ES
quiz questions download word DEFINE land rights. OUTLINE the role and impact of land rights legislation in New South Wales. IDENTIFY the reasons for legal reform in relation to land rights laws.
Land rights recognise the rights of Aboriginal and Torres Strait Islander Peoples
to their traditional lands and waters, which are essential for cultural survival and self-determination. They aim to restore connections to Country and provide social, economic and cultural benefits without affecting existing private property. In New South Wales, land rights legislation offers a legal framework for First Nations communities to claim, access and manage their traditional lands in line with their customs. The laws promote fair negotiations with governments and private parties, protect cultural heritage sites, and support First Nations economic development and self-determination through secure land ownership and management.
In New South Wales, state legislation has been enacted to give rights to and protect video widget reporting the interests of Aboriginal and Torres Strait Islander Peoples. The National Parks and Wildlife Act 1974 (NSW) provides for the protection of places and relics that are of significance to Aboriginal culture. Under this Act, it is an offence to knowingly destroy, disturb or remove these objects, or to destroy, deface or damage these places.
land rights the legal and moral recognition of ownership and access to land and waterways by Aboriginal and Torres Strait Islander Peoples
Writing focus 12.1 Question words note taking
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The Aboriginal Land Rights Act 1983 (NSW) is the key legislation in New South Wales that establishes Aboriginal land rights. It is considered a groundbreaking Act as it moved beyond mere recognition of traditional ownership to provide a practical, legislative framework for self-determination and economic independence. quiz
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The Act introduced a formal process for Aboriginal groups to claim Crown land that is not lawfully used or needed for essential public purposes. It also established Local Aboriginal Land Councils throughout New South Wales to represent Aboriginal communities in managing returned lands and advocating for their interests at the local level. At the state level, the NSW Aboriginal Land Council oversees and supports these local councils.
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The Act provides Aboriginal communities with legal ownership of certain lands, which cannot be sold or mortgaged, thereby supporting cultural preservation, social wellbeing and economic opportunities. Although this legislation marked a major step forward, it applies only to specific Crown lands, excluding privately owned or certain public-use lands from claims. The Aboriginal Land Rights Act 1983 (NSW) recognises that: • • • •
land was traditionally owned and occupied by Aboriginal people land has spiritual, social, cultural and economic significance to Aboriginal people it is appropriate to acknowledge the importance of land to Aboriginal people government decisions made in the past have had a negative effect on Aboriginal land ownership.
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Figure 12.2.1 Barmah National Park Joint Management Plan. Yorta Yorta woman and CEO of the Yorta Yorta Aboriginal Coorporation Monica Morgan at the Barmah Lakes international RAMSAR site.
The NSW Aboriginal Land Council has the power to make claims on Crown land, approve or reject agreements to allow mining on Aboriginal land, conciliate disputes, and advise the state government on land rights. The Act provided for the ownership of reserve land to be transferred to Aboriginal people, through a local council or the state Land Council, but, in fact, only a small percentage of land has been transferred. Section 28 of the Act provided for 7.5% of land tax in New South Wales to be paid to the state Aboriginal Land Council to meet administrative costs and to finance land purchases and future development, but this ceased in 1998 due to a “sunset clause” in the Act, and section 28 was repealed in 2001.
The Act also permits local Land Councils to negotiate agreements with the owners of land to give Aboriginal and Torres Strait Islander Peoples access for the purpose of hunting, fishing or gathering.
Weaknesses
The legal machinations for land rights claims in New South Wales have been slow and fraught with challenges. In 2022, The Conversation reported that there were around 38,200 unprocessed land claims, some lodged more than 10 years earlier, covering more than 1.12 million hectares. At the current rate of processing, it was estimated these claims would not be resolved until 2044. Little progress had been made by September 2025, with The Australian reporting that the backlog had grown to approximately 42,000 claims, with an estimated 22 years needed to clear it based on the existing pace.
Investigations by the NSW Audit Office in 2022 revealed that key government departments, including the Department of Premier and Cabinet and the Department of Planning and the Environment, were not meeting their statutory obligations to process Aboriginal land claims efficiently. While recommendations were made to address these issues, progress in implementing changes has been slow, and you are encouraged to stay informed about developments in this area.
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Criticism of NSW land rights legislation highlights several significant issues. The laws often have a limited scope and fail to fully acknowledge the traditional ownership and deep connection that First Nations Peoples have to their lands. Many laws exclude urban areas and privately owned lands, preventing some First Nations claims from being recognised. The legal process itself is complex, lengthy and costly, making it difficult for First Nations communities to successfully claim or maintain their land rights.
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Further complications arise from conflicts between First Nations land claims and other interests such as mining, agriculture and urban development. In many cases, economic or governmental priorities can override First Nations rights, causing disputes and ongoing tension. Even when land ownership is granted, First Nations communities often face restrictions on how they can use or manage their land, limiting the benefits they can derive from it.
Additionally, problems with the implementation and enforcement of land rights laws contribute to continued delays and injustices affecting First Nations Peoples. Despite important progress, these challenges illustrate that achieving fair and effective recognition and protection of First Nations land rights in New South Wales remains an ongoing struggle. See the next section to learn why native title adds another layer of complexity, as it can overlap or conflict with existing land interests, leading to further disputes over recognition, access and control of Country.
Figure 12.2.2 The legal machinations for land rights claims in New South Wales have been slow and fraught with challenges.
REVIEW 12.2 Online quiz
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Review 12.2 questions 1. 2. 3. 4.
Define “land rights” as they relate to Aboriginal and Torres Strait Islander Peoples. Outline two key objectives of land rights legislation in New South Wales. Outline the main functions of the NSW Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW). Describe the legal process for claiming land rights in New South Wales. Explain why the legal process has been described as slow and challenging. 5. Explain how land rights legislation supports First Nations Peoples’ self-determination and economic development. 6. Discuss the successes and ongoing challenges in recognising Aboriginal and Torres Strait Islander land rights. 7. Assess the role of government departments in the administration of land rights claims and the impact of delays on First Nations communities. Go online to assign and download questions, view results and more!
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12.3 Reasons for change: Native native title LEARNING OBJECTIVE 12.3 download pdf
native title the right of Aboriginal and Torres Strait Islander Peoples to their traditional lands
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DEFINE native title. OUTLINE how the doctrine of terra nullius was overturned. OUTLINE how land rights and native title are related. IDENTIFY the reasons for legal reform in relation to native title laws.
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Writing focus 12.2 Conjunctions note taking – (subordinating reasons why)
The term native title basically means that the original people of an area have rights to own and use the land. In Australia, it has a legal meaning as a claim to land made by Aboriginal and Torres Strait Islander Peoples whose ancestors lived there before European colonisation and who can show they have maintained a continuous connection to that land. However, native title exists alongside other forms of land tenure, including land rights granted under state legislation. This can create ongoing challenges within and between First Nations communities, if land rights and native title overlap or conflict. These tensions are sometimes referred to as community politics and often arise when different groups have competing claims, responsibilities scorcher or expectations about how land should be recognised, governed or used.
Aboriginal and Torres Strait Islander Peoples have lived on the Australian continent for the past 65,000 years. Although they did not use legal documents or written laws, it is undisputed that Aboriginal and Torres Strait Islander Peoples used oral law, customs and traditions to maintain order and control behaviour. Tribal Elders employed negotiation, discussion, rulings and sanctions when it came to unacceptable behaviour. Aboriginal and Torres Strait Islander societies are, and always have been, governed by rules.
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Aboriginal and Torres Strait Islander Peoples live in distinct cultural and language groups, so it is not accurate to categorise Aboriginal and Torres Strait Islander Peoples as belonging to a single cultural group. When the First Fleet arrived in 1788, the British claimed sovereignty over the continent on the assumption that the Traditional Custodians did not possess a system of land ownership that British law was required to recognise. Although the King’s instructions had directed them to obtain the consent of Indigenous Peoples before taking possession of any inhabited territory, this requirement was ignored during colonisation. Instead, British officials treated the land as if it were unoccupied and available for settlement. This attitude later became formalised in the doctrine of terra nullius, which held that Australia was “land belonging to no-one” under British law. As a result, colonial laws and policies were designed to advance Figure 12.3.1 When the First Fleet arrived in 1788, the British claimed the interests of white settlers, leading to sovereignty over the continent. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 widespread dispossession and denying (03)8671 1400 download pdf
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Aboriginal and Torres Strait Islander Peoples were denied recognition of their longstanding laws, customs and deep connections to Country. Native title is a contentious topic in Australian law as, traditionally, Aboriginal and Torres Strait Islander Peoples practise common ownership, where everyone is responsible for the land. Thus, the concept of native title has meant that Aboriginal and Torres Strait Islander Peoples have had to adapt to Western practices regarding property ownership in order to retain access to traditional lands.
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In fact, the whole of society, including the legal system, has had to change its beliefs in this area. The term “native title” has taken on such significance that the High Court used it when they recognised Aboriginal and Torres Strait Islander Peoples’ property rights in Mabo v Queensland (No 2) [1992] 175 CLR 1 (“Mabo case”). The Mabo decision was the first legal recognition that Aboriginal and Torres Strait Islander Peoples had a system of law and ownership of their lands that existed long before European occupation and settlement. This recognition overthrew the idea of terra nullius, and subsequent cases have involved efforts to enshrine native title in legislation.
Early responses of the legal system relating to native title
Part of the rich and diverse cultural heritage of Aboriginal and Torres Strait Islander Peoples was a well-developed structure of rules and laws that governed their relationships with one another and how to take care of the land. All of this was ignored with European settlement. It would take more than 200 years for this system to be formally recognised.
The doctrine of terra nullius in Australia
The term terra nullius means “land belonging to no-one”. As a common law concept, it refers not only to uninhabited territory but also to territory that has no recognisable system of law, or social or political organisation. Under the “doctrine of reception”, when uninhabited land was colonised by Britain and no other system of law was apparent, then English law would dominate.
Over the course of a few decades, the belief that the country had very few inhabitants, and that they had no political or legal organisation, and, thus, no sovereignty, led to the legal fiction justifying British possession and the imposition of British law. Although Governor Arthur Phillip was under orders to establish friendly relations with the Aboriginal and Torres Strait Islander Peoples, and did make serious efforts in this area, language and cultural barriers meant that negotiations had limited success. Terra nullius, as a justification for British policy, was declared in 1835 when explorer John Batman attempted to lease land from the Aboriginal Peoples in the area around the Yarra River (in what is now Victoria). Batman negotiated a treaty for the transfer of the land in exchange for tools, weapons, food and blankets. Shortly thereafter, Governor Richard Bourke declared the treaty null and void, on the basis that New South Wales – which at the time extended from Cape York in the north to Wilson’s Promontory in the south and nearly as far west as the current border of Western Australia – belonged to the Crown, not to the Aboriginal and Torres Strait Islander Peoples. The concept of terra nullius has had an immense impact on Aboriginal and Torres Strait Islander Peoples. Their treatment by the colonists, which involved loss of land, loss of culture and forced dispersal, has led to considerable social problems. (This
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will be discussed in more detail later in the course.) By the 1840s, for example, the population of Aboriginal people in Tasmania had been decimated, with many killed by force, dead from introduced diseases, or forcibly relocated.
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The doctrine of terra nullius has also had an enormous impact on native title claims (that is the right to claim ownership of traditional lands and waters). Any Aboriginal or Torres Strait Islander community that has tried to claim native title has had to prove that they are the Traditional Owners of the land and have an ongoing connection with it. As the land was considered empty prior to British settlement, it meant that the settlers could take possession of most of the arable land with government approval, which entailed driving off anyone else who might have been living on this land at the time. You can see why difficulty arises. If the Traditional Owners were forced off their land (in some cases, 200 years ago), how then do they prove a continuing connection with this land under Aboriginal and Torres Strait Islander laws and customs and thus prove native title?
The legal status of Aboriginal and Torres Strait Islander Peoples up to 1967
The doctrine of terra nullius meant that British law did not recognise Aboriginal and Torres Strait Islander Peoples as having sovereignty or legally recognisable systems of land ownership. Although they were treated as British subjects, their own laws, political authority and land rights were denied by the colonial legal system. Criminal laws did not protect Aboriginal and Torres Strait Islander Peoples and, throughout the first half of the nineteenth century, government policies tended to accept violence as a way of dealing with conflicts over land use. One of the most significant and tragic events of the 1800s occurred in New South Wales at Myall Creek, near Bingara. In June 1838, a group of Aboriginal people who had set up camp on a cattle station were brutally attacked and killed by a group of white men (eleven convicts and one free man), who claimed they were acting in retaliation for the theft of cattle. Twenty-eight Aboriginal men, women and children were slaughtered. The Governor of New South Wales, Sir George Gipps, ordered a police investigation into the massacre. This was the first time that the British colonial administration had taken action to apply criminal law on behalf of Aboriginal and Torres Strait Islander people. Although the eleven convicts were initially found not guilty of the crime; a subsequent re-trial convicted seven men to death by hanging. Myall Creek is especially significant because it is one of the very few instances in which settlers were successfully prosecuted for the murder of Aboriginal people on the frontier. After the backlash to these convictions, later massacres often went unreported or were deliberately concealed. You can explore the scale of frontier violence through resources such as The Guardian’s interactive “Massacre Map,” which documents the many killings that occurred across Australia.
The 1967 referendum Until the 1967 referendum, there were only two references to Aboriginal and Torres Strait Islander Peoples in the Australian Constitution: section 51(xxvi) and section 127. Section 127 excluded Aboriginal and Torres Strait Islander Peoples from the Census. Section 51(xxvi) enabled the Commonwealth to make laws in respect of “people of any race for whom it is deemed necessary to make special laws” but excluded “the Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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aboriginal race” from this power, which effectively reserved the responsibility of matters regarding Aboriginal and Torres Strait Islander Peoples to state governments. Since there were no federal laws governing the welfare of Aboriginal and Torres Strait Islander Peoples, different states interpreted their rights and legal status in various ways. This resulted in inconsistent laws across the states, often with discriminatory and harmful outcomes.
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Many people incorrectly believe that the 1967 referendum gave Aboriginal and Torres Strait Islander Peoples the right to vote. However, the right to vote in Commonwealth elections had been extended to all Aboriginal and Torres Strait Islander Peoples who did not already have this right under the laws of their state – namely, those in Western Australia and Queensland – by amendments in 1962 to the Commonwealth Electoral Act. The right of Aboriginal and Torres Strait Islander Peoples to vote in state elections had been achieved in all states by 1965. By contrast, most non-Indigenous Australian’s had been able to vote in federal and state elections since 1911.
Nor did the referendum grant citizenship to Aboriginal and Torres Strait Islander people: most of the federal and state laws discriminating against them had been repealed by 1967. More than 90% of the population voted “Yes” on the amendments to the Constitution. Section 51(xxvi) was amended to allow the federal government to legislate for Aboriginal and Torres Strait Islander Peoples and to override any discriminatory state laws. Section 127 was deleted. From this point on, Aboriginal affairs became a federal issue, and Aboriginal and Torres Strait Islander Peoples were counted in the Census.
Figure 12.3.2 A young girl hands a how-to-vote card to a voter at polling booth at Sydney Town Hall during the 1967 referendum.
Reasons for change Changing attitudes
As discussed above, early European colonisation led to Aboriginal and Torres Strait Islander Peoples being denied legal recognition and rights, with the doctrine of terra nullius justifying land dispossession and exclusion from citizenship. Widespread discrimination and violence prevailed, and Indigenous cultures were largely ignored. Over time, however, attitudes began to shift as awareness of First Nations Peoples’ disadvantage grew, largely due to increasing activism that challenged longstanding negative stereotypes and publicly highlighted the effects of inequality.
The 1967 referendum marked a major turning point by enabling the federal government to legislate for First Nations Peoples and include them in the national Census. This reflected changing public attitudes but also resulted directly from sustained advocacy by First Nations leaders and supporters over many years. In the decades that followed, legal recognition of land rights, especially through landmark decisions, such as the 1992 Mabo case, challenged the legal foundation of terra nullius and formally recognised the connection Aboriginal and Torres Strait Islander Peoples have to the land. These legal changes influenced public opinion and government policies, further supporting First Nations Peoples’ rights and reinforcing the momentum generated by earlier activism.
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Alongside these developments, ongoing advocacy and activism by First Nations leaders helped raise both national and international awareness of historic injustices and the need for recognition and reparations. Societal values evolved, with a growing emphasis on global human rights, justice and reconciliation. Government initiatives aimed at reconciliation and partnership with Aboriginal and Torres Strait Islander communities also shaped public discussion and attitudes.
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In addition, there has been a resurgence of respect for Aboriginal and Torres Strait Islander cultures, languages and knowledge, including recognition of First Nations stewardship as contributing to sustainable land management. Together, these factors, particularly the persistent efforts of First Nations activists, have gradually transformed public perceptions, leading to greater support for First Nations rights and the acknowledgement of their unique connection to land, despite ongoing challenges and inequalities.
International standards
While Australia was addressing injustices faced by its First Nations Peoples, other countries were also taking steps to recognise and remedy the wrongs committed against the original inhabitants of their lands. The United Nations played a key role in encouraging these efforts globally. International recognition of Indigenous Peoples’ rights and self-determination is largely guided by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Adopted in 2007, UNDRIP affirms collective rights, including political status, autonomy and control over traditional lands and resources. Although UNDRIP is not a legally binding treaty, its principles are consistent with established human rights laws, such as those in the International Covenant on Civil and Political Rights (ICCPR). The adoption of UNDRIP marks an important international commitment to Indigenous Peoples’ rights, but how it is implemented varies widely across countries. Some have actively incorporated its principles into their national laws, while others have been slower to act, leading to ongoing debates and challenges in fully realising these rights. Additionally, the right to self-determination is legally protected under Article 1 of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which are binding international treaties. The significance of UNDRIP
The UNDRIP, adopted in 2007, is significant not only because it sets out important human rights protections, but also because it was the first international human rights instrument developed with the active involvement and leadership of Indigenous Peoples themselves. This reflects the growing recognition of Indigenous Peoples as key contributors in shaping global standards and strengthens understanding of self‑determination – the right of Indigenous Peoples to control their own lives and futures.
Although UNDRIP is not legally binding, Australia agreed to follow its principles in 2009, showing a promise to change laws and policies to support Indigenous Peoples’ rights. It helps Indigenous communities push for legal reforms, protects their cultural and political rights, and requires governments to consult with them respectfully. While there is still work to do, UNDRIP is an important guide for achieving fairness, respect, Uncorrected 4th sample * Cambridge University Press & Assessment * ©Australia Milgate et and al 2026. 978-1-009-83999-0 andpages Indigenous Peoples’ self-governance both in around the world. (03)8671 1400
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Amending existing or outdated laws Although laws have been introduced or amended over time to keep up with societal change, there has been slow legal movement in terms of native title and land rights. This is exemplified in the case of the UNDRIP. As previously mentioned, this United Nations Declaration is a significant international human rights instrument that outlines the individual and collective rights of Indigenous Peoples.
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In 2009, Australia officially endorsed UNDRIP, becoming the last Commonwealth country to do so at that time. In 2020, the Australian government further committed to “implementing” UNDRIP and has taken steps to align laws, policies and programs with its principles. However, even though the Declaration has influenced the development of government policies and frameworks relating to Indigenous Peoples, such as recognition of Indigenous voices in policy, land rights protection and cultural rights, it has not been fully incorporated into Australian legislation. This means that, while Australia supports and endorses UNDRIP, its provisions do not automatically have legal effect in Australian courts unless implemented through legislation.
Several Australian states and territories have moved toward incorporating UNDRIP principles more directly into their laws and policies. For example, Victoria passed the Advancing the Treaty Process with Aboriginal Victorians Act 2018, referencing UNDRIP in its objectives and laying the groundwork for the statewide Treaty that has since been negotiated. In addition, while Australian courts do not treat UNDRIP as directly enforceable law, judges sometimes refer to it as an interpretive aid in cases concerning Indigenous rights, especially in native title and human rights issues.
Figure 12.3.3 Benki Piyano, Shaman of the Ashaninka of the Amazon, speaks at an event of the United Nations Permanent Forum on Indigenous Issues, 23 April 2019. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Addressing the needs of individuals, groups or society Native title means the right of Traditional Owners to live on their land and use it for traditional purposes. Throughout the world, there has been growing recognition of the rights of First Nations Peoples to their own lands. Hunting and fishing rights and land ownership rights have been returned to many First Nations groups in different countries.
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There has also been a move to give greater self-determination to First Nations groups. Self-determination means the right of First Nations Peoples to control the use of their traditional lands, as well as the local economy and social policy. Māori in New Zealand, Inuit in Greenland and Canada, and Aboriginal and Torres Strait Islander Peoples are three groups who have been given greater recognition in terms of native title and self-determination in their own countries. This acceptance of rights in other countries has strengthened the arguments of Aboriginal and Torres Strait Islander Peoples to native title and land rights in Australia.
ACTIVITY 12.3.1
For the Australian Constitution to recognise Aboriginal and Torres Strait Islander Peoples, it must be amended. Using your legal knowledge, describe the processes required to change the Constitution.
REVIEW 12.3 Online quiz
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Review 12.3 questions
1. Outline what is meant by “native title”. 2. Identify the Latin term that means “land belonging to no-one”. Explain why the British government operated as though the land in Australia had no ownership. 3. Describe the legal systems of Aboriginal and Torres Strait Islander Peoples prior to 1788. 4. Describe the legal status of Aboriginal and Torres Strait Islander Peoples under British law prior to the 1967 Referendum. 5. Assess the importance of the 1967 Referendum for the legal and social recognition of Aboriginal and Torres Strait Islander Peoples in Australia. 6. Analyse how the doctrine of terra nullius affected Aboriginal and Torres Strait Islander Peoples’ native title claims. 7. Explain the significance of the Myall Creek Massacre and the legal response to it in the context of the protection of Aboriginal Peoples under the law. 8. Outline the role of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Discuss the challenges Australia faces in fully implementing the principles of UNDRIP into domestic law. 9. Outline the factors that are changing public attitudes and government policies in Australia. 10. Explain the impact of international human rights standards, such as the ICCPR and ICESCR, on Indigenous Peoples’ rights in Australia. Go online to assign and download questions, view results and more!
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12.4 Drivers of change LEARNING OBJECTIVE 12.4 quiz
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DESCRIBE the drivers influencing and effecting changes in land rights and native title laws.
As international human rights standards evolved, Australia faced growing pressure to address the rights of Aboriginal and Torres Strait Islander Peoples. At the same time, shifting public attitudes and continued advocacy strengthened momentum for reform. These forces deepened understanding of native title and land rights, driving ongoing legal and policy change.
Aboriginal and Torres Strait Islander Peoples’ initiatives
Aboriginal and Torres Strait Islander Peoples have played a leading and influential role in the recognition of land rights and native title. Their sustained advocacy has helped shift both community and government attitudes. From the mid‑twentieth videocommunities and widget reporting century onwards, First Nations leaders organised coordinated, high‑profile campaigns for land justice using a range of strategies, including public protests, strikes, petitions, legal challenges and the occupation of contested lands.
One of the most iconic events was the 1966 Wave Hill Walk-Off led by the Gurindji people in the Northern Territory. The strike initially protested against poor working conditions but grew into a powerful demand for land return, drawing national attention to broader First Nations land rights. Inspired by this event, First Nations communities across Australia began organising their own campaigns for land justice. In New South Wales, this momentum contributed to the growth of download local Aboriginal quiz questions word land organisations and the eventual establishment of Land Councils, which represented community interests, coordinated activism, and later played a central role in negotiating land claims.
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Grassroots activism was complemented by strategic legal and political engagement. Aboriginal and Torres Strait Islander representatives worked with supportive lawyers, advocates and politicians to challenge laws and government policies that disregarded First Nations land interests. These campaigns aimed to overturn the legal doctrine of terra nullius, which had been used to justify land dispossession.
The pivotal moment came with the 1992 High Court decision in Mabo v Queensland (No 2). This landmark ruling recognised that native title exists under Australian common law, rejecting terra nullius and acknowledging the traditional rights of First Nations Peoples to their land where those rights have been maintained. The Mabo decision was a direct outcome of decades of First Nations activism, legal challenge and assertion of traditional ownership. It led to the passage of the Native Title Act 1993, which set out the legal framework for First Nations Peoples to claim native title rights over their traditional lands and waters. Since then, Aboriginal and Torres Strait Islander communities have engaged in complex native title claim processes. These claims often involve rigorous evidence
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of continuous connection to land and assessment of competing interests, including pastoral leases, mining and private ownership, making the claims legally and procedurally challenging. First Nations representative bodies and community legal centres have played crucial roles in supporting these claims and negotiating agreements that can include compensation, land use arrangements and rights to protect cultural heritage.
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Beyond land rights legislation, First Nations Peoples have continuously advocated for sovereign rights and broader self-determination, asserting that recognition of land alone is insufficient without political, cultural and social empowerment. Their activism includes educating broader Australian society about Aboriginal and Torres Strait Islander histories and cultures, promoting First Nations languages and cultural practices, influencing policy and legislative reforms, and fostering economic development linked to land management.
In summary, Aboriginal and Torres Strait Islander Peoples have led a multifaceted and enduring struggle for land rights and native title anchored in their living cultural connection to Country. Through grassroots activism, legal challenges, political engagement and cultural revival, they have significantly shaped Australian laws and attitudes, securing important legal recognition and advancing First Nations empowerment. Their ongoing commitment remains central to the evolving fight for justice, sovereignty and self-determination.
Informal methods of change
While formal mechanisms such as United Nations treaties and conventions have driven change, informal methods have also been highly effective in raising awareness of native title and land rights issues. Key figures, including First Nations leaders, activists and academics, have been instrumental in advocating for the recognition of land rights and native title. One notable individual is Vincent Lingiari, who was instrumental in the Wave Hill Walk-Wff. In 1966, Vincent Lingiari, along with other Gurindji stockmen, walked off Wave Hill station in protest against poor working conditions. This strike then evolved into a broader demand for the return of their ancestral land. The movement reached a significant milestone in 1975 when Prime Minister Gough Whitlam performed a symbolic handover of the land. This event demonstrates how the actions of individuals can attract widespread public and political support, leading to major changes.
The Australian Human Rights Commission has been an important player in highlighting issues and advocating for their resolution. The Aboriginal and Torres Strait Islander Social Justice Commissioner, a position within the Australian Human Rights Commission, has played a key role in producing annual reports that spotlight issues of discrimination and gaps in protection within the native title system. These reports offer important analysis and recommendations to guide government action.
Advocacy groups Advocacy groups play a crucial role in representing the interests, rights and voices of specific communities or causes. They act as representatives for individuals Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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or communities who may not have the resources or platform to speak up for themselves. They help raise public awareness about issues that might otherwise be overlooked or misunderstood. Strong advocacy groups can influence government policies, legislation and decision-making to bring about positive social, economic or environmental changes. They also act to hold governments, organisations and institutions accountable for their actions and commitments. They also play an important role in educating individuals and communities about their rights.
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Aboriginal and Torres Strait Islander advocacy
Aboriginal and Torres Strait Islander advocacy groups have been instrumental in driving change, especially in promoting land recognition and First Nations rights. Native title bodies and nation-building organisations, including Prescribed Bodies Corporate formed through native title processes, manage native title rights on behalf of Traditional Owners, facilitating their meaningful involvement in land management and decision-making. These groups also play a key role in raising public awareness that recognition of land rights strengthens governance, political empowerment and lasting self-determination. Regional authorities, such as the Ngarrindjeri Regional Authority, further support community-led governance, cultural revitalisation and sustainable development, strengthening First Nations self-determination and fostering broader social and economic benefits linked to land recognition. These organisations are essential bridges between legal recognition and practical, community-driven outcomes.
Over the years, Aboriginal and Torres Strait Islander organisations and advocacy groups have persistently pushed for legal and social recognition of land rights. Key entities include Aboriginal Land Councils and the Australian Aboriginal Legal Service. Additionally, various non-government organisations and environmental groups have actively advocated for greater recognition of Aboriginal and Torres Strait Islander issues, such as:
• ANTaR – an independent non-government organisation dedicated to advancing rights, justice and respect for Aboriginal and Torres Strait Islander Peoples through national advocacy and community empowerment • Seed – Australia’s first youth-led Aboriginal and Torres Strait Islander climate justice network, focused on empowering young people to tackle climate change impacts on Indigenous communities • First Nations Heritage Protection Alliance – a partnership with government aimed at reforming heritage laws to better protect Traditional Owners’ rights • First Nations Clean Energy Network – a coalition committed to ensuring First Nations communities benefit from the clean energy transition • Firesticks Alliance – a network of First Nations people revitalising cultural burning practices and promoting sustainable land management • Pay The Rent Grassroots Collective – a group of First Nations and non-First Nations individuals working together to acknowledge past injustices and pursue truth, justice and equality. Together, these organisations have been fundamental in advocating for First Nations Peoples’ rights and empowering communities to shape their futures.
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RESEARCH 12.4.1 Select one organisation or group from the list provided on the previous page. Conduct research to gather information on: the organisation’s main purpose and mission the people or communities it represents or supports the activities, projects or campaigns it is currently engaged in its key focus areas or priorities at present.
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• • • •
Prepare a report that includes your findings and discusses why you believe the organisation’s work is important for Aboriginal and Torres Strait Islander communities, as well as for the wider Australian society.
The media
The media plays a role in advancing native title and land rights. This has occurred in different ways, such as putting a spotlight on systemic issues. The media has brought attention to shortcomings in the native title system, including the Wiyi Yani U Thangani (Women’s Voices) report, which, according to the Australian Human Rights Commission, reveals how the system undermines First Nations women. The media, either in print or online forums, has strengthened First Nations voices by providing a platform for Aboriginal and Torres Strait Islander Peoples to share their experiences and perspectives. This promotes greater understanding and fosters increased respect for their cultures and sovereignty.
The media also plays a vital role in highlighting historical injustices. Coverage of landmark events such as the Mabo case and the Wave Hill Walk-Off has been essential to placing First Nations land claims at the forefront of the national conversation. However, the media has also played a role in hindering progress on native title and land rights. At times, reporting has framed native title as a barrier to “development” or economic progress, particularly in coverage linked to mining, pastoralism and infrastructure projects. This type of coverage often centres business or government interests while minimising or ignoring the cultural, legal and historical context of First Nations claims.
Figure 12.4.1 Vincent Lingiari addresses the media after Prime Minister Gough Whitlam officially returns Aboriginal land at Daguragu (Wattie Creek), 1975.
In some cases, the media has fuelled misunderstanding and resentment by portraying native title as a threat to nonIndigenous landowners, despite the legal safeguards that exist. Additionally, the media has sometimes sensationalised native title disputes by emphasising conflict, division and cost rather than the long struggle for justice, continuity of connection to Country, or the legal principles at stake. These narratives can reinforce stereotypes, undermine empathy and contribute to misinformation within the broader community.
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Formal methods of change The development of native title and the legislative process
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For much of Australia’s colonial history, First Nations land ownership and cultural connection to Country were not recognised within mainstream law or policy. Meaningful legal acknowledgement of these rights was absent until the mid‑twentieth century. From the 1960s, however, growing public awareness, activism and shifts in political attitudes led to the first significant efforts to recognise and restore land rights for Aboriginal and Torres Strait Islander Peoples.
Native title as a collective right
A collective right is one that is claimed and shared by a group of people. Native title is a collective right, as it cannot be claimed by an individual, only by a group (for example, the Meriam People). All members of the group share the rights that are gained.
However, despite native title being a collective right, an individual can bring a claim before the courts, as seen in the Mabo case. As the individual is acting on behalf of the group, all members of the community that they represent will share the rights gained.
Native title claims in the Northern Territory
In 1963, Yolngu people from the Gove Peninsula, in eastern Arnhem Land, sent a bark petition to the Commonwealth government protesting the removal of more than 300 square kilometres of land for bauxite mining without their permission. The petition failed to persuade the federal government to recognise Yolngu land rights, and as a result the “Gove land rights case” (Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141) commenced in the Northern Territory Supreme Court in 1971. In his ruling, Justice Blackburn stated that if the Yolngu people did have any type of native title rights, they would have been extinguished under common law. Thus, the doctrine of terra nullius prevailed, and they could not prevent mining on the land. Three years after the unsuccessful Yolngu petition, members of the Gurindji people staged a walk-off at the Wave Hill and Cattle Creek stations in the Northern Territory, protesting not only poor working conditions and inadequate pay, but also the dispossession of their traditional lands by pastoralists.
Despite the Yolngu ultimately not succeeding in court, their case demonstrated the power of advocacy and strategic use of the legal system by First Nations Peoples. Importantly, Milirrpum exposed major flaws in Australian law that prompted the establishment of the Woodward Royal Commission and the creation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In this way, the case served as a catalyst for greater public awareness, sustained advocacy, and meaningful legal and social reform.
pastoralists farmers raising sheep or cattle, usually on large areas of land
In 1972, after 23 years in opposition, the Australian Labor Party led by Gough Whitlam was elected. That same year, in response to the unsuccessful Gove land rights case, the government established the Department of Aboriginal Affairs.
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A Royal Commission on Aboriginal Land Rights was also set up, chaired by Justice Edward Woodward, who had previously represented the Yolngu people as a barrister in the case. Based on the commission’s findings, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was drafted, creating a process for Traditional Owners to claim specified parcels of land listed as available.
IN COURT 12.4.1
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Milirrpum v Nabalco Pty Ltd (1971) – The Gove Land Rights Case Background
Milirrpum v Nabalco Pty Ltd, or the Gove Land Rights Case, was a key legal battle where the Yolngu people of Arnhem Land challenged a mining company for operating on their traditional land without permission. Although the court ruled against the Yolngu, the case became an important moment in the fight for First Nations land rights in Australia.
Legal outcome
Although the Yolngu people lost the case because the court did not recognise their land ownership under Australian law, the judgment was an important turning point for Aboriginal and Torres Strait Islander land rights in both legal and political areas.
Positive outcomes and legacy
•
•
• •
• •
The court officially recognised that the Yolngu had a complex and valid system of Aboriginal law, one of the first times Aboriginal laws were acknowledged by Australian courts. The judge accepted spoken testimony from the Yolngu about their customs and connection to the land, setting a precedent for using oral evidence in future First Nations land rights cases. The court accepted clear proof that the Yolngu had lived on and cared for the land for a long time, showing their deep cultural and spiritual ties. The case raised public and political awareness, leading to the Woodward Royal Commission and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which was the first law to recognise First Nations land rights in Australia. Choosing not to appeal preserved the chance for future recognition of First Nations land rights and avoided setting a negative legal precedent. The judge personally supported First Nations land rights, helping strengthen the movement for legal and social change.
Significance
Although the Yolngu lost their claim in 1971, the Milirrpum v Nabalco case laid crucial legal and political foundations for First Nations land rights in Australia. Its impact can be seen in later landmark rulings, such as the 1992 Mabo case, which overturned the idea of terra nullius and legally recognised native title.
Conclusion The Gove Land Rights Case is a historic milestone in Australia, showing how an early legal loss can lead to significant and lasting change. It validated Aboriginal law, influenced important legal reforms, and helped change how Australia views land ownership and First Nations rights.
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The Mabo decision and the Native Title Act
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A significant change to Australian land law was created through the efforts of Eddie Mabo and his fellow Meriam People. Between 1985 and 1992, Mabo and four other Meriam people challenged the Queensland government in two major High Court cases. The first case in 1988 found that a Queensland law attempting to abolish native title was invalid because it breached the Racial Discrimination Act 1975 (Cth). The second case, Mabo v Queensland (No. 2) in 1992, overturned the doctrine of terra nullius and recognised the Meriam People’s native title to the Murray Islands, establishing that native title could exist across Australia where traditional laws and customs had been maintained. In response, the Commonwealth introduced the Native Title Act 1993, which set out processes for recognising and claiming native title. Importantly, the government also created the Aboriginal Land Fund (now the Aboriginal Land and Sea Corporation) to help First Nations groups purchase land where native title had been extinguished. A broader social justice package was also proposed to address the inequalities resulting from dispossession, but it was never implemented due to a change of government. These measures show that a more holistic approach to land justice was intended, although not all elements were delivered. The Mabo case and the government’s legislative response transformed the legal recognition of First Nations native title, allowing some land access to support traditional lifestyles. However, native title does not grant full land ownership, as the law was designed to preserve the rights of current landholders. In December 1993, during the passage of the Native Title Bill through parliament, Prime Minister Paul Keating said:
Figure 12.4.2 On 10 December 1992, a year before the passage of the Native Title Bill through parliament, Prime Minister Paul Keating gave a speech, known as the Redfern Address, in which he spoke of the challenges faced by First Nations Peoples.
[T]oday, as a nation, we take a major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians. We give the indigenous people of Australia, at last, the standing they are owed as the original occupants of this continent, the standing they are owed as seminal contributors to our national life and culture: as workers, soldiers, explorers, artists, sportsmen and women – as a defining element in the character of this nation – and the standing they are owed as victims of grave injustices, as people who have survived the loss of their land and the shattering of their culture.
REVIEW 12.4 Online quiz
Review questions
Access sample responses and results
Review 12.4 questions
1. Describe the different informal ways that native title and land rights have been supported. Provide some examples. 2. Explain how the media can be both a help and hindrance in the issue of native title and land rights. 3. With regard to the recognition of Aboriginal and Torres Strait Islander Peoples, recall the changes that occurred between 1967 and 1993. Examine why these changes occurred. 4. Explain the importance of Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 to future legal action. 5. Evaluate the importance of the statement made by Prime Minister Paul Keating in 1993 on the passing of the Native Title Act 1993 (Cth). Go online to assign and download questions, view results and more!
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12.5 Processes of change LEARNING OBJECTIVE 12.5
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EXPLAIN how land rights and native title laws have been developed through judicial decisions and legislation. DESCRIBE the Mabo and Wik decisions.
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Judicial decisions
The development of native title laws in Australia has been shaped by several landmark judicial decisions. The Mabo (1992) case overturned terra nullius and recognised that First Nations Peoples’ traditional rights to land could survive colonisation. The Wik (1996) decision later clarified that native title could coexist with certain forms of land tenure, such as pastoral leases. These cases, along with growing political pressure, led to the Native Title Act 1993 (Cth), which established a legal framework for recognising and determining native title. Despite this progress, as noted earlier in this chapter, the procedures for claiming native title remain complex and lengthy.
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When claiming traditional ownership, Aboriginal and Torres Strait Islander groups must have their native title claims determined by a court. While the National Native Title Tribunal (NNTT) receives applications, undertakes research and facilitates mediation, only the Federal Court or the High Court can make a binding legal determination of native title.
Figure 12.5.1 Eddie Koiki Mabo at Las, Murray Island, 1989. The Mabo (1992) case overturned terra nullius and recognised that First Nations Peoples’ traditional rights to land could survive colonisation.
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Writing focus 12.4 Noun phrases note taking (identify and develop)
A native title determination may take one of three forms:
• Unopposed determination – where no party contests the claim scorcher determination – the claim is reached through agreement between • Consented parties • Litigated determination – where the claim proceeds to a judicial hearing and the court makes a final decision. For more detail on processes and current cases, refer to:
• “native title” at the Federal Court of Australia at https://cambridge.edu.au/ redirect/12078 • the National Native Title Tribunal website.
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The High Court hears appeals from other courts and makes final rulings on questions of law, including those concerning native title. It must apply the law impartially and cannot take political or emotional considerations into account. In summary, the NNTT manages the early stages of a claim through investigation and mediation, while the Federal Court makes determinations. Appeals may then be
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heard by the full Federal Court and ultimately the High Court, which acts as the final authority on whether native title exists.
Mabo case As discussed earlier, the Mabo cases produced major changes in how Australian law recognises First Nations land rights. Between 1985 and 1992, Eddie Mabo and four other Meriam men from Mer (Murray Island) challenged the Queensland government in two High Court cases:
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• Mabo v Queensland (1988) • Mabo v Queensland (No 2) (1992).
The first case examined the validity of Queensland legislation designed to abolish native title by asserting state ownership of the Murray Islands. The High Court found this law invalid because it was inconsistent with the Racial Discrimination Act 1975 (Cth), which protects people from being deprived of property rights based on race. The Constitution provides that federal law prevails where state and federal laws are inconsistent. The second case, commonly referred to as the Mabo case, examined whether the Meriam people held traditional rights to occupy and use Mer. In 1992, the High Court ruled (6:1) that Australia was not terra nullius at the time of settlement and that the Meriam people had maintained a continuous connection to their land. Therefore, their native title existed under common law. This decision established the doctrine of native title in Australian law. It recognised First Nations Peoples’ pre-existing rights and affirmed that native title could survive colonisation unless extinguished by valid government action. To clarify the legal consequences of the decision and establish consistent pathways for assessing claims, the Commonwealth enacted the Native Title Act 1993 (Cth). The Act aimed to: • • • •
recognise and protect native title regulate future dealings affecting native title create processes for determining native title claims validate certain past grants that may otherwise have been invalidated by the Mabo ruling.
The Act also created the National Native Title Tribunal, which is responsible for administering claims and facilitating mediation. Where native title has been extinguished, the Tribunal can assist in determining appropriate compensation.
Wik case
Following the Mabo decision and the introduction of the Native Title Act, more First Nations groups sought recognition of their land rights. In 1996, the Wik and Thayorre Peoples brought a case against the Queensland government concerning land held under pastoral leases. The Federal Court initially ruled that pastoral leases extinguished native title, but the High Court overturned this decision in Wik Peoples v Queensland [1996] 187 CLR 1. The High Court held that native title and pastoral leases can coexist, but where conflict arises, the rights of pastoral leaseholders prevail. The decision did not grant automatic title over Crown land but raised concerns among pastoralists and mining interests about the future of land access.
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In response, the federal government passed the Native Title Amendment Act 1998 (Cth). Debate over the legislation was intense, particularly in the Senate. Key changes included:
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• extinguishing native title over land that was privately owned before 1 January 1994 • allowing pastoralists to undertake primary production activities without seeking permission from native title holders • imposing stricter tests for proving native title, including evidence of continuous connection.
Yorta Yorta case
The Yorta Yorta people of northern Victoria and southern New South Wales lodged a native title claim in 1994. After mediation before the NNTT, the matter proceeded to the Federal Court. Justice Olney dismissed the claim, finding that the Yorta Yorta people had not maintained continuous observance of their traditional laws and customs, famously stating that “the tide of history” had washed them away. The Yorta Yorta community appealed to the Full Federal Court and then to the High Court (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422). Both courts upheld the original decision.
The High Court ruled that to establish native title, claimants must show a substantially uninterrupted continuation of traditional laws and customs since British sovereignty. Oral transmission alone was not sufficient; the Court required evidence that these laws and customs continued to shape contemporary life. This case significantly influenced how future claims are evaluated.
More recent cases
Several more recent decisions have further clarified or expanded aspects of native title law.
In 2001, the case of Yarmirr v Northern Territory (2001) 208 CLR 1 determined that native title rights of the Croker Island community included free access to the sea and seabed, the first time that rights involving waters had been allowed. In Bennell v Western Australia [2006] FCA 1243, the judge ruled that native title existed within an area in and around Perth. This was the first time native title was recognised over a capital city and its surroundings. A subsequent appeal, Bodney v Bennell [2008] FCAFC 63, lessened the impact of this judgment.
Cases bringing significant change
In the past decade, two cases, the Timber Creek claim and the Gumatj Clan claim, have broadened the scope of native title and land rights claims.
In 2011 the Ngaliwurru and Nungali Peoples, who hold native title to land at Timber Creek in the Northern Territory (granted in 2009), claimed compensation under the Native Title Act 1993 (Cth) for public works that affected their enjoyment of their
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land. After multiple appeals, the High Court’s decision was handed down in 2019 (Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7, 13 March 2019).
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The court awarded the Ngaliwurru and Nungali Peoples approximately $2.5 million in compensation for both economic and cultural losses. This significant decision by the High Court set a method for calculating this type of compensation, by establishing that native title value should be based on a freehold equivalent and also determining that cultural loss is an item that should be compensated. In May 2023, Galarrwuy Yunupingu (on behalf of the Gumatj Clan or Estate Group) commenced a Federal Court claim for compensation (Compensation Claim DP2019/001). The claim sought $700 million to cover the loss of native title and the damage to the land caused by mining. The full Federal Court found that the Commonwealth had acquired the land of the Gumatj people and several other clans without their consent when it granted a mining licence to Nabalco in 1968. The Federal government appealed to the High Court against this decision. In 2025, the High Court ruled that the Gumatj Clan were entitled to compensation. At the time of writing, this case has been returned to the Federal Court to determine the amount of compensation to be paid. This landmark decision by the High Court represents an expansion in the circumstances that allow First Nations Peoples to claim compensation from the Commonwealth for decisions that harmed their native title rights. The decision has far-reaching implications for native title holder compensation, particularly claims relating to loss of land made prior to the Native Title Act 1993 (Cth). It is expected that the compensation awarded will be appealed by the Federal government, given the implications of future claims. For this reason, it is unlikely that the case will see a quick settlement, and students should monitor the case as it progresses. Native title claims remain time-consuming, costly and demanding. This is demonstrated by the case of Manado (on behalf of the Bindunbur Native Title Claim Group) v Western Australia [2017] FCA 136. The claim over land near Broome (Manado on behalf of the Bindunbur Native Title Claim Group v Western Australia [2018] FCAFC 238) was lodged in the Federal Court in 2013, the hearing started in September 2015, and a decision was made in late 2017. Appeals continued until late 2018, when the full Federal Court handed down its judgment in favour of the Bindunbur and Jabirr Jabirr/Ngumbarl native title claim groups. The drawn-out nature of these claims reflects the evidentiary burdens, legal complexity and multiple parties involved.
Figure 12.5.2 Senator for WA Patrick Dodson, Anthony Watson, chairperson of the Kimberley Land Council, Minister for the Environment and Water Tanya Plibersek, Paul House, ACT representatice on the Aliance leadership group, Dr Heron Lovan, principal legal officer for Gur A Baradharaw Kod, Jamie Lowe, CEO fothe National Native TItle Council and Minister for Indigenous Australian’s Linda Burney sign the CO-Design Partnership Agreement on Cultural Heritage Reform in November 2022.
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MEDIA 12.5.1 The High Court made a landmark decision on native title law. Here’s what it means Bethany Butchers, The Conversation, 13 March 2025 Aboriginal and Torres Strait Islander readers are advised this article contains the name of a deceased person.
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The High Court of Australia has handed down a landmark judgement on native title law in Australia.
Commonwealth vs Yunupingu was about whether the Gumatj Clan in the Northern Territory would be entitled to compensation from the Commonwealth for acts that affected their native title rights and interests. The court ultimately found the Gumatj Clan was eligible for compensation, holding the Commonwealth liable.
The case has been described as one of the most significant tests of native title since the famous Mabo proceedings in 1992.
Where did the case come from?
The late Yunupingu, on behalf of the Gumatj Clan of the Yolngu People in North-East Arnhem Land, sought compensation for land subject to bauxite mining in the Gove Peninsula. The clan is seeking an estimated $700 million in compensation as the mining activity winds up, leaving their land damaged.
The Crown authorised the mining in the area without the Gumatj Clan’s consent between the 1930s and ‘60s.
The mining lease, originally granted to Nabalco, is now held by Swiss Aluminium and operated by Rio Tinto.
What were the laws at play?
Commonwealth vs Yunupingu deals with how native title and constitutional law overlap.
Native title law recognises the connection Aboriginal and Torres Strait Islander Peoples have to their lands. It is based on their traditional laws and customs dating back long before British invasion, and continues today. It’s governed by the Native Title Act, which includes provisions for compensation when native title rights or interests are impaired or taken away. Under section 51 of the Constitution, the Commonwealth must pay an owner fairly if they acquire their property. This is called the “just terms” guarantee. This section was famously the subject of the film The Castle, with lawyers arguing it was about “the vibe” of the Constitution. The case was also about section 122, which concerns how the territories are governed.
There were three main issues that were debated before the High Court: whether native title land can be acquired, whether the just terms guarantee applies to the territories, and what role pre-Constitutional mining agreements play.
What were the legal arguments? The Commonwealth told the High Court it doesn’t have to pay for taking away native title rights because those rights are “inherently defeasible” and therefore not property able to be “acquired”. Defeasible means it can be cancelled. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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It’s a technical legal point, but amounts to arguing native title rights can’t be transferred and therefore can’t be acquired by the Commonwealth. It also argued the just terms guarantee doesn’t apply to the territories in the Constitution, except in specific circumstances.
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Finally, the Commonwealth said it took ownership of the minerals found in the area before the Constitution was created by granting leases that “reserved” mineral rights to the Crown. This meant, the Commonwealth said, it could have these rights without having to pay native title holders. Lawyers for the Gumatj Clan countered these points.
They told the court native title rights are covered by the just terms guarantee.
They said to make sense of the Constitution, it must be read as a whole. Therefore, laws about the territories are also subject to the guarantee.
People living in the territories of Australia should still be entitled to fair compensation for property that is acquired and not be excluded because they are in a territory rather than a state.
Lawyers for the Gumatj Clan submitted that “reserving” of minerals within the early pre-Constitution leases meant the leaseholders were given rights to everything except the minerals in the ground. No rights to minerals were granted at all – not to the leaseholders and not to the Crown.
This would mean native title holders with rights to the minerals in those lands would continue to have those rights. As the Commonwealth affected these rights through legislation and mining leases, they must pay the owners fairly.
What did the court find?
In getting to this point, the Federal Court has sided with the Gumatj Clan, but the Commonwealth appealed to the High Court.
After hearing detailed arguments over three days in August, the High Court Justices dismissed the appeal.
In doing so, it found that taking away native title rights is like taking property. As a result, the just terms guarantee applies and means the Gumatj Clan should be fairly compensated. It also agreed with the clan that the guarantee applies to territories as well as the states.
The court found the early pre-Constitution pastoral leases did not have the effect of taking away any non-exclusive native title rights over minerals, meaning the Gumatj Clan continued to have their rights until the legislation and mining leases took place in the 1930s to '60s. The matter will return to the Federal Court to resolve the remaining legal issues.
What does all this mean?
Ultimately, the decision by the High Court is significant. It will allow for some acts that have caused profound harms to First Nations people from 1911 to be covered by compensation. This decision follows a 2019 High Court judgement, commonly referred to as Timber Creek, which awarded compensation under the Native Title Act for the first time. The case was described as the most significant native title case to follow Mabo, opening the door for “billions of dollars” to be claimed by First Nations Peoples for impacts on their lands.
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This case solidifies that precedent and takes it further by formally expanding the range of acts for which native title holders could apply for compensation. Until now, there has been a widespread assumption that compensation under the native title system would only be available for acts that occurred after the introduction of the Racial Discrimination Act in 1975, but this case proves otherwise.
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This is limited to acts done by the Commonwealth, which may mean this will largely have implications for acts done in the territories, because the Commonwealth managed the Territories after federation until 1978 (NT) and 1988 (ACT).
ANALYSIS 12.5.1
Read Media 12.4.1 article and answer the following questions. 1. 2. 3. 4. 5. 6.
Explain what is meant by “landmark decision” and why this decision is seen as one. Outline the case covered by the article. Who are the parties involved and what are their claims and counter claims? Outline the legal arguments in the court case(s). Outline the laws identified in the article. Outline the final ruling in this case and its importance. Summarise the three important points discussed in the article.
Legislative methods
Legislation protecting native title plays a crucial role in recognising and affirming the traditional rights and interests of First Nations Peoples over their ancestral lands and waters. The establishment of native title laws, such as through landmark legislation like the Native Title Act 1993 (Cth), created a formal legal framework to acknowledge First Peoples’ connection to the land for the first time under Australian law.
Figure 12.5.3 The High Court of Australia in Canberra
A key component of this framework is the creation of the National Native Title Tribunal, an independent body that facilitates the resolution of native title claims, mediates disputes, and helps negotiate agreements between First Nations groups, governments and other parties. This recognition not only validates First Nations cultural heritage and ongoing spiritual relationships but also offers important protections against unauthorised use or development of these lands. By safeguarding native title and supporting fair processes through the Tribunal, such legislation empowers First Nations Peoples to maintain their identity, manage their resources, and strengthen their social and cultural systems.
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National Native Title Tribunal
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The creation of the National Native Title Tribunal (NNTT) under the Native Title Act 1993 (Cth) represented a major step forward in handling native title claims in Australia. The NNTT functions as a specialised body that facilitates mediation and negotiation among First Nations claimants, government agencies and other stakeholders, such as mining companies and pastoral leaseholders. Its purpose is to encourage amicable settlements, reduce conflicts and offer a less-adversarial alternative to prolonged court cases. By helping parties reach agreements, particularly regarding “future acts” such as land development, the tribunal supports Indigenous self-determination and helps streamline the native title process. However, despite these advantages, the system remains slow and expensive, with many claims facing lengthy delays. For example, the claim by the Yamatji Marlpa Aboriginal Corporation took more than 20 years to resolve, illustrating systemic backlogs that hinder timely recognition and realisation of native title rights. Additionally, since the Tribunal lacks judicial authority, it relies on the Federal Court for final decisions, which can further prolong the process and increase legal costs.
Executive methods
Parliament has played a critical role in shaping native title law through the passage and amendment of federal legislation. The Native Title Act 1993 (Cth) was groundbreaking in responding to the High Court’s Mabo decision by formally recognising the ongoing rights of Aboriginal and Torres Strait Islander Peoples to their traditional lands. Subsequent amendments sought to clarify how native title coexists with other land interests and improve claim processing efficiency. For instance, the 1998 amendments, following the Wik decision, acknowledged coexistence with pastoral leases, while later reforms introduced mechanisms, such as township leases, and enhanced Indigenous Land Use Agreements to facilitate negotiated settlements.
The 2008 formal apology by Prime Minister Kevin Rudd, although symbolic, highlighted political acknowledgement of past wrongs and the necessity for reconciliation alongside legal reforms. Nevertheless, the legislative progress has often been contentious, with difficulties balancing First Nations property rights against competing commercial and non-Indigenous interests. Some amendments have faced criticism for restricting native title protections, reflecting the complexities and tensions in policymaking. Moreover, the native title legal framework’s complexity and procedural demands impose significant burdens on First Nations claimants, requiring substantial legal resources and time.
Federal legislation
Federal legislative reforms have gradually refined native title law to address emerging challenges and expand protections. The Wik decision and its legislative aftermath clarified the coexistence of native title with pastoral leases, reducing legal uncertainty. Later amendments introduced tools to expedite claims and strengthen the enforceability of Indigenous Land Use Agreements, encouraging negotiated, consensual outcomes over litigation. The Native Title Legislation Amendment Acts of 2009, 2017 and 2021 aimed to improve mediation, dispute resolution and
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administrative efficiency. These reforms reflect acknowledgement that native title processes must evolve to be more accessible and pragmatic. Nevertheless, practical difficulties persist due to the intricate nature of claims, competing land interests and limited resources allocated to native title administration.
State legislation
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State legislation complements federal native title laws by addressing First Nations land rights and cultural heritage locally. For example, the Aboriginal Land Rights Act 1983 (NSW) recognises traditional ownership and empowers Aboriginal Land Councils to manage claims, negotiate land use and protect cultural sites. These councils represent communities, and support cultural and economic development. However, in New South Wales, many land claims face long delays and administrative problems, with some unresolved for more than a decade. Government audits have revealed systemic issues in claim processing that hinder timely land transfers and limit progress towards First Nations self-determination, reducing the immediate benefits of these laws. Changes in Victoria
In November 2025, Victoria became the first state to sign a statewide Treaty with First Nations Peoples, creating the permanent representative body “Gellung Warl” to provide First Nations Peoples with a voice in government and support selfdetermination. This landmark agreement, enacted through the Statewide Treaty Act 2025, is founded on truth-telling and addresses historical injustices. It includes commitments to practical reforms and shared decision-making at the local level. The treaty resulted from extensive negotiations between the Victorian government and the First Peoples’ Assembly of Victoria and will guide future treaties with individual Traditional Owner groups throughout the state.
Figure 12.5.4 First Nations people and their supporters gathered in Sydney for the annual Invasion Day protest, marking 26 January 1788 when Arthur Phillip raised the British flag at Sydney Cove. Observed by First Nations communities as Invasion Day or Survival Day, the date symbolises the beginning of colonisation and its enduring impact on Aboriginal and Torres Strait Islander Peoples. Such protests often see public support for a range of First Nations rights issues, including land rights.
While the statewide Treaty is seen as a potential model for other states in Australia to follow, it is likely to face considerable debate, with arguments both for and against its adoption elsewhere. In discussing this Treaty in September 2025, The Conversation (“Victoria is on the cusp of signing a Treaty with Indigenous people. It could change lives”) highlighted that, over the decades, governments have conducted numerous inquiries, from the Royal Commission into Aboriginal Deaths in Custody to the Bringing Them Home report on the Stolen Generations. While these inquiries revealed painful truths, they seldom resulted in meaningful reform. The article also pointed out that, despite many inquiries, the other states had made little progress in reaching agreements with their First Nations Peoples. As the Victorian treaty is a relatively new development at the time of writing, students are advised to check for updates that are more recent on a regular basis as part of their studies for this subject.
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Overview of law reform relating to native title
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There has been progress in native title law reform, but this has been slow due to the need to balance the rights of Traditional Owners with those of current landholders. The Native Title Act 1993 (Cth) and its amendments reflect this complexity. Although the Mabo case overturned terra nullius, a key legal barrier, many communities, such as the Yorta Yorta, still face challenges in proving continuous traditional ownership because colonial exclusion disrupted their connection to land. Significant legal and legislative advances have occurred, yet reforms are hindered by the protection of property rights for non-Indigenous landholders and lengthy claim processes. For example, the Yaegl people’s claim took nearly two decades to resolve, during which many original claimants died. Future progress depends on embracing new justice concepts and ongoing public support for governments that are committed to effective land rights legislation, as shown by continual federal amendments.
ACTIVITY 12.5.1
1. Construct a timeline showing the recognition of native title rights and self-determination for Aboriginal and Torres Strait Islander Peoples in general and in New South Wales in particular. 2. Using an example, describe the impact of prolonged native title claim processes on First Nations communities.
RESEARCH 12.5.1
1. Carry out research on the aftermath of the Gumatji compensation decision. Find out how much compensation was given and how it affected other claims. 2. Outline the key features and goals of Victoria’s 2025 statewide Treaty with First Nations Peoples. Explain why it is considered a potentially important model for other Australian states.
REVIEW 12.5 Online quiz
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Review 12.5 questions
1. Define “native title” and “self-determination”. Identify which Aboriginal and Torres Strait Islander groups have gained greater progress in these areas. 2. Describe the significance of the Mabo decision in the development of native title law. 3. Discuss the impact of the Wik case on the coexistence of land interests. 4. Explain the Yorta Yorta native title claim, the reasons it was denied and how the decision influenced later claims. 5. Explain the role of the Native Title Act 1993 (Cth) in recognising and managing native title rights. 6. Outline significant native title cases (such as Timber Creek and the Gumatj claim). Explain why governments often appeal native title and compensation decisions. 7. Assess how native title law attempts to balance First Nations Peoples’ rights with other land interests. Go online to assign and download questions, view results and more!
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12.6 Outcomes of change LEARNING OBJECTIVE 12.6
reporting
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EXPLAIN the outcomes, including benefits and limitations, from changes to land rights and native title laws.
Writing focus 12.5 Transitional note taking phrases
Native title laws have helped recognise First Nations Peoples’ connection to their traditional lands, supporting culture, self-determination and economic opportunities. Key cases and laws, such as Mabo and the Native Title Act, have been vital in this progress. However, claiming native title can be difficult due to complex legal rules and high proof requirements. Conflicts with other land uses and limits on scorcher compensation also pose challenges. Despite these issues, native title laws continue to evolve, creating ongoing opportunities and debates about fair recognition of Indigenous land rights.
Benefits
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Land rights and native title recognition in Australia have in the past few decades provided significant social, cultural, legal and economic benefits. They aim to correct historical injustices by acknowledging First Nations Peoples’ enduring connection to Country and promote their active role in managing and benefiting from their lands, advancing justice and equity. The benefits of land rights and native title recognition and legislation include the following.
Legal recognition of Indigenous connection
Land rights and native title laws formally recognise First Nations Peoples as the Traditional Owners and Custodians of their ancestral lands and waters. This legal acknowledgement validates their deep, ongoing spiritual, cultural and historical relationship with Country, which had been denied under earlier colonial legal frameworks, including terra nullius.
Cultural preservation
Figure 12.6.1 Betty Mabo, daughter of Eddie “Koiki” Mabo, the father of native title in Australia on Thursday Island in the Torres Strait on Mabo Day, 3 June 2021
By recognising First Nations land rights, these laws help protect sacred sites, cultural practices and traditional knowledge linked to the land. They enable communities to maintain and pass down cultural heritage to future generations, safeguarding identity and promoting cultural revitalisation.
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Empowerment and self-determination Land rights legislation grants First Nations Peoples greater control over land management and decision-making. This empowerment supports self-determination by allowing communities to govern their land according to their values, customs and aspirations without external imposition.
Economic opportunities
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Recognition under native title laws opens pathways for First Nations Peoples to negotiate agreements with governments and companies, including Indigenous Land Use Agreements. These agreements can provide benefits such as royalties, employment, business opportunities and compensation, contributing to economic development and community wellbeing.
Improved relationships and reconciliation
The process of recognising native title encourages dialogue and negotiation between First Nations groups, government bodies and commercial interests. This fosters respect, understanding and partnerships that contribute to reconciliation and social cohesion in Australian society.
Legal protection against unauthorised land use
Native title and land rights laws offer First Nations communities the legal mechanisms to challenge or influence developments that may affect their lands. This protection helps ensure that First Nations rights are considered in land management and resource exploitation decisions, preventing or mitigating harmful impacts.
Limitations
As seen above and throughout this chapter, there has been progress in the area of land rights and native title for Aboriginal and Torres Strait Islander Peoples; however, as seen throughout the chapter there is still room for much improvement. These are summed up in the following limitations.
Complex and costly legal processes
Native title claims require navigating complicated legal procedures that can take many years and involve substantial financial costs. This complexity often puts smaller or less-resourced First Nations groups at a disadvantage, limiting their ability to successfully claim native title.
High evidentiary burden
Claimants must prove continuous connection to land according to traditional laws and customs since before British colonisation. This is a very high standard, especially given the disruptions caused by colonisation, forced removals and cultural changes, making it difficult for many First Nations groups to meet this requirement.
Limited scope of recognition Native title rights do not always grant exclusive possession or full control over land. They may be extinguished or limited by other interests such as freehold titles, mining leases or pastoral leases. This can reduce the practical benefits of native title. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Government and industry restrictions Laws and government policies sometimes curtail native title rights through legislative amendments or court challenges. Governments have also frequently appealed compensation claims to reduce their financial liabilities, limiting the compensation First Nations Peoples receive.
Potential for conflict
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Native title recognition can create tensions between First Nations Peoples and other land users such as farmers, miners and developers. Balancing these competing interests often leads to complex negotiations and compromises, which may not fully satisfy First Nations communities.
Limited economic benefits for some communities
Not all First Nations groups gain significant economic advantages from native title or land rights. In some cases, traditional lands may lack resources or development potential, limiting opportunities for economic advancement.
Incomplete reconciliation
While native title laws acknowledge Indigenous connection to land, they do not fully address the broader social, cultural and political impacts of colonisation. Issues such as inequality, discrimination and social disadvantage persist beyond land rights recognition.
Conclusion
In summary, although land rights and native title laws have brought important advances, they face significant limitations related to legal complexity, evidentiary demands, restricted rights, government challenges, potential conflicts and broader social issues. These challenges highlight ongoing debates about how to improve native title frameworks to better serve First Nations Peoples.
REVIEW 12.6 Online quiz
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Review 12.6 questions 1. 2. 3. 4. 5.
Outline three benefits of native title recognition for First Nations communities in Australia. Explain the concept of Indigenous Land Use Agreements and their role in native title outcomes. Outline two limitations of native title laws related to land-use conflicts and government restrictions. Discuss why proving native title claims is often challenging for First Nations groups. Discuss how acknowledging land rights and native title supports the revival of language, the regeneration of culture and the restoration of community governance.
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“Native title” is the right of Aboriginal and Torres Strait Islander Peoples to an area of land with which they have an ongoing association. The concept of terra nullius was used to justify the implementation of British law and the dispossession of Aboriginal and Torres Strait Islander Peoples. The 1967 Referendum amended the Australian Constitution to allow the Commonwealth to legislate for Aboriginal and Torres Strait Islander Peoples, and to allow them to be counted in the Census. The Mabo case was a significant High Court decision that abolished terra nullius and led to the federal government passing the Native Title Act 1993 (Cth). Further state and federal legislation and court decisions have been instrumental in law reform in the area of native title. Although social and legal attitudes toward land rights and native title have evolved and brought benefits, significant challenges and obstacles remain.
Multiple-choice questions
1. In 1788, the British government declared the Australian continent terra nullius. Which belief held by the British at that time contributed to this declaration? A. The understanding that Aboriginal and Torres Strait Islander Peoples belonged to many distinct cultural and language groups B. The observation of fences, farms and signs indicating traditional land ownership across the continent C. The belief that Aboriginal and Torres Strait Islander Peoples had no concept of land ownership D. The recognition that colonial laws and policies were developed to serve the interests of the white colonists
2. What was the effect of the 1967 amendments to the Australian Constitution? A. The amendments gave Aboriginal and Torres Strait Islander Peoples the right to vote. B. The amendments allowed the Commonwealth to make laws for Aboriginal and Torres Strait Islander Peoples and allowed them to be counted in the Census. C. The amendments gave Aboriginal and Torres Strait Islander Peoples native title. D. The amendments gave Australian citizenship to all Aboriginal and Torres Strait Islander Peoples in New South Wales and Victoria.
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3. Why is the Mabo case considered an important landmark in Australian law? A. It established the rights of all Australians to own property anywhere in the country. B. It led to the introduction of native title legislation and recognised the traditional rights of Aboriginal and Torres Strait Islander Peoples to their land. C. It abolished all state laws relating to land ownership. D. It was the first case to grant citizenship to Aboriginal and Torres Strait Islander Peoples.
U N SA C O M R PL R E EC PA T E G D ES
4. What does the National Parks and Wildlife Act 1974 (NSW) specifically protect in relation to Aboriginal culture? A. Environmentally friendly tourist places on culturally significant sites as long as nothing is destroyed or removed B. The rights of all Australians to hunt on public lands C. Places and relics of significance to Aboriginal culture, making it an offence to destroy, disturb or remove them D. The establishment of new national parks exclusively for tourism 5. Which of the following is NOT a requirement for proving continuous observance of laws and customs, according to the High Court? A. The acknowledgment and observance of customs and laws must be substantially uninterrupted since British sovereignty. B. Claimants must show that their current way of life is influenced by these traditions. C. Claimants must provide written documentation of their laws and customs, as oral tradition is insufficient evidence. D. Evidence must demonstrate an ongoing and continuous connection to the traditional laws and customs.
Short-answer questions
1. Describe the events of the Myall Creek Massacre. Discuss why, in your opinion, this massacre was able to occur.
2. Outline the role of the National Native Title Tribunal. Describe the challenges that it faces. 3. Who was Eddie Mabo? Describe how he changed Aboriginal and Torres Strait Islander Peoples’ rights. 4. Discuss the relationship between court decisions and subsequent legislation. Explain how law reform relating to native title has taken place so far.
5. Reforms continue to take place around native title and land rights. Carry out some research and write a brief summary of the more recent changes to the law in regard to native title and land rights, and community opinion about this issue.
Extended-response question
Discuss the ways in which native title and land rights laws in Australia have changed in the last 50 years. In your answer, refer to key cases and recent reforms, and analyse how these changes have affected First Nations communities and broader Australian society.
Video 12.6.1 Answering an exam question
Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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13 CHAPTER
Changing the law: Sport
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This digital chapter can be accessed via Cambridge GO
LESSONS
13.1 Sport and the law
13.2 Reasons for change 13.3 Drivers of change
13.4 Processes of change 13.5 Outcomes of change
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14
Changing the law: Sexual assault
U N SA C O M R PL R E EC PA T E G D ES
CHAPTER
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • define sexual assault and its key elements in the eyes of the law • identify the reasons for legal reform in relation to sexual assault laws • describe the drivers influencing and effecting change in sexual assault laws • explain how sexual assault laws have been developed through judicial decisions and legislation • explain the outcomes, including benefits and limitations, of recent legal reforms addressing sexual assault.
RELEVANT LAW
IMPORTANT LEGISLATION
Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW) Criminal Procedure Amendment (Evidence) Act 2005 (NSW) Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW) Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW) Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)
SIGNIFICANT CASES R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37 R v Lazarus [2017] NSWCCA 279
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14.1 Sexual assault and the law LEARNING OBJECTIVE 14.1 DEFINE sexual assault and its key elements in the eyes of the law.
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reporting
One of the central aims of the criminal justice system is to prosecute criminal offenders on behalf of victims and the community. Throughout the process, there is tension between the rights of the accused and the interests of individuals and the community. Getting this balance right is a constant challenge for the state. This has proven scorcher especially problematic in the area of sexual assault.
Writing focus 14.1 Question words note taking
As a result, there has been significant law reform in relation to sexual assault offences over the past decade. This has been motivated by perceptions that the criminal justice system was failing to deliver justice for sexual assault victims and provide outcomes for the community.
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consent free and voluntary agreement by a rational person who is able to understand and make a decision about the matter to which they agree
The relevant legislation for sexual assault and all related sexual offences in New South Wales (NSW) is the Crimes Act 1900 (NSW). The offences are primarily contained within Division 10 of Part 3 of the Act, which covers sexual offences against adults and children. In New South Wales law, the term “sexual assault” specifically refers to the act of sexual intercourse without consent (section 61I). However, the Crimes Act 1900 (NSW) contains a range of other serious sexual offences that fall under offences of “sexual assault”. The key elements required for crimes of sexual assault to be present include:
• There was an absence of consent. The Crimes Act describes this as acts carried out without the other person’s “free, voluntary, and ongoing agreement”. Consent must be present at every stage of the activity and can be withdrawn at any time. • The act was of a sexual nature in that it involved either touching, penetration or other sexual behaviour. • There was the use of force, coercion or manipulation. This can include the use of physical force, threats, intimidation, manipulation or abuse of authority. As sexual assault encompasses a range of criminal offences, across jurisdictions in Australia, these offences are categorised predominantly into three areas. These include:
• sexual penetration without consent, often referred to as rape • sexual touching without consent, such as unwanted touching, fondling or grabbing, also known as “indecent assault” • forcing, coercing or tricking a person into performing a sexual act.
Figure 14.1.1 Clearly defining consent is central to this area of the law
In all cases, consent is the central issue. Physical violence or injury does not determine consent, but it can increase the seriousness of the offence.
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REVIEW 14.1 Online quiz
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Review 14.1 questions
U N SA C O M R PL R E EC PA T E G D ES
1. Identify the key elements required for crimes of sexual assault to be present. Go online to assign and download questions, view results and more!
14.2 Reasons for change LEARNING OBJECTIVE 14.2
IDENTIFY the reasons for legal reform in relation to sexual assault laws.
The rate of sexual assault in Australia continues to rise unabated, despite a range of legal and non-legal initiatives. Current statistics allude to the alarming extent of sexual assault and sexual violence experienced by (mainly) women in Australia. According to the Australian Bureau of Statistics (ABS), the sexual assault victimisation rate in 2022 and 2023 increased from 126 to 136 victims per 100,000 persons and continued to increase to 147.4 by 2024. As shown by Figure 14.2.1, this marked a dramatic increase on an already upward trend particularly since the COVID-19 pandemic. 160
Rate per 100,000 persons
140
120
100
60
1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024
80
Year Figure 14.2.1 Sexual assault victimisation rate in Australia to 2024
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Women are disproportionately affected compared to men by crimes of sexual assault and sexual violence. One in five women (22% approx.) will experience sexual violence in their lifetime compared to one in 16 men (6.1% approx.) according to the National Association of Services Against Sexual Violence and ABS from data cited in 2025.
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Police records also show that 84% of recorded victims of sexual wnload word download pdf assault were women. This is further correlated by figures that show most alleged offenders (93%) in 2022– 2023 were male. According to Our Watch (a not-for-profit organisation), Figure 14.2.2 March to End Rape Culture in Philadelphia, USA, 2018. One of the reasons women who are Aboriginal and for under-reporting is the fear of not being believed. Torres Strait Islander, women with disability and women aged 18–34 face significantly higher rates of sexual assault and sexual violence.
Under-reporting
reporting
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Writing focus 14.2 Conjunctions note taking (subordinating reasons why)
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Given that sexual assault is among the least‑reported offences in New South Wales and Australia, the true scale of the issue remains unknown. The Australian Law Reform Commission (ALRC) has highlighted that such low reporting rates hinder the scorcherability to adequately support victims and meet community expectations. legal system’s The majority of incidents of sexual assault do not come to the attention of the legal system. The problem is exacerbated particularly in the area of family violence, which, across all jurisdictions, is a national crisis. Therefore, an important part of the law-reform focus should be on measures that might promote reporting and address community attitudes to sexual assault and attitudes to women. All these aspects continue to reinforce and contribute to the invisibility of sexual assault, which has profound implications for victims, the justice system and public understanding of the issue. Under-reporting is hard to gauge, so the incidence of sexual assault in the home and in the broader community can only be approximated. Organisations such as Full Stop Australia (previously Rape and Domestic Violence Services Australia) and Australia’s National Research Organisation for Women’s Safety use a range of research methods to better understand domestic and sexual violence against women. Findings from the Personal Safety Survey 2021–2022 consistently show high levels of victimisation, especially for women. However, the ABS revealed that only 2.7% of women who experienced sexual assault by a male in the 10 years before 2021–2022 contacted police about their most recent incident. The reporting gap is estimated to be as high as 92% – see Figure 14.2.3. The results of the next Personal Safety Survey are expected to be available from mid-2027.
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There are a range of reasons for under-reporting. Some of these include:
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• fear that the police or the legal system will not believe them, that the process itself will cause further harm to them through secondary victimisation and that this will cause further trauma. Physical evidence often poses another major obstacle in prosecuting sexual assault cases. Victim-survivors of sexual assault generally need to be physically examined and questioned in detail to obtain evidence that can be used in court – many consider this process to be too traumatic. • feelings of shhame, guilt and self-blame. • the perpetrator being known to the victim. Most sexual assaults are committed by an intimate partner or family member, or acquaintance. As a result, victims may fear reprisal or other social consequences. Australia’s National Research Organisation for Women’s Safety (ANROWS) found that many Australians overestimate how often false reports of sexual assault happen and hold beliefs about how a “genuine victim” should behave such as reporting immediately or showing obvious distress. This widespread mistrust in both the community and the system reinforces the fears that lead victims not to report (Minter, K., Carlisle, E. & Coumarelos, C. “Chuck her on a lie detector” – Investigating Australians’ mistrust in women’s reports of sexual assault (Research report). ANROWS, 2021). The main problem with the law of sexual consent in New South Wales prior to the 2022 reforms, which introduced an affirmative consent model, stemmed from a system that was perceived as placing too much focus on the alleged victim’s behaviour, which made it difficult to secure convictions for sexual assault.
Sexual Assault and Sexual Violence in Australia Key Findings from the 2021-2022 Personal Safety Survey (PSS)
PREVALENCE SINCE AGE 15 (Estimated % of population aged 18+) WOMEN (approx. 2.2 million) MEN (approx. 582,400)
ANY SEXUAL VIOLENCE: 22%
ANY SEXUAL VIOLENCE: 6.1%
Sexual Assault: 20% (2.0m) Sexual Threat: 5.5% (544k)
Sexual Assault: 5.1% (483k) Sexual Threat: 1.4% (137k)
Significant Gender Disparity in Experiences
WOMEN’S MOST RECENT INCIDENT (Male Perpetrator) - CONTEXT & REPORTING PERPETRATOR RELATIONSHIP LOCATION OF INCIDENT Other Known Person
Intimate 53% Partner
Residential Location (Total): 69%
Most frequently a KNOWN person
Stranger
Most recent incident by a male perpetrator
Victim’s Home: 36%
Perpetrator’s Home: 20%
REPORTING & IMPACT (Women’s most recent incident)
POLICE REPORTING GAP NOT REPORTED to Police
92%
Only˜8% reported
SEEKING SUPPORT SOUGHT ADVICE/SUPPORT
57%
Most commonly from Friend/Family
AFTERMATH (12 Months Post) EXPERIENCD ANXIETY or FEAR
67%
For personal safety
Figure 14.2.3 The major findings of the Australian Bureau of Statistics Personal Safety Survey 2021–2022 and the Australian Institute of Health and Welfare. The results of the next Personal Safety Survey are expected to be available from mid-2027.
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Low conviction rates
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In the context of disproportionate reporting of sexual offences, further frustrations for victims and the community have been, and continue to be, historically low conviction rates. The NSW Bureau of Crime Statistics and Research, which tracked sexual assault incidents reported to police through the criminal justice system from 2018 to 2023 found a very low rate of conviction relative to reports. The overall percentage of sexual assaults reported to the NSW Police Force that resulted in a proven charge (a guilty verdict or guilty plea) in court was seven per cent. When this is further broken down, there is some variation in conviction rates; adult sexual assault incidents were six per cent, contemporary child sexual-assault incidents were eight per cent and reported historic child sexual assault incidents were seven per cent.
attrition the rate at which a case drops out at various stages of the criminal justice process
The main reasons for this are what the Bureau of Crime Statistics and Research calls attrition. Many cases drop out of the criminal justice system at various stages of the criminal process. It found that police took no action in about 85% of reported incidences and of the small number of cases that did progress to court, only 41% of defendants were found guilty of a sexual assault charge.
Further procedural challenges also are present with the decision to proceed to prosecution. The Office of the Director of Public Prosecutions will generally prosecute if a conviction is likely, and it is in the public interest. Where the person knows their attacker – which is the majority of reported sexual assault cases – much of the case relies on one person’s word against another’s, unless there is convincing physical evidence. Advocates for victim-survivors of sexual assault argue that cases involving a stranger are more likely to proceed, because it is easier to establish that the sex was not consensual. Furthermore, assaults by strangers are often more severe, and there is more likely to be strong physical evidence. However, obtaining physical evidence often poses another major obstacle in prosecuting more serious sexual assault cases. Victim-survivors of sexual assault generally need to be physically examined and questioned in detail to obtain evidence that can be used in court – many consider this process to be too traumatic.
Figure 14.2.4 Grace Tame became Australian of the year in 2021 for her advocacy work for sexual assault survivors, calling for a definition of consent to be established federally and taught in schools. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Affirmative consent model
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An essential element in the criminal justice process is satisfying the high standard of proof, “beyond a reasonable doubt” to secure a conviction in indictable cases. In sexual assault cases, a key component in establishing guilt is to determine if “consent” was present at the time of the offence or alternatively whether there was a lack of consent or consent was withdrawn at any time during the alleged act. Much criticism of the previous laws regarding consent was that it placed too much focus on the victim’s behaviour, which made it difficult to secure convictions for sexual assault. The laws allowed a range of assumptions that were inferred or tested in court, which resulted in further trauma for victims. It also sent a message to other members of the community, predominantly women, that reporting and proceeding to trial was not a pathway to pursue. Two assumptions in particular that were problematic:
Figure 14.2.5 Raelene Sharp KC, the ninth Director of Public Prosecutions (Cth)
• Does no really mean no? A person was consenting unless they actively resisted or clearly objected. • A victim who reacted in silence, froze at the time of the offence or was unable to physically resist could be interpreted as having given consent.
