Law in Australian Society: An Introduction to Principles and Process 9781760527037, 1760527033

Table of contents :
PART 1: LAW, POLITICS AND THE MEDIA Introduction: Law in society Chapter 1: Legislation Chapter 2: Case law Chapter 3: Politics and the media PART 2: RIGHTS, THEORIES AND HISTORYChapter 4: Founding principles Chapter 5: Justice Chapter 6: Human rightsChapter 7: Indigenous peoples and the law PART 3: CRIMINAL JUSTICEChapter 8: Criminal offences Chapter 9: Police powers, bail and the criminal trial Chapter 10: Punishment, sentencing and appeals PART 4: CASE STUDIESChapter 11: Cybercrime Chapter 12: Counterterrorism Acknowledgements References GlossaryIndex

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Praise for Law in Australian Society ‘In a well-written and well-presented style [this book] provides a clear explanation and critique of aspects of the making, changing and operation of laws in Australia, particularly those connected with human rights and criminal justice. To that end it sets these processes in the legal, political and social frameworks that apply across the country, with clear explanations of structures and procedures … It is a primer on the politics of lawmaking and the role of the media. It explains foundational principles of government, justice and human rights. It highlights the special position of the Australian Indigenous population in this scheme and explores the continuing issues of sovereignty, native title, constitutional recognition and overincarceration. And with the assistance of case studies of cybercrime and counter-terrorism (showing social and legal evolution in those areas), [it] takes us through the creation of criminal offences, criminal law enforcement and the criminal justice process through to punishment and appeals. It does all this with a suitably critical eye, prompting reflection and analysis in the reader.’ – Nicholas Cowdery, AM, QC, former Director of Public Prosecutions, New South Wales ‘A wonderful text, not just for its intended audience of first year university students but also students studying Legal Studies in their senior years of high school and their teachers. The overall structure and the inclusion of comprehension questions, glossaries and a curated reference list ensure that students can build on their understanding over the course of the book. The use of plain English explanation for complex legal terms and ideas will greatly assist readers from culturally and linguistically diverse backgrounds. The change in tone from a basic explanation of the law at the start, to the more complex ideas outlined in the case studies is to be commended. This differentiation is, in my view, one of the most impressive things about this text and allows for it to be accessible and useful to an audience that could include members of the wider community.’ – Jackie Charles, Rule of Law Institute of Australia ‘This introduction to Australian law is comprehensive, contemporary and accessible. It is a perfect primer for new students requiring a broad understanding of Australia’s legal system. From cybercrime to the workings of Australia’s parliament, this book has it all.’ – George Williams, AO, Dean, Anthony Mason Professor, Scientia Professor, University of New South Wales ‘Law in Australian Society is an ideal text for first year students in criminology, legal studies, policing and related fields. Its easy-to-read format aids students in understanding the complexities and subtleties of the Australian legal system.’ – Emma Colvin, Centre for Law and Justice, Charles Sturt University ‘The book is easy to read, concise and comprehensive. This is especially so for Chapter 7 ‘Indigenous peoples and the law’, which is an area of law non-law students are likely to find challenging to fully comprehend. The book clarifies the historic and legal concepts in simple terms. Part 3 of the book offers not only a thorough explanation of criminal offences but also criminal procedural law. The final part on cybercrime and counterterrorism [gives] good examples to enhance the reader’s understanding of how criminal law and criminal procedure interact.’ – Pornsakol Dao Coorey, Teaching Fellow, University of New South Wales

About the author Dr Keiran Hardy is a Lecturer in the School of Criminology and Criminal Justice and a Research Fellow in the Griffith Criminology Institute, Griffith University, Queensland. His research focuses on counterterrorism law and countering violent extremism.

First published in 2019 Copyright © Keiran Hardy 2019 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10 per cent of this book, whichever is the greater, to be photocopied by any educational institution for its educational purposes provided that the educational institution (or body that administers it) has given a remuneration notice to the Copyright Agency (Australia) under the Act. Allen & Unwin 83 Alexander Street Crows Nest NSW 2065 Australia Phone: (61 2) 8425 0100 Email: [email protected] Web: www.allenandunwin.com

ISBN 978 1 76052 703 7 eISBN 978 1 76087 154 3 Index by Puddingburn Publishing Services Set by Midland Typesetters, Australia Cover design: Squirt Creative Cover photos: Alamy

Contents List of figures Preface

PART 1: LAW, POLITICS AND THE MEDIA Introduction: Law in society Chapter 1: Legislation Chapter 2: Case law Chapter 3: Politics and the media

PART 2: RIGHTS, THEORIES AND HISTORY Chapter 4: Founding principles Chapter 5: Justice Chapter 6: Human rights Chapter 7: Indigenous peoples and the law

PART 3: CRIMINAL JUSTICE Chapter 8: Criminal offences Chapter 9: Police powers, bail and the criminal trial Chapter 10: Punishment, sentencing and appeals

PART 4: CASE STUDIES Chapter 11: Cybercrime Chapter 12: Counterterrorism Acknowledgements References Glossary Index

Detailed contents List of figures Preface

PART 1: LAW, POLITICS AND THE MEDIA Introduction: Law in society I. What does law do? II. What is law? III. Why is law important?

Chapter 1: Legislation I. What is legislation? II. How is legislation made? A. Process of approving Bills B. Committee stage III. Where can I find legislation? IV. How do I read legislation? A. Citation B. Parts, divisions, sections C. Elements of the law D. Which legislation? V. Regulations

Chapter 2: Case law I. What is case law? A. Precedent B. Court hierarchy C. Jurisdiction II. Where can I find case law? III. How do I read case law? A. Citation B. Catchwords C. Material facts and ratio

Chapter 3: Politics and the media

I. Politics A. Houses of parliament 1. House of Representatives 2. Senate B. Political parties 1. Labor Party 2. Liberal Party 3. National Party 4. The Greens 5. Minor parties and independents C. Executive government D. Your vote matters II. The media

PART 2: RIGHTS, THEORIES AND HISTORY Chapter 4: Founding principles I. Liberalism II. Democracy III. Federalism A. Shared lawmaking powers B. Local government C. COAG D. Advantages and challenges of federalism IV. Separation of powers V. Rule of law

Chapter 5: Justice I. What is justice? II. Due process III. Alternative forms of justice IV. Access to justice V. The role of government

Chapter 6: Human rights I. What are human rights? II. The Constitution and human rights A. The Constitution B. Rights in the Constitution C. Judicial review D. Why are human rights not protected by the Constitution? E. Other protections for human rights III. Possibilities for change

Chapter 7: Indigenous peoples and the law

I. Indigenous justice II. Sovereignty III. Settlement, Federation and beyond A. Settlement and terra nullius B. Towards Federation and beyond IV. Mabo and native title V. Constitutional recognition A. The 1967 referendum B. Expert Panel C. Referendum Council

PART 3: CRIMINAL JUSTICE Chapter 8: Criminal offences I. What is a crime? II. Different types of crime A. Homicide B. Assault C. Property offences D. Drug offences E. Offences against the state F. Other offences G. Summary vs indictable offences III. When is somebody guilty of a crime? A. Physical and fault elements B. Inchoate and accessorial liability C. Defences D. Young offenders

Chapter 9: Police powers, bail and the criminal trial I. Discretion II. Police powers A. Searches B. Questioning C. Arrest D. Charge E. Misuse of police powers III. Bail IV. The criminal trial A. Pre-trial B. Summary trials C. Jury trials D. Evidence E. Witnesses

Chapter 10: Punishment, sentencing and appeals

I. Punishment and sentencing A. Types of punishment B. Purposes of punishment C. Principles of sentencing D. Aggravating and mitigating factors E. Evidence F. Instinctive synthesis G. Mandatory minimum sentences H. Sentencing Indigenous offenders I. Imprisonment and parole II. Appeals A. Appeals and the court hierarchy B. Appeal against conviction C. Appeal against sentence D. The High Court E. Benefits and limits

PART 4: CASE STUDIES Chapter 11: Cybercrime I. What is cybercrime? A. 419 and online dating scams B. Identity theft and phishing C. Unauthorised access and malware D. Legal responses to unauthorised access and malware E. Notifiable data breaches II. Sexting, revenge porn and cyberbullying A. Sexting and revenge porn B. Cyberbullying and the eSafety Commissioner

Chapter 12: Counterterrorism I. Australia’s legal responses to terrorism II. What is terrorism? III. Criminal offences A. Preparatory offences B. Terrorist organisation offences C. Declared area offence D. Advocating terrorism IV. Police and intelligence agency powers A. Control orders B. Preventative detention orders C. Questioning and detention warrants D. Special intelligence operations E. Metadata V. Lessons A. Parliamentary process

B. Human rights C. Freedom of the press Acknowledgements References Glossary Index

List of figures Figure 1.1: Citing legislation Figure 1.2: Process of enacting a Bill Figure 1.3: Structure of legislation Figure 2.1: Court hierarchy Figure 2.2: Major branches of case law Figure 2.3: Citing case law Figure 2.4: Medium-neutral citation Figure 2.5: Mabo judgment from AustLII Figure 3.1: Example House of Representatives ballot paper Figure 3.2: Comparing the House of Representatives and Senate Figure 3.3: Sample Senate ballot paper Figure 3.4: The executive branch of government Figure 4.1: Section 51 of the Constitution Figure 4.2: Levels of government in Australia Figure 4.3: The separation of powers Figure 5.1: Equality vs equity Figure 6.1: Universal Declaration of Human Rights Figure 9.1: Stages of the criminal justice process Figure 10.1: Appeals hierarchy

Preface Increasing numbers of university students require a foundation in Australia’s legal system, but most existing textbooks are written for law students for the purposes of a legal education. For non-law students, those textbooks can be daunting. Many words and concepts that become common vocabulary in a law degree—precedent, common law, separation of powers, executive government, judicial review—appear foreign to students with very different study plans and interests. These concepts may be left behind soon after learning them, as students move on to other subjects in their chosen degree. The expectations when enrolling in an introductory law course in another degree are often unclear. Students ask themselves (and each other): if I’m not going to be a lawyer, why do I need to study law? Do I need to know how to read legislation and case law? How does this course relate to my other subjects? If these questions are not addressed thoughtfully at the beginning of the course, many students can feel lost, confused and disengaged. This is a pity, as the benefits of learning about Australia’s legal system—without necessarily reading case law or legislation in detail —are significant. Learning about Australia’s legal system is important for students across many different disciplines, including criminology, human services, psychology and allied health services. These students just need to approach the subject a little differently, by focusing more on the legal system as a whole and questions of how law and society interact. Law students also consider these issues, but there is a heavy focus in many subjects on reading legislation and case law. Students in other degrees should be familiar with these legal materials and know how to find and approach them, but they do not need to know detailed technical methods for interpreting statutes or applying case law as precedent. Law students, too, need an accessible overview of Australia’s legal and political system. Law students come from a variety of backgrounds: mature-age students with careers in different professions, international students from nonEnglish-speaking backgrounds and first-year undergraduates with little or no knowledge of law and politics. The chapters that follow speak to a wide range of students with practical, topical examples. Each chapter concludes with a summary of key points and questions for discussion and review; these reinforce the most important material and promote further critical thinking. Definitions of key terms can be found throughout each chapter. The reference lists are geared towards sources that have accessible content, and most can be found easily through an online search. The lists should be treated as suggestions for further reading and not glossed over. Reading these sources in conjunction with this book (ideally, after completing each chapter) will deepen students’ knowledge of Australian law and politics. Teachers may wish to assign these lists as extra reading and provide links to the materials on their course websites. A key aim of the book is to pitch the material at a genuinely introductory level, for students with no knowledge of the law. Many textbooks claim this, yet are still written at a level that is difficult for commencing university students. I may be guilty of a similar offence—although I have made every effort to introduce all concepts in an introductory way. This does not mean that the content is not challenging, as all learning should push the boundaries of what you know and how you think. Part 1 introduces students to the essential features of Australian law. It begins with an introductory chapter explaining what law does, what law is and why learning about the law is important. Chapters 1 and 2 explain legislation, case law and the courts. Chapter 3 discusses the relevance of politics and the media to the process of making laws. Part 2 discusses the theories, principles and history underpinning Australia’s legal system. Chapter 4 explains important concepts such as liberalism, democracy and the rule of law. Further chapters in Part 2 discuss different meanings of justice, the protection of human rights, and Indigenous peoples and the law. Part 3 explains the criminal justice system, including criminal offences, police powers, bail, the criminal trial and sentencing. Part 4 concludes with two case studies of contemporary law reform: cybercrime and counterterrorism. These studies build on what students have learned throughout the book. They reinforce the idea that the law is not a set of

fixed rules. Rather, the legal system evolves and adapts in response to new threats, changes in morality, and other events in society. This book, then, is not simply about what the legal system is, at this point in time. It is also about how law can be shaped by parliaments, politics, judges, the media and the wider community. The legal system is not static but, rather, develops over time as new laws are enacted and interpreted and old ones are amended or removed. For example, in my area of research, the federal parliament is continually updating laws in response to the threat of terrorism. The book addresses important issues relating to individual rights and justice, such as whether parliaments can enact laws that infringe human rights, and whether our legal system adequately recognises Indigenous peoples. These issues fall under the banner of what legal academics call ‘public law’—the law of government. Public law explains the functions and powers of parliaments, the High Court and the executive branch of government. Learning about public law is crucial to understanding how Australia ‘works’ as a country and nation. My hope is that students reading the final case studies will feel encouraged by their ability to understand contemporary law reform issues. They should understand many words and concepts they did not know the meaning of (and may not even have heard of) before they read this book. If I can achieve that, even for a proportion of readers, I will be proud that this book has extended legal education to a wider audience. Keiran Hardy, Brisbane and Gold Coast, 2019

Introduction Law in society In this introduction you will learn about: What law does What law is Why learning about the law is important Rather than beginning with a technical definition of the law, this chapter begins with some practical examples of what law does in society. Following these, the chapter will explain more about what law is and why learning about Australia’s legal system is important for university students across many different disciplines. Criminal offence conduct that attracts a penalty under the law

I. WHAT DOES LAW DO? Law does many practical things that help our society to function. One of the most familiar things that law does is to create criminal offences. Criminal offences like murder, rape and armed robbery are all defined by the law. The law sets out a penalty for committing these crimes. Some offences—like a minor assault or dangerous driving—will attract a relatively low penalty compared to murder, armed robbery and other serious crimes, which can put an offender in prison for life. The law gives police officers powers to investigate these crimes. It allows police to search houses, collect evidence and arrest suspects. Importantly, the law defines when and how these powers can be used, so that the individual rights of suspects and other community members are protected. The law allows us all to do many common things, even if we don’t normally associate these with the law. For example, law provides the framework for purchasing goods and services. Having agreements with legal backing is particularly important for major purchases such as a car or house. Other common examples relate to families. Marriages are formal agreements recognised by the law. Separated parents can apply for divorce and the courts will help them determine which parent has custody over a child. Other common examples relate to our jobs. For example, the law guides the collection of taxes and the payment of superannuation in addition to our salaries. The law also protects us when things go wrong. It allows us to seek remedies, such as an amount of money as compensation, when some harm is done to us. A remedy is an order issued by a court which helps to enforce a right or redress a wrong. For example, imagine that shopping centre employees fail to put up a ‘wet floor’ sign and you slip and injure yourself as a result. Laws about negligent behaviour would allow you to seek compensation from shopping centre management so that you could pay your medical bills. Or imagine you pay for online shopping but the company never delivers the product. Laws relating to contracts and consumer protection mean you have a right to have the product delivered or a refund issued. Compensation the payment of money to repair harm Remedy a court order that enforces the law by enforcing a right or redressing a wrong

These are just a few examples, but they are enough to show you that law plays a crucial role in Australian society, and that law and society are fundamentally linked.

II. WHAT IS LAW? As you can see from the examples above, law can do many different things. If the law can do so many things, what is it, exactly? In essence, law is a body of formalised rules that regulate people’s behaviour. In subsequent chapters, you will learn about where we find these rules—in legislation, case law and the Australian Constitution—but for now this definition is adequate. A rule is a statement, principle or instruction that says what someone can or cannot do, or how it must be done. By ‘regulating’ behaviour, we mean firstly that the law controls people’s behaviour. Criminal offences are the most obvious example, because these rules prohibit us from doing certain things. Criminal laws also deter us from breaking the rules. For example, a teenager may think about stealing an item from a store, but then decide not to because he knows he may be punished for stealing it. Regulate to control, allow, and guide behaviour Rule a statement, principle or instruction that says what someone can or cannot do, or how it must be done Regulating behaviour can also mean allowing people to do things. Laws can specify what people can do, when they can do it, and how they must do it. For example, the law allows police officers to search a suspect’s house after applying for a warrant from a judge, and it specifies what the officers can do when they enter the house (for more on police powers, see Chapter 8). Warrant an order issued by a judge that allows police to use a special power Laws are rules that set out conditions and requirements such as these, but they are not just any rules. For a rule to qualify as a law, it must satisfy certain requirements. A law cannot be invented by anybody on a whim. For example, parents might tell their children that they cannot stay out past midnight, or that they can play computer games only for one hour in the afternoon. These are rules, and they may be strictly enforced with penalties, but they are not laws. Laws are rules that have been validly enacted by a parliament or issued by a court (for more on this, see Chapters 1 and 2). It is important to understand that laws are not fully static or fixed. Many laws have existed for a long time, but they have not been handed to us like the ten commandments, inscribed in stone for eternity. Rather, laws are dynamic: they change frequently. This happens when laws are changed by parliaments, and when judges interpret those laws and apply them to new cases. The idea that laws change over time can be difficult to grasp. Students often believe that the law is a body of strict, specified rules, and that the purpose of studying law is to learn what those rules are. Some lawyers might even approach the law in this way, and for good reason. To argue a case effectively in court, lawyers need to know in detail what the rules are at that point in time. A more holistic approach considers how laws develop over time and how the process of making and changing laws can be influenced by different groups and interests in society. When new laws are proposed in parliament, the process can be influenced heavily by political infighting, public opinion, media coverage, human rights concerns, government inquiries and a range of other groups, agencies and organisations. It is okay if this idea does not make much sense now, because the process of making laws is explained in detail in the next chapter. For now, the point is that you should understand not only what law is but also how law is made.

III. WHY IS LAW IMPORTANT? Law is important because it helps our society to function, but it is not just a series of arbitrary, practical rules. Laws are also important because they tell us about the values and morals of the society we live in. For example, we have laws against murder, rape and assault because of the serious harm these acts cause to others. There are offences for stealing because it is dishonest and immoral to take another person’s property without their permission. These moral lessons might seem obvious—but it is often what we do not consider to be a crime that tells us more. Defences in the criminal law—like self-defence, provocation or insanity—tell us when somebody should be excused

from being held responsible for a crime, or whether a lesser penalty should apply (you can read more about these in Chapter 8). Do you think somebody should receive a lesser penalty for manslaughter, rather than possible life imprisonment for murder, if they are provoked to kill someone in a fit of rage? Should a homeowner be allowed to kill an intruder who is trying to rob them? If so, in what circumstances? Defence an argument that a person is not guilty of a crime Comparing Australia’s laws to those of other countries also gives us interesting insights. Can you imagine living in a country where it is a crime to cheat on your husband or wife? Cheating on your spouse is morally wrong but, in Australia, the government will not punish you for it. In other countries, adultery can be punishable by death, and the methods used for execution can include stoning and beheading (Aneez & Sirial 2015). This tells us that different countries have different values about monogamous relationships and the kinds of punishments that courts should be able to deliver. It shows us that the laws we have in Australia are not a ‘given’, and that there are always important questions about what the law should be. These questions are global as well as local. In Australia, there are still many difficult moral questions as to what the law should be. Euthanasia remains a contentious issue, with groups disagreeing on whether it should be lawful to assist a terminally ill person to commit suicide. In 2017, Victoria became the first Australian state to legalise euthanasia where an adult patient has less than six months to live, is capable of making decisions and is experiencing ‘intolerable suffering’ (Anderson 2017). Whether other states will enact similar laws remains to be seen. Abortion—terminating the life of an unborn foetus—also generates significant debate. Many people disagree on whether a foetus has developed a ‘right to life’ and how this should be balanced against a woman’s right to choose termination. It was only in 2018 that Queensland abolished a law making it a crime to seek an abortion (Smee 2018). In New South Wales, performing an abortion remains a crime punishable by ten years imprisonment. In other words, as morals and values change over time, the law can change too. In 2017, Australia’s marriage legislation was amended to allow same-sex couples to marry. Prior to that change, the law formally defined marriage as being ‘between a man and a woman’. This prevented same-sex unions from being recognised as marriages under Australian law. Achieving this legal change was not easy and took a long time, because different groups in society had strongly divergent opinions as to whether the legal changes should be made (Stuart 2017). Law’s changing nature means that governments use it to respond to many social problems. This is particularly true of the criminal law. For example, new criminal laws have been enacted in response to bikie gangs, cybercrime, ‘one-punch’ drunken assaults and terrorism. Before the 9/11 attacks on New York and Washington, Australia did not have any national laws saying that terrorism was a crime. Now, we have more than 75 pieces of legislation designed to prevent and counter this threat (you can read more about Australia’s counterterrorism laws in Chapter 12). Human right a core protection that every human being should be afforded Many of these new laws impact on human rights. A human right is an entitlement to a core freedom or protection that all human beings should be afforded. These include the rights to liberty and a fair trial, and the freedoms from torture, slavery and discrimination. Contrary to much popular belief, Australia does not have a national document that protects human rights (Williams & Reynolds 2017). Australia’s founding legal document—the Constitution—protects only limited rights, including the right to trial by jury, freedom of religion and an implied freedom of political communication (you can read more about these in Chapter 6). Otherwise, there are few legal limits to prevent parliaments from infringing human rights in Australia. This can come as a surprise to many, and it is indeed one of the most striking features of our legal system. It is surprising because Australia, on the whole, experiences a high standard of living and maintains a healthy, functioning democracy. We are not a war-torn country with rampant human rights abuses, so perhaps many people assume that some legal document ensures this on a national level. References in popular culture to human rights protections in other countries—like suspects ‘pleading the fifth’ in American crime shows—may also lead many Australians to believe we have a similar document here (Ryan 2017). However, no such document exists at the federal level in Australia. Constitution Australia’s founding legal document

Without constitutional protection for human rights, it is even more crucial that the legal system protects human rights in other ways. Imagine living in a country where police could knock down your door or listen to your phone conversations at any time. Or where members of government could commit murder and get away with it. Having a legal system with established rules protects us from these abuses of power. This is an important aspect of the rule of law, which we look at in Chapter 4. Rule of law the principle that countries should be ruled by laws to avoid abuses of power Unfortunately, there are still groups in our society who experience a lack of human rights on a daily basis, including Indigenous Australians, people who are homeless and people with a physical or intellectual disability. The legal status of human rights in Australia, and the possibilities for ensuring greater protection, are explored in Chapter 6. A major concern is that the legal system can entrench Indigenous disadvantage. Indigenous people represent around 3 per cent of the Australian population, but 27 per cent of the national prison population (Australian Law Reform Commission 2017). Such stark gaps are also reflected in Indigenous health, education and employment. The Australian government’s Close the Gap campaign aims to reduce these differences in opportunities and outcomes, but much more work needs to be done (Australian Government 2018). To fully understand the disadvantage experienced by Indigenous Australians, it is critical to understand how Australia was settled by Britain and how our system of law and government took shape. The doctrine of terra nullius, which held that Australia was a ‘land unoccupied’, was overturned in 1992 in the landmark Mabo decision. However, Australian courts do not recognise Indigenous sovereignty and, in its current form, the Constitution does not even mention Aboriginal or Torres Strait Islander peoples. These issues are explored in Chapter 7. From all these examples, it should be clear that law is not simply a list of rules to be learned. Law is a fundamental part of Australian society. Indeed, we could even say that law plays a significant role in creating the society we live in. It determines when criminals go to prison, how disputes between citizens are resolved and the extent to which vulnerable groups in our society are protected from discrimination. Understanding the law is critical to understanding how Australia ‘works’ as a country and nation. This is an important part of anybody’s education, lawyers and non-lawyers alike. Understanding Australia’s legal system is a fundamental part of being an informed citizen. This does not mean you need to know how to read case law and legislation in detail—that’s a skill that lawyers train many years for and develop over their entire careers. However, after reading this book you will be familiar with legislation and case law, where to find these legal materials, and how to read them. You will understand how laws are made, the importance of the Constitution, and foundational principles like liberalism, democracy, justice and human rights. You will understand the different stages of the criminal justice system, from arrest through to charge, bail, trial and sentencing. And you will understand how the Australian government has developed new laws in response to cybercrime and terrorism. These are two major areas of recent and ongoing law reform in Australia (and the world). Law is also important to you individually as it will impact on your career, regardless of the profession you decide to enter. New laws are proposed by governments, and governments from different political parties can favour very different approaches to your area of employment. Changes to the law might mean that you have new or different powers available to use in your job. You may be required to make decisions in a different way, or your department or agency may be subject to a formal inquiry. Imagine you leave university and begin a new job as a police officer. At first you might work under a government that believes in expanding police powers and limiting suspects’ rights. Following an election, however, you could find yourself working under a very different government—one that protects suspects, limits police powers and launches an inquiry into police corruption. Your experience of working as a police officer would be very different under these two governments. Or imagine you begin a new job as a social worker. At first you might work under a government that increases welfare payments and improves employment opportunities for people with disabilities. Following an election, a new government might divert crucial resources from the people you care for on a daily basis. Changes to the law would reflect these differing approaches to policing and social work. Understanding the politics behind the lawmaking process will help you understand some of the pressures you may experience during your career. Political pressures will become more apparent the higher you rise in your career, but they are becoming increasingly relevant to employees at all levels. It is not the primary aim of this book to explain how law will impact on your employment. However, the chapters that follow will introduce you to Australia’s legal system and explain how the process of making and changing laws

can be influenced by politics, the media, and other groups and interests. This will help you understand the important role that law plays in Australian society. Good luck!

KEY POINTS • Law is a body of rules that regulates people’s behaviour. Law does many important, practical things and it reflects the morals and values of the society we live in. • You don’t need to read case law or legislation in detail to learn about Australia’s legal system. Understanding Australia’s legal system will help you understand how Australia ‘works’ as a country and nation. • Law’s changing nature means that governments use it to respond to many different social problems. New and changing laws are also likely to impact on your chosen career.

DISCUSSION QUESTIONS 1. How would you explain the law to somebody who doesn’t know what it is? 2. Which moral issues relevant to the law do you find the most interesting? 3. How might changes to the law impact on your future employment?

Chapter 1 Legislation In this chapter you will learn about: The first major source of law in Australia: legislation Where to find legislation and how to read it The meaning and importance of ‘jurisdiction’ Regulations, also known as secondary or delegated legislation There are two major sources of law in Australia: legislation and case law. These are the places we find the rules that make up the law. This chapter explains the first of these sources: you will learn what legislation is, where to find it and how to read it. An important concept is jurisdiction, meaning the geographical area in which legislation operates. Jurisdiction the area in which laws operate

I. WHAT IS LEGISLATION? Legislation is a document containing rules that have been debated, voted on and approved by a parliament, which means those rules are part of the law of Australia. Parliaments are forums made up of members and senators—the politicians we vote in at election time to make rules on our behalf. This parliamentary system is the defining feature of our democracy (for more on democracy, see Chapter 4). There is a federal parliament in Canberra and a parliament in each state and territory. We refer to the parliament in Canberra as the ‘federal parliament’, but it is actually the division of powers between this central parliament and several state parliaments that is known as a federal system of government (for more on federalism, see Chapter 4). We also refer to the federal parliament as the Commonwealth Parliament because it represents the joining together (‘common wealth’) of the different states into the single country known as Australia. The major workload of Australian parliaments is to debate and approve legislation. Legislation can create new rules, change existing rules or remove rules that should no longer apply. Changing an existing rule is known as amending the law. Removing or revoking a rule is known as repealing a law. Parliament forums made up of elected politicians Members politicians elected to the House of Representatives Senators politicians elected to the Senate Federal parliament the Australian parliament in Canberra Federal system a system of government that has a national government and several state or regional governments Commonwealth Parliament the Australian parliament in Canberra

Amend to change a law Repeal to remove or revoke a law Act/statute a piece of legislation Enact to make a Bill into law A piece of legislation approved by a parliament is also known as an Act or statute. When legislation is approved by a parliament and becomes part of the law of Australia, we say it was enacted. For practical purposes, legislation is a document that tells us what the rules are on a certain topic. Each piece of legislation is named by a title, the year it was enacted and the parliament that enacted it. The parliament that enacted the legislation tells us the jurisdiction; this is the geographical area in which the rules operate. Rules enacted by the federal parliament in Canberra apply all over Australia, whereas rules enacted by a state or territory parliament apply only in that state or territory (otherwise, Queensland could make rules for New South Wales, and vice versa!). For example, the legislation that sets out the criminal law of New South Wales is known as the:

Figure 1.1: Citing legislation

Legislation sets out rules in numbered sections. These sections are divided into subsections, sub-subsections and so on (this is partly why laws are so difficult to read). Subsections are indicated with brackets, numbers, small letters and (if the section is long enough) small roman numerals. For example, section 18 of the Crimes Act 1900 in New South Wales creates the crimes of murder and manslaughter: Section a rule in legislation 18 Murder and Manslaughter Defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. Section 18 has a short title that tells us that this section defines the crimes of murder and manslaughter. Subsection (1)(a) tells us when a person commits the crime of murder. Subsection (1)(b) tells us that an unlawful death (‘homicide’) that does not quality as murder will instead be classified as manslaughter (an unintended or negligent death still worthy of criminal punishment). The maximum penalties for committing murder (life imprisonment) or manslaughter (25 years imprisonment) are set out in different sections of the legislation (sections 19A and 24).

II. HOW IS LEGISLATION MADE? The section above is one small example of the thousands of laws that have been enacted by Australian parliaments. In 2018 alone, the federal parliament passed 170 pieces of legislation, each including many specific rules. This is not to mention the additional workload of the state and territory parliaments. Bill a proposal for legislation For legislation to be enacted, there is a specific process the document must go through. Legislation starts off as a Bill, which is essentially a draft version of the final document. A Bill is a proposal for a new law to be considered and possibly approved by a parliament. Bills are prepared by specially trained lawyers on advice from members of

the government and government agencies. The first step is for the Bill to be introduced into parliament, meaning that it is formally submitted for consideration. Bills can be introduced into the parliament by any member of parliament, though they are usually introduced by the government. The government is the political party that won the majority of seats at the last election (for more on political parties and elections, see Chapter 3). House one of the chambers in a parliament Chamber a large room where legislation is debated Bicameral a parliament with two houses House of Representatives lower house of the federal parliament Lower house another name for the federal House of Representatives Senate the upper house of the federal parliament Upper house another name for the federal Senate Most Australian parliaments have two houses. These are rooms, also known as chambers, where members of parliament meet to debate legislation. A parliament with two houses is known as a bicameral parliament (meaning ‘two chambers’). In a bicameral parliament, both houses debate and approve the same legislation according to the procedure explained below. The two houses of the federal parliament are the House of Representatives (also known as the lower house) and the Senate (also known as the upper house). All Australian states except Queensland also have bicameral legislatures. The state houses of parliament are usually called the Legislative Assembly (lower house) and the Legislative Council (upper house). Members of a Legislative Council are just called members (not senators, as at the federal level). Queensland, the Northern Territory and the Australian Capital Territory have unicameral legislatures, meaning there is only one chamber that debates and approves legislation. Unicameral a parliament with only one chamber

A. Process for approving Bills The reason we refer to a ‘lower’ and ‘upper’ house has to do with the process for approving Bills in parliament. For a Bill to be approved and become law, it must go through three readings in each house of parliament. (In a unicameral legislature, the Bill need only be approved by one house.) Readings are simply the stages of parliamentary debate on the Bill. Each reading is concluded with a vote, and the Bill will only progress to the next stage if a majority of members vote ‘yes’. These debates are supervised by the Speaker, a member of parliament who is chosen to preside over proceedings and ensure that debate is conducted according to the rules of parliament (known as standing orders). The Speaker does not vote on a Bill unless there is a tie, in which case the Speaker has the deciding vote. Reading stage of parliamentary debate on a Bill The first reading is typically a formality where the members of parliament agree to consider the Bill in more detail. More substantial debate happens at the second and third readings. This is where members of parliament debate the sections of the legislation in detail and suggest changes to the rules being proposed. Speaker a member of parliament who is chosen to preside over proceedings and ensure that debate is conducted according to the standing orders Standing orders the procedural rules of parliament Minister senior member of government Second reading speech Minister’s speech in parliament which outlines the purpose of a Bill and what it contains Governor-General the Queen’s representative in Australia

Royal assent when the Governor-General signs a Bill so it becomes law Head of state the highest representative of a sovereign state Bills are usually introduced by senior members of government known as ministers (for more on ministers, see Chapter 3). At the start of the second reading, the relevant minister makes a speech to explain the purpose of the Bill and what it contains. This is called a second reading speech. Second reading speeches are an important part of the parliamentary record and a useful resource for legal research. Typically, a Bill is introduced into the lower house.1 After three readings in the lower house, the Bill is ‘passed up’ to the upper house. After three readings in the upper house, it will become law. For a Bill to become an official ‘Act of Parliament’ and part of Australian law, it must be signed by the Governor-General. This is called granting the Bill royal assent. The Governor-General is the Queen’s representative in Australia. The Queen is our head of state, so all legislation must technically be approved by her. Nowadays this is simply a formality, although it remains an important final stage in the lawmaking process. The entire process for debating and enacting a Bill in parliament can be seen in Figure 1.2. This example refers to the federal House of Representatives and Senate.

B. Committee stage Another important part of this process is the committee stage. Between the second and third readings, a Bill can be referred to a parliamentary committee for more detailed consideration. A parliamentary committee is a group of members or senators who meet separately to examine the Bill in more detail. Some committees are made up of members only from the lower house, some are made up of members only from the upper house, and joint committees have representatives from both. Committee stage stage of parliamentary debate when a Bill is referred to a committee for public consultation and more detailed scrutiny Joint committee a parliamentary committee made up of members from both the House of Representatives and Senate

Figure 1.2: Process of enacting a Bill

To begin the committee stage, parliament refers (sends) the Bill to an appropriate committee (committees have experience looking at different types of legislation). The committee will then advertise a public inquiry and call for written submissions. This is an important part of our democracy, as it gives everyone in Australia the opportunity to contribute to the lawmaking process. You can write to the committee and make your own case as to what you think the law should be. This can be in the form of a letter, or it can be a more substantial written report including detailed research. Typically, many submissions to parliamentary committee inquiries come from government agencies, academics, human rights groups and professional organisations (such as those representing the legal profession). After a committee receives written submissions, it holds public hearings at which some individuals and organisations are invited to give their submissions in person. This is called ‘giving evidence’ to the committee or ‘appearing as a witness’ to a public inquiry, although it is not quite like giving evidence in court. Instead, the committee asks the witness what they think the Bill should contain, and the witness is given a chance to answer these questions and elaborate verbally on their written submission. These hearings are transcribed as part of

Hansard, the public record of parliament. The committee considers these written and oral submissions and presents its recommendations on the Bill to the parliament. It does this by tabling a detailed written report. To table a document means to formally submit it into the parliamentary record (the phrase comes from the act of laying a document on the table at the centre of the parliamentary chamber). The written report provides a basis for further debate in parliament. The committee’s recommendations may or may not be incorporated into the Bill, which progresses through the remainder of the process. Hansard the transcript of parliamentary proceedings Table to formally submit a document into the parliamentary record

III. WHERE CAN I FIND LEGISLATION? A key component of the rule of law is that laws are meant to be publicly available (for more on the rule of law, see Chapter 4). Fortunately, this means that legislation is relatively easy to find online. In Australia, the two main places you should look for legislation are AustLII and the relevant government websites. AustLII the Australasian Legal Information Institute, an online database of legislation and case law AustLII (austlii.edu.au), the Australasian Legal Information Institute, is a comprehensive online database of Australian and New Zealand law that is maintained by academics at the University of New South Wales (UNSW) and the University of Technology Sydney (UTS). AustLII includes legislation from all jurisdictions across Australia, as well as related materials like Bills and explanatory memoranda. Explanatory memorandum document accompanying a Bill that explains what the Bill contains An explanatory memorandum is a document accompanying each Bill that explains what the Bill contains. This helps with interpreting Bills, which can be very technical and difficult to read. You can search and browse AustLII by the title or jurisdiction of legislation or the year it was enacted. The federal, state and territory governments each maintain online databases of legislation and related materials. The federal government website can be found at legislation.gov.au and the state government websites can be found at legislation.qld.gov.au, legislation.nsw.gov.au, legislation.vic.gov.au (and so on). Technically, these government websites are the ‘official’ option, but AustLII is still highly authoritative and is arguably easier to navigate. If you need to reference the law for assignments, AustLII is not the equivalent of Wikipedia or other internet resources, which are possibly unreliable and not typically used in an academic setting. It is highly reliable; you should just make sure when you reference legal materials from AustLII (or a government website) that you cite the relevant legislation or case law and not the website you found it on. These websites are more of a gateway for finding the law than a reference for the law itself. AustLII is particularly helpful if you prefer to browse through a HTML version of legislation, where you can click on and view individual sections. You will also find AustLII easier to copy and paste from if you need to write out legislation in your study notes or for an assignment. The government websites are recommended if you want the most official version, or if you prefer to browse a PDF document that you can save and download to your computer. Consolidated Acts the current and complete version of legislation Numbered Acts legislation as enacted by year When navigating these websites, a few terms will be unfamiliar. Consolidated Acts gives you the current and complete version of legislation, including all changes recently made. Numbered Acts lists legislation enacted by year, including amending legislation that changed the wording of a previous law. Numbered Acts are useful for seeing exactly what changes to the law have been made. You can also simply search for the title, jurisdiction and year of legislation in Google. For most searches, the AustLII and government websites will appear at the top of the results. Try searching for ‘Crimes Act NSW 1900’ and you will see that the first result is from AustLII and the second from the NSW government website.

IV. HOW DO I READ LEGISLATION? When reading legislation, you should take note of its citation and then browse the overall structure, which is organised into parts, divisions and sections. You read the sections of the legislation to work out the elements of the law.

A. Citation The starting point for reading legislation is to take note of the title, year it was enacted and jurisdiction. The title gives an indication of the topic area that the rules address. The possible jurisdictions, indicated in brackets, are as follows: Commonwealth = (Cth) New South Wales = (NSW) Queensland = (Qld) Victoria = (Vic) Western Australia = (WA) South Australia = (SA) Tasmania = (Tas) Northern Territory = (NT) Australian Capital Territory = (ACT) Here are a few examples of legislation from different jurisdictions. What issues do you think this legislation addresses? Which parliament enacted them? You should try searching for these online and see if you can find a copy of the legislation on AustLII or a government website. Corporations Act 2001 (Cth) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Evidence Act 1977 (Qld) Charter of Human Rights and Responsibilities Act 2006 (Vic) Workers Compensation Act 1951 (ACT)

B. Parts, divisions, sections Once you find a piece of legislation, you should browse its overall structure and examine how it is divided into parts and divisions. These are like subheadings that organise the legislation into different categories of rules. Part a group of divisions in legislation Division a group of sections in legislation Parts are the biggest grouping, and they are made up of several divisions. For example, Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) contains rules relating to police search powers. Several divisions within Part 4 relate to searches of people, cars, boats and aircraft. Most legislation begins with an introductory ‘Part 1’ that sets out definitions of key words used in the legislation and other general rules. A division contains the individual sections (or rules), which are numbered sequentially from the beginning to end of the legislation. We normally refer to a section with the letter ‘s’ (as in, s 16 or s 22).

Figure 1.3: Structure of legislation

It may be confusing at first to understand that a section is an individual rule, whereas parts and divisions group these rules into larger ‘chunks’ of the document. Figure 1.3 shows you this structure of legislation—from parts down to divisions, and from divisions down to sections and subsections. Elements the components or ingredients of legal tests

C. Elements of the law Your major task when reading sections of legislation is to work out the elements of the law. These are like the components or ingredients of the law. You can think of them as a series of legal tests or issues. They provide a basis for determining how the rule should be applied to an individual case that comes before a court. Below, section 18 from the Crimes Act 1900 (NSW) is copied out again, but this time the elements of murder as a criminal offence are bolded. 18 Murder and Manslaughter Defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. To do this, we are essentially stripping the extraneous words to come up with a formula for defining murder, so we can work out if a person has committed that crime. Putting the bolded words together into a sentence gives us the following: Act … causing death … was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm. This gets us much closer to a workable definition of murder—something that we could test in court. Rephrasing this slightly gives us the following definition: Murder is an act or omission causing death where the person intended to kill, intended to inflict grievous bodily harm, or was recklessly indifferent to human life. We can also present this in a more logical or mathematical format, so that we can clearly see a ‘list of ingredients’ for the rule. If you are preparing study notes on the law, this technique will help you know exactly how to apply the law to an individual case. For a person to be found guilty of murder, we need: 1. act or omission causing death; AND 2. intent to kill; OR 3. intent to inflict grievous bodily harm; OR 4. reckless indifference to human life. A major part of ‘thinking like a lawyer’ is to identify the elements of laws and to structure those elements logically in a way that allows you to apply the rule to an individual case. For example, you might be given an assignment or exam question with hypothetical facts relating to a possible murder. In order to work out whether the person is guilty, you would need to work through the elements set out above and determine whether each of these requirements is ‘true’ according to the facts.

D. Which legislation? At this point you might be thinking, this is all well and good, but how do I know which legislation and which sections to read? The good news is that, most of the time, your lecturers will tell you which laws to read. They will help you interpret the rules and work out their elements.

