ENVIRONMENT Soft law- not binding Hard law- binding
Stewardship- protect your environment
Treaties- most successful international hard law
ICJ- jurisdiction: nominated in agreement OR both parties agree. Disputes of non-compliance. 15 judges.
International Customary Law- traditional practice that doesn’t conflict with international law eg. Transboarder pollution practices
UN- 1945. States sign charter. Initially world peace, now agencies develop and sponsor environmental law.
UN Environmental Program- review environment. State and advice
NGOs- Non legal. Voluntary groups w/ common interests. No govt funding. UN sees as a consultative body. Increase public awareness and pressure.
Media- non legal. Communicate. Mass consumption v Inform Codification- Formalization and documentation of customary law NSW POWERS
Environmental Protection Authority (EPA)- Enforcer. Licensing. Prosecute and direct public authorities.
Heritage Council- Heritage Act. Environmental Planning and Assessment Act. Conservation orders and refer offenders to Land and Environmental Court
Land and Environmental Court- Jurisdiction: environment and references by EPA. Appelate. Part of department of environment and conservation.
Protection of the Environmental Policies (PEPs)- protection policies to decrease pollution through guidelines and protocols etc. EPA ensures they are maintained.
Integrated environment protection licensing- PEP = licsnse.
License conditions- monitor, audit program, reduction program, management of waste and resources.
License term- reviewed every 5 years. Valid unless revoked, suspended or surrendered. INTERNATIONAL
STOCKHOLM CONFERENCE ‘72
- guidelines for resource management - est. UNEP (environ program)
+stepping stone. Catalyst. Many issues. Showed need for changes -Vague, no clauses, soft law.
RIO CONFERENCE ‘92
1) Agenda 21- human caused degradation and est. commission on sustainable development
2) UN Convention on Biodiversity- Protect flora and Fauna
3) UN Framework convention on Climate change- Greenhouse gasses
JOHANNESBURG ‘02
- Further Rio’s sustainable development
- Increase health and sanitation targets for 10 years MONTREAL PROTOCOL ‘89
-Decrease Greenhouse
“Single most successful” – kofi annan. Was what Sparked Rio. KYOTO PROTOCOL
-Aus signed not ratified. Big players not taking part, can’t enforce to non-compliers. -Consessions = ineffective
Murphyores v Commonwealth
Section 51 of constitution = international agreements = environmental protection -High court on board = institutions are aligning w/concerns
CRIME
CRIMES ON INDIVIDUAL
Homicide- unlawful killing (war and self defense is allowed) 1) Murder- deliberate or indifference to life
2) Manslaughter- killed but w/ defense Involuntary- negligence
Voluntary- mitigating circumstances Constructive- during crime
3) Infanticide- <12 months. Post-natal depression?
4) Death by reckless driving- Intention is overlooked by other factors Assault- (threaten to) cause physical harm
Sexual assault- sexual contact w/out consent OTHER CRIMES
AGAINST PROPERTY Larceny- theft
Breaking and entering- illegal entrance for crime Robbery- direct theft
White Collar- Business context. Eg. Tax evasion, computer crime, insider trading Against state- sedition (hate) treason (bring down)
Public order offences- disrupting eg. Swear
Traffic offences- Traffic Act Small = fine and demerit. Large = court Regulatory Offences- disobey protocol
Strict Liability- act = punishment (no mens rea) Preliminary Offences- attempt, conspiracy (>2 people plan)
Victimless- no victim but affect society. COURTS
Local- Summary. Magistrate (your worship). No jury. Inquisitorial.
Committal hearings – prima facie. DPP gather evidence, take to district? Childrens- All <18 not including extremes. <21@trial
Coroners- Circumstantial Evidence. Cause/manner. DPP investigates suspects after inquest.
District- District Courts Act. All indictable not including extremes. Can choose to have jury.
Supreme/Criminal Court of Appeal- Most serious indictable. Governer elects chief justice and senior judges. Appelate. Perceived Leniency = harshness
High Court- No original jurisdiction. Constitutional.