The defence of “reasonable grounds” allowed defendants to argue that they genuinely believed they had consent, which often became hard to dispute, particularly as, many victims know the offender. Laws as such, did not clarify that consent cannot be presumed, that even when consent is present it must ongoing, and it can be withdrawn at any time.
REVIEW 14.2 Online quiz
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Review 14.2 questions
1. Identify what prompted significant law reforms in relation to sexual assault offences in New South Wales over the past decade. 2. Outline why the reported sexual assault victimisation rate is inaccurate and the reasons for this. 3. Explain what is meant by “attrition” and how this affects conviction rates for sexual assault. 4. Explain the challenges of prosecuting a case of sexual assault when the victim knew their attacker. Go online to assign and download questions, view results and more!
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14.3 Drivers of change LEARNING OBJECTIVE 14.3 DESCRIBE the drivers influencing and effecting change in sexual assault laws. download pdf
Over a number of years, there has emerged a range of vested interests within the community whose confidence in the criminal justice system in regard to sexual assault has diminished to the extent that individuals and organisations have used non-legal means, such as advocacy, political pressure and education, to seek change. Simultaneously, there have been Law Reform Commissions (parliamentary inquiries established through legal institutions) to use legal measures to advocate for reform to the law. Over the Past 20 years, society reached a tipping point where the law was inadequate and the rights of victims and the needs of the community were not being met.
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Informal methods of change “Teach Us Consent” campaign
reporting
Writing focus 14.3 Noun phrases note taking (identify)
Chanel Contos is a prominent sexual consent activist who, against the background of the broader #MeToo movement, launched the “Teach Us Consent” campaign in early scorcher 2021. This is an example of the ability of a grassroots campaign to directly influence significant change through developing awareness, building an evidence-based case for change, and influencing policy and lawmakers to enact that change. Chanel Contos used an Instagram poll to ask her followers about their experiences of sexual assault within Australian schools. This unleashed an incredible outpouring of young people sharing their experiences, revealing the prevalence of sexual assault in schools and the community and exposed the lack of understanding about consent among young people.
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Figure 14.3.1 Campaigners against sexual violence gathered in protest outside NSW Parliament on 21 October 2021 in Sydney, Australia. The 6,000 ribbons represent the 6,000 women who gave testimony about their experience of sexual assault to Chanel Contos from Teach Us Consent.
This was also happening around the time that Grace Tame, a child abuse survivor, was named Australian of the Year and Brittany Higgins’s allegations of sexual assault in Parliament House. These events were among a number of contributing factors to the “March4Justice” rallies across Australia on 15 March, 2021. The “Teach Us Consent” campaign lobbied for holistic, age-appropriate and mandatory consent education to be included in the Australian school curriculum. The campaign was successful. In and in 2022, state and territory education minsters across Australia met to mandate consent education in the national curriculum for all students from kindergarten through to Year 10. This significant change in policy has ensured every Australian
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schoolchild receives structured education on respectful relationships and consent. The “Teach Us Consent” campaign illustrates how the power of individuals can initiate real change in a liberal democracy. Access the Teach Us Consent website for more information at https://cambridge.edu.au/ redirect/12082.
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Full Stop Australia
Full Stop Australia is one of the leading not-for-profit organisations pushing for reforms to the way sexual assault matters are dealt with in the criminal justice system. The organisation was founded in 1974 as the Sydney Rape Crisis Centre, and was subsequently Figure 14.3.2 Chanel Contos, Grace Tame and Anna Couttsrebranded as NSW Rape Crisis in 1997, Rape and Trotter, pictured in 2024. Anna Coutts-Trotter founded The Survivor Hub, a support network for sexual assault survivors. Domestic Violence Services Australia in 2013, and Full Stop Australia in 2021. It provides support services, undertakes research and speaks to government bodies, the media and the community about the prevention of violence. It also provides support and counselling for anyone who has experienced sexual violence. Full Stop Australia made submissions to the federal and NSW governments to increase investment in the prevention of sexual, domestic and family violence in addition to ensuring ongoing support for the 24/7 service, 1800 FULL STOP. Today, the organisation has three key areas of work: support, advocacy and education. Access Full Stop Australia’s website for more information at: https://cambridge.edu.au/ redirect/12083.
Rape and Sexual Assault Research and Advocacy
Rape and Sexual Assault Research and Advocacy is an independent, not-for-profit charitable organisation established to build and hold the evidence base for survivorcentric rape justice reform. The core of their mission is to undertake research that creates an evidence base to drive reform of laws and systems, advocating for best practice community and legal responses centring on survivor voices in rape justice reform.
In 2024, they presented a submission to the Australian Law Reform Commission arguing that “the criminal justice system as it stands is incompatible with justice for victim-survivors. Instead, victim-survivors are re-traumatised by their experience of the system and a message is sent to the community that there are no consequences for sexual violence”.
Australia’s National Research Organisation for Women’s Safety
ANROWs was established by the federal and state governments with the primary function to build, strengthen and translate the evidence base to inform policy and practices aimed at reducing and ending violence against women and children in Australia. The work of ANROWS aligns with many of the issues highlighted previously. ANROWS recommendations, to the ALRC Inquiry into Justice Responses
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to Sexual Violence centred on the need for comprehensive system reform to improve the experiences of victim-survivors and address persistent barriers to justice.
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The inquiry advocated for better trauma-informed approaches throughout the criminal process, including the availability of alternative reporting options and prioritising the safety and wellbeing of victim-survivors. They also argued that victims should be able to retain control and personal agency over the way engage with the criminal process. Further, they argued that due process should be timely, so as not to further traumatise the victim and enable the defendant to delay proceedings. Read more at https://cambridge.edu.au/redirect/11905.
NSW Bar Association
The NSW Bar Association, the professional organisation for barristers in the state, has rewritten its own rules for the cross-examination of alleged victim-survivors of sexual assault. Questions that belittle, confuse or mislead are problematic as are attacks on the victim-survivor in a bid to make them look confused or unsure of their version of the facts in the eyes of the jury. The Association continues to educate its members to ensure they understand and adhere to high professional standards, particularly when dealing with vulnerable witnesses, including sexual assault victims. It also plays a role working towards improving the trial process for victims of sexual assault through law reform consultation. In particular, the NSW Bar Association:
• runs continuing professional development programs that address topics including sexual harassment, discrimination and bullying, promoting a more professional and respectful legal environment. (This professional culture indirectly influences the standard of conduct for barristers in the courtroom when cross-examining complainants.) • provides or references resources, such as an advance chapter of the NSW Judicial Commission’s Criminal Trial Courts Bench Book, which aids legal practitioners in understanding the latest changes in the law, particularly those concerning the special directions for consent in sexual assault trials. The overarching goal of these actions is to foster a trial environment that is more trauma-informed, reduces the risk of re-traumatisation for victims, and ensures that evidence is assessed fairly and impartially. However, the extent to which this is improving can be hard to quantify as the application of professional standards falls primarily on the individual practitioner.
The media
Criminal cases involving sexual assault have received significant media attention over the past decade. The media’s influence on public opinion, law organisations and governments has resulted in changes that improve the treatment of victim-survivors of serious sexual assault crimes in court. People being forced to recount their experience repeatedly, and defence counsels badgering them in cross-examination to call their credibility into question, have been reported on by the media and horrifying
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the public and many in the legal profession. Frequently, however, the positive outcomes have been accompanied by less desirable ones, such as the rights of the accused being accorded a low importance, and a readiness to exploit the prejudices of some segments of the public.
Figure 14.3.3 Brittany Higgins, a former parliamentary aide, arrives at court in 2022 after alleging she had been raped by a colleague, Bruce Lehrmann, in Australia’s Federal Parliament House in 2019. This was a very high-profile trial, followed by a failed appeal and defamation case by Lehrmann in 2025.
RESEARCH 14.3.1
On the internet, find some or all of the following articles, or research some independently: • • •
• •
Sonia Hickey, “A history of sexual consent laws in Australia”, Sydney Criminal Lawyers, 13 September 2023. http:// cambridge.edu.au/redirect/10378 Aleisha Orr, “New figures paint stark picture of sexual violence and harassment in Australia”, SBS, 23 August 2023. http://cambridge.edu.au/redirect/10379 Bianca Fileborn, Angela Dwyer, Ash Barnes and Nicole L. Asquith, “The reporting process was more traumatising than the assault itself: LGBTQ+ survivors on accessing support after sexual violence”, The Conversation, 28 March 2023. http://cambridge.edu.au/redirect/10380 Thea Deakin-Greenwood and Jane Bolitho, “Restorative Justice After Sexual Assault”, Community Legal Centres NSW Publication, 5 August 2020. https://cambridge.edu.au/redirect/11906 Benita Kolovos, “Rape is Effectively Decriminalised: How did Sexual Assault Become So Easy to Get Away With?”, 31 January 2025. https://cambridge.edu.au/redirect/12087
1. Read these articles and comment on the historical complexity of the sexual assault issue and the difficulty in ensuring justice is achieved. 2. Outline the criticisms made of the criminal justice system in these articles. Identify and discuss some reforms that could improve the effectiveness of sexual assault laws. 3. Research the extent to which some of these improvements have been achieved.
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Formal methods of change
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Law Reform Commissions are established under statute law, and their primary role is to undertake inquiries into areas of law when asked to do so by the respective Attorney-General (federal or state/territory). Their core functions are to develop or reform the law, simplify the law, improve the administration of the law, including access to justice, and promote uniformity. There has been significant work undertaken in the area of sexual assault and sexual violence and the laws relating to consent at both the state and federal levels.
The Australian Law Reform Commission
The Australian Law Reform Commission commenced an inquiry, Justice Responses to Sexual Violence, in January 2024. It was tasked with comprehensively reviewing the entire justice system, aiming to strengthen and harmonise consent laws, evidence rules and court procedures in sexual offence cases. It focused on ensuring trauma-informed and culturally safe practices across police, prosecutors and courts, and examining support services available to victim-survivors. The overall goal of the inquiry was to examine ways to reduce re-traumatisation and promote more just and fairer outcomes for people who have experienced sexual assault and violence. The commission released its report Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence (ALRC Report 143) on 6 March 2025. It released 64 recommendations for the federal government to consider, with the assumption it would work with state and territory governments. These primarily centred on:
• enhancing support and access to justice for victim-survivors through the provision of resources to safely engage with the criminal justice system in an informed way, including recommending a new integrated support service that would combine independent legal services and justice navigators (to walk alongside victims through the police and court process) and ensuring reporting mechanisms are safe, with alternatives to a direct police report • reforming laws on evidence and procedure to prohibit inappropriate questioning, including unwarranted and improper cross-examination, and to mandate judicial directions regarding the effects of trauma on memory and recall • improving accountability and training, which includes trauma-informed training for police, legal personnel and judges, and establishing an independent review and complaints mechanism to allow survivors to challenge decisions made by police or prosecutors not to proceed with a charge.
The NSW Law Reform Commission
The commission began its inquiry into consent laws on 3 May 2018. It was titled Consent in Relation to Sexual Offences and was handed the terms of reference to “review and report on consent and knowledge of consent concerning sexual assault offences” under section 61HA of the Crimes Act 1900 (NSW). Included in the terms of reference was a mandate to consider how this section of the Crimes Act could be simplified or modernised through revising the experiences of sexual assault survivors through relevant case law, research and expert opinion.
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The inquiry handed down its report in 2020. The inquiry’s main findings were that section 61H: • failed to clarify that consent is not just the absence of “no” • allowed the accused to claim they had a reasonable belief that consent had been given as there were no obligations for the accused to take concrete measures to ascertain consent.
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The implication was an unequal focus on the victim’s behaviour as opposed to the accused’s behaviour. As a result, the trial process was consistently undermined by what are now well-documented misconceptions about victim behaviour, such as the idea that a victim must physically resist or that having consumed alcohol or worn certain clothing implies consent. As a result, one of the recommendations was that there be an introduction mandated or “specific” instructions given to the jury to be aware of these misconceptions so as to ensure a fairer assessment of a victim’s evidence.
The primary outcome of the review was the introduction of an affirmative model of consent that led to significant legislative changes in New South Wales, primarily through the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021, which commenced on 1 June 2022.
Figure 14.3.4 Parliament of New South Wales, Sydney
REVIEW 14.3 Online quiz
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Review 14.3 questions
1. Recall at least three means of advocacy, political pressure or education (outside of legal organisations) that have prompted change to sexual assault laws in New South Wales. 2. Outline the changes implemented by the NSW Bar Association. 3. Recall what the Australian Law Reform Commission inquiry Justice Responses to Sexual Violence aimed to do. 4. Discuss the NSW Law Reform Commission inquiry Consent in Relation to Sexual Offences in terms of both its findings and the outcomes. Go online to assign and download questions, view results and more!
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14.4 Processes of change LEARNING OBJECTIVE 14.4
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EXPLAIN how sexual assault laws have been developed through judicial decisions and legislation.
Legislative methods
reporting
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complainant a person making a formal complaint in a court of law
in camera (Latin) “privately”; only specified persons (e.g. a judge) can be present during the testimony or proceeding
As a result of the many campaigns, advocacy and law reform inquiries, there has been significant reform to the laws conserning sexual assault. The raft of legislation passed by the NSW Parliament aims to deliver fairer outcomes, predominantly for victims of scorcher The following legislation was introduced to reduce delays, enhance the sexual assault. efficacy of procedures in regard to giving evidence and the admissibility of evidence, and continue reforms to the law of consent. Some of the key legislation is as follows:
• Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW) – This Act amended the Criminal Procedure Act 1986 (NSW) to provide that a pre-trial order made by a judge in proceedings relating to a sexual offence be binding on whatever judge presides at the trial. Rulings on the admissibility of evidence by a judge other than the trial judge need to be binding on the trial judge, so that delays in the commencement of criminal proceedings are minimised. The legislation was designed to minimise the stress and trauma on complainants giving evidence, who had to prepare themselves to give evidence every time a trial was rescheduled. • Criminal Procedure Amendment (Evidence) Act 2005 (NSW) – This Act amended the Criminal Procedure Act 1986 (NSW) to allow a transcript or recording of a complainant’s evidence in any re-trial. If the evidence is admitted in a re-trial, the complainant cannot be forced to give further evidence unless they decide to do so. • Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW) – Certain provisions of this Act were designed to ensure that improper questions were not put to complainants during cross-examination. It also provided for evidence to be given in camera (privately) and for support people to be close to a complainant when they are giving evidence. The Act also introduced a new section into the Criminal Procedure Act 1986 (NSW) to prevent an unrepresented accused from cross-examining the complainant. • Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW) – A person’s lack of consent and knowledge that a person is not consenting are elements of sexual assault offences, such as rape. If someone is under the influence of alcohol or drugs, they may not have the capacity to give consent. In court, an accused will be examined by the prosecution on what steps they took to ensure that there was consent. The Crimes Act 1900 (NSW) was amended to place the onus on the defendant to prove there was consent; in the past the prosecution had this responsibility.
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In 2020, with the tabling of the Consent in Relation to Sexual Offences (Report 148) and with the key recommendations, there were calls to further amend the laws of consent concerning sexual assault after the NSW Law Reform Commission tabled a report. In June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW) implemented consent reforms that:
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• clarify consent provisions in the Crimes Act 1900 (NSW), including that consent is a free and voluntary agreement that should not be presumed. The law now clarifies that a person does not consent to a sexual activity if they do not say or do anything to communicate consent. Silence or lack of resistance is not consent. This is a critical change to address the “freeze” response to fear or trauma. • clarify that consent involves ongoing and mutual communication. The law clarifies that consent is a free and voluntary agreement that involves ongoing and mutual communication and should not be presumed. • clarify that consent cannot be given if someone is so intoxicated or under the influence of drugs that they cannot choose or refuse to participate. • strengthen laws to confirm that consent can be withdrawn at any time, and that if someone consents to one sexual act, it does not mean they have consented to other sexual acts. • provide guidance for ascertaining consent called the “reasonable belief test”. An accused person who believes that consent was present at the time of the act, they must have said or done something to ascertain consent. • expanded the list of circumstances where a person does not consent to include fear of serious harm, coercion, blackmail or intimidation and where fraudulent inducement has been used in what is termed stealthing. • ensure fairer and more effective prosecutions of sexual offences. • improve the victim-survivor’s experience of the justice system and juror understanding of the complexities of sexual offending and reporting through the introduction of new jury directions.
As mentioned previously, issues pertaining to sexual assault are intricately linked to issues surrounding sexual violence. Further, the link between coercive control and sexual assault is profound, as coercive control is a core underlying dynamic and a powerful risk factor for sexual assault and sexual violence, particularly within intimate partner relationships.
reasonable belief test consent to be considered reasonable in the circumstances, they must have said or done something to ascertain consent stealthing where a person consents to condom use but the condom is removed without their knowledge coercive control the pattern of behaviours that creates a climate of fear, dependency and loss of autonomy, which directly enables and facilitates sexual assault (or sexual coercion) to occur
Coercive control is not just a separate type of abuse; it is the pattern of behaviours that creates a climate of fear, dependency and loss of autonomy, which directly enables and facilitates sexual assault (or sexual coercion) to occur.
As part of its response to recommendations from the Joint Select Committee on Coercive Control, the NSW government passed the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW), which outlawed coercive control in current and former intimate partner relationships. The legislation introduces a standalone offence of coercive control into the Crimes Act 1900 (NSW). This made New South Wales the first Australian state or territory to create a standalone offence for coercive control. Coercive control is complex, insidious and, sadly, a significant “red flag” for intimate partner homicide. It is a form of domestic abuse that involves patterns of behaviour that have the cumulative effect of denying victim-survivors their autonomy
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and independence. This abuse can include physical, sexual, psychological or financial abuse. These laws came into effect 1 February 2024 to allow time for education and training across the police and judicial sectors.
Judicial methods
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The Criminal Justice Sexual Offences Taskforce was established in December 2004 to evaluate how sexual assault cases were being handled. While recommendations of the Taskforce have changed the manner in which judges and the courts deal with serious sexual assaults, these changes have largely been brought about as a result of legislation. Changes in social attitudes regarding sex crimes will doubtless lead to changes in judicial decisions in a way that leads to law reform.
Judges in cases where a guilty verdict was returned have handed down some severe penalties, both to send a message of general deterrence to the community and to reflect the severity of the offences. For example, Bilal Skaf, who was convicted as the ringleader in a series of gang rapes in Sydney in 2000, received a sentence of 55 years’ imprisonment, with a 40-year non-parole period (this was reduced on appeal in the R v Bilal Skaf; R v Mohammed Skaf [2004] NSWCCA 37).
It has been suggested that specialist courts for sexual offences would lessen the trauma suffered by victim-survivors when giving evidence and would improve conviction rates. Such courts could have appropriate technology (e.g. closed-circuit TV) and relevant facilities (e.g. separate entrances for defendants and victim-survivors) and be staffed by specially trained judges and prosecutors. The courts also played an important role in the reform of consent laws. Concerns about the efficacy of existing consent laws were triggered by R v Lazarus [2017] NSWCCA 279 (“the Lazarus case”). This case essentially determined that consent needs to be verbally or physically communicated. A person’s silence or lack of resistance to sexual intercourse will not amount to reasonable grounds to believe that they are consenting. As a result, it was deemed the consent laws at the time were not adequate as they did not require this. After growing community concern through 2020 and 2021, the NSW government acted to amend consent laws.
REVIEW 14.4 Online quiz
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Review 14.4 questions
1. Outline three initial changes made to NSW legislature as a result of sexual assault inquiries. 2. Discuss the further amendments implemented by the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW). 3. Recall what is meant by coercive control and how cases of this nature are being addressed in NSW law. 4. Discuss what measures could be included in a specialist court for sexual offences. How might this lessen traumas for victim-survivors and improve conviction rates? Go online to assign and download questions, view results and more!
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14.5 Outcomes of change LEARNING OBJECTIVE 14.5 DESCRIBE the outcomes, including benefits and limitations, of recent legal reforms addressing sexual assault.
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As discussed, the low reporting rates for sexual crimes and the low number of offenders being successfully prosecuted are serious concerns for the NSW government and for the community at large. The legislation passed from 2005 onwards has attempted to address these problems. The chief task of this legislation is to ensure that the court process, while protecting thevideo right of accused people to a fair trial, does not further widget reporting traumatise victim-survivors. The introduction of affirmative consent laws, made in 2022 as a result of the Lazarus case and the NSW Law Reform Commission review, now means that those accused of sexual assault will need to show that consent was present. This may deliver a significant shift in outcomes for complainants. In the majority of matters, where the complainant knows the accused, a reversal of the onus of proof of consent may make it more difficult for the accused to deny criminal responsibility. What remains questionable is the extent toquiz which the “reasonable grounds” requirement for questions download word believing that there was consent will unfairly prejudice juries against defendants.
Writing focus 14.5 Transitional note taking phrases
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The effectiveness of these will become evident over time but will require more than a change to law. Liz Snell, the Law Reform and Policy Co-ordinator at Women’s Legal Service NSW, argues that effectiveness will require both community education and specific training for police and legal professionals, including judges. The changes to NSW barristers’ rules about questioning sexual assault victim-survivors can only be a good thing. It is also a sign that the publicity and pressure exerted by the various agencies of law reform have prompted defence lawyers to rethink their conduct in future cases.
The NSW government has implemented a number of initiatives over the last 20 years in response to overwhelming evidence of deficiencies in the criminal process. These include:
• trying to address delays in sexual assault matters coming to court; the District Court has introduced mandatory timetables • closing the court when victim-survivors are giving evidence • allowing complainants to use remote witness facilities in 78 locations across the state • requiring judges to disallow improper cross-examination questions. Further reforms to police procedures in 2020 included the recording of video evidence, with the consent of victim-survivors, at the time of attending the scene of the offence. This video evidence can be used in court for incidences of domestic and sexual violence. This is a further example of ongoing efforts to improve reporting and conviction rates.
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Coercive control laws were introduced as additional measures to confront the crisis in domestic violence, but evidence has shown there is a significant prevalence of sexual violence involved as well, which links to the affirmative consent laws. The success of these two latest reforms is yet to be seen. In the first 12 months to July 2025, there had been 297 reports of coercive control but only 9 charges laid under the new laws. The NSW Bureau of Crime Statistics and Research Executive Director Jackie Fitzgerald stated that “the small number of charges highlights the complexity of investigating and prosecuting this form of abuse”.
Figure 14.5.1 The NSW government has reformed their consent laws to require verbal or physical communication.
MEDIA 14.5.1
Why landmark coercive control laws have only led to a handful of charges SBS News, 19 September 2025
Despite hundreds of recorded instances, the new domestic violence offence of coercive control has only resulted in a handful of charges in NSW since it was first criminalised in the state. NSW was the first Australian jurisdiction to make coercive control an offence when landmark legislation passed state parliament in 2022, and the laws came into force on 1 July 2024. The laws apply when a person uses abusive behaviours against a current or former intimate partner with the intent of controlling or coercing them. NSW Police have recorded 297 incidents of coercive control in the year since the laws came into effect. They laid charges on nine occasions, according to a report released on Friday by the NSW Bureau of Crime Statistics and Research.
The median time between a police report and a coercive control charge was about four months. This was driven partially by the “incredibly high” legal threshold to lay a coercive control charge, Domestic Violence NSW senior policy and advocacy officer Angie Gehle said. “Victim-survivors are finding it really hard to get that evidence together,” Gehle told the Australian Associated Press.
Requiring an offender to demonstrate intent to coerce or control their partner can be difficult when they might not realise their behaviour is causing harm. Because the law does not apply to behaviour before July 2024, it can be difficult to establish a “pattern” of coercive control in the year since it came into effect. The charges are also yet to be tested by the courts.
While three coercive control charges have been finalised in court, they were withdrawn by the prosecution on two occasions, with the defendant pleading guilty in the third case. “We’re still in a state of unknown,” NSW crime statistics bureau executive director Jackie Fitzgerald told AAP. “The small number of charges highlights the complexity of investigating and prosecuting this form of abuse,” Fitzgerald said. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Women accounted for 94% of all recorded coercive control victims, with 92% of incidents involving a female victim and male alleged offender, the report found. Rates of coercive control in regional NSW were about twice as high as in greater Sydney, which follows the same pattern as other domestic violence offences. The data has been taken as a sign that awareness of coercive control is increasing, prompting more victims to come forward.
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Gehle has urged the government to offer greater resources for frontline services so they can meet the demand.
Domestic Violence NSW has also called for the offence to be applied to family and other types of relationships beyond intimate partners. Queensland was the second state to criminalise coercive control after its laws came into effect in May, while South Australia and Western Australia are expected to follow suit.
ANALYSIS 14.5.1
Read Media 14.5.1 and answer the following question.
1. In what ways have these laws been successful? What are their limitations?
The National Plan to End Violence against Women and Children 2022–2032 (the National Plan) highlights that more work is needed to remove barriers to the reporting of sexual assault to police by victim-survivors. Continuing education and reforms to the criminal justice system will be necessary to improve reporting and collection of evidence to assist in more successful prosecutions, while balancing the rights of the accused with those of the victim-survivor and the community.
Finally, continuing efforts to educate the public are equally important. Sexual assault crimes are crimes of violence, and certain beliefs about gender in our society need to be articulated and challenged if these crimes are to be properly addressed by the criminal justice system.
However, the law is limited to the extent that underlying societal and cultural constructs about the rights of and attitudes towards women continue to present barriers to improving the effectiveness of the legal response in regard to sexual assault and sexual violence.
REVIEW 14.5 Online quiz
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Review 14.5 questions 1. Identify some of the benefits, or potential benefits, of the NSW sexual assault law reforms. 2. Identify some of the limitations of the NSW sexual assault law reforms. 3. To what extent have coercive control laws improved outcomes for victims? Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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U N SA C O M R PL R E EC PA T E G D ES
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Sexual assault laws in New South Wales centre on consent, defined as free, voluntary and actively communicated. High rates of sexual assault, significant under-reporting, and very low conviction rates highlighted major failures in the justice system. Survivors often face barriers to reporting, including trauma, shame, fear of not being believed, and the fact that most offenders are known to them. Advocacy movements, survivor testimonies and media coverage increased public awareness and political pressure for change. Organisations such as Full Stop Australia, Rape and Sexual Assault Research and Advocacy and ANROWS provided research, support services and policy recommendations, driving reform efforts. Law Reform Commissions (NSW and ALRC) identified serious problems in consent laws, police processes, court procedures and victim treatment. NSW Parliament introduced reforms from 2005 to 2022 to reduce trauma, improve evidence procedures, clarify consent and restrict improper cross-examination. The 2021 affirmative consent reforms require active, mutual communication and place responsibility on the accused to show steps taken to confirm consent. Coercive control was criminalised in 2022, recognising patterns of abusive behaviour, though early prosecution has been difficult. Courts, including key cases such as R v Lazarus, highlighted gaps in existing laws and influenced legislative change. Reforms aim to improve justice outcomes and reduce trauma, but challenges remain, including cultural attitudes, implementation gaps and complex new offences.
Multiple-choice questions
1. Which of the following was NOT a reason to reform the law in the area of sexual assault? A. A low rate of reported sexual offences B. A low rate of convictions C. The poor level of service to victim-survivors in terms of information and resources D. The media were insufficiently interested in sexual assault cases
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2. In what area has the NSW Bar Association rewritten its rules for sexual assualt cases? A. Presentation of physical evidence B. Defence of alleged perpetrators C. cross-examination of alleged victim-survivors D. summing up of the facts of the case and people involved
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3. The Criminal Justice Sexual Offence Taskforce, set up in 2004, has brought about which of the following changes? A. Legislation to improve procedures regarding the giving of evidence B. Legislation requiring judgments to reflect public opinion about sexual offenders C. A greater number of sexual offences being reported D. A statutory requirement that the media report cases with greater understanding of the law 4. The Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW) changed the Crimes Act 1900 (NSW) with respect to consent. Which of the following is correct? A. Documentary evidence is needed to establish consent. B. The onus of proof of consent has been reversed. C. Partial consent may be established. D. None of the above
5. The Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW) made which of the following changes to the Criminal Procedure Act 1986 (NSW)? A. It permitted hearsay evidence to be admitted to prove that the complainant consented to sexual intercourse. B. It prohibited the cross-examination of victim-survivors by an accused person representing themselves. C. It allowed a transcript or recording of a complainant’s evidence in any re-trial. D. It reaffirmed the right of an unrepresented accused to cross-examine the alleged victim-survivor.
Short-answer questions
1. Outline the main issues that prompted law reform in the area of sexual assault.
2. Discuss the changes to the law of consent from the perspective of the victim-survivor and the accused. 3. Identify and describe the role of some non-legal measures in addressing the effectiveness of the law in dealing with sexual assault. 4. Describe at least three reforms to the law relating to sexual assault.
Extended-response question
Assess the effectiveness of law reform in addressing the issues around sexual assault. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 14.6.1 Answering an exam question
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15
Changing the law: Young drivers
U N SA C O M R PL R E EC PA T E G D ES
CHAPTER
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CHAPTER OBJECTIVES
By the end of this chapter, you will be able to: • describe the key legal issues young drivers face and how road safety laws affect them • identify the reasons for legal reform in relation to young driver laws • describe the drivers influencing and effecting change in young driver laws • explain how young driver laws have been developed through judicial decisions and legislation • explain the outcomes, including benefits and limitations, of recent legal reforms addressing young drivers.
RELEVANT LAW
IMPORTANT LEGISLATION
Road Transport (Driver Licensing) Regulation 2017 (NSW) Passenger Transport Act 2014 (NSW) Road Rules 2014 (NSW) Road Transport Act 2013 (NSW) Crimes Act 1900 (NSW) Road Transport (Alcohol and Drugs) Act 1977 (NSW) UN Resolution A/RES/74/299 Improving Global Road Safety (September 2020)
SIGNIFICANT CASES Jiminez v The Queen (1992) 173 CLR 572 Director of Public Prosecutions v Eseque [2023] NSWSC 1579 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Cambridge Legal Studies Stage 6 Year 11 download pdf
15.1 Young drivers and the law LEARNING OBJECTIVE 15.1 DESCRIBE the key legal issues young drivers face and how road safety laws affect them.
U N SA C O M R PL R E EC PA T E G D ES Writing focus 15.1 Question words
eporting
note taking
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The study of young people and the law, particularly in relation to young drivers in New South Wales, is essential because this age group faces distinct challenges and risks. Young drivers continue to be over-represented in road accident statistics compared with older, more experienced motorists. Current regulations aim to reduce these risks. For example, the provisional licensing system allows people aged 17 or older to drive unaccompanied once they have passed a hazard perception test scorcher and a practical driving test. This system includes two stages, with red P1 plates for 12 months and green P2 plates for 24 months, and also requires zero blood-alcohol levels and compliance with strict speed limits. Other rules include passenger restrictions, vehicle restrictions and heavy penalties for mobile phone use.
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Although these laws seek to address key safety concerns, there is growing recognition that parts of the legal framework may need further reform. Some penalties and restrictions may not fully reflect the changing needs and circumstances of young drivers, and there are concerns that current laws may not adequately address issues such as technological distractions or mental health factors. Evidence also suggests that placing more emphasis on education, rehabilitation and support, rather than relying mainly on punishment, could lead to better long-term outcomes for young drivers and the wider community. Examining how youth and road safety laws intersect also underscores the broader role of the legal system in safeguarding individuals and the public. Critically, it prompts reflection on how laws should adapt to changing behaviours and societal expectations, ensuring they remain effective, fair and relevant.
According to NSW government statistics, even though young drivers aged under 26 years make up only about 14% of all licence holders, the crashes they were involved in made up almost a quarter of annual road fatalities in 2021.
Table 15.1.1 Licence class by licence type as at 31 March 2022 Licence type
Total
Learner
352,223
P1
138,709
P2
248,160
Unrestricted
5,699,353
Total
6,438,445
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ANALYSIS 15.1.1 Read the article ‘Want young drivers to slow down? Technology isn’t the answer’ at https://cambridge.edu.au/ redirect/12088, and answer the questions below.
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1. What are the two main factors that influence road fatalities among young drivers in New South Wales? 2. According to Professor Molesworth, what is the most effective way to get young drivers to reduce their speed and improve their driver safety? 3. How does Molesworth believe that the learners’ logbook should be used to build on the verbal feedback young learner drivers get from their instructors?
REVIEW 15.1 Online quiz
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Review 15.1 questions 1. 2. 3. 4. 5.
Explain why a study of young drivers and the law is essential. How do the current regulations seek to address the risks young drivers face on the road? Provide an overview of how provisional licensing operates in New South Wales. How do inexperience and psychological profiles affect young driver performance? According to the research, why are young drivers with their own cars at higher risk of car accidents?
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Figure 15.1.1 Under the provisional licensing system in NSW, the first 12 months of unsupervised driving is completed under a P1 licence
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15.2 Reasons for change LEARNING OBJECTIVE 15.2 IDENTIFY the reasons for legal reform in relation to young driver laws.
reporting
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Recognising changing values
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Writing focus 15.2 Conjunctions note taking (subordinating – contrast)
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Over time, community attitudes towards road safety, youth independence and responsibility shift. For example, as society becomes more aware of the dangers associated with young, inexperienced drivers, there is increased support for stricter scorcher licensing requirements, zero-alcohol policies and peer-passenger restrictions for provisional drivers. Law reform in this area has responded to broader cultural movements towards valuing life, prioritising public safety and acknowledging the unique risks faced, and posed, by young drivers. Changes such as introducing compulsory seatbelt laws or restrictions on mobile phone use reflect evolving beliefs about what risks are acceptable.
These shifts in community values are often reflected through legislative changes and case law. For instance, the Road Transport Act 2013 (NSW) introduced provisions mandating zero blood-alcohol content for provisional drivers, recognising the heightened risks associated with drink driving among youth. Similarly, the Road Safety Act 1986 (Vic) enforces strict conditions on young drivers, including passenger restrictions and night-time curfews for P-plate drivers, aiming to reduce the high incidence of crashes involving young people. Case law has also played a role in shaping responses to emerging risks. For example, in Jiminez v The Queen (1992) 173 CLR 572, the High Court of Australia recognised the dangers of driver fatigue, which influenced subsequent regulations around driving hours and rest periods – especially relevant for young drivers who may be more susceptible to fatigue-related incidents. Additionally, the introduction of compulsory seatbelt laws across Australia in the 1970s and 1980s, now reflected in state-based legislation such as the Road Rules 2014 (NSW), followed tragic cases and mounting evidence that seatbelts significantly reduced fatalities and injuries, prompting a cultural and legal shift towards mandatory restraint use for all vehicle occupants.
Figure 15.2.1 Teenager wearing their seatbelt before driving
More recently, statutes such as the Road Transport (Driver Licensing) Regulation 2017 (NSW) and similar provisions in other states have imposed strict penalties for mobile phone use by young drivers, reflecting society’s growing concern with driver distraction due to technology.
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These legal reforms are underpinned by research and public sentiment, and are continually reviewed to ensure they remain effective and relevant as technology and youth culture evolve.
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In addition to the Road Transport Act 2013 (NSW) and the Road Transport (Driver Licensing) Regulation 2017 (NSW), several other pieces of road traffic legislation have also been introduced in New South Wales as a response to changing societal values. For example, the Road Rules 2014 Act (NSW) consolidated and strengthened various safety requirements including compulsory seatbelt use, child restraint laws, and tougher penalties for speeding and drink/drug driving. The Road Transport (Alcohol and Drugs) Act 1977 (NSW) established stringent controls on driving under the influence, reflecting growing community intolerance for impaired driving.
ANALYSIS 15.2.1
Read https://cambridge.edu.au/redirect/12204 and answer the following questions.
1. Why was Jiminez v The Queen so important in Australian case law? 2. Outline the High Court’s decision in this case. 3. The High Court held that the liability for dangerous driving causing death was strict rather than absolute. What did that mean in the context of Jiminez v The Queen?
Maintaining relevance in society
Laws must be regularly updated to ensure they maintain relevance in society. For young drivers, this might involve revising statutes to address issues such as texting while driving, the rise of ride-sharing apps, or the prevalence of social media use behind the wheel. Recent legislative changes illustrate this ongoing process. For example, the Road Transport (Driver Licensing) Regulation 2017 (NSW) brought in tougher penalties for provisional drivers using mobile phones, recognising the growing danger of driver distraction from technology. For example, in Director of Public Prosecutions v Eseque [2023] NSWSC 1579, a provisional licence holder was found in breach of the law for using a mobile phone as a GPS device, even without a SIM card.
More recently, courts have upheld the validity of fines and licence suspensions for young drivers caught using social media apps while driving, affirming the seriousness with which the judiciary treats new forms of risky behaviour behind the wheel. The legal response to ride-sharing apps, such as Uber, has also seen reforms to ensure that young drivers and passengers are protected. In New South Wales, amendments to the Passenger Transport Act 2014 (NSW) and associated regulations have clarified the licensing and insurance requirements for drivers providing ride-sharing services, many of whom are younger drivers. These changes ensure accountability and enhance safety for all road users.
SIM card a smart card with a microchip that securely stores user information, linking a mobile phone to a cellular network, allowing one to make calls, send texts
As the driving environment and youth culture continue to evolve, legislative frameworks must adapt to address novel risks and behaviours. Without regular updates, laws risk becoming obsolete, failing to protect young drivers and the community, and potentially losing the respect and compliance of the very individuals they are intended to protect. Through continual legislative review and judicial interpretation, the law strives to remain effective in preventing harm and encouraging responsible behaviour among young drivers.
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Adapting to technological change Law reform is essential if it is to keep pace with technological change. New technologies often introduce risks and behaviours that existing legislation does not address. For example, as mentioned earlier, the rapid proliferation of smartphones, GPS devices and in-car entertainment systems has led to new forms of driver distraction, particularly among young drivers.
U N SA C O M R PL R E EC PA T E G D ES
If laws are not updated to address these developments, significant gaps can emerge, making it difficult for authorities to enforce safe driving standards and for courts to appropriately sanction unsafe conduct. As technology evolves, so too must the legal framework, to ensure it remains effective in mitigating risks and protecting all road users.
Figure 15.2.2 Smartphones have become a common distraction, particularly among young drivers
Technological advancements can also fundamentally alter how individuals interact with the road environment and the vehicles they operate. Ride-sharing platforms, autonomous vehicles and real-time navigation apps are transforming traditional notions of driver responsibility and road safety. Without timely law reform, there is a risk that outdated regulations will fail to cover these new realities, leading to inconsistencies and uncertainty for both drivers and legislators. Proactive legal updates help close loopholes, clarify expectations and foster public confidence in the legal system’s ability to keep pace with change, ultimately reducing harm and encouraging responsible adoption of new technologies.
ANALYSIS 15.2.2
Read the “First trials of driverless cars in Australia reveal legislation and safety learnings” at https://cambridge.edu.au/ redirect/12089. Then answer the following questions.
1. What is a driverless car? 2. What is the aim of the new AVSL legislation (automated vehicle safety law) currently being developed by the federal government? 3. Who will be responsible for the safety of humans in an era of autonomous vehicles? 4. Outline the main advantages of having driverless cars on our roads. 5. According to the National Transport Commission, why will we have to reform the road traffic laws for autonomous vehicles?
Upholding international standards
Australia frequently reviews its road safety approaches to align with best practices established by international bodies, such as the United Nations and the World Health Organization, or countries with strong road safety records. For example, Australia’s adoption of strategies that introduce driving privileges in phases for young and inexperienced drivers mirrors international recommendations and practices in countries including Canada, New Zealand and the United Kingdom. These schemes typically include mandatory supervised driving hours, restrictions on night driving and peer passengers, as well as zero-alcohol policies for provisional licence holders. Indeed, New South Wales was one of the first jurisdictions in the world to mandate compulsory seatbelt laws in 1971 for all vehicle occupants, in line with global
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evidence demonstrating significant reductions in fatalities and serious injuries – a strategy strongly endorsed by the United Nations General Assembly (see resolution A/RES/74/299 page 3, in the link in Media 15.2.3). Recent legislative reforms in Australia, implementing strict penalties and adopting global technological solutions, such as mobile-phone detection cameras targeting illegal mobile phone use while driving, also align with international best practice. This strategy aims to enhance road safety and reduce road trauma, particularly among younger drivers.
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MEDIA 15.2.1
Decade of action for road safety
World Health Organization, September 2020
In September 2020, the UN General Assembly adopted resolution A/RES/74/299 “Improving global road safety”, proclaiming the Decade of Action for Road Safety 2021–2030, with the ambitious target of preventing at least 50% of road traffic deaths and injuries by 2030. WHO and the UN regional commissions, in cooperation with other partners in the UN Road Safety Collaboration, have developed a Global Plan for the Decade of Action, which was released in October 2021. The Global Plan aligns with the Stockholm Declaration, by emphasizing the importance of a holistic approach to road safety, and calling on continued improvements in the design of roads and vehicles; enhancement of laws and law enforcement; and provision of timely, life-saving emergency care for the injured. The Global Plan also reflects the Stockholm Declaration’s promotion of policies to promote walking, cycling and using public transport as inherently healthy and environmentally sound modes of transport. Progress made during the previous Decade of Action for Road Safety 2011–2020 has laid the foundation for accelerated action in the years ahead. Among achievements are inclusion of road safety on the global health and development agenda, broad dissemination of scientific guidance on what works, strengthening of partnerships and networks, and mobilization of resources. This new Decade of Action provides an opportunity for harnessing the successes and lessons of previous years and building upon them to save more lives.
ANALYSIS 15.2.3
Read Media 15.2.1 to answer the following questions.
1. What is the aim of UN resolution A/RES/74/299 Improving Global Road Safety? 2. How does this plan align with the Stockholm Declaration?
Amending existing or outdated laws
In response to accidents, the NSW government has made several key amendments to the legislation governing young drivers. In 2007, the graduated licensing system was amended to include 150 hours of supervised driving experience for L-platers (later amended to 120 hours). This was the beginning of a logbook system: all hours driven were to be recorded and verified by the supervising driver. The intention was to increase drivers’ experience, which would improve their skills and so avoid tragedies. According to Transport for NSW, drivers can reduce their chances of being in a car accident by 30–35% by increasing the number of supervised driving hours they complete.
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The Road Transport (Driver Licensing) Regulation 2017 (NSW) was reviewed in 2025. Its key changes came into effect 1 July 2025, with those holding provisional licences experiencing stricter mobile-phone rules, increased penalties/fines, changes to logbook requirements and new passenger restrictions. The above legislation governs the operation of the graduated licensing scheme. This statute allows young drivers to move through three stages of competency, from supervised learning to unsupervised driving. At stage 1, 16-year-olds can obtain a learner’s licence (L-plates) after passing a multiple-choice test. They must then complete 120 hours of driving supervised by someone with a full Australian driver licence. This driving must be recorded in a logbook (or digitally recorded) and verified by the person who supervised the driving. At stage 2, when they are 17, drivers can sit a series of tests to obtain their P1 licence (red provisional licence) (P-plates). At 18, and after having held their P1 licence for 12 months, drivers can apply for a P2 (green provisional licence). In New South Wales, this system has been changed on numerous occasions.
U N SA C O M R PL R E EC PA T E G D ES
graduated licensing scheme a licensing system in which drivers pass through stages leading up to the granting of a full licence
The restrictions for young drivers as of the time of writing (February 2026) are summarised below. These constraints have been changed significantly in response to pressure from the media, the public and the families of victims in serious or fatal crashes. Despite New South Wales introducing a zero-alcohol limit for all P-plate drivers in 2004 (this already applied to L-plate drivers), crashes involving alcohol are still occurring. In New South Wales, L-plate and P-plate drivers are subject to the following restrictions.
Speed
L-plate drivers must not exceed 90 km/h; P1 drivers must not exceed 90 km/h; P2 drivers must not exceed 100 km/h. P1 drivers caught speeding will exceed their demerit point limit and lose their licence for at least three months; P2 drivers will lose their licence for at least three months if they are penalised twice for speeding; Provisional drivers who speed more than 30 km/h over the limit face immediate suspension and their licence being confiscated by the police.
Total mobile phone ban
Provisional drivers must not use a mobile phone while driving. This includes phones in the hands-free mode, with the loudspeaker on, using GPS navigation or sending text messages. P1 drivers caught using a mobile phone illegally will be fined, exceed their demerit point limit, and face a three-month licence suspension; P2 licence holders will be fined also and only have two demerit points left if they are caught illegally using a mobile phone. Indeed, this restriction is now further supported by a national roll-out of AI-powered camera detection technology to monitor breaches in both mobile-phone usage and seatbelt laws. The only instances where provisional licence holders can legally use their mobile phone are to: • show your Digital Driver Licence after being asked to do so by police • use wallet functions (when stopped and on a road-related area such as in a car park, driveway or drive-thru).
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Passenger restrictions P1 (red) drivers under the age of 25 may only carry one passenger under the age of 21 between 11 p.m. and 5 a.m.; a breach of this rule will incur a loss of three demerit points – a fine may also be imposed.
Vehicle restrictions
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P1 and P2 drivers are not allowed to drive “high performance” vehicles (including electric vehicles) defined as having: • a power to tare mass ratio of greater than 130 kilowatts per tonne • a significant engine modification • other specifications or data suggesting that it is a high risk for novice drivers.
This applies to all P1 and P2 NSW licence holders, even if driving interstate, but not to learners. An online search for prohibited vehicles can be made on the NSW government website.
Logbooks
Learner drivers under 25 must log 120 hours of supervised driving in a logbook or the Roundtrip App. A person with a full Australian driver licence or a driving instructor must sign each entry. At least 20 hours of driving must be at night. An additional 20 hours of logbook credit can be earned if the NSW Safe Drivers Course is undertaken by the learner.
Roundtrip App the only official digital logbook app accepted by Transport for NSW
Progression
Drivers now progress from a P1 (red) licence to a P2 (green) licence after holding their P1 licence for 12 months.
Alcohol and drugs
L-plate, P1 and P2 drivers may not record any blood-alcohol reading above zero or drive under the influence of drugs.
RESEARCH 15.2.1
Use the link to NSW government website https://cambridge.edu.au/redirect/12090 to research the steps for getting a NSW driver licence. 1. To obtain a P1 (red Ps) licence, you must complete three tests. What are they? Differentiate between them. 2. What must you do to obtain a P2 (green Ps) licence? 3. How do you obtain a full (unrestricted) licence?
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Addressing the needs of individuals, groups or society
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Statistical evidence from Transport for NSW consistently shows that young drivers are over-represented in road traffic accidents. Law reform can target their specific needs by introducing graduated licensing schemes, mandatory education programs or additional penalties for high-risk behaviours. Such reforms not only protect young drivers themselves, but also safeguard other road users and meet the expectations of families and the broader community. By recognising and responding to the unique risks and circumstances facing this group, the law aims to reduce injuries and fatalities, and promote safer driving habits from the outset.
Figure 15.2.3 Young drivers under the age of 25 have passenger restrictions, designed to keep them and their passengers safe
Collectively, these considerations underpin the rationale for legal reforms in the context of young drivers, ensuring that laws are responsive, effective and aligned with both societal needs and global best practices.
REVIEW 15.2 Online quiz
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Review 15.2 questions
1. Outline why is it important for laws regulating young drivers to be regularly updated. 2. Explain how recent legislative changes in New South Wales have addressed the risks posed by young drivers, particularly regarding technology use and impaired driving. 3. How has Australia aligned its road safety measures with international best practices? What are some examples that demonstrate this approach? 4. Evaluate the rationale behind the introduction of the logbook system for L-plate drivers in New South Wales. Explain the impact of increased supervised driving hours on accident risk. Go online to assign and download questions, view results and more!
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15.3 Drivers of change LEARNING OBJECTIVE 15.3 DESCRIBE the drivers influencing and effecting to change in young driver laws.
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Ways to influence change
Activism, advocacy and public opinion all play a significant role in how laws regarding young drivers are made and changed in New South Wales. Activists and advocacy groups can initiate campaigns, petitions or rallies that highlight the dangers young drivers face. This can result in changes to the motor traffic laws. widget reporting the Investigations, findings andvideo recommendations are also important in changing law. Sometimes the government, independent organisations or special committees will look into young driver safety by studying crash data and seeing how current rules are working. Their findings can show where the laws are not strong enough.
These groups can then make official recommendations to parliament or government ministers, using their research to suggest what needs to change. If the recommendations are supported by good evidence and the public agrees, this can lead to real changes in the law – such as updates to the logbook system, new rules for learner or provisional drivers, programs. quizor special education questions download word
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Activism
Grassroots campaigns led by road safety advocates and community groups such as Safer Roads and Highways (SARAH), NRMA and the Australian Automobile Association have run public awareness campaigns and lobbied for evidence-based changes to the graduated licensing scheme and related road safety laws.
Through public forums, and widespread media coverage, activists have drawn public attention to tragic incidents and systemic issues, to build momentum for change (e.g. Sarah’s law that came into force in New South Wales on 26 September 2019). Further, the NSW Road Safety Alliance, a coalition of road safety advocates, community leaders and family groups have also campaigned for tougher licensing requirements and improved education for young drivers.
Advocacy
Advocacy plays a crucial role in driving law reform related to young drivers.
This is because it gives a voice to community concerns while highlighting areas where existing legislation may fall short. Advocacy groups – including road safety organisations, parents’ associations and youth representatives – gather and present evidence about the risks faced by young motorists. By sharing personal stories, statistics and research findings, such groups can illustrate the real-world impact of current laws and advocate for targeted reforms that better protect young people on the roads.
advocacy the public support for, or recommendation of, a particular cause or policy
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Through lobbying efforts, advocacy groups can directly influence lawmakers and policy-makers. Furthermore, advocacy campaigns help shape public opinion and create a sense of urgency for reform. By raising awareness through the media, social campaigns and educational programs, advocates can mount pressure requiring government action.
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One notable example of this is the SARAH Group, which has recently intensified its advocacy efforts to push for stronger laws protecting young drivers in New South Wales. Following several high-profile crashes involving young motorists, SARAH has lobbied members of parliament, submitted policy proposals and mobilised community support through media campaigns. Their efforts have centred on advocating for enhancements to the graduated licensing scheme and calling for mandatory road safety education programs, aiming to ensure that lawmakers prioritise reforms that directly address the risks faced by young drivers.
Public opinion
When a large number of people express concern about the safety of young motorists – whether through media coverage, social media discussions or community forums – it puts pressure on lawmakers to take action. If the public strongly supports measures such as curbing risky behaviours or increasing driver education, politicians are more likely to introduce and support reforms. Furthermore, when public opinion supports stricter rules or new initiatives, it becomes easier for the government to pass laws without facing significant opposition. For example, widespread community backing for tougher penalties for drink driving or mobile-phone use among young drivers can help ensure these rules are accepted and enforced. In many cases, high-profile accidents or media campaigns can spark a shift in public sentiment, leading to swift changes in legislation. Essentially, when the public speaks out, it creates the momentum needed to make meaningful changes that aim to reduce accidents and save young lives in New South Wales.
Investigations
When major road incidents involving young motorists occur, formal investigations – such as coronial inquests or parliamentary inquiries – are often launched to uncover the causes and contributing factors. These investigations gather detailed evidence, including expert testimony, accident data, and input from affected families and stakeholders. By meticulously analysing these findings, investigators can identify gaps in existing legislation, highlight recurring risk factors and pinpoint areas where the law may not adequately protect young drivers. The recommendations that emerge from such investigations carry considerable weight in influencing policy decisions. Lawmakers and government agencies often use these findings as the foundation for drafting new legislation or amending existing rules. For example, a coronial inquest into fatal crashes might recommend introducing graduated licensing schemes, stricter penalties for repeat offenders or mandatory use of safety technologies. These evidence-based recommendations provide a clear roadmap for reform and help ensure that any legislative changes are targeted and effective in reducing road trauma among young people.
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Findings and recommendations
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Findings and recommendations from formal investigations, such as coronial inquests or government reviews, play a pivotal role in shaping the laws governing young drivers. These processes draw on thorough analysis of accident data, expert opinions and stakeholder input to identify specific weaknesses or gaps in current legislation. When investigators present clear, evidence-based recommendations – such as implementing graduated licensing schemes or mandating advanced driver education – lawmakers are provided with actionable guidance that reflects both community needs and expert insight.
Figure 15.3.1 Major incidents involving cars are a motivator for
Moreover, the public release of findings and lawmakers to investigate and act on safety protections for young drivers recommendations can generate significant media coverage and public debate, further increasing their impact. This heightened scrutiny not only puts pressure on politicians to act swiftly but also helps build consensus around the need for reform. If the investigative process has been transparent, it ensures that proposed changes are widely understood and supported, making it easier for new laws to be passed and effectively enforced.
Informal methods of law reform and young drivers
Informal methods of law reform such as those conducted outside the parliamentary process usually by lobby groups, media and public inquiry, have played a significant role in shaping regulations for young drivers in Australia. These methods often highlight gaps in the law, driving pressure for legislative change to address high-risk behaviours. The following include some informal methods of law reform that have affected young drivers.
Lobby groups and professional associations
Organisations representing motoring interests or safety advocacy often lobby for changes to licensing systems (e.g. graduated licensing system) and penalties.
• NRMA (National Roads and Motorists Association) – The Association advocates for safer roads by actively campaigning for changes to legislation and policy affecting young drivers. Through initiatives including the “Come Home Safe” report, they propose solutions such as rewarding safe driving behaviours with incentives and using technology to monitor P-platers. These recommendations are presented to government and the public, helping to generate momentum for law reform by highlighting evidence-based approaches to reducing road trauma among youth. Their advocacy often prompts public debate and puts pressure on lawmakers to act. • Safety advocacy groups – Groups dedicated to road safety, including community and independent voices, regularly lobby for stricter rules on passengers, night driving and alcohol for P-platers. By presenting evidence, running campaigns and working with the media, they keep public attention on the issue and push for reform, ensuring that young driver safety remains a legislative priority.
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ANALYSIS 15.3.1 Read the NRMA “Come Home Safe” booklet, available at https://cambridge.edu.au/redirect/11907, and answer the following questions. Outline the NRMA’s eight-point plan of road safety. What percentage of P-plate drivers are involved in fatalities on NSW roads? In New South Wales, what percentage of all licensed drivers hold a provisional licence? When are young drivers most at risk after obtaining a provisional licence?
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1. 2. 3. 4.
Media campaigns and “fear appeal”
Media coverage brings high-profile, tragic young driver accidents into the public eye, creating pressure on politicians to act.
• Public education campaigns – Media campaigns (e.g. Drink Driver) aim to educate and change young driver behaviour through fear-based messaging, influencing public perception and supporting legislative changes. • Media framing – News media highlights high-profile, fatal young driver crashes, which act as a catalyst to initiate and sustain debates on restrictions (e.g. peer passenger limitations).
Figure 15.3.2 Media campaigns aim to educate and change driver behaviours.
ANALYSIS 15.3.2
Watch the video Curbing Australia’s Road Death Toll, available at https://cambridge.edu.au/redirect/11908, and answer the following questions. 1. 2. 3. 4.
According to the video, approximately how many people die on Australian roads each year? How many people are seriously injured on our roads each year? Outline the federal government’s 2030 Targets for the National Road Strategy. What is vision zero all about?
Public inquiries and reports
Although initiated by government, the investigations themselves are often driven by public concern and involve consultation with the community. Some examples of public inquiries and reports include the following:
• Reports on licensing – Data from the “Inquiry into Lowering the Probationary Driving Age in Victoria to Seventeen” report was used to analyse evidence and decide against lowering the age of licensing to 17 years in that state. • Review of research literature on training/licensing – Macquarie University, the University of Technology Sydney and the NSW government have, in recent years, published research reports regarding the graduated licensing scheme in NSW, P-plate fatalities and the mandatory requirement to complete 120 hours of supervised driving as a learner.
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Social media and peer influence When social norm campaigns are widely shared in social media and online, and discussed among peer groups, they can shift perceptions about what social behaviour is considered acceptable or typical. This puts pressure on policy-makers to update laws in order to address any new challenges to existing community standards. Two examples of social norm campaigns are “What’s your Plan B” and “Get your hand off it”:
social norm campaign a communication strategy that influences behaviour by correcting misperceptions about what is typical in a group, usually highlighting positive, healthy actions already taken by the majority
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• What’s your Plan B – This campaign focuses on the fact that drink driving has contributed to many NSW road fatalities and serious injuries in recent years. Despite awareness of the risks, many underestimate how alcohol impairs their |driving – slowing reaction times, reducing decision-making abilities and coordination, and increasing risky behaviour. If young drivers plan to drink, they are warned to leave their car at home and arrange alternative transport. • Get your hand off it – This campaign was initiated by Transport for NSW in conjunction with the Sydney Swans. The campaign focused on reducing illegal mobile phone use while driving. Its key messages centre on promoting the norm that most drivers do not use their phones, highlighting the extreme dangers of distraction and emphasising personal responsibility.
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Additionally, digital campaigns harness the power of social media to raise awareness and educate drivers about safe practices, often spotlighting the dangers of certain behaviours. As these campaigns gain traction and influence the collective social mindset, they can drive demand for legislative changes that better protect road users, such as stricter penalties for distracted driving or enhanced education requirements for new drivers.
Figure 15.3.3 Being distracted by your mobile phone while driving can cause major accidents
Community and independent educational programs
Community and independent education programs have been instrumental in shaping law reform aimed at improving road safety for young drivers. By engaging with local communities, developing tailored mentoring initiatives and advocating for evidencebased solutions, these groups highlight the importance of education in reducing risky behaviours. Their collaborative efforts and ongoing advocacy help bring attention to the challenges faced by young drivers, encouraging policy-makers to adopt reforms that prioritise prevention, support and safer outcomes on Australian roads. The key community and independent educational programs include the following:
• Youthsafe – Community organisations such as Youthsafe run mentoring programs and educational initiatives aimed at supporting safer driving habits among young people. By engaging with local communities, these programs provide tailored support, raise awareness of road risks and build skills. The evidence and success stories from these grass-roots programs are often used to advocate for legislative change, showing policy-makers that structured support and education can reduce risky driving and improve outcomes for young drivers.
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• Driver mentorship and access programs – Programs including “Driving Change” and “Driver Licensing Access” help young people – especially those facing barriers and disadvantages – get their licences legally and safely. By reducing unlicensed driving and providing positive pathways, these programs generate data and case studies that can inform and influence law reform, as government bodies see the benefits of supporting all young drivers through education and access. • School-based programs – Initiatives such as Ryda (a program run by Road Safety Education Limited) deliver road safety education to school students, aiming to change attitudes and behaviours before they get behind the wheel. By demonstrating a positive impact on young driver choices, these programs provide evidence for policy-makers to support reforms that prioritise education over punishment for young offenders.
RESEARCH 15.3.1
Use the following links to answer the questions below:
Driving Change Licensing Support Program: https://cambridge.edu.au/redirect/11909 Can driving improve Aboriginal health?: https://cambridge.edu.au/redirect/11910 Road Safety Education: https://cambridge.edu.au/redirect/11911
1. Outline the problems that some young people encounter when trying to obtain a driver licence. 2. What is the “Driving Change” licensing support program? How does it help young people get their licence? 3. Explain the role of Ryda.
Formal methods of law reform and young drivers Law reform commissions
Law reform commissions are independent bodies tasked with reviewing existing laws and proposing improvements. They conduct research, consult stakeholders and publish reports on issues including licensing, road safety and youth driving behaviour. Recommendations from law reform commissions often form the basis for legislative changes, making the law more responsive and effective. By focusing on evidence and community input, these commissions help ensure reforms are practical and fair for young drivers. A recent example of the work of the New South Wales Law Reform Commission (NSWLRC) that is young-driver related stemmed from a request by the NSW Attorney-General. As a consequence of the concerns of Youth Justice NSW, the Bureau of Crime Statistics and Research, and increasing admissions of young people – particularly Aboriginal youth – into custody for serious road crimes, the NSWLRC was asked to review the sentencing provisions of the Crimes Act 1900 (NSW). In particular, those provisions related to serious road and dangerous driving offences committed by young offenders. This NSWLRC review, that was still underway at the time of writing, was to determine whether the maximum sentences and sentencing principles of young offenders were adequate and “fit for purpose”.
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Data presented to the NSWLRC review by the Youth Justice NSW and Bureau of Crime Statistics and Research have shown a significant rise in the number of young people admitted to custody for serious road crimes over recent years, with young Aboriginal people consistently over-represented. The majority of these admissions relate to dangerous or negligent driving. Youth Justice NSW were therefore concerned that any move towards legislating harsher penalties and changes to sentencing was likely to disproportionately affect Aboriginal children and those in regional and remote areas.
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Youth Justice NSW has also advocated for expanding the jurisdiction of the Children’s Court to cover additional serious road crimes so that these matters can be addressed by specialist judges. The agency also supports alternatives to custody, such as early intervention and community-based responses, which have been shown to reduce youth admissions to custody. Ultimately, Youth Justice NSW has also warned that introducing increased penalties or restricting judicial discretion may also worsen social and welfare outcomes for young people, particularly Aboriginal youth.
Inquiries
Government and parliamentary inquiries are formal reviews used to investigate specific concerns, including those about young driver safety and regulation. These inquiries may involve hearings, public submissions and expert testimony. Their findings can lead to new policies, amendments to existing laws or targeted education campaigns. A good example of this was The Young Driver Safety and Education Programs Inquiry that took submissions from all over the state by the NSW Parliamentary Joint Standing Committee on Road Safety (Staysafe) throughout 2007, with its findings and suggestions tabled in parliament in November 2008.
REVIEW 15.3 Online quiz
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Review 15.3 questions 1. 2. 3. 4. 5.
Assess the value of activism in its contribution to road safety reforms for young drivers. What role does advocacy play in changing laws for young drivers? Outline how public opinion can affect lawmaking for young drivers in New South Wales. Why are investigations, findings and recommendations important for law reform in young driver safety? Explain how the NRMA has advocated for reducing accidents among young drivers. Outline two key strategies they have proposed or supported. 6. How does Youthsafe contribute to improving road safety for young drivers? What impact do their programs have on legislation?
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15.4 Processes of change LEARNING OBJECTIVE 15.4 EXPLAIN how young driver laws have been developed through judicial decisions and legislation.
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Legislative methods
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The legislative process is the most direct way to change laws affecting young drivers. Parliament can: • • • •
introduce Bills scorcher debate pass new legislation amend or repeal existing laws.
This can be done to address concerns about youth road safety, licensing requirements or penalties for unsafe behaviour. For example, changes to learner licence rules, graduated licensing schemes or minimum driving age are typically made through parliamentary acts. This process ensures that any reforms are transparent, debated publicly and formally enacted, making them enforceable across the state or country.
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A recent significant change under the Road Transport (Driver Licensing) Regulation 2017 (NSW) and supporting regulations is the near-total ban on mobile phone use for Learner, P1 and P2 (young) drivers. These drivers cannot use any phone function (maps, music, calls), even if hands-free, including when stationary (s.40 1d). This became effective from 2020 and was reinforced by the introduction of a camera detection program from 1 March 2026.
These amendments were introduced in response to growing concerns about road safety and the high risk of distraction among young drivers. Studies and crash statistics consistently showed that mobile phone use, even hands-free, significantly increased the likelihood of road accidents. The aim was to reduce the number of crashes and fatalities involving young people by removing one of the most common sources of distraction. The reforms also reflected community advocacy and expert recommendations, with camera technology updates ensuring stricter enforcement. By banning all phone functions for learner and provisional licence holders, the legislation sought to create safer driving conditions and encourage better habits for new drivers.
Judicial methods
Courts play a vital role in law reform by interpreting and applying existing road safety laws. When judges make decisions in cases involving young drivers, their rulings can influence future cases and shape the way laws and regulations are understood. Such decisions sometimes highlight gaps or ambiguities in the law or how it is enforced, prompting lawmakers to clarify or update their legislation or processes. While courts don’t create new statutes, their interpretations can lead to significant changes in how laws affect young drivers.
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ANALYSIS 15.4.1 Read https://cambridge.edu.au/redirect/12205 and answer the following questions. 1. How might the magistrate in the case have influenced similar cases? 2. According to the article, how are AI-assisted cameras creating ambiguities in the enforcement of the law?
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REVIEW 15.4 Online quiz
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Review 15.4 questions
1. Explain how legislative changes, such as the amendments to the Road Transport (Driver Licensing) Regulation 2017 (NSW), have addressed concerns about young driver safety. Describe the role of new enforcement technologies in video widget reporting note taking these reforms. 2. What role do law reform commissions play in improving laws related to young drivers? How has the New South Wales Law Reform Commission addressed concerns about sentencing for serious road offences committed by young people? 3. Outline the role courts play when interpreting existing road safety laws. 4. How can Royal Commissions lead to law reform with regard to young drivers and the law?
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15.5 Outcomes of change LEARNING OBJECTIVE 15.5
EXPLAIN the outcomes, including benefits and limitations, of recent legal reforms addressing young drivers.
Benefits of law reform for young drivers
There are a number of benefits that accrue to young drivers, individuals, communities and society at large when the government decides to reform the motor traffic law: • Enhancement of road safety – By updating legal frameworks to reflect emerging video widget reporting evidence, technology and social trends, law reform can address the specific risks faced by young drivers such as inexperience, peer pressure and risk-taking behaviours. Indeed, the introduction of graduated licensing schemes and zero-tolerance alcohol policies for provisional drivers has been shown to reduce accidents and fatalities among young people. • Promotion of fairness and equity – Law reform can ensure that legal standards are applied consistently and without discrimination, giving young drivers clear guidance about their rights and responsibilities. Reforms may also address quiz
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systemic biases or outdated practices that disproportionately affect young people, ensuring the law keeps pace with contemporary expectations and values. Education – Updated laws often go hand in hand with educational initiatives, such as school-based road safety programs and community mentoring schemes. These initiatives not only inform young drivers about new legal requirements but also foster safer attitudes and habits behind the wheel. Increased awareness and knowledge contribute to long-term cultural change, encouraging young people to make responsible decisions and look out for their mates. Reductions in road trauma – When legal changes are based on robust data and best practice, they can help lower the rates of injuries and deaths among young drivers. This, in turn, relieves pressure on emergency services and the healthcare system, and reduces the emotional and financial burden on families and communities. Driving road safety innovation – Law reform can facilitate the introduction of new technologies, such as in-car monitoring systems or advanced driver training modules. It can also ensure that regulations remain flexible enough to respond to future challenges. By embedding continuous improvement into the legal framework, reforms can help Australia stay at the forefront of road safety on a global scale. Empowerment of young drivers – When reforms are developed with input from young drivers and the broader community, they are more likely to be accepted, understood and effective. This participatory approach fosters a sense of ownership and responsibility, encouraging young drivers to play an active role in building safer roads for everyone.
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Limitations of law reform and young drivers
While law reform offers many benefits for young drivers, it is important to recognise its limitations and the challenges that can arise when attempting to improve road safety and justice through legislative change.
• Laws don’t always guarantee that young drivers adopt safe habits – Laws can set boundaries and consequences, but they do not always guarantee that young drivers will adopt safer habits. Factors such as peer influence, risk-taking tendencies and the desire for independence can undermine the effectiveness of legal reforms. For instance, even with strict graduated licensing schemes, some young drivers may still engage in unsafe practices, such as speeding or using mobile phones while driving. • Unintended consequences – Law reform may inadvertently create barriers or hardships for young people, particularly those from disadvantaged backgrounds. Increased requirements for obtaining a licence – such as mandatory supervised driving hours or expensive training modules – can disadvantage those who lack access to resources or supportive adults. This may lead to higher rates of unlicensed driving, which can increase road safety risks and expose young people to legal penalties. Additionally, reforms that are too rigid or punitive might alienate young drivers, reducing their willingness to comply or engage positively with authorities. • Effectiveness of law reform – The effectiveness of new regulations depends heavily on consistent and fair enforcement by police and other authorities. However, limited resources, varying levels of training and potential biases can result in an
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uneven application of the law. Young drivers may feel targeted or unfairly treated, particularly if enforcement is perceived as arbitrary or discriminatory. This undermines the credibility of reforms and can erode trust in the justice system, making it harder to achieve intended outcomes. • Pace of law reform – Law reform is often a slow process, requiring extensive consultation, research and political negotiation. As a result, new laws may not keep pace with rapidly evolving technologies, social trends or emerging risks. For example, the rise of ride-share services, electric scooters and new in-car entertainment systems present fresh challenges that existing laws may not address. This delay can leave gaps in regulation and enforcement, exposing young drivers to risks that have not yet been properly managed. • Law reform cannot resolve socio-economic issues – Law reform alone cannot address underlying social and economic issues that contribute to unsafe driving behaviours. Factors such as mental health, substance use, unemployment and educational disengagement can all play a role in risky driving among young people. Legislative changes must be supported by broader social policies and community initiatives to be truly effective. Without complementary measures, law reform can only go so far in reducing harm and promoting positive outcomes for young drivers. • Evaluating the impact of law reform – There is always the challenge of measuring the impact of law reform. Data collection and analysis are essential for evaluating whether reforms achieve their intended goals, but this process can be hampered by inconsistent reporting, privacy concerns, and the difficulty of attributing changes in behaviour or road trauma to specific legal interventions. As a result, policy-makers may struggle to identify which reforms are working and which need adjustment, leading to missed opportunities for Figure 15.5.1 Law reform still has some limitations when it comes to improvement. improve road safety and protect young drivers
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Review 15.5 questions 1. 2. 3. 4.
What is one key benefit of law reform for young drivers? Identify and briefly outline two limitations of law reform in improving outcomes for young drivers. How can law reform empower young people in the context of road safety? Assess the extent to which law reform alone can effectively reduce road trauma among young drivers. Go online to assign and download questions, view results and more!
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Chapter summary • • • • • • • • • • • • • • • •
Young drivers in New South Wales face higher risks on the road and are over-represented in serious crashes. Provisional licensing rules and safety regulations aim to reduce these risks. Changing community values support stronger protections for young drivers. Laws must stay relevant as technology (such as smartphones and in-car devices) introduces new dangers. Young drivers require support and education, not just penalties. Outdated road safety laws must be updated to meet current needs. Advocacy by groups such as NRMA, Australian Automobile Association, Youthsafe and SARAH raise awareness and push for reform. Public opinion and media coverage of crashes involving young drivers increase pressure on lawmakers. Research and investigations show patterns of risky behaviour, including higher crash rates for young people with their own cars. Social media campaigns influence public perception and highlight emerging safety concerns. Informal methods include activism, advocacy campaigns, petitions and media attention. Formal methods include parliamentary lawmaking, judicial decisions that clarify legal responsibilities, and recommendations from inquiries and law reform commissions. Graduated licensing systems, mobile-phone penalties and zero-alcohol rules have been introduced or strengthened through these processes. Benefits include reduced crash rates, clearer rules, improved safety and laws that reflect current technologies and values. Limitations include slow reform processes, inconsistent enforcement and the inability of the law alone to change risk-taking behaviour. Some reforms may disadvantage young people with fewer financial resources and cannot address deeper social issues.
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Multiple-choice questions
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1. Which of the following best explains why further law reform may be needed for young drivers in New South Wales? A. Current laws may not fully address emerging issues such as technological distractions and mental health. B. Young drivers are no longer over-represented in road accident statistics. C. Existing penalties and restrictions are considered too lenient for young drivers. D. The legal framework already perfectly meets the needs of all young drivers.
2. Which of the following best explains how activism, advocacy and public opinion can influence the reform of laws governing young drivers in New South Wales? A. They provide direct enforcement of road rules for young drivers. B. They only focus on fundraising for road safety organisations without influencing legislation. C. They highlight issues facing young drivers, mobilise community support and pressure lawmakers to introduce or change road safety laws. D. They have no impact on law reform or public policy. 3. What role do investigations, findings and recommendations play in changing laws for young drivers in New South Wales? A. They are limited to research and do not influence lawmaking or policy decisions. B. They gather evidence and expert opinions, identify legislative gaps and provide actionable recommendations that guide lawmakers towards targeted reforms. C. They only result in media coverage without affecting legal outcomes. D. They focus solely on punishing young drivers for offences without suggesting improvements.
4. Which of the following statements best describes a recent legislative change aimed at improving young driver safety in New South Wales? A. Young drivers are now permitted to use mobile phones hands-free while driving. B. A near-total ban has been placed on mobile phone use for Learner, P1 and P2 drivers. C. Young drivers are only banned from texting while driving, but can make calls using hands-free devices. D. The minimum driving age was raised to 21 to reduce accident rates among young drivers. 5. When law reforms for young drivers are developed with input from young drivers and the broader community: A. they are more likely to introduce new technologies. B. they will be based on robust data and best practice. C. they will include clear guidance about rights and responsibilities. D. they are more likely to be accepted, understood and effective.
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Short-answer questions 1. Explain why changing social values provide an important reason for young driver law reform. 2. What role does technological advancement play in the way young drivers interact with the road environment?
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3. Outline the difference between formal and informal methods of law reform related to young drivers. 4. How does law reform improve road safety?
Extended-response question
Video 15.6.1 Answering an exam question
Discuss the importance of regularly updating road safety laws to maintain their relevance in society, especially in relation to young drivers. In your answer, refer to recent legislative changes in New South Wales. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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Focus area: Experiences with the law 30 INDICATIVE HOURS OF COURSE TIME
Students are required to study TWO groups that have experiences with the law: • •
young people ONE other group.
OUTCOMES
CHAPTERS
16. Young people 17. Aboriginal and Torres Strait • describes legal principles and Islander Peoples judicial processes used in the 18. Asylum seekers, refugees and legal system migrants • analyses differing perspectives of 19. LGBTQIA+ people individuals, groups and society in 20. Older people influencing the law 21. People experiencing climate • explains methods to resolve injustice conflict and encourage 22. People experiencing economic cooperation between individuals, disadvantage groups and nation-states 23. People experiencing issues of • analyses legal issues to equity, discrimination or power determine the extent to which imbalance the law achieves justice for 24. People living in rural, regional or individuals, groups and society remote Australia • uses and analyses a range of 25. People who are culturally and sources to assess the effectiveness linguistically diverse of the law in addressing issues 26. People with disability • uses legal concepts to communicate information and legal 27. People with a mental health Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400 condition reasoning to form a judgement. In this focus area, the student:
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CHAPTER
Young people
Enhance your learning with these integrated online resources: Digital workbook
• • •
Suggested responses Download or answer questions online Writing focus worksheets
Videos
• • •
Chapter tests and custom exam creation Writing focus workbook Planning documents
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: • • •
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describe the reasons young people may need protection under the law describe the circumstances in which young people encounter the legal system explain the issues young people experience when they have contact with the law outline the international and domestic legal protections for young people describe the functions of authorities that advocate for and protect the rights of young people describe how young people encounter legal processes, including police and the Children’s Court describe alternative approaches to justice available to young people identify non-government organisations that represent the interests of young people describe the roles non-government organisations fulfil analyse the indicators used to measure the success of achieving justice for young people analyse the barriers that prevent young people from achieving justice within the legal system.
• • • • • •
RELEVANT LAW
IMPORTANT LEGISLATION
United Nations Convention on the Rights of the Child (1989) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Bail and Crimes Amendment Act 2024 (NSW) Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT) Births, Deaths and Marriages Registration Act 1995 (NSW) Adoption Act 2000 (NSW) Australian Citizenship Act 2007 (Cth) Education Act 1990 (NSW)
Work Health and Safety Act 2011 (NSW) Minors (Property and Contracts) Act 1970 (NSW) Anti-Discrimination Act 1977 (NSW) Status of Children Act 1996 (NSW) Succession Act 2006 (NSW) Children (Protection and Parental Responsibility) Act 1997 (NSW) Advocate for Children and Young People Act 2014 (NSW) Summary Offences Act 1988 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Children’s Court Act 1987 (NSW) Young Offenders Act 1997 (NSW)
SIGNIFICANT CASES R v LMW [1999] NSWSC 1343 Department of Health & Community Services (NT) v JWB & SMB [1992] 175 CLR 281 (Marion’s case) Re W (A Minor) [1993] Fam 64 R v Cortez, CE, ME, IKEA & LT (unreported, NSWSC, Dowd J, 3 October 2002) Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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THE NATURE OF THE EXPERIENCE 16.1 The need for protection under the law LEARNING OBJECTIVE 16.1 download pdf
children generally, persons aged 15 years and younger, depending on the legal context
young people in New South Wales, persons aged between 16 and 18 years
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DESCRIBE the reasons young people may need protection under the law.
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Children and young people represent the future of society. The respect we afford them
and the way in which we support and nurture their social, emotional and cognitive development are crucial to the maintenance of a fair and just community.
How the law defines “children” and “young people”
Traditionally, the legal age of adulthood was 21 years. In the past 20 to 30 years, most jurisdictions have lowered this age to 18 years. Article 1 of the United Nations Convention on the Rights of the Child (1989) states that anyone under the age of 18 is a child unless the national law specifies an earlier age.
The Children and Young Persons (Care and Protection) Act 1998 (NSW) defines a “young person”scorcher as someone aged between 16 and 18. These definitions are important because laws treat children and young people differently from adults. These laws are intended to:
• prevent them from being exploited • protect them from the consequences of making uninformed decisions • protect others from being disadvantaged by dealing with a person who is a minor.
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For the purposes of this chapter, reference will predominantly be made to “young people”, who sit in the age bracket 16 to 18 years old. However, the law also treats children differently between the ages of 10 and 14 years depending on the areas of law and the issues concerned. Therefore, the line between children and young people can be less clear. What is evident is the law recognises that young people are transitioning to adulthood; hence, in some areas, the law treats them different from younger children. For example, the ban on the use of certain social media platforms is for children under 16, and the right to drive a car begins with a learner’s permit at 16.
Figure 16.1.1 A teenager holds a mobile phone displaying a message from social media platform Instagram after the account was locked for age verification in Sydney on 9 December 2025.
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How society protects children and young people The way in which a society protects children and young people is a good reflection of the extent to which a community recognises their importance as the future of society. In many communities around the world, it is universally recognised that it is important to foster conditions that allow children to grow and flourish for the benefit of themselves and the wider society, and to take their place and make positive contributions as active and informed citizens.
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Reasons for protecting children
The reasons for protecting children are well researched and well known; hence, the law treats children and young people differently to adults but also places obligations on parents and carers to look after and protect their children. Apart for being the right thing to do, the following are the main reasons for ensuring the protection of our children and young people:
• Inherent vulnerability – Children and young people are physically, emotionally and cognitively still developing. This makes them more susceptible to harm and less capable of processing experienced trauma without long-term consequences. At a basic level, children and young people rely on adults for basic survival such as food, shelter and medical care. The prefrontal cortex (responsible for decision-making and risk assessment) of a young brain is not fully developed until their mid-twenties. This affects their ability to make informed decisions and may lead to risk taking. There is also a power imbalance between adults and children or young people that can be abused. They often lack the “voice” or authority to challenge the denial of their rights or mistreatment. • Cycle of long-term adverse outcomes – The community has a vested interest in protection because childhood experiences often determine the outcomes of one’s life later in adulthood. Where children and young people experience stability in their early lives, they are more likely to become productive and stable members of the community. Adversely, children and young people who are victims of abuse, neglect or exploitation are statistically more likely to struggle with health issues, substance abuse or involvement in the justice system later in life. This also has significant economic impacts for a community. It is far more costeffective for a community to invest in protection and early intervention than to fund “reactive” services such as prisons or chronic healthcare for adults who suffered childhood trauma. • Lack of a political voice – Children and young people cannot vote or participate in political processes, apart from being advocates for change. It is therefore essential that laws explicitly represent their rights, views and interests in areas that are critically important. Under international agreements such as the UN Convention on the Rights of the Child (1989) children have the right to be safe, treated with dignity and allowed to grow to their full potential.