In your later years at university, you may need to find legislation for a research essay or similar assignment. For this, you can read academic sources (like books and journal articles) to find the title of a relevant law. Use the title of the legislation to search for it online. If you only know the general topic area, you can browse or search for relevant legislation on AustLII or a government website. Regulations laws made by ministers rather than parliaments Secondary legislation another name for regulations Subordinate legislation another name for regulations Delegated legislation another name for regulations

V. REGULATIONS Before moving on to case law, it is useful to mention regulations. Regulations are laws made by ministers—key members of government—rather than parliaments (for more on ministers, see Chapter 3). Regulations are known as secondary legislation or subordinate legislation because the power to make them is provided by a main or ‘primary’ piece of legislation. Regulations are also known as delegated legislation because parliaments ‘delegate’ (hand over) their power to make those rules to a minister. You will not likely spend much time looking at regulations during your degree. However, many jobs will require you to read, understand and use regulations in practice—particularly if you work for a government department. Regulations provide added detail on what the law means and how it should be used in practice. This is necessary because it is impossible to list every possible detail about a rule in legislation. It is also quicker and easier to change regulations than it is to change laws in parliament. For example, aviation security legislation prohibits us from taking ‘weapons’ through security checkpoints at airports. It is not possible for the legislation to list every possible weapon or to keep this list up-to-date over time, so the Home Affairs Minister maintains a longer list of prohibited weapons (including knives, explosives and so on) in the Aviation Transport Security Regulations 2005 (Cth). We refer to regulations in a similar way to legislation, with a title, year and jurisdiction. The documents are structured in a similar way to legislation, except the numbered rules are known as ‘regulations’ rather than ‘sections’ (for example, we would say ‘regulation 12’ or ‘reg 12’). You can find regulations in a similar way to legislation, by browsing and searching AustLII or the relevant government websites.

KEY POINTS • Legislation is a document containing laws that are enacted by a parliament. Legislation begins as a Bill, which can only become law if it passes through three readings in the lower and upper houses. A Bill becomes an Act of Parliament and part of the law of Australia when it is granted royal assent by the Governor-General. • Legislation contains sections that set out individual rules. These sections are grouped into larger parts and divisions. • You read legislation for definitions of key words and to work out the ‘elements’ (steps or ingredients) required to reason through legal issues. For example, you can read a section of legislation to find out what ‘murder’ means and when a person will be guilty of this crime.

DISCUSSION QUESTIONS 1. Can you find a copy of the Enhancing Online Safety Act 2015 (Cth)? What are the titles of its parts and divisions? What are some of the sections about? 2. What is the process for a Bill to become an Act of Parliament? Can you draw this as a flow chart or diagram? 3. Can you find the minister’s second reading speech for the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth)? Who was the responsible minister? What was the purpose of introducing this law and what major changes did it contain? 4. What is jurisdiction and why is it important to legislation?

_________________ 1 Bills can also begin in the Senate, in which case they begin with three readings in the upper house before being ‘passed down’ to the lower house. The only Bills that cannot be introduced in the Senate are supply Bills, which secure the government’s budget and revenue.

Chapter 2 Case law In this chapter you will learn about: The second major source of law in Australia: case law The hierarchy of courts in Australia The doctrine of precedent, which guides legal reasoning The meaning and importance of ‘jurisdiction’ The second place we find law in Australia is case law. This chapter explains what case law is, where you can find it and how to read it. It explains the hierarchy of courts in Australia and how courts apply the law to new cases through the doctrine of ‘precedent’. The chapter revisits the concept of jurisdiction, meaning not only the geographical area in which laws operate, but also the authority of courts to hear different types of cases. Jurisdiction the area in which laws operate and a court’s authority to hear different types of cases Case a legal dispute between two parties that is resolved by a court Matter another term for a case Party one of the sides in a legal case Crown what we call the government when it is a party in a legal case Defendant in a criminal trial, the person charged with a criminal offence Adversarial system court system where parties oppose each other Judge experienced lawyer who is appointed to the bench to resolve legal disputes

I. WHAT IS CASE LAW? Case law refers to documents issued by courts that contain a judge’s reasoning on an individual case. A case, also known as a matter, is when two parties (like sides or teams) come before the court to resolve a dispute. This could be a couple arguing over custody of a child, or two companies arguing over a business contract. If someone is accused of a crime, the two parties are the government (known as the Crown) and the accused person (known as the defendant). We refer to this as an adversarial system of justice because the two parties are like ‘adversaries’: they are in a sort of contest or competition with each other in the courtroom. Cases are presided over by a judge or magistrate—an experienced lawyer whose job is to act like an umpire or referee and determine how the dispute should be resolved. In more complex cases, there are often multiple judges who hear the same case. Where there are multiple judges, the outcome is determined by whatever a majority of those judges decide. The opinion of a judge who is ‘outvoted’ by the majority is known as a dissenting judgment (or just a dissent).

Dissenting judgment minority opinion of a court Judgment published statement of reasons that explains how and why a judge decided a case in a particular way Common law another name for case law At the end of a case, the judge (or judges) write up a document known as a judgment. A judgment is a statement of reasons that explains how and why the judge decided the case in a particular way. Case law refers to the collection of judgments produced by different courts across Australia. Case law is also called common law—an old British term referring to judgments that were ‘common’ throughout the land. Judgments are crucial for understanding the meaning of words in legislation. For example, in the previous chapter we looked at section 18 of the Crimes Act 1900 (NSW ), which defines the crime of murder. That section tells us a person will be guilty of murder if they cause death while intending to cause death or grievous bodily harm, or acting with reckless indifference to human life. But how do we know what these words actually mean? In the courtroom, the meaning of words like these is debated by lawyers, who make submissions (prepared arguments) to the court, on behalf of their clients, as to how the legislation should be interpreted. A major part of the judge’s role is to determine what the relevant legal words and phrases mean so the dispute can be resolved. The judge’s interpretation and reasoning, which are later published in a judgment, become part of the rule set out in legislation. Because of this, reading legislation and case law together is key to understanding the meaning of both. Submission prepared legal argument made in court Held what we say when a court decided something When a judgment says something important, there are particular phrases we use to explain what the judges said. We say that a judge held something rather than said or concluded it. We refer to a judge of a supreme court or the High Court of Australia as ‘Justice’ (or ‘Chief Justice’ if they have been appointed as the most senior judge on that court). We indicate this with a ‘J’ after their last name, ‘JJ’ where there are multiple Justices, and ‘CJ’ if they are a Chief Justice. So, for example, Brennan J held in the famous Mabo decision that terra nullius ‘depended on a discriminatory denigration of indigenous inhabitants’ (you can read more about Mabo in Chapter 7). You can simply say ‘the court’ decided something, although this is a bit less specific. Ideally, you should say which judge or judges concluded which points. However, you can say ‘the High Court held …’ or ‘the ‘Victorian Supreme Court held …’ if you are referring to a general principle outlined by a majority of the judges. So, for example, the High Court in Mabo held that Indigenous clans and groups can make valid claims to native title which assert their rights to traditional ownership over the land. Precedent a principle which says that court cases with similar facts should be decided in the same way

A. Precedent Judgments form the basis of precedent. Precedent is the overarching logic of the legal system. It is a principle that says the rule and reasoning used in a previous judgment should be relied upon when the next similar case comes before the court. In other words, if two similar disputes come before the court, those cases should be decided in the same way. The purpose of this is consistency and fairness: we don’t want a legal system where two parties come before the court and receive a wildly different decision from a similar case the previous week. More specifically, the doctrine of precedent holds that lower courts must apply the decisions of higher courts in previous similar cases. We refer to this as binding precedent, meaning that lower courts are required to use the reasoning from higher courts: there is no option as to whether they do so or not. The technical term for the doctrine of precedent is stare decisis, which is Latin for ‘to stand by things decided’. Binding precedent when previous judgments must be followed by lower courts Stare decisis the Latin name for the doctrine of precedent (means ‘to stand by things decided’)

B. Court hierarchy By lower and higher courts, we mean the different levels of court in Australia’s legal system. Figure 2.1 sets out the

hierarchy of courts in Australia:

Figure 2.1: Court hierarchy

The hierarchy begins at the bottom with local courts, which are also known as magistrates courts. There are many of these in each state and they hear the vast majority of cases. In Queensland, for example, there are 130 magistrates courts and they hear about 95 per cent of the state’s case load (Queensland Courts 2017). Local courts hear disputes involving small amounts of money and minor offences like shoplifting and drink driving. Local court the lowest type of court on the court hierarchy Minor cases like these are presided over by a magistrate, who determines how the dispute should be resolved or whether the person is guilty. A magistrate is like a judge of the local court. Magistrates can hear cases involving more serious crimes, but they only hear these briefly before ‘committing’ them to a higher court (for more on committal hearings, see Chapter 9). Next are the district courts—these are like regional courts. They are fewer in number than local courts but there are still many throughout a state (in Queensland, there are 32 district courts). District courts hear cases involving larger amounts of money and more serious crimes such as robbery, rape and fraud. District courts are presided over by a judge rather than a magistrate. In the district court, a jury (not the judge) determines whether a person is guilty of a crime. Magistrate judge in a local court District court courts on the second tier of the court hierarchy, which hear most serious criminal cases and disputes involving large amounts of money Jury a panel of (usually twelve) members of the public who hear a case and reach a verdict on the basis of the facts Supreme court the highest court in a state Appeal to challenge a decision in a higher court High Court the highest court in Australia The highest court in each state is a supreme court. In a supreme court, judges hear cases involving large amounts of money and very serious crimes such as murder and drug trafficking. Supreme courts also hear appeals on legal issues from the district court. An appeal happens where there is disagreement about how a case was decided in a lower court and the case is taken to a higher court to resolve the issue (you can read more about appeals in Chapter 10). Finally, the High Court of Australia sits at the top of the hierarchy. As its name suggests, the High Court is the highest court in Australia. It does not hear disputes over money or prosecutions for criminal offences in the same way as the other courts. Rather, it hears appeals on matters of public importance and other complex legal issues that the supreme courts have not been able to resolve (for more on the High Court, see Chapter 6). The court hierarchy means that local courts must follow decisions by all higher courts, district courts must follow decisions by supreme courts and the High Court, and supreme courts must follow decisions by the High Court. In theory, the High Court is not bound to follow even its own previous decisions, although it typically does so in practice unless there is good reason to overrule itself (Harding & Malkin 2010).

C. Jurisdiction The idea of jurisdiction, meaning the geographical area in which laws operate, is important to understanding how precedent and the court hierarchy interact. Judgments from the High Court apply everywhere in Australia, but judgments from one state do not apply in any other state (even if they are from a supreme court). However, courts in one state are allowed to consider judgments from other states when making their decisions. This is known as persuasive precedent (as opposed to binding precedent). They are not required to apply that precedent, but they can draw on it to shape their reasoning. Persuasive precedent when previous judgments may be followed by other courts In relation to courts, jurisdiction has an additional meaning: the power or authority to hear different types of cases. Local courts and district courts have jurisdiction to hear cases with differing levels of seriousness. State supreme courts are organised into a criminal division, which hears cases involving serious crimes, and a civil division, which hears disputes around property, contracts and other financial matters. There is also an appeals division, which hears appeals from lower courts. The High Court has two different types of jurisdiction: original jurisdiction and appellate jurisdiction. Original jurisdiction is the High Court’s power, sourced from the Australian Constitution and the Judiciary Act 1903 (Cth), to hear constitutional matters, matters involving disputes between the states, and matters to which the Commonwealth is a party. Original jurisdiction means the High Court can hear those cases in the first instance (for the first time). Appellate jurisdiction, conferred on the High Court by s 73 of the Constitution, is the High Court’s power to hear appeals from lower courts. The High Court is the highest court in Australia; once it hears an appeal, there is no higher court to appeal to, even if a person disagrees with the outcome. A decision on appeal in the High Court is considered ‘final and conclusive’ (Constitution, s 73). Original jurisdiction the High Court’s power to hear constitutional cases for the first time Appellate jurisdiction a court’s power to hear challenges from lower courts Special leave to appeal permission to have an appeal heard in the High Court Appealing to the High Court requires special leave to appeal, which is like special permission to have the case heard. In deciding whether to hear an appeal, the High Court will consider whether the matter is of public importance, whether it would resolve differences of opinion between state courts, or whether it is in the ‘interests of the administration of justice’. These requirements are set out in s 35A of the Judiciary Act 1903 (Cth). Outside the basic hierarchy above, there are family courts, which hear cases involving divorce and custody, and environmental courts, which hear cases related to land use planning and environmental protection. Courts may be acting outside their jurisdiction if they aim to answer questions on areas of law that do not fall within their mandate. It is important that people bringing cases to court know which court has authority to hear their matter. In this sense, jurisdiction essentially refers to different topic areas in the law. The major distinction is between criminal and civil law (also known as private law). Criminal law relates to prosecutions for criminal offences, whereas civil law relates to private disputes between citizens or companies, often about financial matters. We use distinctions like these to categorise judgments published by the courts. There are criminal law and civil law judgments; within civil law, there are judgments relating to contract law, property law, corporations law, family law, environmental law and other areas. There is also constitutional and administrative law, which fall under the banner of public law or the law of government. In a law degree, these different branches of the law are usually treated as separate course or subject areas. Figure 2.2 shows these major branches of case law in Australia. Contract law relates to agreements between parties (which usually involve the exchange of money for goods or services). Torts relates to negligent and harmful acts that are not considered criminal (for example, a customer might slip and injure themselves in a supermarket because the company’s employees failed to put up a ‘wet floor’ sign). Property law relates to disputes over land, home ownership, auctions and tenancy agreements. Constitutional law involves debates about how to interpret the Constitution and the scope of lawmaking power held by parliaments. Administrative law involves holding members of government accountable for their decisions. Civil law areas of law that involve private disputes between citizens or companies, often about financial

matters Private law another name for civil law Criminal law area of law involving prosecutions for criminal offences Public law the law of government Contract law area of law that relates to binding agreements between two or more parties Torts area of law involving harms that are not criminal Property law area of law that relates to disputes over land, home ownership, auctions and tenancy agreements

Figure 2.2: Major branches of case law

Constitutional law area of law involving debates about how to interpret the Constitution Administrative law area of law in which members of government are held accountable for their decisions

II. WHERE CAN I FIND CASE LAW? You can find case law in a similar way to legislation, as most of it is available online. AustLII allows you to search and browse case law across all Australian courts and jurisdictions. This will serve you well for most purposes. However, your university library will also have a subscription to a legal database (usually LexisNexis). You can find LexisNexis by searching your university library website. LexisNexis a database of case law which is accessible through university libraries LexisNexis can be a bit difficult to navigate at first, but once you get the hang of it you will be able to access the official law reports published by the courts (AustLII, in contrast, sets out the judgments in HTML). You can download these judgments as a PDF file and save them to your computer. Technically, these are the versions that you should be referencing in your assignments. Increasingly, more judgments are available directly on court websites, but this can be patchy. Going directly to court websites can be a useful strategy if you are looking for a summary of a very recent judgment issued by a particular court. Googling case law is less reliable than googling legislation because there are similar case names and judgments from many different stages of proceedings. It is usually too difficult to know from an internet search which judgment is the right one to read. For advice on using databases like LexisNexis, browse your university library website or contact your library staff to see what tutorials or other help are available for students. Library staff are there to help students find information in their online databases and physical collections, but their services are frequently under-recognised and under-used. Library staff are a great source of help, particularly with legal sources which can be hard to find!

III. HOW DO I READ CASE LAW? When reading a judgment, you should first take note of its citation and the catchwords near the top of the judgment.

You read judgments to find two things: (1) the important facts of the case, and (2) the rule and reasoning used in making the decision.

A. Citation The first thing when reading legislation is to take note of the case name, the year it was reported and its law report citation. We refer to judgments like this:

Figure 2.3: Citing case law

The title of the case tells us the names of the two parties involved. In criminal cases, one of the parties is ‘R’, meaning the Crown (the ‘R’ stands for Rex or Regina, which are Latin for ‘king’ and ‘queen’). Next, in brackets, is the year the judgment was published. The remainder of the citation tells us the location of the judgment in the volumes of law reports published by the courts. The first number is the volume number and the final number is the first page number of the judgment. In between these two numbers is the name of the law reports in which the judgment is published. Official law reports for some of the main jurisdictions in Australia include: Commonwealth Law Reports (‘CLR’) Federal Law Reports (‘FLR’) New South Wales Law Reports (‘NSWLR’) Queensland Law Reports (‘QLR’) Victorian Reports (‘VR’) There are many more than these because there are numerous courts and tribunals across Australia. A tribunal is a quasi-court that is technically part of the executive branch of government (for more on the executive, see Chapter 3). Tribunals hear legal disputes on the basis of fact rather than law, and they usually have jurisdiction to hear a specific type of case (like tenancy disputes, challenges to mental health detention, or immigration matters). Tribunal quasi-court that is part of the executive branch of government and usually hears specific types of cases Law report citations do actually refer to physical volumes of judgments. You can find these in large books, which look like old encyclopaedias, in your university library. Nowadays, most people find case law online—but the citation system used for the physical volumes remains useful. In an assignment, it is important to cite case law in the same way that you would normally cite a book, book chapter or academic journal article. Instead of author names and academic journals, legal cases are cited by reference to their party names, law reports and volume numbers. Because of the move to online judgments, case law is increasingly being referenced with medium-neutral citation—a simplified, less official citation that is commonly used for online sources. Medium-neutral citation a simplified, less official citation that is often used for judgments found online

Figure 2.4: Medium-neutral citation

This citation tells us the title, year, court and page number but not the physical volume of law reports. It also uses square brackets rather than rounded parentheses to indicate the year. This is still an acceptable way to reference case law in your assignments. Sometimes it is the only citation available if an official report is yet to be published. Catchwords collection of key words at the start of a judgment that summarise what the case is about

B. Catchwords After looking at the citation, look at the top of the judgment for a series of catchwords. These are a short list of key words that give you an idea of what the case is about. This is particularly helpful if you are researching case law and need to know whether a case is relevant. You can see the catchwords and other features of the Mabo judgment in Figure 2.5.

Figure 2.5: Mabo judgment from AustLII

C. Material facts and ratio There are two main things you read the rest of a judgment for: 1. The important facts of the case 2. The rule and reasoning that should be applied to future cases. The facts of the case are important in order to know if a future case, according to the doctrine of precedent, should lead to a similar result. Reading the facts of a case sounds easy enough but is usually quite difficult. The facts can be long, complicated and spread throughout the judgment. On top of that, the difficult task is to work out which facts were important to the judge’s reasoning and which were not. We refer to this as determining the material facts of the case. In a robbery case, for example, the fact that the accused was 28 years old and owned a small business is not likely to be very important, but the circumstances surrounding the robbery (like whether they used a weapon) will be crucial.

Material facts the most important facts from a judgment that are relevant to precedent Your second major task is to work out the rule and reasoning that should be applied in future cases. When reading case law, it is important to understand that judges are also setting out rules that are part of the laws of Australia. However, the rules in case law are expressed in a long statement of reasons from a judge, rather than neat sections and subsections of legislation. In this respect, reading case law is harder than reading legislation. You need to identify a rule within many pages of text, which are usually very difficult to read. It can be like finding a needle in a haystack. The major task when studying for a law degree is to condense the rules from case law down to briefer statements of the law that can be applied more easily to future cases. The rule from a judgment is known as the ratio decidendi (in Latin, this means ‘the reason for the decision’). We usually shorten this to ratio. The ratio is the key rule and reasoning from a written judgment. Where multiple judges have decided a case, the ratio comprises the principles that a majority of the judges decided. Ratio decidendi the key rule or reasoning from a judgment that must be applied as precedent (means ‘the reason for the decision’) According to the doctrine of precedent, the ratio is technically the thing that lower courts from the same jurisdiction must apply in future cases. For example, a contract law judgment might specify the circumstances in which an agreement between two parties is valid, and when the terms of an agreement will be breached. Those rules would need to be applied by lower courts in the same jurisdiction. In a criminal law judgment, the ratio might specify what it means for a person to ‘consent’ to sexual intercourse for the purposes of a sexual assault charge. A recent example of this is R v Lazarus [2016] NSWCCA 52, in which the NSW Court of Criminal Appeal clarified what it means for an accused to believe a victim is not consenting to intercourse. That case relates to the rape of an 18-year-old girl in an alleyway by the son of the owner of Sydney’s Soho bar (Ackland 2017). The decision in Lazarus must be followed by local and district courts in New South Wales, unless it is later overturned by the High Court. Obiter dicta things a judge says which are not part of the ratio decidendi but may be relevant to a future case (means ‘things said in passing’) Case law the collection of judgments published across Australia A judgment will include many other statements from the judge that were not essential to the decision. These are known as obiter dicta, which is Latin for ‘things said in passing’ and usually shortened to obiter. Obiter are incidental remarks that are not binding as precedent on lower courts but may be useful in future cases. A typical exercise in the early years of law school is to write up a case note that summarises the material facts and ratio of the case. Sometimes these assignments ask students to include a critical commentary of the judge’s decision (for example, by analysing whether the judge’s logical reasoning is sound and whether the judgment is consistent with previous cases). Academic journals publish case notes to update their readers on how case law is developing in different topic areas. You can find case notes in academic journals through your university library website. There are also online resources to help with writing case note assignments. Two good examples can be found on the Monash University library website (Monash University Library 2018) and survivelaw.com, a blog and online community for Australian law students (Survive Law 2014).

KEY POINTS • Case law refers to judgments published by courts. A judgment is a written statement of a judge’s reasons for deciding a case in a particular way. • Case law is important because of the doctrine of precedent. Precedent means that courts must apply the decisions of higher courts in previous similar cases. They do this by applying the ratio decidendi of a previous judgment (the reason for the decision). • In relation to courts, jurisdiction means not only the geographical area in which laws operate but also the power of courts to hear different types of cases.

DISCUSSION QUESTIONS 1. Can you find a copy of Al-Kateb v Godwin (2004) 219 CLR 562? After reading the key words, what do you think the case is about? 2. What are the different levels of courts in the court hierarchy? What types of cases does each court hear? 3. What is the difference between binding and persuasive precedent? 4. What are the two main things you should look for when reading a judgment? 5. What is jurisdiction and why is it important to case law?

Chapter 3 Politics and the media In this chapter you will learn about: How politicians are elected to parliament The different political parties in Australia The importance of the executive government The relationship between government and the media The importance of the media as a check on government power A key premise of this book is that the law is not simply a list of technical rules. Laws reflect our morals and values—whether good or bad—and they are shaped by different groups and interests in society. To fully understand this, it is necessary to delve deeper into Australian politics and the role of the media. Because the media plays a key role in holding our politicians accountable, it is often referred to as the fourth estate. This is an old term referring to the clergy, nobility and commoners as the three estates of the realm, with the media as a fourth estate to hold government accountable. Fourth estate term used to describe the media because of the important role it plays in holding government accountable

I. POLITICS Laws are clearly influenced by different groups and interests because our politicians are the primary lawmakers. It is our elected representatives in parliament who must propose and approve every piece of legislation. Many politicians have law degrees, but parliaments are not expert lawmaking bodies. Rather, they are forums made up of the representatives we vote in at election time to govern our country. Browsing the daily news will show you how frequently our parliamentarians are involved in debates surrounding new legislation and how law can address social problems. This section explains more about the composition of parliaments, how our politicians are elected, the different types of political parties and the influence of the executive government. It will use the example of the federal parliament, but a similar system exists in each state and territory.

A. Houses of parliament The two houses of parliament—the House of Representatives and the Senate—have seats that are occupied by members of political parties. A political party is an organisation with a particular set of beliefs and values, which puts forward its members to be voted into parliament.

1. House of Representatives

The House of Representatives (lower house) has 150 seats. Elections for these seats happen every three years, when the whole chamber is replaced (although many candidates win their seats again). The party that wins the majority of seats in the House of Representatives becomes the government. The leader of that party becomes the Prime Minister—the leader of the government and our nation. The political party with the second highest number of seats is known as the opposition. Government the political party that wins the majority of seats in the House of Representatives Prime Minister the leader of the government Opposition the political party with the second highest number of seats in the House of Representatives Preferential voting voting system used in the House of Representatives and based on candidates winning a 50 per cent majority of the vote from an electorate Electorate a defined geographical area that elects one member to the House of Representatives Members of the House of Representatives are elected to their seats based on a preferential voting system. This is where candidates are elected to their seats based on a 50 per cent majority of the vote from a defined geographical area. Each defined area is known as an electorate. The physical size of electorates differs significantly across Australia but in urban areas they usually cover several large suburbs and each has about 150,000 people voting. According to the Commonwealth Electoral Act 1918 (Cth), all Australians above the age of eighteen are required to cast their vote at a federal election. The federal electoral roll is maintained by the Australian Electoral Commission (AEC). The AEC conducts elections to ensure they are run fairly and in accordance with the law. Australia has a compulsory voting system. Anybody who fails to vote at a federal election must pay a $20 penalty. This is not much, but is enough to ensure that most Australians (more than 90 per cent) turn up to the polling booth (Australian Electoral Commission 2016). There is an argument that compulsory voting is antidemocratic because it forces people to make a choice. However, the High Court has held that compulsory voting only makes you turn up to the polling booth and have your name ticked off the register; it does not force you to choose a political party (Faderson v Bridger (1971) 126 CLR 271). Anybody who does not want to support a party can mark an invalid vote, so the vote will not be counted. Compulsory voting system that penalises people for not voting at elections At election time, preferential voting requires voters to number the candidates for their electorate in order of preference. Voters put ‘1’ in the box for their favoured candidate, and then continue numbering the candidates down to their last choice. Each candidate must receive a number, or the vote is invalid. The final number reached depends on how many candidates are contesting the seat. An example of a House of Representatives ballot paper can be seen in Figure 3.1.

Figure 3.1: Example House of Representatives ballot paper Source: © Commonwealth of Australia 2017

Primary vote the ‘number 1’ vote cast on a ballot paper In preferential voting, a single candidate wins the seat based on whether they reach a majority (50 per cent) of the vote. Often, candidates win a majority based on the primary vote (everyone’s #1 preferences). If this does not happen, the remaining preferences are dealt out (beginning with the #2 preferences) until a candidate wins the seat. This voting system means that the two major political parties (the Labor and Liberal parties) dominate the lower house. This is because most voters number the Labor or Liberal parties as one of their higher preferences. A government that favours two political parties is known as a majoritarian system of government. More about the ideas and beliefs guiding these two parties is explained below. Majoritarian system a system of government dominated by two political parties Senators politicians elected to the Senate

2. Senate The Senate (upper house) has only 76 members. The politicians elected to the Senate are known as senators and there are twelve from each state and two from each territory. Compared to voting for the House of Representatives, Senate voting is more complicated. The sections below explain the staggering of Senate elections, proportional voting, Senate voting procedures, and the reasons why this process is more complicated. You can see a summary of the major differences between the House of Representatives and Senate in Figure 3.2.

Staggered elections At a federal election, only half of the Senate is replaced. At the next federal election, the other half is replaced. This staggering of elections means that senators are elected for six-year terms. So, whereas the government and Prime Minister can change every three years, the Senate is a little more stable.

Figure 3.2: Comparing the House of Representatives and Senate

The exception to this is a double dissolution election. This can happen where the Senate refuses repeatedly to pass a Bill that was approved in the lower house. A double dissolution is a special procedure which helps to break a deadlock when legislation cannot pass through the federal parliament. This is needed because a government that cannot secure the passage of legislation through parliament cannot govern the Australian people effectively. Double dissolution special election in which both houses of parliament are dissolved The procedure for a double dissolution is set out in section 57 of the Constitution. A double dissolution can be called if the Senate refuses to pass a Bill approved by the lower house, then three months pass, then the same Bill is approved by the lower house and rejected by the Senate again (in other words, the Senate refuses the same Bill twice after a three-month ‘cooling off’ period has passed). If this happens, the Prime Minister can ask the GovernorGeneral to dissolve both houses of parliament. This means both houses (including the whole Senate) are wound up and go to a vote of the Australian people. This is the only time the whole Senate is replaced at a federal election. Dissolve to dismiss an entire house of parliament and re-elect its membership Double dissolutions have happened rarely: only seven times in Australia’s history. The most recent was in 2016, when Prime Minister Malcolm Turnbull called for the procedure after the Senate rejected two Bills relating to employment conditions and accountability in the building and construction industry (Webster 2016). This was the first time the procedure had been used in nearly 30 years, since 1987. Very rarely, if there is still a deadlock after a double dissolution, the Governor-General can call for a joint sitting of both houses of parliament. This has only happened once, in 1974. Proportional voting voting system used in the Senate, based on candidates reaching a quota Quota defined percentage of a vote

Proportional voting The Senate relies on a different voting system known as proportional voting. In a proportional voting system, candidates are elected to their seats based on whether they reach a required quota (percentage or proportion) of the vote, rather than a 50 per cent majority. The precise quota depends on the number of voters and senators to be elected, but it is normally around 14.3 per cent (Morey 2013). Candidates are elected to the Senate on a smaller proportion of the vote because several candidates are elected for each state and territory. At each federal election, the people of Queensland vote in six people for their state, the people of New South Wales vote in six people for their state, and so on (remember, only half the Senate is elected each time). These seats are divided between the different political parties according to the proportion of votes they receive. As with preferential voting, voting for the Senate requires voters to number candidates in order of preference. Candidates who reach the required quota based on the primary vote (everyone’s #1 preferences) are automatically elected. The remaining preferences are then dealt out until the right number of seats are filled. You can read more

about how to vote on a Senate ballot form below. The allocation of preferences for the Senate is more mathematically complicated than in preferential voting because it involves transferring surplus votes at a reduced value from any candidates who exceed the quota. For example, imagine a candidate named Alex receives 30 per cent of the vote in a state, but she only needs 14 per cent of the vote to reach the quota and win a seat. In that case, 16 per cent of the vote is surplus and unnecessary to get her elected. If those votes go to Alex, they would be wasted. To avoid this, the 16 per cent needs to be allocated to other candidates, according to those voters’ preferences. But there’s a problem: how do we decide which of Alex’s votes got her elected, and which were extra? The solution is for all of Alex’s votes to be transferred to other candidates, but at a reduced percentage of their value. This transfer value is essentially a ratio of the surplus to total votes. Proportional voting is complex and it is okay if you do not understand this fully. If you want to read more about proportional voting and quotas, you can visit the Australian Electoral Commission (2017) and Australian Academy of Science (2016) websites. Transfer value reduced value of an excess Senate vote above the quota when redistributed to other candidates Minor parties political parties other than the Labor and Liberal parties Independent an elected representative who is not a member of a political party The important thing to remember is that proportional voting gives a much greater opportunity for minor parties (political parties other than the Labor and Liberal parties) and independents (those not belonging to any political party) to win seats in parliament. This is because candidates need only reach a much smaller quota—not a 50 per cent majority. As explained below, this process is designed to ensure that the Senate represents a diversity of voting interests, and not just those of the two major parties.

Senate voting procedures Voting in multiple candidates for each state and territory means that the Senate ballot paper is much larger and more complicated. To account for this, it has a dividing horizontal line: above the line is a list of political parties, and below the line is a much longer list of candidates. You can see a sample Senate ballot paper in Figure 3.3. Above the line phrase used to describe Senate voting where voters indicate their preference of political parties Until recently, there were two very different ways to register a vote: a simple way and a hard way. The simple way was to vote above the line by placing a number 1 in front of your favoured party and not filling out the rest of the form. The hard way was to vote below the line by numbering every single candidate in order of preference. Given that Senate forms can be more than a metre long and have more than 100 candidates (many of them unknown to voters) this was a substantial task.

Figure 3.3: Sample Senate ballot paper Source: © Commonwealth of Australia 2017

Below the line phrase used to describe Senate voting where voters indicate their preference of candidates Preference deals negotiated agreements between political parties to allocate their preferences other than the primary vote Voting above the line saved voters this extra work, but it had a hidden problem. By placing a #1 next to a single political party, voters were effectively filling out the rest of the form—but this was done according to preference deals negotiated between the parties behind the scenes. A preference deal is where a party that receives a #1 vote agrees to allocate the rest of that voter’s preferences to other parties. In other words, the political parties get to determine how a voter’s preferences are allocated. For example, if a voter put a #1 next to the Labor Party above the line, they would be allocating the rest of their preferences (#2, #3, etc) to the Greens and other political parties without even knowing it. Determined voters could find out how each party had agreed to allocate their preferences, but this required trawling through complicated forms on the AEC website. Most voters simply remained unaware of how their preferences were being allocated (or even the fact that they were being allocated). Preference deals can be valuable to relatively unknown candidates, if they can get a more popular party to allocate preferences to them. This strategy caused substantial controversy in the 2013 federal election, when several independent candidates were elected after receiving a tiny proportion of the primary vote. Those candidates were criticised for having a lack of relevant experience and very limited understanding of the important issues facing the nation. Despite this, they were able to reach the quota by gaining preference votes from other, more popular parties. One of these independents was Ricky Muir, who represented the Australian Motoring Enthusiast Party. Muir was elected after receiving 0.51 per cent of the primary vote (Thomsen 2016). In a televised interview, Muir was clearly confused and, despite holding the balance of power (one of the deciding votes) in the Senate, failed to convey any understanding of important issues like climate change or immigration (Browne & Cox 2014). Senate voting procedures were changed in advance of the 2016 election to stop this from happening again (Thomsen 2016). We still vote either ‘above the line’ or ‘below the line’, but now these two options are not so different. You can vote ‘above the line’ by numbering at least six political parties in order of preference. You can vote ‘below the line’ by numbering at least twelve candidates (rather than all of them). The current procedure reduces the dangers of an ‘all-or-nothing’ approach, where voters must choose between putting one number above the line (and having all their preferences allocated for them) or filling out the entire form. It also reduces the burden on voters who want to vote below the line, as they are only required to number twelve candidates. However, this improved system is not perfect: political parties still make deals to allocate voters’ remaining preferences, and it is still possible to win a Senate seat with a small proportion of the primary vote.

Benefits of Senate elections Proportional voting and the staggering of elections make Senate voting very complicated. However, this all serves a very important function. Because the Senate relies on a different election cycle and voting system, it is very uncommon for the same political party to have a majority of seats in both houses of parliament. This means the Senate acts as an important check on government power. Remember the lawmaking procedure from Chapter 1? A Bill needs to be approved by both houses of parliament according to a majority of votes in each. If a different political party has a majority of seats in the Senate, proposals for new legislation will not automatically be approved by the upper house. This is an important feature of our political system which contributes to the accountability of government. On the rare occasion that a government does have a majority in both houses of parliament, it can essentially approve every Bill it introduces, without needing to secure the support of other parties. This happened with the Howard government between 2004 and 2007. During that time, several controversial laws were enacted, including the WorkChoices legislation, which made it easier for employers to dismiss their workers, and many new counterterrorism laws (for more on Australia’s counterterrorism laws, see Chapter 12). More commonly, approving legislation in the Senate depends on a difficult process of negotiation and compromise between the government, the opposition, minor parties and independents. This is particularly the case where minor parties and independents hold the balance of power. This means the deciding vote is held by a mixture of minor parties and independents because neither major party won a majority of seats. When the balance of power is held by minor parties and independents, this allows more diverse voices to influence the laws that are enacted. However, it also makes the process of enacting laws more complicated, and it gives minor parties and independents a level of power that is disproportionate to the vote they receive from the population.

Balance of power the deciding vote in a house of parliament (usually in the Senate)

B. Political parties Nearly all members of parliament are members of a political party. A political party is an organisation with a particular set of ideas and beliefs that puts forward its members for election to parliament. Some members of parliament are independents, which means they sit as individuals and not as representatives of a political party. Liberal Party a centre-right political party and one of two major political parties in Australia Labor Party a centre-left political party and one of two major political parties in Australia Left-wing to have political views that are more progressive Right-wing to have political views that are more traditional and conservative Progressive willing to accept significant social or economic change Conservative reluctant to accept significant social or economic change In Australia, the two main political parties are the Liberal Party and the Labor Party. To understand the beliefs of these and other political parties, as well as the different groupings within them, it is helpful to understand what it means to be ‘left-wing’ or ‘right-wing’. This is an overly simple distinction, but left-wing generally means that a person is more progressive, whereas right-wing generally means that a person is more traditional and conservative. Being progressive or conservative refers to how much social or economic change a person is willing to accept in a short amount of time. People with left-wing views tend to promote equality, human rights and the interests of minority and disadvantaged groups—even if this costs the economy—whereas people with right-wing views tend to stress the importance of managing the economy well, protecting our national identity and maintaining traditional family values. These are crude distinctions, as people hold differing views on a range of issues, but you will likely know some friends, family members or politicians who fall into either of the descriptions above. Immigration is an area that tends to spark vigorous debate on these grounds. Should we be protecting the rights of refugees by welcoming them into our country (left-wing) or protecting our national identity by restricting immigration (right-wing)? This is an overly simplistic picture of a very complex issue, but is just designed to show you that political views can differ strongly on whether governments should embrace change or maintain the status quo. Being in the ‘centre’ (also known as being a centrist) means that a person favours a moderate middle ground between left- and right-wing extremes. They might have left-wing views on some issues, right-wing views on others, and will generally aim for a considered compromise between these two positions. Centrist a person who falls between left- and right-wing political views The major political parties in Australia are explained below. Because these parties have different beliefs and values, parliaments and the laws they enact can look very different depending on who is voted in at election time.

1. Labor Party The Labor Party is one of two major political parties in Australia. It is typically considered centre-left, meaning its views are generally left-wing but also fairly moderate. Another way to describe this is to say that the party has some members with quite strong left-wing views, while others are centrists. There is also a recognised ‘right faction’ which is more conservative. A faction is a semi-organised grouping within a political party whose members tend to strategise and vote together because they have a common view for how that party should advance its agenda. The presence of factions within the two major parties mean it is too difficult to cate-gorise them as simply ‘left-wing’ or ‘right-wing’. Increasingly, the views of the major parties coincide on major issues like immigration and counterterrorism, which makes the distinction even less helpful. However, those concepts can help us understand when the views of the two major parties do contrast, as well as the different factions within them. Faction a semi-organised grouping within a political party whose members tend to strategise and vote together because they are ideologically aligned

The Labor Party is the oldest political party in Australia. It was founded during the first federal parliament in 1901, when several labour parties from the colonies joined to form a federal Labor Party.2 Those labour parties, which formed in the 1890s, campaigned for the rights of workers in early Australia. That tradition continues today, as Labor maintains close ties to the trade union movement (Markey 2016). In addition to supporting workers’ rights, Labor typically campaigns for elections by supporting increased funding for health and education. It seeks to distinguish itself from the Liberal Party, which traditionally supports businesses more than workers, by aiming to ‘make the top end of town pay their fair share’ (Australian Labor Party 2019). Labor’s longest-serving Prime Minister was Bob Hawke, who held the office from 1983 to 1991. One of its most famous leaders was Gough Whitlam, who served as Prime Minister from 1972 to 1975 and was famously dismissed by the Governor-General, Sir John Kerr (Pollard 2017). In 2010, Labor Prime Minister Kevin Rudd was ousted from the prime ministership after a successful challenge to the party leadership by Julia Gillard. In 2013, Rudd contested Gillard’s leadership and reclaimed the office, before losing the federal election to Tony Abbott’s Liberal Party. These ‘Rudd–Gillard–Rudd’ years served as a reminder that the Australian public votes in a political party at election time, and not an individual candidate (as in a presidential election). The Prime Minister is simply the leader of the party that wins the majority of seats in the lower house. The leader of that party can change, even while they are serving as Prime Minister. Traditionally, a challenge to a party’s leadership (called a leadership spill by the media) was decided by a majority vote of elected party members. In recent years, both the Labor and Liberal parties have put in place additional hurdles to reduce the chance of leadership changes like this happening again (Murphy & Karp 2018). Leadership spill when a vote is held to contest the leadership of a political party

2. Liberal Party The Liberal Party is the other major political party in Australia. It was founded in 1944, though its roots go back to anti-Labor groups in the early Australian parliaments. The two longest-serving Liberal Prime Ministers were Sir Robert Menzies (1939–1941, 1949–1966) and John Howard (1996–2007). In 2018, Malcolm Turnbull was removed as a sitting Prime Minister after a successful leadership challenge. The Liberal Party is typically considered centre-right, meaning some of its members are more right-wing and others are more centrist. The party’s philosophy is usually described as a blend of social conservatism and economic liberalism (Melleuish 2018). This means that it favours traditional values and institutions and a free economic market. Some Liberal Party politicians see themselves as being more closely aligned with the classical liberal tradition, which supports individual rights such as freedom of speech (you can read more about the philosophy of liberalism in Chapter 4). This has generated tensions between party members, factions and leaders as to whether the party is more liberal or conservative (Hutchens 2017). The Liberal Party has a tradition of supporting businesses and, like other political parties in Australia, has many major business donors (Knaus & Evershed 2018). It favours small government, which is the idea that governments should interfere minimally in the lives of their citizens. This ideally means lower taxes, less bureaucratic ‘red tape’ and greater economic competition. Small government the idea that governments should interfere minimally in business and the lives of their citizens The Liberal Party is very strong on counterterrorism and border protection. Most of Australia’s controversial counterterrorism laws were introduced by the Howard government between 2002 and 2007 (Williams 2013). The party’s recent immigration policy has been dominated by Operation Sovereign Borders, a security operation to stop people smuggling, which is based on the slogan ‘Stop the Boats’ (Liberal Party of Australia 2018). National Party centre-right country party that traditionally forms a coalition with the Liberal Party Coalition agreement between political parties to vote together in parliament

3. National Party When we refer to a ‘Liberal government’, we are usually referring to a coalition of the Liberal Party and National

Party. A coalition is an alliance where two or more political parties decide to vote together in parliament. This means their seats can effectively be counted together at election time, boosting the numbers of both parties. The alliance between the Liberal and National parties is strong enough that we often just refer to ‘the Coalition’, meaning both parties combined. When the Coalition has a majority of seats in the lower house, the leader of the Liberal Party is the Prime Minister and the leader of the National Party is the Deputy Prime Minister. The Liberal and National parties vote together because they are both centre-right on the political spectrum, but they have very different voter bases and different priorities when campaigning for elections. The National Party began as the Australian Country Party in 1920 and it continues to campaign for the rights of rural and regional communities. It advocates for stronger regional economies, including support for Australian farmers and more jobs and growth outside metropolitan areas.