Criminal Behavior- edu, upbringing, extra Y chromosome (XYY), protests that go out of hand, material gain.
Situational Crime Prevention- decrease reward, increase risk = increase difficulty Social Crime Prevention- decrease factors
LEGAL AID
Means test- ability to get lawyer Merit test- chance of success in trial
Jurisdiction test- fit legal aid applicability. eg. Not family law, unless child INTERNATIONAL
Committed in another jurisdiction – not Australian law. Sex Tourism Act = extend Australian power to S.E Asia
Transnational- Several laws eg. Wonderland club (pedophiles) break many nations laws. Against international law- ICC if nation ignores
ELEMENTS OF A CRIME Mens Rea- intention = awareness Actus Reus- carry out crime Causation- link action to crime DEFENCE
Complete/Absolute Defense- =acquittal
Mental Illness- BOP = insane @ crime. McNaughten Test = unaware of wrong actions (no mens rea)
Compulsion- Forced
Necessity- better than possible outcome Consent- Not absolute in NSW
Partial/Qualified defense- reduction/change sentence
Provocation- Victim caused crime. Reaction is compared to ordinary person Diminished Responsibility- Partial mental illness
Principal in 1st degree- carry out Principal in 2nd degree- lesser role
Accessory before the fact- helped mens rea Accessory after the fact- help after
Guilty Plea- no trial. Sentencing
Plea bargaining- 1) drop some charges 2) prompt plea w/likely verdict 3) decrease degree of charge
Jury- Jury Act. 12 Jurers
Peremptory Challenge- 3 no reason. Unlimited challenges w/reason Education- learn right v wrong
Regulation- administrative dealing
Coercion- expectations from law. Eg. Red lights PUNISHMENT
Rehabilitation- decrease recidivism
Deterence- General = scapegoat specific = individual Retribution- Vengence for victim
Incapacitation- Protect society. No Rehab. Reintegrative shaming- Meet victim
SENTENCING *Has reasoning (radio decendendi) The Hearing- judicial officer gives sentence
Prosecutor- decrease recidivism by increase sentence. Bring up past record. Defense- Character whitness. Reasons eg. Abused
Victim- Victim impact statements
CIRCUMSTANCES *discretion is used, but guidelines from Higher Courts Objective- weapon? General increase in crime?
Subjective- age, history etc
Aggrevated- severe execution of crime
Mittigating- decrease sentence. Age? Intoxicated? PENALTIES
Fine- Summary. $120 penalty units
Bonds- aka recognisances. Conditions eg. Good behavious Probation Orders- active surveillance of bond
Community Service Orders- up to 5000hrs
Home Detention- Device sends random signal, verify it in <10sec. Periodic Detention- Weekend Jail
Imprisonment- All max security until Department of Constructive Services reviews. Security Classification- Constructive services. Crime type and escape likelihood Protective Custody- isolate if risk of abuse
INTERNATIONAL
Ad hoc tribunal- Temporary courts for war crime. Now ICC is permanent
Extradition- Extradition Treaty. Crime in both nations. Transfer to jurisdiction where crime was offended. Apply with court
DECRIMINALISATION FO CANNABIS
- Most common recreational drug. Increase respiratory disease and decrease cognitive function.
- 1970s, USA removed all small penalties in 11 states and no change in usage - Decrease tobacco usage with ads
- High costs of arrest
- Medicinal Benefits (cancer)
- Secondary crimes committed by those arrested for cannabis. Link?
Australian Law Reform Commission- Keep law w/society. Reports -> Feedback -> Fix Report etc.
WHY? Value changes, new concepts (victim impact statements), failing existing laws, international law, new technology.
DPP- Prosecute for community, independent from govt, investigate but not w/police Zecevic v DPP
Subjective threat v objective reaction Katarynski v R
Intoxication is included in subjective assessment of threat felt, but not for reaction to threat.