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best interests of the child a legal standard requiring that any decision regarding a child’s welfare must prioritise their safety, stability and emotional or physical wellbeing above all other considerations
There are some key legal principles not unique to Australia, where by the law intervenes on behalf of a child or young person. These principles are embedded in the UN Convention on the Rights of the Child (1989) and many of our federal and state laws, and include the following: • “Best interests of the child” standard – Legal systems, particularly in areas of family law, operate on the principle that the child’s welfare is the “paramount consideration” in any dispute. • Mandatory reporting – The law creates a safety net by placing a legal obligation on people who work in professions that are child related, or encounter children and young people, to report known harm or if a child or young person may be at risk of harm. This includes people such as teachers, doctors and police. • Capacity and consent – The law protects young people from making life-altering decisions (such as entering contracts or consenting to certain activities) before they have the legal capacity to understand the consequences.
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mandatory reporting a legal obligation requiring a specified professional, such as teachers, doctors and social worker, to report suspected cases of child abuse or neglect, or if they suspect a child or young person may be at risk of harm to the relevant authorities
Key legal principles
Ultimately, the family is the most important protective unit within society. When the family is intact and functioning well, there is little need for children and young people to engage with the legal system, particularly the criminal justice and family law system. In addition, as young people seek further independence, such as learning to drive and undertaking part-time work, there is a natural transition to the extent that the law begins to more overtly regulate aspects of their lives.
Figure 16.1.2 Family court of Australia, Sydney
REVIEW 16.1 Online quiz
Review questions
Access sample responses and results
Review 16.1 questions 1. 2. 3. 4.
Outline the main reasons that the law treats children and young people differently. Define how the law in New South Wales defines children and young people. Describe the main reasons that the law in Australia provides specific protections for children and young people. What are some key fundamental principles embedded into legislation in regard to children and young people? Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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16.2 Reasons for encountering the legal system LEARNING OBJECTIVE 16.2 DESCRIBE the reasons for which young people encounter the legal system.
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Children and young people generally encounter the legal system through three primary pathways:
• the youth justice system, as victims or as alleged offenders • the child protection system, where the state intervenes due to harm or risk of video widget reporting harm (e.g. abuse or neglect) • the family law system which manages disputes regarding their care and living arrangements following parental separation.
Regardless of the reason for children and young people encountering the legal system, the law clearly acknowledges that they are at a critical stage in their development and that they have unique developmental needs compared with adults. This can be seen in the Children (Criminal Proceedings) Act 1987 (NSW), which emphasises rehabilitation over punishment, and in family law, which is centred strictly on the “best interests of the child”. quiz questions download word
Writing focus 16.2 Conjunctions note taking – (subordinating reasons why)
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The reality, however, can be a predominantly a negative experience that can further elevate the challenges that children and young people face.
Inequality in the legal system
This negative experience can be further exacerbated for certain groups of children and young people through structural or systemic problems. This means that not all children and young people who encounter the law do so with equal outcomes. One such group is Aboriginal and Torres Strait Islander children and young people, who are disproportionately represented in both the criminal justice and the care and protection systems across Australia. Other groups include some children from the lowest socio-economic groups and migrant backgrounds.
This can be the result of the structural and systemic biases within the legal system. While the system aims to treat all groups equally, it is unable to respond to and address the “holistic” picture of the complexity and challenges in some children and young people’s lives. Correlations exist between poverty, abuse and neglect, family disfunction and cultural biases, which can lead to criminal offending or being exposed to care and protection systems.
Youth justice system
Minor offending and developmental risk-taking can result in low-level crimes such as shoplifting, vandalism or “public order” offences. Developmentally, the prefrontal cortex part of the brain, responsible for impulse control, is not fully formed until the mid-twenties, making some youth more susceptible to risky decision-making.
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Drugs and mental health
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Studies show that there is a correlation of substance (drug) misuse and criminal offending: between 81% and 89% of young people involved with the justice system have a history of using alcohol or other drugs. Evidence also suggests that a significant majority of young people who have mental health challenges also encounter the justice system. The work undertaken by the Murdoch Children’s Research Institute indicates young people who encounter the youth justice system are three to ten times more likely to have mental health disorders than their peers.
Cognitive impairment and neurodiversity
Foundational work undertaken by the “Howard League” for the Murdoch Children’s Research Institute and University of Melbourne in 2015 looked at the prevalence of rates of young people with some form of cognitive impairment or neurodiversity who encounter the criminal justice system. It found that the rates of young people with attention deficit hyperactivity disorder who encouter the justice system are estimated at between 26% and 30% (roughly five to ten times) higher than the general population. It also reported that the prevalence of young people with either autism spectrum disorder or foetal alcohol spectrum disorder was significantly higher than the general population.
This in no way suggests that there is a causal link between some form of cognitive impairment or neurodiversity and criminal offending. What it highlights is that current practices and interventions intended to prevent offending and re-offending are failing to recognise and meet the needs of these vulnerable young people. The criminal justice and the mental health systems need to continue to explore how to better to work together.
School disengagement
Figure 16.2.1 Children who spend significant amounts of time not at school face the risk of legal system involvement.
Disengagement or being excluded from school is also a major cause for concern. Children who spend significant amounts of time not at school face the risk of legal system involvement as they lose the structure and support that school provides. The shift from using terms such as “school refusal” to “school can’t” represents a significant change in how experts, parents and students understand why some young people struggle to attend school. Education systems are continuing to explore strategies to support children and young people who are not engaging with school for a range of well documented personal or medical reasons.
Care and protection system
risk of significant harm the threshold used in New South Wales to determine if a child’s safety, welfare or wellbeing is being endangered; indicates that the level of harm is severe enough to warrant state intervention to protect the child
In New South Wales, the childcare and protection system is designed to intervene when a child or young person is at “risk of significant harm” and their safety, welfare or wellbeing cannot be adequately safeguarded by their family. Generally, there are four grounds for state intervention into the lives of children and young people: • physical abuse – this can involve any type of physical injury • sexual abuse – this can be in many forms, from suggestive comments to sexual intercourse
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• neglect – this can involve children not receiving adequate food, clothing, shelter or healthcare • emotional abuse – this can result from things that are said or implied.
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Abuse generally lowers a person’s sense of self-worth and affects a child or young person’s ability to develop socially, emotionally and cognitively. Usually, a child who is abused in any of the first three ways will have suffered some form of emotional abuse as well. Regardless of the type of abuse, they all have serious and harmful consequences for the individual and our society. While every situation is different, sadly there are some underlying patterns for the abuse occurring. These include living in a home where domestic and family violence is present or where there is socio-economic disadvantage such that families lack the resources to provide stable housing.
Family law system
Children and young people generally encounter the family law system indirectly when their parents or guardians separate and are unable to reach an agreement on future care arrangements. While the primary principle of the Family Law Act 1975 (Cth) is that decisions must be made in the child’s “best interests”, children are rarely direct parties to proceedings; instead, their involvement is typically mediated by adults and legal professionals. They may participate through processes such as family dispute resolution (mediation), where their views are sought by facilitators, or in more formal court settings, where an Independent Children’s Lawyer (ICL) is often appointed to represent their interests, gather evidence and ensure their expressed views are brought to the court’s attention.
An ICL is only involved in a minority of matters. These are usually matters that are the most complex or contentious. The court considers appointing an ICL when it believes the child’s interests need independent representation. The court often looks for the presence of one or more “high-risk” factors, such as: • cases involving allegations of child abuse, neglect or family violence • high conflict or what is called “intractable conflict” between the parents, which makes it difficult for them to focus on the child’s needs • where a child appears to have been alienated from one or both parents • cases involving significant mental health issues, personality disorders or complex medical needs for the child or parents • proposals to separate siblings, or situations where a parent wants to move the child a great distance away, effectively cutting off contact with the other parent • where neither parent has legal representation and the court needs an “honest broker” to help navigate the proceedings and ensure the child’s interests are not lost in the conflict.
Additionally, children may be interviewed by family consultants or child experts who prepare reports to assist the court in understanding the child’s developmental and emotional needs. However, research indicates that many children continue to report feeling excluded from or unheard by the very processes designed to determine their futures.
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Other legal systems Workplace
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When young people enter the workforce for the first time, it brings them greater financial independence; however, it also brings them into immediate contact with Australia’s legal framework. Workplace laws are designed to balance a young person’s right to work with their need for safety, education and development. An employer has a number of responsibilities to all workers, but there are specific obligations in regard to young people that provide added safety nets. This includes prohibited hours of work, prioritising school, rest breaks, parental consent, junior rates of pay and no unpaid trials that last longer than is required for a young person to show their skills and aptitude. A young person also has obligations to follow lawful and reasonable directions, be reliable, follow safety procedures, take reasonable care with their work and respect their co-workers. Protections in the workplace for young people are discussed in section 16.4 “Protection under the law”.
Driving
Learning to drive is essentially the first time many young people are legally required to actively navigate a complex set of regulations. While they are in the “learning” phase, their interaction with the legal system is primarily focused on compliance and supervision. From a young person obtaining a learner’s permit to progressing to a provisional licence, there are a range of legal implications, including the following:
• The “contract” of the learner’s permit is a specific legal arrangement with the state. Young people are being granted a privilege, not a right, and that privilege comes with strict conditions. • The supervisor requirement is the most fundamental legal rule: a young person cannot drive solo. They must have a person with a full, current licence in the passenger seat. Legally, the supervisor is often considered to be “in charge” of the vehicle, meaning they can also be held accountable if the law is broken during the session. • Being subject to the strictest alcohol and drug limits (zero concentration). In the eyes of the law, any amount of alcohol or illicit substances while driving is a major breach that can lead to immediate licence cancellation. • Regulatory documentation means that young people are legally required to carry their licence (or a digital version) at all times while driving. Additionally, they must keep a logbook, which is also is a legal document. • A learner or provisional driver is also subject to a “reasonable driver standard” that is owed to other road users, including their own supervisor. This is the same standard of care as a fully licensed driver. A young person cannot use their inexperience as a legal excuse to avoid responsibility if they drive negligently or cause an accident.
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REVIEW 16.2 Online quiz
Review questions
Access sample responses and results
Review 16.2 questions
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1. What are the reasons why the law makes special provisions for children and young people? 2. What are the main pathways or reasons a child or young person may encounter the legal system? 3. What are some of the main factors that are correlated for children and young people encountering the youth justice system? 4. What is meant by the term “risk of significant harm”? 5. What is the main aim of workplace laws designed for young people? Go online to assign and download questions, view results and more!
Figure 16.2.2 The “contract” of the learner’s permit is a specific legal arrangement with the state.
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16.3 Issues arising from contact with the law
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LEARNING OBJECTIVE 16.3 EXPLAIN the issues young people experience when they have contact with the law.
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When children and young people encounter the legal system, the impact can be profound and long-lasting. It can fundamentally alter their life trajectories. The systems that are designed to protect, resolve disputes or address behaviour considered anti-social or criminal can inadvertently exacerbate the very vulnerabilities they are meant to manage.
Criminal justice system
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Writing focus 16.3 Noun phrases note taking (identify)
When legal systems interact ineffectually, they can create a cycle of criminalisation rather than a path to rehabilitation. When the state fails to provide adequate support in childhood (child protection), it often reacts punitively when some of those scorcher struggle in adolescence, and as a result become young offenders and same children encounter the youth justice system. Some children and young people are at risk of encountering the legal system more through circumstances than through anything they have intentionally done. The interplay between the care and protection system and the youth justice system often becomes a “self-fulfilling” prophecy for many children and young people. This results in well-documented issues, including the following:
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• The “crossover” effect, where a significant percentage of young people in the NSW justice system have also had prior or have current contact with the child protection system. Evidence from both Australian and international jurisdictions show that children in residential care or out-of-home care are over-represented in the criminal justice system. This “care-to-custody” pipeline is a major area of concern for NSW policy-makers and judicial bodies. • As discussed previously, there is systemic over-representation of Aboriginal and Torres Strait Islander young people in the NSW criminal justice system, particularly in custody. This is driven by intergenerational trauma, socio-economic disadvantage, and, as noted by various inquiries, systemic biases in policing and sentencing practices. • In New South Wales, there are regional disparities in access to support services. This results in a stark divide between major cities and regional or remote areas. Young people in regional areas often have less access to youth programs and alternative education pathways, which can provide the intervention required to help children and young people stay on track. • Evidence shows that a substantial portion of police proceedings against young people are for property offences and minor disruptive conduct, often linked to economic challenges resulting in housing instability, poverty and lack of family support.
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These issues have been apparent for many years. However, they are being further exacerbated by the contradictory approaches of a system that states its aims are to care and protect children and young people, and take a restorative and rehabilitative approach to criminal offending while at the same time passing more punitive “bail laws” in response to serious repeat offending in regional areas.
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Under the Bail and Crimes Amendment Act 2024 (NSW), New South Wales introduced a stricter “high degree of confidence” test (section 22C), which requires authorities to refuse bail for young people aged 14 to 18 years if they are charged with serious break-and-enter or motor vehicle theft while already on bail for similar offences. Bail Act 2013 (NSW), as amended by the Bail and Crimes Amendment Act 2024 (NSW)
22C Temporary limitation on bail for certain young persons in relation to certain serious offences (1) A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions. (2) A decision under subsection (1) may be made only after—
(a) an assessment of bail concerns is made under Division 2, and
(b) consideration of whether any bail conditions could reasonably be imposed to address any bail concerns or risk the relevant young person will commit a further serious indictable offence.
(3) To avoid doubt, the requirement under this section to establish that bail should be refused for the relevant young person remains with the prosecution. (4) This section applies despite anything to the contrary in this Act.
As a result, youth detention populations in New South Wales have seen a significant increase over the past two years, driven largely by higher numbers of young people being held on remand (awaiting trial) rather than those receiving a sentenced custodial penalty.
Evolving capacity and the age of criminal responsibility
A key consideration in youth justice is to ensure the criminal justice system takes into account the evolving capacity of children and young people. This is done through the principal of doli incapax, which is a legal presumption that a child under a certain age lacks the capacity to form the criminal intent necessary to commit a crime. It essentially treats children as legally incapable of malice or understanding the wrongfulness of their actions at various ages.
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The age of criminal responsibility Under 10 years
In New South Wales, the Children (Criminal Proceedings) Act 1987 (NSW) lays out the minimum age of criminal responsibility. Section 5 of the Act states that “it shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence”. This means that, for children under 10 years old, doli incapax is a conclusive presumption. No child under the age of 10 can be found by law to have committed an offence, and this cannot be rebutted. Previously, in some states the age of criminal responsibility was as low as seven years.
U N SA C O M R PL R E EC PA T E G D ES
conclusive presumption a legal presumption in favour of one party that is final and cannot be rebutted by the other party
Proving that an offender under the age of 10 years understood their act to be wrong, and hence they had intent, would be extremely problematic. Children under the age of 10 years draw on very limited life experience when making decisions about right and wrong. Punishing children under 10 years of age by law may also be considered cruel treatment. Children are considered more likely to be rehabilitated from offending behaviour, and the imposition of any criminal penalty at such a young age may prevent this occurring. For these reasons, children under the age of 10 years are deemed by law never to be criminally liable. Children under the age of 10 years have in some instances committed acts which would be considered unlawful, even if the law does not recognise their mental capacity for intention. There are occasionally calls from some sections of the community to lower the age of criminal responsibility or even abolish it altogether. However, any reduction in the minimum age to below 10 years is extremely unlikely.
10 to 13 years
The Children (Criminal Proceedings) Act 1987 (NSW) is silent on the responsibility of children 10 years or older. In New South Wales, the answer is still found in the common law – the rebuttable presumption of doli incapax. This applies to children 10 to 13 years old. Once a child turns 10 years old, they are still presumed incapable of committing a criminal offence, but this presumption is allowed to be rebutted. That is, the prosecution may be able to show that the child, at the time of the alleged offence, knew that their act was seriously wrong, not just “naughty”.
The rebuttable presumption recognises that children of this age might have the mental capacity to understand the seriousness of their act, but it is up to the prosecution to prove it beyond reasonable doubt. Evidence that the prosecution might rely on could include psychiatric evidence, evidence from parents and teachers, or behaviour of and statements by the child.
14 to 17 years
Once a person turns 14 years, the presumption of doli incapax no longer applies and the offender can be found criminally responsible for their actions. Children aged 14 years and over are deemed mature enough to know when their actions are wrong and to know not to commit an offence. However, the law continues to protect young people in a number of ways. Full criminal responsibility, publicly triable in adult courts, does not occur until a person reaches 18 years of age. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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For example, young people under the age of 16 years cannot have a criminal conviction recorded against them, unless the offence was an indictable offence. This means that the offence cannot be considered by a court if the offender appears again later in their life. However, if it is an indictable offence, the judge may decide to record a conviction. This does not apply to children aged 16 or 17 years.
U N SA C O M R PL R E EC PA T E G D ES
People under the age of 18 years are subject to the Children’s (Criminal Proceedings) Act 1987 (NSW). This includes a number of protections, such as prohibiting reporting of the child’s name, and a requirement that any convictions will be cleared after three years (if no more convictions have been recorded). Most importantly, the matter will be heard in the Children’s Court. Table 16.3.1 The age of criminal responsibility in New South Wales Age (inclusive)
Criminal responsibility
0–9 years
Cannot be charged with a criminal offence. Children under 10 are viewed as insufficiently mature to commit criminal offences.
10–13 years
Rebuttable presumption of doli incapax. Presumed not capable of committing an offence, but the prosecution may prove capacity with sufficient evidence.
14–15 years
Criminally responsible for any offence committed, but no conviction can be recorded unless it is a serious offence.
16–17 years
Criminally responsible for any offence committed and a conviction may be recorded, but the case will still be heard in the Children’s Court.
18 years and older
Full adult criminal responsibility, with case to be heard in adult courts.
Figure 16.3.1 Don Dale Youth Detention Centre on 13 April 2025 in Darwin, Australia. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Debate about the age of criminal responsibility The application of doli incapax has occasionally come under scrutiny, usually through high-profile cases relating to heinous crimes committed by children. One example of this is R v LMW [1999] NSWSC 1343, in which a 10-year-old boy, known as LMW, was accused of manslaughter after he dropped another boy into the Georges River, knowing that he could not swim. The jury was allowed to deliberate on doli incapax but ultimately found LMW not guilty.
U N SA C O M R PL R E EC PA T E G D ES
Some of the issues surrounding this debate are highlighted by Thomas Crofts, Associate Professor at Murdoch University School of Law, in his paper “Doli incapax: Why Children Deserve its Protection” ((2003) 10(3) Murdoch University Electronic Journal of Law 26). Crofts states that:
• opponents argue that doli incapax should be lessened or removed because children today are better educated and the criminal law is not as harsh as it once was • the rule can be unfair, especially to the victims of the crime • it makes the prosecution’s role in a criminal trial more difficult, as there is not always enough evidence to rebut the presumption of doli incapax. However, Crofts goes on to defend the presumption of doli incapax. First, he states that it is consistent with the principles of international law to which Australia is a signatory. He also highlights that children develop their understanding of right and wrong at different stages of their lives and that doli incapax helps to remind us of these different levels of maturity by forcing the prosecution to prove understanding on a case-by-case basis. Further, although it may slow down the prosecution, ultimately it does not stop it if there truly is proof of a guilty mind. More recent debates are over raising the age of criminal responsibility. Human rights organisations and legal experts argue that locking up 10- to 13-year-olds is developmentally inappropriate and counterproductive. In 2021, Australia was criticised by 31 member states of the United Nations for not increasing the age of criminal responsibility. In the 2020s, some states have made changes:
• In 2023, the Northern Territory introduced legislation to raise the age to 12 with a two-year review to ensure it has the necessary support structures in place to consider raising the age to 14. It has since returned the age to 10. • The Australian Capital Territory through the Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 raised the minimum age of criminal responsibility to 12 years in 2023 and to 14 years in 2025. • The Victorian Youth Justice Act 2024 raised the minimum age of criminal responsibility to 12 years. • Tasmania’s Youth Justice Blueprint 2024–2034 stated a plan to raise the age to 14, with implementation to be completed by July 2029. At present the age is still 10. In New South Wales, there have been calls to lift the age from 10 to 14, including from a private member’s Bill introduced to parliament in 2021, a proposed review by the NSW attorney general’s office in 2025, and a lobby group called Raise the Age. However, the NSW government has announced it has no plans to change the age of criminal responsibility.
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Recidivism The rate of recidivism (re-offending) provides further evidence that the cycle of offending for many young people is not disrupted when young people are incarcerated. The rates of recidivism are continuing to put further pressure on government resources to house more young offenders. According to data from the NSW Bureau of Crime Statistics and Research, recidivism rates for young people in New South Wales vary significantly based on their level of contact with the justice system.
U N SA C O M R PL R E EC PA T E G D ES
For 2024, the re-offending rates within 12 months for young people were as follows: • Non-custodial outcomes – 30.8% of young people with a proven finalised court appearance that did not result in a custodial penalty (or who completed a Youth Justice Conference or received a police caution) re-offended within 12 months. • Sentenced custody – 62.5% of young people released from sentenced custody re-offended within 12 months.
1,946
1,925
29.9% 30.3% 30.5%
1,965
2,118
31.7%
2,271
2,237
2,384
2,297
2,461
32.7% 33.1% 32.2% 33.6% 32.2% 32.4%
2,378
2,562
2,847
3,461
3,605
3,546
3,237
31.3% 31.4% 31.2% 31.6% 31.5% 31.1% 30.3%
3,122
2,766
2,690
2,623
2,000
2,717
2,770
2,771
3,000
2,986
4,000
28.3% 28.4% 27.8% 28.1% 28.7%
29.6% 30.1%
1,000
0
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023
Figure 16.3.2 Number and percentage of 14- to 17-year-olds with proven court appearance who re-offend in the following 12 months.
The high level of expenditure on the reactive, high-cost juvenile detention systems is receiving the greater share of government budget, while more proactive, evidencebased diversion and rehabilitation programs, discussed later, are suggested to be more effective at reducing recidivism and helping to break the cycle of offending.
REVIEW 16.3 Online quiz
Review questions
Access sample responses and results
Review 16.3 questions
1. What is meant by the “crossover” effect? 2. How does the criminal justice system respond to the evolving capacity of children? 3. What are the recidivism rates for young people in New South Wales who have had contact with the youth justice system? Go online to assign and download questions, view results and more!
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ACCESS TO JUSTICE 16.4 Protection under the law LEARNING OBJECTIVE 16.4
U N SA C O M R PL R E EC PA T E G D ES
OUTLINE the international and domestic legal protections for young people.
Domestic law Registration
reporting
Writing focus 16.4 Transitional note taking phrases
foundling a deserted infant whose parents’ identity is unknown
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adoption order a court download pdf order that establishes a new legal relationship between potential adoptive parents and a child eligible for adoption; an adoption order also severs the legal relationship that existed between the adoptive child and their natural or legally recognised parents or guardians prior to the adoption process
Under the Births, Deaths and Marriages Registration Act 1995 (NSW), parents have seven days after the birth of a child to give notice of the birth and 60 days to complete scorcher the registration process. This puts the existence of the child on the public record and gives the child a legal name, that of the father or mother in most cases, and therefore affords to the child all legal rights and protections. The parent or parents also assume responsibilities under the law for the child’s welfare. If a child is stillborn, the state Registrar of Births, Deaths and Marriages must be notified within 48 hours.
If a child is a foundling, the person who has been granted guardianship of the child is responsible for having the child’s birth registered. An adoption order made under the Adoption Act 2000 (NSW) must also be registered (Births, Deaths and Marriages Registration Act 1995 (NSW) s 23). A child’s name may be changed, and children over the age of 12 must consent to this change (Adoption Act 2000 (NSW) s 101; Births, Deaths and Marriages Registration Act 1995 (NSW) ss 28, 29).
Citizenship
The Australian Citizenship Act 2007 (Cth) replaced the Australian Citizenship Act 1948 (Cth). It sets out how a person becomes an Australian citizen, the circumstances in which a person may cease to be a citizen and some other matters related to citizenship. Under the Act, a child is automatically an Australian citizen if they are born in Australia with at least one parent who is an Australian citizen. If a child is born overseas with at least one parent who is an Australian citizen, they may apply to be registered as an Australian citizen by descent, although certain criteria must be met. A child who is a permanent resident and who has been legally adopted also automatically acquires Australian citizenship.
Education
Children and young people have the right to be educated, and it is compulsory to attend school between 6 and 17 years of age under the Education Act 1990 (NSW).
Under section 22 of this Act, parents must send their children to a government school or a non-government school registered with the NSW Education Standards Authority, or register them for home schooling. Section 4 of the Act asserts that it is the duty of the state to ensure that every child receives an education of the highest quality.
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Work Generally, it is acknowledged that it is in the best interests of children that they remain in school and receive a formal primary and secondary education. According to the NSW Office of Industrial Relations, there is no minimum legal age limit for young workers. If, however, they are under 15 years, they must receive authorisation from the NSW Department of Education to leave school. Young people in the workplace are covered by all the relevant workplace and safety legislation for workers in New South Wales.
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Many young people report that there are positive aspects of working, such as generating their own income and gaining experience and responsibility. However, there have been a range of reports that have highlighted some concerns in regard to the extent to which young people are protected within the workplace. The Australian Council of Trade Unions released a targeted analysis in April 2025 highlighting that age is the single biggest predictor of underpayment. The report argued that the complexity of “junior rates” (where pay increases slightly on every birthday) makes it very easy for employers to “forget” to give a raise when a worker turns 16 or 17, which can lead to months of accumulated underpayment.
A study by the Melbourne University Law School “Underpaid and Overlooked” in July 2025 stated that workers aged 15 to 19 years were the least likely group to seek help for pay issues. A major survey released in March 2026 by Unions NSW highlights a concerning lack of safety training for young people. These findings underscore that young people, especially those under 18 who are often in their first jobs, are at a particularly high risk due to inexperience and a reluctance to speak up when things may not seem safe.
Figure 16.4.1 Many young people report that there are positive aspects of working such as generating their own income and gaining experience and responsibility.
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CASE STUDY 16.4.1 The “Young Workers” Safety at Work Survey’ by Unions NSW (March 2026) Why young workers are more vulnerable •
U N SA C O M R PL R E EC PA T E G D ES
• •
Lack of training: Nearly 40% of young workers received no Work Health and Safety (WHS) training when starting a new job. Rights unexplained: Over 50% of respondents never had their WHS rights explained to them. Feeling unsafe: About 34% of young workers reported feeling unsafe in their workplace within the last 12 months. Educational gaps: Over half (51.3%) reported they had never received WHS training at school, university or in community settings.
•
Why young workers (Under 18) are more vulnerable
Safety authorities, such as Safe Work Australia, emphasise that young workers are uniquely vulnerable for several reasons: • • • •
Power imbalance: They are often eager to please, making them less likely to question unsafe tasks or speak up about bullying and harassment. Inexperience: They may not yet have the risk perception to recognise when a situation has become dangerous. Peer pressure: They are easily influenced by the behaviour of older co-workers, even if that behaviour is unsafe. Psychosocial hazards: Beyond physical risks, young workers are highly susceptible to workplace bullying, violence, aggression and sexual harassment.
Critical safety areas to watch
• • •
Physical hazards: Fatigue (balancing work and school), machinery operation and manual handling. Psychosocial hazards: Mental health impacts from high job demands, lack of manager support or hostile workplace cultures. Emerging risks: In 2026, experts are also focusing on how AI, automation and remote work (even for hybrid roles) introduce new, less visible risks that young workers may not be prepared for.
The “Young Workers’ Safety at Work Survey” was published as part of a formal submission by Unions NSW to the NSW Parliament regarding the 2026 review of the Work Health and Safety scheme: Submission No 34: Inquiry into 2026 Review of the Work Health and Safety Scheme. You can access the full document (which contains the survey findings) via the official NSW Parliament website at https://cambridge.edu.au/redirect/12092
Safe Work Australia has repeatedly highlighted the extent to which children and young people are harmed or injured while at work. It has been reported that, on average, every 4 minutes and 24 seconds a young person is injured in an Australian workplace (2019). Research from SafeWork NSW indicates that 15- to 25-year-olds have a 75% greater chance of being injured at work (2017).
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RESEARCH 16.4.1 View the website for Youth Law Australia to research other aspects of work for children and young people. Summarise your findings in a few paragraphs.
Medical treatment
U N SA C O M R PL R E EC PA T E G D ES
The case Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (“Gillick case”) was a House of Lords decision. The court found that a child under 16 years was capable of consent in medical matters, provided that they had “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.
In the case of the Department of Health & Community Services (NT) v JWB & SMB [1992] 175 CLR 281 (Marion’s case), the High Court of Australia followed the decision in the Gillick case, holding that children have the right and the ability to make decisions that affect their lives, and they can do so competently as long as they understand the implications of their decisions. This common law test is subject to section 49 of the Minors (Property and Contracts) Act 1970 (NSW), which protects a medical practitioner from liability in tort for treating a young person if the young person has given consent to the medical or dental treatment and is aged 14 years or over. Parents have the responsibility to seek proper medical care for their children, even if they have religious objections. Section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) authorises a medical or dental practitioner to carry out emergency treatment on a child or young person without parental consent.
As legislation does not deal with a young person’s right to refuse medical treatment, this issue is governed by the common law. If a child under 16 years refuses medical treatment, parents have a right to insist that it be performed, despite the Gillick test of competency (Re W (A Minor) [1993] Fam 64). A court can override a young person’s refusal of medical treatment if the refusal is not in their best interests.
Discrimination
Children and young people are protected from discrimination on the basis of age by Part 4G of the Anti-Discrimination Act 1977 (NSW). This Act also outlaws discrimination on the basis of sex, race, sexuality and other characteristics, and applies to discrimination in work, education and the provision of goods and services. There are a number of exceptions, however, relating to superannuation, insurance, credit applications, vehicle safety and sport. The Act does not affect the operation of laws relating to the legal capacity of children or laws specifically designed to protect them.
Contracts
Under the Minors (Property and Contracts) Act 1970 (NSW), people under 18 years are generally not bound by a contract, lease or other transaction (ss 8, 17). The courts will not enforce such contracts, even if they do exist. The exception to this, contained in section 19 of the Act, is a situation where a young person enters into an agreement that is for their own benefit and is a necessity, such as for the provision of accommodation or food. For example, a young person who leaves home at age 17 to take an apprenticeship and has to sign a rental lease for accommodation or needs to buy a car on finance for transport will be bound by the contract.
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guarantor a person who gives a formal promise that someone else’s contract will be fulfilled, often backed by some form of asset that will stand as collateral to secure the promise
Torts There is no age restriction on taking legal action for a civil wrong. If a child or young person is injured as a result of someone else’s negligence, is a victim of defamation, or suffers loss or damage as a result of some other wrongful behaviour, they are entitled to sue the wrongdoer.
U N SA C O M R PL R E EC PA T E G D ES
ex-nuptial children children born of parents who are not legally married
Some minors may be able to enter into certain contractual arrangements if they have a parent or guardian who acts as a guarantor to ensure that the contractual obligations are fulfilled. The Supreme Court of New South Wales can confer the capacity to enter a legal contract upon a minor (s 26).
risk of harm concerns about the safety, welfare and wellbeing of a child or young person because of sexual, physical or emotional abuse and/or neglect
A child is also personally responsible for their own wrongful acts. The general rule is that parents are not liable for torts committed by their children.
Leaving home
Young people do not have the right to leave their parents’ home before the age of 18. However, the law would not normally force young people over the age of 16 to stay at home against their wishes. The following factors would be considered: maturity, accommodation, safe living environment and the parents’ attitude.
Inheritance
The Status of Children Act 1996 (NSW) provides that ex-nuptial children are treated the same as those whose parents are married. This essentially means that ex-nuptial children have the same rights in relation to the disposition of property made by a will or without a will as those born in wedlock. Any person left out of a will can contest this under Chapter 3 of the Succession Act 2006 (NSW).
Care and control
Children and young people have the right not to be neglected or abused physically, sexually or emotionally. Abuse of children and young people in Australia is a worrying aspect of our society. Governments have passed laws to combat this, but to date the effectiveness of these protections continue to be challenged. Principles and protections
The guiding principles and protections for administering the Children and Young Persons (Care and Protection) Act 1998 (NSW) are as follows:
• The safety, welfare and wellbeing of children and young people are the paramount considerations. • Children and young people must be given an opportunity to express their views concerning their safety and welfare, and these must be given due consideration. • The culture, disability, language, religion and sexuality of the child or young person must be taken into account. • Any course of action followed should be the least intrusive for the child or young person and their family.
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Under the Children and Young Persons (Care and Protection) Act 1998 (NSW), a child or young person is considered at risk of harm when: a. the child’s or young person’s basic physical or psychological needs are not being met or are at risk of not being met,
U N SA C O M R PL R E EC PA T E G D ES
b. the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care, b1 in the case of a child or young person who is required to attend school in accordance with the Education Act 1990 (NSW) – the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive an education in accordance with that Act, c. the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated,
d. the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm,
e. a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm,
f. the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report.
Figure 16.4.2 Malka Leifer (centre) is a former teacher found guilty of 18 charges, including rape and sexual abuse of girls under her care at a school in Melbourne. Leifer fled to Israel in 2008 but was extradited to Australia in January 2021. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Reporting of children and young people at risk
Under section 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), any person who has reasonable grounds for believing that a child or young person is at risk of harm may make a report to the Department of Communities and Justice.
U N SA C O M R PL R E EC PA T E G D ES
Mandatory reporting is a responsibility of all paid workers who are involved in delivering welfare services, healthcare, children’s services, education, residential services or law enforcement, partly or fully, to children. These people must make a report to the Department of Communities and Justice if they become aware during the course of their work that a child is at risk of harm.
In 2012 the federal government initiated a Royal Commission into Institutional Responses to Child Sexual Abuse, which looked at educational institutions, religious groups, sporting organisations, state institutions and youth organisations. The final report, published in 2018, stated that there had been systematic oversight and a failure to act to address the child abuse being perpetrated by members of a range of institutions. The final report is available on the Royal Commission’s website. Work is still ongoing to ensure child-related institutions adopt all recommendations from the Royal Commission.
Criminal law
In New South Wales, children and young people, like all citizens, are afforded protection under the law by the state. The criminal justice system, however, approaches children and young people differently from adults, with a strong focus on rehabilitation, diversion and protecting the child’s best interests.
juvenile a child or young person, generally under 18 years of age, although this may vary depending on the context
Children and young people are also subject to a range of criminal sanctions that are different from those applied to adults who have committed the same offences. Detention is a last resort for a juvenile offender in all states and territories.
The Children (Protection and Parental Responsibility) Act 1997 (NSW) enables local police to remove young people under 16 years who are at risk in public places and return them to their parents. The Act is unique in that the police are only given these powers in local government areas considered operational areas. It also gives the Children’s Court the power to make parents attend the court with their children and to make them sign an “undertaking” for their child’s behaviour. In more serious cases, the court could punish the parents if it can be shown that their neglect has caused their children’s offending.
International law
Convention on the Rights of the Child (1989)
The UN Convention on the Rights of the Child (1989) sets out a comprehensive set of rights for all children and young people. It covers civil, political, economic, social and cultural rights, and requires that all state parties act in the best interests of the child. The Family Law Act 1975 (Cth) and other Australian legislation endeavour to reflect that objective. The basic rights of a child, as set out in Articles 1–40 of the UN Convention on the Rights of the Child (1989), include the right to life, to have one’s own name and identity, to be raised by one’s family and to have a relationship with both parents, even if the parents are separated.
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The UN Convention on the Rights of the Child (1989) is the most widely ratified human rights treaty; more than 193 countries have ratified it. The exceptions are the United States and Somalia. It is monitored by the UN Committee on the Rights of the Child, which assesses state parties’ performance, reports to the UN General Assembly and makes recommendations. The committee does not have the power to hear individual complaints of violations of children’s rights. corporal punishment the physical punishment of people, especially of children, by hitting them
U N SA C O M R PL R E EC PA T E G D ES
Australia has been a strong supporter of this Convention from the beginning and has an extensive body of federal and state laws in place designed to protect and promote the welfare of children and young people. At the same time, there are still areas in which Australia can do better.
Current deficiencies in Australian law regarding the UN Convention on the Rights of the Child (1989) include:
public space areas set aside in which members of the community can associate and assemble
• The defence of “lawful correction” is still available in all states and territories to parents who use corporal punishment on their children, although in New South Wales it has been limited by legislation prohibiting force to the head or neck, and force causing harm “likely to last for more than a short period”. • There are laws under which police can deny children and young people use of public space by asking them to leave or removing them; for example, Part 3, Division 2 of the Children (Protection and Parental Responsibility) Act 1997 (NSW). • Children and young people are paid less for doing the same work as adults. Young people continue to be injured in the workplace at greater rates than adults. • It has been argued that the criminal age of responsibility of 10 years is too low and should be Figure 16.4.3 Young people are paid less for doing the same work raised to 14 years. as adults.
REVIEW 16.4 Online quiz
Review questions
Access sample responses and results
Review 16.4 questions
1. What are some of the civil protections afforded to children and young people without them having to come into direct contact with the law? 2. What are some of the guiding principles and protections for children and young people contained in the Children and Young Persons (Care and Protection) Act 1998 (NSW)? 3. What is meant by the term “mandatory reporting”? 4. What is main international treaty that outlines the protection of children and young people? Go online to assign and download questions, view results and more!
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reporting
Legal Studies noteCambridge taking scorcherStage 6 Year 11
16.5 Authorities that advocate for rights LEARNING OBJECTIVE 16.5
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DESCRIBE the functions of authorities that advocate for and protect the rights of young people.
U N SA C O M R PL R E EC PA T E G D ES
Federal and state parliaments have passed numerous Acts that protect children and young people by restricting their activities and by placing responsibilities on adults to ensure their welfare. Certain children’s rights have also been enshrined in legislation, which in turn has created legal institutions and processes that promote and protect these rights. The courts have also played a role through cases that have affirmed the current law or changed the law through re-interpretation.
New South Wales
reporting
Writing focus 16.5 Transitional note taking phrases
Some of the legal institutions in New South Wales that have been set up to protect children and young people are discussed in the following section. scorcher NSW Advocate for Children and Young People
The NSW Advocate for Children and Young People is a statutory body set up to promote respect for and understanding of the interests and needs of children and young people. It was established in 2015 under the Advocate for Children and Young People Act 2014 (NSW) and took over some of the functions of the previous NSW Commission for Children and Young People.
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Its key role is making recommendations to government and non-government organisations regarding legislation, policies, services and other matters that affect children and young people. For example, the previous body (NSW Commission for Children and Young People) made a submission to the Review of the Young Offenders Act 1997 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW) in December 2011.
It also undertakes research into matters that affect children and young people and prepares a three-year strategic plan for children and young people in New South Wales.
NSW Office of the Children’s Guardian
working with children check a check by the NSW Office of the Children’s Guardian on the appropriateness of a person in New South Wales to work in child-related employment
The NSW Office of the Children’s Guardian was first set up under the Children and Young Persons (Care and Protection) Act 1988 (NSW), and under further legislation in 2013 it became an independent government agency.
The office took over the former NSW Commission for Children and Young People’s responsibility for implementing and monitoring the working with children check. This is the mandatory employment screening by employers of job applicants in
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child-related employment, as outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW). There are penalties for employers who engage someone in employment relating to children without sufficient scrutiny of the person, or if they are aware the employee is a prohibited person for child-related employment. These requirements reduce the likelihood of prohibited persons having contact with children in the course of their work. The office also has a range of responsibilities connected with out-of-home care in New South Wales, manages accreditation of nongovernment adoption services and authorises employment of young children in the entertainment industry.
Figure 16.5.1 Teacher accreditation requires a mandatory Working with Children Check (WWCC).
Department of Communities and Justice
The Department of Communities and Justice is responsible for the care and protection of children in New South Wales. While they are an executive government department rather than an independent watchdog, they are the primary authority responsible for implementing policies and providing services related to child protection, juvenile justice and family support.
prohibited person a person prohibited from working in child-related employment because of a conviction of a serious sex offence, murder of a child or an offence involving violence towards a child
It carries out this role in cooperation with non-government organisations and government agencies. Its activities include the provision of accommodation and support for children and young people who need to live away from their families, the regulation of childcare through licensing, and the funding and regulation of adoption services.
The Department of Communities and Justice is also authorised to intervene between parents and children where there is a need for care and protection. A child or a parent can also request the Stronger Communities Investment Unit to assist in cases where the family is experiencing difficulties. Intervention by the state can include preventative services such as family support and respite childcare, through to extreme cases where children are removed from their families, or where police action is taken against abusers.
Legal Aid NSW
Legal Aid NSW provides a range of services to children and young people in New South Wales. It represents children and young people in a variety of matters, from welfare proceedings in the Children’s Court to family law matters in the Federal Circuit and Family Court of Australia. Its legal representatives will also appear for children and young people facing criminal charges in the Children’s Court.
People under the age of 18 are entitled to free legal advice from Legal Aid NSW. This can be accessed over the phone on the “Help over the Phone” service on 1300 888 529. This service is staffed by qualified lawyers experienced in youth matters and is
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accessible to young people seven days a week. Further information is available on the Legal Aid NSW website at: https://cambridge.edu.au/redirect/12118.
NSW Ombudsman
U N SA C O M R PL R E EC PA T E G D ES
The main role of the NSW Ombudsman is to act as an independent review body that deals with individuals’ complaints about the administration of government agencies or the agencies’ compliance with specific legislation. Traditionally, the office is seen as representing the people’s interests, and its credibility comes from its reputation for impartiality, independence from government and confidentiality. There have been calls for a specialist “children’s ombudsman” that can take a more targeted approach to issues facing children and young people in their dealings with government agencies.
Another important role performed by the Ombudsman’s office is investigating and reporting on “reviewable deaths” of children in New South Wales. A death is reviewable if at any time in the three years before the death, the child or a sibling has been reported to the Department of Community Services for any matter. With the objective of preventing harm, abuse and neglect of children, the Ombudsman’s office assesses whether the child protection system could have prevented some of these deaths. The process to review deaths of children and young people each calendar year considers the number of these that are suspicious, were the result of neglect, involved individuals known to the Department of Communities and Justice or were in out-of-home care. This is an important function of the NSW Ombudsman’s office, to continually assess the extent to which children and young people are being protected within their families or by the system.
NSW Civil and Administrative Tribunal
The NSW Civil and Administrative Tribunal reviews the administrative decisions of NSW government bodies. Its Administrative and Equal Opportunity Division deals with applications for review of decisions made by Department of Communities and Justice. The division also hears applications for declarations that a person seeking to apply for a job working with children is not a prohibited person under the Commission for Children and Young Persons (Care and Protection) Act 1998 (NSW).
RESEARCH 16.5.1
The organisations listed below are involved in protecting the interests of children and young people. Select two organisations and outline a more detailed understanding of their role and the strategies they undertake to fulfil their role. Locate their websites to conduct this research. • • • • • •
NSW Advocate for Children and Young People NSW Office of the Children’s Guardian NSW Children’s Court Department of Communities and Justice Legal Aid NSW NSW Ombudsman.
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Federal National framework
U N SA C O M R PL R E EC PA T E G D ES
In 2021, the Council of Australian Governments, an intergovernmental forum made up of the federal and all state and territory governments, published a National Framework for Protecting Australia’s Children 2009–2020. In 2021 a successor to this framework was developed by the federal, state and territory governments, along with Aboriginal and Torres Strait Islander representatives and non-government organisations Safe and Supported: The National Framework for Protecting Australia’s Children 2021–2031 sets out how all governments, First Nations leaders Figure 16.5.2 Justice Peter McClellan at the Royal Commission and the non-government sector will work together to into Institutional Responses to Child Sexual Abuse in Sydney, help children, young people and families in need of 16 September 2013. support. This initiative has the aim of fighting child abuse and neglect by preventing it in the first place; that is, by protecting the safety and wellbeing of children. Following the Royal Commission into Institutional Responses to Child Sexual Abuse, which showed the inadequacies of institutions in protecting children from abuse, a range of recommendations were handed down that have had a significant impact on the current framework for government and non-government agencies.
eSafety Commissioner
The eSafety Commissioner in Australia advocates for children and young people through direct engagement, education and protection. The Commissioner strongly believes that the “lived experience” of young people should influence the strategies employed to keep them safe. Such strategies include: • the eSafety Youth Council (cornerstone of the eSafety’s advocacy), which was launched in 2022 to directly engage with young people, and consists of people aged 13 to 24 years from diverse backgrounds, cultures and gender identities • influencing policy through firsthand insights into the online issues that matter most to young people and the issues that pose the most risks, which include generative AI, cyberbullying and image-based abuse.
The eSafety Commissioner acts as a regulator, demanding higher safety standards from technology companies and driving structural change to online platforms. This encourages developers and tech companies to embed user safety and privacy into the core architecture of their products rather than treating safety as an afterthought. It also sets out online safety expectations that online service providers take reasonable steps to prevent and address harms, making platforms more accountable in relation to how they treat younger users.
The eSafety Commissioner works with government and industry to manage major systemic shifts, such as the implementation of mandatory social media age restrictions introduced nationwide in 2025 (for children under 16) through the Online Safety Amendment (Social Media Minimum Age) Act 2024. It has also established codes of practice to limit exposure to inappropriate content. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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The Commissioner also provides education and digital literacy information to support parents and carers in fostering safe, informed and open conversations about online behaviour. Importantly, it investigates complaints and can demand the removal of serious cyberbullying materials, including image-based abuse and illegal or harmful content.
U N SA C O M R PL R E EC PA T E G D ES
MEDIA 16.5.1 Tech firms “taking the mickey” on teen social media ban
Grace Crivellaro and Zac de Silva, The Canberra Times, 31 March 2026 “In a compliance report on the legislation published on Tuesday, the eSafety Commissioner found platforms were giving users limitless chances to scan their faces in age-assurance checks, making it easy to find ways to circumvent the measures.” Read more at: https://cambridge.edu. au/redirect/12095
Figure 16.5.3 Face scanning security measures may be helping teens get back on social media.
International
UN Committee on the Rights of the Child
The UN Committee on the Rights of the Child examines parties’ compliance to the UN Convention on the Rights of the Child (1989) and their obligations under this Convention. The committee can report and publish adverse findings on countries that have failed to enforce the rights of its children. States can choose to ignore or comply with such findings.
REVIEW 16.5 Online quiz
Review questions
Access sample responses and results
Review 16.5 questions 1. 2. 3. 4.
Outline the main role of the NSW Advocate for Children and Young People. Describe what the “working with children check” means. Describe the role of the NSW Ombudsman in protecting the rights of children and young people. Outline the role the NSW Civil and Administrative Tribunal can play in protecting the rights of children. Go online to assign and download questions, view results and more!
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16.6 Contact with legal processes LEARNING OBJECTIVE 16.6 DESCRIBE how young people encounter legal processes, including police and the Children’s Court.
U N SA C O M R PL R E EC PA T E G D ES
Contact with police
The rights of children and young people when dealing with law enforcement authorities vary between Australian jurisdictions. However, the law generally recognises that children and young people require some special protections when videonot afforded in ordinary widget dealing with the police that are circumstancesreporting to adults.
Writing focus 16.6 Noun phrases note taking (identify and develop)
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Questioning of young people
Police in New South Wales have the power to approach young people and ask them questions at any time, as they do for adults. Most police powers that apply to adults (for example, powers to ask a person to “move on” and most compulsory powers of search and seizure) apply equally to children and young offenders. Identification, name and address quiz
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The police have a right to ask a person to identify themselves by giving their name and address. Likewise, a person can ask a police officer for their name and their police station. There are several situations, under various laws, where a person is legally required to respond and may commit an offence if they do not, for example:
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• where the police officer suspects on reasonable grounds that the person can assist them in investigating an indictable offence that was committed nearby • in a number of situations relating to vehicles and traffic • where a person is suspected of committing an offence on a train. However, some laws do apply to young people, in particular. For example, under the Summary Offences Act 1988 (NSW), a person can be stopped and required to provide their details if suspected of being under the age of 18 and carrying or consuming alcohol in a public place without adult supervision or reasonable excuse. Questions and right to silence
With regard to ordinary police questioning, the police may ask a person a question at any time. However, in most circumstances, a person is not required to respond and may exercise their right to silence. A person can refuse to answer questions, even if they have been taken to a police station for questioning or arrested. This is because it may not be in their best interests to answer certain questions as their answers may later be used in evidence. For this reason, a person suspected of committing any offence should usually not answer police questions or sign any statements until they have received independent legal advice.
right to silence the right of a person to refuse to answer any question put to them by the police
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Right to the support of a responsible adult
The law provides an additional level of protection for young people under the age of 18 when they are questioned by police. This is because the law assumes that young people may not be aware of their rights, may not fully understand the law or may be more vulnerable than adults in these circumstances. Under section 13 of the Children (Criminal Proceedings) Act 1987 (NSW), any information or statement a child or young person gives to police will be inadmissible as evidence in court proceedings against that person, unless:
U N SA C O M R PL R E EC PA T E G D ES
• there is a responsible adult other than the police officer present, such as a parent, youth worker, guardian or lawyer • the judge otherwise decides that it should be admitted.
This is an important protection for young offenders as it means that police must ensure that there is a responsible adult present any time a person under 18 years old is questioned. If not, the police may be unable to use any information they were given as evidence. Generally, the adult should take notes and ensure that the young person gets legal advice and knows that they do not need to answer questions.
Searches
Police search powers for children and young people are largely the same as for adults, apart from strip searches. Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police can never perform a strip search on a child under 10. For a person aged between 10 and 18, a responsible adult other than a police officer must also be present, and if the person is 14 or older they must agree who the adult should be. Police may only conduct strip searches in serious and urgent circumstances. When conducting a strip search, police have to respect a person’s privacy and must not touch the person. In the majority of cases the police cannot search you unless they have reasonable suspicion that you have something illegal on your person. “Reasonable suspicion” is difficult to define and in contested cases it is up to the court to decide. Strip searches of young people at music festivals around Australia in 2018 and 2019 raised a number of concerns regarding the “reasonable suspicion” that young people have illicit drugs on their person. A reasonable suspicion is less than a belief but more than just a possibility.
Figure 16.6.1 Police search a youth’s bag in the lead-up to an anti-war protest outside the Land Forces International Defence Expo in Melbourne on 12 September, 2024.
The Law Enforcement Conduct Commission investigated the complaints of five young women who were searched at music festivals and outside the Star Casino in Sydney in 2021. It recommended at least one of the complainants receive an apology, with sustained findings against two police officers who carried out the search. The Commission acknowledged that many of the people who experienced such strip searches found it humiliating and degrading. It found that some police at festivals lacked experience using search powers, and it recommended they receive proper training to use those powers correctly. The NSW Police Force will continue to follow their usual procedures.
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Documents obtained by the Redfern Legal Centre through Freedom of Information in August 2022 found that police have not taken seriously the recommendations from the Law Enforcement Conduct Commission to overhaul policies around the use of strip searches and that police themselves still do not fully understand their own strip search powers.
Arrest and interrogation
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The conditions under which a young person can be lawfully arrested are the same as those for adults. These conditions are listed in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The Act requires that:
• police know or believe on reasonable grounds that the person has committed or is about to commit an offence • police have a warrant for the person’s arrest • certain other conditions should be adhered to, relating to people who are on bail conditions.
Police must tell a person that they are under arrest and why. They must also inform the person of the police officer’s name and station. Police may use reasonable force in arresting a young person, but the force may not be excessive, and the police officer may not assault or intimidate them. Likewise, a person cannot assault a police officer, resist arrest or use offensive language, or they may be guilty of further offences.
In some jurisdictions, it is alleged that police rely heavily on arrests to gather evidence or to further the interrogation of suspects. In other words, arrest can be used as a method of investigation. This is especially so for First Nations youth. Disproportionate arrest levels should be considered within the broader racial profiling of First Nations people and the impacts this has on First Nations offenders.
Support person and legal advice
Upon arrest, a child or young person’s guardians or carers should be notified as soon as possible. This should not occur if the person’s carer or guardian may be a threat to the child or young person’s safety, which might be the case in some circumstances.
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), people under the age of 18 are defined as “vulnerable people” and are given special protection when arrested and detained for questioning. The Act requires the police to find out as soon as possible who the child’s parent or guardian is and to contact them. Young people must have a support person, or interview friend, such as a parent, guardian or solicitor, present at a police interview. Police may not conduct any interview of a child or young person unless a support person is present. For people 14 years and over, police must get the young person’s agreement on who they want as the support person. The support person will assist the child or young person and observe whether the interview is conducted properly. The police custody manager is required to assist the child or young person. At present there is no requirement to have legal representation during a police interview. However, in 2002 the Supreme Court of New South Wales ruled in the case
interview friend a parent, guardian, friend or legal representative present at the police interview of a minor; the interview friend’s role is to offer support and witness that statements are made voluntarily
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of R v Cortez, CE, ME, IKEA & LT (unreported, NSWSC, Dowd J, 3 October 2002) that the custody manager’s duty includes informing a young person that legal aid advice is available over the phone and giving them an opportunity to call someone who can assist.
Caution of rights
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As with questioning, in general, people have a right to silence when dealing with the police. Like adults who are arrested and interrogated, children and young people may incriminate themselves without realising they are doing so and must be warned against this. Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), any person arrested must receive a caution; that is, the police must warn the person, orally and in writing, as soon as practicable after they are detained, that they do “not have to say or do anything but that anything the person does say or do may be used in evidence”. They must also inform them of the maximum allowable period for detention without charge.
The accused has to sign an acknowledgement that this caution has been given – this would usually be completed by an interview friend, guardian or carer on the child’s behalf. Some criticism of this has been that children and young people may not always understand the technical language used in the caution and that it should be age specific. It has also been argued that admissions and confessions from children and young people should be admissible in court only if they have been electronically recorded.
Detention and identification
Unlike adults, people under 18 years of age in New South Wales can be detained for a maximum of four hours, or up to a further eight hours if a warrant for the extension is granted.
At a federal level, children and young people may not be detained for a period longer than two hours. Children may be particularly vulnerable during long periods of detention, so excessive periods are discouraged. As mentioned earlier, the presence of an interview friend is one mechanism that may help prevent evidence being obtained under duress or coercion during lengthy periods of interrogation.
Forensic procedures, photos and searches
Police will often require identification of suspects when arrested, including photographing them or taking fingerprints or DNA samples.
For young people 14 years or over, police may take fingerprints or photographs if it is for the purpose of identifying them. However, for children under 14 years, the police can only take photos or fingerprints if they apply to the Children’s Court to do so. The child may not be held in custody while the application is being obtained, and the Children’s Court will take into account the seriousness of the offence, cultural and ethnicity considerations, the “best interests” of the child, and the wishes of the child and their parent or guardian. Similarly, police cannot take a DNA sample of any suspect under 18 years old unless they have a court order allowing them to do so. Children and young people cannot give this consent on their own. If the criminal matter is not proved in court (for example, if the person is acquitted), or the person is found not guilty, or the case is discontinued, the police must destroy any fingerprints, photos or DNA samples on request of the parent or guardian.
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Contact with the Children’s Court The Children’s Court of New South Wales was discussed in Chapter 3 under the topic of the court hierarchy. The Children’s Court is a specialised court established in 1987 under the Children’s Court Act 1987 (NSW). It has a dual role:
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• dealing with the criminal matters of children and young people under 18 years of age • dealing with matters of care and protection of children and young people referred to it by the Department of Communities and Justice.
Matters in the Children’s Court are presided over by a judge, but there is no jury. Children’s Judges undergo Figure 16.6.2 Matters in the Children’s Court are presided over by specialist training by the Judicial Commission of a judge, but there is no jury. New South Wales in dealing with youth matters and proceedings. Across New South Wales, there are 13 Children’s Judges sitting in seven Children’s Courts. Five of these are in metropolitan areas. There are also five children’s registrars appointed to assist in the administration of matters before the Children’s Court. In its criminal jurisdiction, the Children’s Court can hear the following matters involving children:
• any offence committed by a child, except a serious indictable offence (serious indictable offences, such as murder and manslaughter, armed robbery or sexual assault, will be heard in a higher court) • committal proceedings of any indictable offence, including serious ones, where the accused is a child. The Children’s Court follows procedures laid out under the Children (Criminal Proceedings) Act 1987 (NSW). Section 6 of the Act requires the court to show regard for the following main principles: • Children have rights equal to those of adults and have a right to be heard and participate in proceedings that affect them. • Children are responsible for their actions but require guidance and assistance. • Where possible, there should be no interruption to the education of a child. • Where possible, a child should be able to reside in their home.
Differences in children’s criminal proceedings
In the Children’s Court, as well as in children’s matters heard in higher courts, trial formalities will be different from those in ordinary courts and will be aimed at protecting the interests of the child.
• In the Children’s Court, the matter will be heard summarily (with no jury), before a single judge. • Children’s proceedings are conducted in a closed court in order to protect the identity of the child – only parties to the proceedings are present, and reporters or family victims if the court allows.
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• The media cannot publish the name of any child who is involved in the process, unless authorised by the court or the child is deceased. • Courts in children’s proceedings will need to consider the main trial and sentencing principles under section 6 of the Children (Criminal Proceedings) Act 1987 (NSW). • The court will give the child the fullest opportunity to be heard and to participate. • The court must take measures to be sure that the child understands the proceedings and answer any questions that the child asks about the process or decision. • Available penalties and sentencing procedures differ from those of ordinary courts.
Children’s Court statistics
According to the NSW Bureau of Crime Statistics and Research and the Australian Institute of Health and Welfare, in 2024–2025 the landscape of youth detention in New South Wales has shifted significantly. The most striking trend is a move away from “sentenced” detention towards a higher proportion of children held on remand (awaiting trial).
As of late 2025, approximately 73 to 75% of all children in NSW detention and 61% of children in custody have not been sentenced but are awaiting court proceedings and 61% of children in custody. Boys are 13 to 15 times more likely to be in detention and this extends to 21 to 28 more times if they are Aboriginal and/or Torres Strait Islanders. The NSW Bureau of Crime Statistics and Research tracks and records statistics on children and young people who appear before the children’s court.
CASE STUDY 16.6.1
Monitoring and tracking children and young people’s interaction with the Children’s Court Specific Children’s Court statistics are primarily published by the NSW Bureau of Crime Statistics and Research and the Children’s Court of NSW.
In recent years (2023–2025), there has been a significant increase in the number of young people in custody and appearing in court, alongside a decline in the rate of youth diversion.
Key statistics (2023–2025)
The following data reflects the most recent available reports on youth justice and court outcomes in New South Wales: •
•
Court appearances (10 to 13 years old): In 2023, there were 719 finalised court appearances in the NSW Children’s Court for defendants under 14 years. Of these, only 19.6% (141) resulted in a proven offence. Case outcomes: For finalised cases involving children under 14 years with known outcomes in 2023: • 52.5% were resolved by charges being withdrawn by the prosecution • 24.7% resulted in a “not guilty” finding • 49.6% of proven offences were handled via court dismissal, which includes court-ordered cautions or Youth Justice Conferences.
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•
Youth diversion rates: The overall youth diversion rate in New South Wales fell from 51.3% in 2022–2023 to 46.8% between 2023–2024, partly due to an increase in more serious offences. The average daily number of young people in custody was 226 in 2024–2025, up from 212 the previous year. 60.6% of those in custody were of Aboriginal and/or Torres Strait Islander background. 73% of those in custody were on remand (awaiting court finalisation), with an average stay of 15.8 days.
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Children’s Court Clinic
The Children’s Court Clinic is an arm of the Children’s Court and is established under the Children’s Court Act 1987 (NSW). The clinic’s main function is to make clinical assessments of children and submit reports to the court. A judge in a children’s case can make an order for expert assessments of a child in a particular case – a clinician then assesses the child and writes a report to the court to help it make a decision in the best interests of the child.
In its criminal jurisdiction, the Children’s Court may in certain cases decide that a child or young person requires assessment by the clinic after they have been found guilty of an offence but before they have been sentenced. Assessments will generally be performed in New South Wales by Youth Justice, but more recently they are being done through the clinic. The clinic will be asked to complete an assessment where there are “specific psychological, psychosocial or mental health issues present in the child’s situation that the court needs to consider prior to passing sentence”. The assessment report might deal with a variety of issues, such as mental health, intellectual disability, drug and alcohol use, violence, sexual abuse/assault and/or psychological issues. The assessment report may take time, and the child’s sentencing is likely to be postponed until the report is available.
Sentencing of young offenders
Children and young people, more than any other offenders, have the best chance of rehabilitation and reintegration into society. As such, the sentence that offenders receive should take into account their age and the circumstances under which the offence was committed. There is little evidence that detention and other harsh sentencing options are generally effective as deterrents to re-offending.
Most jurisdictions consider these factors. In New South Wales, the courts follow guidelines under the Children (Criminal Proceedings) Act 1987 (NSW), which considers young offenders. Some criticisms have been that judges often do not take sufficient account of social factors such as homelessness, family circumstances and educational needs in determining sentences for children and young people.
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REVIEW 16.6 Online quiz
Review questions
Access sample responses and results
Review 16.6 questions Explain if or when a young person must give their name and address to police officers. Define the right to silence. Outline how this can apply to children and young people. Assess why a young person might need a responsible adult present when being asked questions by the police. Describe the types of offences that can be heard in the Children’s Court. Outline the criminal matters heard in the Children’s Court. Identify the recent trends in cases heard by the Children’s Court. Describe the most common profile of an offender. Describe the role of the Children’s Court Clinic.
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1. 2. 3. 4. 5. 6. 7.
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reporting
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16.7 Alternative approaches to justice LEARNING OBJECTIVE 16.7
DESCRIBE alternative approaches to justice available to young people.
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diversion the process of channelling young people away from formal court proceedings and detention by providing alternative support services; aims to address the root causes of a young person’s behaviour and prevent the long-term negative impacts of a criminal record
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Writing focus 16.7 Conjunctions note taking – (subordinating contrast)
Diversionary programs and justice reinvestment
Diversionary programs involve diverting young people away from the formal criminal justice system so that they can avoid court appearances and the sentencing options that must be followed. Diversion has a focus on targeting support for the young person so that they stop this from happening again. In New South Wales, the Young Offenders Act 1997 (NSW) provides the main alternative program for young offenders. The Act came into force in New South Wales in 1998 and was introduced to provide various diversionary measures for young offenders and police as an alternative to traditional criminal processes and court penalties. The aim is to encourage rehabilitation, reduce rates of recidivism and reduce the burden of more minor youth offences on the court system. In this sense it is trying to minimise, where appropriate, the impacts of exposure to the criminal justice system for young offenders and to respond in a more restorative way. The Act onlyscorcher applies to summary offences and to those indictable offences that can be dealt with summarily. It does not apply to serious offences, including robbery, sexual offences or any offence resulting in a person’s death. The principles of the Act are that: • where sanctions are applied, they should be as unrestrictive as possible • children should be advised of their right to seek legal advice • criminal proceedings are not to be started if there is an appropriate alternative for dealing with the matter.
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Under the Act, children and young offenders who have committed an offence covered by the Act may proceed through a three-tiered system of diversionary processes – warnings, cautions and youth justice conferences. Table 16.7.1 How diversion works in New South Wales Method
Description
Early
Police warnings
For minor offences, police can provide an on-the-spot warning. No further action is taken.
warning a notice given to a young offender (usually for a first minor offence) that is recorded by police but with no conditions attached; the offender must be told of the nature, purpose and effect of the warning
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Middle
Police cautions
A formal notice given by police. It requires the young person to admit the offence and is a record that can be considered if they offend again.
Late
Youth justice conferences
A restorative justice process where the young person meets with the victim and support people to discuss the harm caused and agree on an “outcome plan” to repair it.
Court
Court diversion
When a matter reaches court, a judge may refer a young person to therapeutic programs (e.g. mental health or drug/alcohol treatment) instead of sentencing them to detention.
Warnings
A warning is an official notice given to a young offender by an investigating officer, without any conditions attached. The warning is relatively informal – it can be given in any place, but the officer must tell the offender the nature, purpose and effect of the warning. A warning cannot be given for an act of violence, a repeat offence or a graffiti offence. The officer must keep a record of the warning.
Cautions
Police may issue a caution to a young offender to discourage further offending. The caution is a formal, recorded alternative to prosecution where the young offender admits to the offence and consents to receiving a formal police caution. In deciding whether to give a caution, the investigating official will consider the severity of the offence, the level of violence involved, the harm caused and how many offences have been committed by the offender.
Although not a conviction, the caution may later be taken into account in the Children’s Court and so can have important consequences. Steps are to be taken to ensure that the offender understands the nature and effect of the caution, and the offender must then sign a “caution notice”. A specialist court officer or a court must make a record of a caution given by an officer or the court. Before an official caution is issued, the investigating officer may refer the matter to a specialist court officer to decide if the matter should instead be referred to a youth justice conference.
Youth justice conferences
The Young Offenders Act 1997 (NSW) also allows for youth justice conferences, which can be used when a young offender admits to an offence and consents to having it dealt with by this method. The purpose of a youth justice conference is to allow the offender to take some responsibility for their actions, to promote better family understanding of the issues, and to provide the offender with appropriate support services to help them to overcome their difficulties.
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While youth conferencing generally deals with matters that would be dealt with summarily, it can, under the Young Offenders Act 1997 (NSW), be used for some indictable offences such as robbery and aggravated break, enter and steal.
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One of the criticisms of well-intentioned laws such as the Young Offenders Act is that they are not being used for a sufficiently wide range of offences, and therefore some young offenders are missing out on the benefits that conferencing offers. The Shopfront Youth Legal Centre, in its submission in response to the NSW Law Reform Commission paper on sentencing young offenders in 2003, argued that: Youth justice conferencing is suitable for a wide range of offences, even very serious ones. It is not a “soft option”. Indeed, it could be said that conferencing works best in the case of relatively serious offences because the young offender is obliged to consider the consequences of his or her actions, in particular the harm caused to the victim. In most cases, conferencing is a more effective mechanism than court for achieving this.
Shopfront Youth Legal Centre, 2003, Submission in response to NSW Law Reform Commission paper on sentencing young offenders still holds true to the intent and approach to Youth justice conferencing.
A further criticism of the application of the provisions of the Young Offenders Act suggests that conferencing needs to be supported by additional rehabilitative measures. According to the Director of the NSW Bureau of Crime Statistics and Research, Dr Don Weatherburn, in March 2012, “the conference regime established under the Young Offenders Act 1997 (NSW) is currently no more effective than the NSW Children’s Court in reducing juvenile reoffending among persons eligible for a conference”.
Conferencing in Victoria produced lower re-offending figures, but it is also suggested that this may be influenced by the fact that youth justice conferencing in that state considers matters that are more serious, and conferencing is not as easy to dismiss as a soft option. Dr Weatherburn went on to say that “one can only speculate about the reasons for this but one possible explanation is that YJCs do not address the underlying causes of juvenile offending (e.g. drug and alcohol use, parental neglect and abuse, poor school performance, boredom and unemployment)”.
The NSW Commission for Children and Young People supported this in its submission to the Review of the Young Offenders Act 1997 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW) in December 2011. It believes the current legislation does not meet the needs of children and young people for the following reasons: • As discussed previously, recent research has revealed a greater understanding of the development of the adolescent brain until the age of 25; therefore, our understanding of the meaning of criminal responsibility for children and young people may need to be reassessed. • The attempt to combine the so called “justice” and “welfare” models of juvenile justice in the legislation has created a complex and sometimes contradictory amalgam of community-based sanctions and controls alongside formal court processes and detention. It is possible that this has led to “net widening”, as police warn, caution or refer to conferencing children who might otherwise have been dealt with informally.
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• The principles of restorative justice that underpin youth justice conferencing are contentious and there is insufficient evidence for the effectiveness of youth justice conferencing in its current form in reducing recidivism. This supports the view expressed by Dr Weatherburn.
U N SA C O M R PL R E EC PA T E G D ES
No further reviews have been undertaken of the Young Offenders Act 1997 (NSW), but similar calls for raising the age of criminal responsibility were still being reported in 2025. Further, a general shift towards understanding young offenders in a more integrated and holistic way that includes their communities and families is important to break patterns of offending.
Figure 16.7.1 Police escort a young man away during a ‘schoolies’ celebration in the Gold Coast, 2014.
Justice reinvestment
Diversionary programs actively divert young people away from court and detention when they encounter the law. Justice reinvestment, however, focuses on long-term community solutions that are locally based and led, and aim to redirect resources away from the “crisis end” of the system and into community-led prevention.
While many high-profile justice reinvestment programs in New South Wales are led by Aboriginal leaders, the underlying principles and various state-wide diversionary initiatives apply to all young people regardless of background. Examples of these are included in Table 16.7.2.
Culturally inclusive processes for Aboriginal and Torres Strait Islander Peoples In New South Wales, several alternative justice approaches and reinvestment programs operating are specifically designed to support Indigenous young people. These models move away from the traditional, adversarial court system toward restorative justice and community-led rehabilitation. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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As of 2026, the primary alternatives to mainstream criminal proceedings for Aboriginal children and young people include the following:
U N SA C O M R PL R E EC PA T E G D ES
• The Youth Koori Court is a specialised, less formal division of the Children’s Court. It does not determine guilt (you must plead or be found guilty first), but it changes how a young Aboriginal person is sentenced. The young person sits at a table with Aboriginal Elders, their family and a judge. The Court can put in place a 6- to 12-month action and support plan to address the “root causes” of offending such as housing instability, school disengagement or health issues. Youth Koori courts are currently operating in Parramatta, Surry Hills (Sydney) and Dubbo. • Circle sentencing (adult and transitioning youth) is primarily used in the Local Court for adults, but it can be appropriate for older Indigenous youth transitioning into the adult system to access community-led sentencing options. It involves a “circle” of Elders and community members who help determine a sentence that is culturally appropriate and focuses on community accountability. Table 16.7.2 outlines a range of specialised community-based programs run and controlled by Aboriginal communities that are working proactively to reduce offending and re-offending.
Table 16.7.2 Specialised community programs run by Aboriginal Community Controlled Organisations (ACCOs) Program/organsiation
Focus area
Description
Youth on Track
Early intervention
A social services scheme for 10- to 17-year-olds at risk of long-term offending. It provides intensive case management and family support.
Substance use
A group-work program specifically for Aboriginal youth that uses a cultural framework to tackle substance-related offending.
Community led
High-profile sites, such as Maranguka in Bourke, use a community-led model where by the community itself decides how to redirect resources into prevention rather than prison.
Night-time safety
A patrol and transport service that helps young people get home safely at night and connects them with youth centres.
Funded by Youth Justice NSW – delivered by various ACCOs across the state e.g. REDI.E (Regional Enterprise Development Institute) in the central west. Dthini Yuwali
Developed by Aboriginal staff within Youth Justice NSW – strictly run by Aboriginal Practice Officers and local Elders. Justice Re-investment
Foundation model is in Bourke led by Maranguka (meaning “caring for others” in Ngemba language). Safe Aboriginal Youth
Oyster Tribe Aboriginal Corporation delivers this program in several regions, including Dubbo.
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What is the aim of diversionary programs designed for children and young people? Outline the main aims of the Young Offenders Act 1997 (NSW). Explain the difference between a warning and a caution. Explain justice reinvestment programs. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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16.8 The role of non-government organisations LEARNING OBJECTIVE 16.8 download pdf
U N SA C O M R PL R E EC PA T E G D ES
IDENTIFY non-government organisations that represent the interests of young quiz questions download word people. DESCRIBE the roles non-government organisations fulfil.
As children and young people cannot vote, it is difficult at times for their voices to be heard. Some effective non-legal mechanisms keep the issues of children and young people on the political agenda. These organisations can be the first point of call, and they can either provide valuable information about a person’s rights or refer the person on to a relevant source.
Trade unions
Trade unions are organisations of workers who act together to maintain their rights to good working conditions. The Australian Council of Trade Unions provides information about pay and conditions, health and safety issues, apprenticeships widgetfor young people entering reporting the and training, and negotiatesvideo employment contracts workforce for the first time.
Writing focus 16.8 Transitional note taking phrases
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Kids Helpline
Kids Helpline is just one of many organisations from which children and young people in crisis can seek advice. It offers 24-hour free telephone and online counselling, and referral for issues such as family relationships, child abuse, mental health, bullying, drugs and alcohol, and eating and weight issues, as well as specific issues faced by quiz questions download word people from First Nations, non-English-speaking or rural backgrounds. View the Kids Helpline website for more information.
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Australian Childhood Foundation
The Australian Childhood Foundation works to educate the community about child abuse. It provides a list of services that offer help and support for people who have experienced child abuse, as well as resources for parents and others who are concerned about their own situation or want to report child abuse.
Other supporting and representative bodies
Other organisations that play a crucial role in rights-based advocacy for children and young people include the following:
• Youth Advisory Council – A group of young people who provide advice to the NSW government and the NSW Advocate for Children and Young People on issues that affect their peers • Non-government organisations and peak bodies – Organisations such as the CREATE Foundation act as peak bodies representing specific groups, including children and young people with a care experience (out-of-home care). They are
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instrumental in bringing the lived experiences of these young people to the attention of the government. • Worksite for Schools’ website – This website provides fact sheets, case studies, job profiles and other information about work that is specifically directed at young people.
Figure 16.8.1 Junior positions help young people gain workplace experience outside of school hours.
RESEARCH 16.8.1
The organisations listed below are involved in protecting the interests of children and young people. Select two organisations and find their websites. Construct a fact sheet about each organisation. • • • • • • •
NSW Advocate for Children and Young People NSW Office of the Children’s Guardian NSW Children’s Court Department of Communities and Justice Legal Aid NSW NSW Ombudsman Australian Council of Trade Unions
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Review 16.8 question 1. Discuss the strengths and weaknesses of non-government organisations in their ability to protect the rights of children. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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RESPONSIVENESS OF THE LEGAL SYSTEM Children today love luxury too much. They have execrable manners, flaunt authority, have no respect for their elders. They no longer rise when their parents or teachers enter the room. What kind of awful creatures will they be when they grow up?
U N SA C O M R PL R E EC PA T E G D ES
Socrates, 469–399 BCE
Even in Socrates’ day, adults tended to think the worst of children and young people at times. On the face of it today, the offending rate of young offenders can be reported in the media in ways that can draw a punitive response from governments under pressure from the community. The reality is that many children and young people who are neglected or abused may lack any real agency and voice in decisions that shape their lives when subject to the care and protection system.
The result of this has been the introduction by governments of more restrictive bail laws for young offenders, or only reacting when they see the extent of the crisis in matters of childcare and protection. These approaches fail to address or intervene in the root causes of what puts children and young people at risk of harm or on the road to a pattern of criminal offending.
Supporting a child or young person at risk to recalibrate or change their life trajectory for the better is complex and not a quick fix. The evidence of success of many rehabilitative and intervention programs comes when resourced adequately and implemented with fidelity. Too often, however, key decision-makers and governments, for reasons that are political, cultural or economic, predominantly keep directing their efforts once significant harm has already been perpetrated on children and young people and the communities in which they live.
16.9 Indicators of success in achieving justice LEARNING OBJECTIVE 16.9
ANALYSE the indicators used to measure the success of achieving justice for young people.
For the purposes of assessing the extent to which the legal system is effectively and equitably serving children and young people in Australia, there is a significant blend of indicators that experts and advocates look at, particularly in the youth justice and care and protection systems.
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Youth justice system Writing focus 16.9 Transitional note taking phrases
• the proportion of children in detention or remand who are unsentenced, which is usually an indicator of a system struggling to provide bail support and appropriate community alternatives • the percentage of young people diverted away from court (e.g. via cautions, warnings or restorative justice conferences), which is a primary indicator of a system successfully avoiding the “criminalisation” of minor behaviours • whether young people across different regions (especially rural/remote), genders and cultural backgrounds have equal access to rehabilitative programs, legal support and health services • the rate at which young people transition from the child protection system into the youth justice system, which is often called the “crossover” effect. A successful system would show reduced rates of entry for children already in out-of-home care • the degree of over-representation of Aboriginal and Torres Strait Islander youth at every stage of the system (police contact, arrest, bail and sentencing) compared to their proportion of the general population.
U N SA C O M R PL R E EC PA T E G D ES
reporting
Contact with the youth justice system has a high correlation for children and young people with challenges in areas such as health, housing and education. Because of this, indicators of success must go beyond simply measuring “re-offending rates”. scorcher into success can be gauged against principles including “detention as Some insights a last resort” and procedural fairness for young people. The following examples have been highlighted earlier in this chapter and include:
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The wellbeing and development of children and young people are also indicators of the most effective ways to prevent youth offending by addressing the underlying drivers of disadvantage. These include:
Figure 16.9.1 The Bush to Beach program takes children from communities in the north west of the state to experience the ocean at a three-day camp by Narrabeen Beach. The camp incentivises school attendance, expands world-views and develops confidence and self-esteem.
• school engagement and attendance and completion rates, which are some of the strongest protective factors against future justice involvement • the extent to which a young person is connected to social supports such as family, positive peer groups, communityled programs and employment/training pathways • access and exposure to early identification and appropriate support for undiagnosed conditions such as foetal alcohol spectrum disorder, attention-deficit hyperactivity disorder and trauma-related mental health issues • the number of young people in the youth justice system who are experiencing homelessness or living in unstable, insecure or unsafe housing environments.
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Care and protection system
U N SA C O M R PL R E EC PA T E G D ES
Similarly, the care and protection system has indicators that provide a measure of the extent to which things may be improving or getting worse. One of the primary goals is to keep children and young people safely with their families. However, this is not possible in many instances. Agencies such as the Department of Communities and Justice are constantly challenged in regard to having sufficient resources to respond to the need that is apparent in the community. What is known, though, is that once a child or young person encounters the care and protection system, the extent to which it has been able to protect or support them is critical. Some indicators of this include:
• the percentage of families at risk of significant harm who receive intensive support before a child is removed • whether the Department of Communities and Justice is meeting targets for physically seeing and meeting with children reported at risk (a critical failure point in previous years) • whether the entries into care are increasing or decreasing, particularly from “at-risk” cohorts • the percentage of children safely returned to their birth parents within 12 to 24 months • the number of different homes a child has lived in • the number of children who exit “out of home” care into permanent legal arrangements (guardianship orders) that provide a sense of legal and emotional security.
The workplace
Ensuring successful workplace outcomes for young people in New South Wales may require a shift from viewing them merely as “entry-level labour” to treating them as active contributors who need specific, structured support systems that assist them to be safe and supported and learning on the job. Some indicators that can be monitored include: • the percentage of working students whose combined school and work hours exceed 50 hours per week • the extent to which young people feel they can report incidences, and whether these are increasing or decreasing • the junior rate of pay for under-18s and the wage gap between a junior wage and the national minimum wage • various forms of wage theft, such as unpaid trials, the cash in hand trap with no payslip to check if penalty rates and superannuation are being paid, and not being paid for setting up or closing.