4. The Greens The Australian Greens (commonly called the Greens) are considered a ‘minor’ party compared to the Labor Party and Liberal–National Coalition, as they have fewer members and win a much smaller number of seats in parliament. However, the Greens are an increasingly important player in Australian politics due to growing disaffection with the two major parties (Hull 2018). In the 2016 federal election, the Greens won one seat in the lower house and nine seats in the Senate (Hobbett 2016). Greens an influential minor party that advocates for the protection of the environment Green politics political views that typically support environmental conservation, renewable energy, animal rights, non-violence and social justice The Greens party was founded in 1992 when many different ‘green’ groups joined together at the federal level. Green politics refers to groups that typically support environmental conservation, renewable energy, animal rights, non-violence and social justice. The first federal leader of the Australian Greens was Dr Bob Brown. Brown led one of Australia’s most significant environmental campaigns, against the building of a dam that would have flooded Tasmania’s Franklin River (Brown 2014).

5. Minor parties and independents In addition to the Labor and Liberal parties, the National Party and the Greens, many other minor parties and independent candidates contest seats at federal elections. This contributes to a diversity of voices and voting interests in parliament. However, minor parties and independents can have quite specific and sometimes controversial agendas. This can make negotiations to enact laws more complex if minor parties and independents wield the balance of power in the Senate. The One Nation Party, led by Pauline Hanson, is a right-wing party that is strongly opposed to immigration. The party was founded in 1997 and, after a long break from politics, Hanson returned to win four Senate seats in the 2016 election. In 2017, Hanson caused significant controversy after wearing a burqa in the federal Senate (Riordan 2017). In the 2013 federal election, billionaire mining magnate Clive Palmer won a seat in the lower house and three Senate seats for the Palmer United Party (PUP). Two of those senators quickly resigned from the party to become independents and the party disbanded as a result (Stevenson 2018). Other independents are more centrist, and some can have very long careers in parliament. Andrew Wilkie has occupied the seat of Denison (around Hobart) since 2010. Wilkie is a former intelligence whistleblower who opposed the Iraq war. He has fought for increased hospital funding, the legal changes that supported same-sex marriage and reforms to poker machines to address problem gambling. Whistleblower member of government or other organisation who exposes wrongdoing Executive branch of government which administers (uses) laws in practice; includes the Queen, GovernorGeneral, Prime Minister, ministers and government departments Minister senior member of government who is given responsibility over a specific policy area

C. Executive government

The group with the greatest influence in parliament is not a political party but rather part of a political party. The executive government refers to the senior members of the party that holds a majority of seats in the lower house. This includes the Prime Minister (the leader of that party) and other senior members of government known as ministers. Ministers are appointed by the Governor-General, on the advice of the Prime Minister, to take charge of government policy in different topic areas. These topic areas are known as portfolios. Portfolio an area of government policy that is given to a minister Cabinet meeting of senior ministers with responsibility for important portfolios such as defence, finance and education Collective responsibility principle that says members of Cabinet must publicly support the policy positions reached by Cabinet as a whole Key ministers include the Treasurer and Finance Minister (who look after Australia’s budget and finances), the Attorney-General (who looks after law and justice), the Minister for Foreign Affairs (who looks after Australia’s relations with other countries) and the Ministers for Defence, Education, Health and the Environment. These senior ministers are known collectively as Cabinet. Cabinet meets frequently to determine the government’s position on different issues. The principle of collective responsibility means that all Cabinet ministers must publicly support the position agreed by the whole group, even if they personally disagree with it. For this reason, Cabinet discussions are kept strictly confidential. There are other ministers in areas of lower priority who are not members of Cabinet. Cabinet ministers have a huge influence on the laws that are introduced in parliament. It is typically Cabinet ministers who introduce Bills in their respective policy areas (such as defence, health or education). This means it is essentially the political agenda of each successive Cabinet that becomes the law of Australia (whether this be new criminal laws, improved rights for people with a disability, support for same-sex marriage, or laws on any other topic). This is the main reason why a change in government at a federal election is such a major event. Technically, the executive government is a much broader concept than just Cabinet. It refers to the entire branch of government that ‘administers’ (uses) legislation in practice (you can read more about this in Chapter 4). The executive branch of government extends up to the Governor-General and the Queen, and down to every employee working in a government department (i.e., the public service). You can see a list of who makes up the executive government in Figure 3.4.

Figure 3.4: The executive branch of government

In practice, however, it is Cabinet that has the greatest impact on the laws that are enacted in Australia. The Governor-General (as the Queen’s representative) essentially plays a symbolic role in signing off on legislation. The public service plays no direct role and is restricted to using the laws in practice.

D. Your vote matters The democratic choice we exercise by voting at election time matters. It matters because the political party that is elected to government sets the agenda for which new laws will be enacted, which existing laws will be amended and which laws will be repealed. It matters because a Senate with a different majority to the lower house acts as a critical check on government power. After an election, you can influence the lawmaking process by making submissions to parliamentary committee inquiries or writing to your local member of parliament. Much of the legislation from the federal parliament might not impact you directly—but you can have your say when something does. For example, Australia’s metadata laws raise important questions about when government agencies should be able to access data about our phone calls and SMS messages from telecommunications providers like Telstra and Optus. You can read more about these laws in

Chapter 12.

II. THE MEDIA To fully understand lawmaking, parliament and politics, it is also necessary to consider the role of the media in Australian society. The media refers to the group of broadcasting and publishing companies that communicate information to the general public. This includes print media (such as newspapers), radio and television. Increasingly, we all access media via the internet and social media platforms such as Twitter and Facebook. Media group of broadcasting and publishing companies that communicate information to the general public We learn about most public events in Australia and around the world from large media companies. In Australia, major media companies include the Australian Broadcasting Corporation (ABC), Special Broadcasting Service (SBS), Sky News and many different newspapers owned by Fairfax Media and News Corp. These companies are constantly reporting on Australian politics, including possible changes to the law. This is how we understand what the government is doing on a daily basis. Importantly, the media also has enormous power to shape public opinion on what the government is doing. This is particularly important around election time, when public opinion can directly influence the composition of parliament. Because of this dynamic, government and media have a close but often tense relationship. The government relies on the media to tell the general public about its proposals and policies. There is a press gallery with more than 250 journalists, editors, camera operators and other media staff who work in Parliament House for this purpose (Federal Parliamentary Press Gallery 2019). However, the media is not simply a mouthpiece for government. The media ultimately has the final say on what is reported, and how it is reported. Press gallery group of more than 250 journalists and other media staff who work in Parliament House The media also plays a crucial role in holding government accountable for the things it does wrong. This role is particularly true of the ABC (Australian Broadcasting Corporation) as our national broadcaster. Section 6 of the Australian Broadcasting Corporation Act 1983 (Cth) sets out the ABC charter. The charter explains that the ABC’s functions are to provide a high standard of journalism that is independent of government. The ABC also has a responsibility to broadcast programs of an educational nature that reflect our cultural diversity and encourage awareness of Australia overseas. The ABC and other media companies hold government accountable by interviewing senior members of government and questioning them about their proposed changes to law and policy. The ABC, in particular, broadcasts important public affairs programs like Q&A, a televised forum in which members of the public can ask politicians questions directly. Q&A functions like a ‘people’s parliament’. Because of this role, the ABC has often been accused of bias against the government, and particularly the Liberal Party (McIlroy 2018). In 2015, former Prime Minister Tony Abbott called Q&A a ‘lefty lynch mob’ (Griffiths 2015), meaning he believes that the show’s purpose is largely to grill Liberal Party politicians and embarrass them on air. Funding cuts to the ABC under the Abbott and Turnbull governments have turned this into something of an ongoing conflict between the Liberal Party and the national broadcaster (Meade & Keneally 2018). At the other end of the political spectrum, News Corp is often accused of bias towards the Liberal Party and against Labor. News Corp is a very large media company associated with the Murdoch family. It owns and operates Sky News, The Australian, The Daily Telegraph, The Courier Mail and many other newspapers and magazines. In the lead-up to the 2013 federal election, News Corp ran large headlines with slogans like ‘Kick This Mob Out!’, urging Australians to vote against Labor in the upcoming election (Greenslade 2013). In this media environment, two things are crucial. The first is that media companies remain free and independent of government. A free press is recognised by the United Nations as a core aspect of a healthy, functioning democracy (Human Rights Committee 2011). This includes an ongoing role for an independent national broadcaster, funded and supported by the government. The second thing is that we must be able to access information from a diversity of sources, so that a balance of views and opinions can be achieved. No single company should be able to own too large a share of the media, or public opinion could be swayed too far one way. There are important laws governing media ownership in Australia, but these have recently been weakened. After

recent changes to those laws, Fairfax Media (which owns The Sydney Morning Herald, The Age and other major newspapers) was purchased by Channel Nine (a commercial free-to-air network). This is concerning for freedom of the press and the quality of media reporting in Australia because it suggests that advertising and other commercial needs will reduce the time and funding available for rigorous investigative journalism (Carson 2018). Finally, social media has become a core aspect of politics and elections. Most politicians now have a Twitter account or Facebook page, and these can be used to great effect to communicate with the people, particularly around election time. A major example of this was former US President Barack Obama’s 2008 election campaign, which relied heavily on social media (Freking 2017). Obama still has more than 100 million followers on Twitter. More recently, the election of Donald Trump to the US presidency has caused controversy for two reasons: the role that Facebook data may have played in allowing Trump to sway public opinion, and the role that Russia allegedly played by ‘trolling’ Facebook with divisive content (Bump 2018). Given that many elections are decided by very small percentages of the overall vote, social media can play a significant role in determining who our next political leaders will be.

KEY POINTS • The seats in both houses of parliament are occupied by members of political parties, who are voted in at election time. A different voting system in the Senate, known as proportional voting, gives a greater opportunity for minor parties and independent candidates to be elected. • Ministers are senior members of the government who have responsibility over different policy areas, such as defence, health and education. Ministers are part of the executive branch of government, and they have a significant influence on which laws are enacted. • The media plays a crucial role in reporting on government activity and holding politicians accountable. Media companies in Australia are frequently accused of bias, which confirms the need for a free press and diverse media ownership.

DISCUSSION QUESTIONS 1. Would you describe yourself as having left-wing or right-wing views? What about your friends and family? 2. Do you think that minor parties and independents should be able to hold the balance of power (deciding vote) in the Senate? 3. How does the Senate act as an important check on government power? 4. What is the executive branch of government, and why is it important to lawmaking in Australia? 5. Which Australian politicians can you find on Twitter and Facebook? How many followers do they have? How do their profiles compare to overseas political leaders, like the US President and the British Prime Minister? _________________ 2 The spelling of Labor was changed to the American spelling in 1912 due to the influence of the labor movement in the United States.

Chapter 4 Founding principles In this chapter you will learn about: Liberalism Democracy Federalism Separation of powers Rule of law Australia’s system of law and government is built on many important principles. In this chapter we examine five of these: liberalism, democracy, federalism, the separation of powers and the rule of law. These are all important guiding concepts that determined how our legal system was designed. This does not mean the legal system always succeeds in upholding these ideals. We should think critically about the law by asking whether Australia’s legal system lives up to these founding principles. Liberal democracy a system of government that combines principles of liberalism and democracy Liberalism a body of political thought that emphasises freedom of the individual from state interference Enlightenment the historical period following the Middle Ages and Renaissance which saw a move away from religious thinking towards scientific and rational thinking

I. LIBERALISM Australia is a liberal democracy. This means it is a democracy that is founded on the principles of liberalism. Liberalism is a political philosophy that emphasises individual freedom from governments. It has its roots in seventeenth-century English and French philosophy, during a historical period known as the Enlightenment. The Enlightenment was the period following the Middle Ages and Renaissance which saw a move away from religious thinking towards reason and science. This involved a growing focus on ideas of liberty, constitutional government and the separation of church and state. The British philosopher John Locke, who wrote Two Treatises on Government in 1689, is considered one of the founding fathers of liberalism. Other famous liberal philosophers include Jean-Jacques Rousseau (who published The Social Contract in 1762) and John Stuart Mill (who published On Liberty in 1859). The liberal philosophers believed that individuals have important rights and freedoms—like those to private property, liberty and free speech—and that these should be protected from interference by the state. (The ‘state’ is the term used in political philosophy to refer to the government.) They argued that the role of the state should be limited by law, and that people should be free to act however they like—unless their actions would harm others. This is known as the harm principle (Mill 1859) and is a key idea underlying the criminal law. Criminal laws specify the actions that we cannot do, but otherwise we are free to do anything else that pleases us.

State the term used in political philosophy to refer to the government Harm principle the idea that law should prohibit conduct only if it causes harm to others Social contract the hypothetical agreement we enter into as citizens living under a government Anarchy a state of disordered conflict State of nature term used by Jean-Jacques Rousseau to describe a state of anarchy before we lived under governments Sovereign a government that has power over all its citizens Civil liberties the individual rights and freedoms we gain as citizens living under a government Rousseau (1762) sourced these rights and freedoms in the idea of the social contract. The social contract is the hypothetical agreement that we all enter into as citizens living under a government. Rather than living in anarchy (a state of disordered conflict Rousseau called the state of nature) we agree to live together under a sovereign, meaning a government that has power over all its citizens. This involves a trade-off: we lose the power to do absolutely anything we like in agreeing to abide by the law of the land. However, in return we gain the protection of the sovereign from possible harm caused by others. As part of this pact, the sovereign also agrees not to interfere with our core rights and freedoms unless we seek to harm others. The individual rights and freedoms we gain through the social contract include things like liberty, privacy and free speech, and are commonly called civil liberties. These liberal principles are enshrined in important historical documents. The Declaration of the Rights of Man and of the Citizen was published in 1789 during the French Revolution by the predecessor to the French parliament. The Declaration refers to the natural and ‘sacred rights of men and of citizens’, including ‘liberty, property, security and resistance of oppression’ (American Bar Association 2011). It invokes the harm principle when it explains that ‘law ought to prohibit only actions hurtful to society’ (American Bar Association 2011). It stresses the importance of free speech, claiming that ‘[t]he unrestrained communication of thoughts and opinions [is] one of the most precious rights’ (American Bar Association 2011). In most modern democracies, individual rights are formally protected in a constitution—the founding legal document of a country. However, Australia’s Constitution does not protect liberty, privacy, free speech or other important individual rights (for more on human rights protection in Australia, see Chapter 6). When a government proposes new laws in parliament, there are often debates about whether the laws will undermine our civil liberties. These debates are all based on the seventeenth-century philosophy of liberalism. They often involve difficult questions about how different rights should be weighed against each other. For example, in order to protect planes and sporting stadiums from terrorist attacks, all ticket-holders are subject to security checks. Increasingly, these checks are becoming more intrusive, such as full body scanning at airports (Hatch 2018). These checks reduce our privacy but increase our security. Many people disagree on how much privacy they are willing to give up in order to prevent another attack. Striking an appropriate balance between these rights remains an ongoing challenge.

II. DEMOCRACY A democratic system is one in which the government is elected by the people. Democracy has its roots in the ancient world, especially in Athens around the fifth century BC. In a democracy, the idea is that the people rule the government, rather than the government ruling the people. In The Social Contract, Rousseau (1762) talks about how the power to govern is inherent within all of us; it is this power (the ‘will of the people’) that we pass up to the sovereign. The powers that governments rely upon can ultimately be sourced in all of us, the people—not the government itself. A democratic government should act in the interests of the people who grant it power. Abraham Lincoln famously said in the Gettysburg Address that democracy is a government ‘of the people, by the people, for the people’ (Cornell University 2013). This means that we are the source of government power; we vote the government into power, and the government should act in our best interests. There are two core features of a democratic system. The first is a system of elections whereby the general public chooses a smaller number of people to represent its interests in parliament. This is established by the Constitution, which requires (in sections 7 and 24) that both houses of the federal parliament be ‘directly chosen by the people’. We looked at elections in detail in Chapter 3.

The second feature is parliament itself. Parliament is a representative forum: it is the place where politicians debate new laws and other important issues on our behalf. This includes debates on health, security, economics and other areas of government policy that affect all Australians. This is the key idea behind representative government, meaning that politicians in parliament make decisions on behalf of the people. We don’t have the time or expertise to debate every policy issue at length, and it would be unmanageable for 25 million Australians to debate everything all at once—so a smaller number of politicians do this for us. (A hypothetical direct democracy would be where we all have a say on every single decision made by government, but this is not really possible in practice.) Representative government a system of government whereby politicians are elected by the people and make decisions on their behalf Direct democracy a largely hypothetical system of government in which the people contribute to every decision Representative government is a very good system for running a country, but it is not perfect. Former British Prime Minister Winston Churchill famously quipped (probably quoting someone else) that ‘Democracy is the worst form of government except for all those other forms that have been tried’ (McCoubrey 2017). One issue is that democracy can tend towards populism. By definition, democracies turn on the votes of a majority. This can favour the popular interests of most people, leading to less protection for minority and disadvantaged groups. Populism decisions that favour the interests and values of most people Another issue relates to the accountability of politicians in parliament. Members of the lower house are elected for three-year terms, and senators for six years. We exercise a democratic choice at election time, but there is often not a lot we can do to influence politicians’ actions (such as the laws they support or reject) during their term in government. There are many examples of governments getting into power promising they will do something for the people, and then failing to do those things once they are elected (Kelly & Massola 2011; Sier 2014). It is not until several years later that we can vote a government out of power. In the meantime, we can disagree with a new law or policy, but there is often little we can do to influence politicians directly. Equal suffrage the democratic idea that everyone has one vote that is weighed the same A related issue is that some people in a democracy have greater influence than others. Democracies are built on the idea of equal suffrage, meaning that we all get one vote at the ballot box, whether we are the Prime Minister, a billionaire business owner or just an ‘ordinary’ person. This is formally true, but in reality some groups and organisations have greater access to our politicians and a greater capacity to influence their choices in parliament. The practice of lobbying is when an individual or group petitions a political party to shape law and policy in a particular way. For example, businesses might want the government to reduce taxation, or a trade union might want new laws protecting workers. Connections between these groups and political parties are often built on large donations to election campaigns, and the groups often expect benefits in return for their contribution (Ng 2016). This involves private meetings with senior members of government and a greater opportunity to influence their decisions (Nicholls 2014). In theory, money should not determine how much access people have to our politicians, but in practice this is quite common. Lobbying when an individual or group petitions a political party to shape law or policy in a particular way In Australia, the Labor Party is often criticised for having close ties to trade unions (Markey 2016) while the Liberal Party is often criticised for having close ties to big business and the financial sector (Keane 2018). The reason these connections are debated is because they imply that the organisations have an undue influence on the choices made in parliament—choices that are meant to be for the benefit of all the Australian people.

III. FEDERALISM In addition to being a liberal democracy, Australia has a federal system of government. This means there are two levels of government: national and state.

There is a national government in Canberra and six state governments around the country (New South Wales, Queensland, Victoria, South Australia, Western Australia and Tasmania). The federal government traditionally looks after things of national importance, like the military and foreign affairs, whereas the states traditionally look after health, education, infrastructure (roads) and policing. There are two territory governments on the same ‘level’ as the states (the Northern Territory and the Australian Capital Territory). However, the states have more extensive lawmaking powers than the territories, and federalism usually just refers to having national and state governments. Federation the moment (1 January 1901) when the colonies joined together as states to form the Commonwealth of Australia Federalism is not the same thing as Federation, though they are related. Federation is the moment when the colonies in New South Wales, Tasmania and other regions joined together as states to form the Commonwealth of Australia. The moment of Federation was 1 January 1901, when the Constitution came into effect. The Constitution is the founding document of our nation. It was drafted in a series of conventions in the 1890s (you can read more about the Constitution below and in Chapter 6). The Constitution shapes our legal system in many important ways (for example, by establishing a system of democratic elections and describing the functions of the High Court).

A. Shared lawmaking powers Federalism refers to a system of government that shares lawmaking powers between a federal government and several regional or state governments. In Australia, this is formalised in the Constitution, which grants specific lawmaking powers to the federal parliament while preserving the lawmaking powers of the states. Section 51 of the Constitution says that the federal parliament can only make laws on a list of specific topics. The list includes things like immigration, foreign affairs and the military. These are referred to as the heads of power, and every law passed by the federal parliament must fall under one of these topic areas. If it does not, the law can be struck down according to the power of judicial review (you can read more about this in Chapter 6). Federalism a system of government which shares lawmaking powers between a national government and several regional or state governments Heads of power the subsections in section 51 of the Constitution that list the federal parliament’s lawmaking powers The heads of power are quite extensive—you can see a selection of them in Figure 4.1. However, the idea is that these federal lawmaking powers are limited compared to those of the states. This is clear because the powers in s 51 are actually concurrent powers, meaning that states can also make laws on these topics. However, section 109 says that Commonwealth laws will override any state laws that address the same topic and are inconsistent, so the Commonwealth has priority in these areas. Concurrent powers lawmaking powers that can be exercised by both the federal and state governments

Figure 4.1: Section 51 of the Constitution

Sections 106–108 of the Constitution preserve the laws, constitutions and lawmaking powers of the state governments from the moment of Federation. The state constitutions are normal Acts of parliament and they do not list any specific lawmaking powers. Rather, the state parliaments have plenary power, meaning they can enact laws on any topic they like. This was debated and confirmed in a series of early English court judgments. It is part of the reserved powers doctrine, meaning that the federal parliament has specific lawmaking powers and all other lawmaking power resides in the states. Plenary power unrestrained lawmaking power Reserved powers doctrine the idea that the federal parliament should have specified lawmaking powers, and all residual lawmaking power should be held by the states State interests are also protected in the Senate, which elects its members according to state boundaries and not individual electorates. This is particularly true of the smaller states (like Tasmania), which have the same number of senators as larger states (like New South Wales) even though they have significantly fewer voters. This was designed as an incentive for the smaller states to join the Commonwealth.

B. Local government There is also a third level of government in Australia, which sits below the states: local government. Traditionally, federalism refers to national and state governments, although local governments also perform many important tasks. Local governments are responsible for waste collection, parks and recreation facilities, and town planning matters. In Australia, local governments are not mentioned in the Constitution, but there have been proposals at different times to recognise them formally in this way (Miragliotta 2013). Local government the lowest level of government in Australia, responsible for public recreation facilities, waste collection and town planning matters The three levels of government in Australia and their basic responsibilities are outlined in Figure 4.2.

Figure 4.2: Levels of government in Australia

C. COAG Another key feature of Australia’s federal system is COAG (pronounced ‘co-ag’), the Council of Australian Governments. COAG is the ‘peak intergovernmental forum’ in Australia (Council of Australian Governments 2012). It is a regular meeting where senior members from the three levels of government in Australia meet to discuss policy issues. The people attending COAG are the Prime Minister, Cabinet ministers from the federal government, the six state premiers, the two chief ministers from the territories and the president of the Australian Local Government Association. COAG discusses matters of concern to Australia as a whole, such as terrorism, drug epidemics and Indigenous affairs. Other matters discussed at COAG are those that require negotiation between the federal government and the states, such as how revenue from the Goods and Services Tax (GST) should be allocated. COAG the Council of Australian Governments, a regular meeting of leaders from the three levels of government

D. Advantages and challenges of federalism There were many reasons why Australia was designed as a federal system (Galligan 2001). By joining together as states, the colonies were able to pool their resources and increase their overall security (for example, by having a national military). Making Australia a single nation rather than separate colonies improved transport across the country and removed taxes for importing goods across state boundaries. A federal system also promotes healthy competition: if one state creates an innovative new law, other states can follow. This gives people greater choice: if you don’t like living under Victoria’s laws, you can move to New South Wales. A federal system also creates a ‘double democracy’ (Galligan 1995) because we get to elect members of parliament to both levels of government. However, there are also many problems with Australia’s federal system. The first issue is that the reserved powers doctrine hasn’t turned out as the framers of the Constitution intended. The states having significant reserved powers is meant to be a core founding principle of the Commonwealth. The states do have significant responsibility over core areas like health and education, but the federal government has gained much greater influence in these and other areas over time. A key reason for this is how the High Court has interpreted the Constitution (Galligan 2001). In particular, the High Court has granted increased powers to the Commonwealth over taxation, which means that the federal government has the largest share of revenue. There are many other examples of this, such as the rollout of a national curriculum for schools (Australian Curriculum 2014), which is traditionally a state government responsibility. Centralisation the process by which a federal government acquires greater lawmaking powers The expansion of federal government power is known as centralisation, because more and more lawmaking powers are concentrated in the central or national government. Galligan (2001) has summed up this criticism of

Australia’s federal system in the following terms: ‘According to critics, Australian federalism has undergone such a sustained process of centralisation that it can scarcely be called a federal system any more’. This is a slight exaggeration to emphasise a point, but it is certainly true that the federal government is the major player in Australian politics when the system was originally designed with the states as the primary actors. There are other concepts that help us understand the relationship between the federal and state governments. As in all relationships, the federal and state governments can work together well at times, and not so well at other times. When there are clearly defined responsibilities between the two levels of government, there are high levels of coordination and so this is known as coordinative federalism (French 2004). When the federal and state governments are working well together, and designing solutions to law and policy problems on an equal basis, this is known as cooperative federalism (French 2004). When the central government dominates the state governments and determines their agenda, this is known as coercive federalism (Kincaid 1990). Many issues with federalism are caused by the federal government having most of the money, but the state governments having most of the responsibility to deliver expensive services (like maintaining hospitals and building roads). The technical term for this is vertical fiscal imbalance (VFI). VFI means that the national government (which sits ‘above’ the state governments) has a disproportionate share of revenue from taxation. Under section 96 of the Constitution, the federal government grants money to the states to deliver important services like schools and hospitals. However, it can attach conditions to these grants, which require the states to use the money in certain ways (Galligan 2014). This is a good example of coercive federalism. Coordinative federalism a federal system of government where responsibilities are clearly divided between the federal and state governments Cooperative federalism a federal system of government where the federal and state governments make decisions together Coercive federalism a federal system of government in which the federal government dominates the state governments Vertical fiscal imbalance an imbalance in public revenue, where the federal government has most of the money and the states do not collect enough money to deliver their own services Other problems occur when both levels of government want to blame each other for things going wrong. If there are not enough hospital beds, the federal government blames the states for not running the health system properly. In return, the states argue that the federal government hasn’t given them enough money to fund more hospital beds (Hall & Viney 2018). The federal system is designed to promote cooperation and coordination, but it doesn’t always work this way in practice. This has generated ongoing discussion about how to reform Australia’s federal system (Kildea 2016). At different times, suggestions have been made to give state governments a greater share of tax revenue, or even to get rid of the state governments altogether (Harris 2017).

IV. SEPARATION OF POWERS Both levels of government in Australia—national and state—are designed according to the separation of powers. This means that power is divided between three branches or arms of government. This division of powers is established by the Constitution, which has separate chapters for parliament (Chapter 1), the executive government (Chapter 2) and the courts (Chapter 3). Those chapters explain the powers and functions of each branch of government in Australia. Separation of powers the idea that power should be divided between three arms or branches of government: the legislature (parliament), judiciary (courts) and executive Legislature a technical term for parliament used when discussing the separation of powers The first branch is the legislature, a technical term for parliament because it enacts new legislation. The second branch is the executive, which administers (uses) legislation in practice. The executive includes ministers, who are responsible for government departments, and their employees. Those government employees use legislation to make administrative decisions that affect Australians on a daily basis. For example, employees in the immigration department makes decisions under the Migration Act 1958 (Cth) as to whether temporary visas should

be cancelled or renewed. Other members of the executive branch include the police, Centrelink, the Australian Taxation Office (ATO) and other government departments. Executive the branch of government that administers (uses) laws in practice Administer a technical term for using laws in practice and making decisions under the law The third branch is the judiciary—the courts—which interpret the laws and apply them to resolve disputes. In Australia, the separation of judicial power from the other two branches of government is interpreted strictly by the High Court. This means courts are the only institution that can hear and decide legal cases. Judiciary technical term for the court system used when discussing the separation of powers These three branches of government and their different responsibilities are set out in Figure 4.3. This image captures the blurring between the executive and legislative branches in Australia, which we inherited from Britain. This blurring is explained below. In theory, an ideal separation of powers would have a clear distinction between each branch. A strict separation of powers is true of some countries, like the United States, where members of the executive branch of government (such as the Secretaries of State and Defence) do not also make laws in parliament. It might seem obvious that parliament, government agencies and the courts perform these different tasks. But there is an important reason for this: we do not want too much power concentrated in too few hands. Imagine if our politicians determined what the laws were, then arrested you, then determined if you were guilty! The separation of powers aims to restrain government power, and it relies on a system of ‘checks and balances’ so that the different arms hold each other accountable. This idea is usually attributed to Baron de Montesquieu, a French Enlightenment philosopher who wrote about the three branches of government in The Spirit of the Laws (1748).

Figure 4.3: The separation of powers

Having courts that are independent of government is the most important part of this system. We need a court system for resolving disputes that is free from government interference. In Australia, this is ensured through the High Court’s strict interpretation of judicial power. In other countries, courts are not fully independent and political influence on judges can be a major source of corruption (Kuwonu 2016). Thankfully, this is not the case in Australia and other democratic nations. Our governments do, however, play an important role in appointing judges to the bench. This can be a very political exercise, particularly in the United States where the President is responsible for appointing judges to the Supreme Court (Knott 2018). It is less of an issue in Australia, although the executive government can still appoint judges who are more likely to support Commonwealth interests over those of the states (Williams 2018). In Australia, the separation of the judiciary is strict, but the line between executive and legislative power is blurred. Ministers are part of the executive because they are responsible for government departments, but they are also part of the legislature because they make laws in parliament. In fact, this is required by section 64 of the Constitution. Section 64 says that ministers must sit in parliament within three months of being appointed. This blurring of powers means that ministers frequently introduce Bills that expand the powers of their own agencies. For example, the Attorney-General has introduced most of the laws that have expanded the intelligencegathering powers of the Australian Security Intelligence Organisation (ASIO), Australia’s domestic intelligence agency. This sounds like a problem that could lead to the misuse of parliament’s power, but it is intentional and designed for a key purpose: responsible government. Responsible government is different from representative government. Representative government refers to a system of democratic elections, whereas responsible government refers to a

political system in which ministers sit in parliament. This means they are more directly accountable to the Australian people, who can vote them out at election time. Australia inherited this system from the Westminster parliament in Britain. A core aspect of responsible government is question time, where ministers must respond to questions without notice. These are questions that ministers are not told about in advance, so they cannot prepare an answer (ministers can provide a written answer at a later time, although they are expected to answer the questions immediately in person). Question time usually involves very heated debates between the two major political parties. Responsible government a system of government where ministers sit in parliament, thereby blurring the powers of the executive and legislative branches Question time a designated period of parliamentary debate when ministers must answer questions without notice Questions without notice questions in parliament which ministers are not told about in advance so they cannot prepare an answer Rule of law a principle that says laws should be publicly accessible and clearly written, and that everyone should be treated equally under the law

V. RULE OF LAW Overarching all these concepts is an idea that is crucial to our legal system but difficult to pin down to a single definition. The rule of law is an ideal that all countries should aim to achieve. Generally, having the rule of law means that people are treated equally under the law, and that the government is subject to the same laws as the people. This means that powerful people in society are treated no differently from everyone else under the law, and the country’s legal and political systems are free from corruption. In Australian Communist Party v Commonwealth (1951) 83 CLR 1, a famous High Court case about legislation that sought to ban Communist Party membership in Australia, Dixon J said that the rule of law ‘forms an assumption’ of the Australian Constitution. A traditional definition of the rule of law comes from A.V. Dicey, a British legal theorist. Dicey (1897) said that the rule of law will be present when three things are true. First, the country should be ruled by regular law rather than arbitrary power. Rather than kings and queens making decisions on a whim, through pure executive power, the government should be ruled by a parliament that enacts legislation. Second, everyone should be treated equally under the law. If our Prime Minister committed murder, he or she would be as guilty as any other person for committing that crime. There are no special dispensations or excuses for being a member of government or some other powerful person. Third, Dicey believed that the courts, rather than a constitution, are the most effective way to protect individual rights. This is a good definition of the rule of law, but it has some issues. We could have a society where everybody is treated equally under the law, but the laws are terrible. Imagine, for example, that Australia had a criminal law that said a person will lose a hand for stealing a loaf of bread. This could be written down clearly in legislation and the law could apply equally to everyone. That would satisfy Dicey’s definition of regular law, but it is not a society we would want to live in. Put another way, there are formal requirements of the rule of law, but these are not enough to achieve an ideal legal system. A classic statement of these formal requirements comes from Lon Fuller (1969). In The Morality of Law, Fuller tells a story about an unhappy king named Rex. He uses this story to explain eight ‘principles of legality’. These principles are eight failures that parliaments must avoid if they are to establish a valid system of law: 1. a failure to achieve rules at all 2. a failure to publicise rules 3. the abuse of retrospective legislation 4. a failure to make rules understandable 5. the enactment of contradictory rules 6. the enactment of rules that require conduct beyond the powers of the affected party 7. introducing such frequent changes in the rules that subjects cannot adjust their conduct accordingly; and 8. inconsistency between the rules as announced and their application. In other words, Fuller argued that laws should be publicly accessible, clearly written, applied consistently, and not contradictory or impossible to obey. The prohibition on retrospective legislation means parliaments should not

make new laws that punish a person for something they did in the past. It would be unfair if somebody did something that was not a crime at the time, and then was later punished for it. These formal requirements get us most of the way to a good legal system. However, some scholars argue that the rule of law will only be present where substantive values relating to democracy, fairness, justice and equality are also upheld (O’Donnell 2004). This gets into difficult philosophical questions about what makes a ‘good’ law, but it generally requires fair treatment and a minimum degree of protection for individual rights (the example of the stealing offence above, by contrast, would be clearly unfair according to our moral standards). Retrospective legislation laws that apply from a prior date so that a person can be punished for something that was not a crime at the time the did it The rule of law also requires that governments are accountable to the people and not corrupt. Countries are often ranked on these measures according to a Rule of Law Index (World Justice Project 2018). In 2018, Australia was ranked 10th in the world according to the World Justice Project’s Rule of Law Index. That ranking acknowledges that there is very strong adherence to the rule of law in Australia. These substantive requirements get us closer to an ideal legal system. The rule of law is also closely related to human rights; the United Nations (2005) refers to them as ‘two sides of the same principle’. However, human rights are generally considered a separate concept (you can read more about human rights in Chapter 6). In short, the rule of law is an ideal that governments should aspire to achieve. It means that laws should be publicly accessible and clearly written, and that everyone should be treated equally under the law. For more information on the rule of law, you can visit the website of the Rule of Law Institute (www.ruleoflaw.org.au), a notfor-profit organisation that aims to promote the rule of law in Australia.

KEY POINTS • Australia is a liberal democracy: this means our governments are elected by the people and should protect individual rights. • Australia has a federal system of government: this means we have a national parliament in Canberra that shares lawmaking power with several state governments. This is established by the Constitution, which specifies the lawmaking powers of the federal parliament and preserves the lawmaking powers of the states. • The separation of powers is an important principle which says that power should be divided between the legislature (parliament), the executive (government departments) and the judiciary (courts). Parliament makes the laws, the executive uses the laws, and courts interpret the laws. This is established by the Constitution, which has separate chapters for each branch of government. • The rule of law is an ideal that all countries should aim to achieve: it means that laws should be clearly written and publicly accessible, that everyone should be treated equally under the law, and that governments should uphold notions of fairness, justice and equality.

DISCUSSION QUESTIONS 1. What is the difference between liberalism and democracy? Do the concepts have any similarities? 2. What is a federal system of government? What are some advantages of federalism, and what are some challenges with federalism in practice? 3. What are the three branches of government, and why do we separate power between them? 4. How are legislative and executive powers blurred in Australia? Why is this done? 5. What is the difference between representative and responsible government? 6. What is the difference between the ‘formal’ and ‘substantive’ requirements of the rule of law? 7. Which countries do you think provide the best examples of upholding the rule of law, and which do you think provide the worst examples? Why have you chosen these countries? 8. Which countries currently rank above Australia in the World Justice Project’s Rule of Law Index?

Chapter 5 Justice In this chapter you will learn about: Different meanings of justice The importance of ‘due process’ Alternative forms of justice Difficulties in accessing justice The role of government in delivering justice Another core idea driving Australia’s legal system is justice. Justice is a complex concept with no single definition, but it captures many ideas that are important to a modern democracy—like fairness and addressing inequality. As with the concepts in the previous chapters, you should think critically about this material by asking whether Australia has a ‘just’ society. Does Australia’s legal and political system achieve justice? You can think about this according to many different perspectives on what justice requires. Justice a complex concept that captures many different ideas relating to fairness and equality

I. WHAT IS JUSTICE? There is no single, accepted definition of justice, but the concept is usually associated with ideas of fairness. There are several ways we can think about this. First, justice refers to different types of responses when some harm or wrong is done in society. A basic type of justice is retribution. If someone hurts you or your family, you would likely want them punished, or you might even want to harm them back. This harm–response cycle is captured in the saying ‘an eye for eye’. Retribution punishment inflicted as repayment for a harmful act Criminal laws are traditionally built on this idea: when somebody commits a crime, the government punishes them for their actions. The punishment should be fair or ‘just’ in the sense of it being proportionate to the crime committed (in other words, ‘the punishment should fit the crime’). An offender is punished more if they kill someone, and less if they hurt someone or steal something. Increasingly, however, the criminal law is relying on different meanings of justice, which involve rehabilitating offenders and repairing the harm done to victims rather than simply imprisoning people (these are explained further below and in Chapter 10). Compensation the repayment of money to repair previous harm Justice can also be achieved through compensation: the payment of money to repair previous harm. Compensation is often an imperfect means of repairing serious harm but symbolically it can be very important. For example, the Royal Commission into Institutional Responses to Child Abuse, which investigated the institutional

cover-up of child sexual abuse in Australia, recommended that the federal government establish a National Redress Scheme to provide compensation to victims (National Redress Scheme 2018). National Redress Scheme scheme established to provide compensation for victims of institutional child sexual abuse We can therefore think about justice as retribution, rehabilitation or other responses to harm. But we can also think about justice for different groups and individuals. Justice for a victim, a victim’s family or the general public might mean compensation or a lengthy prison term. Justice for victims also means recognising their interests in court processes, like being able to present a victim impact statement to the court which explains the harm that was done to them (you can read about this in Chapter 10). Justice from the perspective of the offender, on the other hand, might mean something different. It might mean they are allowed to participate in a counselling program to address the underlying reasons why they committed the crime in the first place. Or it might mean overturning the decision of a lower court where the original conviction depended on evidence that was obtained unlawfully by police. Victim impact statement prepared statement presented to a court that explains the impact of a crime on a victim or victim’s family Procedural justice the idea that processes and procedures should be fair Another way to think about justice is to distinguish between procedural justice and substantive justice. Procedural justice relates to whether a process is fair, and substantive justice relates to whether an outcome is fair. These can overlap and support each other—fair processes often lead to fair outcomes—but they are not the same thing. For example, imagine a person is having trouble qualifying for a welfare payment from Centrelink. They might be treated fairly and transparently according to the letter of the law (procedural justice), but they might be denied the payment when morally we think they should have it (a lack of substantive justice). Substantive justice the idea that outcomes should be fair and that opportunities should be fairly distributed In policing research and practice, procedural justice refers more specifically to whether police are trusted by the community (Murphy & Tyler 2017). Procedural justice policing is where police officers engage with communities to build trust and legitimacy. This is based on evidence that people are more likely to obey the law, and more likely to report crimes to the police, if they view the police as a legitimate source of authority (Tyler 2003). Substantive justice refers to whether opportunities and outcomes are distributed fairly across society. This is usually called social justice or distributive justice. As former Chief Justice of Victoria Marilyn Warren explains, we think about justice in this way when we compare our lives to those of others. Social justice the idea that inequalities in society should be addressed Distributive justice the idea that outcomes, opportunities, and resources should be distributed fairly across society For each one of us as citizens of society, our notion of justice may well centre around the fairness of our own life and the lives of our family members compared with the lives of our neighbours, fellow citizens and human beings throughout the rest of the world. (Warren 2014: 31) Addressing inequality between different groups in society is a core aspect of social justice. This is not easy, because strategies for fixing inequality can seem unequal at first glance. There is a well-known cartoon, shown in Figure 5.1, that captures this idea.

Figure 5.1: Equality vs equity Source: Interaction Institute for Social Change. Artist: Angus Maguire.