R v Dudley and Stevens Necessity not for murder Toonen v Australia
Decriminalised homosexual acts in private. TAS law infringed on International Convention on Civil and Political Rights
Yanner v Eaton
Customary rights to hunt crocodiles- override QLD laws Dugan v Mirror Newspapers ltd.
right is lost = can’t sue if committed offence punishable by death. No longer free from defamation always, and equality before law.
LAW IN SOCIETY
Arbitrary law- power w/out reference to law
Influences on law- moral, political, social, economic, cultural Customary law- indigenous. Mabo Case
Family law- Family Law Act Deal with marriage and divorce etc. Common Law- case law
Distinguish case- find reason to not follow precedent Civil Law- More inquisitorial. Written submissions, not argue. Natural Justice- Fair treatment
Domestic law- Jurisdiction in entity that promulgates the law International law- only govts.
Public Law- Operating of a govt. Constitutional, administrative, criminal Private law- individuals
Contract- offer, accept, consideration
Tort- Civil wrong. Negligence, nuisance (hinder others to enjoy rights), defamation (damage) and trespass
Property- ownership, use and disposal. Real (land and interests), Personal (Goods, shares, copyright).
Customary- kinship (family), land, spirits, stories. CIVIL AND CRIMINAL
Civil BOP= Plaintiff
Civil SOP= Balance of probability (more likely right than wrong) Criminal BOP= Prosecution (state)
Criminal SOP= Beyond reasonable doubt Equity- court deal w/injustices in law
Equality- equal for all Fairness- equal outcomes *Equality is not Fairness
WORLD ORDER
Darfur conflict- Military + Janjaweed v Sudan Liberation Movement. Because govt not respond to natural disasters and feelings of non-arabic oppression.
LEGAL: UN= ineffective- Resolution 1556 ignored. Another 3 Rejected. STATE SOVEREIGNTY. Also, EU not willing to donate troops, USA too thin spreading in Iraw and Afghanistan
LEGAL: Regional Intergovernmental Organisations (RIGOs)= effective. African Union = quick response and 7000 troops there today. BUT small size and lack of funds is limiting.
NONLEGAL: NGOs- Amnesty international = camps, reports to UN and Media = attention and exposure. Recommendations. BUT NGOs not a sovereignty and oppressive govt attack
East Timor Crisis- Stem from Indonesian invasion in 1975. West soldiers v Govt because discriminated against for East Soldiers.
LEGAL: UN= effective- extend deadline of UNOTIL twice. Resolution 1704 = UNMIT keeps Australia in charge = increased idea of regional focus. Security Council backed it. LEGAL: Unilateral Govt Response= effective- spark others to come on board. Foreign Minister Horta called for help and next day help arrived. Operation Astute. Withdrew 240 Soldiers from Solomon Islands and others backed those troops left there.
NONLEGAL: Media- not just sell papers, increase awareness and support.
Communication = quick response. John Howard inform us of balancing act = if don’t go and crisis worsens we bad, if we do go we bully.
World Order- address conflict. Post WW1 est League of nations- collapsed at start of WW2.
Conventional Warfare- Large number of troops. Organised Standing Army- Permanent National army
Guerilla Warfare- part-time, independent, unorganized, hard to find and recognize. Hit and run.
Nuclear Warfare- WW2= race for weapon that kills best and fastest. Treaties now to stop stockpiling.
CONFLICT WITH NATIONS Civil war- armed conflict in nation
Warlordism- military, dictatorship Insurrection- oprising citizens/revolution
Coup D’etat- rapid, unexpected govt overthrow.
Expansionism- increase size and influence. Eg. Colonialism
League of Nations Covenant- Cooperation, peace and security. Ineffective @ restraining large power like USA w/mediation (negociated encouragement) and Arbitration
(impartial decision that is binding)
Act of Paris 1928- aka Briand-kellogg pact. War = “instrument of national policy in their relations w/one another” No mechanism for compliance. 65 signatories, 11 weren’t league members.