For workers under 18 in New South Wales, physical safety is the highest priority for regulators. Because minors are still developing both physically and cognitively, the law treats them as “vulnerable workers” who require a much higher “standard of care” than adults. As such, to keep young workers physically safe there should be a high supervision ratio, absence of high-risk tasks to perform, with measures of the number and type of injuries for young people collected by SafeWork NSW each year. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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U N SA C O M R PL R E EC PA T E G D ES
1. Outline some of the indicators of success in achieving justice for children and young people in the youth justice system. 2. Outline some of the indicators of success in achieving justice for children and young people in the care and protection system. 3. Outline some of the indicators of success in achieving justice for children and young people in the workplace. Go online to assign and download questions, view results and more!
16.10 Barriers to achieving justice LEARNING OBJECTIVE 16.10
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ANALYSE scorcher the barriers that prevent young people from achieving justice within the legal system.
Achieving justice for vulnerable and at-risk children and young people in New South Wales is a complex challenge characterised by systemic, social and procedural barriers. The legal and non-legal organisations and advocacy bodies that represent the interests of children and young people consistently identify that the current system often fails to address the underlying causes or barriers to achieving justice. This can and does entrench disadvantage and vulnerability and does not promote sufficient agency for young people to self-determine their lives. A child or young person’s chance of experiencing justice can be hampered by a lack of procedural transparency, a failure to listen to them and a lack of agency. There is also a tendency to prioritise rigid legal processes over their developmental needs. Experts and child advocates have argued for many years that the focus should shift towards a traumainformed, child-centric and diversionary approach for children and young people who are at risk or in trouble. Where possible it should be on support and early intervention rather than punishment or adversarial battle.
Youth justice system
reporting
Writing focus 16.10 Noun phrases note taking (develop)
There is a well-documented relationship between the child protection system and the youth justice system, which has been previously discussed. For example, children in out-of-home care are significantly over-represented in the youth justice system. A history scorcher of trauma, neglect and placement instability often creates a pathway into the criminal justice system, rather than providing the necessary stability and therapeutic support required.
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have led to a surge in the number of young people held on remand, even though detention is meant to be a measure of last resort. Despite making up a small percentage of the youth population, Aboriginal and Torres Strait Islander children and young people are disproportionately represented at every stage of the youth justice system, from policing to detention.
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Many young people entering the system have complex, unmet needs including cognitive disabilities, mental health issues and speech or language impairments. When these are not identified or supported early, it increases the likelihood of offending and re-offending. Young people often struggle to understand legal processes and their rights. They may face power imbalances when dealing with lawyers, police or judges, and often feel their voices are not heard in proceedings that directly affect their lives. While diversion programs (such as cautions or youth justice conferencing) exist, they are often under-resourced or inaccessible, particularly in rural and remote areas. Effective “upstream” interventions, such as housing stability, education support and mental health services, are frequently lacking.
The care and protection system
The care and protection system often operates in isolation from other essential services, such as mental health, housing and disability support. For example, when a family faces homelessness or a parent has a mental health crisis, the child protection system often intervenes by removing the child rather than fixing the underlying issues, such as providing adequate housing and other supports. There is a persistent over-representation of marginalised groups, particularly Indigenous children, in statutory care. This can be the result of surveillance bias and because Indigenous families are more likely to be reported and investigated for the same issues that affect non-Indigenous families, such as poverty-related neglect. When families separate, the family law system aims to determine arrangements in the “best interests of the child”. However, for many young people, this experience is marked by feelings of powerlessness and being shut out of the process.
AW16024
When parents engage in high-conflict litigation, the pressure on children, such as being asked to choose between parents, carry messages or hide information, can cause significant emotional, social and behavioural harm.
Recent efforts, such as the “Family Law 4 Kids” toolkit, highlight that children and young people want and need a more meaningful voice in decisions that shape their lives. When their perspectives are ignored or misinterpreted by adults, it undermines their sense of agency and safety.
Figure 16.10.1 Children and young people want a meaningful voice in decisions that shape their lives.
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For many young workers, the “first job” experience is often defined by a lack of awareness regarding what is legal. The Fair Work Ombudsman, for example, stated that many young people (and their employers) often operate under false beliefs that “flat rates” are okay if the worker agrees or that “unpaid trials” can last for weeks. In industries such as accommodation, food services and retail, young workers can be more vulnerable and at risk of wage theft.
U N SA C O M R PL R E EC PA T E G D ES
In a tight job market, young people often feel lucky to have a job. This creates a psychological barrier where they fear that speaking up will lead to reduced shifts or termination, especially given the insecurity of casual work.
Modern workplaces are increasingly being scrutinised for “psychosocial hazards” (bullying, harassment and stress). For a young person, proving a mental health injury caused by a toxic culture is legally more difficult and invasive than proving a physical injury. Young workers, particularly in trades and labouring, often face a “tough it out” culture. Admitting to a back strain or a repetitive strain injury can be seen as a sign of weakness or a reason to be passed over for future shifts. As a result, many young workers do not report minor injuries because they may feel it is a part of the job.
Some employers fail to provide thorough training on safety procedures, the use of PPE (personal protective equipment) or how to operate machinery, which leaves the worker unprotected.
RESEARCH 16.10.1
Review the indicators of success and barriers to achieving justice. Research a number of bodies or advocacy groups mentioned in this chapter and describe the extent to which outcomes for children and young people are improving. Refine your research to the Youth Justice System or undertake a broader approach on a number of indicators and their barriers. Following is a list of organisations to support your research. Government or statutory organisation Organisation
Focus area
Research URL
Australian Institute of Health and Welfare
The primary source for national data on youth justice supervision and child protection
aihw.gov.au/reports-data
Australian Human Rights Commission
Reports on human rights breaches, including the National Children’s Commissioner’s “Help Way Earlier!” report
humanrights.gov.au/our-work/ childrens-rights
ABS: Crime and justice statistics
National data on recorded crime, offenders and court outcomes
abs.gov.au/statistics/people/ crime-and-justice
Bureau of Crime Statistics and Research
Use their “Youth Crime” topic area for statistics on re-offending, police proceedings and the use of the Young Offenders Act
bocsar.nsw.gov.au/topic-areas/ young-people
National Commission for First Peoples Children
(Newly established in 2024–2025) Focuses on Closing the Gap Target 11 & 12
dss.gov.au/families-and-children
Advocate for Children and Young People
Conducts specialised inquiries, such as the Special Inquiry into Children and Young People in Alternative Care Arrangements
acyp.nsw.gov.au/acyp-reports
NSW Department of Communities and Justice
Provides “Child Protection and OOHC Heat Maps” and annual reports on child deaths known to the system
dcj.nsw.gov.au/resources/ statistics
NSW Ombudsman
Provides independent oversight of youth justice centres and monitors the “Joint Child Protection Response Program”
ombo.nsw.gov.au/news-andpublications
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Non-government organisations Focus area
Research URL
SNAICC (Family Matters)
Peak body for Indigenous children; their “Family Matters” report is the gold standard for care system assessment
snaicc.org.au/family-matters
UNICEF Australia
Produces the “Children’s Wellbeing Index” and policy submissions on the age of criminal responsibility
unicef.org.au/policy-submissions
Youthlaw
Focuses on legal rights and provides international comparative research on youth justice models
youthlaw.asn.au/changing-the-law
The Smith Family
While focused on education, it provides data on how systemic gaps in care lead to poor life outcomes
thesmithfamily.com.au/research
Human Rights Watch Australia
Investigates conditions within youth detention centres and reports on rights violations
thesmithfamily.com.au/research
Aboriginal Legal Service (NSW/ ACT)
Essential for research on Aboriginal over-representation and the effectiveness of the Youth Koori Court
alsnswact.org.au/publications
Legal Aid NSW (Children’s Legal Service)
Publishes papers on the legal needs of young people and the impact of bail laws on youth detention rates
legalaid.nsw.gov.au/about-us/ reports
Youth Action NSW
Peak body for young people in New South Wales; their “Fair Go for Young People” report (2024) assesses system gaps
youthaction.org.au/research
Yfoundations
Focuses on the link between youth homelessness and the justice system (the “out of home care to prison” pipeline)
yfoundations.org.au/research
Law and Justice Foundation of NSW
Justice reports on how disadvantaged youth access (or fail to access) legal help
lawfoundation.net.au/our-research
U N SA C O M R PL R E EC PA T E G D ES
Organisation
Some research tips
1. Look for “crossover” data: search specifically for data linking youth justice and child protection. 2. Closing the Gap: Use the Closing the Gap information to see if specific justice targets (Target 11) and out-of-home care targets (Target 12) are being met. 3. State-specific reports: Each state has a Children’s Commissioner or Guardian (e.g. the Advocate for Children and Young People in New South Wales) which publishes independent annual reports on the state of the local system.
REVIEW 16.10 Online quiz
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Review 16.10 questions 1. 2. 3. 4.
Across the legal system, what are the systemic barriers for children and young people in achieving justice? Describe some of the barriers to children and young people achieving justice in the youth justice system. Describe some of the barriers to children and young people achieving justice in the care and protection system. Describe some of the barriers to children and young people achieving justice in the workplace.
Go online to assign and download questions, view results and more!
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The law generally defines a child as a person under the age of 16, and a young person as one aged between 16 and 18. The law distinguishes the need to protect children and young people due to their inherent vulnerability, as they are still developing physically and emotionally, and the long-term adverse outcomes that can affect a person from all instances of abuse and neglect. Young people usually encounter the legal system through the youth justice system, the care and protection system, or through the everyday activities of driving or working. The Convention on the Rights of the Child was an important development in promoting the rights of children and young people. It is the most signed of all international treaties. Children and young people are given special consideration in respect to criminal law, which takes into account the age of the offender at the time of the offence. Doli incapax is the presumption that children under a certain age cannot be held legally responsible for their actions and so cannot be guilty of an offence. In New South Wales this age under 10 years. Other jurisdictions in Australia have higher ages and there are calls for New South Wales to increase this due to the better understanding of the evolving capacity of children. The Young Offenders Act 1997 (NSW) provides diversionary measures for young offenders who have committed summary offences and some indictable offences. The United Nations Committee on the Rights of the Child oversees the implementation of the Convention on the Rights of the Child. It can provide protections to children and young people if articles of the convention are ratified into Australian law. The NSW Advocate for Children and Young People is an independent body that conducts research related to children and young people. The Office of the Children’s Guardian monitors out-of-home care in New South Wales and non-government adoption service providers. It also conducts “working with children” checks. The Children’s Court has a dual role with respect to children and young people. It hears criminal matters relating to young offenders as well as care applications for children and young people considered to be at risk of harm. The Department of Communities and Justice investigates reports of children considered at risk of harm. There are a range of protections for children and young people under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) when they come into contact with police and the criminal investigative process.
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A significant percentage of young people in the NSW justice system have also had prior or current contact with the child protection system. Diversionary programs are specific programs that actively divert young people away from court and detention when they come into contact with the law. Justice reinvestment, however, focuses on long-term community solutions that are locally based and led. Non-legal mechanisms for protecting the rights of children and young people include counselling services and other community organisations.
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Multiple-choice questions
1. Which of the following is a feature of doli incapax in New South Wales? A. Children and young people are responsible for their crimes from the age of 14. B. There are certain crimes for which children and young people are not responsible. C. Children under the age of 10 years are not responsible for their crimes. D. People with mental disabilities are not responsible for their crimes. 2. Which of the following is the best definition of a “young person”? A. A young person is a person under the age of 16 years. B. A young person is a person between the ages of 12 and 16 years. C. A young person is a person aged between 16 and 18 years. D. A young person is a person under 10 years of age.
3. Which of the following statements best describes Australia’s obligations under the United Nations Convention on the Rights of the Child (1989)? A. Laws must be passed within Australia to implement all the Convention’s provisions. B. Australia can pass whatever laws it chooses to, as it is a sovereign state. C. Australia can pass whatever laws it chooses to, as it is a sovereign state, but it is obliged to pass laws to implement the provisions contained in the Convention. D. Australia will pass laws recommended by the UN General Assembly.
4. Which of the following bodies monitors the mandatory screening of applicants for jobs in childcare? A. Australian Council of Trade Unions B. Communities and Justice C. NSW Office of the Children’s Guardian D. Committee on the Rights of the Child 5. Which of the following best describes a “procedural barrier” that specifically affects the ability of children and young people to achieve justice within the youth justice system? A. The lack of physical accessibility to courtrooms and legal buildings for minors B. The use of complex legal terminology and formal “court craft” that exceeds the developmental linguistic capacity of the young person C. The mandatory requirement for a parent or guardian to be present during all police interviews and legal proceedings D. The higher statistical likelihood of young people committing “status offences” compared to adults
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Short-answer questions 1. What is the aim of the Children (Protection and Parental Responsibility) Act 1997 (NSW)? 2. Explain how the Young Offenders Act 1997 (NSW) is unique compared to other approaches used in the youth justice system. 3. Identify at least two non-legal mechanisms that advocate and promote the rights of children and young people.
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4. What are some indicators of success for children and young people achieving justice? 5. What are some of the barriers for children and young people achieving justice?
Extended-response question
Video 16.11.1 Answering an exam question
Critically evaluate how the legal system responds to young people when they encounter the youth justice system. Refer to strategies for crime prevention, issues surrounding arrest and detention, diversionary schemes and court proceedings for young people. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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17 CHAPTER
Aboriginal and Torres Strait Islander Peoples
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This digital chapter can be accessed via Cambridge GO
LESSONS
17.1
Introduction
17.2
The need for protection under the law
17.3
Reasons for encountering the legal system
17.4
Issues arising from contact with the law
17.5
Protection under the law
17.6
Advocates for rights
17.7
Contact with legal processes
17.8
Alternative approaches to justice
17.9
Non-government organisations that represent interests
17.10 Indicators of success in achieving justice 17.11 Barriers to achieving justice
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18
Asylum seekers, refugees or migrants
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CHAPTER
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: • •
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describe the reasons asylum seekers, refugees or migrants may need protection under the law describe the reasons for which asylum seekers, refugees or migrants encounter the legal system explain the issues asylum seekers, refugees or migrants experience when they have contact with the law outline the international and domestic legal protections for asylum seekers, refugees or migrants describe the functions of authorities that advocate for and protect the rights of asylum seekers, refugees or migrants describe how asylum seekers, refugees or migrants encounter legal processes, including law enforcement agencies, courts or tribunals) and dispute resolution methods describe alternative approaches to justice available to asylum seekers, refugees or migrants identify non-government organisations that represent the interests of asylum seekers, refugees or migrants describe the roles non-government organisations fulfil for asylum seekers, refugees or migrants analyse the indicators used to measure the success of achieving justice for asylum seekers, refugees or migrants analyse the barriers that prevent asylum seekers, refugees or migrants from achieving justice in the legal system.
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RELEVANT LAW
IMPORTANT LEGISLATION
Migration Act 1958 (Cth) Racial Discrimination Act 1975 (Cth) Anti-Discrimination Act 1977 (NSW) Australian Human Rights Commission Act 1986 (Cth)
Extradition Act 1988 (Cth) Discrimination Act 1991 (ACT) Racial Hatred Act 1995 (Cth) Australian Citizenship Act 2007 (Cth)
INTERNATIONAL TREATIES, PROTOCOLS AND CONVENTIONS
Convention relating to the Status of Refugees [1951] International Convention on the Elimination of All Forms of Racial Discrimination [1965]
SIGNIFICANT CASES
A v Australia [1997] CCPR/C/59/D/560/1993 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] 280 CLR 137 ASF17 v Commonwealth of Australia [2024] 282 CLR 172 CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8 (CZA19) Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] 176 CLR 1 M61/M69 v Commonwealth of Australia [2010] 243 CLR 319 Plaintiff M70 v Minister for Immigration and Citizenship [2011] 244 CLR 144 SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 EIF21 v Minister for Home Affairs [2023] FCA 88 Minister for Immigration and Border Protection v SZTAL [2022] FCA 1314
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A note on this chapter
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Australia welcomes both short-term and long-term visitors, with some seeking to settle permanently as migrants. While most follow legal migration processes, some enter or remain without proper permission and are considered non-legal or undocumented migrants. These individuals often face limited access to services, risk detention or deportation, and may be exploited. Despite Australia’s long history of migration and multiculturalism, newcomers have not always been treated equally under the law and have experienced various disadvantages.
Authorities base their policies on the belief that maintaining a peaceful society requires immigration laws that balance migrants’ rights and needs with public concerns about the number and types of migrants granted visas and residency. This area of law, known as immigration law, governs these processes. This chapter will examine the different types of migrants – including asylum seekers, refugees and other migrants – and the legal protections offered and challenges they face within the Australian legal system.
What is the difference between a migrant, an asylum seeker and a refugee?
Since asylum seekers, refugees and migrants all move from their home country to another, we might wonder why they are not all simply called migrants. The reason is that asylum seekers and refugees differ from other migrants in their legal status. They also differ in their reasons for moving, such as forced displacement (involuntary) versus opportunity-driven (voluntary) migration. Misusing these terms can affect the rights and protections to which they are entitled.
forced displacement involuntary movement of people from their home due conflict, human rights abuses and climate-based events
persecution mistreatment of a person or group of people due to a particular characteristic such as race, religion or political beliefs
A migrant is someone who moves from one place to another, often from one country to another, to live or work either temporarily or permanently. People migrate for various reasons including employment, education, safety or the pursuit of better living conditions.
An asylum seeker is a person who leaves their home country and seeks protection from another country because they fear harm or mistreatment at home. They await a decision from the new country’s government on whether they can remain safely. A refugee is similar in that they have been forced to flee their home due to danger, such as war, violence or persecution, and they seek safety in another country. Refugees typically receive support through resettlement programs in the country that accepts them.
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ASYLUM SEEKERS
Additional support for the depth studies, including a dedicated section on research skills, is available in the Interactive Textbook.
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ASYLUM SEEKERS – THE NATURE OF THE EXPERIENCE 18.1 The need for protection under the law note taking
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LEARNING OBJECTIVE 18.1
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DESCRIBE the reasons asylum seekers may need protection under the law.
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Asylum seekers are individuals who have fled their home countries due to fear of persecution, war or violence and are seeking protection in another country. However, unlike refugees, their claims for protection have not yet been legally recognised. When asylum seekers arrive in a new country, such as Australia, they submit applications to be granted refugee status. During the assessment period, which can be lengthy, they often live with uncertainty about their future. This uncertainty may limit their access to work, healthcare, education and other social services. Many asylum seekers also face challenges such as language barriers, psychological trauma from the experiences that forced them to flee and, sometimes, detention under immigration regulations. International laws, such as those established by the 1951 Refugee Convention, require countries to ensure asylum seekers are not returned to places where they would face serious danger.
Australia and asylum seekers
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Australia’s main migration law is the Migration Act 1958 (Cth). It controls migration by setting visa rules, managing who can enter and stay, allowing detention if needed, enforcing visa conditions and processing asylum claims. scorcher Australia’s asylum seeker policies have attracted both support and criticism. This is because these policies contain sections designed to deter irregular arrivals. To achieve this goal, the policies include mandatory and indefinite detention, offshore processing and restrictions on basic rights. Anyone arriving without a valid visa is automatically detained, often for extended periods.
Asylum seekers arrive in Australia either by entering on valid visas (such as tourist visas) and then applying for asylum, or by arriving by boat without visas. Those without proper visas are called “unauthorised non-citizens” or “irregular maritime arrivals” (for boat arrivals) by the government. Legally, they are classified as “unlawful non-citizens” and are often referred to as asylum seekers if they claim persecution. Terminology varies based on their arrival method, but all may be detained while their claims are assessed. Since 2012, boat arrivals have been sent to offshore centres in Nauru, and previously Papua New Guinea, where refugees cannot gain permanent residency. These centres have faced criticism for poor conditions including abuse, neglect and serious mental
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health issues, which has raised concerns about violations of international human rights. Policies such as “no advantage” and “fast track” result in long processing times and ongoing uncertainty, especially for those with prolonged cases.
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Beyond detention, unauthorised non-citizens face strict restrictions, including limited or no work rights, income support, housing and social services. Legal aid access is often limited, making immigration processes difficult to navigate. Also, freedom of movement is restricted, with many required to meet strict reporting obligations.
Need for protection
Figure 18.1.1 Australian policy is aimed at stopping
Asylum seekers need protection under the law because unauthorised arrivals to Australia. they have fled their home countries, and without legal protection they risk being returned to situations where their life or freedom could be endangered. Ensuring their safety is a fundamental reason for granting them protection. International human rights law, including the 1951 Refugee Convention and the 1967 Protocol, requires countries to protect asylum seekers and refugees from refoulement – the forced return to danger. Countries must also ensure their rights and dignity are upheld, a legal responsibility on nations to provide a safe haven during their assessment process.
Legal protection ensures asylum seekers have fair processes to assess their refugee claims according to law, preventing unfair treatment. It also grants access to essential services, such as healthcare, education and legal aid, which support their wellbeing. These protections promote humane treatment, prevent exploit, uphold legal obligations, and foster social stability and inclusion.
refoulement the forced return of refugees or asylum seekers to a place or country where they may be persecuted or placed in life-threatening situations exploit to unfairly treat or take advantage of someone for personal gain such as illegal work or criminal activity
Although Australia provides legal protections for asylum seekers in line with its international commitments, strict policies, such as mandatory detention, offshore processing, and limited access to work and support, restrict their rights. Although legal reviews and appeals are allowed, these measures often limit fairness and humane treatment, which draws criticism.
Asylum seekers and visa protections
In the Australian immigration system, different types of temporary visas help manage the status of asylum seekers during and after the assessment of their protection claims. Bridging visas are temporary visas granted to asylum seekers who are physically
present in Australia while their protection visa applications are being processed. These visas allow lawful stay during this period but do not grant permanent residency. Work and study rights vary based on individual conditions, and visa holders must comply with all rules and reporting requirements. Importantly, bridging visas are not issued to asylum seekers applying from outside Australia.
bridging visa a visa granted to asylum seekers to allow them to stay in Australia while their application for a protection visa is being assessed
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temporary protection visa a visa granted to asylum seekers for a limited time, while providing temporary residence and protection
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humanitarian to reduce human suffering, protect human dignity and promote human welfare
Temporary protection visas, on the other hand, are granted to some asylum seekers whose refugee claims have been recognised, but only for a limited duration. Temporary protection visas provide temporary residence and protection, although with more restricted rights than permanent visas. These include limited access to social services, work rights and family reunification opportunities. Temporary protection visas are designed to offer humanitarian protection while allowing flexibility in immigration management.
REVIEW 18.1 Online quiz
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Review 18.1 questions
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note taking scorcher Outline the term “asylum seeker”. Explain how it differs from a refugee. Explain why asylum seekers face uncertainty regarding their future when they arrive in a new country. Identify two international instruments that protect asylum seekers and summarise one protection from each. Describe the purpose of bridging visas and temporary protection visas. Explain why legal protection is essential during the refugee status determination process. Assess the extent to which Australia’s approach meets its international protection obligations.
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18.2 Reasons for encountering the legal system LEARNING OBJECTIVE 18.2
DESCRIBE the reasons for which asylum seekers encounter the legal system.
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Writing focus 18.2 Conjunctions note taking – (subordinating contrast)
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Asylum seekers may encounter the law due to their status, movement and the processes involved in seeking protection. Often fleeing urgent danger, they may enter a country without standard immigration documents or permits. This may lead to interactions with immigration authorities through non-traditional ways. Additionally, asylum seekers engage with the legal system when formally applying for scorcher refugee status, which requires submitting claims, attending interviews and following procedures established by government agencies. Their applications are assessed under national and international laws to determine eligibility for protection. Asylum seekers may face legal issues related to detention if held in immigration centres while their claims are processed. They also often require legal representation while in detention. They may also encounter challenges involving employment restrictions, access to healthcare, social services, housing or welfare, all which require navigating the legal system. In rare cases, misunderstandings or violations
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of local laws – due to cultural differences or lack of information – can lead to legal consequences. Access to legal advice is essential for asylum seekers to understand their obligations and protect their rights.
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Online quiz
Review 18.2 questions 1. 2. 3. 4. 5.
Identify two common reasons why asylum seekers encounter the Australian legal system. Outline how applying for refugee status brings asylum seekers into legal processes. Describe how detention can lead asylum seekers to engage with legal supports or processes. Explain why asylum seekers may face extra legal challenges related to services such as work, healthcare and housing. Discuss how language barriers and unfamiliaritywidget with Australian laws can affect asylum seekers’ ability to navigate video reporting note taking legal processes.
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18.3 Issues arising from contact with the law quiz
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LEARNING OBJECTIVE 18.3
EXPLAIN the issues asylum seekers experience when they have contact with the law.
When asylum seekers encounter the legal system in Australia, several challenges can affect their wellbeing and ability to move through the process effectively. One key factor is how they arrive in the country. People in special humanitarian need who wish to live permanently in Australia can apply to migrate on humanitarian grounds. The Department of Home Affairs runs a refugee program to help people overseas in humanitarian need resettle, fulfilling Australia’s Refugee Convention obligations. Humanitarian visa quotas are set based on global events, such as offering 4,125 places to Afghan nationals until 2026 and video widget reporting allowing 280 migrants from Tuvalu anually due to environmental issues. However, asylum seekers must be officially recognised as refugees to access this program.
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If asylum seekers arrive without being granted refugee status they will need to prove they are refugees or meet other humanitarian criteria in order to be granted a protection visa. A protection visa allows them to become permanent residents, but they may be held in immigration detention centres while their claim is processed. This detention can lead to serious mental and physical health issues due to isolation, uncertainty and sometimes inadequate living conditions. quiz
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Another significant challenge is the complexity of the legal procedures. Many asylum seekers face language barriers, unfamiliarity with the legal system and limited access to legal help. These factors can cause misunderstandings, incomplete applications or missed deadlines, putting their chances of protection at risk. Discrimination or unfair treatment may arise during the legal process when biases or cultural misunderstandings affect claim assessments, which can lead to unjust decisions that overlook true protection needs.
Asylum seekers often face limited access to essential services such as healthcare, education and social support, while their status remains unresolved. Restrictions on work and freedom of movement can increase their risk of exploitation and poverty. Moreover, the ongoing fear of deportation to unsafe countries causes significant stress and anxiety, which can prevent them from fully engaging in the legal process or seeking necessary help, putting their rights and safety at risk.
Figure 18.3.1 Refugees held in detention are released after being granted bridging visas, 21 January 2021.
Figure 18.3.2 Villawood Immigration Detention Centre
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Identify two legal challenges that asylum seekers may experience when they arrive in Australia. Outline how detention can affect the wellbeing of asylum seekers. Describe why the complexity of legal procedures can make it difficult for asylum seekers to present their claims. Explain how discrimination or cultural misunderstandings may influence decisions made about asylum claims. Discuss how limited access to work rights and essential services can increase vulnerability for asylum seekers during their legal processes.
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ASYLUM SEEKERS video – ACCESS widget TO JUSTICE reporting
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In Australia, asylum seekers have access to justice through a range of legal protections, processes and support services designed to assess their claims and uphold their rights, although, as already seen, challenges remain.
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18.4 Protection under the law quiz
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LEARNING OBJECTIVE 18.4
OUTLINE the international and domestic legal protections for asylum seekers.
Asylum seekers in Australia are protected under both domestic and international laws, which establish their rights and outline the country’s obligations to provide protection.
International law protections
Australia is a signatory to several important international treaties that establish the rights of asylum seekers and set out the country’s obligations to protect them. video widget 1951 Refugee Convention and 1967 Protocol
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Australia is bound by the 1951 Refugee Convention and 1967 Protocol, which define what a refugee is and prohibit returning them to danger (non-refoulement). These treaties require Australia to fairly assess asylum claims and protect individuals from persecution based on specific grounds.
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By being party to these agreements, Australia is legally obligated to assess asylum claims fairly and not return individuals to danger. quizCivil and Political questionsRights International Covenant on
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Australia is also bound by human rights treaties such as the International Covenant on Civil and Political Rights, which guarantees fundamental rights, including the right to life, freedom from torture or cruel treatment, and the right to a fair hearing. These protections apply to all individuals within Australia, including asylum seekers.
Convention Against Torture
Australia must not return asylum seekers to countries where they face a real risk of torture or cruel, inhumane or degrading treatment or punishment.
Domestic law protections Australia’s domestic legal framework implements these international obligations and establishes detailed procedures for processing asylum seekers.
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Migration Act 1958 (Cth) The Migration Act 1958 (Cth) is Australia’s primary law on immigration and asylum, establishing rules for protection visa applications and claim assessments. It allows rejected applicants to appeal decisions and permits mandatory detention of unlawful non-citizens, including some asylum seekers, during processing. Some asylum seekers may be granted bridging visas with limited rights while their claims are reviewed.
Australian human rights frameworks
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While Australia does not have a comprehensive national bill of rights, various instruments support asylum seekers’ rights. The Australian Human Rights Commission (AHRC) handles complaints about discrimination and human rights violations against asylum seekers, and is supported by laws including the Disability Discrimination Act 1992 (Cth) and Racial Discrimination Act 1975 (Cth), which provide additional protections.
Legal safeguards and access to justice
Domestic law guarantees procedural fairness for asylum seekers by providing legal representation, interpretation services, opportunities for judicial review and protection of sensitive information during visa applications and appeals.
Social and welfare support
Figure 18.4.1 Many refugees have settled in Tamworth, which provides cultural and migrant services and is home to people from more than 80 different nationalities.
Various government programs and community organisations provide support to asylum seekers, including access to basic healthcare, legal aid and temporary accommodation. However, access to these can depend on visa status and location (e.g. onshore versus offshore detention centres).
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Identify some common challenges asylum seekers encounter while their claims are being assessed. Identify key international treaties that protect asylum seekers in Australia. Summarise their main provisions. Describe one way that domestic law in Australia protects asylum seekers during the visa assessment process. Explain how the Australian Human Rights Commission helps protect the rights of asylum seekers. Outline Australia’s asylum seeker policies. Discuss reasons why these policies have attracted both support and criticism. Discuss how legal safeguards, such as access to interpreters or legal representation, support asylum seekers’ ability to participate in protection processes.
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18.5 Authorities that advocate for rights LEARNING OBJECTIVE 18.5 DESCRIBE the functions of authorities that advocate for and protect the rights of asylum seekers. questions
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Navigating Australia’s migration and refugee system is difficult for asylum seekers, especially due to unfamiliar legal processes and language barriers. Legal representation is vital, as lawyers help asylum seekers understand their rights, prepare claims and represent them in hearings. Since many cannot afford private lawyers, there is a need to access authorities that advocate for the rights of asylum seekers. These authorities include both government and nongovernment bodies.
Government bodies
Australian Human Rights Commission
The AHRC is an independent statutory body dedicated to promoting and protecting human rights throughout Australia, including those of asylum video widget reporting seekers and refugees. It investigates complaints of discrimination and mistreatment, reviews systemic issues, such as immigration detention conditions, and assesses asylum seekers’ access to essential services. The AHRC also advises the government on human rights, leads public education campaigns about asylum seeker rights and reports to international bodies, such as the United Nations, on Australia’s human rights commitments. An example of the AHRC’s advocacy is seen in the case of A v Australia (1997) CCPR/C/59/D/560/1993, where an asylum seeker challenged their detention as quiz questions download word arbitrary and a violation of their rights under the International Covenant on Civil and Political Rights. The Human Rights Committee ruled that Australia breached Article 9 by detaining the individual without proper legal safeguards or timely review. This decision emphasised the importance of lawful, fair and humane treatment of detained asylum seekers and influenced debates around Australia’s mandatory detention policies.
Writing focus 18.5 Transitional note taking phrases
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systemic something that relate to a whole group, organisation, government department rather than just one part
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Commonwealth Ombudsman
The Commonwealth Ombudsman monitors Australian government agencies, such as the Department of Home Affairs, by investigating asylum seeker complaints about visa processing, detention and administrative decisions. It ensures fairness, addresses procedural errors, recommends policy improvements, and publishes reports on detention conditions and systemic issues affecting asylum seekers.
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Non-government organisations Refugee Council of Australia The Refugee Council of Australia advocates for asylum seekers by conducting policy research, promoting human rights and publishing reports on migration, detention, family reunification and settlement. It informs policy-makers and the public, influences policy reform, and unites refugee and community groups to support refugee rights.
U N SA C O M R PL R E EC PA T E G D ES
Asylum Seeker Resource Centre
The Asylum Seeker Resource Centre is an active provider of practical assistance to asylum seekers. It gives vital legal aid for navigating complex visa applications and appeals processes, alongside making access to healthcare and mental health services easier. The Asylum Seeker Resource Centre also supplies emergency assistance, including food, housing support and case management. Beyond service delivery, the centre actively campaigns against restrictive immigration policies and raises public awareness about the humanitarian needs of asylum seekers. Through education and community programs, it promotes social inclusion and works to reduce stigma surrounding asylum seekers.
Figure 18.5.1 Volunteers from the Asylum Seeker Resource Centre giving away free hot potatoes in 2013. The Hot Potato Van visited 10 towns, having one-on-one conversations with Australians across two states to bust the 10 most common myths about asylum seekers arriving by boat.
Australian Red Cross
The Australian Red Cross plays an essential humanitarian role in supporting asylum seekers. It runs outreach programs within detention centres and local communities, offering psychosocial support, family tracing services and emergency relief. The organisation advocates for humane treatment, drawing attention to the harmful effects of indefinite detention and its mental health impacts. Its work involves contributing to policy discussions, conducting research to inform improvements, and collaborating with legal and welfare organisations to strengthen protection frameworks for asylum seekers.
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offshore processing. They advocate to end indefinite detention, ensure fair asylum procedures, uphold non-refoulement, and raise awareness through media, petitions and government engagement.
International agencies United Nations High Commissioner for Refugees
U N SA C O M R PL R E EC PA T E G D ES
The United Nations High Commissioner for Refugees (UNHCR) protects refugees worldwide and advises Australia on applying the 1951 Refugee Convention. It monitors asylum seeker conditions, advocates for alternatives to detention, supports resettlement, and works with non-government organisations (NGOs) to improve community integration and services.
Figure 18.5.2 An Australian UNHCR representative discusses how they support refugees.
REVIEW 18.5 Online quiz
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Review 18.5 questions 1. 2. 3. 4. 5.
Identify two government bodies that help protect the rights of asylum seekers in Australia. Describe the role of the Australian Human Rights Commission in supporting asylum seekers. Outline how the Commonwealth Ombudsman assists asylum seekers who have concerns about immigration processes. Explain how non-government organisations support asylum seekers when navigating complex legal processes. Discuss why advocacy from both government bodies and non-government organisations is important for ensuring asylum seekers can access justice.
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18.6 Contact with legal processes LEARNING OBJECTIVE 18.6
reporting
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE how asylum seekers encounter legal processes, including law enforcement agencies, courts or tribunals, and dispute resolution methods.
Writing focus 18.6 Transitional note taking phrases
arbitrary detention detaining an individual when there is no evidence or reason for detaining them and there has been no due process of the law
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In Australia, asylum seekers engage with various legal processes as part of their journey to seek protection. These interactions involve submitting applications, undergoing assessments and sometimes challenging decisions through courts or tribunals. Law enforcement agencies, administrative bodies and dispute resolution scorcher mechanisms play important roles in managing and reviewing their claims, ensuring that their rights are protected and that decisions are fair and lawful.
Initial application and immigration processes
When asylum seekers arrive in Australia, they usually notify immigration officials of their intention to seek protection. This begins with lodging a formal application for a protection visa with the Department of Home Affairs. Their claim is assessed to determine if they qualify as refugees under Australian law and international agreements such as the 1951 Refugee Convention. The process includes detailed interviews, where asylum seekers explain the reasons they fear returning to their home country. Authorities also carry out background, security and health checks to verify identity and assess eligibility.
Interaction with law enforcement agencies
On arrival, many asylum seekers are detained by immigration officials, especially if they arrive without valid visas or documents. Detention is used to verify identity, health and security status while their claims are processed. Australian immigration law has historically included a policy of mandatory detention for unauthorised arrivals to manage immigration and security risks. Law enforcement officers, such as the police and immigration officials, may also be involved if there are concerns about safety or breaches of immigration law. It is important that any form of detention complies with legal safeguards to prevent unlawful or arbitrary detention and ensures detainees have access to legal review and representation.
Figure 18.6.1 Activists rally for the release of asylum seekers at the Park hotel in Melbourne on 6 January 2022. Australian detention centres have often courted controversy over human rights violations. Prior to a High Court ruling in November 2023, the legal framework allowed the government to detain people indefinitely. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Appeals and review before courts and tribunals Asylum seekers in Australia can appeal refused protection claims through specialised courts and tribunals. These reviews ensure decisions are fair, thorough and comply with legal and humanitarian standards, thus protecting asylum seekers’ rights.
Administrative Review Tribunal
U N SA C O M R PL R E EC PA T E G D ES
If an asylum seeker’s claim is refused by the Department of Home Affairs, they can potentially seek review by the Administrative Review Tribunal, which reassesses decisions, allows new evidence and provides legal support. Administrative Review Tribunal decisions can sometimes be further challenged in court.
Federal Court and Federal Circuit Court
If administrative reviews do not resolve the case, asylum seekers can pursue judicial review in courts such as the Federal Court or Federal Circuit Court. Judicial review focuses on whether the original decision was made according to the law and proper procedures, rather than re-examining the facts of the claim. Courts examine issues including procedural fairness, legal errors and whether decision-makers acted beyond their authority. This legal safeguard helps ensure asylum seekers are protected from unlawful or unfair decisions and that government authorities remain accountable.
High Court of Australia
The High Court of Australia serves as the final court of appeal for asylum seekers, hearing cases only after all other review avenues have been exhausted and special leave (permission) to appeal has been granted. It primarily addresses significant legal or constitutional issues rather than routine asylum claims. The High Court does not conduct merits review or re-examine factual evidence but focuses on important legal questions, such as the correct interpretation of the Migration Act, the application of protections under the 1951 Refugee Convention, and the lawfulness of detention and removal practices. Through its authoritative decisions on matters such as refugee status, procedural fairness and government detention powers, the High Court provides essential guidance that ensures the consistent and lawful treatment of asylum seekers, which aligns Australia’s domestic laws Figure 18.6.2 Family lawyer Carina Ford speaks to media on 4 September, with its international obligations. Appeals to 2019 after the Federal Court in Melbourne granted temporary visas to the High Court are rare and typically involve a family of four Tamil asylum seekers from Sri Lanka. Their case was complex or precedent-setting legal matters. subject to multiple judicial reviews (see Case study 18.8.1 for more detail).
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CASE STUDY 18.6.1 High Court of Australia watershed asylum seeker cases
U N SA C O M R PL R E EC PA T E G D ES
Despite the High Court being mainly inaccessible to most asylum seekers, it has made rulings on some cases that have significantly shaped the legal framework surrounding asylum seeker detention and rights in Australia. It has done this by balancing government powers with constitutional safeguards to protect non-citizens from indefinite or punitive detention.
In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (2023) 280 CLR 137, the High Court said it is illegal to keep someone in immigration detention forever. This was a big change because, before this case, the law allowed indefinite detention. The High Court Figure 18.6.3 High Court of Australia said if there is no good chance that a person can be sent out of Australia soon, keeping them locked up is like punishment, which is not allowed. Because of this decision, about 140 people were let out of detention in late 2023. In ASF17 v Commonwealth of Australia (Case no P7/2024), the High Court made it clear that detention is acceptable if the person could help with their removal but refuses to cooperate. This means people cannot get themselves released just by not signing papers or refusing to help with sending themselves back to their home country.
In CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8 (CZA19), the High Court ruled that it is legal to keep asylum seekers in detention while their visa applications are being decided, even if there is no immediate chance of sending them out. So, the rule from the NZYQ case about needing a “real chance” of removal does not apply while their visa request is still being considered. The case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 set an important rule that still applies today. The High Court said the government can only detain people to handle their visa or deportation process, but not as a form of punishment. This idea helps decide if detention is allowed or if it has become unfair punishment.
The M61/M69 v Commonwealth of Australia (2010) 243 CLR 319 case, also called the “Offshore Processing Case”, said that asylum seekers held on Christmas Island have the right to fair treatment and review of their cases under Australian law. This stopped offshore detention places from being outside the law. In Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144, known as the “Malaysia Solution” case, the High Court stopped the government’s plan to send people to Malaysia because Malaysia did not have proper laws to protect asylum seekers. The High Court said the government cannot send people to a country unless that country is safe for them.
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IN COURT 18.6.1 SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
U N SA C O M R PL R E EC PA T E G D ES
SZKCQ, a Pakistani national, said that he feared persecution because of his membership of, and profile within, the Pakistani People’s Party (PPP). He had applied to the Federal Circuit Court to review a decision made by the former Refugee Review Tribunal (RRT), but this was dismissed on the basis that Australia did not have protection obligations towards him. He then appealed to the Federal Court of Australia. At the original hearing, the RRT had asked the appellant, SZKCQ, to obtain confirmation from PPP officials of his standing and situation in the party. On receiving two letters from officials, Mr A and Mr K, the RRT sent the documents to the Australian High Commission in Islamabad, asking, among other things, for information from the letters’ authors as to how the appellant suffered because of his work for the party. In the RRT’s opinion, the letter from Mr A was not genuine and, as Mr K did not refer to the appellant’s claim of imprisonment, the evidence suggested he had exaggerated his role and the harassment he suffered. The RRT wrote to SZKCQ stating that based on this information it was not satisfied that he faced a real chance of harm. They gave SZKCQ 14 days to provide comments, but the time between the date of the letter and the date it arrived was quite lengthy. In his appeal, SZKCQ contended, among other things, that the RRT had delayed sending its refusal by post so that he did not have enough time to respond and had not ensured that he understood why the information referred to was relevant. The Federal Court judged that the RRT had failed to give enough time for the appellant to appeal the initial decision and had not properly informed him. SZKCQ’s appeal was upheld and the RRT decision was set aside.
Outcomes of the case
The High Court’s ruling in NZYQ v Minister for Immigration led to the release or review of detainees held indefinitely without removal prospects, and prompted policy changes to prevent prolonged detention and increase judicial oversight. In response, the government introduced the Bridging Visa Regime in 2023, imposing strict conditions such as curfews, monitoring and reporting on released detainees, along with harsher penalties for breaches. Additional laws validated past decisions and limited natural justice in removal processes while enhancing removal procedures and information sharing. Critics argue these measures complicate control without providing lasting solutions.
ANALYSIS 18.6.1
Read Case Study 18.6.1 and In Court 18.6.1 and answer the following questions.
1. Explain the impact of the High Court’s decision in NZYQ v Minister for Immigration (2023) on asylum-seeker detention practices in Australia. In your answer include the government response to this ruling. 2. The Refugee Review Tribunal (RRT) in SZKCQ v Minister for Immigration (2008) requested additional evidence and questioned the genuineness of documents from party officials. Discuss the procedural fairness issues raised in this case and explain why the Federal Court set aside the RRT’s decision. 3. Using examples from landmark High Court cases, explain how the judiciary balances the powers of the Australian government regarding immigration detention with protection of asylum seekers’ rights.
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Dispute resolution methods
U N SA C O M R PL R E EC PA T E G D ES
Asylum seekers in Australia face complex legal challenges requiring effective dispute resolution to ensure fair and timely decisions. Legal assistance from practitioners, community centres and refugee specialists is crucial for navigating immigration laws, tribunal representation and procedural guidance, often with cultural and language support. Non-government organisations, such as the Asylum Seeker Resource Centre and Refugee Advice and Casework Service, provide free or low-cost legal help, including on claims, detention and appeals, alongside broader support services. This representation helps asylum seekers effectively address disputes with authorities.
Methods used to provide an outcome in a dispute Internal departmental review
Before seeking external tribunal or court reviews, asylum seekers can request an internal review by the Department of Home Affairs. This process allows the Department to reconsider its original decision on visa applications or related matters, aiming to correct errors or consider new information. A different officer usually conducts the review to ensure impartiality. Applicants are informed about this option and have a set time to apply. The internal review can confirm, change or overturn the original decision, potentially avoiding the need for longer and more costly external appeals. Mediation and alternative dispute resolution
While formal migration matters, such as visa refusals or cancellations, are generally resolved through tribunals and courts, mediation and alternative dispute-resolution methods may sometimes be employed to address other issues affecting asylum seekers. Mediation tends to be more common in resolving disputes related to the conditions of immigration detention facilities, access to healthcare, social services, or complaints about treatment by authorities or service providers. Alternative dispute resolution involves a neutral third party helping both sides reach agreement without formal legal action. This approach is quicker, less adversarial and more flexible, addressing practical concerns affecting asylum seekers’ wellbeing. Complaints to the Commonwealth Ombudsman and AHRC
In addition to internal reviews and alternative dispute resolution, asylum seekers can complain to independent bodies such as the Commonwealth Ombudsman and the AHRC if they believe their rights were violated or are unhappy with government actions. The Ombudsman investigates government agency complaints and systemic issues but cannot overturn decisions. The AHRC addresses discrimination and human rights breaches through investigation and conciliation. Both offer accessible, independent avenues that support fairness and improve treatment within the immigration system, complementing formal appeals.
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RESEARCH 18.6.1 1. Investigate a recent case or report by the Australian Human Rights Commission (AHRC) or the Commonwealth Ombudsman relating to asylum seekers. Summarise the findings and outcomes. 2. Inquire into how international human rights organisations such as Amnesty International monitor and influence Australia’s treatment of asylum seekers. Write a summary of their recent activities.
U N SA C O M R PL R E EC PA T E G D ES
REVIEW 18.6 Online quiz
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Review 18.6 questions
1. Discuss challenges asylum seekers might face despite the legal protections offered by Australian and international law. Suggest how these challenges might be addressed. 2. Outline the legal processes asylum seekers in Australia follow when applying for protection visas under the Migration Act 1958 (Cth). 3. Explain the social and legal consequences of limited work rights, restricted access to services and freedom of movement for asylum seekers in Australia. 4. Assess the ability of international human rights laws to influence national policies towards asylum seekers. 5. Explain the roles played by organisations in advocating for asylum seekers’ rights in Australia. Assess their impact on improving access to justice for asylum seekers in Australia. 6. Discuss the appeal and review mechanisms available to asylum seekers in Australia, including the roles of the Administrative Review Tribunal, the Federal Courts and the High Court. How do these mechanisms protect the rights of asylum seekers? 7. Discuss the effectiveness of alternative dispute-resolution methods and complaints to bodies such as the Commonwealth Ombudsman and Australian Human Rights Commission in addressing the concerns of asylum seekers. Go online to assign and download questions, view results and more!
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18.7 Alternative approaches to justice LEARNING OBJECTIVE 18.7
reporting
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE alternative approaches to justice available to asylum seekers.
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Alternative justice approaches for asylum seekers offer quicker, less formal ways to resolve disputes. However, if an asylum seeker is in an offshore detention centre, it will be difficult for them to access these methods.
As seen earlier, alternative dispute resolution is an effective alternative approach as scorcher it is flexible, confidential and has a focus on cooperation rather than conflict. It is a system where mediators and alternative dispute-resolution facilitators act as neutral parties to help asylum seekers and government officials reach agreements on issues such as detention conditions, healthcare access and treatment complaints without court involvement.
Independent oversight bodies provide additional options. The Commonwealth Ombudsman investigates complaints about government agencies, including immigration services, and recommends improvements to ensure fairness. The AHRC addresses complaints of discrimination and human rights breaches, promotes conciliation and raises awareness of asylum seekers’ rights. Although they cannot overturn decisions, these bodies offer important avenues to address concerns and assist in the pursuit of just outcomes.
Community legal centres and NGOs play a vital role by offering legal advice, complaint assistance and help accessing mediation services. Organisations such as the Asylum Seeker Resource Centre and Refugee Advice and Casework Service provide free or low-cost support, helping asylum seekers understand their rights and navigate complex systems. Beyond these, restorative justice approaches focus on healing and dialogue rather than punishment, helping resolve community or detention-centre conflicts through open conversations and mutual agreements. Refugee-led networks and community groups provide safe spaces for asylum seekers to share concerns and support one another, often complementing formal justice systems.
Figure 18.7.1 Serafina Wodhoomall works at the Asylum Seeker Resource Centre. She fled East Timor as a refugee in the 1990s.
Effective solutions for asylum seekers require culturally sensitive support, including interpreters and cultural liaison officers to ensure clear communication and rights awareness. Traumainformed mediation respects cultural backgrounds, leading to fairer outcomes. Education and advocacy empower asylum seekers with knowledge of their rights and push for legal reforms. Trauma-aware approaches with specialised support help prevent re-traumatisation during legal processes. Recognising First Nations or customary laws can enhance justice when aligned with human rights.
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REVIEW 18.7 Online quiz
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Review 18.7 questions
U N SA C O M R PL R E EC PA T E G D ES
1. Identify one alternative approach to justice that asylum seekers may use instead of formal court processes. 2. Outline how the Commonwealth Ombudsman provides an alternative pathway for asylum seekers to resolve concerns. 3. Describe how the Australian Human Rights Commission assists asylum seekers through alternative justice video widget reporting note taking mechanisms. 4. Explain why community legal centres and non-government organisations are important in helping asylum seekers access these alternative approaches to justice. 5. Analyse the advantages of alternative justice approaches compared with formal legal processes for asylum seekers.
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18.8 The role ofquiznon-government organisations questions download word
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LEARNING OBJECTIVE 18.8
IDENTIFY non-government organisations that represent the interests of asylum seekers. DESCRIBE the roles non-government organisations fulfil for asylum seekers.
As seen earlier in the chapter, NGOs play a crucial role in representing and supporting the interests of asylum seekers in Australia. These organisations provide a range of essential services, including legal assistance, advocacy, practical support and community engagement. These services help asylum seekers navigate complex immigration processes and access their rights. widget video reporting
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A major role of NGOs is providing legal aid. Many asylum seekers struggle to understand their rights and the complex visa and appeal processes. Organisations such as the Asylum Seeker Resource Centre offer free or low-cost legal advice, helping with application preparation, gathering evidence and representation in courts and tribunals. This legal support is crucial for fair treatment and protection.
Beyond legal aid, NGOs offer practical support to address asylum seekers’ daily needs, including healthcare, mental health services, housing assistance, food and emergency relief. By meeting these essential help alleviate the challenges faced quiz needs, NGOs questions download word during prolonged and uncertain waiting periods.
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Advocacy is also a vital function of NGOs. Organisations such as the Refugee Council of Australia and Amnesty International Australia work to influence policy reforms that enhance the rights and living conditions of asylum seekers. They engage in lobbying, public awareness campaigns and holding authorities accountable, ensuring
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asylum seekers’ voices are heard in national conversations. Additionally, NGOs promote community integration and combat social isolation by helping asylum seekers to develop important social networks.
CASE STUDY 18.8.1
U N SA C O M R PL R E EC PA T E G D ES
The Nadesalingam Family (Biloela Family) and community-led alternative resolution Background
The Nadesalingam family, commonly referred to as the “Biloela family”, are Tamil asylum seekers originally from Sri Lanka. After fleeing ethnic persecution and violence in their home country, the family settled in Biloela, a regional town in Queensland, where they became valued members of the local community. Over several years, they established a life, with the children attending local schools and the parents contributing to community activities.
Issue
Despite their integration, the Australian government threatened the Nadesalingam family with deportation to Sri Lanka, citing immigration policies. This posed a significant risk to their safety given the political instability and reports of harm toward Tamils in Sri Lanka. The family’s case highlighted systemic challenges many asylum seekers face, including drawn out legal processes, uncertainty and limited pathways to permanent residency.
In March 2018, they were taken in a dawn raid and spent more than four years in immigration detention, including isolated time on Christmas Island. Faced with potential deportation, a national campaign was mobilised by community members, advocacy groups, local politicians and humanitarian organisations. Key elements of this alternative resolution included the following: •
lobbying the act of influencing government and its agencies
Community advocacy: Grassroots efforts raised public awareness through rallies, petitions (over 600,000 signatures), media engagement and direct lobbying. The strong local support highlighted the family’s positive social and economic contributions. • Legal support and representation: Expert legal teams challenged deportation decisions via judicial review, emphasising human rights considerations. • Political engagement: Local and national politicians advocated for decisions that were compassionate and sensitive to the situation of the family. • Public dialogue: The case stimulated broader conversations on more humane approaches to asylum policies, integration and Australia’s international obligations. Following the 2022 federal election, the new Labor government granted the family permanent residency, enabling their safe return to Biloela, where they remain settled and contributing to the community with a food truck business as of 2025.
Conclusion
The Nadesalingam family case illustrates how collaborative, community-rooted and systemic support can successfully provide an alternative path in providing justice for asylum seeker challenges.
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Figure 18.8.1 The Nadesalingam family spent more than four years in immigration detention before being granted permanent residency in 2022.
REVIEW 18.8 Online quiz
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1. Outline alternative approaches to justice that are available for asylum seekers, including the role of alternative dispute resolution. Discuss their accessibility to all asylum seekers. 2. Identify and describe the roles of oversight bodies such as the Commonwealth Ombudsman and the Australian Human Rights Commission, as well as non-government organisations and community legal centres, in supporting asylum seekers. 3. Analyse the importance of culturally sensitive and trauma-informed support, including restorative justice, in meeting the needs of asylum seekers within justice processes. 4. Outline education and advocacy initiatives that help asylum seekers understand their rights. Assess the impact of these efforts on the ability of asylum seekers to access justice. 5. Explain how community and legal support contributed to the resolution of the Nadesalingam (Biloela) family case. Summarise the key elements of the community-led campaign supporting the Nadesalingam family. Go online to assign and download questions, view results and more!
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ASYLUM SEEKERS – RESPONSIVENESS OF THE LEGAL SYSTEM 18.9 Indicators of success in achieving justice
U N SA C O M R PL R E EC PA T E G D ES
LEARNING OBJECTIVE 18.9
ANALYSE the indicators used to measure the success of achieving justice for asylum seekers.
Australia’s record on providing justice for asylum seekers is a subject of both praise and criticism, reflecting complex realities and ongoing debates about its legal and humanitarian approaches.
Australia has established a comprehensive legal framework aligned with international refugee law, including the 1951 Refugee Convention and its 1967 Protocol, which provides protection to asylum seekers. The country’s Refugee Status Determination system provides asylum seekers with a formal process to have their claims assessed by the Department of Home Affairs, followed by access to independent merits review through the Administrative Review Tribunal. Legal protections, such as the prohibition of refoulement, access to essential services like healthcare and education, and family reunification pathways, demonstrate Australia’s commitment to refugee rights. However, these protections are only fully available once an asylum seeker is recognised as a refugee, with limited provisions under a temporary protection visa. Many asylum seekers also receive vital support from NGOs and advocacy groups that assist them in navigating complex processes and securing fair hearings. Additionally, the Australian judiciary plays a key role in ensuring procedural fairness through judicial review of administrative decisions.
On a more positive note, access to legal representation for asylum seekers has improved in recent years. Data from the Department of Home Affairs shows that about 85% of asylum seekers now receive legal advice or representation at some point during the assessment of their claims, compared to lower rates in previous years. However, the use of temporary protection visas, which offer limited rights and no direct pathway to permanent residency, remains a feature of Australia’s asylum system. Recent reforms announced in late 2024 aim to introduce longer-term bridging visas to provide greater certainty and stability for refugees during their assessment process. However, criticism of Australia’s asylum seeker policies is widespread. Key concerns include mandatory and prolonged detention, especially in offshore centres on Nauru and Manus Island. Human rights groups and the United Nations say these offshore centres cause serious psychological harm and violate humane treatment standards. Critics argue that these practices deny asylum seekers fair and timely access to legal processes, exposing them to harsh and indefinite confinement. The complicated system, long delays and limited legal support make it hard for asylum seekers to properly present their cases. Additionally, policies such as turning back boats and
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offshore processing raise worries about breaching the right to seek protection. There are also concerns about a lack of transparency, accountability and effective complaint mechanisms regarding treatment in detention.
Peak body criticisms United Nations Writing focus 18.9 Noun phrases note taking (identify and develop)
U N SA C O M R PL R E EC PA T E G D ES
The United Nations consistently finds Australia’s asylum seeker policies, particularly mandatory detention and offshore processing, violate international human rights video reporting law. They call these policies arbitrary, cruel and widget inconsistent with obligations, and urge Australia to end using these systems, demanding compensation for rights breaches. The United Nations also argues that Australia cannot outsource responsibilities and must ensure judicial review and better conditions, highlighting failures in justice and dignified treatment, despite repeated criticism.
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Refugee Council of Australia
The Refugee Council of Australia points out major problems with how Australia ensures justice for asylum seekers. Many face long delays in processing protection visa quiz download word applications, sometimes lasting years, causing questions uncertainty and hardship. Many asylum seekers lack access to basic support, such as income, housing, healthcare and the right to work, leading to homelessness and reliance on charities. The former “fast track” system unfairly treated asylum seekers differently based on how they arrived. Cuts to legal aid have forced many to represent themselves, hurting their chances of success. The Refugee Council of Australia strongly criticises indefinite detention and offshore processing as harmful and inhumane. They recommend restoring access to support services and creating a fair, efficient and equal process for deciding asylum claims.
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Australian Human Rights Commission
The AHRC has serious concerns that Australia’s treatment of asylum seekers often violates international human rights laws. Key issues include mandatory and indefinite detention, which the AHRC says is unfair and harmful, because people are held without time limits or proper review. The AHRC calls for ending offshore detention centres in Nauru and Papua New Guinea due to poor conditions and delays, emphasising Australia’s ongoing responsibility for asylum seekers. They also highlight concerns about the treatment of children in detention and criticise the immigration minister acting as legal guardian for unaccompanied children. Additionally, the AHRC opposes discrimination based on how asylum seekers arrive, arguing that denying work rights and healthcare causes unnecessary hardship and poverty. Figure 18.9.1 Community support can bring about justice for asylum seekers.
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CASE STUDY 18.9.1 Justice for children in detention centres One area where there has been a form of success in terms of justice for asylum seekers is in the area of children being held in detention centres. At the point of writing, there were no children in any of the detention centres. However, this has not always been the case, and it took both national and international condemnation to bring this about.
U N SA C O M R PL R E EC PA T E G D ES
In 2002, the National Inquiry into Children in Immigration Detention examined whether Australia’s laws and treatment of detained children complied with international obligations, particularly the Convention on the Rights of the Child (1989). The inquiry visited all Australian immigration detention centres and received more than 340 submissions. It conducted public hearings across several states (Victoria, Western Australia, South Australia, New South Wales and Queensland) and heard expert testimony on children in detention. Confidential focus groups were held with former detainee children and young people.
The resulting report, A Last Resort? (May 2004) by the AHRC (then HREOC), found that Australia’s detention policies failed to protect children’s mental health, provide adequate healthcare and education, and safeguard unaccompanied children and those with disabilities. The report’s key recommendations emphasised that children should be detained only as a last resort and briefly, with their best interests as a primary focus. Unaccompanied children need special support to ensure equal rights, and all children have the right to family unity, humane treatment, dignity, development and recovery from trauma. Asylum-seeking children must receive proper support to fully enjoy their rights, including protection under the Refugee Convention. The Howard government’s response was slow, drawing criticism from HREOC. It was not until July 2005, under internal Coalition pressure, that all children were released from detention. Despite ongoing controversy, 215 children remained in immigration detention at the end of June 2015. According to Department of Home Affairs data, fewer than five children were detained as of 30 September 2019, and by 30 April 2022, no children were held in detention centres.
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Identify one indicator that shows Australia is meeting its international obligations towards asylum seekers. Describe how access to legal processes can indicate whether justice is being achieved for asylum seekers. Outline how service provision, such as access to healthcare or education, can reflect success in achieving justice. Explain why support from non-government organisations and community organisations can be used as an indicator of justice for asylum seekers. 5. Evaluate the overall effectiveness of Australia’s current approach in achieving justice for asylum seekers, based on the indicators discussed. Go online to assign and download questions, view results and more!
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18.10 Barriers to achieving justice quiz
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LEARNING OBJECTIVE 18.10
U N SA C O M R PL R E EC PA T E G D ES
ANALYSE the barriers that prevent asylum seekers from achieving justice in the legal system.
As seen in this chapter so far and the criticisms of the peak bodies, asylum seekers in Australia face several significant barriers to achieving justice.
Complexity of the law
A major challenge is the complexity and length of the legal processes involved in seeking asylum. The immigration system can be difficult to navigate, and long delays often create prolonged uncertainty and stress. Compounding this issue is that many reporting asylum seekers have limitedvideo access to affordablewidget or free legal assistance, which is crucial for effectively presenting and supporting their claims.
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Mandatory detention
Another critical barrier is the policy of mandatory and indefinite detention. Asylum seekers can be held for extended periods without clear time limits or individual risk assessments, restricting their freedom and negatively affecting their mental health. For those held in offshore detention centres, poor living conditions and limited legal quiz questions download wordon protections further hinder their access to justice. Additionally, asylum seekers temporary or bridging visas often face restrictions on work rights, healthcare and social services, affecting their wellbeing and ability to support themselves.
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In July 2025, 965 people were held in onshore immigration detention centres. In addition to those held in detention, some people lived in the community under specific conditions, with figures around 100 to 108 in mid-2025.
Offshore detention is a barrier to justice as detainees are geographically isolated from the Australian legal system. As of the end of August 2025, there were approximately 100 people in the Nauru detention centre. This number has fluctuated over time due to new transfers and resettlements. In February and September 2025, Australia signed new agreements with Nauru to facilitate the transfer of certain individuals, including those whose visas were cancelled on character grounds. In Papua New Guinea, around 64 people remained in detention. Although the Australian government ended its formal offshore processing arrangement with Papua New Guinea in December 2021, several individuals continue to reside there without a clear pathway to permanent residency or citizenship.
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Figure 18.10.1 People in closed detention since 2015 (monthly). “Closed detention” refers to people in immigration detention facilities, including Immigration Detention Centres, Immigration Transit Accommodation Centres, Immigration Residential Housing units and Alternative Places of Detention. The figures for women and children displayed for most of the months (where there are children in closed detention) are approximate. The numbers have been rounded for ease of use.
Social factors
Social factors also play a role. Discrimination, stigma and varied treatment based on the mode of arrival, such as by boat or plane, can marginalise asylum seekers and reduce their chances of receiving fair treatment. Furthermore, the lack of independent review and accountability in detention and immigration decisionmaking processes limits the ability to challenge unfair practices.
Finally, barriers to being included socially and in the workforce due to limited English proficiency, lack of recognition of overseas qualifications and weak social networks, restrict asylum seekers’ opportunities. These challenges can indirectly affect their ability to engage effectively with legal and support systems, making the pursuit of justice even more difficult. Together, these factors create a complex and often harsh environment for asylum seekers seeking fair and humane treatment in Australia.
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1. Assess Australia’s treatment of asylum claims, including recent improvements in legal representation. In your answer include reference to the legal protections provided to asylum seekers. 2. Outline the major criticisms of Australia’s asylum seeker policies by organisations such as the United Nations, Refugee Council of Australia and the Australian Human Rights Commission. 3. Identify and explain major barriers asylum seekers face in accessing justice within Australia, including mandatory and offshore detention, social discrimination, and issues with transparency and accountability. 4. Discuss the impact of social factors such as discrimination and lack of integration on asylum seekers’ ability to pursue justice. 5. Assess the role that community support, advocacy and legal challenges can play in influencing justice outcomes for asylum seekers, referencing relevant examples. Go online to assign and download questions, view results and more!
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REFUGEES
Additional support for the depth studies, including a dedicated section on research skills, is available in the Interactive Textbook.
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REFUGEES – THE NATURE OF THE EXPERIENCE 18.11 The need for protection under the law LEARNING OBJECTIVE 18.11
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U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the reasons refugees may need protection under the law.
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permanent protection visa a visa granted to refugees to allow them to live, work and access services indefinitely in download pdf Australia
complementary protection protection for people who do not qualify as refugees but would face serious harm if returned to their home country
A refugee is someone who has fled their country due to a well-founded fear of persecution based on factors including race, religion, nationality, social group or political opinion, and cannot safely return. They are protected by international laws, including the 1951 Refugee Convention, which prevents them from being sent back to danger. Refugeescorcher status is determined through a formal legal process. Unlike voluntary migrants, refugees are forced to move for their safety. International agencies, governments and NGOs collaborate to protect and assist refugees who often face trauma, discrimination and legal challenges, which emphasises the need for global humanitarian efforts.
Australia and refugees
Australia has a long history of supporting refugees while balancing the need for border security. Since World War II, when it welcomed European refugees displaced by the war as part of efforts to grow its population and economy, Australia has adapted its policies to respond to changing global circumstances. In the 1970s and 1980s, Australia began accepting refugees from South-East Asia, particularly following the Vietnam War. The government established official programs aligned with international refugee laws to provide safer pathways for those fleeing danger to seek protection in Australia. Today, Australia continues to resettle refugees through official humanitarian programs but maintains strict border control measures for those arriving without permission. The government works with international partners to protect refugees while ensuring secure borders.
Figure 18.11.1 Protest on 14 May 2025 in front of the UNHCR office in Jakarta, Indonesia, where refugees fleeing persecution and conflict have been stranded while waiting for resettlement in Australia.
Recognised refugees in Australia are usually granted a permanent protection visa (subclass 866), allowing them to live, work and access services indefinitely. This visa is issued to those who meet refugee or complementary protection criteria after applying onshore. Refugees arriving offshore may receive permanent visas such as the Refugee visa (subclass 200), Emergency Rescue visa (subclass 201), Woman at Risk visa (subclass 204), or Special Humanitarian Program visa (subclass 202), enabling them to settle permanently in Australia.
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Need for protection
U N SA C O M R PL R E EC PA T E G D ES
Legal protection for refugees is crucial as it shields them from persecution, guarantees their right to seek asylum, prevents forced return to danger, ensures access to basic needs, and provides fair decision-making processes while protecting them from discrimination and exploitation. Refugees flee serious harm or discrimination based on race, religion, nationality, political beliefs or social group membership. Without legal safeguards, they risk being sent back to danger. Fair and transparent procedures are needed to assess refugee claims, including interviews and evidence review, with opportunities for appeal. International and national laws uphold these protections, reflecting global commitments to human rights and enabling refugees to find safety and rebuild their lives with security and justice. Legal protection should recognise international conventions, including the principle of non-refoulement, as well as ensuring access to basic rights and services. International conventions recognise the right of people fleeing persecution to seek asylum in other countries, as affirmed by the 1951 Refugee Convention. This ensures refugees can apply for asylum and have their cases fairly considered without being treated as criminals for crossing borders without the necessary paperwork. The principle of non-refoulement prohibits countries from returning refugees to places where their lives or freedom are at risk, offering protection even if they entered illegally. Additionally, refugees are entitled to basic rights and services (such as housing, healthcare, education and work opportunities), so they can live with dignity while their claims are processed or after protection is granted.
Figure 18.11.2 Sydney Lord Mayor Clover Moore and Maria Salad show their support for refugees.
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Review 18.11 questions 1. 2. 3. 4. 5.
Define what a refugee is under international law. Identify one international principle that protects refugees. Explain its purpose. Outline why fair and transparent legal procedures are important when assessing refugee claims. Describe two basic rights that refugees are entitled to once they have been granted protection. Explain why legal protection is essential for refugees who arrive without identity documents or formal paperwork.
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18.12 Reasons for encountering the legal system LEARNING OBJECTIVE 18.12 DESCRIBE the reasons for which refugees encounter the legal system.
U N SA C O M R PL R E EC PA T E G D ES
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Refugees encounter the legal system for many important reasons connected to their protection and wellbeing. From seeking asylum and legal status to accessing essential services, fighting discrimination, managing immigration and protecting their families, refugees rely on legal processes to ensure their safety and rights. Understanding these reasons helps explain the vital role the legal system plays in scorcher supporting refugees as they rebuild their lives. Access to legal supports is vital for refugees to live safely and with dignity in new countries.
Writing focus 18.12 Question words note taking
A key reason for legal involvement is to prevent refugees from being forcibly sent back to dangerous countries – a protection known as non-refoulement. Refugees can legally challenge deportation orders to avoid being returned to places where they risk harm.
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Another reason that refugees may encounter the legal system is that they need help accessing basic services, including housing, healthcare, education and work. Seeking legal assistance helps clarify their rights and prevent unfair barriers. In addition, refugees are vulnerable to discrimination and exploitation, and the legal system provides protection against unfair treatment and abuse. Laws help investigate and prosecute offenders and support victims, promoting equality and dignity. Refugees also rely on legal support to manage their immigration status, apply for visas and gain travel documents. These processes are often complicated, making legal advice essential to avoid mistakes that could threaten their stay or rights.
Figure 18.12.1 Damascene Byimira, a refugee from Rwanda, gained residence in Australia and reunited with his family at Sydney Airport after eight years of being apart.
Family reunification is another important area where refugees use legal procedures to bring relatives to join them. They may also seek other types of humanitarian protection if they do not meet strict refugee definitions. Refugees may face detention while their claims are processed, raising human rights concerns. They can challenge detention legally, request bail, and appeal removal decisions to ensure fair treatment and protection.
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Review 18.12 questions 1. 2. 3. 4. 5.
Identify two reasons why refugees might need to engage with Australia’s legal system. Outline how discrimination or exploitation can bring refugees into contact with legal processes. Describe why refugees often need legal help when managing their visa status or applying for travel or identity documents. Explain how family reunification processes may involve refugees in legal procedures. Discuss why detention or the threat of removal can lead refugees to seek legal advice or challenge government decisions. Go online to assign and download questions, view results and more!
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18.13 Issues arising from contact with the law LEARNING OBJECTIVE 18.13 EXPLAIN the issues refugees experience when they have contact with the law.
U N SA C O M R PL R E EC PA T E G D ES
In the same ways as asylum seekers, refugees often face many challenges when interacting with the legal system. This can affect their ability to gain protection and rebuild their lives.
The legal processes involved in seeking refugee status are often complicated. Refugees video must complete detailed paperwork, meet strict widget deadlines and provide reporting credible evidence of persecution or danger. Understanding these requirements requires knowledge of legal terminology and procedures, which many refugees lack, especially if they have limited education or language skills. This complexity increases the risk of mistakes, which can result in delays or even rejection of their claims. Refugees are at risk of being detained while their claims are reviewed, especially if their paperwork is not recognised (such as forged passports). Added to this is the problem that many refugees arrive without formal (or any) identity documents, making it difficult and expensive nationality or family connections, quiz to prove their questions download word and which could lead to them being sent to a detention centre. This lack of documentation leads to bureaucratic delays that slow down asylum applications and limit access to essential services.
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Figure 18.13.1 Advisers from the Homeless Person’s Legal Service help a client at the Wesley Mission in Darlinghurst.
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Refugees whose claims are denied face the risk of deportation, which may mean being sent back to countries where they face persecution, torture or other serious harm. This exposure to danger violates the international principle of non-refoulement. The fear of deportation is a constant source of anxiety and can push refugees into hiding or precarious living situations.
U N SA C O M R PL R E EC PA T E G D ES
Language barriers frequently cause significant problems for refugees. Limited fluency in the host country’s language makes it difficult to understand legal information and communicate effectively. Depending on interpreter services, which can be inconsistent, often results in mistakes, missed deadlines and confusion about legal rights.
Refugees often face limited access to legal aid due to high demand and inadequate funding, resulting in a shortage of affordable and culturally appropriate legal support. Without proper representation, navigating complex asylum laws becomes difficult, increasing the risk of unfair claim denials. Additionally, discrimination and bias within the legal system can lead to unjust outcomes, such as wrongful rejections or harsher detention, which damage trust and discourage refugees from seeking justice. In addition, family reunification is often delayed by complicated laws, causing emotional hardship and hindering refugees’ ability to settle into their new communities. Due to all these issues, refugees are at more risk of exploitation, such as trafficking and forced labour, because fear of deportation and limited knowledge of their legal rights often stop them from reporting abuse or seeking assistance.
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Review 18.13 questions 1. 2. 3. 4. 5.
Identify two challenges refugees may face when interacting with the Australian legal system. Outline how a lack of identity documents can create legal difficulties for refugees. Describe how the risk of deportation affects refugees during the legal process. Explain how discrimination or cultural misunderstandings can influence the legal outcomes for refugees. Discuss why limited access to legal aid and interpreting services can affect the fairness of refugee claims.
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REFUGEES – ACCESS TO JUSTICE 18.14 Protection under the law quiz
LEARNING OBJECTIVE 18.14
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U N SA C O M R PL R E EC PA T E G D ES
OUTLINE the international and domestic legal protections for refugees.
Refugees are safeguarded by both international and domestic laws designed to uphold their safety, dignity and rights. While many of these protections also apply in some way to asylum seekers, people recognised as refugees typically receive stronger legal protections under domestic law.
International law protections
International laws that protect refugees include the following:
• 1951 Refugee Convention and 1967 Protocol: Core international treaties that define who is a refugee and outline be forcibly videoprotections, including widget the right not toreporting returned to a country where they face serious harm (principle of non-refoulement), and access to basic rights, such as education, work and legal protection • Non-refoulement: A fundamental principle that prohibits returning refugees to countries where they face threats to their life or freedom due to race, religion, nationality, social group membership or political beliefs • Human rights treaties: Various international human rights instruments (e.g. the International Covenant on Civil and Political Rights and Convention Against Torture) protect refugees from abuse and discrimination, and they also guarantee basic quiz questions freedoms. download word • Guidelines from UNHCR: Provide authoritative recommendations on refugee protection standards and best practices globally.
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Figure 18.14.1 A banner marking World Refugee Day is displayed ahead of a visit by United Nations High Commissioner for Refugees Barham Ahmed Salih at the Ura Refugee Site in Asosa Zone, Ethiopia, on 20 June 2026. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Australian (domestic) law protections for refugees Refugee status determination
U N SA C O M R PL R E EC PA T E G D ES
Australia evaluates refugee claims through a formal process based on the 1951 Refugee Convention, where the Department of Home Affairs initially assesses protection visa applications. If refused, applicants can request an independent review by the Administrative Review Tribunal and further judicial review in courts. The process determines if the applicant has a well-founded fear of persecution due to race, religion, nationality, social group or political opinion by using interviews, country information and evidence.
Protection against refoulement
Australia’s principle of non-refoulement, established under the Migration Act 1958 (Cth) and related policies, prohibits returning people to countries where they risk persecution or serious harm. Deportation decisions must carefully assess safety to ensure individuals are not exposed to danger
Legal residency and visas
Recognised refugees in Australia may receive a protection visa (subclass 866), granting permanent residence and a pathway to citizenship. Other visas under the Humanitarian Program also provide permanent or temporary protection, allowing refugees to live indefinitely in Australia without fear of removal.
Access to services
Refugees with lawful status in Australia can access government-funded services, such as Medicare for healthcare, public education, Centrelink social security payments and specialised settlement programs, including language classes and employment support. These services help refugees integrate socially and economically.
Employment rights
Refugees holding protection visas have the full right to work in Australia immediately upon gaining lawful status, with no restrictions. They are protected under Australian workplace laws, such as the Fair Work Act 2009 (Cth), enabling them to access fair wages, work conditions and protections from exploitation or discrimination in employment.
Anti-discrimination protections
The Racial Discrimination Act 1975 (Cth) prohibits discrimination based on race, colour, nationality or ethnic origin, protecting refugees and asylum seekers from unfair treatment. State laws offer additional safeguards against discrimination and harassment in housing, employment and access to services.
Legal aid and support Refugees and asylum seekers can access legal advice and representation through government-funded legal aid, community legal centres and specialist refugee organisations. Though resources may be limited, this support is vital for navigating visa applications, appeals and protection claims. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Family reunion Australia’s humanitarian migration program allows recognised refugees to sponsor eligible family members, such as partners and dependent children, to join them. The process includes medical and security checks, and aims to support family unity and wellbeing.
Protection from arbitrary detention
U N SA C O M R PL R E EC PA T E G D ES
Australian law permits immigration detention for unlawful non-citizens to protect community safety but requires detention to be lawful, necessary and proportionate. Judicial oversight and regular reviews help to prevent indefinite detention. Guidelines ensure humane treatment and access to legal, health and social support for detainees.
Figure 18.14.2 Kurdish man Karam Zahirian fled Iran hoping to find sanctuary in Australia. He was held in detention at Manus Island, Papua New Guinea.
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1. Describe two ways in which the Australian government supports refugees through its immigration policies. 2. Outline one reason why refugees need legal protection. Explain why refugees face challenges when interacting with the legal system in a new country. 3. Outline two legal rights or services that refugees are entitled to while their asylum claims are processed. 4. Define the principle of non-refoulement. Explain how this principle protects asylum seekers and refugees. 5. Describe the refugee status determination process in Australia and the avenues for appeal if a claim is rejected. Go online to assign and download questions, view results and more!
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18.15 Authorities that advocate for rights
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LEARNING OBJECTIVE 18.15
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the functions of authorities that advocate for and protect the rights of refugees.
In Australia, several authorities and organisations advocate for the rights of refugees. These include government bodies, independent statutory agencies, NGOs, legal institutions and community groups.
Government bodies and statutory agencies Department of Home Affairs
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The Department of Home Affairs, while it primarily acts as an administrative body, also develops policies aimed at protecting refugees, overseeing resettlement programs scorchercompliance with legal standards. The Department collaborates with and ensuring other government agencies to provide support services, including health and settlement assistance.
Australian Human Rights Commission
The AHRC is an independent body that protects vulnerable groups, including refugees, by investigating discrimination and human rights complaints, advising on policy, educating the public and reporting to the government. It advocates for humane treatment and stronger protections.
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Legal and advocacy organisations Refugee Council of Australia
The Refugee Council of Australia represents a broad network of refugee service providers, community organisations, and supporters. The Refugee Council of Australia conducts policy research, produces reports and regularly submits recommendations to government inquiries and international bodies. It advocates for improved protection policies, access to justice, family reunion rights and humane treatment of refugees and asylum seekers.
Australian Lawyers for Human Rights
Australian Lawyers for Human Rights is a network of lawyers, academics and law students committed to human rights promotion in Australia. Its refugee rights work includes providing pro bono legal assistance, conducting strategic litigation to challenge unjust decisions, and lobbying for reforms in refugee and migration law.
Figure 18.15.1 Youths warming up for a football match organised by Football United, a program helping refugees integrate in Australia, in the western suburbs of Sydney on 14 September 2017.
Human Rights Law Centre The Human Rights Law Centre is a leading legal advocacy organisation that has taken cases before Australian courts challenging indefinite detention, visa cancellations and
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inadequate protection standards. The Centre works closely with refugee communities and other NGOs to promote laws that comply with international human rights and refugee law, and seeks systemic reforms to improve refugee protection.
Community and refugee support organisations Migrant resource centres and refugee support groups
U N SA C O M R PL R E EC PA T E G D ES
These community-based organisations provide critical on-the-ground support to refugees in settlement, such as English language classes, employment assistance, counselling and legal advice. They also advocate locally to improve refugees’ welfare by liaising with government agencies and service providers. Migrant resource groups often serve as cultural bridges helping refugees to navigate Australian society and access their rights.
Jesuit Refugee Service Australia
The Jesuit Refugee Service is a global Catholic organisation supporting asylum seekers in Australia through welfare, advocacy for humane policies, research and community awareness.