In the first frame (labelled ‘equality’), all three characters have one box to stand on. Even with a box to stand on, the shortest boy still cannot see the game. In the second frame (‘labelled equity’), the man’s box has been given to the shortest boy. The man now has no boxes, but he can see over the fence anyway. The shortest boy now has two boxes and can finally watch the game. In other words, the shortest boy needs two boxes to see over the fence, and the man needs none. Equality achieving an equal distribution of outcomes, opportunities and resources Equity redistributing outcomes, opportunities and resources to remedy inequality The cartoon illustrates the difference between formal equality—meaning everybody has exactly the same thing— compared to equity, where those who have less are given more. The purpose of redistributing the boxes is to ‘even things up’. This is similar to the distinction between procedural and substantive justice, because it relates to whether procedures or outcomes are fair. In this example, procedural equality would be giving everybody one box, whereas substantive equality (what the illustrator calls equity) would be giving boxes to whomever needs them the most. Debating these kinds of issues for a whole country’s economy can become very complicated. Working out who has enough, who deserves more and who needs special assistance can lead to many heated debates. Welfare payments, scholarships and other financial payments can lead to criticisms that some groups are receiving special treatment (Carlson 2017). As in the cartoon, however, the purpose of special payments like these is precisely to make things more equal by addressing some existing inequality. In lectures on this topic I ask my students to imagine that I have $1000 to distribute between them. I give them two options: I could give them all $10 each (for 100 students) or I could give $1000 to one student who proves to me that they really need it (for reasons of economic disadvantage or other hardship). Nearly all the students in the class put their hand up to support the second option (or they come up with a slight variation, like having two $500 scholarships). Gaining $10 is only a very small benefit to 99 students who don’t really need it: nowadays it probably wouldn’t even buy a very good lunch. But $1000 for one student who really needs it could help them get through the trimester. Even though the first option is technically more equal, the value of the $1000 is lost if it is divided up into almost meaningless amounts. Maybe I just have nice students, but I think this shows that dividing resources in ways that are technically equal is not always the best thing to do. There are still no easy answers, however, to these kinds of problems. When I increase the amount to $10,000 and ask my students if they would like $100 each, or a $10,000 scholarship for one student, many of them hesitate and swap to supporting the first option. Perhaps there are limits to their kindness, but I think this has more to do with perceptions that the redistribution has ‘gone too far’. This may be based in a rational calculation that $100 for 100 students provides a relatively significant benefit to a large number of people. Utilitarianism philosophy founded by Jeremy Bentham which says that governments should aim to maximise happiness for the most people

In essence, it is very difficult to decide how resources should be distributed across society. A utilitarian perspective, as proposed by the philosopher Jeremy Bentham, would say that governments should always aim to maximise happiness for the greatest number of people (in the example above, giving $10 or $100 to each). This sounds like a good idea because it maximises advantage overall. However, in a purely utilitarian system, the interests of majority groups can outweigh those of smaller groups, who also have rights and needs. If removing a small group of people’s rights would benefit the greatest number of people, a utilitarian perspective would say this is okay. In the previous chapter, we looked at a range of theories and principles—such as liberalism, democracy, the separation of powers and the rule of law—that have importance beyond their utilitarian value. There are many morals and principles that should be upheld (like trust and honesty) even if the consequences of upholding them lead to reduced benefits. In Justice: What’s the Right Thing to Do?, Harvard professor Michael J. Sandel (2009) explains that morality is not simply about weighing costs and benefits. Rather, ‘morality means something more—something to do with the proper way for human beings to treat each other’ (Sandel 2009: 33). He argues that ‘certain rights and duties should command our respect, for reasons independent of the social consequences’ (Sandel 2009: 33). He defines justice according to three themes: ‘maximising welfare, respecting freedom, and promoting virtue’ (Sandel 2009: 6). Imagine, for example, that you are driving and see a fruit stall on the side of the road. You pull over and look around but there is nobody there to sell the fruit. Instead, you see an ‘honesty box’. An honesty box is where you take the goods and put money in the box in return—usually however much you think the product is worth. There is nobody to check what you are doing, so you could take a tray of fruit, put no money in the box, and drive off. You could even take the existing money out of the box, making a profit as well as enjoying the fruit. There are no cameras or people around as witnesses, so you would not face any consequences. Would you do it? Some people might steal the fruit, but I’d like to think most people would argue that honesty is more important in this case. You would be betraying the trust and goodwill of the farmer, and denying the farmer the right to earn fair money for his or her work. Importantly, however, I think the first point is more important than the economic loss. Stealing one tray of fruit would probably not make much of a dent in the farmer’s yearly earnings. Often these honesty box stalls are for spare fruit that couldn’t be sold to a supermarket (where farmers make most of their money) in any case. I think most people would baulk at stealing the fruit because there is something innately ‘wrong’ about stealing, particularly when the farmer is trusting you not to do it. This example is designed to show you that justice—what is ‘right’—involves more than a simple cost–benefit analysis. You could gain a benefit at no cost to yourself and minimal loss to the farmer. But justice often means ‘doing the right thing’—being virtuous—regardless of the costs and benefits involved. This is why many people oppose laws that undermine important rights and principles (like those we looked at in Chapter 4), even if those laws have some practical benefit. Australia’s counterterrorism laws, for example, impact on liberty, privacy, free speech and many other individual rights for the purposes of preventing terrorist acts (for more on this, see Chapter 12). Arguably, these rights should be protected for their innate value, regardless of the practical benefit in preventing terrorism. At the same time, governments face a difficult challenge in balancing these rights against our right to physical security. Questions of justice are, therefore, closely tied up with liberalism, democracy and the laws parliaments enact. Justice relates to whether governments adequately protect individual rights and minimise inequality. Justice relates to democracy because we all have an equal say in how our country should be governed. As Warren (2014: 23) explains, ‘[w]ithout justice we could not celebrate a strong democratic nation’. While laws are made by politicians in parliament, we elect the politicians who make the laws. Because of this, ‘[w]e all have the responsibility to ensure just laws’ (Warren 2014: 29). There is a useful exercise to think about different meanings of justice and how society can achieve them. In A Theory of Justice, the philosopher John Rawls (1971) proposed a thought experiment known as the ‘veil of ignorance’. Forget everything you know about society and your place in it, and imagine you are creating a new one. You should debate with your friends or classmates what the rules of this hypothetical society should be, and how wealth and other benefits should be distributed. Importantly, when the society is created, you have no idea of the cards you will be dealt. You could end up being the poorest person, the richest person, or anywhere in between. How would you design such a society? This is a useful exercise because we could all have ended up in different circumstances to those we are in. It helps us think about whether our society is fair and how everyone should be treated.

II. DUE PROCESS

A core aspect of justice is procedural justice: whether processes and procedures are fair. This is particularly important where citizens are dealing with courts or government departments. In the court system, this is captured in the idea of due process. (In Australian law, we usually refer to ‘procedural fairness’ or ‘natural justice’, but the more American term ‘due process’ has stuck when discussing this concept.) Due process refers to the requirement that people receive a fair hearing of their case in a court. As Chisholm and Nettheim (2002: 139) explain, ‘[t]he fundamental rule of “due process” and “natural justice” is that no person shall be judged unheard. There must be a hearing, and the hearing must be fair.’ This is very similar to the ‘right to a fair trial’, but is sourced in the common law (case law) rather than a human rights document (you can read more about protecting human rights in Chapter 6). Due process the requirement that everyone should receive a fair hearing of their case in court Due process has many specific principles and requirements (Chisholm & Nettheim 2002). One is notice, meaning that individuals must know the case against them. In criminal trials, this means all the evidence from police and prosecutors must be disclosed to the defendant so that he or she can argue their innocence. In civil matters, such as divorce proceedings or a financial dispute, there is an exchange of documents between the parties. Another principle is publicity, meaning that courts should be open for everyone to see. There are some exceptions—like national security matters and children’s courts—but otherwise it is an open court system. This means you can walk into any court in Australia and watch the proceedings. Members of the public with no connection to a case may not do this often, but the option is there. The idea is to create a transparent system of justice in which everyone can see what is happening. Notice the requirement that everyone should know the case and evidence against them Publicity the requirement that court proceedings should be open for everyone to see Open court a court that is open for everyone to see In the courtroom, standards of proof are designed to ensure that cases are proven to a high degree of reliability. In criminal matters, the prosecution must prove beyond a reasonable doubt that a person committed the crime (for more on the criminal trial, see Chapter 9). This is a very high standard that means a jury must be satisfied there is no reasonable doubt the person is guilty. The jury trial itself is another core aspect of due process. Standards of proof requirement that court cases be proven to a specified level of certainty Beyond a reasonable doubt standard of proof in criminal proceedings Burden of proof the responsibility to prove something in court Presumption of innocence the principle that everyone is innocent until proven guilty Balance of probabilities standard of proof in civil proceedings Prejudicial evidence that would unfairly suggest a person is guilty of a crime In criminal matters, the burden of proof is placed on the prosecution—meaning it is the prosecution’s responsibility to prove that an accused person is guilty; the accused person is not required to prove their innocence. This is similar to the presumption of innocence, meaning that a person is presumed to be innocent until a magistrate or jury has determined they are guilty of a crime. In civil matters, decisions are made by a magistrate or judge on the balance of probabilities—meaning the stronger of the two arguments should be preferred. These standards of proof are supported by evidence laws which determine the information that can and cannot be put before the court. For example, evidence that has been obtained by police in an unlawful way will be considered prejudicial to the accused and excluded from the courtroom. There are other complex rules relating to hearsay, character witnesses and expert opinion evidence, which you can read about in Chapter 9. Another important principle is impartiality, meaning that court cases are overseen by a magistrate or judge who acts like an independent referee. If a judge has a conflict of interest—for example, because they know one of the parties—the judge can recuse themselves from the case. This means they step down and let another judge hear the case instead.

Impartiality the principle that judges must act as independent referees Recuse when a judge steps down from a case due to a conflict of interest This adversarial system, where two parties contest a case before a judge, is another aspect of due process. A party can also appeal a decision they disagree with by applying to have their case heard in a higher court (for more on appealing court decisions, see Chapter 10). Finally, there are some protections under Australian law to ensure that parties receive adequate legal representation. While there is no formal right to legal representation in Australia, a judge can elect to have a court case stayed (delayed) until adequate representation can be found. This common law protection is considered an aspect of the right to a fair trial (Chisholm & Nettheim 2002). Stayed when a court case is delayed by a judge’s order

III. ALTERNATIVE FORMS OF JUSTICE In addition to providing ‘traditional’ forms of justice like punishment and compensation, courts are increasingly relying on different methods. In the criminal law, there is increasing recognition that putting people in prison is ultimately neither helpful in reducing crime nor cost effective. The rate of recidivism refers to how many people reoffend and end up in prison again after their release. In Australia, 44.8 per cent of prisoners released during 2014–15 were imprisoned again within two years (Sentencing Advisory Council 2018). It costs $110,000 to imprison each offender for one year—significantly more than the average Australian salary (Knowles 2017). The more people who can be helped not to reoffend, rather than simply being imprisoned again, the fewer crimes committed and the more money saved. Recidivism when people reoffend and end up in prison again after their release Therapeutic jurisprudence concept to describe court processes that promote the wellbeing of offenders and victims An important concept that can help with this problem is therapeutic jurisprudence. Therapeutic jurisprudence is a catch-all term for court processes that aim to address the underlying causes of crime by promoting the wellbeing of offenders and victims. According to the Law Council of Australia (2018: 43), therapeutic jurisprudence ‘aims to address the issues underlying legal disputes and to encourage all participants to engage in the court process’. This means involving victims in the court process and requiring offenders to participate in rehabilitation, counselling or other programs to address underlying issues such as drug addition, unemployment or social isolation. Examples of therapeutic jurisprudence in practice include specialist drug courts and mental health courts, which aim to connect offenders with appropriate and individualised support services (Queensland Courts 2018). Restorative justice alternative means of resolving cases, usually through dispute resolution processes A related concept is restorative justice. This refers to alternative means of resolving cases, usually through alternative dispute resolution processes. Restorative justice has been defined as ‘a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’ (Marshall 1996: 37). In other words, rather than the state simply punishing the offender, both offender and victim work together to repair the harm done, promote healing and restore things to the way they were (as far as possible) before the crime was committed. Restorative justice includes processes such as conferences, circle sentencing and victim–offender mediation (Larsen 2014). In restorative justice, a conference is a meeting between an offender, the victim and other representatives such as lawyers, counsellors and police. This ‘provides a safe environment to talk about what happened and what needs to happen to start making things right’ (Queensland Government 2018). Conference in restorative justice, a meeting between the offender, victim and other representatives that provides a safe place to talk about the crime Similar approaches to therapeutic jurisprudence and restorative justice can be seen in Indigenous courts and circle

sentencing. These have been developed across the country in both urban and remote areas (Marchetti & Daly 2004). Circle sentencing is a mediation process based on traditional Indigenous practices. It was introduced into Canada’s legal system in the early 1990s, and the first Australian trial took place on the south coast of NSW in 2002 (Potas et al. 2003). In circle sentencing, Indigenous elders and community members meet with lawyers and a magistrate to determine an appropriate sentence. Circle sentencing a mediation process based on traditional Indigenous practices Circle sentencing has aims beyond repairing harm and promoting healing (Marchetti & Daly 2004), so it is not strictly a therapeutic jurisprudence or restorative justice initiative. However, it relies on a similar and more nuanced concept of justice compared to simple retribution. As Marchetti and Daly (2004: 1) explain, the purpose of Indigenous courts and circle sentencing is to provide a more culturally appropriate form of justice: The aim has been to make court processes more culturally appropriate, to engender greater trust between Indigenous communities and judicial officers, and to permit a more informal and open exchange of information about defendants and their cases. Indigenous people, organisations, elders, family and kin group members are encouraged to participate in the sentencing process and to provide officials with insight into the offence, the character of victim–offender relations, and an offender’s readiness to change. Justice reinvestment when governments redirect funds from prisons to community-based strategies that address the underlying causes of crime This quotation captures the complex, nuanced and culturally diverse nature of justice, beyond the basic idea of courts imprisoning people for their crimes. A final related concept is justice reinvestment. This refers to governments redirecting funds from prisons to community-based strategies so that people do not commit crimes in the first place (Willis & Kapira 2018). Justice reinvestment can involve increased funding for health services, housing and employment. To be classed as justice reinvestment, these initiatives must usually target communities judged to be at a higher risk of criminal behaviour. There is a growing body of evidence suggesting that justice reinvestment strategies can reduce crime while delivering significant savings to government. A recent trial of justice reinvestment strategies in Bourke, in western New South Wales, saved nearly $3 million for the local economy while making significant gains in criminal justice (Allam 2018). Breaches of bail conditions fell by 14 per cent, the number of days people spent in custody decreased by 42 per cent and the number of charges for the top five criminal offences also fell, by 38 per cent (Allam 2018). These are not strictly ‘alternatives’ types of justice, in that they operate in addition to prisons and other coercive punishments, but they are different from and more nuanced than more basic concepts like retribution. They demonstrate how justice can be achieved in different ways, and that this does not always involve imprisonment.

IV. ACCESS TO JUSTICE A major challenge in achieving justice in Australia is to ensure that all groups in society have equal access to justice. While courts and legal services are available to everyone in theory, in practice there are many barriers to accessing the legal system. Rice (2011: 18) defines access to justice in the following terms: Access to justice the ability of people to get legal advice and representation, and to use the court system The idea of ‘access to justice’ is … the capacity to understand the law, to get legal advice, to get legal assistance and representation, and to use public legal institutions such as the courts. It requires an ability to, for example, understand, communicate, travel and pay, and also requires the means to overcome the inability to do any of those things. The most obvious barrier to accessing justice is not having enough money to pay for a lawyer. Lawyers typically cost upwards of $300 per hour, with a day in court for a junior barrister starting at $5000 (Wells 2018). These fees stack up quickly, even in relatively simple cases. One estimate by the Productivity Commission (2014) put the cost of many family law matters between $20,000 and $40,000, with complex cases costing more than $200,000. This is unaffordable even for people on good salaries. For those on a low income or unemployed, it is simply out of reach.

The Law Council of Australia is a national body representing the legal profession. It is committed to promoting human rights, the rule of law and equal access to justice. In its Justice Report (2018: 22), the Law Council explains how the cost of legal services prevents many Australians from accessing justice: The cost of legal services presents a barrier to justice for people experiencing economic disadvantage, many of whom will have public housing, health, social security and other needs. Legal fees and court costs can prevent people from obtaining legal advice and pursuing resolution of legal problems through the court system. This may compromise their safety, rights, or entitlements. In addition, many people experiencing economic disadvantage have personal and psychological issues that make accessing justice difficult. They may fail to recognise and understand when they have a legal issue worth addressing. [P]eople experiencing economic disadvantage may fail to recognise legal problems or may not know how to respond if they do. They may have personal and psychological barriers which affect their capacity to resolve legal problems, or they may struggle with the complexity of relevant laws. They may also lack the time to deal with legal problems, particularly if they are primary caregivers. (Law Council of Australia 2018: 22) There are many groups in Australian society that struggle to access justice, beyond those experiencing economic disadvantage (Law Council of Australia 2018). These include older people, children, people who are homeless, the LGBTIQ community, migrants and refugees, prisoners and detainees, people with a disability, Aboriginal and Torres Strait Islander people, people who experience domestic and family violence, and people from rural, regional and remote areas. Clearly, access to justice remains a major concern for many different groups across Australia (Community Law Australia 2012). Problems with accessing justice are mitigated to an extent by Legal Aid. There is a government-funded Legal Aid office in each state and territory. Legal Aid provides legal advice and services (like representation in court) to socially and economically disadvantaged people. This is a core aspect of equal justice and the rule of law in Australia. However, limited funding and high demand for its services mean that strict means tests (based on a person’s salary and assets) are used to determine who can receive assistance. This means there are many people in Australia who cannot afford a lawyer but also do not qualify for Legal Aid. This has been called the ‘missing middle’ (Productivity Commission 2014). According to the Productivity Commission (2014), only the bottom 8 per cent of households are likely to meet Legal Aid’s income and asset tests, leaving out most low- and middle-income earners. Legal aid also relies on a merits test, meaning how likely the case is to succeed. Legal Aid government-funded offices which provide free legal advice and services to people in need Community legal centres (CLCs) also play a crucial role in improving access to justice. CLCs are independent community organisations that provide free legal information, advice and services to disadvantaged communities (Community Law Australia 2012). Depending on available resources and the merits of a case, lawyers working for CLCs will appear in court on behalf of a community member. CLCs also contribute to law reform debates and public policy development by producing reports and writing submissions to parliamentary inquiries. Community legal centres independent community organisations that provide legal advice and services to communities The services of CLCs are particularly important when community members face systemic disadvantage compounded by one or more legal issues. CLCs work closely with a variety of community organisations to address these compounding issues at an early stage (National Association of Community Legal Centres 2018). These significant benefits are provided at a reasonable cost to government: The services provided by CLCs are … delivered at very low cost to government. CLCs are extremely efficient, leveraging volunteer and pro bono support to maximise the total hours, dollar value and range of services they provide. Despite this, there is significant unmet demand for legal assistance services which cannot be met without additional funding. (Cameron 2017: 7). Despite the importance of Legal Aid and CLCs, there has been a disturbing trend of reduced funding from the federal government. In the 2017 federal budget, CLCs faced a $35 million funding cut, which would have amounted to 30 per cent of their budget (Sharaz 2017). This funding was reinstated after vigorous opposition from the

community legal sector, but there is still a downward trend. Following the 2018 federal budget, Morry Bailes, the Law Council’s president, maintained that Australia’s Legal Aid sector ‘is in deep crisis’ (Dolor 2018).

V. THE ROLE OF GOVERNMENT Funding Legal Aid and CLCs is just one of the many ways in which governments can contribute to justice in Australia. Parliaments enact laws that shape many aspects of justice, such as whether victims of sexual abuse can seek compensation and how offenders are sentenced for their crimes (for more on sentencing, see Chapter 10). Democratic governments should aim to reduce inequality in society. They can do this by providing funding for health, education, employment and welfare. However, given that all governments ultimately have limited resources, this presents an ongoing challenge with no easy solutions. Different political parties also tend to have very different ideas as to how taxpayer money should be spent. We should continually ask whether Australia is a ‘just’ society. This means asking: do we achieve justice, socially, politically and economically? Do different groups in society have equal opportunities and outcomes, and equal access to justice? Compared to many other countries, Australia is a relatively fair society (we have often been called the ‘land of the fair go’). However, it should be clear from the discussion above and a quick browse of the daily news that there are many groups in Australian society facing ongoing disadvantage. These include people who are unemployed, people who are homeless, people with a disability, Aboriginal and Torres Strait Islander communities, refugee and migrant communities and many others. Given the different meanings of justice, there are many ways we can debate these inequalities and devise solutions for how they might be addressed.

KEY POINTS • Justice is a complex concept. It can simply mean retribution—punishing a person for a crime—but courts are increasingly recognising the need to repair harms and rehabilitate offenders. Justice also refers to whether opportunities and outcomes are distributed fairly across society. • Due process is a core aspect of justice. It requires that a person knows the case against them and has their case heard in an impartial court according to the rules of evidence. • Because of the high cost of legal services, accessing the justice system remains an ongoing challenge for many Australians. • Australia is a relatively fair society, but many groups face significant disadvantages. This includes people who are homeless, people who are unemployed, people with a disability, and Aboriginal and Torres Strait Islander communities.

DISCUSSION QUESTIONS 1. If a person harmed you or your family, what type of justice would you want? 2. What are some different ways of achieving justice? 3. Why is there a need to rehabilitate offenders rather than simply punishing them? 4. What are the principles and requirements of due process? 5. Which groups in Australian society do you think experience the most disadvantage, and how could this be remedied? 6. Is Australia a fair and ‘just’ society compared to others around the world?

Chapter 6 Human rights In this chapter you will learn about: What human rights are The lack of human rights protection in Australia’s Constitution The possibilities for improving human rights protection in Australia Human rights are core protections and freedoms that all human beings should be afforded. All democratic governments except Australia protect human rights in a bill of rights or similar national document (Hume & Williams 2013). This chapter explains more about human rights and how Australia could move towards greater protections for human rights in the Constitution or federal legislation.

I. WHAT ARE HUMAN RIGHTS? To understand exactly what a human right is, it is important to first understand what it means to have a ‘right’. A right is a justified claim to something. For example, if you lend your computer to someone, you have a right to have that property returned to you. If you paid too much tax during the financial year, it’s your right to have that money returned to you by the tax office. To fully be considered a right, the other party must have a correlating (matching) duty to give the thing to you (Ernst & Heilinger 2011). If the other party is not morally or legally required to give it to you, you don’t strictly have a right to it. Rights are ‘enforceable moral claims’ (Ivison 2008). (You might, however, have a right to make a claim to the thing, even if you are not guaranteed to get it—this is a fine distinction but it can be important to the law.) Human rights are enforceable moral claims against governments to provide us with the things we need to live a life of dignity. They typically include the rights to life, liberty, security, privacy, free speech, a fair trial, and the freedoms from slavery, torture and discrimination. This might sound familiar from the chapter on liberalism, when we discussed civil liberties and freedom from state interference. Human rights and liberalism certainly overlap, but they are different concepts with different origins. Under the seventeenth-century philosophy of liberalism, we are entitled to civil liberties because we are citizens living under a liberal-democratic government. This includes individual rights to liberty, privacy, security and private property. Human rights are based in this liberal tradition, which emphasises individual rights and freedom from government, but we are entitled to human rights simply because we are human beings (regardless of which type of government we live under). Human rights are universal, and they are more fundamental than civil liberties in the sense that they are derived from a source higher than governments: our common and fundamental nature as human beings. Human rights have more contemporary origins and they extend beyond civil liberties to include things like freedom from slavery and torture. The concept of human rights is usually traced back to the years following the Second World War (for a different account, see Moyn 2012). Following the Holocaust and other atrocities that led to tens of millions being killed, there was worldwide recognition that human beings must be afforded minimum standards of dignity.

Universal Declaration of Human Rights founding document of the human rights movement, published in 1948 by the United Nations General Assembly Preamble opening statement to a formal document like a constitution or human rights instrument These standards were agreed and subsequently issued in December 1948 by the United Nations (UN) General Assembly as the Universal Declaration of Human Rights (UDHR). The UDHR is a founding document of the human rights movement. Its preamble (opening statement) refers to ‘barbarous acts’ committed during the Second World War, from which all people must be protected: [D]isregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. (United Nations 2015) The UDHR sets out 30 articles, which are like sections of legislation. Article 1 establishes that ‘All human beings are born free and equal in dignity and rights’ (United Nations 2015). The remaining articles set out different protections, like the rights to life, liberty, security, and freedom from slavery and torture. Article a section of a treaty or other international law document A selection of rights from the UDHR is set out in Figure 6.1. Many of these are directly relevant to the issues we have been talking about in this book, including the right to a fair trial (Article 10), which is similar to due process, and the right to elect a democratic government (Article 21). Many other treaties protect human rights. A treaty is an international law document that sets out a formal agreement between two or more governments. (Technically, the UDHR is only a declaration—a statement of agreed principles which does not have the same legal force as a treaty—but it has huge symbolic effect.) Treaty international law document which sets out formal agreement between two or more governments Declaration a non-binding treaty The major human rights treaties have been issued by the United Nations General Assembly. These set out agreed international standards on many human rights issues, including the rights of children, women and people with disabilities. Examples of international human rights treaties include: • United Nations Convention Against Torture (UNCAT) • United Nations Convention on the Rights of the Child (UNCROC)

Figure 6.1: Universal Declaration of Human Rights. Source: United Nations (2015)

• International Covenant on Civil and Political Rights (ICCPR) • International Covenant on Economic, Social and Cultural Rights (ICESCR) • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) • International Convention on the Elimination of All Forms of Racial Discrimination (CERD) • Convention on the Rights of Persons with Disabilities (CRPD). There is some debate as to whether economic, social and cultural rights, like those found in the ICESCR, should be considered human rights. Economic rights include the rights to work, fair pay, adequate housing and the right to join trade unions. Social and cultural rights include the right to participate in cultural activities and experience the benefits of scientific progress. These are sometimes classed as ‘second-class’ rights (Byrnes, 2010). This is not to say such rights are unimportant, but they can be conceived as secondary to life, liberty, freedom from torture and slavery, and other civil and political rights necessary for our immediate physical wellbeing. The drafters of the UDHR certainly considered economic, social and cultural rights to be human rights. The declaration includes the rights to work and fair pay (Article 23) and to experience culture and science (Article 27).

Another core economic, social and cultural right is the right to self-determination, which is found in Article 1 of the ICESCR. Self-determination means that communities should ‘freely determine their political status and freely pursue their economic, social and cultural development’ (United Nations 2019). The importance of selfdetermination for Australia’s Indigenous communities is discussed in the next chapter. Self-determination the idea that communities should be able to freely determine their political status and future development Treaties contain many important protections for human rights but, unfortunately, their enforcement ultimately depends on ‘buy-in’ from governments. Human rights treaties are not automatically incorporated into Australian law. Ratify sign a treaty and agree to its terms Ratifying a treaty means that a government agrees to be bound by its terms (this usually happens when a senior member of government signs the treaty document). Even when the Australian government ratifies a treaty, the protections still need to be enacted in domestic legislation. The Australian government has ratified most international human rights treaties, but many core protections (like the rights to liberty, privacy and free speech) have not been incorporated into domestic law (Australian Human Rights Commission 2009). Another problem is that human rights are not inalienable. An inalienable right is one that cannot be taken away. You might assume that the fundamental nature of human rights means they can never legally be taken away from us or breached by governments. However, nearly all human rights can be derogated from in times of emergency. To derogate from a human right means to suspend or interrupt its protection, usually for a defined period of time. This means that a government can legally fail to protect a human right, even if that right is fundamental to our human dignity. Only a small number of rights are non-derogable (that is, they cannot be taken away or overridden, even in times of emergency). Non-derogable human rights include the right to life and the freedoms from torture and slavery. However, even these are not absolute: the right to life can be taken away in times of war or by a lawful death penalty, the freedom from torture does not prevent all coercive interrogation, and the freedom from slavery does not protect people from forced labour in times of emergency. Inalienable not able to be taken away Derogate to suspend or interrupt a legal obligation Non-derogable not able to be derogated from The possibility of derogating from human rights means that governments can reduce or suspend human rights protection to counter serious threats to our security, such as terrorism. This is allowed even under the world’s strongest human rights instruments—though any derogation must be necessary, reasonable and proportional to the current threat. For example, Article 15 of the European Convention on Human Rights says that governments may derogate from human rights ‘[i]n time of war or other public emergency threatening the life of the nation’, provided that the derogation is limited ‘to the extent strictly required by the exigencies of the situation’ (Council of Europe 2010).

II. THE CONSTITUTION AND HUMAN RIGHTS Australia remains the only liberal-democratic nation without legal protection for human rights at the national level (Hume & Williams 2013). This section explains Australia’s Constitution and the rights that are protected in it, the power of courts to strike down legislation that is incompatible with the Constitution (known as judicial review) and other ways that human rights are protected in Australia.

A. The Constitution The Constitution is the legal document which established the nation of Australia. As we discussed in Chapter 4, the Constitution shapes Australia’s legal system in many important ways. It establishes a system of democratic elections, specifies the lawmaking powers of the federal parliament, and explains the functions of the executive and

the High Court. Constitution the founding legal document of Australia The Constitution is actually a section of legislation passed by the British parliament: Section 9 of the Commonwealth of Australia Constitution Act 1900 (Imp).3 But it is more than just a section of an Act, or an ordinary piece of legislation. It is a fundamental document for two reasons: all legislation passed in Australia must be consistent with it, and it cannot be changed without a special process known as a referendum. A referendum is a vote put to the whole of the Australian people to change the text of the Constitution. For the text to be altered, a double majority of the Australian people must approve the change. These requirements are set out in section 128 of the Constitution. The Constitution cannot be changed in parliament like a normal law. Referendum a vote of the Australian people to change the text of the Constitution Double majority the requirement that any changes to the text of the Constitution must be approved by a majority of people in a majority of states, and a majority of Australians overall The double majority requirement specifies that a majority of the Australian people overall must vote ‘yes’ to the proposed change, as well as a majority of people in a majority of states. In other words, there must be majorities in at least four of the six states, as well as an overall majority. This sounds like it is repeating the same thing, but it actually creates a significant hurdle, as a small difference in one state’s vote can change the overall result. In Australia’s history, only eight referendums (out of 44 proposals) have succeeded (Williams & Hume 2010). Because of how difficult it is to change, Australia’s Constitution is often referred to as a rigid constitution. (The state constitutions, in contrast, are flexible constitutions: they are ordinary pieces of legislation that can be amended in the normal way by parliament, without a vote of the people). Rigid constitution one that is very difficult to change Flexible constitution one that is easy to change The Constitution was drafted at a series of meetings, known as constitutional conventions, in the 1890s. Draft versions of the document were approved by the voters in each colony and the British parliament. This is why the Constitution includes a whole chapter dedicated to the powers of state governments and refers frequently to the British Crown. For example, the Queen technically has the power under section 59 to disallow any law passed by the Commonwealth Parliament. This never happens in practice, but it clearly shows the Constitution’s British origins. Constitutional conventions (i) meetings held in the 1890s to debate and draft the text of the Constitution; (ii) the unwritten rules that guide much of Australia’s legal and political system There are many other important parts of our legal and political system that the Constitution does not say anything about. For example, it does not mention that the Prime Minister is the leader of the party with the majority of seats in the lower house, or that the Prime Minister must step down if that party loses a federal election. In fact, it doesn’t mention the Prime Minister at all! Much of our legal and political system runs on tradition rather than rules specified in the law. Confusingly, these unspecified rules and traditions are also known as constitutional conventions.

B. Rights in the Constitution The Constitution does not mention human rights. Yet, according to one survey, 61 per cent of Australians believe that Australia has a bill of rights similar to that of the United States (US) constitution (Ryan 2017). A bill of rights is part of a country’s constitution that provides legal protection for human rights. Bill of rights part of a country’s constitution that provides legal protection for human rights The belief that we have a bill of rights in Australia may be due to the fact that popular culture often refers to protections found in the US bill of rights. For example, suspects often ‘plead the fifth’ (exercise their right to silence) in American police dramas. However, there is definitely no bill of rights in the Australian Constitution.

The Constitution protects a few limited rights. Section 80 protects the right to trial by jury in criminal trials for indictable offences under federal law (you can read more about indictable offences and jury trials in Chapters 8 and 9). Section 116 protects the right to freedom of religion, but this has been interpreted narrowly by the High Court and has never been used to challenge a law successfully (Australian Law Reform Commission 2015). Section 117 prohibits discrimination on the basis of which state somebody lives in, but not on the grounds of race, religion or sexuality. Section 51(xxxi) provides some protection for private property, as it says that property can be acquired by the Commonwealth only on ‘just terms’ (this was made famous in the movie The Castle). Implied rights rights that are not expressly protected, but the High Court has developed by interpreting other words in the Constitution There are also two implied rights: a right to vote and a freedom of political communication. An implied right means that the Constitution does not explicitly protect these things, but the High Court has upheld these rights by interpreting words in other sections of the Constitution. The right to vote, for example, has been derived from the requirement (found in sections 7 and 24) that the houses of parliament be ‘directly chosen by the people’ (Roach v Electoral Commissioner (2007) 233 CLR 162). Parliament is allowed to restrict the right to vote for some categories of people (like temporary visa holders, those with a severe mental illness, those convicted of treason or other prisoners serving lengthy prison terms). However, it could not enact a law that removed (for example) the right to vote for people of a particular religion or ethnic group. The implied freedom of political communication protects speech relating to government and political matters. Parliaments cannot enact legislation that restricts what people can say, publish or broadcast about ministers or government policy. Being able to discuss, critique and criticise our elected representatives is a core aspect of our democracy. The test used by the High Court to determine whether a law breaches the implied freedom of political communication has two limbs (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520). First, the court will ask whether the law burdens freedom of communication about government or politics. Second, it will ask whether the means adopted by the law are proportionate to serving an end that is consistent with the system of representative and responsible government. The second question is complex but is really a question of proportionality and fairness. If the law restricts political speech in a way that is disproportionate to achieving some legitimate aim, the law will be struck down. It is important to realise that this does not fully protect our human right to freedom of speech and opinion. The implied freedom only protects speech about political matters; it does not protect artistic, commercial, personal or academic expression, except where those relate in some way to government policy or the election of candidates to parliament. The implied freedom is not even strictly a right at all; it is really just a restriction on the lawmaking power of Australian parliaments. This is very different to having a Constitution that formally protects the human rights to freedom of speech, opinion and expression.

C. Judicial review The High Court has the power to strike down legislation that is inconsistent with these rights or any other section of the Constitution. This power is known as judicial review, and it means the High Court can declare a law null and void—as if it were never enacted by parliament. Where possible, the High Court will read down a section of legislation (interpret it in a way that is consistent with the Constitution) rather than striking it down completely, but the power to strike down laws is commonly used in many High Court cases. Judicial review the power of the High Court to strike down as invalid legislation which infringes the terms of the Constitution Read down when the High Court interprets a section of legislation so it is consistent with the Constitution The power of judicial review has been inferred from the text of the Constitution; it is not referred to explicitly. The High Court, drawing on the famous US Supreme Court case Marbury v Madison, has considered judicial review to be ‘axiomatic’ to our constitutional system (Australian Communist Party v Commonwealth (1951) 83 CLR 1). This means it is a core, self-evident feature of how our legal system is meant to work. There would be little point in having a constitution as the founding document of a nation if parliaments could simply legislate against it. However, because the Constitution does not refer to human rights, the High Court cannot strike down legislation

that undermines liberty, free speech or other fundamental protections. This means that Australian parliaments can enact laws that impact on any human right and there is nothing that can be done about this in a court. In theory, the federal parliament could even enact a law authorising torture, and the High Court could not strike it down for that reason. The High Court might fundamentally disagree with the legislation, but the constitutional grounds for invalidating it simply aren’t there. There may be an alternative way to invalidate the law—for example, the law might not be authorised by the heads of power in section 51, or it may breach the separation of powers—but these would be makeshift and imperfect solutions. They would not necessarily make the law invalid.

D. Why are human rights not protected by the Constitution? There are two main reasons why human rights were not included when the Constitution was drafted. The first is that legal protections were seen as unnecessary, because the fairness and good sense of our politicians would be sufficient. For example, at the constitutional conventions, Dr Alexander Cockburn (later Premier of South Australia) said that a bill of rights would ‘be a reflection on our civilisation’. He believed people would say, ‘Pretty things these States of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice’ (Beazley 2017). There is some truth to his argument, in that Australian politicians are not likely to sanction gross human rights abuses like genocide or slavery. However, it is also clear that relying on the fairness and good sense of politicians has never been sufficient to ensure that human rights are protected, either in Australia or around the world. The second reason for not protecting human rights was more overtly racist. There was concern among the drafters that protecting human rights would prevent the Australian government from discriminating against minority and ethnic communities. For example, when Henry Higgins (later a Justice of the High Court) heard a suggestion at the constitutional conventions for including a human rights clause, he asked: ‘[i]t protects Chinamen too, I suppose, as well as negroes?’ (Hume & Williams 2013). Protecting minority communities from discrimination is precisely one of the reasons why human rights should be written into the law. However, at the time the Constitution was drafted, such sentiments were less widespread and accepted. These attitudes from the late nineteenth century played a role in shaping the founding law of our nation, which is essentially in the same form today. Because the Constitution is so difficult to change, the document is in many ways out of date.

E. Other protections for human rights Australia’s Constitution does not formally protect human rights, but there are other ways human rights are protected in Australia. First, there is a presumption that courts will interpret legislation in a way that is consistent with human rights, unless it clearly says something to the contrary. This is known as the principle of legality. In Potter v Minahan (1908) 7 CLR 277, the High Court considered it ‘improbable’ that parliament ‘would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’. Principle of legality method of interpreting statutes which says that courts should presume parliament did not intend to interfere with fundamental rights and freedoms In Coco v The Queen (1994) 179 CLR 427, the High Court clarified that any interference by parliament with fundamental rights ‘must be clearly manifested by unmistakeable and unambiguous language’. According to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, this includes interpreting legislation wherever possible in line with international human rights treaties. This is an important principle, but it has an obvious weakness. If parliament uses clear words to undermine human rights, the principle cannot be relied upon. For example, the federal parliament used clear words in the Migration Act 1958 (Cth) to establish a scheme for the indefinite detention of refugees. In a constitutional challenge to that law (Al-Kateb v Godwin (2004) 219 CLR 562), the High Court had to uphold the scheme. Thankfully, there are several pieces of legislation that do protect human rights in Australia. Examples passed by the federal parliament include the: • Racial Discrimination Act 1975 (Cth)

• Sex Discrimination Act 1984 (Cth) • Disability Discrimination Act 1992 (Cth) • Age Discrimination Act 2004 (Cth) • Privacy Act 1988 (Cth) • Australian Human Rights Commission Act 1986 (Cth). The Australian Human Rights Commission Act 1986 (Cth) established the Australian Human Rights Commission (AHRC), which advocates for greater human rights protection in Australia. The AHRC can investigate complaints about how individuals have been treated and how government departments have acted. These complaints can be taken all the way to the United Nations Human Rights Committee (UNHRC), which can investigate further and make recommendations to the federal government. Ultimately, however, the UNHRC cannot make Australia comply with its recommendations. At times the government has even treated it with disdain. For example, after a report suggesting that Australia’s treatment of asylum seekers breached the right to freedom from torture, former Prime Minister Tony Abbott claimed that Australians were ‘sick of being lectured to’ by the United Nations (Cox 2015). A key weakness of protecting human rights in legislation, rather than in a constitution, is that legislation can be amended or repealed by parliament. This happened in 2007, when sections in the Racial Discrimination Act 1975 (Cth) were suspended by the Howard government to allow the Northern Territory National Emergency Response (commonly called the Northern Territory Intervention). The Northern Territory Intervention was designed to protect Indigenous children from sexual abuse and neglect, but it caused controversy for several reasons, including a lack of consultation with Indigenous communities and the deployment of military troops on Australian soil (Perche 2017). In 2011, the federal parliament enacted the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which created a Parliamentary Joint Committee on Human Rights. This committee examines legislation as it goes through parliament and reports back on whether it complies with human rights. However, it cannot force parliament to amend a Bill; it can only make recommendations. In addition, the committee has a majority of government members, which means most of them are likely to support the government’s position. In practice, this means legislation that quite obviously undermines human rights can be enacted with little substantive change (Williams & Reynolds 2015). Parliamentary Joint Committee on Human Rights parliamentary committee tasked with examining legislation for compliance with human rights Stronger legal protections for human rights exist in the Australian Capital Territory, Victoria and Queensland. The Human Rights Act 2004 (ACT), the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2019 (Qld) protect a long list of human rights, including those to liberty, security, freedom of movement and freedom of expression. This model of human rights protection is commonly referred to as a human rights act, because the rights are sourced in legislation (an Act of Parliament) rather than a constitution. Human rights act a piece of legislation which allows courts to declare legislation incompatible with human rights Declaration of incompatibility statement issued by a court under a human rights Act which says a piece of legislation is incompatible with human rights Dialogue model model of human rights protection in which courts can declare legislation incompatible with human rights, but it is ultimately up to parliament to decide whether to change the law Human rights acts do not typically allow courts to strike down legislation that is incompatible with human rights. Rather, they allow the relevant state supreme court to issue a declaration of incompatibility (in Victoria this is called a ‘declaration of inconsistent interpretation’). This means the court reports in a judgment that the legislation is incompatible with human rights, but the legislation remains constitutionally valid. This is known as a dialogue model of human rights protection, because it creates a conversation between the courts and parliament: the court pronounces judgment on the legislation, and parliament can respond by fixing it (Kolodizner 2009). Ultimately, it is up to the politicians in parliament whether they choose to amend the legislation or not. In other Australian states and the federal parliament, there are essentially no legal hurdles to enacting legislation that undermines human rights. There has been some discussion in the courts about a ‘deep rights’ doctrine—the idea that there may be legislation so egregious that even a parliament could not enact it—but this has never been fully

developed or applied successfully. Ultimately, governments that introduce rights-infringing legislation must be held accountable by the people. If we dislike the legislation a government introduces, we can vote them out at the next election. This is an important feature of our democratic system, but it provides much weaker protection than constitutional law, which would render the legislation invalid. The lack of human rights protection in Australia is significant because it allows Australian parliaments to enact legislation that would be unthinkable in other countries. For example, the Australian Security Intelligence Organisation (ASIO), Australia’s domestic intelligence agency, has been granted powers to detain people for up to one week for questioning (you can read more about these powers in Chapter 12). If a detainee refuses to answer a question put to them by ASIO, or tells anybody about their detention for up to two years after the event, they can be imprisoned for five years. This legislation would not be possible in a country that constitutionally protected the right to liberty, the right to silence and freedom of speech.