League = ineffective- Nicaragua v Mexico: not take responsibility of unrest. Also, USA not part, Germany and Japan pulled out.
State sovereignty- Barrier. Domestic govt has right to run its own body. BUT also, sovereignty leads to a unilateral response, successful in East Timor. Peacekeeping forces. REMEDIES
Force- UN Charter Act 2. Force for self defense or humanitarian reasons (Human Rights) Self defense- immediate threat, last resort, anticipatory.
Sanctions- Diplomatic, sporting, military, economic
Negociation- leads to web of treaties and agreements that can increase world order International Instruments- Treaties and Dec.
Treaties and International Law- must register all. Vienna convention on Laws of Treaties = change or stop if agreed to or new treaty covers same material.
Jus Cogens- new ethical philosophy = change in laws = treaties conflict and become void. Eg. 18th century slave treaties dissolved.
TREATIES = World Order Classification
Contract- like agreement. Hard law (vertrage) Guideline- of behavior. Soft law.
SEABED TREATY
No nuclear weaponry on seabed. Only allowable 22km from shoreline. Cant est launch sites.
NGOS
Globalisation, media, technology, groups increasing, input in conferences
Red Cross and Red Crescent- International Committee of the Red Cross: humanity, impartial, neutrality, volunteer. Prepare all treaties and conventions relating to international humanitarian law eg. Geneva convention. Reminds nations in war (belligerent) of obligations
RIGOs (regional intergovernmental orgs)
UN Charter- must comply with UN, can deal with disputes before UN does. Eg Arab League
INTERNATIONAL TRIBUNALS
ICJ- for nations. 15 judges. Apply international conventions and customary law. 1) contentious issues- binding decisions to adhere to.
2) advisory- non-binding resolutions on questions submitted by UN General Assembly.
Ineffective- USA v Nicaragua- USA not pay reparation.
ICC- Rome Statues est. in 1998. War crimes, Genocide, humanity, referrals to ICC by security council (can be vetoed) and authorized by 3 judge-panel to decrease politics. International Criminal Tribunal of Yugoslavia (Balkans)
International Criminal Tribunal of Rwanda AUSTRALIA AND WORLD ORDER *S.51- external affairs powers
Ratification- policies codified in law NON-LEGAL REMEDIES
Force- accordance to doc. of humanitarian intervention Persuasion- Sanction threats = increase compliance
Political Negotiation- No 3rd party. Resolve disputes themselves = greater chance of
compliance to own resolutions
Why would commitment to international law lack? -Lack of resources (eg. Kyoto- developing nations) -National security. Everyone protects themselves -Conflict of interests (eg. Economy v Environment) -Political conflict
-Lack of shared values. Conditions of Law reform
-Change in social values (eg. Human rights)
-Composition of society (eg. Increased extremists, globalization) -New technology (media, new war)
-Failures (soft law)
EFFECTIVENESS OF INTERNATIONAL LAW INDIVIDUALS
Equality:
NGOs, International legislation
low enforceability, sovereignty, different laws in different nations. Accessibility:
NGOs, developed nations, ratify = access
Individuals can’t access tribunals, sovereignty = not ratify Enforceability:
ICC punishment, ratify = domestic laws
not binding, ratification not always = upheld laws Resource Efficiency:
NGO = increased awareness, Media = increased awareness
Govt. hides matters, individuals not allowed in the UN SOCIETY
Resource efficiency:
UN members = $, Money goes to developing nations
Timing isn’t always right (delayed reaction), peacekeeping = optional Enforcement:
ICC, embedded in domestic through ratify
Not all nations are democratic, sovereignty Appeal/review:
ICC appeal option, domestic review = less cost to UN
Not all domestic systems are good, opportunity to appeal isn’t transparent Standards:
Treaty = unity, not discriminate
Westernized view, slow transition period for laws to change NATION STATE
Recognition:
Sovereignty = recognize diversity, 80% budget to developing nations
Increased power to some states Interdependence:
Harmony, increased wealth and prosperity
Occurs from power, sanctions impact on this negatively Equality:
No limit to join UN, treaty for all
Economic power = inequality, buying of votes Enforceability:
ICJ, sanctions
HUMAN RIGHTS
Magna Carta (1215)- Limit king John’s power. No interference w/church, no taxes w/out parliamentary consent, no prison w/out trial, can’t deny rights of towns or rights to travel. English Bill of Rights (1688)- James II expelled for increased parliament interference. William II signed bill: Parliament function w/out royal interference. Shifted power from monarchy to parliament.