Amnesty International Australia
Amnesty International Australia conducts campaigns to expose human rights violations against refugees and asylum seekers, focusing on issues such as offshore detention, family separation and denial of legal access. Amnesty International undertakes public mobilisations, lobbying and report publication to pressure governments to uphold refugee rights and comply with international legal standards.
International bodies with an Australian presence United Nations High Commissioner for Refugees – Australia
In Australia, the UNHCR works in partnership with the government, NGOs and communities to promote best practices in refugee protection. It provides technical advice on asylum procedures and monitors Australia’s compliance with international refugee law. UNHCR also facilitates the resettlement of refugees from overseas and supports local initiatives to promote refugees’ rights.
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Identify one government body that helps protect the rights of refugees in Australia. Outline the role of the Department of Home Affairs in supporting refugees. Describe how the Refugee Council of Australia advocates for refugee rights. Explain how legal advocacy groups such as the Human Rights Law Centre support refugees. Discuss why collaboration between government agencies, non-government organisations and international organisations such as UNHCR is important for protecting refugee rights.
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18.16 Contact with legal processes LEARNING OBJECTIVE 18.16 download pdf
DESCRIBE how refugees encounter legal processes including law enforcement agencies, courts or tribunals, and dispute resolution methods.
U N SA C O M R PL R E EC PA T E G D ES
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Refugees in Australia encounter various legal processes including interactions with law enforcement agencies, courts and tribunals, and alternative dispute-resolution methods. These encounters arise as refugees seek to establish their protection status, access justice, resolve disputes and uphold their rights within the Australian legal system.
Law enforcement agencies
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Interactions between refugees and law enforcement typically occur when refugees report crimes such as domestic violence, human trafficking or exploitation. Law enforcement agencies are increasingly adopting culturally sensitive approaches, including using qualified interpreters and specially trained officers, to address refugees’ unique scorcher vulnerabilities, such as language barriers, trauma and limited legal knowledge.
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Figure 18.16.1 Interactions between refugees and law enforcement typically occur when refugees report crimes.
While law enforcement may partner with the Department of Home Affairs in immigration enforcement, refugees with valid protection visas have legal protections against unlawful detention or removal. Additionally, police play a crucial role in connecting refugees to specialised support services, such as legal aid and welfare organisations, to meet their specific needs.
Courts and tribunals A significant part of refugees’ legal contact involves appeals and reviews before courts and tribunals. When an asylum or visa application is refused by the Department of Home Affairs, refugees may apply for an internal merits review by the Administrative Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Review Tribunal. The Tribunal reassesses the decision based on all available evidence, providing an important avenue for reconsideration.
U N SA C O M R PL R E EC PA T E G D ES
Refugees also engage with the Federal Circuit and Family Courts on family law matters such as parenting disputes, protection orders and divorce. These courts offer interpreter services and culturally appropriate supports to help refugees navigate proceedings. For matters involving alleged legal errors or procedural unfairness in immigration decisions, refugees have the option of seeking judicial review by the Federal Court of Australia. This process scrutinises whether administrative decisions were lawfully made. In addition, refugees have equal standing in criminal courts if charged with offences, receiving legal representation and protections commensurate with all residents under Australian law.
IN COURT 18.16.1
EIF21 v Minister for Home Affairs [2023] FCA 88 Court: Federal Court of Australia
Issue: Cancellation of a refugee visa under section 501 on character grounds
In this case, the appellant was a refugee visa holder whose visa was cancelled by the Minister for Home Affairs under section 501 of the Migration Act 1958 (Cth) due to alleged involvement in serious criminal conduct. The appellant challenged the cancellation, arguing that the Minister failed to properly consider the protection obligations owed to refugees under the Refugee Convention and relevant Australian law, as well as the appellant’s personal circumstances. The Federal Court held that while the Minister has the power to cancel refugee visas on character grounds, this power must be exercised in a way that balances community protection with obligations to refugees. The Court found that the Minister’s decision lacked proper consideration of these protection obligations and mitigating factors such as the appellant’s risk of persecution if returned to their home country.
The cancellation was set aside, and the visa was reinstated, reaffirming that refugee visa cancellations must involve a careful, lawful balancing process between character concerns and humanitarian protections.
IN COURT 18.16.2
SZTAL & SZTGM v Minister for Immigration and Border Protection
Tamil asylum seekers from Sri Lanka claimed that returning home would lead to arrest and detention for leaving without valid travel documents. They argued this would amount to cruel or inhumane treatment, hoping to qualify for complementary protection under Australia’s Migration Act.
The High Court dismissed their appeals, deciding that Sri Lankan authorities detained returnees as part of enforcing border laws — not with the specific intention to cause pain or humiliation. The Court ruled that, for complementary protection to apply, harm must be intentionally inflicted to cause suffering, not just result from enforcement. The outcome set a higher standard for applicants: only harm deliberately caused with intent meets the threshold for complementary protection under Australian law.
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The High Court
U N SA C O M R PL R E EC PA T E G D ES
The High Court of Australia can hear refugee cases that involve significant legal issues, such as judicial review of visa decisions, interpretation of refugee and migration law, procedural fairness, constitutional questions and ministerial powers; but it focuses on broad legal principles rather than individual claims. The court rarely deals with migration issues, and a refugee wanting to take their case to the highest court would have to have considerable legal backing and access to the funds needed to navigate the legal system.
Alternative dispute resolution
As in the case of asylum seekers, alternative dispute-resolution methods offer refugees less formal and often more accessible means to resolve disputes. Mediation, conciliation and arbitration help avoid the stress and complexity of court hearings and are often facilitated by community legal centres that provide culturally sensitive services. Legal aid commissions and refugee advocacy organisations play a vital role in supporting refugees throughout these processes, offering free or low-cost advice, representation and advocacy.
Figure 18.16.2 Refugee Camp Four on the Pacific island of Nauru, 2 September 2018
When refugees experience discrimination, breaches of rights or mistreatment, they can lodge complaints with bodies such as the AHRC or state anti-discrimination agencies. These bodies investigate complaints and facilitate conciliation, with the potential to refer matters to court, if necessary, thereby addressing systemic human rights concerns.
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Review 18.16 questions 1. 2. 3. 4. 5.
Identify one reason a refugee may need to appear before the Administrative Review Tribunal. Outline how the Federal Court differs from the Administrative Review Tribunal when reviewing refugee matters. Explain why interpreters and culturally sensitive communication are important in legal settings for refugees. Discuss the significance of the Federal Court cases in the context of refugee visa cancellations. Assess the importance of community-based refugee support organisations in ensuring access to justice for refugees, especially in navigating complex legal processes. 6. Discuss the significance of the Federal Court case EIF21 v Minister for Home Affairs [2023] FCA 88 in the context of refugee visa cancellations. Go online to assign and download questions, view results and more!
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18.17 Alternative approaches to justice LEARNING OBJECTIVE 18.17 DESCRIBE alternative approaches to justice available to refugees.
U N SA C O M R PL R E EC PA T E G D ES
Alternative approaches to justice for refugees recognise the complex legal, social and cultural challenges refugees face and aim to provide more accessible, culturally sensitive and supportive pathways to justice. These approaches work alongside Australia’s formal legal system, striving to make justice more accessible and meaningful for refugees while respecting their diverse backgrounds and experiences. video widget reporting Some of these approaches were discussed in more detail earlier in the chapter.
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Community legal centres (such as Refugee Advice and Casework Service) and pro bono legal services play a vital role in providing free or low-cost legal advice tailored to refugees (and asylum seekers). These services adopt culturally sensitive and client-centred approaches, assisting refugees with their residency claims, family law matters, housing disputes and issues related to discrimination.
Restorative justice programs, though more commonly applied within the criminal justice system, are also used by organisations to address interpersonal quizsome community questions download word conflicts within refugee communities. These programs focus on dialogue, accountability and reconciliation to promote healing and stronger community cohesion.
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Alternative dispute-resolution methods such as mediation are increasingly employed to resolve disputes involving refugees, including workplace conflicts, tenancy problems and immigration-related issues. The use of culturally competent mediators and interpreters in these processes helps ensure that outcomes are fair and culturally appropriate.
Legal empowerment and education initiatives provided by organisations, such as the Australian Red Cross and the Jesuit Refugee Service, give refugees information about their rights under Australian law and guide them on how to access justice. Workshops, information sessions and legal materials translated into multiple languages support refugees in understanding complex legal systems.
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1. Identify one alternative approach to justice that refugees may use instead of formal court processes. 2. Outline how the Australian Human Rights Commission uses conciliation to support refugees facing discrimination or unfair treatment. 3. Describe the role community legal centres play in helping refugees access alternative approaches to justice. 4. Explain why alternative justice processes may be more suitable for refugees than traditional court proceedings. 5. Assess the effectiveness of alternative approaches to justice in meeting the needs of refugees. Go online to assign and download questions, view results and more!
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18.18 The role of non-government organisations LEARNING OBJECTIVE 18.18
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IDENTIFY non-government organisations that represent the interests of refugees. DESCRIBE the roles non-government organisations fulfil for refugees.
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As seen earlier in the chapter (with asylum seekers), NGOs provide a multi-faceted support system that addresses immediate survival needs, legal and advocacy challenges, and longer-term integration goals. They are indispensable partners to governments and international agencies in ensuring refugees’ rights are protected, and that displaced people can rebuild safe and dignified lives. scorcher
In Australia, NGOs such as the Refugee Council of Australia work with governments and international bodies to promote humane refugee policies, better detention conditions, increased resettlement, and access to healthcare, education and legal rights, ensuring compliance with human rights standards. The asylum process is complex, so organisations such as the Asylum Seeker Resource Centre and Refugee Legal provide vital legal aid for visa applications, appeals and protection claims. Upon arrival, refugees face language, cultural and socio-economic challenges. Groups including the Australian Red Cross and Settlement Services International support integration through English classes, job training, housing assistance and community programs to help refugees adapt and belong.
Many refugees arriving in Australia often carry physical and psychological trauma caused by persecution and displacement. To aid their recovery, organisations such as Foundation House and Migrant and Refugee Settlement Services offer specialised medical care, psychological counselling and resilience-building programs. Additionally, the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors offers specialised support to refugees who have experienced trauma, helping them with recovery and integration. These NGOs work closely with health providers to deliver culturally sensitive mental health services, helping survivors heal and rebuild their lives in a safe environment.
Figure 18.18.1 Doctors for Refugees march to demand humane treatment of asylum seekers and refugees in Sydney, 2016
Australian NGOs such as the Refugee Council of Australia and Amnesty International raise public awareness about refugee issues through campaigns, forums and school programs, fostering empathy and inclusion. They also collaborate with governments and businesses to promote refugee employment. Additionally, organisations such as the Jesuit Refugee Service monitor the treatment of refugees, report human rights concerns and advocate for better conditions, ensuring accountability and protecting refugees’ rights under both Australian and international law.
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RESEARCH 18.18.1 Access the Commonwealth Ombudsman site and carry out a search for asylum seekers and refugees. • • •
Browse through at least five different reports, investigations or news updates related to refugees and asylum seekers. Identify common issues such as detention conditions, visa delays or administrative fairness. Note any recommendations made by the Ombudsman to improve refugee and asylum seeker services or government practices.
U N SA C O M R PL R E EC PA T E G D ES
Write a brief summary (150–200 words) on the importance of independent oversight bodies such as the Commonwealth Ombudsman in protecting the rights and wellbeing of refugees and asylum seekers.
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1. Explain how mediation as an alternative dispute-resolution method benefits refugees compared to court hearings. 2. Outline how community legal centres and pro bono legal services support refugees during alternative disputeresolution processes. 3. Describe the role of non-government organisations in promoting legal empowerment and education for refugees in Australia. 4. Identify one non-government organisation that provides specialised support to refugees who have experienced trauma, and explain how this support contributes to their access to justice. 5. Assess the importance of importance of culturally sensitive approaches in resolving disputes for refugees.
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Figure 18.18.2 Amnesty International is an NGO that helps refugees. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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REFUGEES – RESPONSIVENESS OF THE LEGAL SYSTEM 18.19 Indicators of success in achieving justice
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LEARNING OBJECTIVE 18.19 ANALYSE the indicators used to measure the success of achieving justice for refugees.
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Just as with as with asylum seekers, Australia has received both praise and criticism for its ability to provide justice to refugees. However, in the case of refugees, the indicators of success are more positive.
A positive indicator is that in the 2024–2025 financial year, Australia committed to scorcher accepting approximately 21,000 people under its Refugee and Humanitarian Program, representing a slight increase from previous years. During this time, around 20,500 refugees were resettled in Australia, one of the highest annual intake figures in recent history. Most new arrivals originated from countries affected by conflict and persecution, including Afghanistan, Syria, Iraq, the Democratic Republic of Congo and Myanmar.
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Figure 18.19.1 An Australian volunteer service helps refugees, such as Burmese refugee Lucia Marry in Wollongong, settle in and gain independence by giving them driving lessons.
Community support programs play a vital role in Australia’s refugee settlement strategy, particularly in improving access to justice. The Adult Migrant English Program, which provides free English tuition to new arrivals, saw over 32,000 enrolments in 2024, highlighting the strong demand for language and integration support. According to the Australian Bureau of Statistics, about 78% of humanitarian entrants aged 15 to 64 were engaged in paid employment or education within two years of arrival. This active participation not only enhances language skills and community connections but also significantly improves refugees’ ability to navigate legal systems and seek justice effectively.
On another positive, public opinion regarding refugees in Australia is gradually becoming more favourable. A national survey (commissioned by the Asylum Seeker Resource Centre and conducted by Redbridge in 2025) found that 61% of Australians support maintaining or increasing the annual refugee intake, which is a notable rise from previous years. Media coverage has also shown signs of shifting towards more balanced and positive reporting, highlighting successful refugee settlement stories and contributions to Australian society. Despite these positive indicators there are criticisms about the ability of refugees to achieve justice in Australia with indicators demonstrating real issues. Permanent protection visa grant rates have remained low overall, averaging around 10 to 11% between 2017 and 2021. Although there has been a slight increase in recent years,
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grant rates rose to 13.6% in 2022–2023 and further to 16.5% in 2023–2024, reflecting a gradual improvement in visa approvals. These include the fact that refusal rates continue to be high, with the Department of Home Affairs reporting that over 85% of protection visa applications are refused (at the time of writing). Certain nationalities experience refusal rates approaching 100%, which highlights persistent barriers within the protection visa system.
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Nationalities with the highest protection visa refusal rates in Australia typically include individuals from India, China, Sri Lanka, Pakistan and Vietnam. These high refusal rates generally reflect the Department of Home Affairs’ assessment that many claims from these countries do not meet the criteria for protection visas, often because these countries are considered to have a functioning legal system and provide general safety for most of their citizens. Judicial review outcomes continue to show limited success for applicants, with only about 7.7% of judicial review applications overturning refusal decisions (at the time of writing). The majority of appeals are upheld, which emphasises ongoing challenges in securing legal redress within the protection visa system. Processing times have been a significant concern. The former Administrative Appeals Tribunal recorded an average decision time of 104 weeks (over two years) for refugee cases. Since the establishment of the new Administrative Review Tribunal in early 2025, decision times have only improved slightly, currently averaging around 80 weeks, though substantial delays persist. Furthermore, detention periods remain lengthy. Refugees on humanitarian visas face an average detention time of approximately 2.7 years (980 days) as of late 2025, which reflects a slight reduction but is still affecting access to justice in a timely manner.
Figure 18.19.2 Young refugees from Ukraine takes swimming lessons at Bondi Icebergs Swim School.
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Identify one indicator that shows Australia is successfully supporting refugees through its humanitarian program. Outline how participation in community support programs can indicate positive outcomes for refugees. Describe how employment or education participation rates can reflect justice being achieved for refugees. Explain why fair and timely protection visa decisions are an important measure of justice for refugees. Evaluate whether Australia’s approach overall is effective in achieving justice for refugees, based on the indicators discussed.
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18.20 Barriers to achieving justice LEARNING OBJECTIVE 18.20
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ANALYSE the barriers that prevent refugees from achieving justice within the legal system.
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Despite Australia doing well in some areas, there are barriers to achieving justice as can be seen in the criticisms discussed in the previous section. As well, challenges remain with those who are not recognised as refugees but as unauthorised arrivals and are subject to Australia’s offshore processing and detention policies.
Mental scorcher health concerns for refugees continue to be a serious issue. Recent studies from 2024 indicate that around 65% of former detainees report experiencing moderate to severe mental health conditions such as post-traumatic stress disorder, anxiety or depression. While self-harm incidence rates in detention centres have decreased due to enhanced mental health supports, they remain alarmingly high, estimated to be 50 to 70 times higher than rates observed in the general Australian population. These findings highlight ongoing humanitarian concerns related to detention conditions and post-detention life. Ongoing issues interfere with the ability of refugees to achieve justice. Access to legal representation remains a major challenge for refugees in Australia due to limited funding for legal aid, leaving many to navigate the complex refugee status determination and appeal processes without proper guidance, increasing the risk of unfair outcomes. The complexity and length of these procedures, combined with language barriers and cultural differences, even with interpreter services, further hinder effective communication and case presentation. When problems arise, ignorance about how to deal with them, fear of reprisals and inadequate complaints mechanisms discourage some asylum seekers from seeking legal help or raising grievances.
All these factors act to collectively obstruct timely, fair and humane access to justice. Ongoing reforms are needed to expand legal aid, reduce detention reliance, improve mental health support, and strengthen accountability and transparency in the asylum system.
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Outline two indicators that suggest Australia’s legal system shows responsiveness in supporting refugees. Outline two criticisms regarding the Australian refugee protection visa system. Outline two barriers to refugees in achieving justice in Australia. Evaluate the effectiveness of the Australian legal system in providing justice to refugees, considering both positive indicators and existing criticisms. Use specific evidence to support your evaluation. 5. Discuss the barriers refugees face in achieving justice in Australia. Propose potential reforms that could improve the responsiveness of the legal system. Go online to assign and download questions, view results and more!
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MIGRANTS
Additional support for the depth studies, including a dedicated section on research skills, is available in the Interactive Textbook.
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MIGRANTS – THE NATURE OF THE EXPERIENCE 18.21 The need for protection under the law LEARNING OBJECTIVE 18.21
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DESCRIBE the reasons migrants may need protection under the law.
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A migrant is someone who moves from another country to live temporarily or permanently for reasons including work, study, family reunion or refuge. Migrants are mainly classified as permanent or temporary. Permanent migrants include skilled workers, family members joining relatives and humanitarian entrants, such as refugees. Temporary migrants consist of international students, temporary workers and short-term visitors. scorcher
Australia and migration
Australia has a long history of migration. Events, including the arrival of the First Fleet in 1788, gold rushes and world wars, have seen Australia’s migrant intake swell. This has changed the nature of Australian society.
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Section 51(xxvii) of the Australian Constitution gives the Federal Parliament the power to make laws about immigration. The federal government allows people to travel to, enter and remain in Australia. This permission comes in the form of a visa. For those who wish to come to Australia for a temporary period, visas are issued for studying, short work placements and tourist travel.
Current migration law is contained in the Migration Act 1958 (Cth). This Act has been amended many times and contains more than 500 sections and 200 regulations. In Australia, the Department of Home Affairs assesses all applications from people who wish to migrate to Australia. In December 2017, the Australian government combined many of its agencies into one portfolio called “Home Affairs”.
Migration quotas
Like many countries, Australia enforces restrictions on who can enter and settle permanently. Although COVID-19 significantly affected migration levels, between the peak in 2022–2023 and late 2025, Australia experienced a notable surge in migration. Net overseas migration reached a peak of 556,000 in the year ending September 2023, before falling to 306,000 in 2024–2025. This decrease was mainly driven by fewer temporary arrivals and more departures, while permanent arrivals remained strong. The principal migrant groups came from India, China and the Philippines.
Australia categorises its migration program into several distinct streams, including skilled, family, humanitarian, business and temporary migration. For the 2024–2025 financial year, the permanent migration quota was set at 185,000 places, a target that the government maintained for 2025–2026 under a new multi-year planning approach designed to manage migration more effectively.
The program heavily prioritises the skill stream, which accounts for approximately 132,200 places – roughly 71% of the total quota. This stream focuses on employer-sponsored and regional visas to address critical labour shortages and boost the economy’s productive
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capacity. Meanwhile, the family stream remains centred on demand-driven “partner and child” visas to support family reunification. In 2025–2026, the government also reserved 300 places for special eligibility migrants, such as former residents with significant ties to Australia, ensuring the system remains responsive to diverse personal and economic needs.
Humanitarian program
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Australia’s humanitarian program offers entry to people who cannot safely live in their home countries due to extreme circumstances. The program is flexible, allowing the government to adjust its quota in response to global crises, prioritising regions such as the Middle East, Asia and Africa. For instance, in 2020–2021, the program allocated 17,875 places, including 4,125 extra spots for Afghan refugees amid political turmoil. In late 2023, Australia introduced a special visa for Tuvalu, enabling up to 280 Tuvaluans to work, study and live in Australia due to environmental challenges. The humanitarian program quota for 2025–2026 is set at 20,000 places, maintaining the same level as 2024–2025.
Need for protection
Legal protection is essential for migrants to safeguard their rights, prevent exploitation and discrimination, ensure access to services and justice, and promote social inclusion and participation in society. Without it, migrants are vulnerable to abuse and exclusion. Just as with asylum seekers and refugees, migrants often face challenges that make legal protection very important. Many, especially temporary workers, may suffer exploitation, such as low wages, long hours or unsafe conditions. Language difficulties, not knowing local laws and limited support make migrants more vulnerable. Migrants can experience discrimination, which affects their access to housing, healthcare, education and jobs. Without proper legal protections, migrants can become isolated and excluded from society.
Protecting migrants by law helps not only individuals but also the wider community. When migrants feel safe and supported, they are more likely to settle well, work and contribute positively. Legal protections reduce discrimination and promote respect, creating a safer and more inclusive society for everyone.
Figure 18.21.1 Temporary workers may suffer exploitation like low wages, long hours or unsafe conditions.
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Review 18.21 questions 1. 2. 3. 4. 5.
Define who a migrant is in the Australian context. Identify one reason why legal protection is important for migrants living in Australia. Outline one challenge migrants may face that makes legal protection necessary. Describe how anti-discrimination laws support migrants in their daily lives. Explain how legal protections contribute to migrants’ ability to settle and participate fully in Australian society. Go online to assign and download questions, view results and more!
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18.22 Reasons for encountering the legal system LEARNING OBJECTIVE 18.22
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DESCRIBE the reasons for which migrants encounter the legal system.
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Migrants in Australia frequently engage with the legal system throughout their migration and settlement process. The most common legal issues involve visas and immigration, such as applying for or renewing visas, appealing refusals or addressing breaches. Successfully navigating these complex processes is vital for gaining legal residency, work rights and family reunification, so having legal support is very important. scorcher Being granted a visa does not guarantee long-term residency, or citizenship, and will require interaction with the legal system to enable this. Some migrants have their visa cancelled due to involvement in criminal activity. In fact, according to data released by the Department of Home Affairs through Freedom of Information requests, between January 2022 and December 2024, a total of 2,011 migrants had their visas cancelled. The primary reasons for these cancellations included 409 drug-related convictions, 264 assault offences and 219 child sexual assault offences during that period.
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In criminal cases, migrants might be accused of crimes or be the victim. Interacting with police and courts, whether as defendants, witnesses or victims, means engaging with and navigating legal systems and procedures.
Figure 18.22.1 Migrants may need legal help with workplace problems including unfair treatment, wage disputes, exploitation or unsafe conditions
Migrants may also need legal help with workplace problems including unfair treatment, wage disputes, exploitation or unsafe conditions. While agencies such as the Fair Work Ombudsman and courts provide remedies, understanding these rights and processes can be challenging. Discrimination and harassment based on race, religion or nationality are other issues migrants may face, which may lead to the need for legal intervention. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Family law matters, including reunification, custody, divorce or domestic violence, often require migrants to engage with family courts and support services. However, language and cultural differences can make these legal processes more difficult.
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Migrants may also encounter the legal system when accessing social services such as healthcare, welfare or housing. Legal challenges can arise if eligibility is questioned or services are denied, especially for those on temporary or uncertain visas.
Figure 18.22.2 Migrants need access to social services such as healthcare.
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Review 18.22 questions 1. 2. 3. 4. 5.
Identify two common reasons migrants may need to engage with Australia’s legal system. Outline how visa cancellations can bring migrants into contact with legal processes. Describe how criminal matters can involve migrants in the legal system. Explain how workplace issues can lead migrants to seek legal support. Discuss how barriers such as language or unfamiliarity with Australian laws can affect migrants’ interactions with the legal system.
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18.23 Issues arising from contact with the law LEARNING OBJECTIVE 18.23
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EXPLAIN the issues migrants experience when they have contact with the law.
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Like asylum seekers and refugees, migrants in Australia face many challenges when dealing with the legal system. Language barriers are a major issue. Even if migrants speak English well, understanding unfamiliar legal terms and procedures can be hard. Limited English skills make it even more difficult, leading to misunderstandings or trouble presenting their case. Without proper interpreters, migrants may miss scorcher important information or struggle to take part fully in legal hearings. Many migrants also do not know their legal rights or how Australian laws work. Coming from different countries with different legal systems, they may not realise what protections they have or how to handle problems such as visa issues, workplace disputes or discrimination. This lack of knowledge can delay them from seeking help or cause confusion.
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Cultural differences often lead migrants to avoid formal legal processes, preferring to resolve issues within their communities due to discomfort or mistrust of Australia’s legal system. These differences can hinder communication with lawyers and officials. In addition, many refugees and migrants, especially those with uncertain immigration status, fear authorities because of past experiences with harsh governments, leading to concerns about detention or deportation. This fear can prevent them from reporting crimes or seeking justice. Access to affordable legal help is another challenge. Legal aid services have limited resources and may not cover all cases, while private lawyers can be expensive. Without legal support, migrants find it hard to manage complex procedures or appeal decisions effectively.
Figure 18.23.1 Access to affordable legal help can be a challenge.
Migrants are also vulnerable to exploitation because fear and lack of knowledge often lead them to accept unfair treatment. These legal difficulties can cause great stress and affect their mental health, making it harder to deal with the system. On top of this, Australia’s immigration laws are complex and frequently change, which can cause mistakes that risk visa refusals or deportation.
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RESEARCH 18.23.1 Go to the Department of Home Affairs and find the visa section (https://cambridge.edu.au/redirect/12125). Use the information to answer the following questions.
Overview of visa grants Outline the number of visas granted in the most recent year available and the three visa categories with the highest number of grants.
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Trends over time
Interpret the number of visas granted in the most recent year and categorise the three largest visa types by number of grants.
Skilled visas
Examine the visa data for the most recent year and identify the three visa categories with the highest number of grants.
Family and humanitarian visas
Examine the visa data for the most recent year to determine the total number of visas granted and identify the three largest visa categories by number of grants.
Country of birth
Identify which countries are the top sources of migrants receiving visas and describe Australia’s migration diversity.
Student visas
Identify the trends that can you see in the most recent number of student visas granted. Explain how these trends can be important for Australia’s economy and education sector.
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Review 18.23 questions 1. 2. 3. 4. 5.
Define the term “migrant”. Outline the difference between permanent and temporary migrants. Outline the role of the Migration Act 1958 (Cth) in Australian migration law. Explain the purpose of Australia’s humanitarian migration program. Discuss how section 51(xxvii) of the Australian Constitution influences migration policy in Australia. Outline the impact of recent global events, such as the COVID-19 pandemic and crises in regions such as the Middle East or the Pacific, on Australia’s migration quotas and programs. 6. Explain why legal protection is important for migrants in Australia. Provide some examples of rights or protections they might need. 7. Describe the challenges migrants face when interacting with the Australian legal system. Suggest strategies the government or community organisations could implement to support them better. Go online to assign and download questions, view results and more!
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MIGRANTS – ACCESS TO JUSTICE Similarly to refugees and asylum seekers, migrants in Australia face justice access challenges including language barriers, cultural differences and fear of authorities. All groups may mistrust the legal system due to past experiences or uncertain status, hindering their ability to seek help. Due to their status, migrants do have greater protection under the law and access to legal aid. In addition, NGOs provide support in accessing justice.
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18.24 Protection under the law LEARNING OBJECTIVE 18.24
OUTLINE the international and domestic legal protections for migrants.
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Australia has developed a legal framework aimed at protecting migrants’ rights and providing some level of certainty and fairness. The Migration Act 1958 (Cth) governs all visa-related processes, detention practices, removals. It also instituted procedural scorcher safeguards such as review mechanisms and access to independent tribunals such as the Administrative Review Tribunal. These safeguards help ensure that decisions affecting migrants’ status are subject to oversight.
As migrants are entitled to work in Australia, they are covered by the same employment laws as all employees. The Fair Work Act 2009 (Cth) plays a vital role in protecting migrant workers who might otherwise be exposed to exploitation, wage theft and unsafe working conditions. It guarantees minimum employment standards, workplace rights and remedies against unfair dismissal or discrimination.
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Fair Work Ombudsman
The Fair Work Ombudsman is an independent statutory agency dedicated to promoting fair and lawful workplace practices across Australia. It provides education, advice and assistance to employers and employees to help them understand and comply with workplace laws. The Fair Work Ombudsman also investigates alleged breaches such as underpayment, unfair dismissal and exploitation, with a particular focus on vulnerable groups including migrant workers.
Notable enforcement actions include the 2024 case against Sushi Bay, where operators were ordered to pay $15.3 million in penalties for deliberately underpaying 163 mostly Korean migrant workers; the 2025 penalties of $802,000 secured against Vietnamese restaurants for systemic exploitation of migrant employees; and the ongoing 2025 litigation against Bulmer Farms in Victoria, alleging significant underpayment of migrant workers. Through such actions, the Fair Work Ombudsman ensures workplaces operate fairly, wages are paid appropriately and workers’ rights are safeguarded, contributing to a more equitable labour market.
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Anti-discrimination laws Migrants are also protected by anti-discrimination laws, including the Racial Discrimination Act 1975 (Cth), and various state-based legislation, which outlaw discrimination based on race, ethnicity, nationality or immigration status, thus fostering a legal environment that supports equality and combats systemic bias.
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Fair Work Ombudsman v Yenida Pty Ltd & Anor [2018] FCCA 1342
This case was the first time Australia’s workplace regulator, the Fair Work Ombudsman, won a court case about racial discrimination at work. The owner of the Scamander Beach Resort Hotel in New South Wales, Chang Yen Chang, was taken to court because he unfairly treated a Malaysian husband and wife who had moved to Australia on temporary visas. Mr Chang told the couple they were “like family,” but actually used their shared cultural background to take advantage of them.
The court found that Mr Chang and his company broke the law by discriminating against the couple because of their race and nationality. Unlike other staff, the Malaysian couple was paid much less — more than $28,000 was stolen from their wages. They were forced to work longer hours than Australian staff, and the company kept false records to cover up what was happening. The judge decided that this treatment was serious racial discrimination. The business owner and the company had to pay a total fine of $211,104. Most of the fine went to the company, but Mr Chang was personally fined too for his actions.
This case is important because it showed that underpaying or mistreating workers because of their race or visa status is a very serious crime. Employers can face large fines if they treat migrant workers unfairly based on their background.
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Family law provisions
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Family law provisions provide protection for all victims of domestic violence through restraining orders and enabling fair custody arrangements that prioritise family reunification and children’s welfare. To supplement these statutory protections, organisations such as Legal Aid NSW Multicultural Services and the Refugee and Immigration Legal Services offer a range of culturally sensitive legal aid and support services tailored to migrant communities. These services, often provided by community organisations, NGOs and government bodies, assist migrants in understanding their rights, accessing legal representation and navigating complex bureaucratic processes.
International protections
Australia’s international obligations under key treaties, including the International Covenant on Civil and Political Rights and the 1951 Refugee Convention and the 1967 Protocol, reinforce domestic protections by guaranteeing fundamental rights, such as liberty, security and fair trial for all migrants, and prohibiting the return of refugees to persecution (non-refoulement). While not ratified, the International Convention on the Protection of the Rights of All Migrant Workers signals Australia’s commitment to uphold fair treatment and protection from abuse for migrant workers. Together, these international agreements complement domestic laws to ensure migrants receive fundamental human rights, social inclusion and equitable treatment, by promoting their empowerment, social cohesion and full participation in Australian society free from injustice and discrimination.
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Identify one key piece of Australian legislation that protects the rights of migrants. Outline how the Fair Work Ombudsman supports migrant workers in Australia. Describe how anti-discrimination laws help protect migrants from unfair treatment. Explain how access to legal aid and community legal services supports migrants’ rights. Discuss why workplace laws are especially important for protecting temporary migrant workers.
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LEARNING OBJECTIVE 18.25
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DESCRIBE the functions of authorities that advocate for and protect the rights of migrants.
Advocating for the rights of migrants involves a network of international agencies, national authorities and NGOs all working together to support migrants’ legal, social and humanitarian needs. As seen earlier in the chapter, many of these authorities also advocate for asylum seekers and refugees, but, due to their visa status, migrants have a greater chance of accessingvideo their services. widget reporting
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Government departments and agencies
The Australian Department of Home Affairs manages migration, visas, citizenship, refugee programs and immigration enforcement, including protecting vulnerable migrants. The AHRC promotes human rights, addresses racial discrimination, and supports migrants’ access to justice and inclusion. In New South Wales, Multicultural NSW advances multicultural communities through policy advice, settlement services, and language and engagement quizprograms for newcomers. questions download word
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Non-government organisations
Non-government organisations play a vital role in advocating for migrant rights in Australia. At the national level, the Federation of Ethnic Communities’ Councils of Australia advocates for migrants and refugees by influencing policies and promoting social cohesion, while the Human Rights Law Centre protects their rights through legal advocacy against discrimination and unfair immigration laws. Migrant Resource Centres provide essential services, such as language assistance, employment support and legal advice, nationwide to help migrants integrate.
In New South Wales, community organisations including Settlement Services International, Multicultural Communities Council of Illawarra, Sydney Multicultural Community Services, Cumberland Multicultural Community Services, WestSkills, and Access Community Services provide culturally sensitive support including language assistance, settlement services, employment programs and community advocacy. Together, these organisations form a collaborative network that ensures migrants have access to protection, essential services and equal opportunities, which promotes inclusion, combats discrimination and upholds migrants’ human rights for a more diverse and fair Australian society.
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Figure 18.25.1 The Antipodes Festival in Melbourne is the largest celebration of Greek culture in Australia. Many Greek people migrated to Australia in the 1950s–1970s, and now form a significant part of multicultural Australia.
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Identify one government authority that helps to protect the rights of migrants in Australia. Outline the role of the Australian Human Rights Commission in supporting migrant communities. Describe how Multicultural NSW supports newly arrived migrant communities. Explain how non-government organisations such as Migrant Resource Centres advocate for migrant rights. Discuss why collaboration between government agencies and community organisations is important for protecting migrants’ rights.
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LEARNING OBJECTIVE 18.26
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DESCRIBE how migrants encounter legal processes including law enforcement agencies, courts or tribunals, and dispute resolution methods.
Migrants in Australia may encounter law enforcement agencies such as state and territory police forces and the Australian Border Force in areas of compliance, crime reporting or investigations. While language barriers often hinder communication, agencies are legally required to provide free interpreters and inform individuals of their rights, including legal representation. video widget reporting
Migrants also engage with the Australian court and tribunal system in both immigration-specific and broader legal contexts. For immigration matters, the Administrative Review Tribunal is the principal body where migrants can appeal decisions made by the Department of Home Affairs concerning visa refusals, cancellations or detention. The Tribunal provides a less formal setting than traditional courts, helping to ease access, although legal representation remains important for navigating complex cases. In addition to the Administrative Review Tribunal, some migration-related legal questions may be brought before higher courts quiz questions such as the Federal Court or the Federal Circuit and Family Court. download word
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Beyond immigration issues, migrants may appear in criminal courts if charged with offences or as witnesses, with all defendants entitled to legal representation, interpreters and a fair trial. Migrants may also be involved in civil court matters, including tenancy disputes, family law cases, employment or discrimination claims, and consumer issues. Courts strive to provide interpreting services and cultural support to ensure migrants can understand proceedings and participate fully.
As seen previously, alternative dispute-resolution methods play a vital role in helping migrants resolve conflicts in less formal, more accessible ways than court proceedings. Mediation, conciliation and arbitration offer opportunities for migrants to settle disputes collaboratively, which can be quicker and less intimidating. The Fair Work Commission, for example, provides mediation and conciliation services specifically for workplace disputes, including dismissal claims, underpayment and discrimination complaints. This is crucial for migrant workers who may be unfamiliar with workplace rights or fear retaliation. Community legal centres and migrant resource centres also support migrants by offering advice, assisting with legal processes and facilitating access to dispute resolution services. These organisations help bridge cultural and language gaps, empowering migrants to advocate for their rights effectively outside the courtroom.
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IN COURT 18.26.1 Garland v Minister for Immigration, Citizenship & Multicultural Affairs [2024] Mr Garland’s visa was cancelled by the Minister for Immigration because the Minister decided he failed the “character test,” possibly due to a past criminal record or other concerns. Garland disagreed with this decision and took his case to court, arguing that he deserved a fair chance to explain his circumstances and that the Minister should have considered the impact on his life if he was forced to leave Australia.
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Garland claimed the Minister had not treated him fairly. He said the Minister should have looked more closely at his ties to Australia, the problems he would face if he had to go back to his home country, and any risks to his safety. The courts had to decide if the Minister had followed legal requirements and made a fair decision. The High Court looked at whether the Minister gave Garland a proper, lawful process. The Court decided that the Minister had acted within their legal powers and considered the necessary facts. Garland’s visa cancellation was confirmed.
Significance
This case shows that although the Minister for Immigration has strong powers to cancel visas for character reasons, they must still treat people fairly by looking at all important details and following legal rules. It also sets a guide for how similar visa cancellation cases should be handled in the future.
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1. Outline how the Migration Act 1958 (Cth) provides procedural safeguards for migrants in Australia. 2. Describe the role of the Fair Work Ombudsman in protecting migrant workers. 3. Describe how anti-discrimination laws, such as the Racial Discrimination Act 1975 (Cth), provide protection for migrants in Australia. 4. Outline the family law protections available to migrant victims of domestic violence and the importance of culturally sensitive legal services for these communities. 5. Identify key Australian government agencies and community organisations involved in advocating for migrants’ rights and supporting their access to services. 6. Outline the challenges migrants face when engaging with Australian law enforcement agencies and the court system. 7. Describe alternative dispute-resolution methods available to migrants in Australia and their importance in resolving workplace and other disputes. 8. Outline the Federal Court decision in Garland v Minister for Immigration, Citizenship & Multicultural Affairs [2024]. Explain the significance of balancing personal circumstances with risk assessments in visa cancellation cases. 9. Explain why legal protection and access to justice are critical for migrants’ social inclusion and participation within Australian society.
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18.27 Alternative approaches to justice LEARNING OBJECTIVE 18.27 DESCRIBE alternative approaches to justice available to migrants.
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Migrants in Australia often turn to alternative approaches to justice to resolve disputes and access fair outcomes without the formality, cost and complexity of traditional court processes. These alternative methods provide more culturally sensitive, accessible and timely pathways that can be especially beneficial for migrants who may face language barriers, unfamiliarity with the legal system or fear of formal legal institutions. video
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For migrants, alternative dispute resolution serves as a crucial and culturally sensitive pathway to justice that minimises the stress and complexity often associated with the traditional court system. Mediation allows migrants to collaboratively resolve family, tenancy or workplace disputes with the support of interpreters and cultural advocates, ensuring that language differences do not prevent them from being heard. Conciliation and arbitration provide migrant workers with accessible and supportive alternatives to formal courts. Conciliation, through bodies such as the Fair Work Commission, offers expert help for issues including discrimination and unfair dismissal in quiz questions download word a less intimidating setting. Arbitration delivers private, binding decisions for commercial or employment disputes without the adversarial nature of higher courts. These alternative dispute-resolution methods enable migrants to protect their rights fairly and efficiently.
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Community legal centres and migrant support organisations play a crucial role in improving migrants’ access to justice by offering culturally appropriate advice, interpreter services and representation in mediation or conciliation. Migrants also often rely on informal, community-based conflict resolution through trusted leaders or elders using cultural traditions.
Overall, these alternative approaches complement formal legal systems by providing practical, accessible and culturally sensitive ways to resolve disputes, reducing barriers including language, cost and fear. This fosters a more inclusive justice system that addresses the diverse needs of Australia’s migrant communities.
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Identify one alternative dispute-resolution method that migrants may use instead of going to court. Outline how conciliation through bodies such as the Fair Work Commission can support migrant workers. Describe how community legal centres support migrants in accessing alternative approaches to justice. Explain why culturally sensitive alternative dispute resolution processes are important for migrants. Assess the effectiveness of alternative justice mechanisms in addressing disputes involving migrants.
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18.28 The role of non-government organisations LEARNING OBJECTIVE 18.28
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IDENTIFY non-government organisations that represent the interests of migrants. DESCRIBE the roles non-government organisations fulfil for migrants.
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As seen throughout this chapter, NGOs in Australia play a crucial role in supporting all categories of migrants through a wide range of services and advocacy efforts. One prominent example is the network of Migrant Resource Centres that operates throughout the country. These centres, such as the Migrant Resource Centre North Coast inscorcher New South Wales and Multicultural Development Australia in Queensland, provide essential settlement assistance, language support, employment services and community engagement programs tailored to the needs of migrants and refugees.
National advocacy organisations, such as the Refugee Council of Australia and the Asylum Seeker Resource Centre, promote migrant rights through policy development, public education and direct support services such as healthcare and food relief. Complementing this, specialised legal centres, such as the Refugee Advice and Casework Service and the Refugee and Immigration Legal Centre, provide critical legal aid, which helps migrants navigate complex immigration laws and appeals. These NGOs use culturally sensitive approaches and interpreter support to ensure migrants can effectively access justice and combat discrimination. Organisations such as Settlement Services International provide comprehensive support across settlement, housing, education and employment for migrants, primarily in New South Wales but they also have national reach. Additionally, coalitions such as the Migrant Justice Network bring together various stakeholders to advocate for migrant rights and promote fair treatment within the legal and social systems. Together, these NGOs complement government efforts by empowering migrants, facilitating successful settlement, and amplifying migrant voices in community and policy discussions across Australia.
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1. Identify two alternative dispute-resolution methods commonly used by migrants. Briefly describe how each helps migrants resolve disputes. 2. Explain how community legal centres assist migrants in accessing justice through alternative approaches. 3. Construct a table that compares and contrasts the legal rights of asylum seekers, refugees and migrants. 4. Compare and contrast the roles of government bodies and non-government organisations in advocating for the rights of migrants in Australia. Use specific examples. Go online to assign and download questions, view results and more!
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MIGRANTS – RESPONSIVENESS OF THE LEGAL SYSTEM Evaluating the responsiveness of the Australian legal system in delivering justice for migrants involves assessing how accessible and effective the law is in addressing their unique challenges. Key indicators include the availability of culturally appropriate legal services, the successful application of alternative dispute-resolution methods and migrants’ overall satisfaction with legal outcomes. questions
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18.29 Indicators of success in achieving justice LEARNING OBJECTIVE 18.29
ANALYSE the indicators used to measure the success of achieving justice for migrants.
Community legal centres and specialised migrant legal services have been instrumental in supporting migrants across Australia. In 2023–2024, these organisations provided legal aid to more than 5,000 migrants and refugees nationwide. For example, the Refugee and Immigration Legal Centre in Melbourne reported a 15% increase in successful visa applications and appeals compared to the previous year. video widget reporting These achievements reflect both the enhanced capacity of legal centres to assist clients effectively and improved outreach initiatives that offer migrants earlier and clearer access to legal advice. Successes typically include helping migrants secure protection visas, family reunification and work entitlements by navigating complex immigration laws and representing clients in tribunals such as the Administrative Review Tribunal. Contributing factors include better interpreter services, culturally sensitive case management and strong partnerships with settlement agencies that address barriers early in migrants’ engagement with the legal system. quiz
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Figure 18.29.1 The Transport Workers Union found Lihong Wei was entitled to workers’ compensation after her husband, Chinese migrant and food courier Xiaojin Chen, died colliding with a bus while on duty delivering food in Sydney in September 2020.
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Workplace disputes remain a significant concern for migrants, who accounted for about 35% of cases managed by the Fair Work Ombudsman in 2023. Migrants often work in sectors vulnerable to wage theft and unfair treatment including hospitality, cleaning and construction. Common issues include unpaid wages, unfair dismissal and discrimination linked to migration status or ethnicity. The Fair Work Commission and the Fair Work Ombudsman primarily use conciliation – a less formal, mediation-focused approach – to resolve these disputes effectively and efficiently. Outcomes frequently involve back payments, reinstatement or workplace policy improvements. Additionally, NGOs and migrant worker advocacy groups have enhanced migrants’ awareness of workplace rights and supported them in filing complaints, increasing accessibility to dispute resolution. Despite these advances, many migrants still face considerable barriers to justice. The 2023 Australian Bureau of Statistics Social Survey found that 38% of migrants experienced difficulties accessing or understanding legal services. Major obstacles include language and communication challenges, limited knowledge of rights and available support, fear of interacting with authorities due to immigration concerns, and financial barriers to private legal representation when needed. These factors often lead to delays or avoidance of legal action, increasing migrants’ risk of exploitation and injustice.
Limited resources make it hard for legal and support groups to help all migrants. In 2023–2024, only about 45% of migrant requests for legal help were fully answered because of insufficient funding. This caused long wait times, delays for urgent help and fewer programs to teach people about their legal rights. There are also not enough interpreters and cultural support workers, which affects the quality of services.
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Identify one indicator that shows migrants are receiving effective legal assistance in Australia. Outline how workplace dispute outcomes can be used to measure justice for migrants. Describe how service access rates can indicate migrants’ ability to achieve justice. Explain why migrants’ confidence in reporting exploitation is an important marker of justice. Evaluate the overall effectiveness of Australia’s legal responses to migrant issues, based on the indicators discussed.
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18.30 Barriers to achieving justice LEARNING OBJECTIVE 18.30
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ANALYSE the barriers that prevent migrants from achieving justice within the legal system.
As seen throughout this chapter and in the discussion in the previous section, migrants (of any form) in Australia face ongoing barriers that hinder their ability to access justice and navigate the legal system effectively. A major challenge is limited English proficiency, which can make understanding legal rights and procedures difficult. Although interpreting services exist, they are sometimes inadequate or video widget reporting culturally inappropriate, further complicating communication.
Many migrants lack awareness of Australian laws and their legal rights, hindering their ability to identify violations or seek help. Financial barriers, such as costly legal fees and limited access to free or subsidised legal aid, further restrict their access to justice. Fear of authorities, including concerns about detention or deportation, discourages some migrants from reporting crimes or seeking assistance. Systemic discrimination within law enforcement and legal systems also contributes to mistrust and reluctance. The complexity of, and frequent changes in, immigration laws create additional challenges, quiz and culturally questions with limited availability of expert appropriate legal anddownload mentalword health support – especially in regional areas. Moreover, the shift to online services disproportionately affects migrants with low digital skills or poor internet access.
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In conclusion, Australia’s legal and NGO sectors have made significant progress in facilitating justice for migrants through improved visa outcomes, workplace dispute resolution and advocacy efforts. However, challenges remain around language barriers, resource constraints, procedural delays and immigration detention. To ensure migrants have fair access to their rights within the Australian justice system, ongoing investment is needed in interpreter services, increased legal aid, targeted outreach, policy reform and culturally sensitive practices. These efforts promote effective communication, cultural safety, inclusive programs and equitable treatment for all migrants.
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Explain how community legal centres contribute to improving migrants’ access to justice. Outline two barriers that migrants face when accessing justice. Suggest one way these barriers can be addressed. Explain the impact of resource limitations on migrant legal assistance. Name one consequence of these limitations. Describe one challenge migrants face due to the increasing reliance on digital platforms for legal services. Suggest a strategy to overcome it. 5. Evaluate how partnerships between non-government organisations, government agencies and settlement services can create more responsive legal support networks for migrants. What challenges and opportunities are there in coordinating these efforts? Go online to assign and download questions, view results and more!
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Asylum seekers are in a temporary, indeterminate state. Asylum seekers have the right to seek protection and are safeguarded by the principle of non-refoulement, meaning they cannot be returned to danger. Asylum seekers do not have full rights until their refugee status is recognised, often facing restrictions on work, movement and access to services while their claims are being assessed. Refugees enjoy specific protections under international law, including non-refoulement. Refugees have rights to work, education, healthcare and social services. Refugees usually have access to family reunification and usually a pathway to permanent residency or citizenship in the host country. Migrants’ rights depend largely on their visa or residency permits and are regulated by immigration laws rather than international protection based on persecution. All three groups generally have some rights to legal representation and appeal processes related to their status or visa conditions. The access to social services, freedom of movement and employment rights are typically more limited for asylum seekers, more robust for refugees and dependent on visa conditions for migrants.
Multiple-choice questions
1. What is the primary difference between an asylum seeker and a migrant? A. An asylum seeker is someone who moves voluntarily for work or education, while a migrant is fleeing persecution. B. An asylum seeker is a person seeking international protection and has applied for refugee status, while a migrant moves for reasons such as work, family or study without necessarily seeking refugee protection. C. Migrants are always allowed to stay permanently, whereas asylum seekers are only temporary visitors. D. Asylum seekers are citizens of the country they move to, while migrants are always non-citizens.
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2. In Australia, which government agency is responsible for assessing and granting refugee status? A. Department of Home Affairs B. Australian Federal Police C. Fair Work Commission D. Immigration Detention Centres
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3. Which body can asylum seekers appeal to if their refugee status application is denied in Australia? A. Australian Human Rights Commission B. Administrative Review Tribunal C. Fair Work Australia D. Federal Police 4. What is the primary purpose of the Migration Regulations under the Migration Act? A. To establish Australia’s tax system B. To regulate environmental protections C. To set detailed rules and criteria for different visa classes D. To govern Australia’s education system 5. Which of the following is a key principle of Australian migration law? A. Controlled entry and lawful presence of non-citizens B. Automatic granting of permanent residency to all visitors C. Free and unlimited access to work for all migrants D. Deportation without review or appeal
Short-answer questions
1. Explain the principle of non-refoulement and its significance for asylum seekers, refugees and migrants in Australia. 2. Describe the differences in rights and access to services between asylum seekers and refugees in Australia. 3. Compare the legal protections and rights available to asylum seekers, refugees and migrants under Australian migration law.
4. Outline the pathway an asylum seeker might take to become a permanent resident or citizen in Australia.
5. Assess the ability of any type of migrant who comes to Australia to access just legal outcomes.
Extended-response question
To what extent are asylum seekers, refugees and migrants able to achieve justice under Australian law?
Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: • •
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describe the reasons LGBTQIA+ people may need protection under the law describe the reasons for which LGBTQIA+ people encounter the legal system explain the issues LGBTQIA+ people experience when they have contact with the law outline the international and domestic legal protections for LGBTQIA+ people describe the functions of authorities that advocate for and protect the rights of LGBTQIA+ people describe how LGBTQIA+ people encounter legal processes, including law enforcement agencies, courts or tribunals) and dispute resolution methods describe alternative approaches to justice available to LGBTQIA+ people identify non-government organisations that represent the interests of LGBTQIA+ people describe the roles non-government organisations fulfil analyse the indicators used to measure the success of achieving justice for LGBTQIA+ people analyse the barriers that prevent LGBTQIA+ people from achieving justice within the legal system.
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RELEVANT LAW
IMPORTANT LEGISLATION
Human Rights (Sexual Conduct) Act 1994 (Cth) Sex Discrimination Act 1984 (Cth) Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) Assisted Reproductive Technology (ART) Act 2007 (NSW) Anti-Discrimination Amendment (Religious Vilification) Act 2023 (NSW) Adoption Amendment (Same Sex Couples) Act 2010 (NSW) Criminal Records Act 1991 (NSW) Conversion Practices Ban Act 2024 (NSW)
INTERNATIONAL TREATIES, PROTOCOLS AND CONVENTIONS
Convention on the Elimination of All Forms of Discrimination against Women (1979) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966)
SIGNIFICANT CASES Toonen vs Australia (1994, HRC) Commonwealth v Australian Capital Territory [2013] 250 CLR 441 NSW Registrar of Births, Deaths and Marriages v Norrie [2014] 250 CLR 490 Re Kelvin [2017] FamCA 78 Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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THE NATURE OF THE EXPERIENCE 19.1 The need for protection under the law LEARNING OBJECTIVE 19.1
reporting
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the reasons LGBTQIA+ people may need protection under the law.
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Writing focus 19.1 Question words note taking
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The abbreviation LGBTQIA+ stands for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Asexual. The plus sign (+) includes people with other sexual orientations or gender identities that are not represented by the letters in the acronym. These communities’ rights have been affected by the laws around the world for centuries. In Australia, there are many reasons why LGBTQIA+ people may need scorcher protection under the law to ensure they are treated fairly and equally. Laws can help protect people from discrimination, harm and harassment, recognise relationships and families, and promote inclusion, dignity and equal opportunity. The Victorian government funded a national health and human wellbeing survey run by La Trobe University in 2020. The survey found that 57% of participants reported being treated unfairly because of sexual orientation and 77.5% of transgender people reported they had been treated unfairly because of their gender in the previous 12 months. The statistics highlight the inadequacies of the law. However, as societal attitudes evolve, law reform can help ensure that the system reflects contemporary values and promotes justice. Legal protections for LGBTQIA+ people not only safeguard individuals from discrimination and harassment but also support equality, recognition and full participation in society.
Figure 19.1.1 Mardi Gras Parade, Sydney 2023
According to the 2025 Australian Institute of Health and Welfare findings, distinct forms of abuse that LGBTQIA+ people face include: • pressure to conform to traditional gender norms or interference with access to gender-affirming healthcare
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• corrective sexual assault (sexual assualt with the intent of changing the victims sexual orientation) • threatening to disclose a person’s sexual orientation, gender identity, intersex status or HIV status without their consent • exile of a person from their family due to sexuality or gender identity • conversion practices and conversion therapies • coerced or non-consensual medical interventions.
conversion therapies harmful practises that are based on changing or supressing someone’s gender identity or sexual orientation
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Historically it was widely believed that only two genders existed, male and female. People who did not identify with these categories often faced discrimination and exclusion. However, contemporary Australian society increasingly recognises a diversity of gender identities. This includes people who identify as transgender, non-binary, gender fluid and other gender-diverse identities. Despite this growing recognition, many gender-diverse people continue to experience discrimination, harassment or unequal treatment, highlighting the need for legal protections.
HIV status refers to a person who has been infected with the human immunodeficiency virus
transgender a person whose gender identity is different from the sex they were assigned at birth non-binary a person whose gender identity does not fit into male or female categories, and the individual may use they/them pronouns or identify as something other than female or male gender fluid a person whose experience of gender is not fixed and may shift depending on feelings, time, experiences and more
Figure 19.1.2 A collection of LGBTQIA+ pride flags
REVIEW 19.1 Online quiz
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Review 19.1 questions 1. Identify two reasons why LGBTQIA+ people may require protection under the law in Australia. 2. Describe one form of harm or unequal treatment that LGBTQIA+ people may experience. 3. Summarise how changing societal views can lead to legal reforms that improve protection for LGBTQIA+ people. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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19.2 Reasons for encountering the legal system LEARNING OBJECTIVE 19.2 DESCRIBE the reasons for which LGBTQIA+ people encounter the legal system.
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In June 1969, a police raid on the Stonewall Inn, a gay bar in New York City, sparked a series of protests and riots known as the Stonewall Inn uprising. This event acted as a catalyst for significant global social change. In 1969, the Homosexual Law Reform Society of the A.C.T. was formed, as well as Daughters of Bilitis (which was later known as the Australasian Lesbian Movement). South Australia was the first state to formally decriminalise homosexual acts in 1975. Reform was strongly influenced by the public reaction to the 1972 death of Dr George Duncan, a gay law lecturer who drowned after being thrown into Adelaide’s Torres River in an attack in which police officers were widely suspected of being involved.
U N SA C O M R PL R E EC PA T E G D ES
reporting
Writing focus 19.2 Conjunctions note taking – (subordinating reasons why)
Historically, LGBTQIA+ people often experienced limited legal protection and were subject to significant legal and social discrimination. Under common law, Australia inherited aspects of England’s Buggery Act 1533, which was created under the rule of Henry VIII. Although the legislation applied more broadly, it was frequently used to criminalise sexual relationships between men. In some Australian jurisdictions, scorcher offences derived from buggery laws continued to attract severe penalties, including the death penalty, until 1949. The historical attitudes towards homosexuality largely come from religious beliefs, social norms, legal traditions and, at various times, medical and psychiatric views.
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In 1978, LGBTQIA+ activists in Sydney organised a protest and march to advocate for equal rights. Police intervened and arrested numerous participants, many of whom were later publicly identified in the media. This event fuelled the fight for equality and was the foundation of the annual Sydney Gay and Lesbian Mardi Gras. It also largely affected the negative relationship between police and the community.
Figure 19.2.1 Plaque at the Stonewall Inn, designated a US National Monument by President Barack Obama in 2016
By 1990, homosexuality had been decriminalised by all Australian states and territories except Tasmania, which would keep the law until 1997. The Human Rights (Sexual Conduct) Act 1994 (Cth) was largely a response to Tasmania’s continued criminalisation of male homosexual conduct. It established that consensual sexual conduct between adults in private should not be subject to arbitrary interference by the state. The legislation relied on the Commonwealth’s external affairs power to implement Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR).
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The Sex Discrimination Act 1984 (Cth) introduced anti-discrimination laws at a federal level. It primarily dealt with discrimination on the basis of sex, marital status and pregnancy. Protections relating to sexual orientation, gender identity and intersex status were added much later through amendments in 2013.
Sex Discrimination Act 1984
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5A Discrimination on the ground of sexual orientation
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person.
Figure 19.2.2 Anthony Albanese and Penny Wong marching in the 2022 Mardi Gras in support of LGBTQIA+ people
The Act also established the office of the Sex Discrimination Commissioner, which operates within the Australian Human Rights Commission and promotes equality while addressing complaints of unlawful discrimination. While contemporary Australian society has become more accepting of LGBTQIA+ people, many people still experience discrimination, violence, inequality and harm. The law aims to provide protections, but the historical entrenchment of discrimination and mistreatment continues to present challenges for some LGBTQIA+ people.
MEDIA 19.2.1
The “ugly”, ignored history of LGBTQ+ hate crimes should not be allowed to fade Michael Burge, The Guardian, 23 December 2023
After 66 days of public hearings, testimony from 38 witnesses, and more than 150,000 tendered documents, the New South Wales special commission of inquiry into LGBTIQ+ hate crimes published its final report this week – all 3,000 pages of it. So, what did we learn?
Justice John Sackar shines a stark light on the state’s history of LGBTQ+ hatred in that report, yet despite 19 recommendations – including four cases singled-out for new inquests – even he acknowledges the issue might fail to make a dent in hearts and minds. “There is always a risk that history such as this will fade from – or never truly enter – the broader public consciousness, and even the consciousness of members of the LGBTIQ community who did not live through this period,” he wrote.
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“The history of violence against the LGBTIQ community is an ugly one, but the trauma to and resilience of the LGBTIQ community through that period should have enduring recognition.”
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Writing that it’s not his role to extrapolate, Sackar nevertheless explores what that recognition might look like: heritage walks, oral histories, or monuments. But while the LGBTQ+ community is more visible after decades of protest and law reform, and many of the crimes against us are more clearly on the record now that the inquiry’s work is done, it feels like we’re only just starting to look at what drove every episode of this shameful era, which just doesn’t feel like it’s coming to an end. Hatred of LGBTQ+ people should not be labelled a phobia. The commission and its predecessors – all those inquiries and police case reviews – usually limited the terminology to vague descriptions of anti-LGBTQ+ bias, or animus. That doesn’t seem strong enough to describe a revulsion that leads to killing – a revulsion apparently so elusive to investigators that unless its impacts are documented at crime scenes, it often remains invisible. It’s a dehumanising level of loathing, and it’s well past time to get real about it.
Consider the cold case of 27-year-old gay man Gerald Cuthbert, whose body was discovered in October 1981 with 62 stab wounds and a cut throat, in what was described as a “frenzied” knife attack at his Paddington home. One of Sackar’s recommendations is a reinvestigation into Cuthbert’s murder, which the commissioner was satisfied could have elements of anti-LGBTQ+ bias.
ANALYSIS 19.2.1
Read Media 19.2.1. and answer the following questions.
1. Identify why some hate-motivated crimes from past decades may not have been properly recognised or investigated at the time. 2. Outline the key concerns raised by Justice John Sackar regarding how we remember the history of violence against LGBTQIA+ people. 3. Outline the ways the extract suggests formal inquiries and commissions have attempted to address past violence against LGBTQIA+ people, and the limitations of these efforts. 4. Describe the ongoing challenges in recognising and documenting anti-LGBTQIA+ bias in past crimes.
REVIEW 19.2 Online quiz
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Review 19.2 questions 1. 2. 3. 4.
How does historical treatment and trauma affect how people interact with the law? Identify which state was the first to formally decriminalise homosexuality and the catalyst for the reform. With reference to evidence, outline why LGBTQIA+ people may need protection under the law. Describe how both advocacy and campaigning have led to law reform for LGBTQIA+ people. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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19.3 Issues arising from contact with the law LEARNING OBJECTIVE 19.3 EXPLAIN the issues LGBTQIA+ people experience when they have contact with the law.
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For a very long time, the law did not reflect all of society’s values and needs. LGBTQIA+ people were often silenced, criminalised and shamed. Therefore, sexual and gender minority groups were left unprotected and unsupported by legislation and law enforcement. This created tension and a lack of trust between LGBTQIA+ communities and law enforcement. There is alsowidget extensive evidence that the deaths video reporting of LGBTQIA+ people were not properly investigated by police. This was highlighted in the Special Commission of Inquiry into LGBTQIA+ hate crimes. The Australian Institute of Health and Welfare has identified that there has been a severe lack of reporting on the health and wellbeing of LGBTQIA+ people. This can be seen through things such as gender misidentification or limitations and data collection issues. Some research and surveys have been conducted, but many have been limited to those who identify as quiz questions gay, lesbian, heterosexual or bisexual, and omitted transgender, non-binary, gender-diverse and intersex people. Therefore, the interests of LGBTQIA+ people are not being understood or met through the lack of representation in statistical data.
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Writing focus 19.3 Noun phrases note taking (identify)
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In addition, the Australian Institute of Health and Welfare have also identified members of LGBTQIA+ communities as being at a higher risk for domestic and sexual violence. This Figure 19.3.1 Protestors gather in Taylor Square, Sydney, during a rally against police brutality, 2013. may be because of the lack of reporting due to the fear of shame or the idea of “outing” a person’s sexual orientation heteronormativity the or gender identity. Another factor is that many of our legal supports are based on the belief or assumption that idea of heteronormativity. In 2019, the Australian Institute of Health and Welfare’s heterosexual relationships (between a man and survey found that one in two people in LGBTQIA+ communities had experienced women) are the “normal” sexual assault at some point in their lives. This statistic demonstrates the high levels way for people to live, of violence that LGBTQIA+ people continue to face in contemporary society. which does not consider
MEDIA 19.3.1
diversity
Experiences of homophobia “happening every day” in Australia’s most progressive city Monte Bovill, ABC, 23 November 2025
Luke was only minutes into his first shift at his new workplace when he began hearing his colleagues making homophobic comments. “I was scared out of my mind. I was fearing for my safety.” Luke, whose name has been changed to protect his identity, said. “I just had to leave; it was the only option.” Since that day, the Canberra man has been left “terrified”, saying he does not feel safe being himself in public. “I feel if I go out in public, I am putting myself on the line every single time,” he said. “It’s disappointing and it tears my heart out of my chest a bit because I just want to be happy being who I am.” Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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But it was comments from his colleagues about the gay dating and hook-up app Grindr that concerned him the most. “They started talking about how they were using Grindr to go around and beat up gay people,” the sales assistant said. “They were all laughing about it and smiling about it. “How are you sleeping straight at night knowing that you are hurting someone else purely because of who they want to love?”
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While it is unclear if Luke’s colleagues were actually using Grindr to target gay people, his experience came just months after three homophobic attacks in Canberra, in which men reported being lured to meetings by fake or deceptive profiles on the dating app.
According to police, the victims were met by groups of teenagers and then assaulted and, in some cases, robbed and subjected to homophobic slurs. ACT Policing identified 10 people of interest and executed 10 search warrants, but the matters did not proceed to court, at the request of the victims. “Support services have been provided to the victims and should they wish for their matter to proceed, this can occur in the future,” a police spokesperson said. Joshua Anlezark, the CEO of LGBTQIA+ community organisation Meridian, said the attacks have had a lasting impact. “It was really scary and really concerning for community that this was happening,” he said.
Despite there being an “incredible richness and depth” to LGBTIQA+ communities in Canberra, Mr Anlezark said it could still feel like an isolating place for some people. “We are seeing a global context where there is a permissiveness of hate speech and marginalisation,” he said. “No matter how welcoming and inclusive we want to be, that is creeping in.” “There are experiences of homophobia, transphobia, biphobia and stigma around HIV happening in the ACT every day.”
ANALYSIS 19.3.1
Read Media 19.3.1. and answer the following questions.
1. Describe how Luke’s experience in his workplace affected his sense of safety and wellbeing. 2. Identify the behaviours or comments from Luke’s colleagues that contributed to his decision to leave the workplace. 3. Summarise the pattern of homophobic attacks in Canberra listed in the extract, as well as the police response to these incidents. 4. Outline the concerns raised by community organisation Meridian regarding the broader social climate for LGBTQIA+ people in Canberra. 5. Describe the ongoing impact of discrimination and hate speech on individuals and communities.
REVIEW 19.3 Online quiz
Review questions
Access sample responses and results
Review 19.3 questions 1. 2. 3. 4.
Describe why trust in the legal system may be difficult to build for LGBTQIA+ people. Outline why reporting of incidents may be lower in LGBTQIA+ communities. Summarise how historical treatment may continue to effect LGBTQIA+ communities’ experience with the law. To what extent do societal values affect the application of the law? Support your response with reference to LGBTQIA+ people. Go online to assign and download questions, view results and more!
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ACCESS TO JUSTICE 19.4 Protection under the law LEARNING OBJECTIVE 19.4
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OUTLINE the international and domestic legal protections for LGBTQIA+ people.
Domestic law Discrimination
Writing focus 19.4 Transitional note taking phrases
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State legislation provides protections that are specific and detailed, and which are generally guided by federal legislation. For example, the Anti-Discrimination Act 1977 scorcher (NSW) includes provisions against harassment, vilification or unequal treatment based on race, age, gender, sexuality, disability and more. Interestingly, the definition of discrimination is based on the international law definition found in the 1975 International Convention on the Elimination of all forms of Racial Discrimination. This convention was recognised as groundbreaking at the time as it was the first convention that broadly protected against numerous forms of discrimination. Currently, in 2026, a review by the NSW Law Reform Commission is taking place regarding the adequacy of this legislation. This is the second major review. In 1991 recommendations were made to simplify the structure, expand protected areas and better reflect society’s changing needs.
The Sex Discrimination Act 1984 (Cth) provides legal protection against discrimination based on sexual orientation, gender identity or relationship status. The aim of this Act is to make it unlawful to treat anyone unfairly in areas such as employment, education, housing and harassment. Originally, this Act was introduced to satisfy Australia’s international obligation to ratify the Convention on the Elimination of All Forms of Discrimination against Women (1979). However, in 2013, amendments were made to add specific protections for gender identity, intersex status and sexual orientation. The name of these amendments was the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). This Figure 19.4.1 Recognising “marital or relationship status” has been a crucial legal protection for LGBTQIA+ people and couples. further allowed protections by changing the definition of “marital status” to include “marital or relationship status”. These protections are vital for LGBTQIA+ people, who are vulnerable to discrimination as a minority group with a history of unfair treatment.
Conversion practices Stand-alone offences have also been introduced in New South Wales, such as the prohibition of conversion practices to attempt to change or suppress a person’s sexual orientation or gender identity. The Conversion Practices Ban Act 2024 (NSW) includes taking a person overseas or interstate to partake in these illegal practices. This Act commenced on 4 April 2025, and used other jurisdictions that had already Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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put protections in place such as Victoria, Queensland, the Australian Capital Territory and New Zealand as inspiration. The Act states what is – and what is not – a conversion practice. Conversion Practices Ban Act 2024 Section 3
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(1) In this Act, a “conversion practice” means a practice, treatment or sustained effort that is–
(a) directed to an individual on the basis of the individual’s sexual orientation or gender identity, and (b) directed to changing or suppressing the individual’s sexual orientation or gender identity. …
(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section –
(a) stating what relevant religious teachings are or what a religion says about a specific topic, (b) general requirements in relation to religious orders or membership or leadership of a religious community, (c) general rules in educational institutions,
(d) parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.
MEDIA 19.4.1
Why Australia needs a national ban on conversion therapy
Larissa Sandy, Anastasia Powell and Rebecca Hiscock, The Conversation, 8 September 2020 In recent weeks, Queensland and the ACT became the first Australian jurisdictions to ban conversion therapy. Both passed laws making the widely discredited practice a criminal offence. While this is progress, it is not enough to adequately protect LGBTIQ Australians from the devastating impact of conversion therapy. A national approach is needed.
What is conversion therapy?
Conversion therapy involves practices aimed at changing the sexual orientation, gender identity or expression of lesbian, gay, bisexual, trans and gender diverse people. The goal is achieve an exclusively heterosexual and cisgender identity (in other words, where a person’s gender identity matches that assigned at birth).
In Australia, religious-based conversion therapy is most common, and includes things like counselling for “sexual brokenness”, prayer, scripture reading, fasting, retreats and “spiritual healing”. According to the International Rehabilitation Council for Torture Victims, so-called “therapeutic” measures can also include forms of abuse like beatings, rape, electrocution, forced medication, confinement, forced nudity, verbal abuse and aversion therapy. Even
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more extreme measures throughout history have included castration, lobotomy and clitoridectomy. Crucially, conversion therapy does not refer to interventions that help affirm a person’s lived gender identity, such as for transgender people.
How widespread is it?
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There are no studies of the prevalence of conversion therapy in contemporary Australia, but a 2018 Human Rights Law Centre/La Trobe University report pointed to the United Kingdom as a reasonable comparison. The UK’s 2018 national LGBT survey saw 2% of respondents report having undergone conversion therapy, with a further 5% reporting they had been offered it. People from multicultural and multi-faith backgrounds were up to three times as likely to report being offered it. As The Age reported in 2018, conversion therapies are commonly encountered in religious settings. [They are] hidden in evangelical churches and ministries, taking the form of exorcisms, prayer groups or counselling disguised as pastoral care. They’re also present in some religious schools or practised in the private offices of health professionals.
Why does it need to be banned?
The practice causes real harm to survivors, many of whom live with acute and long-lasting distress, psychological damage, feelings of guilt and isolation as a result. Conversion therapy encourages internalised homophobia, self-hatred, shame and confusion about sexuality and gender identity.
In addition to direct harms, the practice also violates human rights. It is opposed by many professional medical and human rights bodies, including the Australian Psychological Society, Australian Medical Association and the United Natiowns. The Independent Forensic Expert Group recently released a statement, stressing the “lack of medical and scientific validity of conversion therapy”. Conversion therapy has already been banned in a number of countries including Brazil, Malta, Germany and parts of Spain, and the United States. Canada is moving towards a national ban, while the European Parliament has condemned the practice. In July, Prime Minister Boris Johnson also pledged a ban in the UK. ...
A national approach is required
While Australia is making welcome progress, a much more comprehensive approach is needed. Conversion practices remain legal in most of Australia, despite their clear harms. Queensland’s ban has been criticised for not capturing the less-formalised practices in religious settings.
It is important to note the UN’s independent expert on sexual orientation and gender identity recommends banning conversion therapy beyond just healthcare to include religious, education, and community settings.
Lawmakers so far have also focused on balancing the rights of LGBTIQ people with religious freedoms. For example, the ACT legislation was amended after Christian schools raised concerns the definition of “conversion” was “vague and imprecise” (the ACT Law Society also criticised the bill as “too broad”). The Morrison government’s controversial religious discrimination legislation, stalled due to COVID-19, may also raise difficult questions for state lawmakers. Legal groups, such as the
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Law Institute of Victoria, have already criticised the proposed legislation for allowing health professionals to put their religious beliefs before the Australian Charter of Healthcare Rights. State-based bans could also be undermined by federal religious freedom exemptions.
A new system is needed
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Australia needs to enact a ban that works in concert with federal human rights and antidiscrimination law, overseen by the Australian Human Rights Commission.
ANALYSIS 19.4.1
Read Media 19.4.1 and answer the following questions. 1. 2. 3. 4. 5.
Define conversion therapy as described in the extract. Identify two reasons the extract gives for why conversion therapy should be banned at a national level. Describe the types of practices that may occur in religious-based conversion therapy settings in Australia. Summarise the concerns raised about the limitations of state-based bans on conversion therapies. Summarise the key arguments for establishing a coordinated national system overseen by the Australian Human Rights Commission.
The right to marriage
Until 2017, it was illegal for same-sex couples to marry in Australia. The Marriage Act 1961 (Cth) alongside state legislations gave heterosexual couples rights that same-sex couples had not been afforded. The journey to marriage equality under Australian law took many steps and legislative reforms.
The NSW Parliament passed the De Facto Relationships Act 1984 (NSW), which was heavily influenced by a 1983 report from NSW Law Reform Commission. The Law Reform Commission Report found deficiencies in the law and made recommendations, such as the ability for de facto couples to take legal action for issues such as settling property disputes. The legislation introduced a property settlement plan for unmarried, heterosexual couples. It also further supported fair and equitable distribution of assets and debts if a long-term relationship were to end, even if the couple was not married. This legislation did not apply to same-sex couples or many transgender and gender diverse people until amendments were made in 1999.
The Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW) was legislation passed by the NSW Parliament, which amended a wide range of statutes in recognition of persons in same-sex relationships. This amendment ensured that the term de-facto applied to same-sex couples and gave them the same rights as heterosexual couples. Before 2004, there was no clear definition of what “marriage” was. However, during this time the common law had adopted the definition of “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. It was argued by some that there was no need to enact a definition of marriage into legislation.
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However, the number of same-sex relationships coming before the courts was steadily increasing. In 2004, the Federal Parliament passed the Marriage Amendment Act 2004 (Cth). This legislation amendment inserted the common law definition of marriage into the Marriage Act 1961 (Cth). This officially codified the definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. This legislation was said to “protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same-sex relationships cannot be equated with marriage”.
U N SA C O M R PL R E EC PA T E G D ES
NSW Parliament then passed the Property (Relationship) Amendment Act 1999 (NSW). This Act extended on the existing legislation named the De Facto Relationships Act 1984 (NSW) to include “domestic relationships”, which gave a broader scope including same-sex couples and others in recognised domestic relationships.
IN COURT 19.4.1
Commonwealth v Australian Capital Territory [2013] 250 CLR 441
In 2013, the Australian Capital Territory passed the Marriage Equality (Same Sex) Act 2013 (ACT). This state legislation attempted to legalise same-sex marriages within the Australian Capital Territory. Federal Parliament acted quickly to bring this case to the High Court. Federal Parliament declared the legislation invalid on the grounds that marriage is an exclusive power under section 51(xxi) of the Constitution and that the legislation was inconsistent with the definition of marriage set in federal law (Marriage Act 1961). Therefore, it would be invalid under section 109 of the Constitution. Later that year, the High Court ruled in favour of the Federal Parliament and found the legislation invalid as marriage was an exclusive power. This therefore meant that the federal government was the only entity with power to allow same-sex marriage across Australia. This is a clear example of the judiciary being responsive to the parliament and how the separation of powers may affect the outcome of legislation. In addition, the division of powers can be clearly observed through the federal government’s ability to overturn state legislation that oversteps its jurisdiction.
The Relationships Register Amendment (Recognition of Same-sex and Gender Diverse Relationship Bills) 2014 (NSW) allowed couples married overseas or in a civil service to register their relationships for administrative purposes. This Bill did not pass and in 2015 lapsed in New South Wales. There was similar legislation in other states, but this still did not mean that marriage equality had been achieved in Australia. This issue remained extremely controversial for many people in Australia. The Australian government did not wish to change the definition of marriage without a clear indication from the Australian public on their stance.
In 2017, the question of whether the definition of marriage should be changed was put to a postal vote. A postal vote is a non-binding optional vote to gauge public opinion on a topic or reform, and this vote took place after the Senate blocked a plebiscite. The controversial nature of this vote led to it being participated in widely by the Australian public. The Australian Bureau of Statistics recorded that 61.6% of people (7,817,247 people) voted yes to the question: “Should the law be changed to allow same-sex couples to marry?” This postal vote was voluntary, not compulsory, and was not binding.
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The postal survey gained a majority “yes” vote, and in response the Federal Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which changed the definition of marriage from “a man and a woman” to “a union of two people”.
[ Yes ]
[ No ]
2,374,362
1,736,838
57.8%
42.2%
U N SA C O M R PL R E EC PA T E G D ES
New South Wales
2,145,629
1,161,098
64.9%
35.1%
1,487,060
961,015
60.7%
39.3%
592,528
356,247
62.5%
37.5%
801,575
455,924
63.7%
36.3%
191,948
109,655
63.6%
36.4%
48,686
31,690
60.6%
39.4%
175,459
61,520
74.0%
26.0%
Victoria
Queensland
South Australia
Western Australia Tasmania
Northern Territory
Australian Capital Territory
Figure 19.4.2 The outcome of the 2017 postal vote to decide whether the definition of marriage should be changed under Australian law
Table 19.4.1 A comprehensive breakdown of the 2017 same-sex marriage vote State / Territory
Yes (no.)
Yes (%)
No (no.)
No (%)
Total
New South Wales
2,374,362
57.8
1,736,838
42.2
4,111,200
Victoria
2,145,629
64.9
1,161,098
35.1
3,306,727
Queensland
1,487,060
60.7
961,015
39.3
2,448,078
South Australia
592,528
62.5
356,247
37.5
948,775
Western Australia
801,575
63.7
455,924
36.3
1,257,499
Tasmania
191,948
63.6
109,655
36.4
301,603
Northern Territory (a)
48,686
60.6
31,690
39.4
80,376
Australian Capital Territory (b)
175,459
74.0
61,520
26.0
236,979
Australia (Total)
7,817,247
61.6
4,873,987
38.4
12,691,234
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Gender rights Gender is very personal and has been historically misunderstood. Many people distinguish between sex (which is typically assigned at birth based on physical characteristics) and gender (which relates to a person’s identity and how they express themselves). The law aims to protect all individuals from harm; this includes gender equality and fair treatment, no matter what your gender is.
U N SA C O M R PL R E EC PA T E G D ES
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) held some significant reforms for people of gender-diverse identities. This legislative reform took place after the 2008 Parliamentary Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality. This inquiry found that there were significant limitations in promoting substantive gender equality and highlighted the need for the Act to become more enforceable. This amendment created a nationwide legal standard, which meant individuals could rely on federal law regardless of how effective their state laws were at the time. It also introduced more inclusive definitions relating to gender identity and intersex status. This legislation was the first in Australia to provide national protections relating to sexual orientation, gender identity and intersex status.