III. POSSIBILITIES FOR CHANGE There are two main ways in which human rights could be legally protected at the national level in Australia. First, Australia could establish a constitutional bill of rights similar to that found in the United States. This would involve amending the text of the Constitution in a referendum. Second, the federal parliament could enact a human rights act similar to those found in Victoria and the ACT. The US bill of rights is contained in the first ten amendments to the US constitution. It protects free speech, religion and assembly (first amendment), freedom from unreasonable searches and seizures (fourth amendment), due process and the privilege against self-incrimination (fifth amendment) and the right to a fair trial (sixth amendment). The second amendment is famous for protecting the right to ‘keep and bear arms’ (own and carry weapons). Australia could also amend its Constitution to protect human rights (although we would not protect the right to bear arms). The strength of this constitutional model is that it would allow the High Court to strike down legislation on human rights grounds. A major hurdle, however, is that changing the Constitution would require a referendum, and these are rarely successful (Williams & Hume 2010). A bill of rights would also be very difficult to change if we later wanted to add new rights or amend existing ones. Any minor change to the text of the Constitution would require a new referendum. A national human rights act would be easier to enact and amend, but provide weaker protection. An overseas example of a human rights act can be found in the United Kingdom’s Human Rights Act 1998 (UK). That legislation incorporates the European Convention on Human Rights into UK law. It provided the template for the ACT, Victorian and Queensland legislation, and so provides a similar model. It allows the UK Supreme Court to issue declarations of incompatibility, to which the British parliament can respond by choosing to amend or retain the rights-infringing legislation. A different model can be found in New Zealand. The New Zealand Bill of Rights Act 1990 (NZ) provides that laws must be interpreted consistently with human rights wherever possible, and New Zealand’s Attorney-General must report to its parliament whenever a Bill appears to be inconsistent with human rights. This provides similar protections to the principle of legality and Australia’s Parliamentary Joint Committee on Human Rights. An advantage of the statutory model is that it would be much easier for the Australian parliament to enact and update over time. However, this also means it would be easier to alter or suspend in times of emergency. Importantly, if existing models were followed, the legislation would not provide the High Court with a power of judicial review on human rights grounds. Ultimately, given the difficulties of achieving constitutional change, a national human rights act remains the more likely possibility in Australia. However, there remains little hope (for the moment) of achieving national human rights protection. In 2009, Prime Minister Kevin Rudd’s government established a National Human Rights Consultation led by Father Frank Brennan. The consultation received 35,000 written submissions, 87 per cent of which supported a bill of rights or human rights act (Branson 2009). The consultation recommended that the federal parliament enact legislation to protect human rights, but the government never took action.

KEY POINTS • Human rights are core protections and freedoms that we should all be afforded simply because we are human. Human rights include the rights to life, liberty, security, freedom of speech, freedom of religion and the rights to freedom from torture, slavery and discrimination.

• There is no constitutional protection of human rights in Australia. There is some federal legislation protecting human rights and courts will interpret legislation in line with human rights wherever possible, but the High Court cannot strike down a law on the basis that it interferes with human rights. • There are two ways human rights protection could be improved at the national level: the federal government could initiate a referendum to insert a bill of rights into the Constitution, or the federal parliament could enact legislation protecting human rights. A human rights act remains the more likely possibility, but it would provide weaker protection than a constitutional model.

DISCUSSION QUESTIONS 1. Can you find a copy of the international human rights treaties listed near the beginning of this chapter (like the United Nations Convention on the Rights of the Child)? Which rights do these treaties protect? 2. Do you think economic, social and cultural rights should be categorised as human rights? Are they necessary to ensure human dignity? 3. Which rights are protected in the Australian Constitution? 4. What is an implied right? 5. What is the difference between a bill of rights and a human rights act? 6. What are the advantages and disadvantages of a bill of rights, and what are the advantages and disadvantages of a human rights act? 7. Do you think protecting human rights through our democratic and political system, without constitutional protection, is sufficient? Why/ why not? _______________ 3 The jurisdiction ‘Imp’ means Imperial and refers to the British Empire.

Chapter 7 Indigenous peoples and the law In this chapter you will learn about: What justice and sovereignty would mean for Australia’s First Peoples The settlement of Australia by Britain and the doctrine of terra nullius (‘land belonging to no one’) The High Court’s landmark Mabo decision, which overturned terra nullius and recognised native title The lack of recognition of Indigenous people in the Constitution Diverse Aboriginal and Torres Strait Islander cultures have existed in Australia for at least 65,000 years (Weule 2017). The nation of Australia, in contrast, has only existed since Federation in 1901—around 120 years ago. Indigenous communities are our First Peoples and have a rich culture and history, but they face ongoing disadvantage compared to Australia’s population as a whole. There are many reasons for this, but a key part of the story is how Indigenous peoples have been treated under Australia’s legal system. Since Australia was colonised by Britain, the legal system has failed to adequately recognise Indigenous peoples and the important role they play in our society. This chapter begins by explaining what justice would mean for Australia’s Indigenous communities. Next, it introduces the important concept of sovereignty. This traditionally means power over a given territory but has many other meanings for Indigenous Australians. The remainder of the chapter focuses on legal questions surrounding the settlement of Australia by Britain, the High Court’s landmark Mabo decision and recognition of Indigenous peoples in the Constitution. Sovereignty concept that traditionally means power over a given territory

I. INDIGENOUS JUSTICE In Chapter 5, we discussed many different meanings of justice. Core to ideas of justice is a sense of what is fair or ‘right’ and how inequality can be reduced. We discussed notions of social and distributive justice—whether opportunities and outcomes are allocated fairly across society. According to this meaning, it is clear Australia’s Indigenous communities face significant injustice. Indigenous peoples experience systemic disadvantage compared to the non-Indigenous population, including lower life expectancy, lower rates of literacy and numeracy, and higher rates of unemployment and preventable illness (Australian Government 2018). The federal government’s Close the Gap campaign aims to reduce these differences in opportunities and outcomes (Australian Government 2018). Progress has been made on many targets, but much work remains to be done. Recently, there have been significant gains in educational outcomes and reductions in child mortality rates (the death of children aged 0–1 years). However, rates of psychological distress and substance misuse are worsening (Australian Government 2018). A major ongoing issue is that Indigenous Australians are imprisoned at a significantly higher rate than the rest of the population. George Brandis, a former Senator and Attorney-General, has called the rates of Indigenous

imprisonment a ‘national tragedy’ (Thorpe 2018). Indigenous Australians represent about 3 per cent of the Australian population, but 27 per cent of the prison population (Australian Law Reform Commission 2017). Between 2000 and 2015, the rate of Indigenous incarceration increased by 77 per cent (Australian Law Reform Commission 2017). Another way to measure imprisonment rates is how many people are in prison per 100,000 of a given demographic background. For the Australian population as a whole, there are 164 prisoners per 100,000 people (Australian Bureau of Statistics 2018). For the Indigenous population, the figure is 2481 per 100,000—about 15 times higher (Australian Bureau of Statistics 2018). Recidivism rates—how many people are re-imprisoned after release—are also significantly higher in Australia’s Indigenous population. Up to 76 per cent of Indigenous prisoners in 2016 had been imprisoned previously— compared with 49 per cent of the non-Indigenous prison population (Australian Law Reform Commission 2017). These startling imprisonment rates stem from a cycle of poverty, trauma and grief that affects generations of Indigenous communities. This cycle began with the colonisation of Australia by Britain, which isolated Indigenous communities from the rest of society and dispossessed them of their spiritual connection to the land. A legacy of dispossession and marginalisation have created conditions in which Aboriginal and Torres Strait Islander peoples experience serious and multiple forms of disadvantage. The high rates of criminal justice interaction experienced by Aboriginal and Torres Strait Islander people stem from cycles of poverty, intergenerational trauma and grief, as well as experiences of systemic injustice that accumulate over a lifetime. (Law Council of Australia 2018: 4). Another problem is that Indigenous communities, particularly those in remote areas, face significant hurdles in accessing justice. A lack of accessible legal advice and fewer alternative sentencing options (such as drug and alcohol rehabilitation programs) contribute to the significantly higher rates of imprisonment (Law Council of Australia 2018). Further reducing such inequalities would be significant in achieving justice for Indigenous peoples. Ideally, there will come a time where there are no gaps in outcomes and opportunities for Indigenous peoples compared to nonIndigenous Australians. Importantly, however, justice for Australia’s Indigenous population means something more. It incorporates ideas of recognition and apology by the Australian government for past wrongdoing that has led to this ongoing disadvantage. On 13 February 2008, then-Prime Minister Kevin Rudd made a formal apology to Australia’s Indigenous peoples. He offered the apology in the federal parliament to a crowded public gallery watching on and thousands celebrating outside. The apology focused on the Stolen Generations: successive generations of Indigenous children who were forcibly removed from their families and taught to adopt white culture. This was part of the Australian government’s policy of assimilation, the idea that other cultures should reject their heritage and become part of the dominant white community. Under the policy of assimilation, up to 50,000 Indigenous children were forcibly taken by the state (Read 2014). This is part of Australia’s recent history, as Indigenous children were still being removed from their families as late as the early 1970s (Randall 2011). Concerns about removing Indigenous children from their families still continue, as the rate of Indigenous children in the child protection system is around ten times higher than that for non-Indigenous children (Evershed & Allam 2018). Stolen Generations successive generations of Indigenous children who were forcibly taken from their families and taught to adopt white culture Assimilation government policy that other cultures should reject their heritage and become part of the dominant white community In the apology, Prime Minister Rudd offered the following words: We apologise for the laws and policies of successive parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologise especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country. For the pain, suffering and hurt of these stolen generations, their descendants and for their families left behind, we say sorry. (Rudd 2008)

These words were historic and significant. In the apology, Rudd (2008) admitted that words are not enough to address the significant and ongoing disadvantage faced by Indigenous communities. But this was the first time in Australia’s history that the federal government had recognised its past wrongs and admitted the profound impact of its laws and policies on Indigenous communities. It is now more than a decade since the apology, and the federal government has not taken any similarly significant action since. The next major step in achieving Indigenous justice would be for Australia’s First Peoples to be recognised in the Constitution. The founding legal document of our nation makes no mention at all of Indigenous peoples. As explained further below, there have been several moves towards recognising Indigenous peoples in the Constitution, but without success.

II. SOVEREIGNTY An important concept to help understand the position of Indigenous peoples in Australia’s legal system is sovereignty. The French political theorist Jean Bodin, writing in 1576, defined sovereignty as ‘supreme power over citizens and subjects unrestrained by the laws’ (Sabine 1920). According to this meaning, the word sovereign is often used interchangeably with monarch, meaning a king or queen. A sovereign is a ruler with unrestrained executive power over people within a specified territory. Sovereign a ruler with power over a given territory; often used interchangeably with king or queen Monarch king or queen Sovereign state an independent national government Today, sovereignty more commonly describes the legal and political power of a national government. This is why we refer to sovereign states as members of an international community. Holding official status as a sovereign state enables a country to deal with other states through treaties and foreign policy. The United Nations is an international organisation made up of 193 member states. These are all recognised sovereign states which participate in the United Nations (UN) General Assembly. The UN General Assembly is like an international parliament, where sovereign states debate global law and policy issues including economic development, peace and security, and international law. Australia’s legal history is characterised by a complex relationship between the sovereignty of the British government, the sovereignty of a new and emerging Australian government, and the sovereignty of the existing Indigenous population. When reading through the rest of this chapter, you should think about how these different sovereignties interact and possibly compete with each other. The major question is whether Indigenous sovereignty can be recognised in a legal system that presupposes the fundamental lawmaking authority of the Australian government. The courts have been very clear that it is not possible to recognise Indigenous sovereignty under Australian law. In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Justices Gummow and Hayne held that what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. What this means is that sovereignty (according to the High Court) is absolute and not capable of being shared. British sovereignty, which eventually became the sovereignty of the Australian government, is the only possible sovereignty that can exist within the territory of Australia. This is despite the High Court recognising in the landmark Mabo case that Indigenous peoples have traditional rights over land, known as native title. That decision is explained further below. In Coe v Commonwealth (No 2) (1993) 118 ALR 193, Chief Justice Mason held that Mabo is ‘entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia’. In Wik Peoples v Queensland (1996) 187 CLR 1, Justice Kirby held that Mabo did not create a ‘dual system of law’, and that Indigenous rights must be sourced within the Australian legal system, not some prior authority or customary law. This makes sense according to traditional meanings of sovereignty, which describe a fundamental lawmaking authority. If we think about sovereignty in this way, it is not possible for the Australian government to have full sovereignty if the sovereignty of Indigenous peoples is also recognised in a ‘parallel’ system of law. This is why

Chief Justice Mason described Indigenous sovereignty as being ‘adverse to’ (that is, against or in competition with) that of the Australian government. Having competing sovereignties would undermine Australia’s status as a sovereign state. However, this focus on fundamental lawmaking authority is overly simplistic. For a start, a distinction is often drawn between institutional sovereignty and popular sovereignty (Brennan, Gunn & Williams 2004). Institutional sovereignty refers to the legal and political power of institutions like parliament and the executive branch of government. Popular sovereignty, by contrast, is the inherent lawmaking power that resides in all of us, the people. This idea is consistent with concepts of democracy and Rousseau’s theory of the social contract, which we explored in Chapter 4. In a liberal-democratic society, the powers of the sovereign are ultimately sourced in our inherent authority to govern. This means Indigenous peoples, like all other Australians, have an innate or inherent type of sovereignty that can coexist with that of the Australian government. Institutional sovereignty the legal and political power of institutions like parliament Popular sovereignty the inherent lawmaking power of the people Sovereignty can mean many other things to Indigenous peoples. It can mean a connection to the land, an innate sense of identity, legal and political justice, and a starting point for recognition and inclusion (Brennan, Gunn & Williams 2004). As Brennan, Gunn and Williams (2004: 2) explain, sovereignty is ‘the basic power in the hands of Indigenous people, as individuals and as groups, to determine their futures’. This is a very different concept to that defined by Bodin or relied upon by the High Court. It captures a more spiritual notion of sovereignty, one that is about recognising the distinct culture and history of Australia’s First Peoples and their ties to the land. Uluru Statement from the Heart a statement on Indigenous rights and recognition published in 2017 by the Referendum Council The Uluru Statement from the Heart, a statement on Indigenous rights and recognition published in 2017, captures this different meaning of sovereignty: This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. (Referendum Council 2017: 2) This type of sovereignty is consistent with the right to self-determination. This right is protected by Article 1 of the International Covenant on Economic, Social and Cultural Rights. Self-determination means everyone should have the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’ (United Nations 2019). This type of sovereignty could certainly be recognised by the Australian government and the High Court without it being ‘adverse’ to that of the Crown (Coe v Commonwealth (No 2) (1993) 118 ALR 193). Self-determination the idea that communities should be able to freely determine their political status and future development

III. SETTLEMENT, FEDERATION AND BEYOND It is not possible to fully understand the disadvantage currently faced by Indigenous peoples without tracing the history of how they have been treated under Australia’s legal system. This section provides a brief history of how Australia’s legal system developed, beginning with the colonisation of Australia by Britain in 1788.

A. Settlement and terra nullius Australia was just one of many countries colonised and ruled by Britain as part of the British Empire. There were three doctrines under the common law that set forth how Britain and other colonial powers could take control of another country: a country could be (1) conquered, (2) ceded or (3) settled. Conquered meant that Britain forcibly

took control of an existing population using military force. Ceded meant that the existing population agreed to hand over control of the country to the British government (to ‘cede’ means to surrender or ‘give up’ something). This could be done through a treaty—a legal document that specified the terms of that agreement. Conquer to take a country by force Cede to surrender, give up or hand over In either of these first two cases, Britain recognised that the country was owned and occupied by an existing population with an established system of law. This meant the existing population and the new British presence would coexist. The existing legal system would remain in force until the laws were explicitly changed by Britain. The third possibility, to settle a country, meant that the country had no existing population or legal system and Britain could simply claim the unoccupied land. This applied where the land was ‘desert and uncultivated’ (i.e. empty and undeveloped) (Secher 2005). Settle to claim unoccupied land The doctrine of settlement applied to Australia, even though Indigenous people had lived on the land for at least 65,000 years. Settlement meant that British law applied immediately in Australia. This began in 1788 when the First Fleet arrived in Sydney Cove and Governor Phillip raised a flag to claim the land in the name of the British Empire. Britain simply claimed this ‘new’ territory for itself. Terra nullius is the legal fiction that allowed the doctrine of settlement to apply in Australia, despite the presence of Indigenous peoples on the land. A legal fiction is a principle that has legal force but is based on something that is factually inaccurate. Terra nullius means ‘land belonging to no one’. It was based on the discriminatory idea that Indigenous people were ‘so low on the scale of social organisation’ as to not be considered people at all (Secher 2005). In other words, there were people physically present on the land, but those people were considered so primitive or barbaric as to not be recognised by British law. In 1837, a parliamentary committee reported to the House of Commons (the lower house of the British parliament) that Australia’s Indigenous population was so ‘barbarous’ and ‘entirely destitute’ that their claims to the land should be ‘utterly disregarded’ (Mabo v Queensland (No 2) (1992) 175 CLR 1). Terra nullius the legal fiction that allowed Britain to settle Australia (means ‘land belonging to no one’) Legal fiction a principle that has legal force but factually inaccurate

B. Towards Federation and beyond After the settlement of Australia by Britain, Australia did not yet have ‘states’ as we know them today. There were separate colonies, first in New South Wales and Van Diemen’s Land (later called Tasmania), then Western Australia, South Australia, Victoria and Queensland. As these colonies matured, local courts and parliaments were established. For example, the New South Wales Act 1823 created courts and a parliament for New South Wales and established Van Diemen’s Land as a separate colony with its own supreme court. By the 1880s, there were discussions about the colonies joining together as a single country, to be known as the Commonwealth of Australia. We discussed some of the reasons for developing this federal system of government— including greater security, improved transport and reduced taxes—in Chapter 4. In 1889, Henry Parkes delivered the famous Tenterfield Oration, a speech in northern New South Wales in which he made the case for a federal system of government to the Australian public. This is why Parkes is known as the ‘father of Federation’ (Dando-Collins 2015). Tenterfield Oration a speech given by Sir Henry Parkes that made the case for Federation In the 1890s, the text of the Australian Constitution was drafted at a series of constitutional conventions. These were meetings held in Adelaide, Sydney and Melbourne and attended by representatives elected from each of the colonies. Many of the delegates later became premiers of the states and judges of the High Court. The transcripts of these debates, known as the Records of the Australasian Federal Conventions, are a significant collection of historical documents. They provide guidance on how the Constitution should be interpreted.

Records of the Australasian Federal Conventions the transcripts of the constitutional conventions In 1888, following the conventions, a draft constitution was put to a referendum (national vote) of the Australian people. This first attempt was unsuccessful but, after further changes, the text of the Constitution was approved in 1899. A request was put to the Queen to enact the Constitution in the British parliament and, in 1900, it was enacted as the Commonwealth of Australia Constitution Act 1900 (Imp). The Constitution came into force on 1 January 1901, the moment of Federation. Federation is when the Australian colonies joined together as states to form the Commonwealth of Australia. At the time of Federation, views on Indigenous peoples had not improved significantly. At the constitutional conventions, delegates debated whether Indigenous peoples should have the right to vote at federal elections. Isaac Isaacs (Australia’s first Governor-General and later a Chief Justice of the High Court) claimed that Aboriginal people ‘have not the intelligence, interest or capacity’ to vote (Williams 2000). Henry Higgins, another future High Court judge, thought it ‘utterly inappropriate … [to] ask them to exercise an intelligent vote’ (Williams 2000). This reflected racist sentiments more generally. Sir John Forrest, a future Western Australian Premier, said ‘there is a great feeling all over Australia against the introduction of coloured persons’ (Williams 2000). James Howe, a South Australian delegate, said Australia should be ‘a home for Australians and the British race alone’ (Rubenstein 1997). In the first federal election in 1901, Indigenous men could vote in all states except Queensland and Western Australia. In South Australia, Indigenous women could also vote. It was not until 1962, following amendments to the Commonwealth Electoral Act 1918 (Cth), that Indigenous adults across Australia were entitled to vote at federal elections. In 1983, compulsory voting was extended to Indigenous peoples. This means full equality in voting rights was not achieved for all Australians until more than 80 years after Federation. Before 1983, Indigenous peoples were allowed to vote, but they were not required to vote like all other Australians. Repugnancy a doctrine in early Australian law that said Australian parliaments could not legislate inconsistently with British law Extraterritoriality a doctrine in early Australian law that said Australian parliaments could not legislate outside their borders This very slow improvement in Indigenous rights can be explained partly by the fact that Australia was not legally considered an independent country from Britain for a long time after Federation. Originally, the state and federal parliaments were restricted by the doctrines of repugnancy and extraterritoriality. Repugnancy meant that Australian parliaments could not enact laws that conflicted with the laws of Britain, and extraterritoriality meant that Australia could not legislate outside its borders. This undermined Australia’s status as a sovereign state and it meant that the British government still had ultimate sovereignty over the people of Australia. The Statute of Westminster 1931 (Imp) removed these limits on the federal parliament and held that Britain could only legislate for Australia by Australia’s ‘request and consent’. However, it was not until the Australia Act 1986 (Cth) that these limits were removed for state parliaments and Britain could no longer legislate for Australia. Chief Justice Mason in ACT v Commonwealth (1992) 108 ALR 577 held that this Act ‘marked the end of the legal sovereignty of the British parliament and recognised that ultimate sovereignty resided in the Australian people’. Even then, it was not until 1999, in the decision of Sue v Hill (1999) 163 ALR 648, that the High Court considered the UK to be a ‘foreign power’ for the purposes of Australian law. If 1986 is taken as the point of Australia’s true legal independence from Britain, this means that Australia as a fully independent nation has only existed for a little over 30 years.

IV. MABO AND NATIVE TITLE Mabo v Queensland (No 2) (1992) 175 CLR 1, commonly known as Mabo, is probably the most famous High Court judgment. Proceedings for the case began in 1982, when Eddie ‘Koiki’ Mabo and other members of the Meriam people made a claim to native title over the Murray Islands in the Torres Strait. By making such a claim, they were asserting their rights to traditional ownership of the land. In 1992, the High Court delivered a landmark judgment that agreed with and upheld the Meriam people’s claim. That judgment established the principle of native title under Australian law. In their judgment, the High Court judges reached two very significant conclusions. The first was that the doctrine of terra nullius no longer applied. They held that this idea ‘depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs’ (Mabo v Queensland (No 2) (1992) 175 CLR 1). They believed

that Australian values had moved on from earlier times, and that an ‘unjust and discriminatory doctrine of that kind’ had ‘no place in the contemporary law of this country’ (Mabo v Queensland (No 2) (1992) 175 CLR 1). The second important conclusion, which was available once the judges overturned terra nullius, was that Britain did not automatically acquire full legal ownership of the land when it colonised Australia. Rather, Britain acquired radical title to the land. This is something less than full legal ownership, and means that the British (and now the Australian) government’s rights over the land are subject to any valid native title claims. Native title is a common law property right to land ownership deriving from the traditional laws and customs of Indigenous groups. Radical title legal ownership to the Australian land that is subject to valid native title claims Native title a right to land ownership deriving from the traditional laws and customs of Indigenous groups A successful claim to native title can be made if an Indigenous group proves it has maintained its traditional laws and customs in an area of land. The laws and customs must have existed before Britain colonised Australia. This traditional connection to the land must continue today and have never been ‘extinguished’. The key test from the Mabo judgment is set out in the following terms: Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence … However, when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. (Mabo v Queensland (No 2) (1992) 175 CLR 1) The reference to ‘the tide of history’ means that Indigenous groups who no longer practise their laws and customs in an area—or those who experienced a break in those customs—cannot make a valid claim to native title. Given the significant disruption that the colonisation of Australia made to Indigenous peoples and their connection to the land, this is a major hurdle to making a successful claim. Native title is also extinguished by any grant of freehold title, which is the type of full legal ownership that applies to most privately held and residential land. Freehold title the type of full legal ownership that applies to most privately held and residential land Native title claims are now governed by the Native Title Act 1993 (Cth) (‘Native Title Act’), which the federal parliament enacted in response to Mabo. The Native Title Act recognises native title in statute and specifies the process by which native title claims can be made. It also provides for other matters like compensation and Indigenous Land Use Agreements; the latter are voluntary but binding legal contracts between the traditional owners of land and a corporate or government interest. The agreements typically relate to issues like the future development of land, mining, access to resources and the employment of Indigenous workers. Mabo represents a turning point in Australia’s legal history. The High Court overturned the discriminatory idea of terra nullius, which had applied for nearly 100 years since Federation. By establishing the common law rule for native title, it allowed Indigenous peoples to assert their rights to ownership over the land. These rights are enforceable in Australian courts. The decision rightly ‘triggered widespread celebrations and fresh hope among Indigenous Australians’ (Keon-Cohen 2017). However, it is also worth considering some limitations of the High Court’s judgment. The major limitation is that the court did not overturn the doctrine of settlement. The judges overturned terra nullius, which formed the legal basis for settlement, but they managed at the same time to uphold the idea that Australia was settled by Britain. This seems unsustainable, and legally it is one of the weaker parts of the judgment. It means that the legal consequences of terra nullius—that Britain was able to claim the land because nobody legally occupied it—are still current law. Another limitation, explained above in the section on sovereignty, is that Mabo and subsequent High Court judgments have failed to recognise Indigenous sovereignty in any form. Recognising this would be a significant step forward in achieving justice for Indigenous peoples, but it seems beyond legal challenge. The only relevant sovereignty in Australian law is that of the British and Australian governments. Finally, native title rights are very significant for groups who can claim them successfully, but proving a claim can be very difficult. The High Court set a high bar by requiring evidence that pre-British laws and customs are still observed today (Keon-Cohen 2017). Many claims to prove native title in a court can take years, even decades (Hirini 2018).

V. CONSTITUTIONAL RECOGNITION There is no reference to Indigenous peoples in the text of Australia’s Constitution. A major ongoing question is how Indigenous peoples should be recognised appropriately in the text of the Constitution and how this can be achieved. This section begins by explaining the 1967 referendum, which helped to advance Indigenous rights but didn’t go far enough. It then explains two recent models for constitutional reform.

A. The 1967 referendum When it was first enacted, the Australian Constitution made two references to Indigenous peoples. The first was in section 127, which said that ‘aboriginal natives’ were not to be counted in any state or federal census. The second was in section 51(xxvi), which is a head of federal lawmaking power known as the races power. As originally drafted, that section said that the federal parliament could make laws regarding ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. This meant that the federal parliament could make special laws for any race, except Indigenous Australians. Races power section 51(xxvi) of the Constitution, which provides that the federal parliament can make special laws for the people of any race A successful referendum held in 1967 removed both these discriminatory references (Atwood et al. 2007). The 1967 referendum was the most successful in Australia’s history, with a ‘Yes’ vote of 90.77 per cent. It deleted section 127 completely, and removed the words ‘other than the aboriginal race in any State’ from the races power. The latter change meant that the federal parliament had the power to make special laws for the benefit of Indigenous Australians. The 1967 referendum showed there was overwhelming public support for supporting Indigenous rights. However, it is now more than 50 years on from the referendum, and it has not proven to be the resounding success that it first appeared. As Appleby and McKinnon (2017) explain, ‘the referendum fell far short in giving people what they thought they were voting for, and in giving Aboriginal people what they wanted from it’. There is an ongoing myth that the referendum provided Indigenous peoples with equality before the law and protected them from discrimination, but the technical changes made to the Constitution did not ensure this. There are two main limitations to the changes made in 1967. The first, and most obvious, is that the Constitution now makes no reference to Indigenous peoples whatsoever. The changes did not insert anything in place of the discriminatory text, so the Constitution is now simply silent on the place of Indigenous peoples under Australian law. Given the important culture and history of Australia’s First Peoples, this is a major oversight. The second limitation is that the races power does not necessarily protect Indigenous peoples from discrimination. It merely allows the federal parliament to enact ‘special laws’. This means that the laws must be specifically targeted at Indigenous groups, but it does not mean the laws must be intended for their benefit (Williams 2007). The races power could also be used to support racially discriminatory laws. A third ongoing problem is that section 25 of the Constitution contemplates the possibility of discriminatory action against Indigenous peoples. Section 25 says that the people of any race who are disqualified from voting at state elections must not be counted in any census. The section does not explicitly mention Indigenous peoples, but it raises the possibility that Indigenous peoples (or the people of any other race) could be prevented from voting at a state election and not counted as part of the Australian population.

B. Expert Panel There have been several moves, so far unsuccessful, to remedy these ongoing problems. In 2012, an important report was published by the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (‘Expert Panel’). The Expert Panel comprised Indigenous community leaders, members of parliament, legal academics and other representatives. It was appointed by Prime Minister Julia Gillard’s government to consult and report on the best possible changes to recognise Indigenous peoples in the Constitution. The Expert Panel (2012) made four main recommendations. First, it recommended that section 25 and the races power in section 51(xxvi) be repealed. Second, it recommended that a new section 51A be inserted in place of the current races power. This new section would be similar to the races power, in that it would give the federal parliament power to make laws regarding Indigenous peoples. However, it would be accompanied by some

preliminary text to ensure that any such laws must be for the benefit of Indigenous peoples. The Expert Panel recommended that section 51A be enacted in the following terms: Section 51A Recognition of Aboriginal and Torres Strait Islander peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; 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 Aboriginal and Torres Strait Islander peoples. The preliminary text to a new section 51A would be important both symbolically and legally. Symbolically, it would recognise the important place of Indigenous peoples in Australia’s history in a way that the 1967 referendum failed to achieve. It would be similar to calls for a preamble to the Constitution, which the Howard government had earlier supported. A preamble is a section of introductory text to a Constitution. In 1999, the poet Les Murray produced a draft preamble for the Howard government, but this was never put to a referendum. His draft text recognised that Indigenous peoples had occupied the land ‘since time immemorial’ and were ‘honoured for their ancient and continuing cultures’ (Lambert 2003). The preliminary text in section 51A would be a sort of ‘mini-preamble’ within the text of the Constitution. Legally, the ‘mini-preamble’ in section 51A would be important because the High Court would need to take it into account in interpreting the scope of the federal parliament’s lawmaking powers. It is not clear this would happen if the preamble was included only at the beginning of the Constitution (as in the Howard government’s model). According to the text suggested by the Expert Panel, the federal parliament would no longer have a constitutional power to enact laws that discriminated against Indigenous peoples. Any such laws could be struck down by the High Court. Third, the Expert Panel (2012) recommended that a new section 116A be inserted into the Constitution. This would prohibit discrimination on the basis of ‘race, colour or ethnic or national origin’. Finally, it recommended that a new section 127A be inserted. This would recognise that ‘Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage’. The Expert Panel’s recommendations provide a legally sound, thoroughly considered and culturally appropriate model for achieving constitutional recognition of Indigenous peoples. Unfortunately, they have never been put to the Australian people in a referendum. There are many possible reasons for this. Political infighting and leadership challenges within the two major parties can lead to important issues such as these being overlooked. There may simply be a lack of political will to limit the lawmaking powers of the federal parliament, even if this would contribute to greater equality. There have also been concerns that the prohibition on racial discrimination may go too far in creating something akin to a constitutional bill of rights (Henderson 2015). These concerns can stifle reform, because a referendum would fail if the model is not supported in its entirety. Given that only eight out of 44 referendum proposals have ever succeeded (Williams & Hume 2010), any model that goes to the Australian people needs to have a high degree of bipartisan support (meaning the support of both major political parties). Bipartisan supported by both major political parties (Labor and Liberal) Referendum Council a body appointed in 2016 to make recommendations on how Indigenous peoples can be recognised in the Constitution

C. Referendum Council In 2016, then-Prime Minister Malcolm Turnbull and opposition leader Bill Shorten established a Referendum Council that built on the earlier efforts of the Expert Panel. Like the Expert Panel, the Referendum Council comprised expert representatives from a range of backgrounds (including Indigenous community leaders, academics, lawyers and former judges). The Council held 13 regional dialogues across Australia over a six-month period in late 2016 and early 2017. This culminated in a First Nations National Constitutional Convention, which was held at Uluru over four days in May 2017. The Convention was attended by more than 250 delegates, who came together to discuss proposals for constitutional reform.

The delegates to the Convention adopted and published the Uluru Statement from the Heart. This is an historic statement that recognises that ‘Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands’ (Referendum Council 2017). As we discussed at the start of this chapter, the Uluru Statement describes Indigenous sovereignty as a ‘spiritual notion’ and an ‘ancestral tie’ to the land. It recognises that Australia’s Indigenous communities are ‘the most incarcerated people on the planet’, and that challenges like these can be overcome with meaningful constitutional reform (Referendum Council 2017). The Referendum Council (2017) made three recommendations. First, it recommended that the text of the Constitution be altered to establish a First Nations voice to parliament. This would be a representative body giving Indigenous people a voice in lawmaking. Second, it recommended that all Australian parliaments pass a ‘Declaration of Recognition’. These would recognise the shared story of Indigenous peoples, the British institutions of government and ‘our multicultural unity’. Third, it called for the establishment of a Makarrata Commission. ‘Makaratta’ is a word from the language of the Yolngu people in Arnhem Land. As Noel Pearson, a prominent Indigenous lawyer, academic, activist and community leader, has explained: First Nations voice to parliament Indigenous representative body to parliament, which was recommended by the Referendum Council Makarrata Commission a truth-telling commission that would help to overcome previous harm and symbolise the restoration of peace The Yolngu concept of Makarrata captures the idea of two parties coming together after a struggle, healing the divisions of the past. It is about acknowledging that something has been done wrong, and it seeks to make things right. (Pearson 2017) A Makarrata Commission would facilitate a process of regional ‘truth telling’ between Indigenous communities and the Australian government (Referendum Council 2017). This would help to overcome previous harm and symbolise the restoration of peace. In this sense, the process would be broadly similar to the concept of restorative justice we discussed in Chapter 5. In response to the Referendum Council’s report, the federal government established a joint parliamentary committee to consider the recommendations amid other proposals for constitutional reform. This was seen by many as a weak and disrespectful response to an historical statement (Hunter 2017). The Prime Minister Malcolm Turnbull did not help matters by saying that an Indigenous voice to parliament would be inconsistent with Australian democracy because only Indigenous peoples would be able to choose their representatives (Karvelas 2018). In November 2018, the committee published a report which agreed that a First Nations voice to parliament should be established (Joint Select Committee 2018). However, it recommended a ‘co-design’ process in which the model would be finalised through further consultations, rather than recommending the changes be put to the Australian people in a referendum (Joint Select Committee 2018). It is not clear how these new consultations would differ from the substantial process already undertaken by the Referendum Council. Achieving constitutional change to recognise Indigenous peoples remains a slow, often political process. Achieving such change is important not only because of its symbolic force. Constitutional recognition would also have meaningful practical benefits for all Indigenous Australians. In its submission to the Expert Panel (2012: 40), the Royal Australian and New Zealand College of Psychiatrists explained that constitutional recognition would be an important step towards improving mental health in Indigenous communities: Recognition of Indigenous Australians as the first people of Australia is a critical step to support the improvement of Indigenous mental health … The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity, value within the community and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people. Whether a future Australian government will achieve this important change remains to be seen.

KEY POINTS • Indigenous peoples in Australia face systemic injustice, including reduced outcomes and opportunities and

significantly higher rates of imprisonment. This stems from the colonisation of Australia by Britain and the forceful removal of Indigenous children from their families. • The High Court’s Mabo decision overturned the idea of terra nullius, which held that Australia was settled by Britain because it was owned by no one. The High Court also recognised native title, a right to traditional ownership of the land. • An Indigenous group can make a valid claim to native title by proving that its traditional laws and customs are still practised in an area of land. • Australia’s Constitution makes no reference to Indigenous peoples. Recognising Indigenous peoples in the Constitution remains important not only symbolically and for their human dignity, but also as a practical step towards achieving justice. • The Expert Panel and Referendum Council both produced viable models for constitutional reform, but neither of these has been put to the Australian people in a referendum.

DISCUSSION QUESTIONS 1. What would justice mean for Indigenous peoples, and how could this be achieved? 2. How do Indigenous ideas of sovereignty differ from those relied upon by the High Court? 3. What were the major benefits of the Mabo decision, and what were some of its limitations? 4. How can an Indigenous group make a successful claim to native title? 5. Which sections of the Constitution refer to Indigenous peoples? 6. What models for constitutional reform were proposed by the Expert Panel and the Referendum Council? Which model do you think would better achieve constitutional recognition of Indigenous peoples?

Chapter 8 Criminal offences In this chapter you will learn about: What a crime is Different types of crimes When somebody is guilty of a crime A core function of the legal system is to protect communities from harm. It does this by punishing people who commit crimes. A crime is conduct that causes harm or is morally wrong and attracts a penalty under the law. Crime conduct that causes harm or is morally wrong and attracts a penalty under the law This chapter explains more about what a crime is, different types of crimes and how courts determine whether a person is guilty of a crime.

I. WHAT IS A CRIME? A crime is something a person does (or, sometimes, fails to do) that attracts a penalty under the law. We find crimes in legislation, which specifies the conduct and relevant penalty. Criminal law is primarily a state responsibility but there are also many offences in the federal Criminal Code Act 1995 (Cth). The crime of robbery, for example, involves using (or threatening to use) violence to steal something. In Queensland this is defined in section 409 of the Criminal Code 1899 (Qld): 409 Robbery (1) Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of “robbery”. The penalty for robbery is set out in section 411: 411 Punishment of robbery Any person who commits the crime of robbery is liable to imprisonment for 14 years. Any person who undertakes the conduct in section 409 (steals something by using or threatening violence) is liable to the penalty in section 411 (fourteen years imprisonment). Often, the definition of a crime and its penalty will be in the same section of legislation. Liable means the person is legally subject to that penalty. This does not mean that everyone who commits robbery will be imprisoned for fourteen years. The penalty is a maximum penalty, which means a person who is found guilty of the offence might receive any period of imprisonment up to and including that amount. They might even receive a different type of penalty altogether, such as being required to participate in a rehabilitation program

(for more on sentencing and punishment, see Chapter 10). Liable legally subject to a penalty This is a relatively easy way to define a crime: a crime is something that attracts a penalty under the law. The more difficult question is: why are certain types of conduct considered worthy of criminal punishment? In other words, why does the government consider certain types of conduct to be a crime? To answer these questions, we can define a crime in three ways. A useful account of this is given by Findlay, Odgers and Yeo (2014), who describe three different approaches to the criminal law: the individual autonomy approach, the community welfare approach and the moral wrongness approach. First, we can define a crime as conduct that causes harm to others. Murder and assault are the clearest examples of this, as they involve killing or physically harming another person. Sometimes, however, the harm is indirect. For example, when a person sells illegal drugs, the exchange of money for a product doesn’t immediately hurt the buyer —but taking the drugs later can be harmful to their health. Some assaults do not even require direct contact: an act of indecency, for example, is where an unwanted sexual act is done in the presence of another person. These different types of crime, including drug offences and assaults, are discussed further below. Act of indecency doing a sexual act in front of another person without their consent Second, crime is conduct that causes harm to a community. Drugs can harm individuals, but they can also have a wider impact on society. Drugs have a significant impact on a user’s family, friends and other relationships (Standing Committee 2003). They involve added costs to health services, reduced productivity in the workplace and an increase in crime and other dysfunctional activity (Standing Committee 2003). Another category of offences, known as public order offences, target harmful conduct that is done in a public place—like loitering, urinating in public, being publicly drunk or using offensive language. A community would not be a nice place to live in if these types of conduct continually affected other community members. Public order offences type of offence targeting harmful conduct that is done in public, like loitering, urinating in public, or using offensive language Third, we can define crime as conduct that is morally wrong. Killing or assaulting a person certainly harms them directly, but it is also against the values and beliefs that we consider to be important in society. We believe that everyone should have the right to live a full life and go about their daily business without being harmed by others. Other criminal offences, such as those of illegal gambling and prostitution, target conduct more directly for moral reasons. These are often described as paternalistic offences because the government is more directly deciding on the moral standards we should live by. Paternalistic offences offences, like those for unregulated gambling and prostitution, that target conduct more directly for moral reasons You can see that there is overlap in these three ideas: a crime will not fit neatly into any one of these categories. Drugs can harm a person, they can have a wider impact on society, and you could argue that taking them is morally wrong because they artificially alter our bodies (some major religions believe this). Murder harms an individual victim, it impacts on our society, and it is contrary to our beliefs and values. The three ideas also do not help us determine why some harmful conduct is not considered criminal. Alcoholfuelled violence remains a major concern for governments and the criminal justice system, but it is legal for adults over the age of eighteen to purchase and drink alcohol. It is also known that cigarette smoking causes lung cancer, but governments have chosen to use taxation, education and advertising campaigns to address the problem, rather than making it illegal to purchase tobacco. Decisions as to whether harmful conduct will be prohibited, permitted or regulated are often complex and involve competing interests across governments, corporations and the wider community. These three ways to define crime are simply different lenses for thinking about what a crime is and why governments punish people for doing things. They raise questions that are particularly useful when a government proposes to create a new crime through legislation. When a new crime is proposed in parliament, you can ask: should this conduct be a crime? First, does it harm a person? Second, does it harm society? Third, is it morally wrong? If the answer is yes to any of these, how much punishment does it deserve?