Dec. of Independence of USA (1776)- Live life free from oppression. Stemmed out of Britain trying to tax N.American colonies who had own character.
Constitution of USA (1787)- Separation of powers (no one branch w/greater power). No arbitrary law change. Came after war of independence from British parliament.
US Bill of rights- 10 articles (1st 10 amendments to the constitution eg. Free from
unreasonable searches).
Dec. of the Rights of Man (1789)- Formed by common people in the 3rd estate of French
parliament when forming the national assembly. Freedoms and equality.
Basic law of Federal Republic of Germany (1949)- en of WW2. W.Germany protected rights of its individuals.
Universal dec. of Human rights- Post WW2. 30 articles. Equality, freedom and prosperity.
Arbitrary/absolute power- total power over citizens. Dissolved by Magna Carta. Popular sovereignty- people = power through election
Natural law- derived from god/bible rules
Positive Law- made by the state. Precedence over natural law.
State sovereignty- Nation defined by boarders it can protect; rights ro govern itself, pave own destiny, impose own controls.
HUMAN RIGHTS: INALIENABLE AND UNIVERSAL, NOT UNIVERSALLY SUPPORTED YET, THREATENED BY STATE SOVEREIGNTY, A RECENT PHENOMENON.
The state sovereignty includes: -political control -values
-ethnicity -security pursuit
ABOLITION OF SLAVERY Slavery = ancient tradition- no rights.
Natural rights (love thy neighbour) = question slavery. Emancipation Act – British govt. abolish slavery.
3rd amendment to US constitution – also abolish slavery, but still oppression in the sthn.
States up until 1960s.
Slavery Convention – “as soon as possible” = soft
A supplementary convention on the abolition of slavery – less colonialism/apartheid (African and Soviet Union states)
A.4 of UDHR
UNIVERSAL SUFFERAGE The right to vote.
The 1st partly-elected body in NSW = the legislative council (only extremely wealthy
men could vote).
Women right to vote in Federal election in 1902 (as opposed to 1928 in Britain). A.21 UDHR
UNIVERSAL EDUCATION Increased social mobility.
The need for children to work and provide for family = less education. UN invests $ to relieve poverty.
A.26 UDHR Types of Rights
Customs- typical way to do things = law
Moral- immoral to kill = moral RIGHT to life. What is good.
Legal- instilled in law. Not always reflect society ie. In a dictatorship. Domestic- Domestic law = that jurisdiction
International- universal rights for all humans. Can’t grant or remove. Codified into domestic for protection.
Civil and Political- Protect from oppressive govt.
International covenant on civil and political rights- life, freedom (expression etc.), equality before law.
This est. International Human Rights Committee- monitor and read submissions from signatories.
Covenant on the:
Elimination of all forms of discrimination against women Elimination of all forms of racial discrimination
Rights of the Child (CROC)
Prevention and punishment of the Crime of Genocide
Types of Rights cont.
Economic, social and cultural- International Covenant on economic, social and
cultural rights- provisions to maintain human dignity eg. Equal pay for equal work, free choice to work etc.
Collective- received by those in a group eg. Environmental rights = intergenerational equity
Peace- Resolution of UN General assembly = right of people to peace. A.2 UN Charter Collective right to self determination- Indigenous. Partial sovereignty over their land. SO WE HAVE RIGHTS!