IN COURT 19.4.2
NSW Registrar of Births, Deaths and Marriages v Norrie [2014] 250 CLR 490 (2 April 2014)
Norrie was a Scottish - born person assigned male at birth who, in 1989, had gender affirmation surgery. This is when an individual has a surgical procedure to align their body with their gender identity. After this, Norrie did not identify exclusively as either male or female. In 2009, Norrie applied to the NSW Registry of Births, Deaths and Marriages to have their sex recorded as “non-specific”. At first the registrar approved the application; however, they later told Norrie that the application was invalid. The registrar held the view that he did not have the power to record Norrie’s sex as non-specific as they held the opinion that the answers were limited to male or female. Originally Norrie was unsuccessful in the NSW Administrative Decisions Tribunal, and it was held that all people must be classified as male or female. But the Court of Appeal NSW ruled in Norrie’s favour. Following this, the registrar appealed to the High Court of Australia. The main question was: did the NSW Births, Deaths and Marriages Registration Act 1995 grant the power to record Norrie’s sex as “non-specific”? The court held, unanimously, that the Act recognises that a person’s sex may be ambiguous, so therefore the registrar does have the ability to register Norrie’s sex as “non-specific”. This decision provided legal recognition that not all people identify as either male or female.
The 2013 Australian Government Guidelines on the Recognition of Sex and Gender recognises that individuals may have a gender identity that differs from the sex they were assigned at birth. It was held that this should be reflected in government documents, where people are able to select an option other than just male or female.
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In New South Wales, the Anti-Discrimination Amendment (Religious Vilification) Act 2023 (NSW) was passed to make it unlawful to incite hatred, contempt or ridicule of a person based on belief, affiliation or activity. This reform extends the vilification laws already in place to ensure religion is not an acceptable reason to incite any form of hatred. Anti-Discrimination NSW can refer issues to the New South Wales Civil and Administrative Tribunal which can order an apology or up to $100,000 in damages.
U N SA C O M R PL R E EC PA T E G D ES
IN COURT 19.4.3 Re Kelvin [2017] FamCA 78
Kelvin was assigned female at birth and identified as male from the age of 9. Kelvin was working with numerous medical specialists including endocrinologists (doctors who specialise in hormones) and psychiatrists. All his doctors agreed that Kelvin would be a candidate for stage 2 hormonal treatment.
When Kelvin was 17, his father applied to the Family Court for an order to start this treatment. Stage 1 treatment involves a young person taking puberty blockers to stop development. Stage 2 of treatment includes the introduction of additional hormones that align with the person’s gender identity. The Family Court had set the precedent in another case that before a child or young person started stage 2 treatment, they had to receive approval from the Court. Since the precedent was set, there were 63 cases and 62 of them were allowed to start treatment. The Court questioned whether it should confirm its earlier decision to require court authorisation for stage 2 hormonal therapies. It found that the process of seeking court approval was affecting young people’s mental health. The Court was not in complete agreement, however. The majority held that court authorisation is no longer a requirement if the child is Gillick competent. However, court authorisation will be required if there is any dispute or no legal guardian.
In 2024, NSW Parliament passed a Bill that allows people to change the sex recorded on their birth certificates without the requirement of gender-affirming surgery. This major change was made under the Equality Legislation Amendment (LGBTIQA+) Act 2024 (NSW), which amends the Births, Deaths and Marriages Registration Act (1995) (NSW) and is enacted from July 2025.
Reproductive and parenting rights
Before the 2000s there was very little recognition or support of parental rights for LGBTQIA+ people. Many states in Australia, including New South Wales, deemed single women and same-sex couples as “socially infertile”, meaning they could not access reproductive assistance. These issues stem from the historical and traditional notion that children should have a mother and a father. There are some people that still hold this view within contemporary society. A mix of both federal and state laws originally made it quite difficult for LGBTQIA+ people and couples to access reproductive technologies to have a family. However, the introduction of the Assisted Reproductive Technology (ART) Act 2007 (NSW) has allowed access to medical assistance to start a family for LGBTQIA+ people.
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Laws have slowly been adapting over time regarding parental presumption, but they have not always protected the rights of all parties. For same-sex couples, if a child was conceived through assisted reproductive technology, the federal law recognised the person who gave birth to the child as the legal parent, but not the partner, unless there is a legal parenting or adoptive order made. This significantly affected the rights of the partner. In 2008, the Family Law Act was amended to recognise both partners in a lesbian relationship as parents of a child born if both parties consented to the procedure before it occurred.
U N SA C O M R PL R E EC PA T E G D ES
The Adoption Amendment (Same Sex Couples) Act 2010 (NSW) was a significant reform to the Adoption Act 2000 (NSW) that allowed broader parenting rights. This amendment redefined the term “couple” to mean “two people who are either married to each other or are de facto partners, regardless of their sex”. This definition was a significant reform to the law as it provided a legal basis for couples, regardless of sex or gender, to become parents. It also provided systems for the protection of children and parenting orders in relationship breakdowns.
In 2017, the Australian government ordered a comprehensive review of the family law systems. This review conducted by the Australian Law Reform Figure 19.4.3 Two mothers with their daughter commission had numerous recommendations relevant to LGBTQIA+ people, including using inclusive definitions, greater recognition of gender diversity, avoiding assumptions regarding parenting, discrimination protections for children of same-sex couples. Surrogacy is an agreement between a person who gives birth to a child and that child’s legal guardians. This is generally when a person carries a baby for someone else. The baby may be genetically related or unrelated to the surrogate. Altruistic surrogacy is the only type of legal surrogacy legal in Australia. This means that the person who gives birth receives no financial payment for the pregnancy and birth. In some other countries, commercial surrogacy is legal and people acting as surrogates can be paid for their duties. The only jurisdiction that prohibits certain reproductive assistance to same-sex couples is Western Australia. The WA government introduced a Bill named the Assisted Reproductive Technology and Surrogacy Bill (WA) 2025 to reduce the barriers that are currently in place for LGBTQIA+ people to become parents.
International law
International agreements and obligations that provide protections to LGBTQIA+ people include the International Covenant on Civil and Political Rights. This covenant holds in articles 2 and 26 that discrimination cannot occur. There are also protections for hate-motivated violence and arbitrary detention in articles 6 and 9.
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Article 19 also states that everyone has the right to hold opinions and express them without interference. This has been ratified through the anti-discrimination legislation as well as enforced through the Australian Human Rights Commission.
U N SA C O M R PL R E EC PA T E G D ES
Another international agreement Australia is a signatory to is the International Covenant on Economic, Social and Cultural Rights. Article 2 states that rights are exercised with no discrimination of any kind, including race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It also provides protections against discrimination for LGBTQIA+ people in workplaces and education.
IN COURT 19.4.4
Toonen vs Australia (1994, HRC)
Nicholas Toonen was a man who identified as gay and lived in Tasmania. In 1991 he lodged a complaint with the Human Rights Commission regarding the fact that two men having sexual intercourse was still a criminal offence in Tasmania. Toonen held that under Article 17 of the International Covenant on Civil and Political Rights this law violated his right to privacy. He further pointed out that this Act was in breach of Article 26 as homosexual people were being discriminated against.
Following this, Toonen was fired from his employment as the manager of the Tasmanian AIDS Council due to claims that the Tasmanian government would limit funding if he stayed employed. In 1994, the Australian Human Rights Commission reviewed this case and did agree that the laws in Tasmania went against the international Australia’s international obligations. The federal government then made legislation that overrode Tasmania’s laws criminalising homosexual intercourse.
International Covenant on Civil and Political Rights, Part III, Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
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Outline the legal protections Australia has in place against discrimination. Describe how Nicholas Toonen questioned Australia’s international law obligations. With reference to an example, explain how international obligations influence domestic law. Discuss how gender rights are protected under domestic legislation. Go online to assign and download questions, view results and more!
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19.5 Authorities that advocate for rights LEARNING OBJECTIVE 19.5 DESCRIBE the functions of authorities that advocate for and protect the rights of LGBTQIA+ people.
U N SA C O M R PL R E EC PA T E G D ES
Anti-discrimination authorities
Each state has its own human rights commission or an equal opportunity commission to enforce the anti-discrimination policies put in place by video widget both federal and state governments. An example of this is the Anti- reporting Discrimination Board of NSW, which operates under the oversight of the Department of Communities and Justice. This board administers the Anti-Discrimination Act 1977 (NSW). Its main responsibilities include answering questions, solving complaints, educating people about discrimination and its impacts, managing applications for exemptions from the Act and advising the government about discrimination issues. This board does its best to resolve complaints through conciliation or alternative dispute-resolution processes. quiz
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Equality Australia is a national organisation that aims to improve the lives of LGBTQIA+ people by reducing stigma, relieving disadvantage, promoting inclusion, enhancing safety and assisting with mental health concerns. Recently, Ian Thorpe has been announced as a patron of the group; he actively campaigns for equality and law reform where necessary. In the strategic plan, Equality Australia identified the main ways it will promote Figure 19.5.1 Ian Thorpe joined change: research, policy solutions, advocacy, education, communication, legal Equality Australia in October 2025. action and creating movements.
Gender rights advocacy
Due to the historical suppression of and lack of support for gender diversity, many people have had to fight for rights and protection under the law. Advocacy groups, such as Transcend Australia, support gender diversity and provide services to ensure video people are met.widget reporting that the needs of gender diverse Its strategic plan discusses how it advocates through building ethical research, educating families and communities as well as lobbying and supporting legislative changes by being a voice for the community. Just. Equal is a national lobby and advocacy group that represents LGBTQIA+ people. This organisation actively campaigns and challenges stigma. Just. Equal argues that while most of the community embodies LGBTQIA+ acceptance, the state and federal legislation does not always reflect it. This organisation was founded during the marriage equality campaign and still strives to protect and educate. Some recent advocacy work includes on gay and bisexual men donating quizlifting the banquestions download word blood, which was successful in July 2025. Just. Equal also advocates for the need for a commissioner to represent LGBTQIA+ people at a federal parliamentary level. Advocacy groups such as Just. Equal voice concerns on a large scale and promote justice by putting pressure on government bodies to reform.
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Reproductive and parenting rights advocacy
U N SA C O M R PL R E EC PA T E G D ES
Rainbow Families is an Australian organisation that supports LGBTQIA+ parents and families. This organisation has successfully advocated for expanded Medicare access to fertility treatments, for federal hate crime protections, and surrogacy and legal parentage reforms. It also held Australia’s first LGBTQIA+ antenatal class. It runs diversity training and education courses, as well as hosting “catch ups” and advocacy programs. Rainbow Families also produced a report in 2017 named “Love Makes a Family”, which was a report that outlined systemic discrimination in parenting services. This report was a call to action for governments to promote equality and was discussed in NSW Parliament. Since then, many reforms have taken place.
Figure 19.5.2 Gay and bisexual men are no longer banned from donating blood.
International authorities
Kaleidoscope Human Rights Foundation is based in the Asia–Pacific region and is a foundation that supports the advancement of gender diverse people. This foundation specifically supports the advancement of lesbian, gay, bisexual, transgender and intersex people. This foundation represents communities by writing reports, reviewing United Nations member states’ policies, raising awareness through social media, press or conferencing, and educating people. Outright International works internationally with partners to advocate for inclusion and equality. Its main goals include amplifying the voices of LGBTQIA+ people, supporting, advocating and celebrating. Outright International was founded in 1990 by an activist and has been documenting and standing up to injustices ever since. It also produces news, educational resources and builds support, especially in places where LGBTQIA+ people are not widely supported.
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With reference to one example, describe the role of advocacy groups. Outline the role of the Anti-Discrimination Board of NSW. Explain how advocacy groups encourage cooperation between individuals, groups and nation-states. Assess the effectiveness of advocacy groups in influencing legislative reform. Go online to assign and download questions, view results and more!
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19.6 Contact with legal processes LEARNING OBJECTIVE 19.6 DESCRIBE how LGBTQIA+ people encounter legal processes (including law enforcement agencies, courts or tribunals, and dispute resolution methods.
U N SA C O M R PL R E EC PA T E G D ES
Law enforcement agencies
Historically, many law enforcement agencies have mistreated and targeted LGBTQIA+ people. Recently, the NSW Police Commissioner issued a formal apology to the families of those who were killed in gay hate crimes from 1970 to 2010. This was videoof inquiry into LGBTQIA+ widget following a special commission hate crimesreporting that found the NSW Police Force did not investigate many of these deaths properly. This is just one example of why the relationship is incredibly strained and many LGBTQIA+ people struggle to trust law enforcement agencies. There are active steps being taken by law enforcement agencies to attempt to repair relationships as societal views and values change. The NSW Police Force adopted the LGBTIQ+ liaison officer program in 1990. This program was designed to build trust between LGBTIQ+ people and the police force, as there had been significantquiz tension and distrust. They aim to deliver professional questions download word and accessible policing services for every person. These officers work closely with LGBTQIA+ communities and are specially trained to respond effectively to the needs ot LGBTQIA+ people. These officers are typically identifiable by a rainbow badge on their uniforms and are generally active at community events or are available upon request at police stations. The Australian Federal Police has issued a diversity and inclusion strategy for 2023–2026. They use the acronym “RESULTS” to symbolise their plans towards an inclusive environment. This stands for recruit, educate, support, uplift, lead, track and sustain. While this plan focuses on employee inclusion, the more representation of LGBTQIA+ people in law enforcement agencies, the more trust can continue to be rebuilt.
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Figure 19.6.1 Australian Federal Police
Courts and tribunals
While there are not specialist courts or alternative programs in place in courts, if a crime is committed due to discrimination this can be seen as an aggravating factor during sentencing proceedings. In addition, like in other matters, if the case involves sensitive material the court may be closed or have suppression orders to protect the privacy and safety of all stakeholders.
aggravating factor during criminal sentencing procedures, an aggravating factor is a fact of the case that may make the sentence harsher for the convicted offender
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While there are no specific LGBTQIA+ tribunals set up in Australia, the NSW Civil and Administrative Tribunal (NCAT) can hear matters of discrimination or other complaints within its jurisdiction. This is significant as NCAT is efficient and cost effective compared with the traditional court process. Furthermore, the ruling or agreement can be legally binding and enforceable.
Dispute resolution methods
U N SA C O M R PL R E EC PA T E G D ES
Due to the historical mistreatment, some issues for LGBTQIA+ people are better handled through alternative dispute-resolution processes. Alternative disputeresolution methods generally use a neutral third party to facilitate an outcome that satisfies both parties. These processes can be used to resolve parental arrangements, discrimination matters, employment issues, property matters or other general disputes. Alternative dispute-resolution processes including mediation, conciliation and negotiation and can have positive impacts for LGBTQIA+ people.
Access to the law is significant as LGBTQIA+ people did not always have it. LGBTQIA+ communities require specific and trained professionals to mediate a diverse range of relationships and family circumstances with understanding and respect. There are numerous specific providers that are specially trained, such as Rainbow Families Australia and the Inner-City Legal Centre. These providers allow people to feel safe and comfortable throughout alternative dispute-resolution processes. Discrimination is often handled through conciliation processes, which is a less formal and more affordable way to resolve issues. Conciliation also offers more privacy and a faster resolution than a formal court proceeding. Conciliation for discrimination issues may be run through the Australian Human Rights Commission or state anti-discrimination authorities such as Anti-Discrimination Board of NSW. There are also numerous private alternative dispute-resolution services. If these methods are ineffective, then individuals may Figure 19.6.2 Trained providers can help LGBTQIA+ people need to go through the traditional court systems. understand their rights and access the law.
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1. Identify how law enforcement agencies are attempting to create an inclusive environment for LGBTQIA+ people. 2. Outline alternative dispute-resolution methods and explain at least one of them. 3. Evaluate the effectiveness of alternative dispute-resolution processes for LGBTQIA+ people. Go online to assign and download questions, view results and more!
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19.7 Alternative approaches to justice LEARNING OBJECTIVE 19.7 DESCRIBE alternative approaches to justice available to LGBTQIA+ people. quiz questions
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U N SA C O M R PL R E EC PA T E G D ES
The process for settling discrimination matters can go through the various state or federal human rights bodies in Australia. These proceedings are formal but not court-based and focus on resolving complaints or breaches of human rights. The Australian Human Rights Commission manages complaints that fall under the Sex Discrimination Act 1984 (Cth). State and territories have bodies that manage their specific legislation, such as the Anti-Discrimination Board of NSW. Complaints may be lodged with the Anti Discrimination Board.
Conciliation
Conciliation is a process where an independent third party may help people find a resolution to an issue. This may not be legally binding but involves both parties reaching an agreement. If conciliation fails, then court may be the next step. video
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Restorative justice
Restorative justice programs facilitate active participation and focus on relationship repair. Restorative justice practices have shown a reduction in re-offending for criminal behaviour in general and can be applied in cases involving LGBTQIA+ people. These processes differ to traditional court structures and rely on participation from all parties, including the victim and community. This can include processes such as mediation and circle sentencing. However, it is important to note not all cases can quiz justice practices, questions downloadinvolves word able to be handled via restorative especially if the matter a violent crime.
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Circle sentencing
Circle sentencing is another alternative approach to justice that is available to eligible adult Aboriginal offenders who have been found guilty or have pleaded guilty in a local court. Instead of being sentenced by a judge, community members participate in determining a plan and a sentence for the offender. This process traditionally takes place in a circle that includes the defendant, respected community members, support people and the judge. The victim also has the option to be involved. This is run by the Aboriginal Services Unit and is an alternative approach to justice that aims to be culturally responsive. As First Nations Peoples are heavily affected by the way the legal system operates, this is a significant practice which may offer support and cultural sensitivity.
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Identify what restorative justice programs are. Outline the impact of anti-discrimination bodies in Australia. Outline the effectiveness of alternative approaches to justice for LGBTQIA+ people. Explain why circle sentencing may be more useful for First Nations Peoples in achieving justice.
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19.8 The role of non-government organisations LEARNING OBJECTIVE 19.8
IDENTIFY non-government organisations that represent the interests of LGBTQIA+ people. DESCRIBE the roles non-government organisations fulfil.
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Non-government organisations (NGOs) are pivotal in supporting LGBTQIA+ people through education and advocacy, providing services and general support. These groups often try to protect rights through promoting law reform and writing submissions to the government. In Australia, there are various NGOs that have fought for the rights of LGBTQIA+ people. scorcher Minus18 is a charity organisation that focuses on improving the lives and rights of young LGBTQIA+ people. This NGO runs various events and social gatherings to ensure young people in LGBTQIA+ communities feel safe, respected and valued. Minus18 also provides education resources and offers training in schools and workplaces. Its goals are to improve awareness of the lives of young LGBTQIA+ people.
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The Australian GLBTIQ Multicultural Council is a not-for-profit NGO that looks at the intersection of cultural and religious diversity and LGBTQIA+ identities. Its goal is to support individuals who are affected by issues relating to sexual orientation and gender identity, as well as cultural or religious discrimination. It provides resources and updates online and fostering a safe, supportive community. It offers training and holds social events such as United We Feast. The key focus is intersectionality of a person that makes them who they are.
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CASE STUDY 19.8.1 Campaigning over the postal vote As you learned in section 19.4, in 2017 a non-binding postal vote was put to the Australian public on the question of whether the definition of marriage should be changed to allow same-sex couples to marry. NGOs on both sides of the debate actively campaigned over the postal vote.
The right to marriage: The “Yes” campaign
U N SA C O M R PL R E EC PA T E G D ES
Marriage Equality Australia is a non-government organisation that actively campaigned for a “yes” vote. This NGO ran numerous campaigns, including their #RingYourRellos campaign, which encouraged people to call their family members and advocate for the yes vote. Marriage Equality Australia, along with other organisations, aimed to correct misinformation being spread and raised awareness on the long-standing issues of equality in Australian marriage laws. In addition to work by NGOs there was a documentary produced highlighting the broader struggle for marriage equality within Australia. This was called “Australia Says Yes”. This documentary shows personal struggles and battles for equality in Australia. You can watch the video on their website here: https://cambridge.edu.au/redirect/11821.
Figure 19.8.1 Marriage equality advocate Connor Borchard-Burns campaigns for the Yes vote in September 2017.
The right to marriage: The “No” campaign
One prominent group in the “no” campaign was the Coalition for Marriage, an NGO affiliated with the Australian Christian Lobby. Their main arguments were that first, sexual education would change, and it would hinder parental rights. Second, religious freedoms would be infringed by this amendment. Last, that their advocacy was an expression of free speech. These three points underpinned their philosophy against same-sex marriage.
Similarly, the Australian Conservative Party, led by Senator Cory Bernardi, further supported the argument that same-sex marriage would affect education and freedom of speech. This campaign featured an automated phone call to more than one million landlines in Victoria and South Australia. The message in these phone calls was: “Changing the Marriage Act will limit the right of parents to object to radical gay sex education and gender ideology programs being taught in schools. Removing gender from marriage means removing it from all areas of our society, including our schools.”
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Figure 19.8.2 Lyle Shelton, a spokesman for the Coalition for Marriage, at a press conference in Sydney in November 2017
RESEARCH 19.8.1
Choose one of the LGBTQIA+ advocacy groups below and search for its social media handles. Then answer the following questions. • • •
Equality Australia Rainbow Families Minus18
1. Identify which social media platforms the advocacy group uses. 2. Describe how the advocacy group uses its social media to educate the public about the rights of LGBTQIA+ people. 3. Outline one example of a campaign, message or resource the group has published that aims to raise awareness or promote equality. 4. How do the group’s posts or campaigns help hold the government accountable for protecting the rights of LGBTQIA+ people?
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1. Outline how prominent campaigns such as the “yes” or “no” right to marriage campaigns affect the law. 2. Describe the media’s role in law reform. 3. Discuss the negative implications the media may have on the legal system. Go online to assign and download questions, view results and more!
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19.9 Indicators of success in achieving justice LEARNING OBJECTIVE 19.9
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ANALYSE the indicators used to measure the success of achieving justice for LGBTQIA+ people.
In 2014, the NSW government made it possible for people convicted of historical offences relating to consensual same-sex sexual activity to have these charges removed from their record. Other states had already passed similar legislation. The Criminal Records Act 1991 (NSW) was amended to include Part 4A, which allowed an individual to apply to get avideo criminal convictionwidget removed from their record. To apply, reporting the offence had to have occurred before 1991 and be reviewed by the secretary.
The NSW government recently conducted a landmark inquiry into historic LGBTQIA+ hate crimes, in particular, deaths. The special commission of inquiry examined the period between 1970 and 2010 and published its recommendations in late 2023. The inquiry found numerous issues with the way in which these cases were investigated, recorded and dismissed. This report highlighted the importance of acknowledging past harms and considered the failures of the legal system. It made 19 recommendations, including: quiz
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• inquests into deaths • reviews of unsolved homicides from 1970 to 2010 where sexual orientation may have been a factor • better training for police officers • apologies for the institutional failures.
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In 2024, the NSW government supported all recommendations and formally apologised for past failures. This statement was made on the fortieth anniversary of the decriminalisation of homosexuality in NSW and acknowledged the harm, shame and trauma that was perpetuated by this legislation.
The NSW government also established a task force, named Atlas, to review the unsolved cases. The other recommendations may be implemented over time. This is an example of the legal system responding to past failures and attempting to correct its errors. The NSW government has announced its plans to develop its first LGBTQIA+ inclusion strategy, which is set to be released in 2026.
Figure 19.9.1 Participants carry a giant Progress Pride flag in Melbourne, Pride March 2025.
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This strategy will be written in consultation with LGBTQIA+ people and advocacy groups, with its main goals including to: • understand and address the barriers and inequities faced by LGBTQIA+ communities • progress specific actions that will achieve equitable, inclusive outcomes • celebrate the diversity of LGBTQIA+ people and support them to thrive.
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After years of advocacy and law reform, LGBTQIA+ people are finally being recognised and supported through Australia’s legal system. Last, it is important to acknowledge the significant reforms that have taken and continue to take place. Reforms in marriage, parenting, gender recognition and anti-discrimination rights have made a significant step towards equality.
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Outline how the Criminal Records Act 1991 (NSW) was amended. Describe the impact of the landmark inquiry into LGBTQIA+ hate crimes. Identify one legislative reform that is an indicator of justice for LGBTQIA+ people. Discuss why law reform may be considered an indicator of success towards equality for LGBTQIA+ people. Go online to assign and download questions, view results and more!
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ANALYSE the barriers that prevent LGBTQIA+ people from achieving justice within the legal system.
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The accuracy of data collected about LGBTQIA+ people may be limited due to inaccuracies in recording gender and sexuality information. This may also be due to a limited number of gender or sexuality options on government forms or documentation, which places LGBTQIA+ people at a disadvantage in relation to medical, social and economic support because the data does not reflect reality. scorcher
As mentioned previously, the historical treatment of LGBTQIA+ people has been a significant barrier to achieving justice. The lack of trust and the fractured relationship between LGBTQIA+ communities and law enforcement mean that there is severe under-reporting of issues. According to Article 5.18 of the 2019 NSW Parliamentary Inquiry, 75% of LGBTQIA+ people did not report recent homophobic or transphobic Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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abuse, many due to fear of discrimination by police and mistrust. The NSW Police Force issued hate-crime guidelines in 2021, which list barriers to reporting crimes. The list includes: fear of making it worse humiliation, shame or stigma fear the victim will not be taken seriously fear of a negative reaction cultural or language barriers fear of people knowing that the victim identifies as LGBTQIA+.
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The lack of education and adequate training to support LGBTQIA+ people effectively is another barrier to achieving justice. Identity-based harm and misunderstanding different relationship structures and gender identities leads to inequity in many aspects of life such as health, housing, social and political issues. The University of NSW asked 1,157 specialist family, domestic and sexual violence service workers about their needs and experiences. A majority of workers requested more training to support LGBTQIA+ people. The lack of training may be detrimental to the care or service provided.
Rural and remote communities face a unique set of challenges in relation to achieving justice for LGBTQIA+ people. This is partially due to the lack of services and resources available, such as lawyers or police, as well as the unique social structures and cultures formed in smaller communities, including the stigma associated with being LGBTQIA+. Research commissioned by the Victorian government identified “primary prevention of family violence against people from LGBTI communities” as involving greater systemic stigma and homophobia within rural communities, when compared to urban communities. These issues highlight the greater need for support and protection for LGBTQIA+ people in rural and remote communities.
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Outline why data collection can be a barrier to justice for LGBTQIA+ people. Describe the impact of historical trauma and discrimination on LGBTQIA+ people. Explain how living in a rural or remote area may affect LGBTQIA+ people. Discuss the implications of inadequate training and education for staff supporting LGBTQIA+ people. Go online to assign and download questions, view results and more!
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The abbreviation LGBTQIA+ stands for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Asexual. The plus represents other sexuality orientations or gender identities and variations of sex characteristics. The Victorian government funded a national health and human wellbeing survey run by La Trobe University, which found that 57% of participants reported being treated unfairly because of sexual orientation in the previous 12 months. The Human Rights (Sexual Conduct) Act 1994 (Cth) established protections for private consensual sexual conduct and was directed at laws that continued to criminalise homosexual conduct. The Sex Discrimination Act 1984 (Cth) introduced anti-discrimination laws at a federal level. The Sex Discrimination Act 1984 (Cth) provides legal protection against discrimination based on sexual orientation, gender identity or relationship status. Until 2017, it was illegal for same-sex couples to marry. Marriage Amendment Act 2004 (Cth). alongside state legislation, gave heterosexual couples rights that same-sex couples did not have. In response to the postal vote gaining a majority “yes”, the Federal Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which changed the definition of marriage from being between “a man and a woman” to “a union of 2 people”. The 2013 Australian Government Guidelines on the Recognition of Sex and Gender recognises that individuals may have a gender identity that differs from the sex they were assigned at birth. The Anti-Discrimination Board of NSW operates under the oversight of the Department of Communities and Justice. This board is the main form of administration for the AntiDiscrimination Act 1977 (NSW). Historically, many law enforcement agencies have mistreated and targeted LGBTQIA+ people and communities, which has led to significant distrust. Alternative dispute-resolution methods generally use a neutral third party to facilitate an outcome that satisfies both parties. These processes can be used to resolve parental arrangements, discrimination matters, employment issues, property matters or other general disputes. The Criminal Records Act 1991 (NSW) was amended to include Part 4A, which allowed an individual to apply to get a criminal conviction removed from their record.
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The NSW Civil and Administrative Tribunal can hear matters of discrimination or other complaints within its jurisdiction. The NSW government has announced its plans to develop its first LGBTQIA+ inclusion strategy, which is set to be released in 2026. LGBTQIA+ people in rural and remote communities face unique challenges in achieving justice and accessing support services.
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Multiple-choice questions 1. Under which Act in New South Wales do same-sex couples have equal adoption rights? A. Marriage Act 1961 (Cth) B. Adoption Act 2000 (NSW) C. Civil Liberty Act 2002 (NSW) D. Adoption Act 2002 (Cth) 2. In New South Wales a person who experiences discrimination based on their gender identity can lodge a complaint with: A. the High Court of Australia. B. the Governor. C. the NSW Anti-Discrimination Board. D. their local member of parliament.
3. What took place before the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)? A. Referendum B. Postal survey C. Plebiscite D. Election 4. The vilification of LGBTQIA+ people is addressed under the: A. Discrimination Act 1987 (NSW). B. Anti-Discrimination Act 1977 (NSW). C. Discrimination and Vilification Act 1978 (NSW). D. Family Law Act 1975 (Cth).
5. Which reform allowed people to change their sex on a birth certificate without undergoing gender-affirming surgery? A. Family Law Reform Act 2022 B. Sex Change Amendment 2024 (NSW) C. Equality Act D. Births, Deaths and Marriages Registration Amendment Act 2023 (NSW)
Short-answer questions
1. Outline how the Sex Discrimination Act 1984 (Cth) protects all individuals.
2. Describe how the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) strengthened protections for LGBTQIA+ people. 3. Assess the impact of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). 4. Identify one significant campaign and assess its impact on law reform in Australia. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Extended-response question Evaluate how effective law reform has been in providing protections and equality for LGBTQIA+ people. Video 19.11.1 Answering an exam question
Students may refer to: •
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specific law reform (e.g. Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) or Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)) resource efficiency enforceability responsiveness meeting society’s needs application of the rule of law accessibility protection of individual rights need for law reform upholding community standards or justice.
Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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20 CHAPTER
Australians at war
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This digital chapter can be accessed via Cambridge GO
LESSONS
20.1 The need for protection under the law
20.2 Reasons for encountering the legal system 20.3 Issues arising from contact with the law 20.4 Protection under the law 20.5 Advocates for rights
20.6 Contact with legal processes
20.7 Alternative approaches to justice
20.8 The role of non-government organisations 20.9 Indicators of success in achieving justice 20.10 Barriers to achieving justice
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CHAPTER
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21
People experiencing climate injustice
Enhance your learning with these integrated online resources: Digital workbook
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: • •
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describe the reasons people experiencing climate injustice may need protection under the law describe the reasons for which people experiencing climate injustice encounter the legal system explain the issues people experiencing climate injustice experience when they have contact with the law outline the international and domestic legal protections for people experiencing climate injustice describe the functions of authorities that advocate for and protect the rights of people experiencing climate injustice describe how people experiencing climate injustice encounter legal processes, including law enforcement agencies, courts or tribunals, and dispute resolution methods describe alternative approaches to justice available to people experiencing climate injustice identify non-government organisations that represent the interests of people experiencing climate injustice describe the roles non-government organisations fulfil analyse the indicators used to measure the success of achieving justice for people experiencing climate injustice analyse the barriers that prevent people experiencing climate injustice from achieving justice within the legal system.
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RELEVANT LAW
INTERNATIONAL TREATIES, PROTOCOLS AND CONVENTIONS
Obligations of States in Respect of Climate Change – International Court of Justice (advisory opinion – 2025) Article 2 of the UN Charter Vienna Convention for the Protection of the Ozone Layer (1985) Montreal Protocol on Substances that Deplete the Ozone Layer (1987) United Nations Framework Convention on Climate Change (1992) Environment Protection and Biodiversity Conservation Act 1999 (Cth)
SIGNIFICANT CASES
Bury v Pope, Cro. Eliz. 118 (1587) 78 Eng. Rep. 375 Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257 South East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113 Sharma & Others v Minister for the Environment (Federal Court of Australia) (2020) VID607/202 Bushfire Survivors for Climate Action Inc v Environmental Protection Authority [2021] NSWLEC 92
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THE NATURE OF THE EXPERIENCE reporting
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21.1 The need for protection under the law LEARNING OBJECTIVE 21.1
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DESCRIBE the reasons people experiencing climate injustice may need protection under the law.
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Human activities have global dimensions. Globalisation and industrialisation have opened worldwide markets, improved living standards for many but have severely affected the environment. Global economies face a difficult balancing act between environmental and economic interests, as the demand for economic growth and prosperity can often be at the expense of environmental protection. Nations are very reluctant to impose restrictions on industries that provide income and employment even if it could be detrimental to the environment – quite simply, the short term needs of the current population are the priority for many governments.
The Industrial Revolution
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The Industrial Revolution saw increased food production, improved medical services and increased urbanisation in Western economies. These factors led to an explosion in population and while industry and economies flourished, the environment paid scorcher the price. For generations, farmers, industrialists and developers were able to use the land, the waterways and the living organisms and non-living materials in any way they saw fit. Decisions about the use of these resources were driven by profit, with little or no regard for the environmental consequences. Neither businesses nor governments gave much thought to the external costs (externalities) of economic activity.
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Early legal decisions reinforced the capacity of individual landowners and corporations to do with the land whatever was in their best interests. This was highlighted in Bury v Pope, Cro. Eliz. 118 (1587) 78 Eng. Rep. 375, where it was stated: “And lastly, the earth hath in law a great extent upwards, not only of water … but of aire, and all other things even up to heaven, for cujus est solum ejus est usque ad coelum.” The Latin roughly translates as “whoever owns the land, it is theirs all the way up to Heaven and down to Hell”. For centuries the law was reactive and not proactive in regard to environmental damage. Over time, however, communities began to feel the consequences of environmental damage, including acid rain, species extinction, ocean acidification, depletion of natural resources, climate change, pollution, toxic waste and extreme weather events. The legal system was forced to respond. Initial legal responses to protect victims of climate impacts (and the environment in general) were limited in their scope and often were a reaction to a particular situation, event or location. For example, the Ozone Protection and Synthetic Greenhouse Gas
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Management Act 1989 (Cth) was intended to reduce the release of emissions of ozone depleting substances and synthetic greenhouse gases into the atmosphere. This Australian legislation was a response to the Montreal Protocol – acknowledged as one of the most successful environmental legal responses in history. It does, however, only address one of the multiple factors contributing to climate change: that is, ozone destruction.
Sustainable development
The concept of “sustainable development” has been the Figure 21.1.1 <caption to come> cornerstone of global efforts to protect the environment. The World Commission on Environment and Development produced an influential report in 1987 titled, Our Common Future, also known as the Brundtland Report. The commission was concerned with how economic growth could be encouraged while tackling the problems of environmental degradation and resource depletion that accompany such development. It concluded that ecologically sustainable development was the key. The Brundtland Report defines sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. The four key components of sustainable development (as developed from international law) are:
• protection of biodiversity – the variety of life forms on Earth; the complete range of organisms that exist within an ecosystem, biome or species • intergenerational equity – fair and just behaviour of one generation towards subsequent generations; in terms of environmental issues, a concept that centres on preserving Earth’s resources for future generations • intragenerational equity – fair and just treatment of people and groups within a generation; in terms of environmental issues, a concept that focuses on the fair management and use of Earth’s resources among different groups of the same generation • precautionary principle – if an action or policy may cause serious harm to people or to the environment, the best course is to halt or modify that activity or policy, even when there is no proof of the probability of the risk or the seriousness of the harm. All four of these elements play a significant role in how to address climate injustice issues. The disproportionate impacts on the peoples of the current generation of pollution, ocean acidification, global warming and ecological catastrophes indicate that “intragenerational equity” has not been achieved.
A critical aspect of investigating climate injustice is acknowledging that climate change is not constrained by national boundaries and that all nations are affected. For some it is a threat to the entire nation, such as the low-lying nations of Tuvalu, Kiribati and the Marshall Islands, and for others it is when extreme weather events lead to chronic food shortages and devastating infrastructure destruction, such as in Chad, Bangladesh and Sudan. More often than not, however, it is the vulnerable groups and communities within nations who are disproportionately affected by climate injustice. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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International organisations The United Nations Framework Convention on Climate Change was created at the 1992 Rio Earth Summit. Since then, there have been a series of “Conferences of the Parties” designed to discuss and create proactive solutions to the issues raised by climate change. There are currently 198 signatories to the Convention.
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At COP 30 (30th Conference of the Parties) in Brazil in 2025 the Sustainable Development Goals progress report was published. It provided stark statistics and data highlighting the impacts of record global temperatures and a surge in climate disaster victims, notably:
• 2024 was the hottest year in the last 175 years; it was also the tenth consecutive year of record heat • extreme weather events, including heat waves, floods, storms and droughts, triggered the highest level of climate-related displacement since 2000 • direct economic losses averaged US$ 200 billion per year (but including indirect and ecosystem costs the amount exceeds US$ 2 trillion) • on average 124 million people were affected by disasters annually between 2014 and 2023, marking a 75 in per cent increase over the decade • Least developed countries and Small Island Developing Nation-states experience more than twice the global average of climate impacts. Least developed countries, for example, account for 26% of disaster-related deaths globally, despite representing only 12% of the world’s population.
NASA, the United Nations, the Intergovernmental Panel on Climate Change, the Organisation for Economic Co-operation and Development, Greenpeace and the World Trade Organization all have a primary purpose and function, yet all of them acknowledge (to varying extents) the impacts of climate change. While some people dispute climate change, there can be no denying that the consequences of the following (all linked to climate change) are having a disproportionate and devastating impact on people around the world: • • • • •
extreme weather events rising sea levels biodiversity loss ocean acidification ecosystem disruption.
Such events affect diverse peoples from all corners of Earth and, more often than not, it is vulnerable groups that bear the brunt of the impacts of climate change. It is these people and groups who primarily face climate injustice.
United Nations resolution
In July 2022 the United Nations General Assembly passed a resolution (168 for, 8 abstentions) declaring: The General Assembly … Recognizes the right to a clean, healthy and sustainable environment as a human right.
Resolution adopted by the United Nations General Assembly, 28 July 2022
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Consequently, climate injustice and human rights have become inextricably linked.
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While numerous international instruments (e.g. Stockholm Declaration, Climate Change Convention, Biodiversity Convention) have referred to environmental sustainability issues, the significance of this resolution was that as a “universal human right”, according to António Guterres, nations now had an obligation to “accelerate the implementation of their environmental and human rights obligations and commitments”. While this resolution is not legally binding, it is expected to place moral obligations on nations and be a catalyst for action.
Figure 21.1.2 Seawall construction at Collaroy Beach on 25 October 2021 in Sydney, Australia
The newly recognised right will be crucial to tackling the triple planetary crisis. This refers to the three main interlinked environmental threats that humanity currently faces: climate change, pollution and biodiversity loss - all mentioned in the text of the resolution.
Each of these issues has its own causes and effects and they need to be resolved if we are to have a viable future on Earth. The consequences of climate change are becoming increasingly apparent, through increased intensity and severity of droughts, water scarcity, wildfires, rising sea levels, flooding, melting polar ice, catastrophic storms and declining biodiversity. UN General Assembly declares access to clean and healthy environment a universal human right, UN News, 28 July 2022
The concept of “climate injustice” involves the moral, political and legal issues that the communities who are, more often than not, the least responsible for causing climate change suffering its most severe consequences. These groups usually lack the resources and political power to deal with the “triple threat” of climate change.
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1. What is the “triple threat” of climate change? 2. Describe how economic growth and environmental protection goals can often be in conflict. 3. Outline the four components of ecologically sustainable development. Go online to assign and download questions, view results and more!
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21.2 Reasons for encountering the legal system LEARNING OBJECTIVE 21.2 DESCRIBE the reasons for which people experiencing climate injustice encounter the legal system.
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In communities across the world, the impacts of climate change and extreme weather events have a broad range of ramifications. The legal system becomes involved when an individual, community or group have their humanity infringed–for example, the right to life, health, food, water, housing and culture or their property rights. Seeking a legal remedy for the consequences of climate change and extreme weather events scorcher is extraordinarily complex. Those individuals and communities affected by climate events require locus standi, meaning they have the legal right to take court action over a particular issue, that is, commence climate litigation. How is this established? For a natural disaster, who is the “defendant”? What type of law do victims use to seek redress? Which court has jurisdiction to hear the matter?
This area of law is in a state of change and the current legal framework is only just beginning to be reformed to make this more equitable and just for victims of climate injustice. Climate change impacts are caused by the actions of all countries and many corporations and organisations. How can victims isolate one “defendant” to take action against? How can they determine that a particular government or industry “caused” their harm? The legal doctrine of “causation” is critical here. Causation refers to the causal link, or nexus, between an industry, government or corporation’s actions that leads to the harm alleged to be suffered by the victims of climate events. Causation is a fundamental issue in climate litigation. Causation is also a key concept of criminal law. Victims have a multitude of reasons to use the legal system to seek redress, but the current domestic and international legal frameworks do not explicitly provide avenues for them to achieve justice.
Figure 21.2.1 <caption to come>
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Review 21.2 questions 1. Define locus standi. Why is it so significant in climate injustice cases? 2. Explain why it is so difficult for the victims of climate injustice to seek a legal remedy for the breach of their property and/or human rights after a climate event. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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21.3 Issues arising from contact with the law LEARNING OBJECTIVE 21.3
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EXPLAIN the issues people experiencing climate injustice experience when they have contact with the law.
Those individuals and groups that are victims of climate change are confronted with a daunting prospect if seeking legal redress. There have been numerous cases where victims in Australia suffer enormous personal and property damage from an extreme weather event and, if they are not comprehensively insured, then they receive no compensation. They are left video devastated by a so called “act of God” or natural disaster widget reporting and the traditional consideration (domestically and internationally) is that the event was triggered by nature and should be managed through humanitarian assistance.
However, there has a been shift in this perception as a result of a group of university students from Vanuatu (discussed in more detail later in this chapter) who instigated a case in the International Court of Justice which culminated in the July 2025 publication of the “Obligations of States in Respect of Climate Change – an advisory opinion”. While these are not legally binding, they carry significant legal, moral and political weight, clarifying international law and influencing state behaviour and, quiz questions word hopefully, future legal developments. This advisory opinion is moredownload than 450 pages in length and is enormous in its breadth and depth.
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The Blog of the European Journal of International Law identifies of the key points as:
• climate change causes disproportionate harm to the most vulnerable, especially those least responsible for climate change • climate injustice is an “injury”, and inaction to address climate change is not just an “unfortunate outcome” • anthropogenic greenhouse gas emissions constitute a legal wrong when they cause foreseeable harm to the environment and human rights; the Court positions climate-induced harms not as accidents, but as the result of omissions for which nation-states can and must be held accountable. A common occurrence in international law is that non-binding statements and declarations (like this advisory opinion) can form the basis of future binding international laws. This was evident with the emergence of “ecologically sustainable development”, which had its impetus in the 1972 Stockholm Declaration and was legislated in the international arena in 1992 at the Rio Earth Summit (discussed in more detail later in this chapter).
In addition to these issues surrounding access to the legal system for those suffering climate injustice is the complex nature of the uncertainty and variability of impacts. Even within the same country, the impacts of climate change may be felt unevenly due to structural inequalities based on race, ethnicity, gender and socio-economic status. Those with fewer resources are not in a position to readily access health services, food, energy or sanitation, and this is exacerbated in developing countries, especially where Indigenous Peoples face the loss of their culture and traditions.
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Consequently, numerous people in a myriad of circumstances are suffering from climate injustice, and this is not likely to be minimised in the near future. Currently, their prospects of seeking justice are limited and ad hoc, so they must rely on continuing law reform in both international and domestic jurisdictions to achieve justice.
U N SA C O M R PL R E EC PA T E G D ES
Video 21.3.1 Tuvalu’s Foreign Minister gives a video statement to COP26, 9 November 2021.
According to the World Inequality Database (2023), the impacts of climate change are uneven and it is estimated that the wealthiest 10% of global households contribute up to 40% of emissions, while the bottom 50% contribute only around 15% of emissions. Children and young people are key groups that will, in the long term, suffer the most injustice as their generation has not significantly contributed to climate change but they will be the ones most affected.
ANALYSIS 21.3.1
1. As a class, watch the 2021 speech by Tuvalu’s Foreign Minister Simon Kofe in Video 21.3.1. How does this speech and image express the ecologically sustainable development concepts of intergenerational and intragenerational equity?
RESEARCH 21.3.1
1. Research the impacts of an extreme weather event and describe: • the nature of the event • the impacts on the local community • the support provided to the victims of the event • the long-term consequences of the event. You may choose your own or one of the following: • Lismore floods 2022 • The Australian Black Summer bushfires, July 2019 – March 2020 • The 2022 and 2024 floods in Chad • Guadalupe River flooding in Texas in July 2025 • “Water bankruptcy” – Iran’s drought 2025. 2. Read the contents page of the International Court of Justice Advisory Opinion on Climate Change at https://cambridge. edu.au/redirect/11914 to investigate the extent and scope of the climate injustice issues currently at the forefront of law reform in this area.
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Review 21.3 questions 1. Indicate how the impacts of climate injustice are distributed unevenly across the world. 2. How would the framing of climate injustice as an “injury” rather than an “unfortunate outcome” assist with legal protection in this area? Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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ACCESS TO JUSTICE 21.4 Protection quiz under thequestions law
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LEARNING OBJECTIVE 21.4
U N SA C O M R PL R E EC PA T E G D ES
OUTLINE the international and domestic legal protections for people experiencing climate injustice.
International law
A critical aspect climate injustice is centred on the relationship between domestic and international law. The doctrine of “state sovereignty” is fundamental to understanding how people from across the planet are able to access justice, and this is dependent upon how the nation-state in which they reside decides how to exercise this sovereignty. video
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State sovereignty is the authority of an independent state to govern itself (e.g. to make and apply laws, impose and collect taxes, make war and peace, and enter into treaties with foreign states). State sovereignty is the implicit recognition under international law that a nation-state has authority over its citizens and territory and can govern as it sees fit (Article 2 of the UN Charter explicitly states that the United Nations is “based on the principle of the sovereign equality of all its Members”). Consequently, while a nation may want to follow vast array of international laws (usually in the form of treaties and questions word conventions) implementingquiz them within their own jurisdiction isdownload another matter.
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The environment is the second most legislated area after economics and trade in regards to international law. The United Nations Environment Programme (UNEP) is the key organisation, and works on a multitude of issues from forests, oceans, energy, food systems and air quality. But one of its key focuses is climate action. Its website states: UNEP provides evidence-based data to inform policy decisions, collaborates with sectors for low-carbon transitions, provides climate finance mechanisms and aids countries in adaptation and mitigation efforts. United Nations Environment Programme website
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Key international laws There are some key international laws that relate to climate injustice. Vienna Convention for the Protection of the Ozone Layer (1985) and the subsequent Montreal Protocol on Substances that Deplete the Ozone Layer (1987)
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The hole in the ozone layer was first recognised as a global issue in 1978, when satellite technology enabled the size of the hole – and over the next few years, its growth rate – to be measured. Chlorofluorocarbons (CFCs) – chemical compounds that can break the bonds between ozone molecules – were identified as the main culprit. CFCs are stable and non-toxic and were used in refrigerators and airconditioning units, and as propellants in aerosol products. It soon became apparent that the only long-term solution to ozone depletion was to phase out the use of CFCs.
The Vienna Convention for the Protection of the Ozone Layer was negotiated in 1985 and came into force in 1988. The accompanying Montreal Protocol on Substances that Deplete the Ozone Layer (1987) came into force in 1989 and set out legally binding reduction targets for nation states. A management plan for phasing out CFCs was introduced, and nationstates have complied by banning their use and introducing alternative products. Kofi Annan, a former Secretary-General of the United Nations, once referred to the Montreal Protocol as “perhaps the single most successful international agreement to date”. The comparative ease of switching from CFCs to cheaper and safer alternatives made this an international law that nations were more than willing to comply with, but the same cannot be said of the complexities and enormous expense of tackling climate change. It is a classic example of nations exercising their sovereignty according to their own best interests. United Nations Framework Convention on Climate Change (1992)
It is important to note that every year there is a “Conference of the Parties” (COP), which looks at the latest climate data and makes changes to the rules and guidelines that were initially established at the 1992 Rio Earth Summit where the Climate Change Convention was established, for example: • the 1997 Kyoto Protocol • the 2016 Paris Agreement • the 2021 Glasgow Climate pact.
The international legal system is engaged in an ongoing effort to implement a framework to monitor climate change and limit greenhouse gas emissions. The United Nations Framework Convention on Climate Change (1992), which was formulated at Rio, was the first step, but later conferences of the parties regularly highlighted the conflict between resource use and global environmental protection. The Kyoto Protocol (1997) recognised that developed countries were primarily responsible for greenhouse gas emissions and thus placed a heavier burden on them than on developing nations. This formalised the principle of “common but differentiated responsibilities”, meaning that, while all countries share responsibility for addressing climate change, they should not all bear the same burden. The UN Climate Change Conference held in Paris (December 2015) adopted a historic accord for a new treaty to commence in 2020. Its aim was to limit global warming to well below 2 degrees Celsius, with an aspirational target of 1.5 degrees Celsius. Formally
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adopted by 195 countries, the first universal climate deal aimed to see fossil fuels gradually phased out, the growth of renewable energy globally, and the creation of new carbon markets to enable countries to trade emissions and protect forests. The agreement does not mandate specific measures or targets but instead instigates a legally binding five-yearly global stocktake combined with a review mechanism to assess each country’s performance. To encourage compliance, nations are able to set their own targets.
Support for initiatives
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The success of these climate change initiatives is totally dependent on nation-states exercising their authority to proactively support the changes. For example, the position of the United States has changed over time: a signatory to the Paris Agreement in 2016, it then withdrew in November 2020, rejoined in February 2021, and then in January 2025 indicated it would be withdrawing again. At subsequent COPs there have been numerous examples where nations have hesitated to make the shift away from fossil fuels. In November 2025, at COP 30 in Belen, Brazil, the BBC noted about 80 countries wanted a formalised plan to shift away from coal, oil and gas but nothing could convince the remaining nations to commit to a concrete plan to shift away from fossil fuels because their economies are so highly dependent on that industry for their economic growth. The global environmental law framework does contain numerous laws that would, in essence, be useful for those suffering from climate injustice, but there are two factors that greatly inhibit international law as an avenue for justice:
1. The key judicial organ of the United Nations is the International Court of Justice (ICJ) and it is in this forum that disputes over international law are heard. However, as the ICJ is only for disputes between nation-states, it is not an avenue through which people suffering climate injustice can attain justice, especially when it is quite often the country in which the victims live that would be the natural “defendant” in the matter. 2. International laws are reliant on nations enacting the key aspects of the climate related treaties and conventions into domestic law to be effective and provide an avenue for justice for those suffering climate injustice. It is here that nation-states exercise their sovereignty, and the competing interests of the environment and the economy often mean that effective legal remedies are lacking. In February 2026, the United States dismantled the basis for all US climate regulations, demonstrating how a nation-state can exercise their sovereignty in accordance with the perspective of the government of the day. A United States Environmental Protection Agency spokesperson informed The Guardian newspaper that the changes will end “the bogus overreach of previous administrations done by agenda-driven climate zealots”. Essentially, this is a revocation of the 2009 “endangerment law”, which stated that the build-up of greenhouse gases in the atmosphere endangers public health and welfare for both current and future generations. Consequently, if this is applied across all industries, it means that, since greenhouse gases are not perceived as a threat, then there should be no reason to regulate them. This is in complete contradiction to the “Obligations of States in Respect of
Figure 21.4.1 <caption to come>
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Climate Change”, which argued that these greenhouse gases are a threat to the human right to a safe environment. It also contradicts the United Nations General Assembly resolution that “access to a clean, healthy and sustainable environment is a universal human right”.
Domestic law
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Within Australia, the most significant federal law regarding the environment is the Environment Protection and Biodiversity Conservation Act 1999 (Cth). This is administered by the federal Department of Climate Change, Energy, the Environment and Water. While this law provides a legal framework to protect and manage unique plants, animals, habitats and places, it only provides an indirect coverage of climate impacts if they relate to those plants, animals, habitats and places. This law does not provide an avenue for individuals to seek a remedy if they suffer from a climate injustice. Across Australia there is a fragmented approach to both taking action on climate change and providing legal pathways for those who have been “injured”. In a local civil torts case when a person suffers harms or loss (the plaintiff) as a result of the actions of a person/company/government (the defendant) there are clear legal avenues available – namely, negligence, nuisance, defamation or trespass – and the case is heard within that specific state’s court hierarchy. Contrast this with the impacts of climate change and extreme weather events – who does the “victim” take action against? In order to take legal action, a person or group must have “standing” (or locus standi). This was highlighted in the case Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257.
IN COURT 21.4.1
Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257 The Australian Conservation Foundation (ACF) is an organisation that aims to protect the environment. When the federal government granted approval for a tourist resort near Rockhampton, this was challenged by the ACF. The ACF sought a declaration from the Federal Court that the government’s decision did not comply with the requirements of the relevant Act of the time, which was the Environment Protection (Impact of Proposals) Act 1974 (Cth) (repealed).
The ACF was denied locus standi because it was held to lack a “special interest” in the subject matter. In other words, the case was not even analysed on its merits because the court ruled that the ACF had no right to bring the case to court as it had only “a mere intellectual or emotional concern”.
Since this decision (made in the 1980s), the pressure to take action on environmental issues has grown exponentially. The impact of non-government organisations, for example Greenpeace, have been instrumental here. With the increasing consequences of climate change and extreme weather events, this has only been reinforced. Consequently, since the decision in ACF v The Commonwealth, both state and federal governments have enacted legislation that allows people or groups with a special interest to have “standing” in order to take legal action. This was illustrated in South East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113.
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IN COURT 21.4.2 South East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113
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The case involved South East Forest Rescue Incorporated, which was attempting to restrain the Forestry Corporation from undertaking logging operations . South East Forest Rescue wanted to protect three glider species, in particular, the Greater Glider. The NSW Land and Environment Court ruled that the Forestry Act and Biodiversity Conservation Act certainly excluded “open standing” (where anyone could take legal action) but, in this instance, the South East Forest Rescue Incorporated had a 20-year history of attempting to protect the glider species and, while it had not suffered damage in the case, it did have a “special interest” so was entitled to have standing.
Consequently, in climate change cases individuals and groups can have “standing” if they suffer damage or if they have a “special interest”, but who do they take action against? Globally the number of climate change cases has doubled over the last decade, but in Australia a key issue is which court has the jurisdiction to hear a case. One example where this was highlighted was in Sharma & Others v Minister for the Environment (Federal Court of Australia) (2020) VID607/202.
IN COURT 21.4.3
Sharma & Others v Minister for the Environment (Federal Court of Australia) (2020) VID607/202 The case was a class action taken by a group of school students (Ambrose, Anj, Ava, Bella, Izzy, Laura, Luca, Tom and Veronica) on behalf of all Australian school students and their litigation representative, Sister Marie Brigid Arthur. Sister Marie was over 80 years old at the time and during the case highlighted the intergenerational inequities of the issue between those generations who had lived a life free from climate change impacts and those following generations who would suffer the consequences.
The initial decision ruled that the Minister for the Environment did have a duty of care to protect children from the impacts of climate change; however, this was overturned on appeal. But, importantly, the case for climate change was not challenged, meaning that it was a legally accepted fact in that instance.
Another recent case, Bushfire Survivors for Climate Action Inc v Environmental Protection Authority [2021] NSWLEC 92 affirmed evidence from the then Australian Chief Scientist, Penny Sackett, on climate change impacts. Again, the evidence of climate change was not challenged by the Environment Protection Authority (EPA), and the Chief Judge in that case instructed the EPA to develop guidelines to ensure environmental protection from climate change. In Australia, while these cases and similar decisions have not provided definitive remedies at this point in time, they have established the legal basis that governments should have proactive policies in place to protect Australians from future climate change impacts. While there has been a growing array of environmental laws and policies that aim to limit climate change impacts in Australia (e.g. net zero emissions by 2050,
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the shift to renewable energies and government subsidies to support this), at this point in time there is no definitive path for people suffering the injustice of climate change to take legal action to seek a remedy under the law.
U N SA C O M R PL R E EC PA T E G D ES
The cases outlined illustrate an “ad hoc” approach; that is, they look at the specific circumstances of that case and then determine what Australian court jurisdiction could hear the case. Internationally, there also are no uniform climate laws that provide an avenue for people, or groups of people, to seek justice. As these climate injustices continue to increase, it is this area that is a key focus for law reform.
Figure 21.4.2 <caption to come>
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Review 21.4 questions
1. What is sovereignty? How can it be both an impediment and a promoter of international environmental protection? 2. The Vienna Convention and Montreal Protocol were extremely successful in relation to ozone protection. Why has that not been the case for climate change protection? 3. What is the key purpose of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)? Is it an appropriate law for the victims of climate injustice to use to seek a remedy? Go online to assign and download questions, view results and more!
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21.5 Authorities that advocate for rights LEARNING OBJECTIVE 21.5
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the functions of authorities that advocate for and protect the rights of people experiencing climate injustice.
Numerous organisations, non-profit groups and specialised government authorities advocate for communities suffering from climate impacts and, as discussed earlier, there has been a growing number of legal actions commencing in this area, often stemming from the work of these authorities. They generally focus on climate justice, supporting vulnerable populations and buildingwidget resilience. video reporting
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Some of these key authorities are:
• Climate Action Network – comprising regional, national and international members (cannot represent industry), it aims to highlight the impacts of climate change on people (especially the poor and vulnerable), undermining the fossil fuel industry and transforming national action plans to hold them accountable to the Paris Agreement. • Climate Justice Alliance – aims to shift the world from an “extractive economy” to a “regenerative economy” community-based organisations quiz by using frontline, questions download word to place pressure on governments and industry decision-makers to adopt environmentally sustainable practices. • Australian Youth Climate Coalition – advocates for a future grounded in climate injustice by building a generation-wide movement of young Australians pushing for a clean and just future.
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One institution that provides the data and research behind climate change is the Intergovernmental Panel on Climate Change (IPCC), which is open to all member states of the United Nations and the World Maritime Organization. Member states participate in the review stage of preparing reports and assessments, and in the sessions where decisions about the work of the panel are made and reports are accepted, adopted and approved.
The work of the IPCC involves reviewing and assessing the most recent scientific information relating to climate change from around the world. It does not itself conduct scientific research. Reviews are conducted by scientists working on a voluntary basis. The IPCC strives for a complete survey and assessment of current information, and its reports reflect different viewpoints within the scientific community. While it seeks to provide rigorous scientific information to governments for the purpose of formulating policy, the IPCC does not itself prescribe policy. However, the IPCC data is often used to support those groups advocating for the victims of climate injustice.
The sixth assessment report from the IPCC was released in 2023. In the introduction, the IPCC report provided a succinct summary of the complexities surrounding the impacts of climate change and how difficult it is for lawmakers to respond equitably:
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climate change denier a person who says that climate change is not happening, or that it is not caused by human activity; sometimes also referred to as “climate change sceptic”
This report recognizes the interdependence of climate, ecosystems and biodiversity, and human societies; the value of diverse forms of knowledge; and the close linkages between climate change adaptation, mitigation, ecosystem health, human well-being and sustainable development, and reflects the increasing diversity of actors involved in climate action. Intergovernmental Panel on Climate Change, Climate Change 2023 Synthesis Report, 2023
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The report’s key findings included the following:
• Warming is likely to exceed 1.5 degrees Celsius in the near term (2021–2040) under almost all considered emission scenarios. • Many changes due to past and future greenhouse gas emissions are irreversible for centuries to millennia, particularly changes in the ocean, ice sheets and global sea levels. • There are feasible, effective and low-cost options available now in every sector – such as solar and wind energy – to at least halve emissions by 2030.
Figure 21.5.1 <caption to come>
The impacts of climate change are being felt in every inhabited continent and in the oceans. However, they are not spread uniformly across the globe, and different parts of the world experience impacts differently. While the IPCC reports are backed by the vast majority of scientific experts, there are some groups who believe that climate change is a hoax. Research online will find a range of climate change deniers.
RESEARCH 21.5.1
Investigate the varied impacts of climate change across the planet by looking at the spatial analysis of the Intergovernmental Panel on Climate Change’s WGI Interactive Atlas.
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Review 21.5 questions
1. Describe the role of ONE authority advocating for the rights of those suffering from climate injustice. 2. What is the role of the Intergovernmental Panel on Climate Change (IPCC)? 3. Outline the IPCC’s latest findings. Go online to assign and download questions, view results and more!
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21.6 Contact with legal processes, including alternative approaches to justice quiz
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LEARNING OBJECTIVE 21.6
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE how people experiencing climate injustice encounter legal processes, including law enforcement agencies, courts or tribunals, and dispute resolution methods. DESCRIBE alternative approaches to justice available to people experiencing climate injustice.
Contact with the legal system
As already outlined, the law surrounding climate injustice is in a state of change. Law enforcement within Australia relies on civil law cases (if a defendant can be identified) and other cases where climate change is a core issue (Sharma & Others v Minister for widget reporting the Environment and Bushfirevideo Survivors for Climate Action Inc v Environmental Protection Authority). As mentioned, these cases affirmed the existence of climate change as a threat to current and future generations but did not provide a specific remedy for those suffering from climate injustice. The Australian legal system has not yet provided a definitive framework for victims. Even the NSW Land and Environment Court, which has frequently set legal precedents for how environmental law incorporates climate science, does not have the jurisdiction to provide remedies. New statements from the ICJ and a raft of international climate cases have firmly placed the notion of climate quiz injustice on the agenda, thoseword who questionsbut there are still download deny the science and there is still no firm commitment from governments to address this specific problem. Consequently, the role of law enforcement agencies, courts/ tribunals and dispute resolution methods are ad hoc and lack clarity. What follows is a range of examples highlighting the haphazard responses to climate injustice.
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Small island states and Pacific nations are at the forefront of rising sea levels, which can be devastating environmentally and socially. In December 2024, a group of students from Vanuatu commenced a landmark case on the obligations of nation-states to protect the climate from greenhouse gases in the ICJ (it was supported by a group of 17 countries). Its aim was to bolster the cases of nations taking legal action against big polluters failing to reduce emissions. The 15 judges were asked, for the first time, to give an opinion about the obligations of nations to prevent climate change – and the consequences for them if they fail.
A decision was reached in September 2025, which found that countries had a legal obligation to protect the climate from greenhouse gas emissions, and that failing to act could make polluting nations liable for reparations to nations harmed by climate change. Again, the key point here is that this decision is non-binding, but the litigants are hoping the decision (which affirms the ICJ’s “Obligations of States in respect of Climate Change”) will provide the impetus for nations to legislate accordingly.
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Figure 21.6.1 Human rights lawyer and Vanuatu’s lead counsel Julian Aguon leaves after small Pacific island states attend hearings inside the ICJ on December 2, 2024 in The Hague, Netherlands.
Margaret Young, director of Melbourne Law School’s Institute for International Law and the Humanities, said the ICJ ruling noted that “it was ‘foreseeable’ that countries could later start to bring claims for climate change reparations at the international level”.
For this to occur nation-states would have to show a nexus (causation) between the harm suffered by victims of climate injustice and the actions of high-emitting nations. Even then, under the doctrine of sovereignty, there is no enforcement mechanism for ICJ rulings. And if a litigant were to take action against a government or corporation based on harm caused by greenhouse gas emissions, it is impossible to determine if it was caused by that government or corporation’s emissions alone. This clearly requires definitive laws, and in the current global legal framework there does not seem to be the political will for such action.
Alternative approaches to justice
It is clear that currently the legal system cannot provide clear access for victims to seek justice; consequently, an array of non-government organisations has become active in seeking justice for the victims of climate injustice.
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Review 21.6 questions
1. Outline the situation of “law enforcement” in regards to the victims of climate injustice. 2. Outline the significance of the decisions in Sharma & Others v Minister for the Environment (Federal Court of Australia) (2020) VID607/202 and Bushfire Survivors for Climate Action Inc v Environmental Protection Authority [2021] NSWLEC 92. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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LEARNING OBJECTIVE 21.7 IDENTIFY non-government organisations that represent the interests of people experiencing climate injustice.
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE the roles non-government organisations fulfil.
Governments are political, and often their perspectives on an issue are influenced by factors, such as business and industrial interests. In response to growing environmental awareness over the last five decades, various non-government organisations (NGOs) have put pressure on governments to consider environmental considerations. NGOs use a combination of action and advocacy to advance their video widget agendas. Some operate nationally (within a single state) and others arereporting international.
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Significant examples of environmental NGOs are:
• Greenpeace, which clearly states “Climate justice and social justice are two sides of the same coin.” • World Wide Fund for Nature • Friends of the Earth • Plastic Pollution Coalition.
NGOs are involved in researching environmental issues and in quiz and publicising questions download word educating the public. They are not subject to international law. However, they have been formally recognised by governments, notably in Agenda 21 from the 1992 Rio Earth Summit. Some NGOs have observer status (the position of an organisation or other entity that has been granted the right to speak at the UN General Assembly meetings), and they are often consulted for their views when international law on the environment is being drafted.
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The most famous NGO activities are their enviro-stunts, which are used to pressure and sometimes embarrass governments and corporations into changing their behaviour. NGOs rely on financial contributions from citizens to fund their operations; it is critical that they are free from pressure from nations and corporations so they can operate without undue influence. Many high-profile personalities have supported these causes. For example, David Gilmour, the guitarist from Pink Floyd, sold his guitar for $5.7 million in June 2019 and donated the proceeds to ClientEarth (the NGO running the Masig Island case).
In May 2019, eight Torres Strait Islanders from Masig Island submitted a claim to the United Nations that Australia’s failure to take action on climate change is a violation of their human rights. They requested funding for sea walls to protect their island home. As Sophie Marjanac (a lawyer for ClientEarth) stated:
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They are losing everything – they can’t just pick it up and go somewhere else; their culture is unique to that region … If indigenous people are disposed of their homelands, then they can’t continue to practice their culture. Sophie Marjanac
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The UN Human Rights Committee decided in September 2022 that Australia’s inadequate climate measures (e.g. failure to build adequate seawalls and reduce emissions) violated the Islanders’ rights to enjoy their culture and to be free from arbitrary interference with their private lives, families and homes. This was the first legal action brought by inhabitants of low-lying islands against a nation-state regarding climate change, and the first time an international court ruled that a country’s inadequate climate policy had violated human rights.
If inhabitants are forced to leave their homelands can they be classified as refugees. According to the 1951 Refugee Convention Article 1A (2) a refugee is someone outside their country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group. However, there is no mention of “climate refugees”.
An NGO’s best weapon is the media. Providing instant information across the world about climate disasters and the inadequacy of government responses to the victims is creating pressure for reform. NGOs often work with humanitarian groups to support victims in those areas where the legal system is unable to provide a remedy. On its climate justice site Amnesty International notes: “Climate change is one of the greatest human rights challenges of our time.”
Amnesty International estimates that, with extreme weather-related disasters and rising seas, around 600 million people are likely to experience drought and famine as a result of climate change. Consequently, it is using its influence to place pressure on governments and corporations to take urgent action on climate change noting that: “This isn’t about charity or aid, it’s about human rights and justice.” Greenpeace is very clear on its aim in this area:
It starts by holding polluting corporations and countries accountable and demanding them to pay for the damage they have caused and continue to cause. Greenpeace website
Addressing climate injustice requires global fairness, equity and solutions that recognise historical inequalities from centuries ago. As noted earlier, there have already been cases in Australia concerning climate mitigation, and in nations including France, Switzerland and the Netherlands, numerous other cases have commenced. NGOs play a pivotal role in supporting these cases to place pressure on the global community for change and, ultimately, law reform.
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1. What role do NGOs play in advocating for the victims of climate injustice? 2. Explain what Amnesty means with this quote about climate injustice: “This isn’t about charity or aid; it’s about human rights and justice”. Go online to assign and download questions, view results and more!
Figure 21.7.1 Campaigners from Friends of the Earth stand outside the Royal Courts of Justice, London, on 29 January 2025.
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RESPONSIVENESS OF THE LEGAL SYSTEM 21.8 Indicators of success in achieving justice LEARNING OBJECTIVE 21.8 ANALYSE the indicators used to measure the success of achieving justice for people experiencing climate injustice.
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When looking at the indicators of success, this will depend on the criteria used to establish “success”. If “success” is measured by the victims of climate injustice receiving a just outcome with compensation and reparations, along with the elimination of greenhouse gases contributing even more to global warming (and extreme weather events), then the response of the legal system has been an abject scorcher failure. However, if “success” is measured by the incremental changes that have raised global awareness and the legal cases that have begun to establish a legal framework, then it could be argued that the legal system’s response has, at the very least, laid the groundwork for proactive law reform to protect the victims in the future. What are these “incremental successes”?
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• Locus standi for victims of climate injustice has been established in legal cases • Climate injustice and human rights have become inextricably linked, leading to the publication of the 2025 International Court of Justice’s “Obligations of States in Respect of Climate – advisory opinion” • Australian legal cases have accepted the science of climate change • NGOs and other authorities (such as the IPCC) have influenced public opinion and placed pressure on governments and corporations to take action.
There is a general consensus within domestic and international legal systems that justice should be provided to the victims of climate change, but this has been hindered by the desires of governments for economic growth and development, which consistently thwarts concrete change. This is highlighted by the United States dismantling its climate law framework in February 2026, which will be subject to legal challenges in the Supreme Court of America.
RESEARCH 21.8.1
Each year there is a Conference of Parties (COP) for the Climate Change Convention. Research the latest COP. Provide an outline of its key outcomes.
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1. Explain how the incremental changes in regard to the law surrounding climate injustice can be considered a “success”.
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21.9 Barriers to achieving justice LEARNING OBJECTIVE 21.9
ANALYSE the barriers that prevent people experiencing climate injustice from achieving justice within the legal system.
It should be apparent from this chapter that providing justice to those suffering from extreme weather events and climate change is in its infancy at both domestic and international levels. There are no definitive frameworks or mechanisms in place to provide legal avenues to seek justice at this point in time. While this is the current reality, it is critically important to identify the barriers that have led toreporting this situation. video widget These barriers include the following:
• IPCC reports and a raft of scientific evidence outline the case for climate change and the consequences of global warming, but climate denialists actively undermine these reports and data, which can have the impact of undermining confidence in developing domestic and international laws to protect the victims of climate injustice. • It is now acknowledged that climate injustice and human rights are inextricably linked at an international level but not all UN declarations on this are legally binding. • Ecologically sustainable development is accepted as the best approach to protect quiz questions download word the environment and reduce greenhouse gases (and thus global warming), but the doctrine of sovereignty hinders a universal approach as nations can choose whether to adopt international laws or not. • While locus standi has been established in Australian jurisdictions for environmental matters, for victims of climate injustice there is no legal remedy available because they cannot readily identify a “defendant” in civil cases, even though courts have accepted climate change as a scientific fact.
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• Climate finance – finance essential for supporting adaptation actions (especially in developing nations) – aims to minimise the impacts of climate change on communities and cities, such as the cost of new technology, but who is responsible for this? At COP30 in 2025, the focus was on “Cross-cutting enablers and accelerators”, that is, varied financial supports and technological and digital advancements as well as policies working together to speed up change. But global support for this is uneven. A constant theme in this area is that “the cost of inaction will always outweigh the cost of action”. This links to the concept of ecologically sustainable development and, in particular, intragenerational equity.
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1. Explain how sovereignty is a barrier to achieving justice for the victims of climate events. 2. Climate finance is a key barrier to climate injustice. Explain how this is linked to intragenerational equity. Go online to assign and download questions, view results and more!
Figure 21.9.1 A protester holds a sign that summarises “intragenerational equity” from their perspective.
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The consequences of climate change are becoming increasingly apparent, through increased intensity and severity of droughts, water scarcity, wildfires, rising sea levels, flooding, melting polar ice, catastrophic storms and declining biodiversity. The concept of “climate injustice” means that the communities who are, more often than not, the least responsible for causing climate change are suffering its most severe consequences. These groups usually lack the resources and political power to deal with the “triple threat” of climate change. Laws surrounding climate injustice, at both a national and international level, are in a state of flux and are in their infancy. Law reform is pivotal for climate victims to achieve justice. The “Obligations of States in Respect of Climate Change” International Court of Justice (advisory opinion – 2025), while not legally binding, is the key international document that may underpin future law reform that provides some justice for the victims of climate events. Victims of climate injustice have difficulty in establishing locus standi to take legal action initially and then are confronted by the issue surrounding who exactly is the “defendant” in any civil action. Scientific data (e.g. IPCC findings) indicate that there are significant reasons to change current practice in regard to climate injustice, but the law reform process often reflects priorities that are inconsistent with such data. Sovereignty plays a crucial role in determining nation-states’ cooperation and compliance with international initiatives in regard to climate change and justice for the victims of climate change. Overcoming the effects of climate change by reducing greenhouse gas emissions is clearly in everyone’s best interests, but international compliance is limited by economic considerations. A major example of changing values is the emergence of ecologically sustainable development as the basis for environmental protection, particularly the idea of considering future generations when making decisions involving climate change and climate injustice. Non-legal efforts such as the campaigns of non-government organisations are generally more effective when they gain widespread community support so that genuine pressure can be placed on decision-makers (governments and corporations) to introduce measures aimed at minimising greenhouse gas emissions and taking into account the impacts of climate events. As Greenpeace states: “It starts by holding polluting corporations and countries accountable and demanding them to pay for the damage they have caused and continue to cause.”
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Multiple-choice questions 1. Which of the following best sums up this definition? “Fair and just behaviour of one generation towards subsequent generations; in terms of environmental issues, a concept that centres on preserving Earth’s resources for future generations.” B. Precautionary principle A. Biodiversity C. Intergenerational equity D. Intragenerational equity
U N SA C O M R PL R E EC PA T E G D ES
2. Which of the following environmental international laws is acknowledged as being the “most successful to date”? A. Climate Change Convention B. Vienna Convention for the Protection C. Biodiversity Convention of the Ozone Layer D. Refugee Convention
3. What is the implicit recognition under international law that a state has authority over its citizens and territory, and can govern as it sees fit? A. Jurisdiction B. Causation C. Locus standi D. Sovereignty 4. Which of the following is considered NOT to be an incremental success in regard to climate injustice? A. The strict binding nature of international law B. Climate injustice and human rights have become inextricably linked C. The establishment of locus standi for victims of climate and environmental cases in legal cases D. Australian cases accepting the science of climate cases
5. Which of the following organisations provides objective climate data for policy-makers to use to help them formulate future directions in regard to climate change? A. International Court of Justice B. UN Climate Change Conferences C. Intergovernmental Panel on Climate D. Greenpeace Change
Short-answer questions
1. Outline the significance of the “Obligations of States in Respect of Climate change” – International Court of Justice (advisory opinion – 2025).
2. With reference to the Montreal Protocol (ozone protection), describe the difficulties in achieving a similar level of success in regard to climate change and greenhouse gas emissions.
3. Outline the purpose of Australia’s key federal environmental laws – Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Climate Change Act 2022 (Cth) – and explain why they are of limited value to the victims of climate events.
Extended-response question Video 21.10.1 Answering an exam question
Examine the extent to which the victims of climate events have achieved justice. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
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22 CHAPTER
People experiencing economic disadvantage
U N SA C O M R PL R E EC PA T E G D ES
This digital chapter can be accessed via Cambridge GO
LESSONS
22.1 The need for protection under the law
22.2 Reasons for encountering the legal system 22.3 Issues arising from contact with the law 22.4 Standards, rights and protections 22.5 Advocates for rights
22.6 Contact with legal processes
22.7 Alternative approaches to justice
22.8 Organisations that represent interests
22.9 Indicators of success in achieving justice 22.10 Barriers to achieving justice
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U N SA C O M R PL R E EC PA T E G D ES
CHAPTER
People experiencing issues of equity, discrimination or power imbalance: Domestic violence and coercive control
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CHAPTER OBJECTIVES
U N SA C O M R PL R E EC PA T E G D ES
By the end of this chapter, you will be able to: • describe the reasons people may need protection under the law in matters of domestic violence • describe the reasons for which people encounter the legal system in matters of domestic violence • explain the issues people experience when they have contact with the law in matters of domestic violence • outline the international and domestic legal protections for people in matters of domestic violence • describe the functions of authorities that advocate for and protect the rights of people in matters of domestic violence • describe how people encounter legal processes in matters of domestic violence, including law enforcement agencies, courts or tribunals, and dispute resolution methods • describe alternative approaches to justice available to people in matters of domestic violence • identify non-government organisations that represent the interests of people in matters of domestic violence • describe the roles non-government organisations fulfil • analyse the indicators used to measure the success of achieving justice for people in matters of domestic violence • analyse the barriers that prevent people from achieving justice within the legal system in matters of domestic violence.
RELEVANT LAW
IMPORTANT LEGISLATION
Crimes (Domestic and Personal Violence) Act 2007 (NSW) Family Law Act 1975 (Cth) Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) Sex Discrimination Act 1984 (Cth) Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW)
INTERNATIONAL TREATIES, PROTOCOLS AND CONVENTIONS
Convention on the Elimination of All Forms of Discrimination Against Women (1979) Universal Declaration of Human Rights (1948) Declaration on the Elimination of Violence Against Women (1993) Convention on the Rights of the Child (1989)
SIGNIFICANT CASES Molly Ticehurst case Inquest into the death of Luke Geoffrey Batty [2014] Inquest into the deaths of Hannah Clarke, Aaliyah Baxter, Laianah Baxter, Trey Baxter and Rowan Baxter Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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23.1 The need for protection under the law LEARNING OBJECTIVE 23.1 DESCRIBE the reasons people may need protection under the law in matters of domestic violence.
U N SA C O M R PL R E EC PA T E G D ES
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People who experience issues of equity, discrimination or power imbalance may experience unfair or unequal treatment due to various factors such as gender, race, age, disability or social status. The Australian legal system attempts to protect vulnerable people and promote a society where everyone has equal rights, and their human rights are respected.
Early concepts of domestic violence in Australia
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Domestic violence is a clear example of an issue of equity, discrimination and power imbalance that is widespread in Australian society. Domestic violence occurs when one person in an intimate or family relationship exerts power and control over another person, often through physical, emotional, psychological, sexual or financial means.scorcher Unfortunately, most of the victims of these crimes are women and children, which represents an imbalance of power within the relationship.