Because criminal laws are enacted by parliaments, decisions as to what becomes a crime can be heavily influenced by politics and the media. This interaction is described well by Nicholas Cowdery AM QC, a former Director of Public Prosecutions for New South Wales. Sometimes the lawmaking process works very well, but at other times it can be too heavily influenced by politics or media reporting. Crimes are created by politicians—they legislate to proscribe certain conduct and to create penalties for breach of those proscriptions. The process by which that is done can be sound, aided by thorough research and expert input and evaluation; or it can be deeply unsatisfactory, depending as it may upon the political priorities and perceived urgency of the legislators and their assessment of what we deserve, often filtered through the tabloid media. (Cowdery 2014: 1) Politics and the media have certainly influenced the enactment of many controversial laws to counter the threat of terrorism, which you can read about in Chapter 12. Another example is the controversial mandatory minimum sentences introduced in response to alcohol-fuelled violence, which you can read about in Chapter 10. Given these risks, it is important to ensure that all new criminal laws proposed by the government receive adequate scrutiny in parliament.

II. DIFFERENT TYPES OF CRIME There are many different categories of crime. This section explains the major categories, including homicide, assaults, property offences and drug offences. It also explains an important difference between summary and indictable offences. Homicide the unlawful killing of another person Murder the intentional or reckless killing of another person Manslaughter the unintended or negligent killing of another person

A. Homicide When people think of serious crimes they often think of murder, which is a type of unlawful homicide. Unlawful homicide includes both murder (the intentional or reckless killing of another person) and manslaughter (the unintended or negligent killing of another person). There are two types of manslaughter. ‘Manslaughter by unlawful and dangerous act’ is where a person intends to commit some other offence—like assaulting a person or stealing something from them—and kills someone in the process. The act must have carried an ‘appreciable risk of serious injury’ (Wilson (1992) 174 CLR 313). ‘Manslaughter by criminal negligence’ is where a person causes death by falling greatly short of the standard of care required of a reasonable person. There must also be a high degree of risk of death or serious bodily harm. For example, parents who neglect to feed their newborn child could be guilty of manslaughter if the child dies as a result.

B. Assault Another major type of crime is assault. Essentially, an assault is any touching of another person without their consent. An assault also happens where a person threatens someone else and causes an apprehension of serious harm (scares them). Technically, unwanted contact with another person is called battery, but assault has become the more common term to describe both these situations. Assault unlawful contact with another person or conduct that creates a fear of serious harm Battery unwanted contact with another person A basic assault could involve punching a person and causing minor bodily harm, like bruising and a bloody nose. A serious assault could involve cutting a person with a knife, which leads to major bleeding and disfigurement. Many other assaults involve unwanted sexual contact. Rape (also called sexual assault) is where a person penetrates

a person’s bodily orifices without their consent. Still other assaults involve giving people substances without consent, like drugging or poisoning them by spiking their drink. How serious an assault is depends on the method used and the level of harm caused to the person. Trivial harm, like being pushed and having clothes dirtied on the ground, would not generally attract a criminal penalty. An assault generally requires more serious harm. However, this general rule is not the case for indecent assault, which involves unwanted contact with sexual connotations. Touching a person’s genitals without their consent usually involves no physical harm, but it still constitutes an assault because it violates the victim’s privacy and creates fear of further unwanted sexual contact. Sexual assault penetrating another person’s bodily orifices without their consent Indecent assault unwanted contact with sexual connotations Actual bodily harm harm that is real but not trivial Grievous bodily harm very serious harm that causes disfigurement, disablement, or would endanger the victim’s life if they did not receive medical treatment Wounding when a blade or other instrument cuts the interior layer of a person’s skin Reckless where there is a substantial risk of harm or other consequences occurring, but the offender continues to do what they were doing Actual bodily harm refers to harm that is real but not trivial, such as significant bruising or a broken bone. Grievous bodily harm refers to very serious harm which causes disfigurement or disablement, or would endanger the victim’s life if they did not receive medical treatment. Examples of conduct causing grievous bodily harm would include cutting an artery or pouring a corrosive liquid like acid on a person’s skin. Wounding is where a blade or other instrument cuts the interior layer of a person’s skin. There are specific offences and penalties for all these types of assaults. The relevant offence also depends on whether the person intended to cause harm or whether they did so recklessly. Under the law, being reckless means there was a substantial risk of harm, but the offender chose to continue doing what they were doing anyway. For example, throwing large rocks off a bridge at oncoming cars could constitute an offence of recklessly causing grievous bodily harm if a driver or passenger was seriously injured as a result. Assault is an interesting category of offence because it depends on whether a person consents to the contact. Clearly, there are many situations in daily life when we have physical contact with others. We shake hands with people we meet and we bump into strangers on public transport. People have sex on a daily basis and it’s not a crime; it’s a natural, enjoyable activity. We even pay good money to watch sports stars like footballers, boxers and mixed martial artists assault each other repeatedly by tackling, grappling, punching and kicking each other. This results in bruises, bloodied noses and even broken limbs. There is a lot of conduct in society that could be an assault in different circumstances, and yet we actively encourage it. Given these everyday activities, how do we know what is an assault, and what is not? This is where consent comes in. Whether a person wants and agrees to the contact, and understands what it involves, is the crucial factor in determining whether the conduct is worthy of criminal punishment. In a sporting event, the players consent to physical contact as part of playing the game, so they are not committing a crime. (They do not, however, consent to being stomped on, punched or dangerously tackled—so these acts could constitute an assault if they were sufficiently serious.) In a healthy relationship, both parties consent to having sex, so there is no sexual assault. Consent when a person wants and agrees to something, and understands what it involves For many crimes—such as where a person is stabbed or hit with a car—we can assume that the person did not consent to the contact. However, consent is not always easy to determine. Difficulties in proving a lack of consent is the reason why many sexual assault cases lead to debates in the courtroom about whose account of the event—the victim’s or the offender’s—is more accurate. This can involve a loss of privacy for victims, as their text messages, photos and even medical records can be admitted into evidence to determine whether they consented to sex (Smith & Waxman 2018). Assaults are treated much more seriously if a weapon is used, a drug is given to a person without their consent or the harm is caused by a group of people. These are called aggravated assaults, meaning there is some additional factor which makes the offence worthy of a higher punishment.

Aggravated assaults assaults with higher penalties because an additional element is satisfied

C. Property offences Property offences are another major category of crime. This describes a range of offences related to stealing things (it does not mean causing damage to property, although there are criminal offences for vandalism). The starting point for property offences is a basic offence that involves taking something from someone without their consent. This is called different things in different states—in Victoria it is called ‘theft’, in New South Wales it is called ‘larceny’ and in Queensland it is called ‘stealing’—but the essential definition remains the same. Theft or stealing involves taking a thing that belongs to someone else without their consent, where the offender intends to ‘permanently deprive’ the person of that thing (that is, not give it back). This sounds pretty simple, but it can raise many difficult legal issues: are electronic bank funds a ‘thing’ capable of being stolen, does the other person actually own the thing, and did the offender intend to steal it or just borrow it? A step up from theft or stealing is robbery. Robbery is where a person takes something by using force or violence or by putting someone in a state of fear. A basic robbery could involve wrestling a backpack from a person, pushing them to the ground and running off. A more serious example would be where a person threatens a bank teller with a gun and demands them to hand over money. This would be an armed robbery, an aggravated version of the offence which attracts a higher penalty. In South Australia, the offence of robbery attracts a maximum penalty of fifteen years, whereas the aggravated offence has a maximum penalty of life imprisonment (Criminal Law Consolidation Act 1935 (SA), sections 5AA, 137). The aggravated offence applies if the offender deliberately inflicted severe pain, used or threatened to use an offensive weapon, or committed the offence in company with other offenders. Armed robbery an aggravated version of robbery where a weapon is used Another type of property offence is fraud. This is where a person steals something dishonestly. This usually involves false statements that induce somebody to hand over large amounts of money. For example, an offender could convince someone to hand over thousands of dollars for an investment scheme and then run off with the money. Online fraud has become increasingly common: online dating scams typically involve an offender convincing a victim to hand over substantial amounts of money for fake medical operations or other made-up emergencies (ACCC 2018). Fraud where a person steals something dishonestly

D. Drug offences There are many offences that relate to illegal drugs. These fall into four main categories: use, possession, supply and production. The seriousness of these offences depends on the type of drug and quantity involved. There are complicated rules in each state that define the types and quantities required. In general, drugs such as heroin, cocaine and amphetamines (like ice and ecstasy) are treated more seriously than cannabis (marijuana) or opioids (like morphine and oxycodone) that have been obtained without a prescription. Using an illegal drug includes swallowing, smoking or injecting it. Possessing drugs means knowingly having them under your control. You do not have to own them or have bought them; they might be owned by someone else but found in your car or bedroom. It is also possible that another person can have immediate physical control of the drugs, but you are still in possession of them (for example, if a friend is hiding them for you). This is known as constructive possession, because the possession extends from the person in control of the drugs to the actual owner. There are also offences for possessing drug paraphernalia, such as bongs, pipes and syringes. Possess to knowingly have something under your control Constructive possession when one person has immediate physical control of something, but another person owns it Supply in relation to drug offences, to sell, distribute or transport illegal drugs

Trafficking the supply of drugs on a large scale Produce in relation to drug offences, to manufacture, prepare or package illegal drugs Supplying drugs does not only mean selling them; it could involve giving them out for free, transporting them, or distributing them in some other way. Where supply is done on a large scale, it is known as trafficking. This is an offence under both state and federal law. There are also federal offences for importing and exporting drugs. Producing drugs means manufacturing them or preparing or packaging them for distribution. Common examples would include running a ‘meth lab’ to manufacture crystal methamphetamine (ice) or using a hydroponic system to cultivate large amounts of marijuana. However, production of illegal drugs can be done on a much smaller scale— like growing a single cannabis plant in a backyard (Queensland Government 2018).

E. Offences against the state Another category of serious crime involves conduct that is directed against a government (‘the state’). These are found mostly under federal law in the Criminal Code Act 1995 (Cth). A common example is terrorism, which involves violence that is designed to influence a government or intimidate a section of the public. You can read more about Australia’s terrorism laws in Chapter 12. Other examples include espionage (spying), treason and fighting for another country’s military forces.

F. Other offences The categories above capture the major types of serious criminal offences. There are many hundreds of criminal offences in state and federal law—simply too many to list or discuss at length. Some other categories of crimes include: • Public order offences—such as loitering, urinating in a public place, being publicly drunk, using offensive language, and being a public nuisance. • Road traffic offences—such as dangerous driving, driving under the influence, driving without a licence or exceeding the speed limit. • Occupational health and safety offences—such as exposing workers to a risk of death or serious injury by failing to maintain safety standards in a workplace. • Environmental offences—such as dumping chemicals in a protected marine area or causing excessive pollution. • Paternalistic offences—such as offences for unregulated gambling and prostitution. Increasingly, many of these offences are being punished with infringement notices and fines rather than periods of imprisonment. This reflects a governance approach to the criminal law, in which crimes are dealt with more quickly through financial penalties rather than proceeding to a full criminal trial (Brown, Cunneen & Russell 2017).

G. Summary vs indictable offences All of the crimes above fall into one of two overarching categories: they are either a summary or an indictable offence. This refers to how serious the crime is. A summary offence is a less serious offence which usually attracts a penalty of two years imprisonment or less. Trials for summary offences are held in the local (magistrates) courts. Summary offence a less serious offence punishable by two years imprisonment or less Indictable offence a more serious offence that attracts a penalty of three years imprisonment or more Heard summarily when an indictable offence is heard by a magistrate in the local court An indictable offence (pronounced ‘indightable’) is a more serious offence which usually attracts a penalty of three or more years imprisonment. According to section 80 of the Constitution, a jury must decide whether a person is guilty of an indictable offence under federal law. Jury trials for indictable offences are held in the district and supreme courts. However, some indictable offences can be heard summarily, meaning they are treated like a summary offence. This requires the defendant’s consent. For more on the different trial processes for summary and indictable offences, see Chapter 9.

III. WHEN IS SOMEBODY GUILTY OF A CRIME? A person will be guilty of a crime if a court finds that they have committed the elements of the offence beyond a reasonable doubt. This is a very high standard and means there must be no reasonable doubt that the accused person committed the crime. Elements the components or ingredients of a criminal offence

A. Physical and fault elements The elements of an offence are the components or ingredients that need to be proven beyond a reasonable doubt. For example, in Chapter 1 we looked at the offence of murder in New South Wales and distilled the elements by bolding the key words in the legislation. This gave us the following list of ingredients: 1. act or omission causing death; AND 2. intent to kill; OR 3. intent to inflict grievous bodily harm; OR 4. reckless indifference to human life. Elements such as these are typically divided into the physical elements of the offence and the mental elements of the offence. The physical elements of the offence describe the physical conduct involved in doing the crime. In this case, the physical elements of murder involve an act or omission that causes a person’s death. In other cases, the required physical elements could involve assaulting a person and causing harm, or stealing somebody’s property. The physical elements are also known as the conduct elements or the actus reus (which is Latin for ‘guilty act’). The mental elements describe the offender’s state of mind at the time the offence was committed. Generally, this means that a person must have intended to commit the criminal act. However, the mental elements can refer to any state of mind, including being reckless as to consequences or having knowledge of something. Physical elements elements that describe the offender’s conduct Conduct elements another name for the physical elements of a crime Actus reus the physical or conduct elements of a crime (means ‘guilty act’) Mental elements elements that describe the offender’s state of mind In this example, the mental elements of murder require that the accused either intended to kill, intended to inflict grievous bodily harm, or was recklessly indifferent to human life. These are alternatives, meaning that any one of these will satisfy the mental elements of the offence. The mental elements are also known as the fault elements of the offence or the mens rea (which is Latin for ‘guilty mind’). We can organise the list of elements into these categories for easier use: Fault elements another name for the mental elements of a crime Mens rea the mental or fault elements of an offence (means ‘guilty mind’)

Actus reus: 1. act or omission causing death; AND

Mens rea: 1. intent to kill; OR 2. intention to inflict grievous bodily harm; OR 3. reckless indifference to human life. Acquit find that a defendant is not guilty of a crime

For a person to be found guilty of a crime, both the actus reus and mens rea must be proven beyond a reasonable doubt. If either of these is not established, the person will be acquitted (found not guilty). For a person to be guilty of a crime, the actus reus and mens rea must also coincide: they must occur at the same time. Usually this is not a problem, but it can be an issue in some difficult criminal cases. For example, in Thabo Meli v R (1954) 1 WLR 228,4 two offenders struck a person on the head, intending to kill him. Thinking he was dead, they pushed him off a cliff to make it look like an accident. The victim did not actually die from the blow to the head or the fall, but he later died from exposure to the weather. The offenders argued that they could not be found guilty because their intention to kill did not coincide with the victim’s death. Their argument was ultimately unsuccessful, but the case shows how important considerations about actus reus and mens rea are to the criminal law. They represent the core philosophy of the criminal law as to when a person is considered guilty for committing a crime.

B. Inchoate and accessorial liability Attempt a type of inchoate liability in which an offender can be found guilty for trying to commit a crime but not completing it Inchoate liability the law relating to attempts and conspiracy (means ‘not fully formed or developed’) Even if a person does not fully complete the actus reus, they can still be found guilty of an attempt to commit the crime. This is called inchoate liability because the person is punished for an incomplete crime (inchoate means ‘not fully formed or developed’). For a person to be found guilty of attempt, they must do some initial act towards completing the actus reus. In legal terms, they must do something that is ‘more than merely preparatory’ to the offence (Criminal Code Act 1995 (Cth), s 11.1). Preparing for a crime might be morally wrong and create a risk of harm, but it does not ordinarily attract a penalty. A person could buy a gun, clean it, load it and practise shooting at a target so they can later kill someone, but none of those acts would constitute attempted murder. To be found guilty of attempted murder, an offender must try to kill a person and fail for some reason. This could involve shooting a person with intent to kill, but the person not dying from their wounds. Or the offender could pull the trigger but the gun misfires, or the bullet misses the target. Another type of inchoate liability is conspiracy. Conspiracy is where two or more people agree to commit a crime at some future time. Unlike the law of attempt, this does not require that the offenders do some act towards completing the actus reus—rather, it is the agreement itself that is punished.5 Merely agreeing to do something does not harm anyone, but conspiracy is treated specially because of the added risk of harm when multiple offenders are involved. A related concept is accessorial liability. This means a person can be found guilty even though a different offender completed the actus reus. A person is complicit in the commission of a crime if they aid, abet, counsel or procure the commission of the offence. This means a person can be found guilty if they encourage, assist, provide instruction to or otherwise facilitate another person to commit a crime. For example, they might supply the murder weapon, or instruct a person how to kill someone. Conspiracy a type of inchoate liability where two or more people can be found guilty for agreeing to commit a crime Accessorial liability a type of extended criminal liability in which a person can be found guilty for aiding, abetting, counselling or procuring the commission of a crime Complicit where a person encourages, assists, provides instruction or otherwise facilitates the commission of a crime A recent example of being an accessory to a crime relates to the shooting of Curtis Cheng by 15-year-old Farhad Jabar outside New South Wales Police headquarters in Parramatta. Raban Alou was sentenced to 44 years imprisonment for supplying the gun to Jabar. Alou pleaded guilty to aiding, abetting, counselling or procuring a terrorist act (Calderwood & Ford 2018). According to the law of complicity, a person can also be found guilty if they agree to commit a crime and encourage or assist another offender by being present when it is committed. For example, imagine two friends agree

to break into a warehouse at night and steal something. One of them keeps watch outside while the other cuts the fence, breaks the window and steals something from inside. In this case, the friend who is keeping watch did not complete any physical elements of the offence, but could still be found guilty for the same crimes (robbery, trespassing, breaking and entering) as the primary offender.

C. Defences The concepts above help us determine when somebody is guilty of a crime. There are also concepts that help us determine when somebody is not guilty of a crime. Defence a specific legal argument that excuses or partially justifies a crime A defence is a specific legal argument that justifies or excuses why a person committed a crime. In other words, the person did technically commit the crime, but there is some special reason why they should be not considered criminally responsible or should face a lesser penalty. This is different from arguing that the person did not commit the crime (although any argument presented for the accused can be called a defence in a broader sense). Defences are a category of specific legal arguments and, like offences, they have elements. If these elements are established, they will negate either the actus reus or mens rea, even though the person did the guilty act or had the guilty mind. (Technically, the accused must raise the possibility of the defence, and then the prosecution must disprove the elements.) Self-defence when a person reasonably believes another person will kill or seriously harm them (or a third party), and they respond with reasonably necessary force A common defence is self-defence. This is where a person believes on reasonable grounds that another person will kill or seriously hurt them, and they use reasonably necessary force to protect themselves. This can excuse the accused person for harming or killing someone who posed a threat to their safety. For example, a homeowner might kill an intruder with a kitchen knife during a home invasion because they believe their life is at risk. Self-defence allows a person to protect a third party—like a family member, friend or bystander—in the same way. Self-defence is a full defence, meaning the accused person will be found not guilty. Of course, in an individual case, there are usually difficult questions as to whether the force used was reasonably necessary. Being present during a home invasion is a traumatic experience, but it doesn’t necessarily mean the homeowner’s life is in danger. Even if a homeowner is eventually found not guilty, they can still face a long battle in the courts trying to prove that their actions were justified (Dengate 2016). Another common defence is provocation. This is where a person kills someone after being provoked and losing self-control. It is a partial defence to murder, meaning that the accused will be found guilty for the lesser crime of manslaughter. Full defence a defence that fully justifies a criminal act, meaning the defendant is acquitted Provocation a partial defence where a person kills someone after being provoked and losing self-control Partial defence a defence that partially excuses a crime, reducing a charge from murder to manslaughter The law on provocation has recently been amended in New South Wales and Queensland in response to criticisms that it was excusing horrific crimes. In R v Singh [2012] NSWSC 637, a New South Wales man was sentenced to six years for manslaughter after slashing his wife eight times with a boxcutter and slitting her throat. His defence of provocation was based on the fact that his wife told him she was leaving him for someone else and threatened to have him deported. In a Queensland case, a man was bashed to death by two offenders in the yard of a church (Burke 2017). The offenders argued provocation on the basis that the victim made unwanted homosexual advances towards them. The defence was formally dropped but the charges were still downgraded from murder to manslaughter. This case led to an online petition to abolish the so-called ‘gay panic’ defence. The petition was signed by nearly 300,000 people and led to the Queensland parliament changing the law (Burke 2017). There are also defences relating to a person’s mental impairment. The most well-known of these is insanity. A defence of insanity will be made out where the accused person could not understand what they were doing, could not control their actions or could not understand right from wrong. These elements—known as M’Naghten’s rules

from an old British case—actually set a very high bar. They are not argued lightly, as the result can be a special verdict where the offender is found not guilty but placed in mental health detention. A related defence is substantial impairment. This is a partial defence to murder on the basis that the person was operating under an ‘abnormality of mind’ (Crimes Act 1900 (NSW), s 23A). The abnormality must have significantly reduced their ability to understand what they were doing, control their actions or determine right from wrong. Insanity a defence that can be made out where an offender could not understand what they were doing, could not control their actions, or could not understand right from wrong M’Naghten’s rules common law rules relating to the defence of insanity Substantial impairment a defence that can be made out where the offender was operating under an abnormality of mind

D. Young offenders A final question about criminal responsibility relates to when children can be held legally responsible for a crime. In Australia, children aged ten years and over can be charged with a criminal offence. Those aged between ten and thirteen years fall under a rule called doli incapax (which means ‘incapable of crime’). This is a common law presumption that says children in that age range lack the capacity to understand the difference between right and wrong. In other words, they lack the necessary mens rea or intention to be held criminally responsible. However, that presumption can be rebutted by the prosecution, so children as young as ten years old can be prosecuted successfully. Children aged seventeen or under who are charged with a crime are treated as juvenile offenders. This means they are ‘typically dealt with separately from adults and treated less harshly than their adult counterparts’ (Richards 2011: 1). Unless the offence is very serious, criminal trials for young offenders are heard in specialist children’s courts, where restorative justice conferencing, rehabilitation programs and other diversionary programs are preferred over imprisonment. When imprisonment is considered necessary, young offenders are detained in separate youth detention facilities. As with adult detention, the youth justice system has a disproportionate impact on Indigenous Australians. In 2018, Indigenous young people were 26 times more likely to be in youth detention than nonIndigenous young people (Australian Institute of Health and Welfare 2018).

KEY POINTS • Crimes are specific types of conduct that are defined in legislation and attract a penalty of imprisonment. Conduct can be considered a crime because it causes harm to a person, causes harm to the wider community or is morally wrong. • The major categories of crime are homicide, assault, property offences, drug offences and offences against the state. There are also road traffic offences, environmental offences, and occupational health and safety offences. • A person will be found guilty of a crime where they have committed the elements of the offence beyond a reasonable doubt. This requires proving both the actus reus (guilty act) and the mens rea (guilty mind). • Defences are specific legal arguments that excuse or justify why a person committed a crime. Common defences include self-defence, provocation and insanity.

DISCUSSION QUESTIONS 1. What are three reasons we should consider conduct to be a crime? 2. What are the major categories of criminal offences? 3. Why do boxers not face criminal penalties for punching their opponents? 4. What are the different elements required for stealing, robbery and fraud? 5. Why should possessing drugs be a crime? What about selling them? 6. Can you think of some harmful activities in society that are not considered a crime?

7. What is the difference between actus reus and mens rea? 8. What is inchoate liability? Do you think a person should be punished for doing something even if no harm is caused to others? 9. Do you think somebody should face a lesser penalty of manslaughter, rather than murder, if they are provoked to kill someone? 10. At what age can a child in Australia be held criminally responsible? _______________ 4 This citation refers to a decision of the Privy Council, a British court that was previously the highest court of appeal for Australia and the other colonies. This case was heard on appeal from a South African decision. 5 Under federal law, conspiracy does require that the offender does an ‘overt act’ in pursuance of the agreement: Criminal Code Act 1995 (Cth), s 11.5. However, this is still broader than the law of attempt, as the relevant act could involve preparing for the crime.

Chapter 9 Police powers, bail and the criminal trial In this chapter you will learn about: Discretion as a key concept guiding the criminal justice system Common police powers such as arrest, search and questioning Bail, meaning the release of an accused person before trial The criminal trial process for summary and indictable offences This and the next chapter explain different stages of the criminal justice system. The criminal justice system is the collection of institutions and processes that impose penalties on people for committing crimes. This typically refers to the police, courts and prisons. This chapter begins with police using their powers to investigate a crime, progressing through to arrest, charge, bail and the criminal trial. The next chapter explains punishment, sentencing and appeals. Figure 9.1 sets out these different stages of the criminal justice process. Discretion the ability to choose between multiple courses of action that are lawfully available A key concept guiding each of these stages is discretion, meaning the ability to choose between available courses of action.

Figure 9.1: Stages of the criminal justice process

I. DISCRETION If someone has the discretion to do something, it means they can choose between valid possibilities. In the legal system, it means they have the right or ability to decide between different courses of action, each of which is lawfully available. Kenneth Culp Davis (1969) defined discretion in the following terms: a ‘public officer has

discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction’. In the criminal justice system, the law rarely prescribes a single course of action that must be done. Rather, it allows police officers, judges and magistrates to make decisions—such as which powers should be used, whether a power should be used at all, how serious a punishment will be and what a punishment should involve. Findlay, Odgers and Yeo (2014) explain that ‘discretion remains inbuilt within the formal and informal structure of policing, sentencing and punishment’. In other words, the criminal justice system relies to a large extent on the discretion of decision-makers including police officers, lawyers, judges and magistrates. Discretion is a positive thing, in that it allows decision-makers to deal appropriately with an individual case. Imagine a police officer pulls over a speeding driver, but the driver is speeding to see a family member in hospital. The officer could choose not to issue an infringement notice—even though the driver is technically breaking the law. At the sentencing stage of a criminal trial, if one offender has had a very hard life, including drug addictions and mental health problems, and another is purely greedy, a judge can punish those two people differently. This means the law can account for different motives, backgrounds, experiences and life histories. At the same time, too much discretion can lead to inconsistent decisions. One police officer might choose to let off the speeding driver, but a different officer might have issued the fine. Too much discretion can also make it difficult to know how such decisions are made. On what basis did one officer decide to issue the speeding ticket, but not the other? For a speeding ticket the consequences are not so severe—but in a criminal trial, the exercise of discretion by a judge can determine whether a person is imprisoned for a short or long time, or whether they are put in prison at all.

II. POLICE POWERS Police officers have many special powers that allow them to investigate crimes. They have powers to search for evidence, question suspects and arrest a person for committing a crime. Legislation defines the scope of these powers, when they can be used and how they must be used. In other words, the law aims to strike a balance between allowing police to investigate crimes and protecting the rights of suspects. Each state has legislation that regulates police powers. The precise details of these Acts differ but they all involve similar powers and limits. Each of these Acts is supplemented by regulations. Regulations provide additional details on how the powers must be used. The purpose of using these powers can be to protect public safety, but most police work involves collecting evidence to prove the elements of a criminal offence in court. Warrant an order issued by a judge that allows police to use a special power (for example, to search a house)

A. Searches One common power is to search people, vehicles, homes and other premises. According to different rules, these searches can be made with or without a warrant. A warrant is an order issued by a judge that says police can use a power for a particular purpose. Searching a person’s private home or other premises generally requires a search warrant (there are only a few exceptions for emergency situations). For example, section 41 of the Criminal Investigation Act 2006 (WA) says that police officers can apply for a search warrant in order to look for evidence relating to the commission of an offence. Section 42 says that a magistrate or other judicial officer can issue the warrant if there are reasonable grounds for suspecting the evidence will be found on the property. A search warrant gives police quite extensive powers: to enter and search the property, open anything that is locked, detain and search people, use electronic equipment and take photographs. Police can search people in certain circumstances without seeking a warrant in advance. This is known as a stop and search power. Section 29 of the Queensland legislation allows police to stop, detain and search a person without a warrant if the officer ‘reasonably suspects’ that ‘prescribed circumstances’ exist. According to section 30, prescribed circumstances include where the person is possibly carrying a weapon, explosive, unlawful dangerous drug or stolen property. The same reasons can be used to justify police searching a vehicle without a warrant. Stop and search a power that allows police to stop somebody on the street and search them for illegal

materials There are important protections relating to personal searches. According to section 32 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), a search must be conducted in a way that preserves the person’s dignity and privacy. The person must be asked for their cooperation and the search must be done wherever possible by a police officer of the same gender as the person being searched.

B. Questioning In order to investigate a crime, police can ask questions of members of the public, but the rules become more complex when they start questioning a person they suspect has committed a crime. Under Queensland law, police officers must caution a person once they form a suspicion that the person has committed an indictable offence. Cautioning means that the officer must inform the person of their right to silence and that anything they do say may be used in evidence against them. Caution (i) when police inform a person of the right to silence; (ii) an official warning issued by police Confession when somebody admits to committing a crime in its entirety Admission when somebody makes a statement that suggests they are guilty Right to silence a right that means suspects can refuse to answer police questions without this having negative implications for the criminal trial Privilege against self-incrimination the right of suspects to refuse to answer police questions that would reveal information suggesting they are guilty In addition, the officers must inform the person that they are allowed to phone a friend or relative and a lawyer. The officers must record the questioning wherever possible and any confessions or admissions need to be recorded or signed in writing. Under common law, a confession is made when the suspect admits they committed the entire crime, and an admission is any other statement that suggests the person is guilty. Police officers cannot obtain a confession or admission by threat, force or promise. The right to silence and the privilege against self-incrimination mean that suspects can refuse to answer police questions that would reveal information suggesting they are guilty. This is a core element of the burden of proof, meaning it is up to police to prove that a crime was committed, and not to the accused person to prove their innocence. These rights are protected by legislation, and a person’s silence cannot be used as evidence against them in court. However, there are some exceptions. In 2013, the New South Wales parliament enacted the Evidence Amendment (Evidence of Silence) Act 2013 (No 9) (NSW), which allows negative inferences to be drawn when a person refuses to answer police questions in some specific circumstances. Under this law, a jury can infer from a defendant’s silence that they are trying to hide their guilt. The law was enacted in response to a series of drive-by shootings and applies to serious indictable offences punishable by five or more years in prison. The Australian Security Intelligence Organisation (ASIO), Australia’s domestic intelligence agency, also has special powers that undermine the right to silence. Under a special questioning warrant, a person who refuses to answer one of ASIO’s questions will face five years in prison (you can read more about this in Chapter 12).

C. Arrest Arresting a person means taking them into police custody for the purposes of a criminal investigation. This does not require the use of handcuffs; the person might already be at the police station and cooperating with police. However, police officers may use handcuffs and any other reasonably necessary force to make an arrest. The officers must inform the person that he or she is under arrest and advise them of the nature of the crime for which they are being arrested. An arrest can be made with or without a warrant. Arrest to place a person under police custody for the purposes of pursuing criminal charges Police officers can also arrest a person without a warrant if they reasonably suspect the person has committed or is

committing a crime and the arrest is reasonably necessary for some additional purpose, such as to prevent a crime, gather evidence, establish the person’s identity or prevent the person from fleeing. If none of these reasons are valid, there are alternatives to arrest, such as issuing a summons or notice to appear. Both of these notify an offender that they must appear in court on a certain date. Summons a formal order issued by police that requires a person to attend court at a later date Notice to appear order issued by police that requires a person to attend court at a later date A general principle underlying arrest is that an accused person must be taken before a magistrate as soon as possible to answer the case against them. In Williams v R (1986) 161 CLR 278, the High Court held that it is ‘unlawful for a police officer having custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person’s complicity in a criminal offence.’ However, this general rule from the common law has been modified by statute. Following arrest, police now have a limited time to ask additional questions for the purposes of investigating the crime and gathering evidence. This period is known as pre-charge detention. The period of detention is generally for a reasonable time not exceeding eight hours, but this can be extended for more complex and serious crimes. Pre-charge detention the limited time available for police to question a suspect after arrest and before charge

D. Charge Once police are satisfied there is sufficient evidence the person has committed the crime, they can decide to charge that person. Charging a person is an administrative decision which signals that the police intend to prosecute the crime in court. This is done by presenting the person with a document (called a charge sheet or bench charge sheet) that specifies the criminal offence the police are alleging, as well as a brief description of the facts involved. At this stage, the police usually work closely with a prosecution service to determine whether there is sufficient evidence to charge the person and, if so, which offence or offences are the most appropriate. A prosecution service is an office of lawyers working for the government who pursue criminal charges in court. For less serious offences, the charges will often be pursued by a police prosecutor. A police prosecutor is a police officer who has undertaken additional legal training. Prosecution service office of lawyers working for the government who pursue criminal charges in court Police prosecutor a police officer with legal training who pursues criminal charges in court Sometimes it will be clear which offence the person has committed, but often there are difficult choices involved. As discussed in the previous chapter, for example, there are many different types of assaults, each with specific requirements relating to harm and intention. Generally, the police and prosecution will charge the offender with the most serious crime that is available on the evidence. However, they need to be careful with this decision: if they try to prosecute the person for a serious offence that is not available on the evidence, the case will fail. There are also requirements in prosecution service guidelines that prosecuting a person should be in the public interest (Commonwealth Director of Public Prosecutions 2016). Where prosecution is not in the public interest, there are several alternatives. For less serious offences, police can issue a caution—meaning that the person is given an official warning not to do it again—or an infringement notice (a ticket that requires payment of money as a fine). They could also divert the person to restorative justice initiatives such as mediation or counselling. Infringement notice ticket that requires payment of money as a fine

E. Misuse of police powers If police misuse any of their powers, there are multiple ways they can be held accountable. The most common consequence is that any evidence they collected unlawfully will be excluded from the courtroom. For example, if police officers obtain a confession by threatening a suspect, or search a suspect’s home without a warrant, a judge could refuse to have the confession or any physical evidence from the house admitted into evidence. If the evidence

is important to proving the charge, the prosecution could fail as a result. This happened in 2019 when prosecutors dropped charges against a man for the murder of Cheryl Grimmer, which happened 50 years prior on a Wollongong beach south of Sydney. The man confessed to the crime when he was interviewed by police in 1971 (when he was seventeen) but the officers did not caution him about his legal rights, so the judge excluded that interview from evidence (Mitchell & Thompson 2019). This is why it is crucial that police collect evidence and question suspects according to the letter of the law. If police engage in more serious conduct—such as using excessive force in making an arrest, or coercing a suspect into a confession—more serious consequences are available. The suspect can make a complaint to the police station, a state ombudsman or an anti-corruption body such as Queensland’s Crime and Corruption Commission. An ombudsman is an office that investigates complaints by members of the public against government departments and employees. These avenues can lead to the suspension or termination of an officer’s employment. Ombudsman an office that investigates complaints against members of government departments Damages court-ordered payment of money as compensation Tort a harm done to a person that attracts liability under civil rather than criminal law In cases where a person is seriously mistreated by police, a civil claim could lead to the payment of damages (money as compensation). For example, if a person was physically harmed or detained wrongfully for an extended period of time, a claim for damages could be made under the torts of assault or false imprisonment. A tort is where some harm or wrong is done to a person, but this attracts liability under civil law rather than a criminal penalty. Ultimately, criminal charges for assault, manslaughter or murder remain a possibility if a police officer causes harm that is sufficiently serious, reckless or intentional (Cooper 2017).

III. BAIL After a person is charged, but before they face trial, there is a difficult question of what to do with them. For minor offences, a person can be taken to the local (magistrates) court the next morning, or they can be released from police custody and attend court at a later date on summons. However, for more serious offences the accused might pose a risk to public safety or flee from the authorities if released. These people are held on remand, meaning they are detained in a prison (usually in a separate section to other prisoners) until they face trial. Remand when somebody is held in prison after they are charged and before the criminal trial About one-third of Australia’s prison population is held on remand (Russell & Baldry 2017). Between 2012 and 2017, the remand population increased by 87 per cent, likely due to more people being refused bail and a backlog in court cases (Russell & Baldry 2017). Bail the conditional release of a person after they are charged and before the criminal trial Conditional when a person’s release is subject to restrictions and obligations, such as reporting to a police station Bail refers to the release of an accused person from police custody before they face trial. The release is conditional, meaning that restrictions and obligations are imposed on the person to ensure that they remain accountable to police and attend court at a later date. A common example is where a friend or relative pays a sum of money as a bond to guarantee the person’s appearance at court, which will be forfeited if they flee. However, bail does not have to involve the payment of money—it can involve many other obligations, such as reporting to a police station several times a week. For minor offences, bail can be granted by the police. For more serious offences, decisions about bail are usually made by a magistrate in the local court. Legislation in each state guides how these decisions are made. The starting point is a presumption that bail will be granted, unless there is a reason to refuse it. Bail will typically be refused if the accused person poses a threat or is considered a ‘flight risk’. In Victoria, Section 4E of the Bail Act 1977 (Vic) says that a court will refuse to grant bail if the magistrate is satisfied of an ‘unacceptable risk’ that the person would commit a crime, endanger the safety of any person, fail to return and surrender into custody, or interfere with witnesses and evidence. In Victoria and Queensland, magistrates must now also give consideration to the risk of

family and domestic violence. A recurring issue with bail is that some offenders commit further crimes while they are released from custody. Some high-profile examples of this have led to state bail laws being amended. For example, Man Haron Monis, the gunman who held eighteen people hostage in Sydney’s Lindt Café in December 2014, was on bail for more than 40 sexual assault charges and a charge of being an accessory to the murder of his ex-wife (Hall & Hasham 2014). Following the tragic events of the Sydney siege, the New South Wales bail laws were amended to deny bail to anyone involved in terrorism unless ‘exceptional circumstances exist’ (Bail Act 2013 (NSW), s 22A). Victoria’s bail laws were tightened following the Bourke Street Mall attack in 2017, in which an offender drove his car into pedestrians, killing six and injuring nearly 30 more. At the time of the attack, the offender was on bail for several domestic violence offences (McGrath 2017). It is crucial for courts to refuse bail if a person poses a threat to other members of the community. At the same time, bail remains an important aspect of due process and the presumption of innocence. Nobody should be detained as guilty of a crime until their guilt has been decided by a judge or jury of their peers. In Williamson v DPP (1999) QCA 356, Justice Thomas explained this difficult compromise, namely that bail remains a core aspect of the legal system but also creates a risk of harm: Presumption of innocence the principle that nobody should be detained as guilty of a crime until their guilt has been determined by a court No grant of bail is risk free. The grant of bail however is an important process in civilised societies which reject any general right of the executive to imprison a citizen upon mere allegation or without trial. It is a necessary part of such a system that some risks have to be taken in order to protect citizens in those respects.

IV. THE CRIMINAL TRIAL A criminal trial is a series of court proceedings in which a magistrate or jury determines whether a person accused of a crime is guilty or not guilty. During a criminal trial, the person accused of the crime is known as the defendant because they are defending the charge against them. For less serious offences, the prosecutor is often a police prosecutor. For more serious offences, the prosecution is a team of lawyers from the state or federal prosecution service. Defendant the person defending criminal charges in court

A. Pre-trial There are a number of important stages before the trial itself. Pre-trial disclosure is a process in which the prosecution discloses all relevant evidence to the defence. The general rule (with limited exceptions) is that the defendant does not need to disclose anything to the prosecution. This is another aspect of the burden of proof and the presumption of innocence: it is up to the prosecution to prove the defendant is guilty, and not for the defendant to prove their innocence. Pre-trial disclosure the requirement that the prosecution disclose all relevant evidence to the defence before trial Committal hearing a hearing held in the local court to determine whether a criminal case should be heard in a higher court Committal hearings take place before the trial for many indictable offences. A committal hearing is a preliminary hearing of the prosecution’s case in a local court. The purpose of a committal hearing is for the magistrate to decide whether there is sufficient evidence against the accused to commit (send) the case to a full trial in a higher court. Depending on the seriousness of the offence, the higher court will be the district or supreme court. Commit to send a case to a higher court

Committal hearings give the defence an opportunity to hear the case against them. They allow the court system to weed out cases that lack sufficient evidence, and they allow the defence and prosecution to agree on the key legal issues for trial. However, there is a trend away from full committal hearings due to the added time and cost involved (Flynn 2012).

B. Summary trials How a criminal trial proceeds depends on whether the person is accused of a summary or indictable offence. For summary offences (or if an indictable offence is heard summarily) the case is heard by a magistrate in a local court. The first step is for the defendant to be arraigned: this means the charge is read out to the defendant. The next step is for the defendant to enter a plea of guilty or not guilty. This means the defendant declares to the court whether they accept or will contest the charge. If the defendant pleads guilty, there is no presentation of evidence and the case will proceed straight to sentencing (you can read more about this in Chapter 10). Arraign when a judge or magistrate reads out a criminal charge to a defendant Enter a plea when a defendant claims to the court that they are guilty or not guilty of the crime Summary trial criminal trial in the local (magistrates) court, which is decided by a magistrate alone If the defendant pleads not guilty, a summary trial takes place. The prosecution presents evidence against the accused. The defendant contests that evidence and presents additional evidence to defend the charge. In a summary trial, the magistrate alone determines whether the person has committed the elements of the criminal offence (both the actus reus and mens rea) beyond a reasonable doubt.