Civil = equal before law, free expression Political = vote, join party
Economic = to work, trade union Social = engage freely in community Cultural = maintain heritage
Environmental = intergenerational equity
CONSTIAUTIONAL PROTECTION OF HUMAN RIGHTS
Freedom to religion, jury trial, freedom of movement, free of state-based discrimination, right to just compensation (if land is taken).
Bill of Rights in Australia?
+Currently rights aren’t protected enough +Increase universal rights
+Empower the powerless
+Bring Australia in line with ROW +Meet int. obligations
+Increased democracy as rights for minorities are increased and promoted +Rights > Politics
+Increase policies +Educative function +Increased tolerance
-Rights are already protected -Politicises the judiciary -Litigation = costs
-Decreased parliamentary sovereignty -Limit our rights to those in the Bill -Rights are not freedoms
-Not flexible enough to change w/change in perceptions *The UN UDHR = 1st International agreement on basic rights
*Geneva Conventions and additional protocols have a lot of International Humanitarian law
*The Magna Carta curtailed the power of the King and gave specific rights to nobility and free man
Current Context Issues Trial by Media
Chamberland and Haneef = selective leaking
Decreased justice due to sensationalism – run with interesting stories rather than truth Defamation = prejudice
Theoretically: Increased awareness w/media = effective justice Media = middle man: increase deterrence, knowledge of rights etc.
Media = pressure to deliver justice (parliament setting laws, enforcement and judge decisions in a trial)
Media = lobbyist: representation of what society values Mandatory Sentencing
(eg 3rd charge found guilty in = jail)
Blurs distinction between parliament (legislature) and courts (judicial) as law = less interpretation involved in courts at the quota.
17 y.o stole teatowel in NT as his last crime and then committed suicide
Increased justice in the community: repeat offenders are taken out of the community at the expense of justice for the individual
Majority Verdict
11-1 = accepted ruling = resource efficient – less retrials due to one dissenting person (dealing w/rogue jurer)
Increased justice for society but less rights for the accused AntiTerror Law
Right is at stake: Hedius Corpus- can’t be held w/out charge
“Better safe than sorry” Howard = contradict presumption of innocence Increased powers of surveillance etc.
Prohibitted evidence to magistrate but not defence = unjust Death Penalty
Acted as a deterrent initially, but people get used to the idea and crimes don’t stop Ethical dilemma- UDHR says Death penalty is wrong
Right to life, free of hanus punishment
Crimes (Child Sex Tourism) amendment act 1994
Stop Australian males going to SE Asia to commit sexual acts with underaged children = controls Australians outside Australian jurisdiction
Terrorism Act 2002 Answer to Sept. 11 2001 Anti-Terrorism Act 2005
Like 2002 act, increase police powers and ASIO investigative powers Proceeds of Crime Act 1987
Stop money laundering and drag trafficking and seize assets that may have been bought by crime.
Crimes Amendment Act 1989
Computer crime. Keep up w/technology Migration Amendment Act 2002
Decrease people smuggling. Increase sentences = deterrence Seabed Treaty
Decrease nuclear testing on the seabed Drug Trafficking Act 1974
Decrease import of drugs Law Reforms
Victims Rights Act 1996 Impact statements
Crimes (serious sex offenders) Act 2006
Extend detention for prisoner whose term is up. Increased community justice. Decreased individual rights. Therefore, must rehabilitate and show remorse
Copyright Amendment Act 2006
Decriminalising copying music to i-pod. Personal use = ok. Responded to unenforceability of previous law
Treaties – Conventions – International Bodies – Jus Cogens – Role of Lobbyists (Media, NGOs) – Govt. bodies and LRCs
Treaties and Conventions = est. new directions and policies. Catalyst for change International bodies = UN, UNEP, IWC, APEC
Jus Cogens = New law for new philosophy Lobbyists = awareness
Govt. bodies = EPA, Parliament, ALRC, Courts Ozone Protection Act 1986
Antarctic Treaty Environment Protection Act 1980 Protection of the Environment Operations Act 1997 Australian concerns- Water, Forests, CO2 emissions International concerns- Global warming, Whaling, Ozone