Domestic violence and coercive control are significant issues within Australian society. Domestic and family violence refers to a range of behaviours that may constitute criminal offences under both Commonwealth and NSW legislation. These laws have been evolving as societal values change over time, gradually reducing the stigma around being a victim or survivor of domestic violence and moving away from the outdated belief that it is a private matter that should not be discussed. One of the main aims of the Australian legal system is to provide justice to survivors of domestic violence, while also respecting the rights of the perpetrator. As this issue becomes more prominent in contemporary society, this balance can be difficult to achieve. Early definitions of domestic violence did not effectively protect individuals. One of the major barriers to achieving justice was the narrow understanding of what constituted domestic violence and who could be recognised as a perpetrator. For example, for many years common law treated marriage as giving automatic and ongoing consent to sexual activity. Because of this, a husband could not legally be charged with sexually assaulting his wife. This is just one example of a historical legal practice that contributed to unequal power dynamics within relationships and left many victims without protection. The first express recognition of domestic violence in the law was in 1982, when it was defined but not introduced as its own offence. Often acts of violence within the home were ignored by the legal system and by the wider community. This can be seen in the 1988 survey conducted for the Office of the Status of Women, the Domestic Violence Attitude Survey. In this survey it found
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that one in five people believed that domestic violence could often be justified in some way and that 19% of people believed that domestic violence matters should be kept private. This survey also found that 21% of people considered domestic violence not to be a crime. This survey clearly demonstrates the historic attitudes and lack of education towards domestic violence. We can further speculate that some of the challenges our contemporary society faces stem from these historical beliefs about gender and power.
U N SA C O M R PL R E EC PA T E G D ES
In the Declaration on the Elimination of Violence against Women (1993), the United Nations recognises why domestic and family violence continues to occur within patterns of inequality. UN Declaration on the Elimination of Violence against Women (1993) Preamble
Recognizing that violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.
Although researchers believe current figures underestimate the true extent of domestic violence, data shows that one in four women will experience domestic violence in their lifetime (NSW Bureau of Crime Statistics and Research [BOCSAR]). In addition, around 73% of domestic violence perpetrators are male, highlighting the gendered patterns identified by the United Nations. Rates are even higher for certain groups, such as Aboriginal and Torres Strait Islander women. The National Domestic violence related assault 40,000
396.2
415.0
450.7
434.1
451.9
500
450 350
30,000
300 250
20,000
32,357
34,618
36,808
38,217
38,314
200 150
10,000
Rate per 100,000
Number of incidences
400
100 50
0
Apr 2021 Mar 2022
Apr 2022 Mar 2023 Number
Apr 2023 Mar 2024
Apr 2024 Mar 2025
Apr 2025 Mar 2026
0
Rate per 100,000
Figure 23.1.1 The number of domestic violence assaults that have occurred from April 2021 to March 2026 in NSW. This graph demonstrates that the rate of offences has not decreased and has remained steady. Source: NSW BOCSAR
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Plan to End Violence against Women and Children further notes that survivors commonly experience long-term impacts, including poorer overall health, mental health disorders, early pregnancy loss, substance abuse, economic insecurity and reduced language development. The thousands of survivor testimonies and court cases highlight that domestic violence is a complex issue in which many victims have historically been unable to achieve justice.
Coercive control
U N SA C O M R PL R E EC PA T E G D ES
The Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) came into effect in July 2024 as an amendment to the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This amendment aims to protect victims of coercive control by criminalising repeated physical and non-physical abuse from an intimate partner or a former partner that has the intent to control the victim. This is a stand-alone offence (meaning it has been specially codified into legislation separately to broader domestic violence definitions) with a maximum penalty of seven years’ imprisonment. New South Wales was the first state to explicitly criminalise the act of coercive control.
New South Wales has identified coercive control to be a significant issue for society. This is reflected in the Domestic Violence Death Review Team’s data report, which has found that 97% of intimate partner homicide involves emotional and psychological abuse from the perpetrator. This report further identifies that there is a distinct correlation between coercive control and fatal domestic violence incidents. This stand-alone offence reflects the changing needs for protection within society and the growing understanding of what constitutes domestic violence in Australia. According to the NSW BOCSAR, from 1 July 2024, New South Wales started gathering data on a new type of offence in line with law reform, which recognises and responds to coercive control in intimate partnerships or domestic settings. This data indicates that there have been 473 recorded incidents of coercive control between July 2024 and December 2025. Of the incidents, 59% involved multiple forms of control, the most common being intimidation/stalking, domestic violence assault and malicious damage. Statistically, women are more often the victims in these incidents, with 92% of coercive control events involving a female victim and an alleged male offender. The criminalisation of coercive control is still very recent, with the law only taking effect from 1 July 2024. Because coercive control relates to a pattern of behaviour rather than a single incident, we can expect the number of recorded incidents to continue to grow over time.
Jackie Fitzgerald, Executive Director, NSW BOCSAR, quoted in “New domestic violence data: monitoring Apprehended Violence Orders and coercive control in NSW”, October 2024
While coercive control can occur in other types of relationships, such as friendships, parental and other family relationships, this new legislation is targets intimate partner violence. In 2026, the NSW government reviewed this legislation to decide whether to expand the scope or not. Results are due in July 2027.
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Table 23.1.1 The different types of behaviours identified in the BOCSAR coercive control monitoring report in 2025 Four distinct controlling behaviours were involved per coercive control incident, on average.
Controlling behaviours identified
2024Q3
Harassment, monitoring or tracking
42
45
50
38
40
48
263
56%
Threats or intimidation
34
40
41
43
46
48
252
53%
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2024Q4 2025Q1
% of coercive Total behaviours control 2025Q2 2025Q3 2025Q4 Jul 2024 – Dec 2025 incidents
Financial abuse
31
35
39
38
47
58
248
52%
Shaming, degrading or humiliating
33
34
35
35
30
50
217
46%
Social isolation or cultural abuse
30
31
34
29
44
42
210
44%
Physical violence
21
23
23
23
23
30
143
30%
Deprive liberty or otherwise control
18
20
16
15
22
23
114
24%
Sexual violence
8
11
12
17
15
17
80
17%
Damage or destruction of property
10
20
10
12
11
14
77
16%
Other coercive behaviour
14
6
8
4
12
12
56
12%
Harm to a child
3
3
4
4
9
7
30
6%
Animal abuse
4
5
4
6
3
6
28
6%
Total incidents
72
75
81
70
81
94
473
100%
Source: NSW Bureau of Crime Statistics and Research 2026.
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1. Define domestic violence. Explain how the current general definitions reflect society’s values. 2. Identify how the definition of domestic violence may have hindered protection for victims. 3. Outline why coercive control legislation was introduced to New South Wales as a stand-alone offence. Go online to assign and download questions, view results and more!
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23.2 Reasons for encountering the legal system LEARNING OBJECTIVE 23.2 DESCRIBE the reasons for which people encounter the legal system in matters of domestic violence.
U N SA C O M R PL R E EC PA T E G D ES
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There are numerous reasons an individual may encounter the legal system in matters of domestic violence or coercive control. One of the most significant reasons may be seeking protection from both physical and psychological harm, trying to limit contact or setting legal boundaries of conduct.
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If therescorcher are children involved in the situation, often child protection plays a significant role in these encounters with the law. The NSW BOCSAR data show that one in ten victims of domestic violence are young people. The Children and Young Persons (Care and Protection) Act 1998 (NSW) recognises that exposure to domestic violence causes significant harm to children. This Act not only gives power to the Department of Communities and Justice to investigate cases of domestic violence but also identifies mandatory reporters, such as medical professionals, teachers and police. This means people in these occupations must report any suspected abuse or violence to protect the child from further harm. The involvement of children in these cases is common in Australia; therefore, the legal system attempts to protect young people from harm. Finally, it is often extremely dangerous for victims of domestic violence to leave the situation. Legal and external supports may be the only way a victim can safely escape their circumstances. The Australian Institute of Family Studies has found a correlation between trying to end a relationship with a violent partner and an escalation of the violence, including an increased risk of intimate partner homicide. For this reason, it is imperative that the legal system protects those trying to leave.
Before individuals can access these supports, they need to leave an abusive situation safely. So, they may first have to engage with legal officers such as police, lawyers, court staff or child protection workers. For many victims, contact with the legal system becomes an unavoidable part of seeking safety. This is because the system is designed to provide formal protections, put enforceable boundaries in place and connect victims with the services required to escape violence. As a result, victims of domestic violence or coercive control often enter the legal system not by choice but out of necessity, as a critical pathway to securing protection, resolving conflicts and achieving justice.
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Review 23.2 questions 1. Identify who a mandatory reporter may be and what piece of legislation governs this role. 2. Outline the three main reasons that someone may encounter the legal system for issues of equity, discrimination or power imbalances. 3. Describe why people may need legal protections for issues of equity, discrimination or power imbalances. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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23.3 Issues arising from contact with the law LEARNING OBJECTIVE 23.3 EXPLAIN the issues people experience when they have contact with the law in matters of domestic violence. quiz questions download word
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While the legal system plays a crucial role in providing protection and helping victims leave violent situations safely, these interactions can also create their own challenges. Legal processes are often complex, emotionally demanding and difficult to navigate, especially for individuals already experiencing trauma. As a result, victims may encounter a range of issues that influence how effectively the law can protect them and deliver justice.
Apprehended domestic violence orders
An apprehended domestic violence order (ADVO) is a civil order designed to protect a person from violence, intimidation or harassment. Although ADVOs fall under civil law, breaching one is a criminal offence. These orders can be effective because they offer a relatively fast response to harmful or potentially dangerous situations. They are also inexpensive to obtain, making them accessible to many peoplereporting and helping video widget ensure that protection is available across the community.
However, ADVOs rely heavily on victims and community members reporting violence or breaches. Due to the nature of domestic violence and coercive control, many incidents go unreported, leaving individuals in unsafe situations. ADVOs also have limited deterrent power for repeat offenders. According to BOCSAR, of the 104,828 ADVOs in place during the first quarter of 2025, 21% had been breached at some point. These challenges highlight that while ADVOs are an important safeguard, the state must continue to improve how they are monitored, enforced and quiz questions download word supported through legislation. Concerns about enforceability are frequently raised by community advocates.
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deterrent power the idea that the punishment of an act will stop people from committing the act
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The number of ADVOs has steadily increased, with 110,301 orders in place in the first quarter of 2026, compared with 85,292 orders in first quarter of 2022. Despite rising numbers, breach rates have remained consistent at around 20.8% to 21.1%. Although significant reforms have aimed to improve safety for victims and the broader community, a persistent concern remains, as a notable proportion of offenders continue to breach these orders.
Challenges for rural and remote communities
Rural and remote communities face additional challenges in accessing legal protections. The Australian Institute for Health and Welfare reported that hospitalisations for family and domestic violence in 2023–2024 were 41 times higher in remote areas compared with major cities. This is partly due to limited access to services and resources, including police, lawyers and support agencies.
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Social structures in smaller communities can also contribute to stigma around reporting domestic violence. The close-knit nature of these areas can create privacy concerns: often victims or perpetrators are known to local police, health workers and community members. These factors highlight the need for additional support and tailored responses in rural and remote settings.
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intergenerational trauma when psychological, social or emotional pain from a traumatic experience is shared from one generation to the next, which can occur even when the younger person was not alive for the event
Aboriginal and Torres Strait Islander women are significantly over-represented among victims of domestic violence. The 2016 Closing the Gap Report, published by the Australian Institute of Health and Welfare and the Australian Institute of Family Studies, identified consistently higher levels of violence and incarceration within First Nations communities. The report noted that high rates of family and domestic violence can stem from intergenerational trauma, social disadvantage, poverty, substance misuse and the long-term impacts of colonisation, including dispossession and the loss of cultural identity. The National Plan to End Violence against Women and their Children 2022–2032 identifies First Nations Peoples as a priority group requiring targeted support to reduce domestic violence.
IN COURT 23.3.1
Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW)
Molly Ticehurst was a 28-year-old woman who was found deceased in her home in Forbes, New South Wales. Her ex-partner Daniel Billings has pled guilty (court proceedings are continuing) to Molly’s murder along with other charges such as stalking and sexual assault. This case sparked national outrage, as the accused perpetrator had been released on bail for prior domestic violence charges two weeks before his alleged attack. There was a national campaign including events such as “lights on for Molly” and Forbes community walk to honour Molly. This ongoing case has had extensive media coverage and led to the push for “Molly’s Law”, which is a mandate that monitors individuals granted conditional bail for serious domestic violence offences. These laws formally known as Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW), came into effect on 10 October 2024. During the second reading of Molly’s Law in the NSW Legislative Assembly, the Attorney General said:
Today, as we introduce this bill, we remember Molly Ticehurst. Our government has heard the community’s concerns about domestic violence. We have heard them say that we need to do more, and we know that we need to do more ….
This case demonstrates how the legal system can be responsive to media and societal pressure to reform legislation. This devastating event also acted as a catalyst to promote awareness of gaps in the law, such as bail and remand laws.
In November 2025, Daniel Billings pled guilty to murder and another four charges, including breaching an ADVO. A crowd of people waited outside the court to show their support and applauded when Ticehurst’s family exited the court. Sentencing was scheduled for September 2026.
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MEDIA 23.3.1 Tougher bail monitoring laws passed by NSW parliament following death of Molly Ticehurst Hamish Cole, ABC News, 7 June 2024 New laws requiring those accused of serious domestic violence charges to wear electronic monitoring devices while on bail have been passed by the New South Wales parliament.
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The new legislation is among a number of changes introduced as part of bail reforms inspired by the death of Molly Ticehurst in the NSW central west town of Forbes.
Those accused of serious domestic violence charges will have to demonstrate why they should be given bail before it is granted, while registrars will no longer be allowed to make bail decisions. In April, childcare worker and mother Molly Ticehurst, 28, was found dead in her home.
In a speech to parliament last night, Labor MP Rose Jackson said the reforms would help save lives. “At its core the bill is about protecting domestic violence victims and survivors,” she said.
“In that crucial period between when a person is charged with a serious domestic violence offence and when an outcome is reached in their criminal matter, in making it more difficult in that period for an accused to be released on bail and providing for electronic monitoring if they are, this bill offers additional safety for the community.” Since the death of Ms Ticehurst, her friend Jacinda Acheson had been calling for the laws to be introduced. She said the changes would protect survivors of domestic violence.
“It took something as tragic as what happened here in Forbes for them to listen,” Ms Acheson said.
“It is too late for so many past victims, but what it should do now is really instil the confidence into victims now and in the future to know that they will be safe if they go and ask for help.”
“Molly’s law” for all victims: Minns
Family and friends of Ms Ticehurst had called for the reforms to be named after Molly; however, NSW Premier Chris Minns said the government wanted the legislation to reflect all victims of domestic violence.
Ms Jackson said the law would forever recognise Ms Ticehurst and the advocacy of her family and friends. “It is their determination that we do change our laws so that her life is honoured and her death is not forgotten,” she said.
“[it is vital] that we do our best to limit the number of other women who will be harmed by offenders who should not have been released on bail, and in this way and in my heart this bill is Molly’s law and we honour her by passing it.”
Concerns raised As part of the legislation, the onus will be placed on alleged perpetrators of domestic violence to prove why they should be granted bail. The legislation was passed unanimously with the opposition supporting it throughout the process.
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Sue Higginson from the New South Wales Greens told parliament the Greens would support the bill “in the absence of any other substantive vision”. She said the bill would have unintended consequences and has not been properly thought out. “The legislation before the house may hopefully save women’s lives, but it is reckless and it may affect a broader number of people than intended,” Ms Higginson said.
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“It will be First Nations people, and increasingly and as the evidence suggests, young people and people who cannot afford a good lawyer who are thrown into prison because of those changes,” she said. “Other reforms better considered, better consulted, thought about more seriously, would avoid the needless harm that are a risk with the reversal of the presumption of bail.”
The laws will now be assessed by the New South Wales Governor, before they are expected to come into force later this year.
ANALYSIS 23.3.1
Read Media 23.3.1 and answer the following questions. 1. 2. 3. 4.
Outline “Molly’s Law” and its impacts. Identify and compare the various perspectives presented in this article. Describe the catalyst for these reforms. Assess the effectiveness of the reform known as “Molly’s Law”.
REVIEW 23.3 Online quiz
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Review 23.3 questions 1. 2. 3. 4.
Identify three reasons an ADVO may be ineffective in some cases. Outline the benefits of ADVOs and how they provide protection. Describe how living rurally or remotely may affect an individual’s experience with the law. Write one body paragraph, using one syllabus criterion to form an evaluation to answer the following question: Evaluate the effectiveness of ADVOs in protecting individuals in issues of equity, discrimination or power imbalances. Reference a case example to support your argument. Go online to assign and download questions, view results and more!
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ACCESS TO JUSTICE 23.4 Protection quiz under thequestions law
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LEARNING OBJECTIVE 23.4
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OUTLINE the international and domestic legal protections for people in matters of domestic violence.
New South Wales protections
Over time, legal definitions and protections are being established to achieve justice for individuals in intimate relationships and families. A definition for domestic abuse was codified as of February 2024 in New South Wales in section 6A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with the aim of recognising the broad nature of these offences and supporting victims. This Act identifies that a single or multiple act or video widget reporting omission may constitute domestic violence. This definition will most likely continue to be amended as society’s needs change over time. Section 6A of the Act defines domestic abuse as including any behaviour that is:
Writing focus 23.4 Transitional note taking phrases
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• violent or threatening • coercive or controlling • causing a person to fear for their safety or wellbeing or the safety and wellbeing of others • shameful or degrading quiz questions download word download pdf • harassing, stalking or intimidating • causing death or injury to an animal or using an animal to threaten the safety of others • behaviour that damages or destroys property • economically, sexually, verbally or physically controlling or violent. Figure 23.4.1 A chart on the wall of Lou’s This definition also expresses that a child hearing or witnessing any of these acts, or otherwise exposed to the effects of the behaviour mentioned, is also a form of domestic abuse.
Place in Sydney. Lou’s Place provides daytime shelter to women seeking support from domestic violence.
Domestic violence offences are prosecuted under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The aim of the legislation is to reflect society’s values as well as uphold Australia’s international obligations. Under this Act, the meaning of “domestic relationship” is defined in section 5 as including relatives, intimate partners, de facto relationships, a dependent or related through kinship. This definition also includes previous relationships or ex-partners.
ADVOs One of the main responses to domestic violence and coercive control from the criminal justice system is the enforcement of an ADVO. This process is codified in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). ADVOs are in place to provide protection, clear boundaries and expectations of behaviour for the perpetrator, including mandatory conditions that are included in all ADVOs. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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The mandatory orders state what a person must not do: Crimes (Domestic and Personal Violence) Act 2007 (NSW) Section 36 Every apprehended violence order is taken to specify that the defendant is prohibited from doing any of the following –
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a. a ssaulting or threatening the protected person or a person with whom the protected person has a domestic relationship, b. s talking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship, c. intentionally or recklessly destroying or damaging any property, or harming an animal, that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.
There are also additional orders that are not mandatory, but which the court may decide to include. Some of these are: 2. You must not approach the protected person or contact them in any way, unless the contact is through a lawyer … 3. You must not approach:
a. t he school or any other place the protected person might go to for study, b. any place they might go to for childcare, or c. any other place listed here___ …
4. You must not approach or be in the company of the protected person for at least 12 hours after drinking alcohol or taking illicit drugs. … 7. You must not live at:
a. the same address as the protected person, or b. any place listed here ___ … 8. You must not go into:
a. any place where the protected person lives, or b. any place where they work, or c. any place listed here___. Legal Aid NSW, “Types of Apprehended Violence Orders”
In 2020, the automatic duration of an ADVO increased from 12 months to 2 years, with indefinite orders possible for adult offenders. If a person breaches the terms of their ADVO, they may be arrested and charged with a criminal offence for contravening their ADVO. Under section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the maximum penalty that a judge can impose on a person who has contravened an ADVO is a fine of 50 penalty units and/or up to two years’ imprisonment. In 2014, the NSW Parliament introduced reforms allowing police officers ranked sergeant or above to issue on-the-spot apprehended violence orders in domestic violence situations. This gave police the immediate power to direct an alleged perpetrator to leave the home and, if necessary, detain them for up to two hours so the order could be served, addressing delays caused when magistrates were unavailable
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outside business hours. These powers were strengthened further in 2020, when additional reforms expanded police authority to issue apprehended violence orders immediately at the scene and reinforced their ability to provide urgent protection at any time of the day or night. Together, these changes were designed to ensure victims could receive fast and effective protection without having to wait for a court to issue an order.
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In addition to ADVOs, the 2024 amendment to the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2007 (NSW) provides more protection to victims. In September 2025, the NSW government implemented Serious Domestic Abuse Prevention Orders, which gives courts the power to impose any reasonable condition appropriate to prevent the occurrence of domestic violence. This type of order may be issued by the Commissioner of Police or the Director of Public Prosecutions if a perpetrator has:
• been convicted of two or more domestic violence related offences that have a maximum penalty of seven years’ imprisonment or higher • been charged with a serious domestic violence offence regardless of the status of the case (tried, acquitted, quashed).
Serious Domestic Abuse Prevention Orders have a maximum duration of five years and breaches are a criminal offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Part 10A). The breach of a Serious Domestic Abuse Prevention Order carries a maximum of five years’ imprisonment and/or a fine of 300 penalty units. These types of orders target re-offenders and attempt to be preventative rather than purely reactive. On introducing these amendments, the Women’s Safety Commissioner, Dr. Hannah Tonkin, said: “These reforms prioritise the safety of women and children and send a clear message that domestic and family violence will not be tolerated… ”.
convicted when the person has either pleaded guilty to or been found guilty of a crime after a trial charged when a person is officially accused of committing the crime admissible (in the context of the law) evidence that can be used in a trial as there are specific rules about what evidence can and cannot be used
Under the Surveillance Devices Amendment (Police Body-worn Video) Act 2014 (NSW), police can record audio and video footage of a reported act of domestic violence. This is admissible in court proceedings and aids in the collection of evidence for offences that may be hard to prove in court. This adds further transparency to the processes involved in policing in domestic violence cases.
The 2014 reforms to the Crime Act 1900 (NSW) (section 37) included up to five years imprisonment for choking, strangling or suffocating victims. This offence previously held a two-year maximum penalty. In addition, if a person chokes, strangles or suffocates a victim with the intent to commit another indictable offence, the maximum penalty is 25 years imprisonment.
Following the murder of Molly Ticehurst by her former partner, Daniel Billings, the NSW government introduced significant reforms to strengthen bail laws for those accused of serious domestic violence offences. Under the Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW), accused individuals are now required to satisfy a “show cause” test, meaning they must demonstrate why they should not be held in custody while awaiting trial. The amendments also allow courts to impose electronic location monitoring as a bail condition, increasing oversight of accused offenders. In addition, court registrars are no longer permitted to make bail decisions in these cases, ensuring that such decisions are handled by judges with greater judicial authority and experience.
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Coercive control
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As discussed earlier, the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) came into effect in July 2024, amending the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The purpose of this reform was to close long-standing gaps in the law by recognising coercive control as an ongoing pattern of abusive behaviour, rather than a single incident. This is significant because coercive control typically involves repeated actions, such as monitoring, isolation, intimidation or financial restriction, which are designed to dominate, create fear or cause harm over time. Prior to this legislation, offences such as intimidation or harassment could be prosecuted individually, but they did not adequately capture the cumulative and escalating nature of coercive control. As a result, victims often remained unprotected until physical violence occurred. By criminalising patterns of behaviour, the law now provides a more comprehensive framework to address the realities of domestic abuse and improve protection for victim-survivors.
CASE STUDY 23.4.1
Inquest into the deaths of Hannah Clarke, Aaliyah Baxter, Laianah Baxter, Trey Baxter and Rowan Baxter
The murder of Hannah Clarke and her three children sparked national outrage about domestic violence and the urgent need for coercive control reform. The case also intensified pressure for changes to Queensland’s domestic violence laws. In February 2020, Hannah was driving her children to school when her estranged husband, Rowan Baxter, ambushed them, doused the car in petrol and set it alight. Hannah and the children later died from their injuries, and Baxter was found deceased with self-inflicted wounds. The coronial inquest found Baxter exhibited numerous indicators of extreme domestic violence, including 29 of the 39 recognised lethality indicators. It also highlighted major shortcomings across agencies in recognising the high level of risk he posed. Although the coroner concluded the tragedy was unlikely preventable under the systems in place at the time, the findings underscored the need for better training, coordinated responses and stronger legislative protections.
Baxter had a long history of coercive and controlling behaviour, but such conduct was not yet criminalised in Queensland. The case became a defining example of how lethal coercive control can be and contributed directly to national momentum for reform.
Public advocacy and media outcry following the Molly Ticehurst and Hannah Clarke cases placed significant pressure on governments to introduce rapid legislative reforms to close gaps in victim protection. Both cases exposed serious limitations in the existing legal frameworks across two different states. In New South Wales, the offence of coercive control now carries a maximum penalty of seven years’ imprisonment. At this stage, this legislation applies only to intimate or former intimate relationships, as police and enforcement agencies continue to determine how best to implement these reforms in practice.
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Other state protections
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Although many specific domestic violence laws and protections are state-based, the Commonwealth government supports national coordination through the Family Law Act 1975 (Cth) and the National Plan to End Violence against Women and Children 2022–2032. Other Australian states also have legal frameworks like those in New South Wales. For example, laws such as the Family Violence Protection Act 2008 (Vic) and Domestic and Family Violence Protection Act 2012 (Qld) both aim to protect victims and the broader community from harm. Each of these Acts provides for protection orders comparable to apprehended domestic violence orders. They also face similar challenges in achieving justice, particularly regarding enforcement and the practical barriers victims may encounter.
Figure 23.4.2 A vigil held in 2020 to commemorate Hannah, Aaliyah, Laianah and Trey. Hannah’s parents can be seen in the front centre of the picture.
Queensland has also introduced coercive control laws under the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 following the death of Hannah Clarke and her family. This law is commonly known as “Hannah’s Law” and came into effect in May 2025. Queensland Police have reported that at least 50 charges have been laid under this legislation in the first six months of criminalisation. In New South Wales, according to BOCSAR, only nine charges have been laid in the first 12 months of the reforms. Queensland’s legislation also carries a higher maximum penalty of 14 years’ imprisonment, compared with seven years in New South Wales. Following the inquest into Hannah Clarke’s death, several recommendations were made for police to receive better training in responding to domestic violence, and the government has taken steps to implement this. This training includes both online and face-to-face modules, which may explain the higher conviction rates in Queensland. When the 2025 statistics were released, the media questioned the differences between New South Wales and Queensland, with some suggesting that improved training and education have contributed to Queensland’s stronger outcomes.
CASE STUDY 23.4.2
Inquest into the death of Luke Geoffrey Batty (2014)
Rosie Batty became one of Australia’s most influential domestic violence advocates following the devastating loss of her son, Luke Batty, who was born in 2002. Luke’s father, Greg Anderson, had a history of violent behaviour toward Rosie and others, as well as longstanding mental health concerns. After their separation, Rosie sought a protective order (similar to an ADVO in NSW), and although she reported multiple breaches, continued trying to support Luke’s right to have a relationship with his father. On 12 February 2014, Luke was brutally killed by Anderson at cricket practice. Anderson was shot by police at the scene after resisting arrest and posing a risk to others. Luke’s death highlighted, in the most devastating way, the complexities and dangers inherent in family violence.
Figure 23.4.3 Rosie Batty in 2019 after receiving the Queen’s honour medal. She received this award along with the Australian of the Year award for her contributions to raising awareness and money to combat domestic violence.
In the aftermath, Rosie Batty used her voice and the media to raise national awareness and push for stronger legal responses to family violence. Her advocacy led to the establishment of the Luke Batty Foundation in 2015, and in the same year she was named Australian of the Year. The Foundation emphasised proactive, not reactive, approaches to preventing domestic violence.
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The Victorian government held a coronial inquest into the death of Luke Batty, which exposed significant failures in Victoria’s domestic violence system. Judge Ian Gray found that Luke’s death was preventable and that courts, police and child protection agencies lacked effective coordination. The case became a catalyst for the Royal Commission into Family Violence (Victoria, 2015–2016), which produced 227 recommendations and led to major law reforms. These included strengthening the Family Violence Protection Act 2008 (Vic) with clearer definitions of family violence, the introduction of specialist family courts and improved information-sharing schemes across agencies.
Federal protections
The Family Law Act 1975 (Cth) defines what “family violence” is and is administered through the Federal Circuit and Family Court of Australia. This legislation applies across all states and territories except Western Australia, which retained its own family law jurisdiction and operates a separate Family Court. Although all other jurisdictions referred their family law powers to the Commonwealth, Western Australia did not, resulting in a system that mirrors, but remains distinct from, the federal framework. The primary purpose of federal family law is to regulate family relationships, including divorce, de facto relationships, property settlements and parenting arrangements. As a result, the key difference between state and federal legislation is the focus: state laws aim to prevent and respond to criminal acts through mechanisms such as apprehended domestic violence orders, while federal law guides decisions about parenting, child safety and other family matters arising after separation. In 2012, the definition of family violence in the Family Law Act 1975 (Cth) was broadened to recognise a wider range of abusive behaviours as forms of violence. Section 4AB(1) of the Act states in part that: “family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”.
International protections
Australia has agreed and ratified numerous international agreements and instruments aimed at protection against domestic violence and coercive control. The Universal Declaration of Human Rights (1948) holds that everyone has a right to life, liberty and security (Article 3) and further supports that humans have the right to be free from torture or cruel, inhuman or degrading treatment (Article 5). Domestic violence and coercive control violate numerous international obligations; however, due to state sovereignty, international law can be hard to enforce. Australia is a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (1979). While this treaty does not explicitly address domestic violence and control, it does recognise women’s broader rights, such as gaining fair access to the law (Article 15) and clearly defining discrimination against women (Article 1). This treaty was not ratified into one single piece of legislation; however, it was largely upheld through the Sex Discrimination Act 1984 (Cth).
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The Convention on the Rights of the Child (1989) explicitly recognises children’s rights and protections. Convention on the Rights of the Child (1989) Article 19
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1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
This treaty further established the framework of how children should be protected, and states that children should be afforded human rights regardless of age. International treaties are not enforceable unless ratified into domestic law. In this case, most elements of this treaty have been ratified into state and federal legislation. The Australian Human Rights Commission has noted that, statistically, the exposure of children to family violence is under-reported and inconsistent.
The Declaration on the Elimination of Violence Against Women (1993) was a landmark United Nations resolution that recognised the urgent need to protect women’s safety and uphold their rights. Although UN resolutions are non-binding, this declaration played an influential role in encouraging many nations to strengthen their domestic laws. Because women are disproportionately affected by domestic and family violence, the declaration helped guide the development of protective legislation around the world. It also provided a clear definition of violence against women and affirmed that such violence constitutes a violation of human rights. Australia has supported the principles of this declaration through state and federal reforms addressing domestic violence and coercive control, including the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW).
REVIEW 23.4 Online quiz
Review questions
Access sample responses and results
Review 23.4 questions
1. Identify how domestic violence is defined in NSW legislation. 2. Outline the key legal protections available to people experiencing equity, discrimination or power imbalance in the form of domestic violence. 3. Explain how Australia’s international obligations have influenced the legislative response to domestic violence. 4. Describe how New South Wales law reform on domestic violence reflects society’s changing values and morals. Go online to assign and download questions, view results and more!
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23.5 Authorities that advocate for rights LEARNING OBJECTIVE 23.5 DESCRIBE the functions of authorities that advocate for and protect the rights of people in matters of domestic violence.
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An advocate is a group or body that represents the needs and rights of others and defends these rights through legal and non-legal measures. Advocates are vital when there is unfairness or unequal power, because people in these situations may not be able to stand up for their rights on their own.
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International authorities
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The United Nations Entity for Gender Equality and the Empowerment, also known as UN Women, is an advocacy body that promotes international human rights for women. This includes work around violence, discrimination and imbalances in treatment. According to UN Women’s 2025 global data collection, Figure 23.5.1 A protester holds a sign at a 2024 download pdf march in Melbourne calling for government action 180 countries now have some form of domestic violence and reform to protect women and children from legislation or protective measures in place. UN Women acts as violence. a central agency for gender equality, guiding and influencing countries worldwide to strengthen their legal responses to violence against women. Through its research and recommendations, it provides comparative information on how each nation addresses domestic violence, identifying both effective protections and areas where laws remain inadequate.
Domestic authorities
The Women’s Domestic Violence Court Advocacy Services are community-based services funded by Legal Aid NSW legal aid.
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This service provides women and children with:
• education and safety planning, if required scorcher • referrals to supports such as housing, counselling, healthcare or financial • access to legal representation and advice to ensure a just outcome.
The Family Advocacy and Support Services are funded by the Australian government and were established in 2016 under the National Plan to Reduce Violence Against Women and their Children. These services provides support to men, women and families online and over the telephone. The program is overseen by Legal Aid and offers advice and representation for those navigating family law matters and who are affected by domestic and family violence.
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Many advocacy groups have been created by individuals who have suffered the consequences of domestic violence. One example of this is Small Steps 4 Hannah, an organisation founded by Hannah Clarke’s parents following her death. It strongly (and successfully) fought for coercive control laws to be introduced into Queensland. The Clarkes’ work demonstrates the role that advocacy can play in shaping legal reform and raising public awareness.
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Government campaigns In May 2025, the Federal Circuit and Family Court of Australia launched an initiative where prominent Australian figures spoke against family violence in an advertisement named Family violence: it’s just not on! Chief Justice Alstergren, who was integral to the creation of this campaign stated:
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Domestic and violence against women is just not on. Something must be done to prevent this behaviour before it occurs, and men need to be part of that conversation and the solution. Chief Justice Will Alstergren AO, Chief Justice of the Federal Circuit and Family Court of Australia.
Hugh Jackman, Darcy Moore, Vance Joy, Hamish Blake and other prominent figures featured in this campaign to promote the idea that every man has a role to play in stopping violence against women. In 2024, the NSW government launched a statewide campaign to raise awareness about coercive control, which was developed by the Department of Communities and Justice. Its tagline, It’s not love, it’s coercive control. Know the signs of abuse, aims to help the public recognise this newly criminalised behaviour. The campaign was developed in consultation with key stakeholders and victim-survivors. It followed the creation of a 2023 government website that provides accessible information about coercive control, with resources translated into multiple languages. During the COVID-19 pandemic, the NSW government also launched the Speak Out campaign. This campaign featured people of different ages, cultures and backgrounds with the words “Speak Out” painted on their lips, highlighting that domestic violence can affect anyone. During the campaign period in 2020, the NSW Domestic Violence Line received an additional 1,000 calls, suggesting that more people reached out for help after seeing the campaign.
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Identify how international advocacy bodies affect domestic legal responses. Describe the role of domestic advocacy groups. Identify one government campaign and its goals. Explain how advocacy bodies may achieve justice for victims and society. Go online to assign and download questions, view results and more!
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23.6 Contact with legal processes LEARNING OBJECTIVE 23.6
U N SA C O M R PL R E EC PA T E G D ES
DESCRIBE how people encounter legal processes in matters of domestic violence, including law enforcement agencies, courts or tribunals, and dispute resolution methods.
Legal processes
reporting
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As discussed in section 23.3, one of the first protections that can be put into place is a protection order, such as an ADVO. This process can be done relatively quickly with the application processed in one of two ways. The first is an application through the police and the second is an application to the court. The police can also grant on-thespot ADVOs in dangerous situations that require immediate protection. scorcher
Domestic violence and coercive control offences are usually dealt with in the criminal court system. In criminal law, the prosecution must prove the offender’s guilt beyond reasonable doubt, the highest legal standard. These proceedings aim to ensure a fair process for both the accused and the victim, balancing the rights of each party. In some situations, a person may be excused from giving evidence if they can show that the alleged offence is minor, that their evidence is not essential, and that their request not to give evidence is made voluntarily without pressure or coercion. Research suggests that one of the most effective aspects of these court processes is the increased access to support services for victims. When victims attend court, they are more likely to be connected with legal assistance, counselling, safety planning and other supports that they may not have accessed otherwise.
Evatt list
The Evatt list is a court list that is handled by a highly trained team of professionals including judges, court child experts and court staff. This list was named after the first Chief Justice of the Family Law Court, the Honourable Elizabeth Evatt. The Evatt list is a part of the Federal Circuit and Family Court of Australia’s Lighthouse Model, which is an approach taken by courts to manage and assess risk in violent cases. The Evatt list was trialled in 2020 and was been nationally rolled out in 2022. One of the main successes of this list has been its early and proactive case-management strategies. This court process fast-tracks cases that have serious family violence, and it provides personalised support and management plans.
Magellan list
Similarly, the Magellan list started operating in 2003, after some successful trials. This is a case-management system in the Australian Federal Circuit and Family Court which was introduced as a means of handling child-related matters swiftly and with a coordinated response. This list is named after the explorer Ferdinand Magellan to symbolise long, complex but necessary journeys. The cases in this program are typically handled by a presiding judge and a consistent team, including child experts. The Magellan list typically hears cases that involve physical or sexual violence towards children or exploitation of children, so must be handled with great expertise and care.
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This list differs from the Evatt list in the severity and scope of issues that are heard. The Magellan list hears severe and specific child-related cases, whereas the Evatt list has a broader jurisdiction which can include family violence.
Dispute resolution methods
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Family law matters are often highly personal and emotionally complex, so the legal system promotes low‑cost, time‑efficient and confidential alternatives to court where appropriate. Under the Family Law Act 1975 (Cth), parties are generally encouraged to participate in family dispute resolution before commencing court proceedings as these aim to reduce conflict and support cooperative decision‑making. However, in cases involving domestic and family violence, exceptions are made to protect victims from further harm.
In 2010, the Australian Law Reform Commission identified a broad consensus within the legal community. First, using family dispute resolution in cases involving violence carries significant risk. Second, if family dispute resolution is attempted, strong safeguards must be in place, and the process must be conducted by an appropriately trained professional. Third, some matters may proceed to mediation after an initial family dispute resolution assessment, but only where safety concerns have been thoroughly addressed. This means that practitioners must ensure that all parties can participate freely, without intimidation, coercion or unequal bargaining power, and that no child is placed at risk. Unfortunately, these conditions are often difficult to guarantee in cases involving domestic violence or coercive control. As a result, family dispute resolution is not commonly used in these matters, and courts instead rely on more protective legal processes.
Courts and tribunals
Specialised family violence courts exist within each state to facilitate family violence matters. The main features of these courts include having trained personnel, dedicated time set aside for domestic violence matters, integration of support services, specific arrangements to ensure victim safety and a broader jurisdiction in some states. For example, the Victorian model is named the Family Violence Court Division and is a branch of the Magistrates Court. According to the Australian Law Reform Commission, this court has jurisdiction over offences including domestic violence protection orders, summary criminal proceedings, civil personal injury claims, compensation, committals for indictable offences and some child support matters. This broad jurisdiction allows for faster resolutions and clear coordination for victims. The specialised family violence courts are also victim-centred and aim to identify risks early. The use of initiatives such as the lighthouse approach is taken by courts to manage and assess risk in these cases. However, not every state and territory has these specialised courts, and Tasmania and the Northern Territory use traditional courts for these cases.
Enforcement agencies State police are one of the main agencies at the front line of domestic violence and coercive control matters. Police can intervene when notified of a harmful situation or need for protection. The main role of police is to respond to and prevent immediate harm, assess risks and evidence, and, where appropriate, issue on-the-spot ADVOs under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) or take an offender into custody. They also work to deter violence of any kind. The legislation in New South Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Wales that covers police powers is called the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). This legislation allows police to enter a dwelling if a person who lives there and who may be a victim of violence invites them to enter, even if another person refuses them entry. Police officers are often the first responders to domestic violence situations and fulfil a significant role for both the victims and the offenders.
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The Department of Communities and Justice further enforces and responds to domestic violence legislation. The Department’s main role is to protect vulnerable individuals and support victims. They are heavily involved in the protection of children and have the power to remove children from any immediate risk and apply to the Children’s Court for more permanent arrangements. The Department of Communities and Justice can also oversee the parental contacts and facilitate court orders. The Department of Communities and Justice draws most of its powers in relation to the care and custody of children from the Children and Young Persons (Care and Protection) Act 1998 (NSW). The NSW Domestic and Family Violence Blueprint for Reform was developed by the Department of Communities and Justice in partnership with other agencies, such as the police and courts. The key goals identified in this are prevention, early interventions, support and system improvements.
Whether police laid criminal charges
Court outcome
Penalty
6% (2,020) Custodial sentence
33,811 incidents of domestic violence -related assault reported to police in 2022
15% (4,904) Supervised community order
39% (13,123) Proven domestic violence offence
14% (4,591) Unsupervised community order
72% (24,273) Legal action commenced
5% (1,175) Not guilty
18% (6,066) Withdrawn by prosecution
28% (9,538) No legal action
5% (1,608) Other penalty
10% (3,309) Other outcomes
Figure 23.6.1 The data from 2022 demonstrating the number of charges, outcomes and penalties in NSW. Police may not lay a charge if there is not enough evidence to support the claim. Source: NSW BOCSAR
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Identify the main function of specialised family violence courts. Describe the main role of the Department of Communities and Justice. Discuss why family dispute resolution processes are not generally used for domestic violence cases. Compare the differences between the Evatt list and the Magellan list. Assess how enforcement agencies work together to provide justice to domestic violence victims. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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23.7 Alternative approaches to justice LEARNING OBJECTIVE 23.7 DESCRIBE alternative approaches to justice available to people in matters of domestic violence.
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Restorative justice programs
Restorative justice programs facilitate active participation and focus on relationship repair. These practices have generally shown a reduction in re-offending for criminal behaviour and may be used in some domestic violence cases. Restorative justice video widget reporting processes differ from traditional court structures and rely on participation from all parties, including the victim and community. This can include practices, such as mediation and circle sentencing, although it is important to recognise that these are not suitable for all cases, especially where safety or power imbalance is a concern.
Writing focus 23.7 Conjunctions note taking (subordinating – contrast)
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Youth Koori courts and circle sentencing
Youth Koori courts are another example of an alternative justice approach. These courts were introduced to help address the over-representation of Aboriginal and Torres Strait Islander youngquiz people in the criminal justice system. They involve questions download word the young person’s community, such as Elders, family and support workers, and take a more holistic approach to understanding the causes of offending and supporting better outcomes for young people.
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Figure 23.7.1 The opening of the Youth Koori Court in Surry Hills, Sydney, 6 February 2019
Circle sentencing is another alternative approach available to eligible adult Aboriginal offenders who plead guilty or are found guilty in a local court. Instead of being sentenced by a judge, community members participate in determining a plan and a sentence for the offender. This process traditionally takes place in a circle Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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that includes the defendant, respected community members, support people and the judge. The victim also has the option to be involved. Delivered through the Aboriginal Services Unit, circle sentencing aims to provide a culturally responsive and community-driven approach to justice. This is especially significant given the disproportionate impact of domestic violence on First Nations Peoples.
Diversionary justice programs
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Alongside restorative justice programs, there are also diversionary justice programs, which aim to support rehabilitation and prevent further harm before matters escalate. These programs are generally used for lower-risk offenders and divert people away from the court system. One example is men’s behaviour-change programs, which help domestic violence perpetrators understand and change their behaviour through emotional regulation, counselling and other supports. These programs are offered by a range of providers across Australia, including CatholicCare, Anglicare and Everyman, and help address the underlying issues linked to offending.
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Identify what restorative justice programs are. Describe the difference between restorative justice programs and diversionary justice programs. Outline the advantages of alternative justice programs. Explain why circle sentencing or Youth Koori courts are useful for First Nations people in achieving justice. Go online to assign and download questions, view results and more!
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23.8 The role of non-government organisations LEARNING OBJECTIVE 23.8
IDENTIFY non-government organisations that represent the interests of people in matters of domestic violence. DESCRIBE the roles non-government organisations fulfil.
Australian campaigns
reporting
Writing focus 23.8 Transitional note taking phrases
There are numerous non-government organisations in Australia that support law reform and support victim-survivors of domestic violence and coercive control in their recovery. These groups are pivotal in promoting law reform and providing scorcher effective services to those in need.
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One such group is Domestic Violence NSW, which is a non-government organisation that represents more than 200 service providers. Its work focuses on policy, advocacy, raising standards, prevention and law reform. This advocacy group often submits feedback to the government to ensure that victims’ voices are heard when new Bills are being considered.
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Full Stop Australia is another advocacy group that aims to encourage change and provide support for victims. It provides counselling sessions and access to other services. It is based in New South Wales and provides services, helplines and support nationally. Similarly to Domestic Violence NSW, Full Stop Australia offers advice and feedback to the government regarding law reform; however, it targets federal legislative changes.
International campaigns
Figure 23.8.1 The “She Matters” mural in Melbourne (in place from March 2025 to April 2026) contained the names and faces of women who died as a result of domestic violence. The mural was created by the RED HEART Movement and Australian Femicide Watch, NGOs dedicated to ending violence against women and children.
International campaigns, including the No More campaign and the White Ribbon campaign, educate and spread awareness of domestic violence. These initiatives increase public awareness and put pressure on governments to prioritise policies and funding for domestic violence.
The international No More campaign is aligned with more than 1,400 organisations to “be a part of the solution”. A point of difference in this campaign is its focus on bystander intervention, which encourages ordinary people to challenge harmful attitudes, call out abusive behaviour and support people who are at risk. This campaign, originating in the United States, has been supported by many high-profile individuals, helping to boost its global recognition. The White Ribbon campaign originated in Canada and has become internationally recognised, including in Australia. This campaign focuses on engaging men and boys to learn about domestic violence and take a stand against violence against women. White Ribbon challenges the notion of toxic masculinity and harmful gender norms that affect how relationship dynamics form. This campaign encourages men to make a pledge to never commit, condone or remain silent about violence against women.
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1. Outline the aims of an advocacy group. 2. Explain the impact of NGOs’ campaigns. Refer to one example. 3. Evaluate the non-legal responses to domestic violence. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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RESPONSIVENESS OF THE LEGAL SYSTEM
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23.9 Indicators of success in achieving justice LEARNING OBJECTIVE 23.9
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ANALYSE the indicators used to measure the success of achieving justice for people in matters of domestic violence.
New South Wales
reporting
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The NSW Domestic and Family Violence Blueprint for Reform 2016–2021: Safer Lives for Women, Men and Children was a plan by the state government to improve how domestic and family violence is handled in New South Wales. This blueprint promoted cross-agency communication and encouraged teamwork among government agencies, community organisations, the private sector and local communities. A major scorcher focus was on preventing domestic violence before it starts. The government invested $300 million in the six-year plan to fund specialist services and implement support programs. The NSW government “report card” for 2020–2021 highlighted the achievements of this initiative, such as 39 grants awarded towards raising awareness and education activities. There were 768 men referred to men’s behaviour-change programs, including 101 men who identified as Aboriginal or Torres Strait Islander. The NSW Police Force made 154,881 referrals to support services, a 3.4% increase on the year prior. In some respects, this plan led to positive changes, although reports such as KPMG’s evaluation found there was still some inconsistency in responses in areas such as remote and rural communities. Furthermore, this plan did not adequately address re-offending as a fundamental issue.
The NSW Domestic and Sexual Violence Council is an advisory group made up of representatives from a wide range of backgrounds. This includes members from different cultural and religious communities, academics and leaders of key organisations such as Domestic Violence NSW and Full Stop Australia. The council serves as an important link between the government and the broader community. Its role is to support a coordinated response to domestic and sexual violence by advising the government on programs, initiatives and strategies aimed at prevention and improved support for victim-survivors.
National
policy framework an overarching set of guidelines and procedure recommendations that leads a government’s actions and decisionmaking on specific issues of interest
Following the conclusion of the blueprint, the National Plan to End Violence against Women and Children was introduced. This is a policy framework covering the years 2022–2032 that focuses on four key areas: prevention, early intervention, response and recovery/healing. The plan was developed based on research and consultation with survivors of domestic and sexual violence as well as experts in the field. This was further guided by organisations, advocacy groups and frontline services. This plan is split into two smaller five-year plans, which target both state and Commonwealth
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government objectives and actions. One of the proposed key focus areas for the government is coercive control. This is reflected in the legislative reforms that took place under the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW). Other focus areas include sexual violence, misogynistic pornography, economic abuse and abuse using technology.
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While statistically, domestic violence and coercive control appear to be increasing, this may be due to the growing number of people reporting these acts. As educational campaigns and government reforms have spread awareness of domestic violence, the community has a greater understanding of what behaviour is acceptable in a family. However, according to the 2021 National Community Attitudes towards Violence Against Women Survey, the community’s average understanding of domestic and family violence scored 69 out of 100 on the Understanding of Violence Against Women Scale.
Figure 23.9.1 Community understanding about domestic violence and coercive control seems to be increasing.
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1. Describe the outcome of the NSW Domestic and Family Violence Blueprint for Reform 2016–2021: Safer Lives for Women, Men and Children. 2. Explain the aims of the National Plan to End Violence against Women and Children. 3. Account for the small statistical increase in the number of domestic violence cases in Australia. 4. Explain Australia’s national response to domestic violence. Go online to assign and download questions, view results and more!
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23.10 Barriers to achieving justice LEARNING OBJECTIVE 23.10
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ANALYSE the barriers that prevent people from achieving justice within the legal system in matters of domestic violence.
Reporting
reporting
Writing focus 23.10 Noun phrases note taking (develop)
Domestic violence and coercive control incidents are extremely personal and emotional, and reporting of these incidents largely falls to the victims and community members. The emotional impact this has on victims and the clear power imbalance is a significant barrier to achieving justice. Domestic Violence NSW suggests that in 2020, only 40% of incidents were reported. The Domestic Violence Death Review Team’s data report scorcher points out that one in three homicides in New South Wales is domestic violence related. They also noted that in 50% of cases, the individual men’s history of domestic violence had not been reported to the police. This represents a significant failure of the justice system’s ability to rehabilitate or deter perpetrators from this form of violence.
Jurisdictional gaps
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As domestic violence and coercive control legislation is mostly managed by state jurisdictions rather than the federal legal system, this gives rise to an inconsistency in legal responsibilities. The definitions of domestic violence, and specific stand-alone offences such as coercive control, vary between each state or territory. Australia’s National Domestic Violence Order attempts to address cross-jurisdictional enforceability, which automatically registers any domestic violence protection order on a central database that is accessible to police and courts in all states and territories. While this scheme is extremely beneficial for victim protection, there are still clear jurisdictional gaps within the domestic violence and coercive control protections. The Australian Law Reform Commission report in 2019 made three key recommendations to address gaps in the legal system. First, it recommended that states and territories retain full jurisdictional control over domestic violence laws, rather than shifting these powers to the Commonwealth. Second, it emphasised the need for stronger legal protections for children who are exposed to, or affected by, domestic and family violence. Finally, the Australian Law Reform Commission recommended stricter measures to ensure compliance with court orders, such as ADVOs, to improve safety and accountability.
Convictions
To convict someone of a coercive control offence, it must be proven beyond reasonable doubt that the accused intended to exercise control over the victim. Renata Field, CEO of Domestic Violence NSW, claimed in a news article that the threshold may be too high, and may give women a misguided sense of confidence that the perpetrator will be held accountable for their behaviour, which may be hard to prove in court. This is shown in the BOCSAR data, which identifies 300 recorded incidents but only 9 charges in the first 12 months of the law’s introduction. The implementation of this law must address the inadequacies of the “trial period” and continue to educate enforcement agencies and communities.
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Structural barriers to change The National Plan to End Violence against Women and Children identified clear structural barriers to achieving change in Australia, including:
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• the workforce response to domestic violence and the skills to respond to these matters • services to support victims and their children such as paid leave, affordable public transport services and affordable childcare services • inadequate housing security limits the ability of an individual to leave violent situations (Specialist Homelessness Services Collection found that, out of all specialist homelessness services provided in 2023–2024, 39% of people using the services had experienced domestic violence) • improving the criminal justice response and ensuring that police and prosecutors have the tools and training they need to respond to violence • ensuring equitable access for all communities • improving access and responsiveness of alternative approaches to justice including alternative dispute resolution and community courts, providing an approach that is culturally sensitive and inclusive for all communities.
Figure 23.10.1 “No More Empty Shoes” vigil held in Sydney to remember the women that were lost to domestic violence. For each woman lost, one pair of shoes is displayed to raise awareness and commemorate.
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Review 23.10 questions 1. Describe why approximately only 40% of domestic violence incidents were reported in 2020. 2. Explain the obstacles that may present when accusing someone of coercive control. 3. Outline the structural barriers that were outlined in the National Plan to End Violence against Women and Children. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Domestic violence is a deep-rooted systemic issue that stems from an imbalance of power and historical inequalities. Domestic violence and violence against women are a major focus for both domestic and international law communities. Domestic violence offences are prosecuted under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The introduction of the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) makes coercive control an offence under criminal law. This was a significant step towards closing the legislative gap in protection for individuals. The Family Law Act 1975 (Cth) refers to “family violence” and is administered through the Federal Circuit and Family Court of Australia. The main purpose of federal legislation in family law is to provide a framework for regulating family relationships such as divorce, de facto relationships, property settlements and parenting arrangements. One of the significant protections offered to victims is ADVOs. These orders have been reformed numerous times including extending the duration of ADVOs, the introduction of police being able to issue provisional ADVOs and being able to access ADVOs interstate. The National Plan to End Violence against Women and Children is a policy framework from 2022–2032 that focuses on four key areas: prevention, early intervention, response and recovery/healing. The Declaration on the Elimination of Violence Against Women (1993) was a landmark United Nations resolution that recognised the urgent need to protect women’s safety and rights. Australia has ratified and agreed to numerous international agreements and instruments, including the Declaration on the Elimination of Violence Against Women (1993).
Multiple-choice questions
1. Which of the following best defines domestic violence under NSW law? A. A disagreement that occurs between two people living in the same property B. Violent, threatening or coercive behaviour by someone in a domestic relationship that is used to control or harm another person C. Loud or disruptive behaviour in a home D. Physical violence that is only between intimate couples
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2. Which legislation primarily governs domestic and family violence matters in New South Wales? A. Crimes (Domestic and Personal Violence) Act 2001 (NSW) B. Crimes (Domestic and Personal Violence) Act 2007 (NSW) C. Family Law Act 1975 (Cth) D. Sex Discrimination Act 1984 (Cth) 3. What is the main purpose of an ADVO? A. To punish offenders
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C. To determine custody of children
B. To protect victims from immediate or ongoing danger D. To provide compensation to victims
4. Which of the following is not a condition that may be included in an ADVO? A. Approaching the protected person B. Imprisonment of the offender D. Threatening the new partner C. Contacting the protected person of a protected person
5. Under NSW law, which authority can issue a provisional ADVO in urgent circumstances? A. The lawyer representing the victim B. A local member of parliament C. A community support worker D. A sergeant (police officer) 6. Which recent legislative reform in New South Wales aims to criminalise patterns of coercive control within intimate relationships? A. Coercive Control Act 2023 (NSW) B. Crimes Legislation Amendment (Coercive Control) Act 2024 (NSW) C. Domestic Violence and Coercive Control Act 2022 (NSW) D. Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)
7. The introduction of specialised domestic violence courts in some NSW communities aims to: A. reduce the sentence for offenders. B. remove police involvement. C. provide a trauma informed response and professionals who are trained in handling such matters. D. replace the use of ADVOs for alternative arrangements.
Short-answer questions
1. Explain the role of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in protecting victims of domestic violence.
2. Outline the purpose of an ADVO and explain how it protects victims.
3. To what extent does the criminalisation of coercive control in New South Wales demonstrate a shift in community attitudes towards domestic violence?
4. To what extent is the law effective in safeguarding victims of domestic violence in New South Wales and Australia? 5. Evaluate how law reform reflects society’s changing values.
Extended-response question Evaluate the legal and non-legal responses to people who are experiencing issues of inequity, discrimination or power imbalances. Marking criteria for extended response questions can be found in the Interactive Textbook. Refer to these criteria when planning and writing your responses.
Video 23.11.1 Answering an exam question
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CHAPTER
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LESSONS
24.1 The need for protection under the law
24.2 Reasons for encountering the legal system 24.3 Issues arising from contact with the law 24.4 Standards, rights and protections 24.5 Advocates for rights
24.6 Contact with legal processes
24.7 Alternative approaches to justice
24.8 Organisations that represent interests
24.9 Indicators of success in achieving justice 24.10 Barriers to achieving justice
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CHAPTER
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LESSONS
25.1 Introduction
25.2 The need for protection under the law
25.3 Reasons for encountering the legal system 25.4 Issues arising from contact with the law 25.5 Protection under the law 25.6 Advocates for rights
25.7 Contact with legal processes
25.8 Alternative approaches to justice
25.9 Organisations that represent interests
25.10 Indicators of success in achieving justice 25.11 Barriers to achieving justice
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26 CHAPTER
People with disability
U N SA C O M R PL R E EC PA T E G D ES
This digital chapter can be accessed via Cambridge GO
LESSONS
26.1 The need for protection under the law
26.2 Reasons for encountering the legal system 26.3 Issues arising from contact with the law 26.4 Standards, rights and protections 26.5 Advocates for rights
26.6 Contact with legal processes
26.7 Alternative approaches to justice
26.8 Organisations that represent interests
26.9 Indicators of success in achieving justice 26.10 Barriers to achieving justice
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CHAPTER
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27
People with a mental health condition
Enhance your learning with these integrated online resources: Digital workbook
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Suggested responses Download or answer questions online Writing focus worksheets
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Chapter tests and custom exam creation Writing focus workbook Planning documents
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CHAPTER OBJECTIVES By the end of this chapter, you will be able to: • •
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define what is meant by a mental health condition and the incidence of mental health conditions in Australia describe the reasons people with a mental health condition may need protection under the law describe the reasons for which people with a mental health condition encounter the legal system explain the issues people with a mental health condition experience when they have contact with the law outline the international and domestic legal protections for people with a mental health condition describe the functions of authorities that advocate for and protect the rights of people with a mental health condition describe how people with a mental health condition encounter legal processes, including law enforcement agencies, courts or tribunals, and dispute resolution methods describe alternative approaches to justice available to people with a mental health condition identify non-government organisations that represent the interests of people with a mental health condition describe the roles non-government organisations fulfil analyse the indicators used to measure the success of achieving justice for people with a mental health condition analyse the barriers that prevent people with a mental health condition from achieving justice within the legal system.
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• • • • •
RELEVANT LAW
IMPORTANT LEGISLATION
Anti-Discrimination Act 1977 (NSW) Australian Human Rights Commission Act 1986 (Cth) Mental Health (Forensic Provisions) Act 1990 (NSW) Disability Discrimination Act 1992 (Cth) Mental Health Act 2007 (NSW) Australian Charter of Healthcare Rights (2008) Public Health Act 2010 (NSW) Public Health Regulation 2012 (NSW) National Disability Insurance Scheme Act 2013 (Cth) Mental Health Legislation Amendment Act 2025 (NSW)
SIGNIFICANT CASES Coroners Act 2009 Adam Quddus Salter File # 3333/09 Coronial inquest into the deaths at Bondi Junction on 13 April 2024 (2026) Coronial inquest into the death of Clare Nowland (2026) Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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27.1 Introduction to mental health reporting
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DEFINE what is meant by a mental health condition and the incidence of mental health conditions in Australia
A mental health condition is a disorder that affects a person’s thinking, feeling, mood or behaviour. These conditions can affect daily functioning and overall wellbeing. Examples include depression, anxiety disorders, bipolar disorder and schizophrenia. Mental health conditions can vary in severity and duration, and many people experience periods of good mental health alongside symptoms.
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mental health condition/illness an illness of the mind that affects the psychological, emotional anddownload behavioural pdf state of a person
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In Australia, a mental health condition is commonly referred to as a “mental illness” or “mental health disorder”. These terms are used interchangeably in healthcare, government policies and community discussions. The language aims to recognise the medical nature of the condition while promoting understanding and reducing stigma. In more informal contexts it can also be referred to as mental health challenges and mental health illnesses.
Definitions of mental illness
The legal definition and the medical definition of “mental illness” are not the same; the medical definition is far broader.
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Legal definition of mental illness
In Newscorcher South Wales, the legal definition of mental illness is in the Mental Health Act 2007 (NSW). “Mental illness” means: A condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: a. delusions
b. hallucinations
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c. serious disorder of thought form d. a severe disturbance of mood
e. sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs a–d.
Medical definition of mental illness
The medical definition of mental illness is wider than the legal definition. The medical definition is based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5). According to the DSM-5, a person is mentally ill if their behaviour is not an “expectable” response to a particular situation or event. Unexpectable responses are viewed as the expression of a behavioural, psychological or biological dysfunction.
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Mental health conditions in Australia Incidence
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Mental health conditions significantly contribute to the overall burden of disease in Australia. They affect individuals’ quality of life, relationships, and ability to work or study, while also increasing risks for chronic physical health issues. In a report in May 2025, the Australian Institute of Health and Welfare stated that approximately one in five Australians had experienced a mental illness in the past 12 months. It found that anxiety disorders affected nearly 14% and depressive disorders around 7% of the population.
Suicide remains a critical concern, particularly among young people and First Nations people. Nearly half of those affected sought professional help, yet barriers such as stigma, limited access to culturally appropriate services, and geographic challenges persist. The COVID-19 pandemic increased psychological distress for some groups, but awareness campaigns and government initiatives have helped to reduce stigma and improve early intervention and access to care. One benefit came through expanded telehealth services. Some people suffer from mental illness for many years; others experience a one-off, shorter bout of mental illness. It is likely that we all know someone who has experienced mental illness in their lifetime.
Deinstitutionalisation of people with mental health issues
Many of the themes of this chapter stem from the deinstitutionalisation of people with mental health issues.
Deinstitutionalisation means moving people out of large psychiatric hospitals and providing support for them within their own communities instead. In New South Wales, this shift began in the late 1960s and continued through the 1970s and 1980s. The goal was to offer kinder treatment and help people live more typical lives outside of hospital settings. However, it has also created ongoing challenges for individuals living with mental health issues.
deinstitutionalisation involves moving people with mental health issues out of large psychiatric hospitals and instead providing them with support in their own communities
Before this change, many people with mental illness spent many years or even their entire lives in large psychiatric hospitals. However, care in these hospitals was often inadequate, patients had limited rights and long stays led to social isolation. Advances in treatment, and the understanding that people tend to do better living in the community, prompted the government to close several large hospitals, such as Gladesville and Callan Park. These were replaced by community-based services such as clinics, day programs and local support teams.
Figure 27.1.1 The facility at Callan Park was founded in 1878 as Callan Park Hospital for the Insane. It went through several changes of name and ultimately ceased operation as a hospital.
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However, deinstitutionalisation also intensified some problems, especially with the legal system. Many people with mental illness now live in the community but do not always get enough support. Because they do not have proper care or housing, some of these people may act in ways that bring police attention, such as causing disturbances or minor legal troubles related to their illness. Police often respond first, but they might not have the right training to handle mental health crises well. This can lead to situations getting worse and, sometimes, people being arrested instead of getting medical help.
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In addition, there aren’t enough hospital beds or crisis services for people needing urgent mental healthcare. This means that some people end up in jail, resulting in those with mental illness being over-represented in the criminal justice system. The result is extra strain on police, courts and prisons, and often people’s conditions worsen due to being in jail. New South Wales has introduced special mental health courts and diversion programs to guide people away from jail and towards treatment, but these are not available to everyone. Overall, moving people out of hospitals without providing enough community support has increased their involvement with the justice system. This highlights the need for better services, more treatment options, and improved training for those who assist individuals with mental illness in the legal process.
REVIEW 27.1 Online quiz
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Review 27.1 questions
1. Outline the difference between the legal and medical definitions of mental illness. 2. Outline how deinstitutionalisation affected individuals with mental health conditions in New South Wales. Identify the challenges that arose from this shift. 3. Describe at least two common mental health conditions mentioned. Explain their possible impact on daily functioning and wellbeing. 4. Provide an overview of the incidence of mental health conditions in Australia, including factors that contribute to barriers in accessing mental health services. 5. Discuss how the over-representation of people with mental health conditions in the criminal justice system highlights the need for improved community support and specialised legal responses. Go online to assign and download questions, view results and more!
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27.2 The need for protection under the law LEARNING OBJECTIVE 27.2
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DESCRIBE the reasons people with a mental health condition may need protection under the law quiz questions download word
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Individuals with mental health conditions in Australia require protection under the law because they often face challenges coming from discrimination, stigma and misunderstanding. These can lead to social exclusion and limit their access to employment, education, housing and healthcare opportunities. Without strong legal safeguards, people with mental health issues risk being treated unfairly or denied essential services solely due to their condition. Anti-discrimination laws are therefore essential to promote equality, reduce prejudice and enable full participation in society. This will support individuals to live meaningful and dignified lives. Legal protections also ensure that the fundamental rights and dignity of people with mental health conditions are respected. This includes protecting privacy and confidentiality. It also includes ensuring people understand treatment options so they can give informed consent in treatment decisions. Informed consent is the right of individuals to make choices about their care when capable. Supported decision-making video widget reporting frameworks endorsed by Australian law assist individuals to understand their options and express their preferences. This helps to prevent coercive or paternalistic practices that can undermine a person’s own decision-making and wellbeing.
Writing focus 27.2 Conjunctions note taking – (subordinating reasons why)
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In circumstances where individuals pose a serious risk to themselves or others and cannot provide consent, involuntary treatment may be legally permitted. Australian mental health laws regulate this carefully to balance public safety with respect for personal freedom. quiz
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Figure 27.2.1 Federal Human Rights Commissioner Professor Brian Burdekin with his report on mental health, May 1988. He conducted national mental health inquiries which found the Australian government to be4th grossly negligent their care of individuals with& mental health* conditions. Uncorrected sample pages *inCambridge University Press Assessment © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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These laws include important safeguards such as limits on detention duration, rights to legal advice and representation, and independent review processes to ensure any involuntary treatment is justified and appropriate.
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People experiencing acute mental health episodes are often vulnerable to neglect, abuse or exploitation. Legal frameworks provide protective measures, such as guardianship orders and independent oversight, to prevent harm and hold caregivers accountable. Advocacy services further support individuals by helping them raise concerns and protect their rights, fostering safer and more respectful care environments. Access to timely, appropriate mental health support is another key legal concern. Laws promote recovery-oriented care that includes rehabilitation, social support and addressing factors such as housing and employment. All of these influence wellbeing. Legislation often requires the availability of community-based services and crisis intervention programs, which will help reduce repeated hospitalisations and improve social inclusion. The legal system also guarantees access to advocacy and ensures transparent review of decisions affecting people with mental health conditions. Mental health tribunals or boards oversee the legality of involuntary treatment orders and may discharge individuals when criteria are no longer met. Official inspections and complaint mechanisms maintain care standards, providing essential oversight and protection.
Legal protections exist to provide frameworks to help divert people with mental illness away from the criminal justice system when possible. However, many people need assistance to navigate these frameworks. In cases where a person’s condition has led them to become involved in offending behaviour, there are diversion programs, mental health courts and specialist sentencing options, which focus on addressing underlying health needs rather than punishment alone. These measures reduce recidivism, support rehabilitation and ensure access to appropriate care while upholding legal rights and human dignity.
autonomy to be free from control or influence by another person, institution or authority
Thus, it can be seen that legal protections are essential for safeguarding the rights, wellbeing and social inclusion of individuals with mental health conditions. They help prevent discrimination and harm, promote autonomy, and ensure fair access to care and justice. However, the complexities of mental health conditions can make it challenging to understand, access and navigate these protections. These challenges are explored in greater detail throughout this chapter.
REVIEW 27.2 Online quiz
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Review 27.2 questions 1. 2. 3. 4.
Explain why individuals with mental health conditions require protection under Australian law. Outline two rights that legal protections safeguard for people with mental health conditions. Discuss the role of mental health tribunals in involuntary treatment orders. Explain how legal protections support social inclusion for people with mental health conditions. Go online to assign and download questions, view results and more! Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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27.3 Reasons for encountering the legal system LEARNING OBJECTIVE 27.3 DESCRIBE the reasons for which people with a mental health condition encounter the legal system
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Mental health concerns and legal issues are often interconnected and can sometimes be complex. For instance, people with mental health conditions may be involved in criminal proceedings, receive treatment without their consent, require assistance in making decisions, experience unfair treatment or seek support from legal experts.
Mental health issues can include psychosis, delusions reporting or extreme videosevere episodes of widget agitation. Such episodes affect a person’s behaviour and sometimes lead to arrest or criminal charges. People with mental illnesses are often over-represented in offences linked to homelessness or poverty such as loitering, trespassing or begging. When substance abuse is also involved, the chance of criminal justice involvement increases. In many cases, a lack of sufficient community mental health support means police become the first responders in crises. This can lead to the “criminalisation” of mental illness.
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Figure 27.3.1 In 2019, Lee Cuthbert, Paul O’Shaughnessy and Alex Roberts chased and apprehended a man covered in blood and wielding a butcher’s knife in York Street in Sydney’s CBD. The assailant, Mert Ney, had a long history of mental illness.
Another major way individuals engage with the legal system is through compulsory or involuntary treatment. Australian laws allow treatment without consent when a person poses serious risks to themselves or others or cannot make informed choices about their own care. These orders follow strict legal rules. Oversight by authorised
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health professionals and tribunals is essential to ensure treatment is necessary, fair and respects the person’s rights. There are also processes to review or appeal decisions to prevent misuse or excessive restrictions on freedom.
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People may also enter legal processes related to guardianship or administration when their mental health affects their ability to make decisions. Courts can appoint guardians to handle personal or medical decisions, and administrators to manage finances or legal matters for vulnerable individuals. These arrangements seek to protect from harm or abuse while promoting wellbeing, focusing on the least restrictive options and supporting people to keep as much control over their lives as possible. Beyond treatment and guardianship, people with mental health conditions may use the legal system to challenge discrimination or rights violations. Stigma can cause unfair treatment in employment, education, housing or access to services. Australian laws including the Disability Discrimination Act 1992 (Cth) protect against such discrimination and provide ways to seek remedies, such as compensation or changes to policies. These laws help promote equality, inclusion and participation in society. Additionally, people with mental health challenges are often more vulnerable to victimisation, including abuse or assault. This may bring them into contact with police as victims. They may face housing issues, leading to legal disputes over evictions or unsafe living conditions. Family law matters, such as child custody or involvement of child protection agencies, can also arise when mental health affects parenting. Mandated treatment hearings or mental health tribunals represent another important area of legal involvement.
Figure 27.3.2 There can be many barriers to appropriate care for people with mental illnesses, which can make the relationship with the legal system challenging.
In summary, individuals with mental health conditions may encounter the legal system through criminal justice involvement, compulsory treatment orders, guardianship arrangements, discrimination claims and support from advocacy services. These interactions aim to carefully balance respect for personal freedom with the need to ensure safety, dignity, rights and access to appropriate care. However, in practice, many barriers can prevent this balance from being fully achieved for everyone.
REVIEW 27.3 Online quiz
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Review 27.3 questions
1. Identify the different reasons why a person with a mental health issue may encounter the law. 2. Describe the conditions under which involuntary treatment is permitted by Australian mental health laws. 3. Explain the connection between mental health issues and involvement in the criminal justice system.
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27.4 Issues arising from contact with the law LEARNING OBJECTIVE 27.4 quiz
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EXPLAIN the issues people with a mental health condition experience when they have contact with the law
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When people with mental health issues encounter the legal system, they face a complex set of challenges that can greatly affect their rights, wellbeing and legal outcomes. Understanding these difficulties is crucial for developing better legal responses and support systems.
Legal participation challenges
Individuals with mental health conditions often struggle to fully engage in legal processes due to cognitive, communication or emotional difficulties. This can impair their ability to understand legal information, express their position or interact effectively with lawyers, judges and other officials. Without appropriate accommodations – such as mental interpreters or supported video health experts, widget reporting decision-making aids – they risk misjudgement or unfair treatment. Moreover, legal professionals frequently lack specialised training to recognise and respond to mental health issues. This can result in decisions that do not consider the person’s needs. Ensuring procedural fairness demands careful assessment of capacity and tailored support throughout the legal process.
For many with mental health conditions, complex legal procedures are overwhelming. They may struggle with confusing legal language, meeting deadlines, and managing stress and uncertainty. Accessing legal representation or advocacy tailored to mental quiz questions download word health needs is often difficult. Without these supports, individuals may risk having their rights overlooked and missing alternatives such as diversion or treatment programs. Legal aid, mental health advocates and specialist services play vital roles. However, they are not always available or accessible. Improving guidance and support systems is essential for fair and effective legal outcomes.
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Personal, systemic and socio-economic barriers
People with mental health issues often face several personal challenges when dealing with legal matters. They might have trouble understanding complicated information, find it hard to follow legal steps, feel very stressed or experience side effects from their medication. All of these can make it difficult for them to take part fully in legal processes. There are also problems within the legal system itself. People may not trust authorities and legal aid services might be limited. In addition, behaviours related to mental illness can be misunderstood, and legal professionals may not recognise when someone has a mental health condition. These issues can lead to unfair or poor outcomes.
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Discrimination and stigma are further challenges. People with mental health conditions are often seen as less credible or judged unfairly because of stereotypes. This can mean they are treated more harshly or that their complaints are ignored. In the criminal justice system, people with mental health issues are over-represented in prisons. After release, they may not get the care they need, and some face indefinite detention. These problems point to bigger issues in how the system handles mental health.
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Overall, these intertwined problems demonstrate the urgent need for specialised legal services, comprehensive training for legal professionals, and closer collaboration between mental healthcare providers and the justice system.
Over-representation in the criminal justice system
People with mental health issues are disproportionately present in prisons and detention centres, highlighting systemic failures in community mental healthcare. Factors include the criminalisation of behaviour linked to untreated mental illness (e.g. minor offences or public disturbances), homelessness, substance abuse and social exclusion. This over-representation calls for expanded diversion programs, mental health courts and improved community services.
Research carried out by the Australian Institute of Health and Welfare found that people with mental health issues made up a significant proportion of inmates. What follows is a summary of the findings.
Figure 27.4.1 In NSW prisons, many inmates identify as having mental health issues.
As research takes time to collect and collate it may be outdated at the time of reading, so you should check for more updated information on the Australian Institute of Health and Welfare website.
Mental health among people entering Australian prisons
Mental health conditions are significantly more common among individuals entering prison compared to the general Australian population. In 2022, over half (51%) of prison entrants reported having been told they had a mental health or behavioural condition at some point in their lives, including issues related to drug and alcohol abuse. This contrasts sharply with figures from the 2022 National Health Survey, where about one-third (32%) of Australians reported experiencing a mental or behavioural disorder.
Differences by gender and Indigenous status
Women entering prison are more likely to have a history of mental health conditions than men. Specifically, 63% of female prison entrants reported a lifetime mental health condition, compared with 49% of male entrants. When looking at Indigenous status, non-Indigenous entrants reported a higher prevalence of mental health conditions (60%) than First Nations entrants (43%).
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Specific mental health diagnoses National prison health data do not collect detailed diagnostic information, but state and territory custodial health departments provide some insights. For example, in New South Wales in 2020, about 47% of people entering prison stated they had previously received treatment for a mental health condition. The most commonly reported diagnoses were depression (50%), anxiety (39%) and schizophrenia (18%).
Self-assessment of mental health in prison
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When asked to rate their own mental health, around 59% of prison entrants described their mental health as good or better. Male entrants were more likely to report positive mental health (61%) compared to female entrants (50%). Interestingly, First Nations entrants were more likely to rate their mental health as good or better (69%) than non-Indigenous entrants (50%).
Among those leaving prison (dischargees), about three-quarters (73%) reported good or better mental health. The majority (81%) felt their mental health had either improved or remained stable during their time in prison. Female dischargees (81%) were more likely than male dischargees (72%) to report good or better mental health. Similarly, a higher proportion of First Nations dischargees (80%) compared to nonIndigenous dischargees (67%) described their mental health positively.
Psychological distress levels
Psychological distress was measured using the Kessler 10 (K10) scale, a reliable tool for identifying serious mental illness. More than 40% of prison entrants reported high or very high levels of psychological distress. Women entering prison reported higher distress (63%) than men (40%). Non-Indigenous entrants showed higher rates of distress (54%) compared with First Nations entrants (32%).
Among people leaving prison, 26% reported high or very high psychological distress. More men (27%) than women (17%) experienced this level of distress upon discharge. Additionally, non-Indigenous dischargees reported higher distress (30%) than First Nations dischargees (21%).
Summary
These statistics highlight the elevated prevalence of mental health conditions and psychological distress among prison populations. They also show with important variations by gender and Indigenous status. This underscores the critical need for mental health support and tailored interventions within correctional settings.
RESEARCH 27.4.1
Summarise the information you find from the Australian Institute of Health and Welfare to answer the following questions. 1. What is the latest data on the number of prisoners with mental health conditions? 2. How are these inmates treated within the prison system?
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Compulsory treatment complexities Compulsory or involuntary treatment is sometimes necessary to protect individuals or others. However, it restricts personal freedom and autonomy, which presents ethical and practical challenges. There are serious concerns about consent, dignity and the right to refuse care. Legal safeguards include strict admission criteria, regular reviews and appeal rights, but these protections are often applied inconsistently across different states.
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Australia has one of the highest rates of involuntary mental health admissions globally, with 15% to 46% of cases involved patients treated against their will. This leads to concerns about human rights violations and trauma for those affected. Community treatment orders, which require treatment at home, have not shown clear benefits over voluntary care. However, compulsory treatment is often used prematurely due to a lack of voluntary alternatives. This can damage trust between patients, families and healthcare providers, especially when forced medication is involved. Balancing safety with respect for individual rights remains a complex and ongoing challenge. There have been calls for less coercive and more respectful approaches to mental healthcare.
Issues with guardianship and administration
Legal guardianship and administration orders allow others to make decisions for individuals who are unable to do so themselves. They are often managed by tribunals such as the NSW Civil and Administrative Tribunal. These orders are designed to protect a person’s wellbeing, but they can also restrict independence and lead to feelings of disempowerment. Because there is a risk of misuse or unnecessary restrictions, careful oversight and strong legal safeguards are essential. Navigating the complex legal processes involved can be particularly difficult for people with mental health issues, and may further affect their condition. Guardianship and administration orders raise significant concerns about limiting a person’s freedom and rights, including decisions about their lifestyle, medical care and finances. In some cases, orders are imposed unnecessarily or for longer than needed. There are cases when less restrictive alternatives might be appropriate. Regular and thorough reviews are important to ensure orders remain necessary, as a person’s decision-making capacity can change over time. There is also a tension between acting in a person’s “best interest” and respecting their own wishes and preferences. Access to legal advice and support is crucial since individuals may find it hard to advocate for themselves during tribunal hearings.
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Figure 27.4.2 R U OK? Day at Bondi Icebergs, September 2016. The organisation is founded on the belief that a conversation can change a life and aims to inspire people to meaningfully connect with each other.
Stigma and discrimination
Stigma related to mental illness continues to be a major barrier that affects perceptions and treatment within both the legal system and society. Police, lawyers, judges and juries can all be influenced by negative stereotypes. These lead to bias, reduced credibility, harsher penalties or unmet needs. Discrimination in areas such as employment and housing can also result in legal disputes, with stigma hindering resolution. Addressing these issues requires education of legal professionals, mental health awareness campaigns and culturally sensitive practices to reduce bias and promote fair treatment.
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Review 27.4 questions
1. Explain the challenges individuals with mental health conditions face when participating in legal processes. 2. Outline two reasons why people with mental health issues are over-represented in the criminal justice system. 3. Discuss how mental health conditions vary among Australian prison entrants according to gender and Indigenous status. 4. Explain the ethical concerns associated with compulsory mental health treatment in Australia. 5. Discuss the potential negative impacts of legal guardianship orders on people with mental health conditions. 6. Explain how stigma and discrimination affect legal outcomes for people with mental health conditions. 7. Evaluate the barriers people with mental health issues experience when trying to access legal support and representation. Go online to assign and download questions, view results and more!