C. Jury trials For indictable offences, the case is heard by a judge and jury in the district or supreme court. This is required for offences under federal law by section 80 of the Constitution, which protects the right to a trial by jury. Prosecutions for indictable offences under state law can be heard by judge alone, though this is rare and normally requires the consent of both parties. At the start of a jury trial, the defendant is arraigned and enters a plea. If the plea is guilty, the case proceeds straight to sentencing. If the plea is not guilty, a jury trial takes place. This begins with the jury being empanelled. A jury is made up of members of the public (usually twelve) who are chosen randomly from the electoral roll. A larger group of people is required to turn up to the courtroom because some ask the judge to be excused and others are challenged by the defence or prosecution lawyers. Jury trial criminal trial held in district or supreme court, where a jury decides the defendant’s guilt Empanel to select and enrol the members of a jury Lawyers from both sides can challenge a small number of jury members without giving a reason. This is called a peremptory challenge. Once the jury is finalised, the members are asked to take an oath or affirmation that they will perform their job faithfully. Peremptory challenge when the prosecution or defence challenges the enrolment of a juror without giving a reason A jury trial is similar to a summary trial, in that the prosecution presents evidence against the accused, the defendant contests the charge and the judge acts as a referee or umpire. However, the major difference in a jury trial is that the jury—not the judge—determines whether the person is guilty or not guilty. The jury must be satisfied, as a question of fact, that the person committed the elements of the offence (actus reus and mens rea) beyond a reasonable doubt. At the end of the trial, after all the evidence has been presented and the jury has retired to consider their decision, the jury returns to the court to present the verdict. The verdict is the jury’s decision as to whether the defendant is guilty or not guilty. It is announced by the foreperson, who is appointed as a leader and representative for the jury. Usually, the verdict must be unanimous (all twelve people agreeing that the person is guilty or not guilty). However,

there is some provision for majority verdicts where a jury cannot reach a decision. This requires eleven out of twelve jury members to agree. It is not available in trials for offences under federal law. Verdict the magistrate or jury’s decision whether a person is guilty or not guilty Foreperson a person appointed as the leader and representative of the jury Majority verdict a decision agreed by eleven out of twelve jury members Jury trials are a core aspect of due process and the right to a fair trial. For indictable offences, the fate of an accused person is decided by a group of their peers rather than a single judge. This reflects our democratic values, because the decision is made by a group of people who (in theory) represent the rest of the population. These are positive aspects of the jury trial, but this does not mean jury trials are perfect. Jurors do not have legal expertise and, like anybody, they are capable of getting things wrong. There have also been increasing problems with jurors accessing information outside the courtroom. In theory, the idea is that the jurors know nothing about the case beforehand, so they can decide the person’s guilt objectively on the evidence in court. However, in the age of social media and a 24/7 news cycle, it is very difficult to shield a jury completely from the outside world. The risk is that jury members could see a media report or other information that suggests the defendant is guilty, when that information has not been admitted as evidence. Some jurors have even been caught posting their decision on social media before all the evidence has been heard (Bartels 2013). The role of the judge in a jury trial is to answer questions of law (rather than questions of fact). The judge does not determine whether the accused person is guilty or not guilty. Rather, the judge determines the meaning of legal words and tests from legislation and case law and explains these to the jury. Importantly, the judge also determines which evidence can be put before the jury. For example, if police officers have collected any evidence unlawfully, that evidence can be excluded from the courtroom. Lawyers from both sides will make arguments (while the jury is not present) as to whether the evidence should be admitted.

D. Evidence In both summary and jury trials, there are complex evidence rules governing the types of information and physical evidence (such as a witness statement, murder weapon or other object) that can be put before the court for consideration. The starting point is that all evidence presented to the court must be relevant to proving or denying the elements of the offence. In other words, the evidence must have probative value—it must be relevant to a rational assessment of whether the offence was committed. Probative value the extent to which evidence is relevant to a rational assessment of whether the person is guilty There are many categories of evidence that can be excluded from a courtroom. Evidence that is unlawfully or improperly obtained will generally be excluded, though it can still be admitted if the probative value of the evidence is significant and the wrongdoing involved in collecting it is minor. Any other evidence that would cause ‘unfair prejudice’ to an accused can also be excluded at the judge’s discretion. Prejudicial evidence is evidence that would unfairly suggest the defendant is guilty or lead the jury to make an irrational or emotional decision. For example, showing excessively graphic images or video footage of a murder scene to a court could make a jury more likely to believe the defendant is guilty of wrongdoing. Prejudicial evidence evidence that would unfairly suggest the defendant is guilty or lead the jury to make an irrational or emotional decision Hearsay statements that are heard second-hand Other evidence typically excluded from consideration includes hearsay and opinion evidence. Hearsay is essentially when a person hears something second-hand (i.e., they heard somebody say something). It is not considered a reliable account of events to say ‘Steve told me that Jake killed someone’, so these kinds of statements are generally excluded from evidence (the exception would be if the mere fact that Steve made that statement had probative value but a statement such as this could not be used to prove the truth of what Steve was saying—this is

why evidence is a very difficult area of law!). Opinion a belief that something was likely to happen, which is not based on evidence or expert training Equally, a person’s opinion that something was likely to happen is not considered reliable, unless the person is an expert witness trained in a particular discipline like psychiatry or forensic pathology. Steve might think that Jake is the kind of person who would commit murder, but this is irrelevant to a court. On the other hand, a psychiatrist could give expert evidence that Jake had a particular personality type or pathology, such as being a sociopath or psychopath, that makes it more likely that he committed the crime.

E. Witnesses A core aspect of the criminal trial involves hearing evidence from witnesses. These can be eyewitnesses who saw the crime took place, or expert witnesses who can comment on evidence from the crime scene or the offender’s psychological state. Witnesses can be called by either the prosecution or defence. When a witness ‘takes the stand’, it means they step into a witness box to give their testimony. This is a formal statement to the court setting out their interpretation of the events. There is a specific procedure for witnesses giving evidence. First is the evidence-in-chief. This is where the lawyer who called the witness to the stand asks a series of questions to elicit the testimony. Next is the crossexamination. This is where lawyers from the opposing side have an opportunity to ask the witness questions. Usually, the questions are designed to undermine the accuracy of the testimony. For example, the defence lawyers might ask an eyewitness whether they could actually see the crime taking place. The final stage is re-examination. This is where the lawyers from the side that called the witness can clarify any confusion arising from the crossexamination. This process of giving evidence is repeated over and over until all evidence from both sides has been presented. For complex criminal trials, this can take many months. At the end of this process, the lawyers for both sides present a closing address to the court that sums up their key evidence and arguments. Witness a person who presents testimony to the court Eyewitness a witness who saw a crime take place Testimony a formal statement made by a witness to the court which sets out their interpretation of events Evidence-in-chief the initial statement of a witness’s testimony, as elicited through a series of questions from the lawyer who called the witness to the stand Cross-examination when lawyers ask questions to undermine the accuracy of testimony presented by a witness called by the opposing side Re-examination the final stage of questioning a witness, when the side that called the witness can clarify any confusion arising from the cross-examination Closing address final speech made by a lawyer to the court, which sums up the major arguments from their side After all the evidence is presented, if the magistrate or jury returns a verdict of not guilty, the defendant is free to leave the courtroom as there is no legal basis to hold them in custody any longer. If, on the other hand, the defendant is found guilty, then the trial proceeds to sentencing. In a relatively simple trial, sentencing can happen straight away, but it is more common for a judge to set a later date for a dedicated sentencing hearing.

KEY POINTS • Police have many special powers to investigate crimes. These powers are set out in legislation, which says how and when the powers can be used. Common police powers include searching private homes with a warrant, questioning suspects and arresting people who they suspect have committed an offence. • Bail refers to the release of an accused person from custody after charge and before trial. Decisions about bail

are usually made by a magistrate in the local court, who specifies conditions (like paying a bond of money or reporting to a police station) to ensure the person’s appearance before the court. • The criminal trial process depends on whether the accused is charged with a summary or indictable offence. Trials for summary offences are heard in the local court by a magistrate alone, who determines whether the person is guilty. Trials for indictable offences are heard in the district or supreme court, where a judge decides questions of law and a jury decides the person’s guilt.

DISCUSSION QUESTIONS 1. What are the benefits and dangers of a criminal justice system that relies heavily on the discretion of decisionmakers? 2. What discretion is available to decision-makers at each stage of the criminal justice system explained above? 3. What is a warrant, and what powers does a search warrant give to police? 4. How does a magistrate decide whether an accused person should be released on bail? 5. Do you think bail should be available to all accused persons, even though there is a risk they will reoffend while they are released? 6. How does the criminal trial process differ depending on whether the accused is charged with a summary or indictable offence? 7. What types of information can be presented before a court as evidence of a crime being committed, and what types of information can be excluded from consideration? 8. Do you think evidence collected by police should be excluded from the courtroom if the officers did not strictly conform to the letter of the law? 9. What are some of the advantages and disadvantages of a jury trial?

Chapter 10 Punishment, sentencing and appeals In this chapter you will learn about: The types of punishments issued by courts Purposes of punishment and principles of sentencing Aggravating and mitigating factors Sentencing of Indigenous offenders Imprisonment and parole Appeals against conviction and sentence This is the second of two chapters that explain the stages of the criminal justice system. This chapter addresses punishment, sentencing and appeals. If a defendant pleads guilty or is found guilty by a magistrate or jury, they are sentenced for the crime. This is where a magistrate or judge determines the type and severity of the punishment they will receive. For offenders who are convicted and imprisoned, they can later apply for release on parole. A convicted person can appeal against their conviction or sentence. This means challenging the decision in a higher court.

I. PUNISHMENT AND SENTENCING There are many types of orders and restrictions, other than imprisonment, that courts can deliver as punishments for a convicted person. In determining an appropriate sentence, judges and magistrates must consider the purposes of punishment, principles of sentencing, aggravating and mitigating factors, and other relevant factors. These are all weighed up together in a method called ‘instinctive synthesis’.

A. Types of punishment It is important to recognise that courts are not required to imprison every convicted person (or even register a conviction). While imprisonment is a common punishment for serious offences, there are many other options. The availabilty of these depend on the jurisdiction a defendant is convicted in. Courts can issue fines, order compensation or impose a community service order that requires the offender to complete a specified number of hours volunteering in the community. Probation is where an offender is released on conditions, such as reporting regularly to a corrective services officer and participating in counselling and rehabilitation programs. A suspended sentence is a prison term that is not served immediately but can be triggered if the person commits another crime. Probation and suspended sentences usually involve a good behaviour bond, which is essentially a promise not to commit another crime. If the offender breaches the good behaviour bond, a prison sentence may then be triggered. Community service order an order issued by a court that requires a convicted offender to complete a specified

number of hours volunteering in the community Probation when a convicted offender is released on conditions, such as reporting to a corrective services officer at regular times Suspended sentence a prison term that is not served immediately but can be triggered if the offender commits another crime Good behaviour bond an order issued by a court that requires an offender to promise they will not commit another crime Purposes of punishment the reasons why a court punishes an offender Retribution punishment inflicted as repayment for a harmful act Rehabilitation helping an offender address the underlying reasons why they committed a crime Deterrence signalling to the community or an offender that committing a crime will attract punishment, to encourage them not to offend General deterrence when a court signals to the community that committing a crime will attract punishment, to encourage them not to offend Specific deterrence when a court signals to an offender that their actions will be treated severely, to encourage them not to reoffend

B. Purposes of punishment There are many different factors that a sentencing judge or magistrate needs to consider in determining an appropriate punishment. The first are the purposes of punishment. These are the reasons why the court is punishing the person. They include retribution, being the need simply to punish the person for the harm they caused. Another is rehabilitation: this means the court can help the person address the underlying reasons they committed the crime in the first place (such as mental health problems or a drug addiction). Another is deterrence, which has two types. General deterrence means the court can signal to the entire community that the crime will be treated severely, which may prevent others from engaging in the same conduct. Specific deterrence means the court can signal to the individual that their actions will be treated severely, which may prevent them from reoffending. Denunciation to declare that conduct is morally wrong Incapacitation to put a person in prison to protect the community from further harm Another purpose of punishment is denunciation, being the need for the court to denounce conduct that is harmful or morally wrong. This means the court declares publicly that the conduct is wrong and will be punished. A final purpose is incapacitation, which means protecting the community from further harm. When a person is imprisoned, they are incapable of committing further crimes. These purposes of punishment are set out in legislation and judges are required to take them into account in weighing up the type and severity of punishment. In the ACT, Section 7 of the Crimes (Sentencing) Act 2005 (ACT) provides that a court may impose a sentence on an offender for the purposes of retribution, community protection, rehabilitation, denunciation or any combination of these factors. A key issue is that the purposes do not always point in the same direction. Retribution, incapacitation and deterrence suggest that a penalty should be more severe, whereas rehabilitation suggests that a penalty should be less severe. In Veen (No 2) (1988) 164 CLR 465, the High Court explained that the purposes may conflict with each other and are simply ‘guideposts’ to help a judge to determine an appropriate sentence: The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. Principles of sentencing general rules that explain how a judge should arrive at an appropriate sentence Proportionality the principle that punishment should bear an appropriate relationship to the conduct being

punished Parsimony the principle that a judge should favour the least severe sentence that is appropriate Totality when an offender is sentenced for multiple crimes, the principle that a judge should deliver a sentence that is fair overall

C. Principles of sentencing Sentencing judges must also take into account the principles of sentencing. These are a series of principles explaining how a judge should determine an appropriate punishment. The first is proportionality, meaning that the punishment should bear an appropriate relationship to the conduct being punished. In other words, ‘the punishment should fit the crime’. Another principle is parsimony, meaning that the judge should favour the least severe sentence that is appropriate. A third is totality, which applies where an offender is being sentenced for multiple crimes. While the maximum penalties could theoretically be added up to deliver a crushing sentence, the offender should receive a sentence that is proportionate overall. For example, if an offender is facing ten counts of common assault, each attracting a maximum penalty of two years imprisonment, they would theoretically be facing twenty years in prison for ten relatively minor assaults. In a case like this, the overall sentence should reflect the defendant’s moral responsibility, and not reach the total maximum penalty. Consistency the principle that sentencing judges should treat similar cases in a similar way Parity when multiple offenders are being sentenced for the same crime, the principle that those offenders should receive a similar sentence A fourth principle is consistency, which means that similar cases should be treated in a similar way. Sentencing judges are not required to follow precedent in the same way as trial judges, but there is a need for overall consistency between decisions. A fifth is parity, meaning that multiple offenders being punished for the same offence should receive a similar sentence. However, a final principle is individualised justice, which means that courts should impose sentences that are appropriate in all the circumstances of an individual case. Individualised justice the principle that a punishment should be fair in all the circumstances of an individual case

D. Aggravating and mitigating factors In order to achieve individualised justice, sentencing judges must take into account all aggravating and mitigating factors that are relevant to the case. An aggravating factor is any piece of information that suggests a punishment should be more severe. This could include details about how the offence was committed, like whether the offender used a weapon, or who the offender targeted as a victim (an assault against a child, or an elderly or disabled person, for example, would be treated more severely). Aggravating factors could also relate to the offender’s motive for committing the crime, such as whether the crime was motivated by greed or revenge. Aggravating factor any piece of information that suggests a sentence should be more severe A mitigating factor is any piece of information that suggests a punishment should be less severe. These typically include details from the offender’s background that excuse or justify their conduct to some degree. It might be, for example, that the offender has a history of being sexually abused, or problems with alcohol or drug addiction, which have influenced their violent nature. Mitigating factors will also be taken into account where the offender has pleaded guilty, cooperated with the authorities, or expressed remorse about committing the crime. Mitigating factors are not the same as defences, such as those we looked at in the previous chapter. Those are legal arguments that formally reduce or remove the offender’s criminal responsibility. Mitigating factor any piece of information that suggests a sentence should be less severe

E. Evidence

The evidence presented during the sentencing hearing can be much wider than the evidence presented at trial. At trial, all evidence presented must be relevant to the question of whether the offence was committed. An offender’s background and motive are considered irrelevant to the actus reus and mens rea. The trial is designed only to prove or disprove that the offender did the act with the required intention. In a sentencing hearing, there are few limits on the kinds of information that could be presented to the sentencing judge or magistrate. Any relevant information about the offender—including their age, employment history, relationships with family members or involvement in the community—could be considered. This information has no bearing on the person’s guilt, which has already been established. However, it can be useful for the court to determine an appropriate punishment. Section 9 of the Penalties and Sentences Act 1992 (Qld) sets out the many factors that courts must take into account in sentencing. These include: • The maximum and any minimum penalty for the offence • The nature of the offence and the seriousness of the offender’s conduct • Any physical, mental or emotional harm done to a victim • The extent to which the offender is to blame for the offence • The offender’s character, age and intellectual capacity • Any aggravating or mitigating factor • The prevalence of the offence (how often it occurs) • How much assistance the offender gave to law enforcement agencies • Any other relevant circumstance. You can see from this list that the information relevant to sentencing can far exceed the evidence used at trial to determine whether the defendant is guilty. Many different types of documents—including psychologists’ reports, character references, letters of apology, or evidence of participation in rehabilitation programs—can all be tendered as evidence in a sentencing hearing. Another key piece of information presented in many sentencing hearings is a victim impact statement. This is where the victim (or in the case of a murder or other homicide, the victim’s family) explains how the crime has impacted on them. The statement can be written or oral. The harm described might be physical, psychological, or involve a negative impact on employment or personal relationships. For example, an assault in a domestic violence case may cause not only physical harm (like bruising or broken bones) but also ongoing depression and anxiety that impacts on the victim’s ability to hold down a job or enjoy socialising with others. Following a murder or other homicide, the process allows the family to present a picture of who the victim was, to explain the loss they have suffered. Many of these details would not be allowed at trial because they are not relevant to whether the offence was committed, but they can help the court arrive at an appropriate sentence. Victim impact statement prepared statement presented to a court that explains the impact of a crime on a victim or victim’s family

F. Instinctive synthesis The overarching task for a sentencing judge or magistrate is to determine an appropriate punishment by weighing up the offender’s conduct in combination with many other factors: the purposes of punishment, the principles of sentencing, aggravating and mitigating factors, the impact on victims and any other relevant factor. This is a complex decision-making process involving significant discretion. Instinctive synthesis the overall process followed by sentencing judges, in which they weigh up all relevant factors The method for arriving at an appropriate punishment is called instinctive synthesis. This means the judge is engaged in an essentially subjective and intuitive exercise, guided by the principles and factors explained above, as to what he or she thinks is appropriate. This has been criticised for being too vague and subjective (Traynor & Potas 2002). However, it is clear that instinctive synthesis is the decided method that sentencing judges should rely upon. The High Court has firmly rejected a ‘two-tier approach’, in which some objectively determined punishment (such as a predetermined number of years in prison) is tweaked up or down for an individual case (Markarian v R [2005] HCA 25). A two-tier approach is considered too significant a restriction on a judge’s discretion.

The wide degree of discretion given to sentencing judges is mitigated to some extent by the need for consistency in sentencing decisions. If a sentence is overly harsh or inadequate compared to previous similar decisions, the offender or prosecutor can appeal against the sentence. Appeal courts in some jurisdictions can also issue a guideline judgment that explains the typical punishment for an offence or how a sentence should be decided (for example, a guideline judgment might explain how different aggravating and mitigating factors should be weighed). Guideline judgment judgment issued by a sentencing judge that explains the typical punishment for an offence Sentencing advisory council state body that conducts research, produces advice and educates communities about sentencing Most states have a sentencing advisory council that conducts research and produces advice on sentencing matters. Sentencing councils publish statistics on sentencing, educate communities about sentencing and test community views as to whether different punishments are fair. For example, Victoria’s Sentencing Advisory Council has produced an interactive online program called ‘You Be the Judge’ (Sentencing Advisory Council 2017). Community members can hear offenders’ stories, decide on an appropriate punishment and compare their sentence with that given by the actual judge.

G. Mandatory minimum sentences In the criminal law, the usual approach to setting penalties is to set a maximum penalty, which the sentencing judge cannot exceed. The judge can impose any penalty of imprisonment up to and including that amount, or rely on an alternative to imprisonment (such as probation, a good behaviour bond or a community service order). Occasionally, criminal laws set a fixed or minimum penalty that the court must impose. This is common for many minor offences, like exceeding the speed limit, which attract a fixed penalty (a monetary fine and a specified number of demerit points). The practice becomes much more controversial when parliament sets a minimum term of imprisonment for a serious crime. Setting a minimum penalty of imprisonment removes the discretion of the sentencing judge to recognise and account for factors specific to the individual case. The practice of mandatory minimum sentencing caught public attention after state parliaments started introducing new offences to address the problem of alcohol-fuelled violence and ‘one-punch’ attacks. In 2012 and 2013, the New South Wales parliament introduced ‘lockout laws’ that prevent anyone from entering a bar in the Kings Cross district after 1.30 a.m. In 2014, it also introduced an offence of ‘assault causing death’ into the Crimes Act 1900 (NSW). Where an offender is over eighteen and intentionally strikes a person while intoxicated, thereby causing the person’s death, the court must impose a minimum sentence of eight years imprisonment. Mandatory minimum sentencing when parliament sets a minimum penalty that must be applied whenever a person is convicted of an offence These changes were introduced following the death of Thomas Kelly, an 18-year-old Sydney boy who was assaulted by a complete stranger on a night out in Kings Cross. Kelly was knocked unconscious by a single punch and later died from injuries to the brain. Another high-profile case contributing to the new laws was the death of 18year-old Daniel Christie in Kings Cross on New Year’s Eve in 2013. The lockout laws caused significant controversy among party-goers and the liquor and gambling industry, to the point where Thomas Kelly’s younger brother committed suicide after experiencing bullying, hazing and death threats (Bagshaw 2018). There is evidence that the lockout laws have significantly reduced alcohol-fuelled violence around Kings Cross (Donnelly, Poynton & Weatherburn 2017). However, there is no evidence to suggest that mandatory minimum sentences act as an effective deterrent or help to reduce crime over the long term (Fitzgibbon & Roffee 2017). Mandatory minimum sentences are controversial not only because they significantly reduce the discretion of a sentencing judge, but also because they undermine the separation of powers. Instead of a court deciding on an appropriate penalty, politicians in parliament have decided in advance what a punishment must require. In other contexts, mandatory minimum sentencing has a disproportionate impact on Indigenous offenders. This is due to their increased contact with the criminal justice system. In Western Australia and the Northern Territory, mandatory minimums apply to a range of property offences and serious assaults. In one case, a 15-year-old orphaned Aboriginal boy was imprisoned under a minimum penalty for stealing around $50 worth of pens and stationery from

a council building (Howe 2001). He later committed suicide in prison. As Hilde Tubex (2016) from the University of Western Australia has rightly commented, ‘a system can’t be fair or just if the marginalised and the vulnerable are the first to be affected by it’.

H. Sentencing Indigenous offenders Courts sentencing Indigenous offenders face additional challenges and responsibilities. In Chapter 5, we briefly discussed Indigenous courts and circle sentencing, which recognise more traditional forms of justice and involve Indigenous communities in the sentencing process. These initiatives are designed in part to address the overrepresentation of Indigenous people in prison (Marchetti & Daly 2004). According to regulation 39 of the Criminal Procedure Regulation 2017 (NSW), the aims of circle sentencing are to: a. include members of Aboriginal communities in the sentencing process b. increase the confidence of Aboriginal communities in the sentencing process c. reduce barriers between Aboriginal communities and the courts d. provide more appropriate sentencing options for Aboriginal offenders e. provide effective support to victims of offences by Aboriginal offenders f. provide for the greater participation of Aboriginal offenders and their victims in the sentencing process g. increase the awareness of Aboriginal offenders of the consequences of their offences on their victims and the Aboriginal communities to which they belong, and h. reduce recidivism in Aboriginal communities. The first Indigenous court (the Nunga Court) was established in Port Adelaide in 1999 and the first trial of circle sentencing began in Nowra, on the New South Wales south coast, in 2002 (Potas et al. 2003). Since then, Indigenous courts and circle sentencing practices have been established across all Australian states and territories (Marchetti & Daly 2004). While specific practices differ across the states, a useful description of circle sentencing in New South Wales is given by Marchetti and Daly (2004: 3): Participants sit in a circle, which has four community elders, the magistrate, the offender, the offender’s support people, the Aboriginal Project Officer, the victim and their supporters, the defence counsel and the police prosecutor. The court is closed, and permission from the magistrate and the elders is required before observers can watch the proceedings by sitting outside the circle. The magistrate prepares a document, which describes the offence and relevant information about the offender’s background. The text is elaborated orally by all participants in court, including the offender. Circle members discuss what would be an appropriate sentence plan for the offender. It reconvenes after a few months to assess the offender’s progress. It is not clear that circle sentencing reduces Indigenous reoffending (Fitzgerald 2008), but there are certainly benefits in providing a more culturally appropriate form of justice that provides a basis for rehabilitation. In an initial report on the circle sentencing program in Nowra, the Judicial Commission of NSW reported that: The penalties imposed by the circle are no less onerous than those imposed for similar offences in conventional courts. However as the procedure is less formal, the offender is more likely to ‘sit up and take notice’ and appreciate the harm caused to the victim. In this regard there is generally an acceptance of responsibility as well as an apology for the offending behaviour—a platform upon which rehabilitation can be built. (Potas et al. 2003: iv) Outside Indigenous courts and circle sentencing, Indigenous disadvantage can be recognised as a mitigating factor in sentencing. However, courts have debated over time whether Indigenous offenders should be treated any differently to non-Indigenous offenders. This is a difficult issue to resolve given that, according to some views, recognising Indigenous disadvantage (including a history of alcohol abuse and domestic violence) could amount to racial stereotyping and discrimination. In R v Bugmy (2013) 249 CLR 571, the High Court claimed there was no reason to sentence Aboriginal offenders differently to non-Aboriginal offenders, or to take into account the higher rates of Indigenous incarceration. However, the court did recognise that ‘an Aboriginal offender’s deprived background may mitigate the sentence … in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence’.

This means an Indigenous offender who has experienced significant hardship, including a history of alcohol abuse, might have a sentence reduced for that reason (as might any other offender). What is to be avoided, however, is an assumption that all Indigenous offenders will necessarily fit into this category. As the High Court stated in Munda v WA (2013) 249 CLR 600, ‘[t]o accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity’. The court should not engage in a practice of ‘racial stereotyping’ that consigns Aboriginal offenders, ‘by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour’ (Munda v WA (2013) 249 CLR 600).

I. Imprisonment and parole If a person is imprisoned as part of their sentence, they may be released under supervision earlier than the total period of imprisonment handed down by the court. Being released on conditions while serving a prison sentence is called parole. Parole is similar to probation, in that the offender is free to go about their daily life but must comply with certain requirements and obligations. These can include receiving visits from a corrective services officer, letting corrective services know if they change their job or home address, not leaving the state without permission, attending counselling and rehabilitation sessions, and being tested for drugs and alcohol. Corrective services is a core department in the criminal justice system that is responsible for managing prisons. It has dedicated probation and parole officers who are responsible for supervising and managing offenders who are released in the community. Parole when a prisoner is released on conditions while serving their sentence Corrective services a core department in the criminal justice system that is responsible for managing prisons If an offender breaches parole, the conditions of the order can change, or the offender may be returned to prison. In Queensland, a sentencing judge must set a parole release date for prison sentences of three years or less (Penalties and Sentences Act 1992 (Qld), s 160B). For more serious offences, the court can choose to set a date when the offender will become eligible for parole. Offenders who are eligible for parole must apply to the state Parole Board, an independent authority that decides whether offenders should be released and specifies the conditions of the order. Parole Board an authority independent to a prison, which decides whether offenders should be released on parole In New South Wales, the Crimes (Sentencing Procedure) Act 1999 (NSW) establishes standard non-parole periods for a long list of offences. A non-parole period is the period of a sentence during which a prisoner is not eligible for parole. Victoria requires that a non-parole period be set for prison terms of two years or more, unless the court considers it inappropriate. Queensland takes a more limited approach by requiring courts to impose a nonparole period only for serious violent offences.

II. APPEALS A convicted defendant can appeal against either their conviction or the sentence they received. The prosecution can appeal against a sentence that is too lenient, or in rare circumstances against an acquittal. An appeal means the defendant challenges the decision in a higher court. This ability to rectify wrong decisions is a core aspect of due process.

A. Appeals and the court hierarchy Appeals are made to a court higher than the one the case was heard in, so the process mirrors the court hierarchy explained in Chapter 2. At the bottom of the ladder are the local or magistrates courts. These have no appellate jurisdiction (meaning the power to hear an appeal). If an offender disagrees with a decision in the magistrates court, they can apply (usually within a short period of time) to the district court. A challenge can be made against either the conviction or the sentence. This is the only stage of the process where an appeal functions as a complete rehearing of the evidence. The judge hearing the appeal in the district court may confirm, set aside or vary the decision of the magistrates court, or make any other appropriate order.

Appellate jurisdiction the power of a court to hear appeals from a lower court As a defendant moves further up the court hierarchy, the grounds for appeal become increasingly limited. If a defendant disagrees with a decision in the district or supreme court, they can appeal to the appeals division of the supreme court, which is usually called the Court of Appeal. (An appeal cannot be made from district court to the trial division of the supreme court, because these courts both hear criminal cases for the first time—you can see this in the diagram in Figure 10.1).

Figure 10.1: Appeals hierarchy

B. Appeal against conviction A defendant can appeal against their conviction in the court of appeal if they can point to a question of law that affected the original decision. This is where the judge possibly made an error on some legal issue—like incorrectly explaining the elements of the offence to the jury, or allowing evidence that was unlawfully obtained by police. Question of law a legal issue that provides the basis for an appeal Leave of the court permission of the court to hear an appeal If the defendant cannot point to a legal error, they can still appeal on a question of fact (essentially, that they believe the jury got the decision wrong). However, this requires the leave of the court (permission to have the case heard) and is not guaranteed. Appeal courts are generally reluctant to overturn the decision of a jury, as the jury members were able to hear the witnesses and see the evidence firsthand during the criminal trial. Unlike appeals in the district court, appeals in the supreme court do not involve a complete rehearing of the evidence. In an appeal against conviction, there are three possible reasons the judge might overturn the original decision. The first is that the jury’s guilty verdict is unreasonable and cannot be supported by the evidence. This means there was an error of fact and is sometimes called an unsafe and unsatisfactory verdict. The second is that the judge made an error of law, and the third is that there was a miscarriage of justice. A miscarriage of justice essentially means there was a wrongful conviction. This overlaps with the first two grounds, but is designed to give judges a wider discretion to overturn wrongful decisions where appropriate. If the court allows the appeal (i.e., agrees with the defendant’s arguments) it will either substitute a verdict of acquittal, meaning the defendant is not guilty and free to go, or it can order a retrial in the lower court. Unsafe and unsatisfactory phrase describing cases that were wrongly decided by a jury Miscarriage of justice a case involving a wrongful conviction Allow in an appeal, when a judge agrees with the defendant’s arguments Acquit to find a defendant not guilty

C. Appeal against sentence The grounds for appeal against sentence are more limited. A party needs to seek the leave of the court, and there needs to be some substantial error in the type or severity of punishment handed down by the court. The court of appeal will only rectify a sentence that is either manifestly excessive or manifestly inadequate. This means the sentence must be far too harsh or far too lenient. In 2013, Belal Khazaal appealed to the NSW Court of Criminal Appeal against a twelve-year sentence for

publishing an online terrorism manual. Khazaal argued that the offence should not have been categorised as being in the highest level of seriousness, that he was previously of good character, and that the conditions imposed while he was released on bail were overly onerous. The court denied his appeal, citing the need to denounce terrorism, protect the community and deter future offenders: Khazaal v R (No 2) [2013] NSWCCA 140. Manifestly excessive phrase used to describe sentencing judgments that are found on appeal to be too severe Manifestly inadequate phrase used to describe sentencing judgments that are found on appeal to be too lenient

D. The High Court If a party disagrees with the decision of a Court of Appeal, they can appeal to the High Court. However, as discussed in Chapter 2, the grounds for appealing to the High Court are quite limited. An applicant first needs to seek special leave to appeal. Gaining special leave requires an issue of law that has public importance, affects the administration of justice or would resolve disagreement between the states. A party cannot appeal to the High Court simply because they disagree with a conviction or sentence. The rates of approval for special leave applications are very low. In the three months between October and December 2018, the High Court heard 90 applications for special leave and approved seven, a success rate of less than 8 per cent (High Court of Australia 2018). Once an appeal has been heard by the High Court, the avenues of appeal are complete: there is no higher court for an appeal to be heard in.

E. Benefits and limits The system of appeals protects defendants against wrongful convictions and other miscarriages of justice. It is a core aspect of due process and contributes to the rule of law. However, the system is not perfect. Several reasons for this are explained well by Ransley and Goldsmith (2006). First, a miscarriage of justice can result from an acquittal (i.e., a guilty person can be let free) but the prosecution can appeal against an acquittal only in very rare circumstances. Second, defendants can plead guilty to an offence out of fear, ignorance or a lack of understanding. If this happens, they cannot appeal against their conviction because they admitted their guilt. Third, even if a wrongful conviction is overturned and a person is acquitted, this can take a long time and the person may have already spent many years in prison. Finally, defendants can still be punished according to unfair laws. For example, an offender who is sentenced according to a mandatory minimum cannot appeal their sentence because the punishment has been determined in advance by politicians in parliament.

KEY POINTS • The role of a sentencing judge is to arrive at an appropriate punishment in all the circumstances of the case. A sentencing judge must consider the offender’s conduct alongside the purposes of punishment, the principles of sentencing and any aggravating or mitigating factors. • Aggravating factors suggest a punishment should be more severe, and mitigating factors suggest a punishment should be less severe. Common aggravating factors include using a weapon or attacking a vulnerable person, and common mitigating factors include a history of drug addiction or mental illness. • Mandatory minimum sentences are controversial because they reduce a sentencing judge’s discretion to determine an appropriate punishment. They also undermine the separation of powers and impact disproportionately on Indigenous offenders. • Appealing a court decision means challenging the decision in a higher court. As a case moves further up the court hierarchy, the grounds for appealing the decision become more limited.

DISCUSSION QUESTIONS 1. Aside from imprisonment, what other types of punishments can a court impose?

2. What is the difference between the purposes of punishment and the principles of sentencing? 3. What are the advantages and disadvantages of a judge having discretion to determine an appropriate sentence? 4. Why are mandatory minimum sentences controversial? Do you think that having mandatory minimum sentences for some offences is a good idea? 5. Is the sentencing of Indigenous offenders any different to the sentencing of non-Indigenous offenders? 6. If a case begins in the local or magistrates court, what are the different levels of appeal it can progress through?

Chapter 11 Cybercrime In this chapter you will learn about: Different types of cybercrime How the law responds to new types of crime Malware, trojans, viruses, worms and botnets Requirements of organisations to report breaches of personal data Criminal offences for sexting, revenge porn and cyberbullying The role of the eSafety Commissioner The final two chapters of this book focus on topical areas in recent lawmaking. These are designed as case studies to draw together and build on what you have learned in the previous chapters. Now that you have learned a wide range of legal concepts and ideas, you can apply this knowledge to an area of interest and ongoing law reform. These case studies are also designed to reinforce the idea that law is not a fixed set of rules. Rather, the law develops and adapts over time in response to new types of crime, changes in moral values and other events in society. This chapter teaches you about cybercrime. Cybercrime is like other types of crime, except that computers are part of the method by which an offence is committed. Cybercrime poses new challenges for the law, as legislation that was designed for crimes in the ‘real world’ does not always transfer easily to the cyber realm. Sexting sending and receiving intimate images Revenge porn distributing intimate images to embarrass or humiliate a person Cyberbullying harassment, teasing or other online conduct that is repeated, intentional and cruel This chapter explains different types of cybercrime and how the law has responded. It focuses on new laws targeting sexting (sending intimate images), revenge porn (distributing intimate images) and cyberbullying (online harassment). It also explains the role of the eSafety Commissioner, an office that educates the community about cybersecurity and investigates complaints about harmful online content.

I. WHAT IS CYBERCRIME? In Chapter 8, we discussed different reasons why certain types of conduct are considered a crime. The same basic principles apply to cybercrime, except that cybercrime involves computers. Applying the same framework offered by Findlay et al. (2014), cybercrime is conduct involving computers that (1) causes harm to an individual, (2) causes harm to the community, or (3) is morally wrong. Or, adopting a purely legal perspective, we could say that cybercrime is simply any conduct involving computers that attracts a criminal penalty. Many of these offences are explained below. We can use similar frameworks for thinking about what cybercrime is, but in practice cybercrime creates many

challenges for the criminal justice system. Maurushat (2010) explains that cybercrime poses four key challenges compared to more traditional forms of crime. First, cybercrime is usually transnational, meaning it crosses international boundaries and involves multiple jurisdictions. The target of an attack may be in Australia, but the attack may have originated from the other side of the world. Second, police officers, lawyers, judges and politicians often do not have the technical expertise necessary to understand or respond to cybercrime effectively. This is improving over time but still remains an issue. Third, cybercrime involves digital evidence that is ‘highly volatile’ (Maurushat 2010), meaning it can be hard to capture and retain, and may not exist by the time a trial takes place. Finally, cybercriminals use many effective techniques—such as encryption and virtual private network (VPN) services—to remain anonymous. Encryption is a mathematical technique that scrambles text or data so it can only be read by people who have a special password known as a ‘key’, and a VPN is an encrypted connection to the internet. These techniques can make criminal prosecution for cybercrime very difficult. Virtual private network an encrypted connection to the internet Encryption a mathematical technique that scrambles plain text or other data so it can only be read by people with a password known as a ‘key’ Cybercrime has a significant impact on the Australian economy. According to one estimate, cybercrime costs the Australian economy up to $2 billion per year (Attorney-General’s Department 2013). This section outlines some common types of cybercrime and explains how the law has been updated in response.

A. 419 and online dating scams Many cybercrimes are simply online versions of traditional offences. For example, the crime of fraud involves stealing something dishonestly. In the ‘real’ or ‘physical’ world, a case of fraud might involve a person posing as a salesman. This offender walks around the streets, knocks on people’s doors and convinces them to hand over money to order a product that doesn’t exist and never arrives in the mail. Nigerian prince scam online scam where victims are tricked into providing money or bank account details 419 scam another name for a Nigerian prince scam There are many online versions of fraud. You have probably heard of Nigerian prince scams, also known as 419 scams because of the section of Nigerian criminal law that is designed to deal with them (McAndrew 2018). In the original version of the scam, a scammer sends an email to multiple targets saying he is a Nigerian prince who needs help getting his wealth out of the country. If you could just send your bank account details or pay a small fee to help him, the prince will give you a share of his glorious wealth. For every person who agrees to help, the scammer collects a small payment or steals money from a bank account. These scams appear to have started in Nigeria, but they can come from anywhere (McAndrew 2018). They use many different stories (not just the one about the Nigerian prince) but they tend to follow this basic model and rely on a similar psychology. It might seem surprising that people still fall for this trick, but it plays on a victim’s trust, vulnerability and willingness to help others in need. In particular, scammers often rely on a series of escalating commitments—first to provide a small amount of money, then to transfer increasingly larger amounts—that victims find psychologically difficult to pull out of (McAndrew 2018). Nowadays there is greater education and awareness about email scams like these, but Australians still lost nearly $1.4 million to so-called Nigerian prince scams in 2018 (ACCC 2018b). A more current version of the 419 scam happens on online dating platforms. In this case, scammers take advantage of people looking online for romantic partners. A scammer creates a fake profile, builds a victim’s trust, professes love for them quickly and starts asking for money. As in a 419 scam, requests for money are often small at first and increase gradually to large amounts (ACCC 2018a). In online dating scams, the scammer typically asks for money to fund a family member’s medical operation or other made-up emergency. In 2018, Australians lost more than $24.5 million to online dating scams, with the greatest losses coming from the 55–64 age group (ACCC 2018a). This suggests that scammers target older victims who are vulnerable due to a recent divorce, the loss of a long-term partner or a lack of experience with technology (May 2014). These online scams are considered a type of cybercrime, though they are not strictly ‘new’ crimes because the type of conduct involved is relatively familiar to the law. Technology certainly makes fraud easier in some respects; it is easier to reach and defraud a large number of victims, and it is easier for a scammer to remain anonymous. This

makes prosecuting offenders much more difficult. Online banking also makes it easier for victims to transfer large amounts of money almost instantly. However, for the purposes of the criminal law, the type of conduct involved—stealing something dishonestly—is essentially the same. For this reason, technology-enabled crime might be a better term for these types of scams (Choo, Smith & McCusker 2007). Rather than being a distinctly new type of crime involving computers, 419 scams use the internet to commit a traditional crime more easily and on a larger scale. Technology-enabled crime crime that is easier to commit because of the internet, but is relatively familiar to the law Identity theft stealing personal information such as usernames, passwords, bank account details and credit card numbers

B. Identity theft and phishing Identity theft is another type of cybercrime that is relatively familiar to the law. Identity theft is where an offender steals personal information—such as residential addresses, phone numbers, bank account details, credit card numbers, usernames and online passwords—and uses that information to purchase goods or steal money. Often, offenders who steal personal information make money by selling the information to organised criminal groups rather than accessing victims’ accounts directly (Australian Federal Police 2018). Those groups can use the information to create fake identification documents, which can facilitate acts of terrorism and other serious crimes (United Nations Office on Drugs and Crime 2019). Phishing deceiving a person into providing personal information (usually via email) Personal information is commonly stolen for identity theft through phishing emails. These are deceptive emails that look like they come from an official organisation, such as a bank or the tax office. The term phishing refers to ‘fishing’ for passwords and other information from the sea of victims on the internet, but is spelled with a ‘ph’ as this is a common substitute spelling for ‘f’ in hacker culture (Zetter 2015). A typical phishing email tells a victim there was suspicious or unauthorised activity on their account, or that they are owed some money, so they need to confirm their account details. After clicking on a link, victims type their personal information into a fake form, which the offender uses to collect their information. Phishing emails were first noticed in Australia around 2003 (Krone 2005b). At that time, the emails contained lots of spelling and grammatical errors and the fake websites did not look much like the official version. Nowadays they are much more sophisticated. Like 419 scams, identity theft can be prosecuted under existing laws for theft and fraud. However, new laws have also been enacted to target identity theft directly. For example, in New South Wales it is a crime to deal with or possess ‘identification information’, including bank account details and passport numbers, or to possess equipment for making fake identification documents. There are equivalent offences under federal law. Under section 192K of the Crimes Act 1900 (NSW), possessing identification information with intent to commit an indictable offence attracts a maximum penalty of seven years imprisonment. These new offences were introduced by the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW).