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ACCESS TO JUSTICE There are a number of legal protections provided to people with a mental health condition:
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• Anti-Discrimination Act 1977 (NSW) – Protects people with mental health conditions from discrimination in areas such as employment, education, housing and access to services. It makes it unlawful to treat someone unfairly due to a mental health condition, promoting equality and inclusion. • Australian Human Rights Commission Act 1986 (Cth) – Established the Australian Human Rights Commission, which investigates complaints of discrimination, including those based on mental health or disability. It promotes awareness, resolves disputes and encourages compliance with human rights standards related to mental health. • Mental Health (Forensic Provisions) Act 1990 (NSW) – Provides specific legal procedures and safeguards for individuals with mental illness involved in the criminal justice system. It allows for diversion to mental health treatment rather than standard incarceration, ensuring rights are protected during forensic assessments and court proceedings. • Disability Discrimination Act 1992 (Cth) – Prohibits discrimination against people with disabilities, including psychosocial disabilities arising from mental health conditions, across various sectors. It supports reasonable adjustments to ensure equal access to services, employment and public life. • Mental Health Act 2007 (NSW) – Governs the treatment, care and protection of people with mental illness in New South Wales. It includes principles of least restrictive care, informed consent and respect for dignity. It also provides legal safeguards for involuntary treatment and patient rights within health and legal settings. • Australian Charter of Healthcare Rights (2008) – Sets out the rights of all patients, including those with mental health issues. Rights include access to safe and highquality care, respect, communication and participation in decisions about their treatment, strengthening person-centred healthcare. • Public Health Act 2010 (NSW) – Provides a legislative framework for protecting public health, including provisions for managing infectious diseases and mental health-related public health issues. It supports community health and safety, including through disease prevention initiatives. • Public Health Regulation 2012 (NSW) – Regulates the implementation of the Public Health Act, specifying details on public health interventions. It aids in ensuring mental health considerations are integrated into public health responses and service delivery. • National Disability Insurance Scheme Act 2013 (Cth) – Established the National Disability Insurance Scheme (NDIS), which provides funding and supports to people with disabilities, including psychosocial disabilities related to mental illness. It enhances access to services that promote independence, social participation and recovery. • Mental Health Legislation Amendment Act 2025 (NSW) – Represents recent reforms aimed at strengthening protections for people with mental health conditions in New South Wales. It may include enhanced rights, improved access to communitybased care, updated safeguards for involuntary treatment, and measures to reduce discrimination within the justice and health systems.
disability mental or physical impairment that can limit a person physically, emotionally and psychologically
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27.5 Protection under the law LEARNING OBJECTIVE 27.5 quiz
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OUTLINE the international and domestic legal protections for people with a mental health condition
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Legal protections for people with mental health conditions in Australia form a complex, multi-layered system that functions at international, national, and state or territory levels. Each level plays a crucial role in safeguarding the rights, dignity and wellbeing of individuals facing mental health challenges.
International protection
Australia is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which entered into force in 2008. The CRPD is a landmark human rights treaty aimed at ensuring that persons with disabilities, including mental health conditions, enjoy full and equal rights under the law. Key provisions relevant to mental health include the recognition of legal capacity with others, video widget on an equal basis reporting the right to live independently and be included in the community, protection from arbitrary or unlawful detention, and access to health services without discrimination. The CRPD requires Australia to reform domestic laws and policies to eliminate discrimination and provide reasonable accommodations so that people with mental health conditions can participate fully in society, exercise autonomy and enjoy equal protection under the law.
National protection
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At the national level, several legislative instruments underpin protections for people with mental health conditions. The Disability Discrimination Act 1992 (Cth) prohibits discrimination against people with disabilities in various domains such as employment, education, accommodation, and access to goods and services. Under the Disability Discrimination Act 1992 (Cth), mental health conditions are recognised as disabilities, and the Act mandates reasonable adjustments to promote accessibility and inclusion.
The Australian Human Rights Commission Act 1986 (Cth) established the Australian Human Rights Commission, which handles complaints relating to discrimination and breaches of human rights. It provides a mechanism for people with mental health conditions to seek redress when their rights are violated, including through conciliation and advocacy.
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Figure 27.5.1 Assistant Minister for Mental Health and Suicide Prevention and Rural and Regional Health Emma McBride shakes hands with Governor-General Sam Mostyn during a swearing-in ceremony at Government House on 13 May 2025 in Canberra, Australia.
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The NDIS began operation in 2013. It plays a critical role by providing funding and support for people with disabilities, including psychosocial disabilities arising from mental health conditions. Through individualised plans, the NDIS facilitates access to services that support community participation, independence and recovery.
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National mental health policies, such as the Fifth National Mental Health and Suicide Prevention Plan, help the Australian government work with states and territories to improve mental health services. These plans focus on protecting people’s rights. The Fifth Plan, approved in 2021, aims to make mental healthcare better and reduce suicide across the country. It encourages services that focus on people’s needs, early help for mental health problems, easier access to good care, support for mental health workers, and special attention to groups including First Nations people young people, and people in the justice system.
State and territory protection
At the state and territory level, specific mental health legislation governs the delivery of mental healthcare and the protection of the rights of people with mental health conditions. The primary legislation governing mental healthcare, treatment and control in New South Wales has been the Mental Health Act 2007 (NSW) (which includes amendments made in 2014). It has provided the legal framework for both voluntary and involuntary treatment, aiming to protect the rights of individuals with mental illness.
forensic patient a person who is confined in an institution such as a mental health facility or correctional centre, or who is released from custody subject to conditions
In 2025, the Mental Health Legislation Amendment Act 2025 (NSW) was passed. It is often related to the Health Legislation Amendment (Miscellaneous) Act 2025 (NSW). The Act introduced key changes to NSW health laws, including amending the Mental Health Act 2007 (NSW). It affected forensic patient leave, updated official visitor qualifications (including psychologists and medical practitioners) and streamlined administrative processes for patient funds. New South Wales and Victoria aimed to amend existing laws to strengthen the mental health system, improve information sharing and update forensic leave processes based on previous Royal Commission recommendations. The Act also addressed clinical governance, tribunal procedures and patient care.
State anti-discrimination laws, such as the Anti-Discrimination Act 1977 (NSW), extend protections against discrimination on the grounds of disability, including mental health conditions. It relates to employment, education and service provision. Other state-based mechanisms include guardianship and administration laws that establish legal processes for appointing decision-makers where individuals are impaired. The laws ensure such interventions are proportionate and subject to review. Within the criminal justice system, jurisdiction-specific initiatives such as mental health courts or diversion programs seek to steer individuals with mental illness away from imprisonment and towards appropriate treatment and support. These efforts acknowledge the intricate relationship between mental health and criminal behaviour. The goals of these programs are to lower rates of re-offending, improve rehabilitation outcomes and ensure fairness in legal processes. They offer specialised assessments, treatment plans and judicial supervision that address mental health requirements.
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Although this complex legal framework covers many areas, there are still major practical challenges. Problems including incomplete implementation, limited knowledge among legal and health workers, ongoing stigma and lack of resources reduce the effectiveness of these protections. Additionally, factors such as poverty, cultural differences and living in remote locations make it harder for some people to access their rights and services. The only way to ensure that the law truly provides fair, respectful and effective support for people with mental health conditions in Australia is with continuous efforts in monitoring, training professionals, updating laws and advocacy.
Figure 27.5.2 On New Year’s Eve 2025, the Sydney Harbour Bridge was illuminated in recognition of the Sydney’s official charity partner, Beyond Blue, which provides free mental health support around the clock.
REVIEW 27.5 Online quiz
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Review 27.5 questions
1. Describe the role of the United Nations Convention on the Rights of Persons with Disabilities in protecting the rights of people with mental health conditions in Australia. 2. Outline the key national legislative instruments that safeguard people with mental health conditions from discrimination. 3. Explain how state-based mental health courts and diversion programs aim to improve justice outcomes for people with mental illness. Go online to assign and download questions, view results and more!
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27.6 Authorities that advocate for rights LEARNING OBJECTIVE 27.6 DESCRIBE the functions of authorities that advocate for and protect the rights of people with a mental health condition
Supporting the rights of people with mental health problems is very important for scorcher building a fair and caring society. In Australia, many different groups at both the national and state levels work together to protect these rights, improve mental health services and spread awareness. These groups include government departments, charities, special mental health commissions, human rights organisations and groups led by people with mental health experience. Each of these play a unique and important role in making sure people with mental health challenges get the help, respect and legal protections they need. Knowing what these groups do helps us understand how Australia is working to better support mental health across the country.
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At the national level, government agencies play a crucial role in developing and overseeing policies, funding frameworks and standards that support the rights of people with mental health issues. Agencies such as the National Mental Health Commission provide independent advice to the federal government and monitor progress in mental health reform. Departments such as the Department of Health and Aged Care coordinate national mental health initiatives and ensure consistent service delivery.
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The Australian government supports mental health research mainly through the National Health and Medical Research Council and the Medical Research Future Fund. These groups provide grants for studies on brain function, treatments and support methods. Other agencies, such as the Australian Institute of Health and Welfare, and state governments also contribute. Funding prioritises suicide prevention, scorcher early intervention, common and serious mental illnesses, and culturally appropriate research for Aboriginal and Torres Strait Islander communities. In addition, research aims to improve mental health services and ensure there are enough skilled workers in the sector. The government promotes collaboration among universities, hospitals, community groups and services, supporting innovative tools such as apps and genetic studies. Research efforts also link with education and social services to address mental health comprehensively. Funding aligns with national mental health plans focused on recovery, equity and evidence-based care, aiming to enhance mental health services and outcomes nationwide.
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The National Disability Insurance Scheme The National Disability Insurance Scheme (NDIS) supports people with significant, ongoing mental health disabilities by funding essential services that promote independence and community participation, such as daily living assistance, therapy and skills development. In the justice system, the NDIS helps reduce vulnerabilities by funding supports that aid decision-making, communication and access to legal and health services, helping individuals navigate legal processes more effectively.
U N SA C O M R PL R E EC PA T E G D ES
The NDIS supports people with mental health conditions to access legal help by funding advocacy services that explain legal information, assist with court or police meetings, and ensure their voices are heard. It also provides support for coordinators who connect participants with free or low-cost legal services such as Legal Aid and help with paperwork and appointments. Additionally, the NDIS offers training to build participants’ skills in understanding legal rights and handling legal issues independently, boosting their confidence and self-advocacy.
The NDIS also supports people with mental health disabilities by providing communication tools, support persons and connections to specialised legal and mental health services. It helps prevent legal issues, aids rehabilitation, and links participants to housing, health and employment. While not a legal service, the NDIS ensures people can access legal help, understand their rights and participate fairly in legal matters. NDIS issues
The NDIS has been criticised for barriers to access, inconsistent support, complex procedures, long waiting times, limited recognition of mental health needs, shortages of providers, administrative challenges and inequities that favour those better able to advocate for themselves. Moreover, scams targeting participants – particularly those with psychosocial disabilities – pose a serious threat, with fraudulent providers misusing funds and employing coercive or even “kidnapping” tactics. In response, the NDIA’s Fraud Fusion Taskforce blocked $86 million in fraudulent claims during 2024–2025. These concerns underline the need for ongoing improvements to better protect and support all participants.
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Persistent challenges remain, as not all individuals with mental health conditions – especially those with fluctuating or episodic symptoms – meet NDIS eligibility criteria, limiting their access to crucial supports that could help prevent legal issues or assist with navigating the justice system. Homeless people also face significant difficulties accessing services. Strong collaboration between the NDIS, mental health providers and justice agencies is vital to ensure people receive appropriate support at the right time.
The Human Rights Commission
The Human Rights Commission in Australia plays an important role in protecting the rights of all individuals, including people with mental health issues. It works to ensure that people with mental health conditions are treated fairly, with dignity and respect, and are not discriminated against because of their mental health.
Figure 27.6.2 Homelessness limits the ability of people with mental health issues to access services.
When it comes to cases involving people with mental health issues, the Australian Human Rights Commission can investigate complaints about discrimination, neglect or abuse in a range of settings, such as healthcare, employment, education, housing and access to services. For example, if someone with a mental health condition feels they have been treated unfairly at work or denied reasonable adjustments to support their mental health, they can make a complaint to the Commission. The Commission also promotes awareness and understanding about mental health and human rights, encouraging organisations to adopt inclusive policies and practices. It provides guidance on how to protect the rights of people with mental illness under various laws, including the Disability Discrimination Act 1992 (Cth), which covers discrimination based on disability, including mental health conditions.
While the Human Rights Commission does not have the power to make binding decisions like a court or tribunal, it can facilitate dispute resolutions through conciliation and recommend changes to policies or practices. In cases where complaints are unresolved, individuals may be advised to take further legal action in courts or tribunals.
NSW Legal Aid
NSW Legal Aid supports people with mental health conditions by ensuring fair access to justice through tailored legal advice, representation, advocacy and education. It provides free or low-cost advice on issues including mental health law, criminal charges, guardianship, discrimination, family law, tenancy and treatment orders to help clients understand their rights.
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In addition to advice, NSW Legal Aid provides legal representation for people with mental health conditions in courts and tribunals. This includes criminal cases where mental health may affect fitness to plead or criminal responsibility, care matters under guardianship laws, and disputes related to involuntary treatment orders under mental health legislation. Lawyers work closely with mental health professionals to ensure their clients’ conditions are properly considered and that reasonable accommodations are made to support their participation in legal proceedings.
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Central to NSW Legal Aid’s work is the Mental Health Advocacy Service. This specialised service supports individuals with serious mental health conditions who are receiving treatment under the Mental Health Act. Mental Health Advocacy Service advocates help clients understand their rights regarding treatment and hospitalisation, assist them in making decisions about their care, and represent them at Mental Health Review Tribunals. By working collaboratively with psychiatrists, social workers and legal teams, the Mental Health Advocacy Service ensures clients’ voices are heard and their human rights are protected throughout their treatment and legal processes. NSW Legal Aid understands that legal problems often come with other health and social difficulties. It therefore connects people to services such as mental health support, counselling, housing help, financial advice and community groups. This helps meet all of a person’s needs, improving their wellbeing and ability to handle legal issues.
Legal Aid NSW also focuses on education and advocacy by teaching communities about the rights of people with mental health conditions, and training legal and health workers to better understand these issues. It works to change policies to reduce stigma, promote fair treatment, protect human rights and improve access to justice for people with mental illness.
Non-government organisations
National non-government organisations (NGOs) operate across the country to provide support services, raise public awareness and advocate for policy changes. Well-known examples include Beyond Blue, which provides free mental health information, support and advice to help everyone across Australia feel better earlier and stay well, and SANE Australia, which focuses on education Figure 27.6.3 Non-government agencies such as Beyond Blue and research around severe mental illness. Federal support people with mental health issues. human rights bodies, such as the Australian Human Rights Commission, also safeguard the rights of individuals with mental health conditions by investigating discrimination complaints and advising on inclusive policies. Additionally, national advocacy groups and peer-led organisations such as Mental Health Australia and Lived Experience Australia amplify the voices of those with experience of mental illness, promoting leadership and systemic change at a broad level.
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At the state level, dedicated government agencies tailor mental health policies and services to address the specific needs of local communities within their jurisdictions. For example, the NSW Mental Health Commission advises the New South Wales government, engages with communities and drives improvements in state mental health services. Similarly, state health departments such as Victoria’s Department of Health oversee mental health service delivery aligned with regional legislation and priorities.
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State-based NGOs complement these efforts by providing direct community support, advocacy and education tailored to local populations. Shape Australia in New South Wales is a peer-run organisation offering self-help programs and advocacy for people living with mental illness. Some states also have independent commissions or oversight bodies to safeguard patients’ rights and ensure quality care. The Victorian Mental Health Complaints Commissioner and the NSW Mental Health Review Tribunal are examples of such bodies that handle complaints and review involuntary treatment orders. Furthermore, advocacy groups and peer organisations at the state level, such as Mental Health Carers ARAFMI NSW, support families and carers through practical assistance and advocacy, while local peer networks foster empowerment and provide platforms for shared lived experiences. Together, national and state authorities form a comprehensive system that promotes and protects the rights of people with mental health issues throughout Australia. National bodies focus on policy leadership, funding and ensuring compliance with international human rights standards, while state authorities concentrate on delivering services, enforcing legislation and engaging with local communities. This multi-tiered approach enables collaboration across different levels of government and the community sector, supporting the wellbeing and legal rights of individuals experiencing mental health challenges.
Legal advice and representation
People with mental illness who face criminal charges have the same right to access legal advice and legal representation as everyone else in the community. However, they may not be in a position to find or use legal representation because they may have limited funds or suffer from a mental illness that affects their ability to think rationally, and so may even reject legal advice. Free or low-cost legal help is available from several sources:
pro bono (Latin) “for the public good”; used to describe work that is done by a solicitor or barrister on a voluntary basis and without payment, where there are issues of community concern or significant effect on disadvantaged groups
• Aboriginal Legal Service NSW/ACT (ALSNSW) provides free legal advice and legal representation for Aboriginal and Torres Strait Islander people. The ALSNSW provides legal advice and representation on criminal matters, apprehended violence order matters, and care and protection matters (advice to people who have a genuine concern for the safety, welfare and wellbeing of a child or young person). • Some law firms provide pro bono legal services. Justice Connect provides information about, and access to, these pro bono services. • Most community legal centres have lawyers who provide free or low-cost legal advice and representation. • LawAccess NSW is a free NSW government telephone service that provides legal information, advice and referrals.
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Community legal centres Community legal centres provide free and low-cost legal advice and legal representation to members of their local communities, and especially to the disadvantaged, and people with special needs. The specialist community legal centres that work with legal problems related to mental illness are: Australian Centre for Disability Law Intellectual Disability Rights Service Public Interest Advocacy Centre Homeless Persons’ Legal Service Seniors Rights Services.
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REVIEW 27.6 Online quiz
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Review 27.6 questions
1. Outline how free or low-cost legal services help make sure people with mental illness who are charged with criminal offences are treated fairly. 2. Explain how community legal centres and free legal services help people with mental illness get the legal help they need. Provide examples in your answer. 3. Explain how New South Wales mental health legislation supports the rights and freedoms of people with mental health conditions. 4. Describe the ways that the NDIS assists individuals with mental health conditions to engage with legal processes. 5. Assess the role played by the NDIS in supporting people with mental health issues within the legal system. 6. Describe the role of NSW Legal Aid’s Mental Health Advocacy Service in supporting clients with mental health conditions. 7. Discuss the importance of the Australian Human Rights Commission in protecting the rights of people with mental health conditions. 8. Evaluate the benefits and challenges of collaboration between government agencies and NGOs in advancing mental health protections. 9. Explain how research funding contributes to improving mental health services and rights protections in Australia. 10. Explain the role of peer-led and advocacy organisations in supporting people with experience of mental illness. Go online to assign and download questions, view results and more!
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LEARNING OBJECTIVE 27.7
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DESCRIBE how people with a mental health condition encounter legal processes, including law enforcement agencies, courts or tribunals, and dispute resolution methods
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As seen already, people with mental health issues encounter various parts of the legal system, including law enforcement agencies, courts or tribunals, and alternative disputeresolution processes. Navigating these legal settings can be challenging, as individuals may face unique difficulties related to their mental health. It is therefore important that these legal processes be designed and managed with sensitivity and understanding. This involves specialised training for law enforcement officers, the establishment of mental health courts and tribunals, and the use of adapted dispute-resolution methods. Together, these measures aim to protect the rights of people with mental health conditions, ensure fair treatment, and provide opportunities for appropriate support and rehabilitation throughout their involvement with the justice system.
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When people with mental health issues interact with law enforcement, this contact often happens during crises or situations where behaviours related to mental illness may be misunderstood as criminal conduct. Police officers are usually the first point of contact in such cases, and their response can significantly affect the individual’s experience and outcomes. Because of this, many jurisdictions have developed scorcher specialised training programs for law enforcement to improve their understanding of mental health conditions and enhance their ability to respond safely and respectfully.
Some policing models include co-responder teams, where mental health professionals work alongside police officers to provide immediate assessment and support. These teams aim to divert individuals from arrest or incarceration, and instead connect them with appropriate health and social services. Crisis intervention teams are another example, where trained officers respond specifically to mental health crisis calls. These approaches help reduce instances of unnecessary detention or escalation, and promote the use of less restrictive responses tailored to individuals’ needs.
Police dealings with people with mental health conditions
Police officers in New South Wales often encounter individuals displaying violent or threatening behaviour who may be experiencing a mental health condition. When the policy of deinstitutionalisation was introduced in the late 1970s, police in some states initially lacked adequate training to effectively and safely manage interactions with people experiencing mental health crises. This gap in training led to several tragic incidents that drew media and public attention.
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A notable case in New South Wales was the fatal shooting of Roni Levi in 1997. Levi was observed on Bondi Beach behaving in a threatening manner while armed with a knife. Police surrounded him and, after a confrontation, shot him four times, resulting in his death. Such incidents highlighted the critical need for improved police training and response protocols concerning mental health crises. Similar situations occurred in other states. For example, in Victoria, seven people with mental illness were fatally shot by police between 1990 and 1995. Since then, Victoria has significantly improved training for police officers, including negotiation skills tailored specifically for dealing with individuals experiencing mental illness.
NSW Police Force response and initiatives
The NSW Police Force took proactive steps to address these challenges by launching the Mental Health Intervention Team (MHIT) in 2007 as a two-year pilot project. The primary objectives of MHIT were to reduce the risk of injury to both police officers and individuals experiencing mental illness during mental health-related incidents, enhance frontline officers’ awareness of the complexities and risks involved in such interactions, foster improved collaboration between police and various government and nongovernment agencies in managing mental health emergencies, and decrease response and handover times for individuals requiring mental healthcare. Following the success of the pilot, MHIT was established as a permanent unit within the NSW Police Force. By 2019, more than 2,600 officers had completed its comprehensive four-day training program. Officers trained by MHIT wear a distinctive badge above their nameplates and serve as first responders to mental health-related incidents in their districts. Additionally, every police district has designated mental health contact officers specially trained to provide guidance and support. Mental health management training has also been integrated into the core curriculum at the NSW Police Force Academy, ensuring all new recruits receive essential education in this area. Despite these initiatives, serious challenges persist, as highlighted by several recent cases. In Emu Plains, two NSW police officers were sentenced in August 2025 to more than three years in jail for “gratuitous cruelty” and assault during a 2023
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mental health welfare check, with body-worn camera footage showing them kicking, punching and pepper-spraying a 48-year-old woman while making degrading comments. In Sydney, the NSW District Court ruled in Music v State of New South Wales [2025] NSWDC 487 that police used excessive force during a welfare check, resulting in a $24,000 payout to the victim.
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In Waterloo, police restrained a man named Colin Burling following a mental health callout, leading to his death, with officers reportedly holding up a sheet to shield the incident from public view. Additionally, in Cooma, a 95-year-old dementia patient named Clare Nowland was fatally tasered by a senior constable after being found holding a steak knife and using a walking frame in a nursing home, a case that exposed significant shortcomings in police responses to aged-care residents with cognitive impairments. These incidents underscore persistent gaps and the urgent need for ongoing improvements in training, oversight and collaboration to ensure police responses to mental health crises are safe, respectful and effective.
Collaboration with health services and current initiatives
As police officers are often the first responders to incidents involving people with mental health issues, the NSW Police Force sought to strengthen its collaboration with other service providers. In 2018, this commitment was formalised through a Memorandum of Understanding with NSW Health, which established protocols for coordinated responses, ensuring police and health staff work closely together to deliver timely care and treatment during mental health crises.
This collaborative approach aims to improve outcomes for individuals experiencing mental health emergencies and support safer, more effective interventions. Building on this foundation, the NSW Police Force has expanded its mental health response through several current initiatives, including:
• co-responder programs where police and mental health clinicians jointly attend crisis calls to provide immediate assessments and reduce hospitalisations or arrests • crisis intervention training that equips officers with enhanced skills in deescalation, symptom recognition and risk assessment • mobile crisis units comprising specialised teams that assist police during emergencies and provide follow-up care • advanced data-sharing technology to improve communication between police and health services for faster, coordinated responses • community and Indigenous programs designed to meet the specific needs of Indigenous and culturally diverse populations through culturally sensitive crisis management • and family and carer engagement strategies that involve loved ones in interventions to promote recovery and safer outcomes.
These evolving initiatives reflect the ongoing commitment of the NSW Police Force to equipping officers with the skills and resources needed to respond safely, respectfully and compassionately to mental health crises.
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CASE STUDY 27.7.1 The Clare Nowland case – a breakdown in response Clare Nowland, an elderly woman with a history of mental health challenges, was tragically involved in an incident that raised public concern about the adequacy of support and appropriate responses for vulnerable individuals.
Background
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On 17 May 2023, Clare Nowland, a 95-year-old resident at Yallambee Lodge in Cooma, NSW, was found wandering with two steak knives. Police and paramedics located her using a four-wheel walker and holding one serrated knife. After about three minutes of verbal attempts to disarm her, Senior Constable Kristian White tasered her. Clare, who weighed 47 kilograms, fell backwards, hitting her head and suffering a fatal brain bleed. She died a week later in hospital. The incident sparked national outrage and led to White’s conviction for manslaughter. Key issues revealed by this case include the following: •
Crisis intervention and de-escalation – The case underscored the need for better training and protocols among police and first responders to effectively de-escalate situations involving people with mental health conditions rather than resorting quickly to force. • Mental health support access – It highlighted gaps in timely access to mental health support services that might prevent crises from escalating to violent encounters. • System coordination – The incident showed the importance of improved coordination between health services, law enforcement and community supports to ensure individuals receive appropriate care and protection. • Policy and oversight – Public reaction to the case pushed for reviews of policies governing use of force and treatment of vulnerable populations, focusing on safeguarding human rights and dignity. The Clare Nowland case highlighted significant shortcomings in how the system manages and responds to people with mental health issues, particularly in interactions with law enforcement and emergency services. The case has spurred calls for reforms aimed at better protecting people with mental health issues, including enhanced training for police, investment in mental health services, and stronger community-based supports to prevent similar tragedies. It continues to be an important example in driving advocacy and change in mental health and law enforcement practices.
ANALYSIS 27.7.1
Read Case Study 27.7.1 and answer the following questions. 1. 2. 3. 4.
Identify the main concerns raised by the Clare Nowland case regarding police response. Explain how the case highlighted gaps in mental health support and crisis intervention. Outline the ways that the incident led to calls for changes in law enforcement training. Explain the importance of coordination between health services and police.
RESEARCH 27.7.1 Further research – a coronial inquiry was held in mid-2026 regarding the death of Clare Nowland. Research the findings and recommendations and write a brief summary of them.
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Courts and tribunals In Australia and New South Wales, when someone with a mental health condition becomes involved with the legal system, special steps are taken to make sure they are treated fairly and get the help they need.
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If a person with mental health issues is charged with a crime, the court looks at their mental health to decide the best way to handle the case. Some places, including New South Wales, have special mental health courts or programs that focus on helping these people get treatment instead of going straight to jail. These programs might give the person extra time or a chance to follow a treatment plan and, if they do well, charges might be dropped or reduced.
Sometimes, a person’s mental health means they cannot understand the court process or be responsible for their actions. In these situations, the court can order medical assessments. If the court agrees, the person might not go to jail but instead be sent to a hospital or get supervised care in the community. Apart from the courts, there are tribunals such as the Mental Health Review Tribunal. These tribunals look after people who are required to have mental health treatment against their will. They check regularly if the treatment is still needed and fair. The tribunals also give patients a chance to speak up, ask questions and challenge decisions about their care.
Criminal proceedings
In New South Wales, the Mental Health (Forensic Provisions) Act 1990 (NSW) lays down:
correctional patient someone on remand, or serving a term of imprisonment, who is transferred to a mental health facility, who is not a forensic patient, and who the NSW Mental Health Review Tribunal has not classified as an involuntary patient
• how courts must manage criminal proceedings where the defendant is suffering from a mental illness • in what circumstances mental illness can be used as a legal defence in criminal cases • rules relating to forensic patients and correctional patients • the role of the NSW Mental Health Review Tribunal and its powers to review forensic and correctional patients.
How different courts deal with mentally ill defendants
The NSW District Court and Supreme Court can decide that an accused is “not guilty due to mental illness” or is “not fit to plead”. However, if the question has been raised as to whether the accused’s mental illness makes them unfit to stand trial, or if they have been found “not guilty by reason of mental illness”, the court may refer the case to the NSW Mental Health Review Tribunal. The District Court and Supreme Court can also decide that an accused becomes a forensic patient. The New South Wales Local Court does not have a process for dealing with people who are “not fit to plead” in criminal cases. This means that an accused person cannot plead “not guilty by reason of mental illness”. However, judges in the Local Court usually deal with mentally ill defendants by making a section 32 order or a section 33 order.
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A section 32 order allows a judge to release a defendant. The judge will have been given a treatment plan that a healthcare professional, or other suitably qualified person, has put together for the defendant. The defendant’s release is usually conditional on the defendant agreeing to attend a specified facility for treatment or to go into the care of a particular person (called a guardian). Under these conditions, no conviction is recorded. A section 32 order also allows a judge to release the defendant with no attached conditions. If the defendant does not follow the conditions of a section 32 order, they can be brought back before the court to face the original criminal charges.
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guardian a person who is legally responsible for another person who is unable to take care of themselves plea in mitigation any type of information that can help the court decide on an appropriate sentence
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A section 33 order only applies if the defendant is found to be mentally ill as defined by the Mental Health Act 2007 (NSW). Under a section 33 order, the defendant is referred to a psychiatric unit or hospital for further assessment. Depending on the result of the assessment, they may become an involuntary patient; or, if they have been found not to be mentally ill, they may be returned to the Local Court.
If a judge does not deal with a defendant under sections 32 or 33, the details of the mental illness can be used as part of a plea in mitigation. Healthcare professionals and community mental health services can provide reports to be included in the plea. Before making a sentencing decision, a judge may also ask for a pre-sentence report (usually prepared by the Probation and Parole Service), which can also include information from healthcare professionals and community mental health services.
Mental Health Review Tribunal
The Mental Health Review Tribunal (MHRT) is an independent body established under the Mental Health Act 2007 (NSW) to review and decide on compulsory treatment orders for people with mental illness. Its purpose is to protect patients’ rights while balancing their health needs and community safety.
The MHRT regularly reviews involuntary psychiatric detentions to determine if a person should remain detained or be released, considering medical evidence, patient views, and input from family, doctors, lawyers and advocates. Patients or their representatives can apply for release, and the MHRT assesses whether the legal criteria for compulsory treatment still apply, deciding to continue, modify or end the treatment order.
The MHRT also reviews community treatment orders, which allow compulsory treatment for patients living outside hospitals. The Tribunal makes sure these orders are still necessary and can confirm, change or cancel them to balance the patient’s rights, treatment and community safety.
The MHRT manages guardianship applications for those unable to make decisions due to mental illness or cognitive impairment, ensuring guardianships are appropriate and respect the individual’s independence. It safeguards patients’ legal rights by following fair processes, allowing patients to be heard, have independent reviews and access legal representation, often supported by advocacy services.
Hearings are usually in person but can also occur via phone or video, with panels including a lawyer, psychiatrist and community member. Decisions consider clinical evidence, patient welfare and community safety, with reviews starting within seven days of detention and continuing regularly. Applications can be made by patients, family, psychiatrists or advocates, with forms available on the NSW Civil and Administrative Tribunal website or through mental health services. Legal aid or advocacy groups often assist with applications and hearing preparation. Uncorrected 4th sample pages * Cambridge University Press & Assessment * © Milgate et al 2026. 978-1-009-83999-0 (03)8671 1400
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Dispute resolution methods Alternative dispute-resolution methods, including mediation, conciliation and restorative justice, offer additional pathways for resolving conflicts involving people with mental health issues, often outside the formal court system. These processes emphasise dialogue, mutual understanding and repairing harm rather than punishment.
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Mediation can be especially beneficial in family law or community disputes where mental health factors play a role. With proper support, including the involvement of mental health advocates or support workers, people with mental illness can engage more effectively in these resolutions. Restorative justice approaches may involve facilitated meetings between offenders and victims to discuss the impact of wrongdoing, fostering empathy and accountability while considering mental health challenges.
Figure 27.7.2 Mediation can be especially beneficial in family law or community disputes where mental health factors play a role.
Adaptations in these methods – such as allowing additional time, providing clear explanations or involving mental health professionals – help ensure accessibility and fairness. These approaches can reduce the stress and trauma sometimes associated with traditional legal processes.
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1. Outline the role of law enforcement agencies when responding to people experiencing mental health crises. 2. Describe the purpose of Mental Health Intervention Teams within the NSW Police Force. 3. Identify key challenges police officers may face when dealing with individuals with mental illness. 4. Outline the collaboration between the NSW Police Force and NSW Health as formalised in the 2018 Memorandum of Understanding. 5. Describe the processes the NSW Local Court uses to manage defendants with mental illness. 6. Explain how the NSW District Court and Supreme Court deal with accused persons who are “not fit to plead” or “not guilty by reason of mental illness”. 7. Describe the functions of the Mental Health Review Tribunal in relation to compulsory treatment orders. 8. Compare the benefits of co-responder programs and crisis intervention teams in police mental health responses. 9. Assess why training in mental health management is essential for law enforcement officers. 10. Outline the role of special mental health courts or programs. Evaluate their impact on legal outcomes for individuals with mental illness. 11. Discuss how dispute resolution methods can be adapted to support fair treatment of people with mental health conditions. 12. Discuss how recent cases involving police interactions with mentally ill individuals highlight the need for improved oversight and training. Make an assessment on how current initiatives may reduce some of these issues. Go online to assign and download questions, view results and more!
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27.8 Alternative approaches to justice LEARNING OBJECTIVE 27.8 DESCRIBE alternative approaches to justice available to people with a mental health condition
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In Australia, and specifically in New South Wales, alternative approaches to justice for people with mental health conditions have been developed to better address the complex relationship between mental health and offending behaviour. These approaches focus on diverting individuals away from the traditional criminal justice system towards more supportive, responses that promote recovery video health-oriented widget reporting and reduce re-offending.
At the national level, mental health courts and diversion programs operate in various jurisdictions, including New South Wales, to provide specialised legal frameworks for people with mental health issues. In New South Wales, the Mental Health Court is a key example, offering a legal forum where defendants with mental illness can have their cases managed in a way that prioritises treatment and rehabilitation. This court works closely with mental health professionals to assess individuals’ conditions and recommend appropriate interventions, often involving supervised community quiz questions download word treatment orders instead of incarceration.
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New South Wales also uses police diversion programs that allow law enforcement officers to refer individuals exhibiting signs of mental illness directly to health and social services rather than into the criminal justice system. Crisis intervention teams and co-responder models, where police collaborate with mental health clinicians, help ensure early support during crisis situations and reduce unnecessary arrests.
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Restorative justice initiatives form an important part of the alternative justice framework in New South Wales, and are often tailored to support individuals with mental health conditions. These programs emphasise repairing harm and promoting mutual understanding, with facilitators trained to provide extra support for participants facing mental health challenges.
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Across Australia and New South Wales, peer-led programs and supported decisionmaking models are gaining recognition and adoption alongside formal justice processes. These approaches empower people with mental health conditions to actively participate in their justice and treatment journeys, improving engagement and respect for their rights.
Overall, Australia and New South Wales have progressively embraced alternative justice approaches that combine legal oversight with therapeutic and communitybased support. These strategies reflect a commitment to balancing public safety with compassion and recovery, ensuring that people with mental health conditions receive appropriate care and fair treatment within the justice system.
RESEARCH 27.8.1
Restorative justice as an alternative
Go to the NSW Corrective Services website and find the answers to the following questions. 1. 2. 3. 4. 5. 6.
What does restorative justice mean and how does it work? Explain who takes part in these programs and how people with mental health needs are supported. Describe why these programs are helpful for people and communities. Outline what you believe to be the good points and problems of restorative justice. Make an evaluation on how restorative justice helps people heal and keeps communities safe. Construct a simple report or presentation about what you learned.
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1. Outline two alternative approaches to justice for people with mental health conditions in New South Wales. 2. Explain how alternative dispute-resolution methods support people with mental health issues in resolving conflicts. 3. Discuss the effectiveness of using alternative justice approaches in addressing the needs of offenders with mental health conditions in New South Wales. Go online to assign and download questions, view results and more!
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27.9 The role of non-government organisations LEARNING OBJECTIVE 27.9 note taking
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IDENTIFY non-government organisations that represent the interests of people video widget reporting with a mental health condition DESCRIBE the roles non-government organisations fulfil
Non-government organisations (NGOs) that support people with mental health conditions in Australia, including New South Wales, play a multifaceted and essential role in complementing government efforts to improve lives and rights. They engage in advocacy by campaigning for legal, policyquiz and funding changes to questions enhance mental health services, reduce stigma, uphold human rights and ensure equitable treatment. NGOs provide direct services – such as counselling, crisis support, housing assistance and employment programs – and create safe environments, often employing peer support workers with lived experience to foster hope and recovery.
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Figure 27.9.1 A Lifeline poster in Sydney, 2012. Lifeline
counselling phone booths are installed to help reduce the These organisations also focus on education and number of lives lost to suicide. awareness-raising by increasing public understanding, promoting early help-seeking, reducing stigma and delivering culturally competent training tailored to Indigenous and multicultural communities. In research and policy development, NGOs collaborate with academic institutions, contribute insights Writing from lived experience, test innovative interventions and advocate for evidence-based focus 27.9 Transitional improvements. video
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As watchdogs, NGOs monitor service quality, expose discrimination or abuse, and hold institutions accountable to protect the rights and dignity of people with mental illness. They collaborate closely with government agencies, health services and justice institutions to co-design integrated services and shape policies that reflect real-world needs through lived experience input. National and state organisations that provide this support include:
• Mental Health Carers NSW – This group helps people who care for family or quizIt provides education, questions support groups friends with mental illness. and useful download word information to help carers look after themselves and the people they care for. • SANE Australia – SANE supports people with serious mental illnesses such as schizophrenia or bipolar disorder. It offers a helpline for advice and comfort, does research and works to change policies to improve services. It also fights stigma and isolation. • Beyond Blue – Beyond Blue focuses on common mental-health problems such as depression and anxiety. It provides information and counselling, and runs campaigns to help people understand these issues and encourage them to get help early.
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• Lifeline Australia – Lifeline offers a 24-hour phone and online service for people in crisis or feeling suicidal. Its trained volunteers listen, support and help people get through tough times. Lifeline also teaches communities how to support mental health. • Mind Australia – Mind helps people living with mental illness to recover and live well in their communities. It offers housing help, job support and social activities. It focuses on building independence and hope. • Black Dog Institute – The Black Dog Institute does research to understand mood disorders such as depression and bipolar disorder. It creates tools and training to help doctors, schools and workplaces better support people’s mental health. • Neami National – Neami supports people to live independently and connect with others. It provides personalised help with skills for daily life and encourages social involvement, aiming to give people hope and a better quality of life. Together, these organisations provide a wide range of support, from crisis help and education to research and recovery services.
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1. Explain, with the use of examples, how NGOs contribute to the recovery and social wellbeing of individuals with mental health conditions. 2. Assess the role of NGOs in advocating for and protecting the rights of people with mental health conditions in Australia.
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27.10 Indicators of success in achieving justice LEARNING OBJECTIVE 27.10
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ANALYSE the indicators used to measure the success of achieving justice for people with a mental health condition
Making a judgement about the Australian legal system’s responsiveness to people with mental health conditions involves looking at different elements to see if justice is achieved fairly and effectively. One key aspect is access to legal support. Individuals with mental health issues often face complicated legal challenges, and having access to lawyers and services that understand mental health is crucial. As can be seen earlier in the video widget reporting chapter, services such as the Mental Health Advocacy Service and Legal Aid NSW do offer tailored advice and legal representation, which helps ensure that clients fully understand their rights and can participate in legal proceedings with the support they need. Another indicator of access in achieving justice is the operation of mental health courts and diversion programs. These courts deal specifically with defendants who have mental illnesses, involving experts who assess fitness to stand trial and recommend treatmentfocused alternatives to regular sentencing. Diversion programs work to re-route people with mental health conditions away from incarceration and towards community quiz download word treatment options, recognising that addressingquestions underlying mental health issues often leads to better outcomes than imprisonment. This approach reduces the number of people with mental illness in prison and provides care that supports recovery.
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Legislation is essential to protecting the rights of people with mental illness in the legal system. In New South Wales, the Mental Health Act 2007 (NSW) and the Guardianship Act 1987 (NSW) provide strong protections related to involuntary treatment, consent, rights to review decisions and protection from discrimination. Changes made to these laws show that they are regularly reviewed to make sure they remain suitable. These laws focus on using the least restrictive methods, respecting individual dignity and allowing access to legal reviews. This helps ensure that people with mental health conditions are treated fairly and with respect during legal processes. Another indicator of access to justice is the growth in collaboration between various agencies. Police, health services, courts and community organisations work together to support individuals with mental health needs
Figure 27.10.1 November 2020: St Kilda CEO Matt Finnis speaks to the media after the Federal government announced funding for the Danny Frawley Centre For Mental Health Support. The centre was named in honour of AFL player Danny Frawley, who frequently spoke about mental health and the need for improved support.
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throughout their legal interactions. Police officers receive training to recognise and respond appropriately to mental health symptoms, forensic mental health teams provide assessments and treatment advice, liaison officers facilitate communication within courts, and community groups offer ongoing social support. This multi-agency coordination helps address the complex needs of individuals holistically, reducing the chance of re-offending and supporting long-term wellbeing.
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The NSW court system has changed its procedures to better support people with mental illness. These changes include allowing breaks during hearings, permitting support persons to assist, and using simpler, slower questioning to reduce stress and help individuals participate fairly. Additionally, specialist mental health courts and diversion programs focus on treatment and rehabilitation instead of just punishment.
In addition to procedural changes within the courts, legal and justice personnel in New South Wales receive ongoing training to better understand and support people with mental illness. This training helps staff recognise mental health symptoms, use calm and safe ways to manage difficult situations, and understand the legal rights of individuals with mental illness. It also teaches trauma-informed care to avoid causing further harm and works to reduce stigma by promoting empathy and respect throughout the justice system. Together, these adaptations in court procedures and comprehensive staff training contribute to a justice system that is more accessible, fair and supportive for people living with mental health conditions. These changes help make sure people’s needs and rights are respected, so they are not treated unfairly because of their illness. This approach helps people recover better, reduces the chance they will have trouble with the law again, and keeps the community safer. Independent bodies such as the NSW Mental Health Review Tribunal and Inspector of Custodial Services regularly check that people with mental health conditions are treated fairly and receive proper care in the justice system. Meanwhile, research by government agencies and universities study mental illness rates, evaluate diversion programs and track outcomes such as re-offending and treatment engagement. This oversight and research help ensure legal compliance, improve services and guide policies to better support individuals with mental health needs.
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1. Assess how legislation protects the rights of people with mental health conditions within the NSW legal system. 2. Evaluate the role of specialised mental health courts and diversion programs in supporting defendants with mental illness in the legal system. 3. Analyse the impact of multi-agency collaboration (police, health services, courts, community organisations) on achieving justice for people with mental health conditions. 4. Explain how procedural changes in NSW courts, such as allowing breaks and the use of simpler questioning, contribute to fairer treatment of individuals with mental health issues. 5. To what extent do ongoing training programs for legal and justice personnel improve the legal system’s responsiveness to mental health conditions? Support your response with examples.
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27.11 Barriers to achieving justice LEARNING OBJECTIVE 27.11 ANALYSE the barriers that prevent people with a mental health condition from achieving justice within the legal system
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Reducing incarceration of people with mental illness is a key success measure for the legal system. Despite reforms including specialised courts, diversion programs and staff training, there was no significant drop in such incarcerations by 2025. This shows ongoing barriers – including limited community services, stigma and coordination gaps – continue to prevent fair access to justice. More widget work is needed to provide effective video reporting mental health support and ensure equitable treatment within the justice system.
People with mental health issues in Australia face major barriers to justice due to widespread stigma and discrimination, which can lead to bias from police, lawyers, judges and juries. This often results in unfair treatment and discourages individuals from seeking or fully engaging in legal help. Additionally, many legal professionals lack specialised training and awareness about mental illness, causing misunderstanding of symptoms and improper case handling. Without adequate knowledge and accommodations, the legal system struggles to ensure fair treatment for people with mental health conditions. quiz
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Communication barriers also make legal justice hard to access for those with mental illness. Mental health conditions can impair a person’s ability to explain their situation clearly, remember facts or process complex information. Combined with complicated legal language and procedures, this makes participating in court processes very difficult. Without specialised support – such as mental health advocates or interpreters trained to assist people with communication difficulties – individuals may struggle to present their cases effectively or understand what is happening at each stage.
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Access to support services plays a crucial role, but these services are often limited, especially in rural or remote areas. Mental health advocates, specialised legal aid and community workers help individuals understand their rights, navigate the legal system and find alternative options such as diversion programs. Without these supports, people with mental health issues may feel lost or overwhelmed. This lack of access particularly affects vulnerable populations, including First Nations people and people from culturally and linguistically diverse backgrounds. The legal system is naturally complex, which makes things harder for people with mental health issues. Its strict rules and formal procedures demand careful organisation and focus – something that can be difficult for those struggling mentally. The use of complicated legal terms and rigid processes can leave people behind, especially if they need more time or simpler explanations. While helpful accommodations – such as breaks during hearings or plain-language communication – do exist, they are not always consistently provided.
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The overlap between mental health and the criminal justice system poses additional challenges, as police and prisons often lack the resources to meet the specific needs of people with mental illness. Inadequate mental healthcare in correctional facilities, limited diversion to treatment, and poor coordination between health and justice services lead to repeated incarceration and unfair legal outcomes.
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Another major hurdle is the fact that there is a lack of national consistency in dealing with mental health and the issues that individuals may face in trying to deal with legal issues. This issue was highlighted in the coronial inquest into the deaths at Westfield Bondi Junction. On 5 February 2026, State Figure 27.11.1 On 13 April 2024, Joel Cauchi stabbed six Coroner Teresa O’Sullivan issued 23 recommendations aimed people dead and injured others at Bondi Junction. Joel at addressing systemic gaps in mental healthcare that allow suffered from schizophrenia and was homeless at the time. The coronial inquest found that Australia’s mental health high-risk patients to disengage from treatment when moving system was inadequate in its ability to support people. between states or clinical settings. Key recommendations include establishing a National Mental Health Information Sharing Framework, creating national shared-care guidelines for chronic schizophrenia, introducing new protocols for de-prescribing antipsychotics, and implementing indefinite monitoring for high-risk patients who discontinue treatment. Therefore, while it can be seen that progress has been made in looking after people with mental health issues, there are still many gaps in the system. To overcome these barriers, a comprehensive approach is needed – improving mental health training for legal professionals, expanding specialised support services, simplifying legal processes, boosting resources and enhancing collaboration between health and justice sectors, especially in under-served areas. This will create a fairer, more accessible legal system for people with mental health conditions across Australia.
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1. Assess the reasons why incarceration rates of people with mental illness have not significantly decreased despite reforms such as specialised courts and diversion programs. 2. Critically evaluate how stigma and discrimination act as barriers to justice for people with mental health conditions within the Australian legal system. 3. Propose strategies that could be implemented to overcome the communication barriers faced by people with mental illness during legal proceedings. 4. Considering the Bondi Junction coronial inquest recommendations, discuss how national consistency in mental healthcare can improve legal outcomes for individuals with mental health issues. 5. Despite progress, the Australian legal system still struggles to provide equitable justice for people with mental health conditions. Using specific examples from legislation, court procedures, support services and barriers, argue for or against this statement. Go online to assign and download questions, view results and more!
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New South Wales has laws and rules to protect and support people who have mental illness. Many people with mental illness encounter the legal system, whether that means going to court, being placed in care or ending up in prison. When funding for mental health services is limited, people may miss out on support and early help, which can increase their contact with the criminal justice system, including prison. Programs such as the National Disability Insurance Scheme help people with disabilities – and their families and carers – by giving them more choices and control over their care, but it can be hard to access these services. The NSW Police Force has created policies and training to help officers respond better to people with mental illness, but recent incidents and official reviews show there is still a lot of room for improvement. Even though progress has been made in making sure people with mental health issues are treated fairly in the justice system, many challenges and barriers remain.
Multiple-choice questions
1. What was one of the main goals of deinstitutionalisation of people with mental health conditions in New South Wales starting in the late 1960s? A. To increase the number of beds in large psychiatric hospitals B. To provide more compassionate care by supporting people within their own communities C. To reduce government spending on mental health services D. To ensure that all people with mental illness received lifelong treatment in hospitals
2. Which of the following is NOT a usual way that people with mental health conditions deal with the legal system? A. Being involved in criminal cases because their behaviour is affected by mental illness B. Getting treatment without their permission, but only when legal rules say it is necessary C. Being excused from all legal responsibilities because they have a mental illness D. Using the law to protect themselves from unfair treatment at work or in housing
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3. Which of the following best describes a key initiative by the NSW Police Force to improve responses to mental health crises? A. Increasing the use of force during mental health welfare checks to ensure officer safety B. Establishing the Mental Health Intervention Team to provide specialised training and collaborative crisis response C. Eliminating mental health training from the Police Force Academy to focus on general policing skills D. Relying solely on police officers without mental health professionals to manage all mental health-related incidents 4. Which of the following describes a key alternative justice approach used in New South Wales for people with mental health conditions? A. Diverting individuals from the traditional criminal justice system to health-oriented responses that focus on recovery and reducing re-offending B. Increasing incarceration rates for individuals with mental health issues to ensure public safety C. Limiting collaboration between police and mental health clinicians in crisis situations D. Eliminating peer-led programs and supported decision-making models from justice processes
5. Which of the following remains an ongoing barrier for people with mental health conditions in the NSW justice system? A. Increased funding for specialised mental health courts B. Comprehensive mental health training for justice staff C. Strong inter-agency collaboration and information sharing D. Use of overly complex legal procedures without accommodations for mental health needs
Short-answer questions
1. Explain the purpose of legal frameworks such as the Mental Health Act 2007 (NSW) and the Mental Health Legislation Amendment Act 2025 (NSW) in protecting individuals with mental health conditions within the justice system.
2. Analyse the role of specialised courts and diversion programs in addressing the needs of people with mental illness. 3. Evaluate the key challenges that the legal system faces in ensuring fair treatment and participation for people with mental health issues. 4. Discuss how collaboration between justice, health and community services improves support for people with mental health conditions involved in legal processes.
5. Identify and explain two strengths of the NSW justice system in supporting people with mental health conditions.
6. Analyse two weaknesses of the current justice system regarding the treatment of people with mental illness.
Extended-response question Video 27.12.1 Answering an exam question
Critically analyse why justice for people suffering from mental illness has been difficult to achieve. Marking criteria for extended-response questions can be found in the Interactive Textbook website. Refer to these criteria when planning and writing your responses.
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Glossary assault a criminal offence involving the infliction of physical force or the threat of physical force attrition the rate at which a case drops out at various stages of the criminal justice process autonomy to be free from control or influence by another person, institution or authority avoidance relationship strict social protocols that forbid specific kin – most notably a man and his mother-in-law – from direct contact, speech or eye contact.; these rules minimise domestic friction and reinforce deep mutual respect by maintaining formal boundaries between joined families balance of power the power held by the political party whose vote is needed to pass legislation; under the Westminster system of government in Australia, usually determined in the upper house of parliament balance of probabilities the standard of proof required in a civil case for a plaintiff to succeed in proving the case against the defendant – it requires the court to be satisfied that the claim is more likely than not to be true best interests of the child a legal standard requiring that any decision regarding a child’s welfare must prioritise their safety, stability and emotional or physical wellbeing above all other considerations beyond reasonable doubt the standard of proof required in a criminal case for a person to be found guilty bicameral containing two chambers or Houses of Parliament Bill a drafted law that has not yet been passed by parliament Bill of Rights a statement of the basic laws to protect the rights of a country’s citizens to have justice and fairness binding law laws or court decisions that must be followed and applied by courts and others within its area; it creates compulsory rules that cannot be ignored bipartisan having the support of the two major political parties break and enter commonly known as burglary, break and enter offences usually occur when a person enters a home with intent to commit an offence bridging visa a visa granted to asylum seekers to allow them to stay in Australia while their application for a protection visa is being assessed burden of proof in criminal matters, the responsibility of the prosecution is to prove the case against the accused capital punishment the practice of sentencing a person to death by judicial process; also referred to as the “death penalty” causation the link between the behaviour of the accused and the result (i.e. that the behaviour of the accused actually caused the alleged criminal act)
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Aboriginal Customary Lore the traditional laws, beliefs and practices of Aboriginal and Torres Strait Islander Peoples, passed down through generations and deeply rooted in the Dreaming Aboriginal nation sovereign group with defined territory, not a modern political nation-state access the right or opportunity to make use of something accused the person or alleged offender charged with having committed a criminal offence, also known as the defendant Act of Parliament statute law, resulting from a Bill successfully passing through parliament and gaining royal assent actus reus (Latin) “guilty act” that refers to the physical act of carrying out a crime admissible (in the context of the law) evidence that can be used in a trial as there are specific rules about what evidence can and cannot be used adoption order a court order that establishes a new legal relationship between potential adoptive parents and a child eligible for adoption; an adoption order also severs the legal relationship that existed between the adoptive child and their natural or legally recognised parents or guardians prior to the adoption process adversarial system a system of resolving legal conflicts – used in common law countries such as the United Kingdom and Australia – that relies on the skill of representatives for each side (e.g. defence and prosecution lawyers) who present their cases to an impartial decision-maker advocacy the public support for, or recommendation of, a particular cause or policy affirmative action a policy designed to address past discrimination and thus improve the economic and educational opportunities of women and minority groups aggravated sexual assault in company sexual assault performed with another person or people present together with aggravating circumstances aggravating factor during criminal sentencing procedures, an aggravating factor is a fact of the case that may make the sentence harsher for the convicted offender anachronistic existing out of its time in history anarchy the absence of laws and government appeal an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law appellate jurisdiction the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions arbitrary detention detaining an individual when there is no evidence or reason for detaining them and there has been no due process of the law arbitration a form of alternative dispute resolution in which disputing parties present their case before an arbitrator, who makes a decision that is binding on both parties
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common law the body of laws developed by judges through decisions in individual court cases, relying on previous rulings (precedents) rather than written laws community correction order a penalty that can be imposed by the court involving compulsory supervised work in the community, supervision by community corrections officers and curfews complainant a person making a formal complaint in a court of law complementary protection protection for people who do not qualify as refugees but would face serious harm if returned to their home country conciliation a form of alternative dispute resolution where disputing parties make use of a conciliator who advisers both parties, suggesting alternatives and encourages both sides to reach an agreement; the conciliator does not make the decision conclusive presumption a legal presumption in favour of one party that is final and cannot be rebutted by the other party concurrent powers existing at the same time; powers held by both state and federal parliaments conditional release order an order requiring an offender to accept compulsory restrictions for up to two years, during which time the offender undertakes to regularly report to and obey directions from their community corrections officer consent free and voluntary agreement by a rational person who is able to understand and make a decision about the matter to which they agree constructive manslaughter the killing of a person while the accused was carrying out another dangerous or unlawful act contract a voluntary agreement made between two or more people that is recognised by the courts as being legally binding on the parties convention a legally binding international treaty between nation-states that typically addresses a specific issue, such as racial discrimination conversion therapies harmful practises that are based on changing or supressing someone’s gender identity or sexual orientation convicted when the person has either pled guilty to or been found guilty of a crime after a trial coronial inquest an investigation into a death that has occurred in unusual circumstances, held in the Coroner’s Court and overseen by a judge called the coroner corporal punishment the physical punishment of people, especially of children, by hitting them corporations law legislation that regulates corporations and the securities and futures industry in Australia; it is administered by the Australian Securities and Investments Commission correctional patient someone on remand, or serving a term of imprisonment, who is transferred to a mental health facility, who is not a forensic patient, and who the NSW Mental Health Review Tribunal has not classified as an involuntary patient
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caution a formal warning given by police to a person who has committed a minor offence, serving as an alternative to a court procedure census an official count that is conducted by the federal government to collect information about the people that live in that country challenge for cause when the legal team rejects a juror because they believe that for some reason the juror will be prejudiced charge negotiation an agreement between the Director of Public Prosecutions and the accused that involves the acceptance of a guilty plea, usually in exchange for a lesser charge or some other charges being withdrawn charged when a person is officially accused of committing the crime children generally, persons aged 15 years and younger, depending on the legal context circle sentencing an alternative form of sentencing for some adult Aboriginal and Torres Strait Islander offenders where sentencing is conducted in a circle made up of local community members and a magistrate civil law the area of law that manages disputes between private parties, usually involving compensation or specific actions, not punishment civil liberties basic rights of individuals that are protected by law, such as the freedom of religion and freedom of speech class action a claim by seven or more people who have suffered similar losses or injuries; usually brought together and resolved via a single case climate change denier a person who says that climate change is no happening, or that it is not caused by human activity; sometimes also referred to as ‘climate change sceptic’ coercive control the pattern of behaviours that creates a climate of fear, dependency and loss of autonomy, which directly enables and facilitates sexual assault (or sexual coercion) to occur collective bargaining agreements in sport, a legally binding contract between a sports league (employers) and a players’ union (representing employees) that defines the minimum terms of employment including salaries, benefits and working conditions collective right a right belonging to a group or a people, as opposed to an individual right colonialism power exercised through occupation and subsequent majority settlement colonisation the establishment of settlement and control in a foreign territory, as in “the British colonisation of Australia” committal hearing an inquiry held in the Local Court or Magistrates Court to ensure the brief of evidence is completed and charge certificates are in order for more serious criminal charges common assault where there is no actual physical harm to the person assaulted; it includes threatening to cause physical harm to another person
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discrimination the unjust treatment of a person or a particular group of people based on their race, sex, sexuality, marital status, disability and other factors dispossession the removal or expulsion of people from their traditional lands diversion the process of channelling young people away from formal court proceedings and detention by providing alternative support services; aims to address the root causes of a young person’s behaviour and prevent the long-term negative impacts of a criminal record doli incapax (Latin) incapable of wrong; the presumption that a child under 10 years of age cannot be held legally responsible for their actions and cannot be guilty of a criminal or civil offence domestic law laws that apply within a specific country or nation-state, regulating behaviour within its borders duty of care a moral or legal obligation to ensure the safety or wellbeing of others economic disadvantage the condition in which individuals or groups experience lower income, limited access to resources, and reduced opportunities compared to others elder abuse an act or failure to act to the disadvantage of an older person occurring in a relationship of trust electorate a geographically defined area that is based on the population of voters embezzlement when a person steals money from a business over a period of time while they are employed at that workplace equal opportunity the right to equivalent opportunities regardless of race, colour, sex, national origin, and so on equality the state or quality of being equal; that is, of having the same rights or status equity the body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness ethics principles or standards about right and wrong that guide how individuals or groups behave, and are often based on societal expectations or professional codes of conduct ex-nuptial children children born of parents who are not legally married exclusive powers those powers that can be exercised only by the federal parliament exogamy a social rule or custom that requires an individual to marry outside of their own specific group, such as a clan, tribe or kinship section; in traditional Aboriginal societies, this served to build vital political and resource-sharing alliances between different groups exploit to unfairly treat or take advantage of someone for personal gain such as illegal work or criminal activity
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court hierarchy the structured arrangement of courts based on their authority and the types of cases they are permitted to hear (their “jurisdiction”) court jurisdiction the ability of a court to hear certain matters determined by its location (state), by the type of matter (criminal and civil), its seriousness or complexity (higher courts), or the ability of a court to hear a matter on appeal from lower courts covenant a legally binding international treaty between nation-states, usually dealing with broad and fundamental human rights crime an act or omission against the community at large that is punishable by the state criminal infringement notice a notice issued by the police outside of court alleging a criminal infringement and requiring payment of a fine criminal law the set of laws that deal with crimes, their prosecution and penalties for actions considered harmful to society criminal negligence where the accused fails to foresee the risk when they should have and so allows the avoidable danger to occur Crown land land that is owned by the Crown (the NSW government) and has not been sold or granted into private ownership Crown the state party that commences a criminal action in a court of law; in New South Wales, the action is usually commenced by the Director of Public Prosecutions; if the alleged crime is against a federal criminal law, the action is usually commenced by the Commonwealth Director of Public Prosecutions damages monetary compensation for harm or loss suffered de jure (Latin) having a right or existence as stated by law declaration a formal statement of a party’s position on a particular issue; a declaration is not legally binding under international law defamation the act of making statements or suggestions that cause damage to a person’s reputation in the community defendant person accused of causing harm or failing to fulfil a legal obligation, such as in breach of contract or personal injury cases, and must defend their actions in court deinstitutionalisation involves moving people with mental health issues out of large psychiatric hospitals and instead providing them with support in their own communities delegated legislation laws made by authorities other than parliament, which are delegated the power to do this by an Act of Parliament deterrent power the idea that the punishment of an act will stop people from committing the act disability mental or physical impairment that can limit a person physically, emotionally and psychologically disclosure notice a formal, often mandatory, legal document requiring parties to share all relevant information, documents or financial records regarding a legal matter
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homicide the unlawful killing of a human being humanitarian to reduce human suffering, protect human dignity and promote human welfare hung jury a jury that is unable to reach agreement in camera (Latin) “privately”; only specified persons (e.g. a judge) can be present during the testimony or proceeding incarceration another term for someone being held in detention or prison; restricts the movements of somebody indecent assault an assault and “act of indecency” on or in the presence of another person without their consent indictable offences serious criminal offence that requires an indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to greater penalties than non-indictable offences Indigenous land use agreements a voluntary agreement between native title holder and other parties that sets out how land and/or waters will be used and managed infanticide the death of a baby under the age of 12 months at the hands of its mother injunction a court order requiring an individual or organisation to perform, or (more commonly) not to perform, a particular action inquisitorial system a legal system where the court or a part of the court (e.g. the judge) is actively involved in conducting the trial and determining what questions to ask; used in some countries that have civil legal systems rather than common law systems insider trading when a person illegally trades on the share market to their own advantage using confidential information intensive correction order an alternative to a custodial sentence where an offender has restricted movement and must attend a rehabilitation program intergenerational trauma when psychological, social or emotional pain from a traumatic experience is shared from one generation to the next, which can occur even when the younger person was not alive for the event international law the group of rules that manage the relationships between different countries and international organisations, including treaties and accepted customs interview friend a parent, guardian, friend or legal representative present at the police interview of a minor; the interview friend’s role is to offer support and witness that statements are made voluntarily involuntary manslaughter the killing of a person where the death occurred because the accused acted in a reckless or negligent way without intending to kill judicial review a process by which a court examines a decision made by a public authority to determine if it was made legally and fairly
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external affairs power the power of the Commonwealth to legislate on international matters involving Australia; interpreted by the High Court to mean that when the Commonwealth signs an international treaty or convention, it has the authority to enact laws to give effect to this international law within Australia extreme provocation the defence where the defendant claims that their actions were a direct result of another person’s actions, which caused them to lose control of their own actions fairness freedom from bias, dishonesty or injustice; a concept commonly related to everyday activities Federation the process of uniting several states to form a single national government fine a monetary penalty imposed for infringement of a law forced displacement involuntary movement of people from their home due conflict, human rights abuses, and climate-based events forensic patient a person who is confined in an institution such as a mental health facility or correctional centre, or who is released from custody subject to conditions foundling a deserted infant whose parents’ identity is unknown freedom of information the principle that people should be able to have access to information relating to the administration of government decisionmaking and information held by the government gender fluid a person whose experience of gender is not fixed and General Assembly the main body of the United Nations, made up of all of the member nation-states graduated licensing scheme a licensing system in which drivers pass through stages leading up to the granting of a full licence guarantor a person who gives a formal promise that someone else’s contract will be fulfilled, often backed by some form of asset that will stand as collateral to secure the promise guardian a person who is legally responsible for another person who is unable to take care of themselves habeas corpus a legal requirement that a person who has been detained must appear in court before they can be forced by law to stay in prison Hansard a full account of what is said in parliament or in parliamentary inquiries; named after the English printer T.C. Hansard (1776–1833), who first printed a parliamentary transcript hard law covenants, conventions and treaties that under international law create legally binding obligations once ratified by a state harmonisation agreement among the laws of different jurisdictions heteronormativity the belief or assumption that heterosexual relationships (between a man and women) are the “normal” way for people to live, which does not consider diversity HIV refers to a person who has been infected with the human immunodeficiency virus
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mandamus a court order compelling a government official or organisation to perform a particular task mandatory reporting a legal obligation requiring a specifi ed professional, such as teachers, doctors and social worker, to report suspected cases of child abuse or neglect or if they suspect a child or young person may be at risk of harm to the relevant authorities manslaughter the killing of a person in a manner that is considered to be less intentional than murder martial law law enforced by the military over civilian affairs; overrides civilian law may shift depending on feelings, time, experiences and more mediation a form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement mens rea (Latin) “guilty mind”, meaning that the accused intended (to some degree) to commit the crime, knowing their actions were wrong mental health condition/illness an illness of the mind that affects the psychological, emotional and behavioural state of a person merits review a review of a government decision whereby an unbiased tribunal “stands in the shoes” of the original decision-making agency in order to determine if the initial assessment was made in an impartial, transparent and equitable manner metropolitan area a large, typically densely populated urban area, which can include major cities minority government is formed when no political party has enough seats in the House of Representatives to govern on its own, and therefore relies on support from other members mitigating circumstances circumstances that make an offence less severe; they can lead to a reduced moiety a fundamental social system that divides all people, spirits and natural elements into two complementary halves to maintain universal balance; under this system, individuals must marry someone from the opposite moiety, ensuring a continuous cycle of connection and mutual responsibility between different groups and the land murder the deliberate killing of a person nation a people that share a common heritage, language or culture and sometimes a common race nation-state a government and the people it governs; a country native title the right of Aboriginal and Torres Strait Islander Peoples to their traditional lands natural justice a process whereby decision-makers must act fairly, in good faith and without bias, while providing each party to a dispute an opportunity to adequately state their case negligence a tort involving the violation of a duty of care that results in harm which was foreseeable non-binary a person whose gender identity does not fit into male or female categories, and the individual may use they/them pronouns or identify as something other than female or male
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jurisdiction the powers of a court, depending on its geographic area, the type of matters that can be decided, and the type of remedies that can be sought justice the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved juvenile a child or young person, generally under 18 years of age, although this may vary depending on the context kinship family relationships, including all extended family relationships; an important part of Aboriginal and Torres Strait Islander cultures and values, which dictate how all people in the group behave towards each other land rights the legal and moral recognition of ownership and access to land and waterways by Aboriginal and Torres Strait Islander Peoples larceny when one or more people intentionally take another person’s property without consent and without intention of returning it law (First Nations) the systems of rules and authority developed by First Nations Peoples that govern behaviour, resolve disputes and regulate relationships with people, land and Country, which existed long before colonisation law official rules created by a government or an authority that everyone in society must follow, and which are backed by legal systems and have clear penalties if they are broken legal aid a subsidised legal service provided by the state for those on low incomes legal costs fees and other expenses a lawyer charges a client for their expertise and other payments that arise out of the provision of legal services, such as court fees legal entity an individual, company or organisation that has legal rights and obligations, and as such can be sued legal system the system of courts, prosecutors and police within a country legislation an Act of parliament which is a law legislative power the legal power or capacity to make laws Letters Patent a published legal order issued by an Australian Governor-General (commonwealth) or Governor (State), granting a Royal Commissioner authority to lead an inquiry liberal democracy a system of government based on the belief that freedom and equality between people should be protected, and in which power is limited and is held either by elected representatives or by the people themselves lobbying the act of influencing government and its agencies lore the rules, values and knowledge systems developed by First Nations Peoples that guide behaviour, relationships, responsibilities, land and spirituality; these are passed down through culture, stories and ceremonies
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precedent a judgment that is authority for a legal principle and that serves to provide guidance for deciding cases that have similar facts prima facie (Latin) at first sight; the evidence is enough to prove the facts private law the area of law focusing on relationships between private people or organisations, covering things such as contracts, property and family matters pro bono (Latin) “for the public good”; used to describe work that is done by a lawyer or barrister on a voluntary basis and without payment, where there are issues of community concern or significant effect on disadvantaged groups procedural fairness/natural justice the body of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia, it generally refers to the right to know the case against you and to present your case, the right to freedom from bias by decision-makers and the right to a decision based on relevant evidence proceeds of crime any property, money or assets that are derived or realised, directly or indirectly, as a result of criminal activity. Law enforcement agencies use specific legislation to freeze or confiscate these gains to ensure that individuals cannot financially benefit from their illegal conduct. prohibited person a person prohibited from working in child-related employment because of a conviction of a serious sex offence, murder of a child or an offence involving violence towards a child prohibition a court order that forbids a lower-level court from hearing or taking further action in a case or matter prosecute when the Crown or state takes action against an accused person in a court of law public defender a public barrister who can appear for an accused in a serious criminal matter where legal aid has been granted public law the part of law that deals with the relationship between individuals and the government including constitutional, administrative and criminal law public morality standards of behaviour generally agreed upon by the community public prosecutor a legal practitioner employed by the Director of Public Prosecutions; usually prosecutes indictable offences public space areas set aside in which members of the community can associate and assemble quash to say officially that something, especially an earlier official decision, is no longer to be accepted quasi-judicial relating to a body or process that resembles a court and can make decisions, but is not a formal court of law racial vilification a public act based on the race, colour, national or ethnic origin of a person or group of people that is likely to offend, insult, humiliate or intimidate; types of behaviour can include racist graffiti, speeches, posters or abuse in public rail gauge the distance between the inner sides of the two rails of a train track
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non-binding law guidelines, principles or decisions that do not have to be followed by law; they act as recommendations or persuasive advice but are not mandatory obiter dicta (Latin) comments from a judge in a case that are not directly relevant to the case and, therefore, not legally binding (singular: obiter dictum) obvious risk the defence in a legal argument in personal injury cases where a defendant claims they are not liable for harm because the risk was so apparent, that a reasonable person would have recognised it offeree the person to whom the offer of an agreement is made offeror the person making an offer of an agreement Ombudsman an independent, fair and impartial person who investigates and resolves complaints between parties opinio juris sive necessitates (Latin) “opinion that an act is necessary by rule of law”; the principle that for the practice of a nation-state to be customary international law, the nation-state must believe that international law requires it original jurisdiction the ability or power of a court to hear a case in the first instance parole release of a prisoner before the expiry of an imprisonment term, temporarily or permanently, on the promise of good behaviour pastoralists farmers raising sheep or cattle, usually on large areas of land payback a ritualised form of restorative justice designed to settle a grievance and “clear the air” between families or groups; it involves a controlled, public act of punishment or compensation that, once completed, officially ends the dispute and prevents further retaliation peremptory challenge when the legal team rejects a juror without needing to provide a specific reason performance metrics quantifiable data points used to track, measure and assess the efficiency, quality and success of an athlete against strategic goals permanent protection visa a visa granted to refugees to allow them to live, work and access services indefinitely in Australia persecution mistreatment of a person or group of people due to a particular characteristic such as race, religion or political belief plaintiff the person who initiates a civil action plea a formal statement of guilt or innocence by the accused plea in mitigation any type of information that can help the court decide on an appropriate sentence pleadings written statements of the parties to a civil dispute that set out the issues to be decided by the court police prosecutor a NSW Police Force officer trained in prosecution; usually prosecutes summary offences policy framework an overarching set of guidelines and procedure recommendations that leads a government’s actions and decision-making on specific issues of interest
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sanction a penalty imposed on those who break the law, usually in the form of a fine or punishment Security Council the arm of the United Nations responsible for maintaining world peace and security self-determination the right of people to determine their political status or how they will be governed based on territory or national grouping, as well as the right to pursue their own economic, social and cultural development sentence the sanction imposed by the state in relation to the offender’s criminal conduct (e.g. fines, imprisonment and rehabilitation) sentencing hearing a hearing following a finding of guilt in which a judge will determine the sentence to be given to the accused separation of powers political doctrine that divides government into three distinct branches – the legislative, executive and judiciary to prevent the concentration of absolute power in any one body sexual assault when someone is forced into sexual intercourse against their will and without their consent sexual intercourse broadly defined in the Crimes Act 1900 (NSW) to include oral sex or penetration of the vagina or anus by any part of another person’s body or by an object manipulated by another person signatory a person, organisation or country that has signed an agreement SIM card a smart card with a microchip that securely stores user information, linking a mobile phone to a cellular network, allowing one to make calls, send texts skin name a social marker used by Aboriginal and Torres Strait Islander cultures to define an individual’s place within their community; it dictates family relationships, marriage possibilities and ceremonial responsibilities, while connecting the person to specific totems and the land social norm campaign a communication strategy that influences behaviour by correcting misperceptions about what is typical in a group, usually highlighting positive, healthy actions already taken by the majority social values ethical standards that guide people in their thinking about aspects of their society socio-economic disadvantage people who may have a lower or no income or financial troubles, which can limit the amount of money they have to access things such as education and housing soft law international statements such as declarations, that do not create legal obligations upon states but do create moral and political pressure to act in accordance with them songlines (also called Dreaming tracks) invisible pathways (“musical maps”) that crisscross Australia, representing the journeys of ancestral spirits who created the land, animals and people during the Dreaming; used by First Nations Peoples to navigate vast distances by encoding landmarks, water sources and topography into the rhythm and lyrics of traditional songs
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ratify to formally confirm that the country intends to be bound by the treaty ratio decidendi (Latin) the legal reason for a judge’s decision reasonable belief test consent to be considered reasonable in the circumstances, they must have said or done something to ascertain consent recidivism continuing to commit crimes after receiving punishment recklessness when the accused was aware that their action could lead to a crime being committed, but chose to take that course of action anyway reconciliation getting two parties to correspond, or make peace referendum the referral of a particular issue to the electorate for a vote refoulement the forced return of refugees or asylum seekers to a place or country where they may be persecuted or placed in life-threatening situations residual powers those matters on which the states can legislate, as they are not referred to in the Australian Constitution responsibilities legal or moral obligations to others responsible government a core principle of the Westminster system where the executive (the Prime Minister and Cabinet) is directly accountable to the elected legislature rather than a monarch or president restorative justice a way of dealing with crime that emphasises the perpetrator taking responsibility for the effect of their crime on others, and trying to do something that makes things better for the vicims right to silence the right of a person to refuse to answer any question put to them by the police rights legal or moral entitlements or permissions risk of harm concerns about the safety, welfare and wellbeing of a child or young person because of sexual, physical or emotional abuse and/or neglect risk of significant harm the threshold used in New South Wales to determine if a child’s safety, welfare or wellbeing is being endangered; indicates that the level of harm is severe enough to warrant state intervention to protect the child robbery when property is taken directly from a victim, usually forcefully Roundtrip App the only official digital logbook app accepted by Transport for NSW Royal Commission the highest form of independent public inquiry in Australia and other Commonwealth countries, established by the government to investigate serious matters of public importance rule of law the principle that nobody is above the law; this can be seen in the requirement that governmental authority must be used in line with written, publicly disclosed laws, for which established procedural steps (due process) have been taken in their adoption and enforcement rules specific instructions or guidelines given by an authority, like a school or workplace, outlining how people should behave in certain situations; less formal than laws and are enforced within that community
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totemic affiliations the spiritual and social bonds that link an Aboriginal person or group to particular animals, plants, natural forces or Ancestral Beings; they are not just symbolic labels – they shape identity, responsibilities, marriage rules and a person’s place within the wider kinship system transgender a person whose gender identity is different from the sex they were assigned at birth treaty defined by Vienna Convention on the Law of Treaties (1969) as “an international agreement concluded between states in written form and governed by international law”; treaties may also be referred to as conventions or covenants tyranny rule by a single leader holding absolute power in a state ultra vires (Latin) beyond the power or authority legally held by a person, institution or statute to perform an act United Nations a world organisation dedicated to world peace and the sovereignty and equality of all its members unwritten law laws that are not officially written down but come from customs, court decisions and traditions such as common law values fundamental beliefs or ideas that influence how a person or group acts and makes choices; show what people think is important or worth striving for voluntary manslaughter the killing of a person where the accused intended to kill or was reckless about killing someone but there were mitigating circumstances warning a notice given to a young offender (usually for a first minor offence) that is recorded by police but with no conditions attached; the offender must be told of the nature, purpose and effect of the warning Westminster system a democratic parliamentary system of government modelled afon that of the United Kingdom, which is characterised by the notion of responsible government where the executive (Prime Minister and Cabinet) is directly accountable to parliament and the executive, legislative and judicial powers are separated White Australia Policy the government policy of allowing only Europeans and English-speaking people to immigrate to Australia; so-called “undesirables” were kept out by use of the infamous dictation test white-collar crime a general term for various non-violent crimes associated with professionals or businesspeople, such as embezzlement, tax evasion or insider trading working with children check a check by the NSW Office of the Children’s Guardian on the appropriateness of a person in New South Wales to work in child-related employment written law laws that are formally recorded in documents such as statutes, Acts, regulations or constitutions young people in New South Wales, persons aged between 16 and 18 years Youth Koori Court an alternative form of sentencing in the NSW Children’s Court for Aboriginal and Torres Strait Islander young offenders where the process involves Elders, community members and a magistrate working together to support the young person and address the causes of their offending
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special leave where the High Court grants approval for the case to come before it in its appellate jurisdiction specific performance an order requiring the defendant to perform the acts that a contract obliged them to perform spot-fixing the action or practice of dishonestly determining the outcome of a specific part of a match or game before it is played standard of proof the level of proof required for a party to succeed in court stare decisis (Latin) “the decision stands”; the doctrine that a decision must be followed by all lower courts state sovereignty the authority of an independent nation-state to govern itself (e.g. to make and apply laws, impose and collect taxes, make war and peace, and form treaties with foreign states) statement of claim an official court document lodged by the plaintiff to start a civil case, explaining what the dispute is about, the key facts involved and what outcome or remedy the plaintiff is asking the court to order statute law the body of laws created and passed by a legislative body such as parliament that are written down as statutes or Acts statutory body an organisation with the authority to check that the activities of a business or organisation are legal and follow official rules stealthing where a person consents to condom use but the condom is removed without their knowledge strict liability offence an offence where the mens rea does not need to be proved; only the actus reus (the guilty act) needs to be proved summary offences criminal offence that can be dealt with by a single judge without a jury and does not require a preliminary hearing systemic disadvantage barriers which are built into society through laws, economic injustice, historic treatment and can limit opportunities or access for groups of people in society systemic something that relate to a whole group, organisation, government department rather than just one part table to begin consideration or discussion tariff a tax that must be paid on imports or exports tax evasion an attempt to avoid paying the full amount of taxes due by, among other things, concealing or underestimating a person’s or business’s income or assets temporary protection visa a visa granted to asylum seekers for a limited time, while providing temporary residence and protection terms of reference a set of guidelines used to define the purpose and scope of an inquiry terra nullius (Latin) “land belonging to no-one”; the idea and legal concept that when the first British people came to the continent now known as Australia, the land was owned by no-one and thus was open to settlement; this concept has been judged to be legally invalid tortious wrongful; constituting a tort or breach of duty to others totem in Aboriginal and Torres Strait Islander cultures, this can be an animal, plant or other natural feature that serves as a spiritual emblem
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