C. Unauthorised access and malware Cybercrime becomes more distinct from ‘real-world’ crime when the conduct involved is only possible because of new developments in technology. In other words, certain types of cybercrime do not have an obvious real-world equivalent such as fraud or theft. This can lead to difficult questions about what new types of conduct should be considered a criminal act. Accessing the computer network of a government department, bank or other company without authorisation can be done by cracking passwords, exploiting vulnerabilities in computer code or using many other criminal hacking techniques (Krone 2005a). This might lead to theft or fraud, but what if a hacker just pokes around in the system, without stealing anything? Should this be a crime? Accessing a computer network doesn’t necessarily cause harm to anyone, but, if it is not a crime, then criminal hackers would be free to access important computer networks without consequence. This would undermine cybersecurity, being the protection of computers and computer networks from

harmful acts. Cybersecurity is particularly important where a government department, hospital or other organisation protects our private information. Cybersecurity the extent to which computers and computer networks are protected from malicious acts Malware malicious software, including trojans, viruses and worms Another distinct type of cybercrime occurs when offenders distribute malware. Malware is a catch-all phrase for malicious software. There are different types of malware, including trojans, viruses, worms and ransomware. These can allow an offender to access someone else’s computer remotely, steal personal information, log a user’s keystrokes to find out passwords, or make the device malfunction. A trojan is a computer program that appears to be useful or harmless but damages a computer once it runs (Kaspersky Lab 2019c). This comes from the classical myth of the Trojan horse, in which the Greeks left a large wooden horse outside the city of Troy. Thinking it was a gift, the Trojans brought the horse inside their city walls, which were otherwise impenetrable. The horse contained Greek soldiers, who came out of the horse at night and let in the rest of the Greek army, who conquered the city. Trojan a computer program that appears to be legitimate but causes harm once it runs Virus self-replicating computer code that attaches itself to a host file or program Worm self-replicating computer code that operates independently of other files and programs Viruses and worms are self-replicating code that can spread from computer to computer. They can be introduced through trojans, phishing emails, attachments in an email or SMS message, or an infected website. The major difference between a virus and a worm is that viruses work by attaching themselves to a ‘host’ file or program, whereas worms are standalone programs that can operate independently (Kaspersky Lab 2019a). Some worms are designed simply to keep replicating over and over, without causing additional harm. This can disrupt a computer network by taking up memory and bandwidth. Memory (also known as Random Access Memory or RAM) refers to how much information a computer can store temporarily to process multiple tasks at the same time. This is usually expressed in gigabytes, with most consumer computers having between 4 and 16 gigabytes of RAM. Bandwidth refers to how much data can be transferred over a system in a fixed amount of time. This is often expressed in megabytes per second (for example, your home internet connection might have a bandwidth of 25 or 50 megabytes per second). Memory how much information a computer can store temporarily to perform multiple tasks at the same time Bandwidth the amount of data that can pass through a computer system in a fixed amount of time More sophisticated worms can cause serious damage to critical infrastructure. Critical infrastructure refers to the computer networks, engineering systems and facilities needed to deliver essential services to a population—like gas, water, transport, electricity, telecommunications and nuclear power. One of the most famous worms is Stuxnet, which caused substantial damage to Iran’s nuclear power program. Stuxnet was a very complex worm that exploited multiple vulnerabilities in computer code to interfere with gas centrifuges in the Natanz nuclear power plant. While nobody has formally claimed responsibility for the attack, most sources agree that it was the product of a joint US–Israeli intelligence operation (Nakashima & Warrick 2012). Ransomware is a specific type of malware that can spread quickly through worms. It is also delivered via infected email attachments and online advertising. Ransomware locks out a user from their computer or files and demands the payment of money to regain access (Cisco 2018). Critical infrastructure the computer networks, engineering systems and facilities needed to deliver essential services (like gas, water and electricity) to a population Stuxnet a very sophisticated computer worm that caused substantial damage to the Iranian nuclear power program Ransomware a type of malware that locks a user out of a computer system and demands money to regain access Wannacry sophisticated ransomware that spread through more than 230,000 computers and substantially

impacted the United Kingdom’s hospital system Bitcoin a type of digital currency In May 2017, ransomware known as Wannacry spread globally through computers running Microsoft software. The attackers demanded US$300 in Bitcoin (an online currency) to decrypt each user’s files. Wannacry spread to 150 countries and infected more than 230,000 computers (Cooper 2018). A major victim was the United Kingdom’s National Health Service (NHS), as computers were infected in many hospitals and medical centres across the UK. The attack cost the NHS up to £100 million and led to 19,000 medical appointments being cancelled (Palmer 2018). Another distinct form of cybercrime is a denial-of-service (DoS) attack. This is where a computer, server or network is overloaded with requests to the point where it slows down substantially or stops working (Kaspersky Lab 2019b). The technique is commonly used to bring down government websites. In order to access a website, you type a Uniform Resource Locator (URL) address into a web browser (such as Safari or Chrome). Based on that URL, the browser requests files from a server. A server is a big computer that is always connected to the internet and delivers files for people to view. If tens or hundreds of thousands of computers request those files at the same time, the server cannot cope and nobody can access the website. Denial-of-service attack a type of cyberattack in which a computer, server or network is overloaded with requests to the point where it slows down substantially or stops working Server a computer or computer program that provides services to other computers via a network DoS attacks commonly employ botnets. These are networks of computers that have been compromised and are controlled by a central authority (Cisco 2018). A single computer in the network is called a bot (from ‘robot’, because the computer is being operated automatically without the victim knowing it). Botnet a network of computers that have been compromised through a trojan or other malware Bot one compromised computer in a botnet Criminal hackers create a botnet by gaining control of other computers through a trojan or similar technique. They harness the collective power of those computers to launch DoS attacks, distribute viruses or send spam messages. Spam messages are unwanted email messages. (The term comes from the brand name of the tinned lunch meat, which is a contraction of ‘spiced ham’. The word was used in a famous Monty Python sketch where a menu is full of different meals containing spam, and the customer doesn’t want spam in any of them.) Spam unwanted email messages Users who are part of a botnet are usually innocent and have no idea their computer has been compromised (you might have been part of a botnet and not even known it!). One of the largest botnets was the Srizbi botnet, which harnessed the power of some 500,000 computers and was said to be responsible for up to 40 per cent of the world’s spam (Thomson 2008). Where a DoS attack involves many computers attacking the same target, through a botnet or otherwise, it is called a distributed denial-of-service (DDoS) attack. Distributed denial-of-service attack a denial-of-service attack launched by lots of computers, usually through a botnet

D. Legal responses to unauthorised access and malware These new techniques for accessing and interfering with computer systems need special responses in the law. In contrast to 419 scams and identity theft, they are not so easily prosecuted through existing offences for theft or fraud. In 2001, the federal parliament enacted the Cybercrime Act 2001 (Cth) (‘Cybercrime Act’). The purpose of this was to implement the Council of Europe’s Convention on Cybercrime (‘Cybercrime Convention’) into Australian law. The Cybercrime Convention was the first international treaty for addressing cybercrime. It seeks to increase cooperation between countries, improve investigation by law enforcement, and harmonise (make consistent) different national laws.

Harmonise make the laws enacted by different governments consistent The Cybercrime Act introduced new criminal offences into Australian law. Part 10.7 of the Criminal Code Act 1995 (Cth) now contains offences that target the unauthorised access, modification or impairment of data or electronic communications. For example, section 477.2 says the following: 477.2 Unauthorised modification of data to cause impairment (1) A person commits an offence if: (a) the person causes any unauthorised modification of data held in a computer; and (b) the person knows the modification is unauthorised; and (c) the person is reckless as to whether the modification impairs or will impair: (i) access to that or any other data held in any computer; or (ii) the reliability, security or operation, of any such data. Penalty: 10 years imprisonment Reading the elements of this offence, we know that a person will face a maximum penalty of ten years imprisonment if they: 1. modify any data held in a computer (actus reus) AND 2. know that they are not authorised to modify that data (mens rea) AND 3. are reckless as to whether their actions will impair access to or otherwise compromise the data (mens rea). Data is defined broadly as any information, program or part of a program. Modifying data includes adding data as well as changing it. This means the offence could apply to a wide range of cybercrimes, including the distribution of viruses, worms or ransomware, or a criminal hacking technique that modifies software code. In Chapter 8, we talked about how the mens rea of an offence usually equates to intention but can involve other mental states. You can see here that the mental requirements do not require the offender to intend something. There are other offences in Part 10.7 where intention is a required mental element. For this offence, the mental elements are that the offender knows they are not allowed to modify the data, and is reckless as to the consequences of their actions. Recklessness means the offender is aware of a substantial risk of those consequences occurring, but decides to continue their course of action anyway. Very similar offences to those at the federal level have been enacted in New South Wales and Victoria. In Queensland, there is a single offence for ‘computer hacking and misuse’. This is found in section 408E of the Criminal Code Act 1899 (Qld): 408E Computer hacking and misuse 1. A person who uses a restricted computer without the consent of the computer’s controller commits an offence. Penalty: Maximum penalty—2 years imprisonment 2. If the person causes or intends to cause detriment or damage, or gains or intends to gain a benefit, the person commits a crime and is liable to imprisonment for 5 years. 3. If the person causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, the person commits a crime and is liable to imprisonment for 10 years. A restricted computer is essentially any computer that is protected by a password. You can see here that the Queensland law establishes a tiered penalty scheme for different levels of conduct. Accessing and using a restricted computer without a victim’s consent attracts a maximum penalty of two years imprisonment. This increases to five years where the offender causes damage or gains a benefit, or intends either of those things. That doubles to ten years where the damage or benefit is worth more than $5000 or the person intends to commit an indictable offence.

E. Notifiable data breaches Another important response to these new types of cybercrime was the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth). This legislation did not create any new criminal offences; rather, it placed obligations on

government agencies and businesses to report when personal information is compromised (through a malicious cyberattack, human error or otherwise). It did this by amending the federal Privacy Act 1988 (Cth) (‘Privacy Act’) to establish a notifiable data breach scheme. Notifiable data breach scheme scheme that requires organisations and government departments to report when personal information has been accessed unlawfully Office of the Australian Information Commissioner an independent office that monitors compliance with the Privacy Act and investigates complaints about the mishandling of personal information Under section 26WE of the Privacy Act, government agencies and businesses must now report ‘eligible data breaches’. This means there has been unauthorised access to personal information like addresses, bank account details or tax file numbers, and the breach ‘would be likely to result in serious harm’ to any of the people whose information has been compromised. These breaches must be reported to the Office of the Australian Information Commissioner (OAIC). The OAIC is an independent office within the Attorney-General’s portfolio that monitors compliance with the Privacy Act and investigates complaints about the mishandling of personal information. In just three months between July and September 2018, 245 eligible data breaches were reported to the OAIC (OAIC 2018). The majority of these compromised contact information such as addresses and phone numbers. Two of the breaches affected between 100,000 and 250,000 Australians (OAIC 2018). This shows there is an ongoing threat of cybercrime in Australia that may compromise our personal information.

II. SEXTING, REVENGE PORN AND CYBERBULLYING Worms, ransomware, DDoS attacks and criminal hacking techniques are difficult for the law to deal with because they involve sophisticated advances in technology. For the law to address these crimes effectively, it needs to be updated to account for offenders who insert computer code, modify data and do many other technical things. Other types of cybercrime involve sending intimate images or video via SMS, email, instant messaging applications and social media platforms. These acts are not so technically advanced that the law needs to be updated solely for that reason, but they do pose other challenges. Often, the conduct involved can be consensual and harmless—as when an adult couple send each other naked pictures as part of a healthy sexual relationship. However, if those images are posted more widely to embarrass a person, this is a serious invasion of privacy. Intimate images or videos can also be recorded without a person’s consent and involve serious crimes such as rape. Child pornography refers to sexualised images of children, including images and video of sexual abuse. This is one of the most serious and morally reprehensible crimes that can be committed using the internet. Child pornography sexualised images of children, often depicting sexual abuse Social media users can experience many other forms of online harassment (including stalking and bullying) that are damaging to their mental health. For the law to deal adequately with all of these different situations is a very complex task. Currently, laws enacted to deal with these developments differ quite significantly across Australia. This shows some of the benefits and disadvantages of a federal system of government. Federalism allows the Commonwealth and state governments to innovate with new laws, which other jurisdictions can adopt or adapt. But this can also lead to inconsistencies in how people are treated under the law. This section explains new laws targeting sexting (sending intimate images), revenge porn (distributing intimate images) and cyberbullying. An important role is played by the eSafety Commissioner, an office that was established to educate communities about cybersecurity and handle complaints about harmful online content.

A. Sexting and revenge porn Sexting refers to taking naked or partially naked photos or videos and sending these via mobile phones, email or social media. According to one study, 50 per cent of young Australians aged sixteen to eighteen had sent a sexual picture or video of themselves, and 70 per cent had received one (Lee et al. 2015). A survey by the Triple J radio station suggested that two in three Australians aged 18–29 had seen a naked ‘selfie’ they weren’t meant to see (Triple J Hack 2018). Young people sexting creates a challenge for the criminal justice system, as it is not clear when they should be

held criminally responsible. If two people aged sixteen years or above consent to taking naked photos and share those only with each other, the criminal law does not seem like an appropriate response. Both parties are considered legally capable of consenting to sexual intercourse, so there is not a strong legal case for making the conduct unlawful. This does not mean the behaviour should be allowed in all circumstances—it just means that the criminal law is probably not appropriate. Parents can address the behaviour of their own children, and governments can develop guidance and educational materials for schools. When the age drops to fifteen or younger, sexting becomes more questionable. It is not clear that a younger child can adequately consent to the behaviour, and the risks that an image or video may be distributed more widely become more serious. Under Australian law, no child under the age of ten can be held criminally responsible, but children aged ten years or over can be found guilty of an offence. So the criminal law is a possible response, but whether it is an appropriate response remains uncertain. There would be little public benefit in prosecuting 10- to 15-year-olds for sexting, even if we do consider the behaviour to be harmful. As with 16- to 18-year-olds, there are many other options to deal with the behaviour—such as involving parents, teachers, and school counsellors. Not every potentially harmful behaviour needs to be a crime. Where a sexual image or video is recorded without a person’s consent, or is distributed to other people without consent, there is a much stronger argument that this should be a crime. Revenge porn is where somebody messages or posts a sexual image of an ex-partner for others to see (in order to embarrass them after a break-up), although the term can mean any posting of sexual material without consent. Revenge porn can also involve threatening to post such material. Many new laws have been enacted in Australia to deal with these kinds of behaviour. However, more work is needed to ensure these laws are consistent. Most importantly, more work is needed to ensure that sexting and revenge porn do not lead to young people being prosecuted for very serious offences such as child pornography and child exploitation. Most Australian states have enacted new laws targeting revenge porn. For example, section 91P of the Crimes Act 1900 (NSW) makes it an indictable offence punishable by three years imprisonment to record or distribute an intimate image without consent. Prosecutions against children under sixteen can only commence with the consent of the Director of Public Prosecutions. In Victoria, section 41DA of the Summary Offences Act 1966 (Vic) makes it a summary offence punishable by two years imprisonment to distribute an intimate image. There are exemptions for young people from Victoria’s more serious offences of distributing child abuse material. These new offences and exemptions ensure that revenge porn attracts appropriate penalties. There are greater risks under federal and Queensland law that young people could be charged with serious offences relating to child pornography and child exploitation. These laws do not sufficiently distinguish between very serious crimes committed on the internet and young people involved in sexting or revenge porn. Carriage service any means of electronic communication Under federal law, it is an offence punishable by three years imprisonment to use a carriage service (any means of electronic communication) in a way that is menacing, harassing or offensive. An aggravated version of this offence, punishable by five years imprisonment, applies where a person distributes ‘private sexual material’ (meaning sexual images or video of a person over eighteen). This would apply where a person posts sexual images of an adult on social media in order to harass or cause offence. These are the most appropriate laws for prosecuting revenge porn at the federal level. The Enhancing Online Safety Act 2015 (Cth) also makes posting an intimate image of another person without consent punishable by a monetary penalty of $100,000. However, there are also serious federal offences for child pornography that could apply to young people involved in sexting and revenge porn. Under the Criminal Code Act 1995 (Cth), it is an offence punishable by fifteen years imprisonment to produce, possess, obtain or supply child pornography. Child pornography means a sexual image or video of a person under eighteen years old. This definition is designed to capture very serious crimes where adults record sexual images and videos of children and distribute these online. However, it is broad enough to capture young people involved in sexting or revenge porn. The offences could apply to children who send, post or receive intimate images of other children. The prosecution of a person under eighteen can only progress with the consent of the Attorney-General. However, there are no specific exemptions for young people who send or receive sexual images in very different circumstances to serious cases of child pornography. In Queensland, new penalties for revenge porn were introduced by the Criminal Code (Non-Consensual Sharing of Intimate Images) Amendment Act 2019 (Qld). Any person who distributes intimate images or recordings without

consent faces a maximum penalty of three years imprisonment. A person under sixteen years of age is not considered capable of consent, meaning that anybody who distributes intimate images of children under sixteen will fall foul of the law. These laws are appropriate for prosecuting revenge porn in Queensland. However, there are other offences targeting child exploitation material which may apply in similar circumstances. While the definition of child exploitation material includes more serious situations involving abuse or torture, it is otherwise similar to the definition of child pornography under federal law. Making child exploitation material is punishable by twenty years imprisonment and distributing or possessing such material is punishable by fourteen years imprisonment. These offences could also apply to young people who post, send or receive sexual material. In addition to these severe penalties, a person convicted of these offences can be listed on a register of sex offenders. A sex offenders register (known in Queensland as a child protection register) is an official, confidential list of people who have been convicted of sexual or other serious offences against children. People listed on the register must report their personal details and whereabouts to police, and they are not allowed to work or volunteer in roles involving children. Being listed on a sex offenders register is a very serious consequence and is not appropriate for young people who sext each other, or even those who post revenge porn maliciously. Sex offenders register a list of people convicted of sexual or other serious offences against children, who must report their details and whereabouts to police In the ten years to 2016, nearly 1500 children were convicted in Queensland for offences relating to child exploitation material (Queensland Sentencing Advisory Council 2017). This has been attributed to the rise in sexting and revenge porn (Queensland Sentencing Advisory Council 2017). Only 28 of these children were sentenced, the rest receiving a formal caution or being sent to a restorative justice conference (Queensland Sentencing Advisory Council 2017). This suggests that judges are approaching sentencing in this area sensibly. The number of prosecutions for child exploitation is likely to reduce, given that the Queensland parliament has enacted new laws specifically targeting revenge porn. However, further changes to the Queensland legislation are needed to ensure that young people involved in sexting and revenge porn cannot be charged with serious offences for child exploitation.

B. Cyberbullying and the eSafety Commissioner Cyberbullying refers to intentional and repeated behaviour that uses technology and is cruel and hurtful (Legal Aid Queensland 2016). This can include sending cruel messages, threatening to cause physical harm, teasing and making fun of someone, posting embarrassing photos, spreading rumours or repeated unwanted contact. Cyberbullying can be done by people that a victim knows (like classmates) or by total strangers. It can be done through SMS or instant messages, social media, email, online games, chat rooms, discussion boards and forums. Cyberbullying can have a serious impact on mental health, with victims feeling alone, sad and angry (Beyond Blue 2018). If it continues over a longer period of time, cyberbullying can be a risk factor for anxiety, depression and suicide (Beyond Blue 2018). If it is sufficiently serious, cyberbullying can be a crime. It is a serious offence under federal law to use a carriage service to threaten to kill or seriously harm someone, where the offender intends to carry out the threat. As mentioned above, it is also an offence under federal law to use a carriage service in a way that is menacing, harassing or offensive. There are also offences under state law for stalking. In New South Wales, section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) makes it an offence punishable by five years imprisonment to stalk or intimidate another person with the intention of causing the other person to fear physical or mental harm. For other cases of cyberbullying, the eSafety Commissioner can become involved. This office was established by the Enhancing Online Safety Act 2015 (Cth). The eSafety Commissioner has many different functions relating to online safety. These include promoting online safety, supporting and encouraging research, publishing reports and papers, and evaluating community awareness programs. eSafety Commissioner office established in 2015 to promote online safety and handle complaints about harmful online content The Enhancing Online Safety Act 2015 (Cth) established a scheme for the eSafety Commissioner to investigate complaints about cyberbullying and other harmful online conduct. Section 5 of the Act defines cyberbullying

material as material on social media or another electronic service that is directed at a child, where an ordinary reasonable person would conclude that the material would be likely to seriously threaten, intimidate, harass or humiliate the child. A child or parent can make a complaint about cyberbullying to the eSafety Commissioner, who can investigate the complaint as the office sees fit. In response, the eSafety Commissioner can issue a notice to the user who posted the material, or the relevant social media company, to remove the material. The same complaint scheme exists for posting intimate images without consent.

KEY POINTS • Some types of cybercrime (such as 419 scams and identity theft) are essentially traditional crimes committed on the internet. Other types—such as distributing malware or launching a distributed denial-of-service (DDoS) attack—are more distinct from real-world crimes and require special legal responses. • Designing appropriate laws for sexting, revenge porn and cyberbullying is difficult because it is unclear when young people involved in these activities should be held criminally responsible. The conduct involved can also fall under the much more serious crimes of child pornography and child exploitation. • The eSafety Commissioner plays an important role in promoting online safety and investigating complaints about revenge porn, cyberbullying, and other harmful online content.

DISCUSSION QUESTIONS 1. How would you define cybercrime compared to more traditional crimes like murder and assault? 2. What are the major types of cybercrime? 3. What is meant by the phrase ‘technology-enabled crime’? 4. What else can you find out about Stuxnet and Wannacry? Can you identify any other major malware attacks that have happened in recent years? 5. Can you find examples of criminal offences in Part 10.7 of the Criminal Code Act 1995 (Cth)? What are the elements (mens rea and actus reus) of those offences? 6. Do you think sexting should be a crime? Does your answer differ if the person sends or receives the material? What if the person is 10, 14, 16, 18 or 25 years old? 7. Do you think revenge porn should be a crime? In what precise circumstances? 8. Do you think cyberbullying should be a crime? In what precise circumstances?

Chapter 12 Counterterrorism In this chapter you will learn about: Australia’s legal responses to the threat of terrorism Criminal offences for terrorism The powers of police and intelligence agencies to prevent and disrupt terrorism The speedy enactment of counterterrorism laws by the federal parliament The impact of counterterrorism laws on human rights and freedom of the press Like many other countries, Australia faces an ongoing threat of terrorism. The Australian government has responded to this threat by introducing more than 75 pieces of legislation. These laws have created new criminal offences and expanded the powers of police and intelligence agencies. The laws impact on many human rights, including those to liberty, privacy, freedom of speech and a fair trial. Many of the laws are extraordinary, in the sense that they significantly expand the scope of the traditional criminal law, and because Australia has gone much further in responding to terrorism than many other countries with stronger legal protections for human rights. This chapter outlines Australia’s legal responses to terrorism and identifies some key themes and lessons. Australia’s experience with counterterrorism laws confirms that it is important to scrutinise legislation properly in parliament, protect human rights, and maintain a free and independent media.

I. AUSTRALIA’S LEGAL RESPONSES TO TERRORISM On the morning of 11 September 2001, nineteen hijackers flew two planes into New York’s World Trade Center towers. They flew another into the Pentagon building, which houses the United States Department of Defense. A fourth plane, United Airlines Flight 93, crashed into a field in Pennsylvania, killing all passengers on board. The 9/11 attacks killed nearly 3000 innocent people and injured more than 6000. The hijackers were members of the terrorist organisation al-Qaeda, which at that time was led by Osama bin Laden. On 7 July 2005, four suicide bombers detonated bombs on London’s underground rail network and a doubledecker bus in Tavistock Square. The 7/7 bombings, as they came to be known, killed 52 people and injured more than 700. The attackers were four young British men who built the bombs out of inexpensive and readily available materials. On 29 June 2014, Abu Bakr al-Baghdadi, the leader of the terrorist organisation Islamic State (‘IS’, also known as ISIS, ISIL and Daesh) declared a caliphate over territory covering a large part of Iraq and Syria (Tran & Weaver 2014). A caliphate is a state ruled under strict Islamic law by a leader known as a caliph. By making this declaration, al-Baghdadi was telling the world that he is a descendant of the prophet Muhammed with absolute power over that territory. At the peak of its power, there were up to eight million people living in the territory claimed by IS (Burke 2017). Caliphate a state ruled under Islamic law

Caliph the ruler of a caliphate Estimates of how many people IS has killed vary widely. According to one account, by 2016 the organisation had conducted or inspired more than 140 attacks in 29 countries outside Iraq and Syria, killing more than 2000 innocent people (Lister et al. 2016). IS has since lost the physical territory it once controlled, but the organisation remains a serious threat to global security in its dispersed form (Burke 2018). In the last two decades, there have been many tens of thousands of terrorist attacks around the world. In 2017 alone, there were 10,900 attacks killing more than 26,400 people (START 2018). However, these three key moments—9/11, 7/7 and the creation of the IS caliphate—have done the most to shape legal responses to terrorism. In response to these events, Australia and many other countries introduced new offences and powers for the purpose of preventing further terrorist attacks. Australia has not experienced the same level or frequency of terrorist attacks as the United States, United Kingdom, France, or many other countries, but it faces a continuing threat. Since 2014, the national security threat level has been set at ‘probable’, meaning there is credible intelligence that individuals and groups possess the intention and capability to carry out a terrorist attack in Australia (Australian Government 2019c). Foreign fighters people who travelled to Syria and Iraq to fight with the terrorist organisation Islamic State Homegrown terrorism the threat of terrorism from groups and individuals within a country’s borders Lone wolf a person who is not a member of a terrorist organisation but is inspired by events overseas or online propaganda to commit an act of terrorism This threat is twofold. First, Australia faces a threat from returning foreign fighters. These are Australian citizens who travelled overseas to fight with IS in Iraq and Syria. In 2017, around 100 Australians were still fighting for IS overseas and around 40 had returned home (Wroe 2017). Second, there is a threat of homegrown terrorism from groups and individuals within Australia. This includes so-called lone wolf terrorists who are not members of a terrorist organisation but are inspired by events overseas and online propaganda to carry out attacks on Australian soil. Acts of terrorism in Australia have claimed innocent lives. In December 2014, Man Haron Monis took eighteen people hostage in Sydney’s Lindt café. After a sixteen-hour siege, two hostages were killed. In October 2015, Farhad Jabar, a fifteen-year-old Sydney teenager, shot and killed a police accountant in broad daylight outside the New South Wales Police headquarters in Parramatta. The victim was Curtis Cheng, a married father of two who had worked for the finance and business division of the New South Wales Police for seventeen years. In June 2017, a former prisoner who had been acquitted of terrorism charges shot dead one man and held a sex-worker hostage in Melbourne before being shot dead by police. In November 2018, a 30-year-old man, Hassan Khalif Shire Ali, stabbed a restaurant owner to death in Melbourne’s Bourke Street and injured two other people. In response to the threat of terrorism, the Australian government has introduced more than 75 pieces of legislation in the federal parliament (Hardy & Williams 2018).6 Most of these were responses to 9/11 and the London bombings, with the Howard government passing 44 laws between 2002 and 2007 (Williams 2011). This meant the federal parliament was passing a new counterterrorism law during that period every 6.7 weeks (Williams 2011). Between 2007 and 2012, under the Rudd and Gillard Labor governments, the pace of lawmaking slowed substantially, but many new laws have since been enacted in response to IS (Hardy & Williams 2016a). The major powers and offences contained in these laws are explained in the sections below. Australia’s lawmaking in response to terrorism has far exceeded that of similar countries such as the United Kingdom, Canada, New Zealand and the United States. Kent Roach, a professor at the University of Toronto and one of the world’s leading experts on counterterrorism laws, has described Australia’s approach to counterterrorism as a form of ‘hyper-legislation’ (Roach 2011). By this, he means that Australia has outpaced other countries in enacting new counterterrorism laws, and the ‘relentless pace’ of this lawmaking has reduced the time available to scrutinise the laws in parliament (Roach 2011). Clive Walker, a leading expert on counterterrorism law from the University of Leeds, has dubbed most of Australia’s counterterrorism laws ‘panic legislation’ (Walker 2006).

II. WHAT IS TERRORISM? All of Australia’s counterterrorism laws depend on a legal definition of terrorism introduced in 2002 with Australia’s first national counterterrorism laws. Before 9/11, Australia had no federal or state laws that specifically targeted terrorism. In all jurisdictions other

than the Northern Territory, acts of terrorism were dealt with under the traditional criminal law (like offences for murder and assaults causing grievous bodily harm). This was not surprising, given that Australia does not have the same history of terrorism as many other countries. Australia’s legal definition of terrorism is set out in section 100.1 of the Criminal Code Act 1995 (Cth). Defining terrorism is a notoriously difficult task because countries have very different views on what qualifies as unlawful political violence. What one country considers to be terrorism, another might consider to be legitimate political protest. Because of this, there is no internationally agreed definition of terrorism. However, at the time of the 9/11 attacks, the UK already had a legal definition of terrorism in its Terrorism Act 2000 (UK). That legislation consolidated a range of temporary and emergency powers introduced in response to the threat of terrorism in Northern Ireland. Australia and many other countries essentially copied this UK definition. This was partly because, on 28 September 2001, the United Nations Security Council issued Resolution 1373. A Security Council Resolution is a decision or recommendation made by the United Nations Security Council, the UN body responsible for international peace and security. Resolution 1373 required UN member states to enact new laws targeting the preparation and financing of terrorism within 90 days. Resolution 1373 resolution issued by the United Nations Security Council on 28 September 2001, which required United Nations member states to enact laws targeting the preparation and financing of terrorism Security Council Resolution document issued by the United Nations Security Council which requires United Nations member states to take certain action Motive requirement requirement found in legal definitions of terrorism, which requires that an act of terrorism be designed to advance a political, religious or ideological cause Australia’s definition in section 100.1 defines a terrorist act as any conduct, or the threat of conduct, which satisfies three elements. First, the conduct or threat must be designed to advance a political, religious or ideological cause. This is often referred to as a motive requirement and is the key feature separating terrorism from other types of crime. Ordinarily, the reason why a person committed a crime (like murder or assault) is irrelevant to determining whether the person is guilty. Motive factors into sentencing, but the only issue at trial is whether they intended to do some act. For example, if somebody steals money because they have a large gambling debt, the only relevant question to determine their guilt is whether they intended to steal the money. With terrorism, however, the motive— to cause harm in order to advance a religious, political or ideological cause—is considered a defining element of the crime. The second requirement in the definition of terrorism is that the conduct or threat must be intended to intimidate a government or a section of the population. This is the more typical mens rea of the offence. Thirdly, the conduct must cause one or more specific types of harm (or, in the case of a threat, be intended to cause one of these harms). The list of harms in subsection 100.1(2) includes the following: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person’s death; or (d) endangers a person’s life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. You can see here that the possible harms extend beyond death and serious bodily injury to include serious property damage, endangering life, and creating a serious risk to health or safety. This means an act or threat need not be designed to kill or seriously harm any person to qualify as terrorism under Australian law. Cyberterrorism terrorism that involves cyberattacks against electronic systems

Subsection (2)(f) is designed to address the risk of cyberterrorism (Hardy 2011). Cyberterrorism involves using computers to attack an electronic system for a political, religious or ideological cause. A physical attack against critical infrastructure (such as bombing a transport or electricity system) could also fall under this section. A final aspect of the definition of terrorism is an exemption for legitimate political protest. This is a subsection that can exclude certain conduct from the scope of the legislation. If an act or threat is advocacy, protest, dissent or industrial action and is only intended to cause serious property damage, the terrorism laws will not apply. The possible scope of this exemption has not been tested in court.

III. CRIMINAL OFFENCES Australia’s counterterrorism laws have introduced many new criminal offences. These go beyond the scope of the traditional criminal law in several important ways.

A. Preparatory offences One of the defining features of Australia’s counterterrorism laws is a series of offences that target the preparation of terrorist acts. These were introduced in 2002 and are found in Division 101 of the Criminal Code Act 1995 (Cth). They are known as preparatory offences because they go beyond the ordinary law of attempt. Preparatory offences series of offences in Division 101 of the Criminal Code Act 1995 (Cth) targeting the preparation of terrorist acts In Chapter 8, we discussed what it means to be found guilty of attempting to commit a crime. Attempted murder means a person tries to commit murder but fails for some reason (like missing the target, or the gun misfiring). Preparing to commit murder—for example, by purchasing a gun—is not considered a crime. Because of special offences introduced in response to terrorism, preparing to commit terrorism is a crime. The major offence is found in section 101.6 of the Criminal Code Act 1995 (Cth): 101.6 Other acts done in preparation for, or planning, terrorist acts (1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act. Penalty: Imprisonment for life. (2) A person commits an offence under subsection (1) even if: (a) a terrorist act does not occur; or (b) the person’s act is not done in preparation for, or planning, a specific terrorist act; or (c) the person’s act is done in preparation for, or planning, more than one terrorist act. Subsection (1) is the main offence, providing a maximum penalty of life imprisonment where a person does any act in preparation or planning for a terrorist act. This would include, for example, purchasing guns and ammunition or chemicals to make a bomb. Subsection (2) is important because it confirms that the maximum penalty will apply even if a terrorist attack does not happen. The penalty will also apply if the person is not preparing a specific attack. The offender can be in the very early stages of preparation, with only a vague idea of when, where or whom they might attack. Other sections in Division 101 make it a crime to: • provide or receive training connected with terrorism (section 101.2) • possess things connected with terrorist acts (101.4) • collect or make documents likely to facilitate terrorist acts (101.5). Ancillary conduct conduct that is related to the preparation of terrorist acts, such as training and support for terrorism These offences target ancillary conduct—meaning activities that are related to preparing a terrorist act—whereas section 101.6 targets preparation directly. The purpose of these offences is to address the risk of a terrorist act occurring, rather than punish a person for committing one. There is an offence (found in section 101.1) for committing an act of terrorism, but this has never

been prosecuted. This is a bit different to the harm principle we talked about in Chapter 4. Ordinarily, the criminal law punishes an offender for causing harm to someone else, or for attempting to cause harm. Australia’s counterterrorism laws are triggered at a much earlier stage, when an offender is preparing to commit a crime. The crime may or may not happen at some unspecified future time and location. For this reason, counterterrorism laws in Australia and other countries have been called a form of pre-crime (Zedner 2007). The laws punish a person for what they are likely to do in the future, rather than after the fact for something they have already done. Pre-crime term used to describe many counterterrorism laws because they punish people for something they are likely to do in the future

B. Terrorist organisation offences Another key feature of Australia’s counterterrorism laws is a series of offences relating to terrorist organisations. These offences are found in Division 102 of the Criminal Code Act 1995 (Cth). They depend on a legal definition of a terrorist organisation and a process for making regulations known as a proscription regime. Terrorist organisation an organisation that is involved in the preparation or planning of a terrorist act, or advocates terrorism Advocate to counsel, promote, encourage, urge, praise or promote the doing of a terrorist act According to section 102.1(1), an organisation is a terrorist organisation if it is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’. An organisation is also a terrorist organisation if it advocates terrorism. This means the organisation counsels, promotes, encourages or urges the doing of a terrorist act, or provides instruction on how to commit a terrorist act. This is similar to the idea of accessorial liability we looked at in Chapter 8. However, the definition of advocates also includes ‘praising’ terrorism where there is a ‘substantial risk’ that the praise might lead another person to commit an act of terrorism. This is broader because it does not require a person to assist someone in committing a specific crime. It could involve posting general statements of support for terrorism online. Under Division 102, the Governor-General has the power to make regulations that list organisations as designated terrorist organisations. This is known as a proscription regime because each organisation listed in the regulations becomes a proscribed organisation (meaning the organisation is officially banned or prohibited). As of March 2019, 26 organisations were listed as proscribed terrorist organisations. This includes IS, several different branches of al-Qaeda, Jemaah Islamiah (which was responsible for the 2002 Bali bombings) and many others. Where an organisation is proscribed in this way, the fact that the organisation is a terrorist organisation does not need to be proven in court. You can see a current list of proscribed organisations on Australia’s national security website (Australian Government 2019b). Proscription regime a scheme for banning terrorist organisations and punishing their members Proscribed organisation an organisation formally listed by the Australian government as a terrorist organisation Proscribe to ban an organisation Once an organisation has been proscribed, or it can be proven in court that an organisation is a terrorist organisation, a number of serious offences follow. These are: • directing the activities of a terrorist organisation (section 102.2) • membership of a terrorist organisation (section 102.3) • recruiting for a terrorist organisation (section 102.4) • training involving a terrorist organisation (section 102.5) • getting funds to, from or for a terrorist organisation (section 102.6) • providing support to a terrorist organisation (section 102.7) • associating with terrorist organisations (section 102.8).

Status offence an offence triggered by a person’s status (such as belonging to an organisation) rather than their actions Being a member of a terrorist organisation is known as a status offence because it does not require the person to actually do anything: being a member of the organisation is sufficient to attract a maximum penalty of ten years imprisonment. In other words, the offence targets something about the person, rather than something they have done. Associating with terrorist organisations (section 102.8) is another very different offence. A person can be put in prison for three years if they intentionally associate on two or more occasions with another person who they know is a member of a terrorist organisation. This does not require preparation for terrorism or other harmful behaviour—it simply requires that two people met each other multiple times (although the meetings must be intended to support the organisation in some way).

C. Declared area offence In 2014, the federal government introduced a series of new counterterrorism laws in response to the threat from IS (Hardy & Williams 2016a). One of the most extraordinary offences introduced at this time was a declared area offence, which is found in section 119.2 of the Criminal Code Act 1995 (Cth). This offence provides a maximum penalty of ten years imprisonment where a person enters or remains in a declared area. A declared area is any area of any foreign country which the Minister for Foreign Affairs declares a ‘no-go’ zone. Two areas have been designated in this way: the city of Mosul of Iraq and the Raqqa province in Syria (Australian Government 2019a). These were the two main strongholds of IS. Declared area an area of a foreign country which it is unlawful for an Australian to enter or remain in Any person who enters or remains in a declared area is subject to the maximum penalty, regardless of whether they become involved in terrorism. There are no other elements to the offence, beyond entering or remaining in the area. This means a person can be put in prison for a long time simply for ‘being’ somewhere. The prosecution does not need to prove that an offender caused or intended to cause any harm. It is a defence for an accused person to show that they entered or remained in the area ‘solely for a legitimate purpose’. This conflicts with the presumption of innocence because it requires the defendant to establish their innocence, rather than requiring the prosecution to prove something harmful. The legislation presumes the person must have done something criminal if they were in a declared area. The legislation sets out a list of legitimate reasons for being in a declared area. These include providing humanitarian aid, producing official news reports and making genuine family visits. However, the list does not include many other reasons why innocent people may enter or remain in conflict zones—such as visiting friends, conducting business or producing unofficial news and human rights reports.

D. Advocating terrorism The offence of advocating terrorism, found in section 80.2C of the Criminal Code Act 1995 (Cth), was also introduced in 2014. Under this section, it is a crime to advocate terrorism where the offender is reckless as to whether another person will engage in terrorism as a result. Advocating terrorism means to counsel, promote, encourage or urge the doing of a terrorist act or terrorism offence. This is similar to accessorial liability and the grounds for proscribing terrorism organisations explained above. Like the grounds for proscribing terrorist organisations, this offence is broader than the concept of accessorial liability we discussed in Chapter 8. This is because ‘promoting’ terrorism would apply to general statements of support for terrorism posted on social media or an internet forum. It does not require an offender to encourage, support or assist in the commission of a specific terrorist act. This offence is yet to be tested in an Australian court, but a similar offence has been successfully prosecuted in the UK. In one UK case, a university student was imprisoned for five years for posting a video on YouTube that contained footage of the Iraq War and statements of support for terrorism (R v Gul [2012] EWCA Crim 280).

IV. POLICE AND INTELLIGENCE AGENCY POWERS

In addition to creating new criminal offences, Australia’s counterterrorism laws have given significant new powers to police and intelligence agencies. In particular, the laws have given extraordinary powers to the Australian Security Intelligence Organisation (ASIO), which is responsible for protecting Australia’s national security.

A. Control orders In 2005, in response to the 7/7 London bombings, the Australian government introduced two major new police powers. The first was control order powers. These were based on UK legislation and are found in Division 104 of the Criminal Code Act 1995 (Cth). A control order is a court order that imposes restrictions and obligations on a person for the purposes of counterterrorism. The orders are issued by judges of the state supreme courts on application by a senior member of the Australian Federal Police (AFP). State police cannot apply for a control order. Section 104.5(3) sets out a long list of restrictions and obligations that can be imposed under a control order. Among other things, a control order can require a person to abide by a curfew (be at home at specified times of the day and night), report to police stations at regular intervals and wear an electronic monitoring bracelet. It is an offence punishable by five years in prison to breach any of these conditions. Control order a court order that imposes restrictions and obligations on a person for the purpose of preventing a terrorist act, or preventing the support or facilitation of terrorism Curfew requirement in a control order that a person must be at home during specified times of the day and night Control orders are similar to court-ordered supervision for bail, probation or parole, but there is a major difference. Bail, probation and parole are all parts of the criminal justice system. They apply to people charged or convicted of a criminal offence. Control orders are issued by a court but they are not related to the criminal justice process. They are a separate order issued under civil law and can be imposed for a wide range of reasons, including to prevent a terrorist act or prevent support for terrorism. This means a person subject to a control order (known as a controlee) need not necessarily be suspected of committing a terrorism offence. Controlee a person subject to a control order Preventative detention order power that allows police to detain a person for up to two weeks to prevent an imminent terrorist act or preserve evidence about a recent attack

B. Preventative detention orders Australia’s other major response to the London bombings was to introduce preventative detention order (PDO) powers. These are found in Division 105 of the Criminal Code Act 1995 (Cth). Under a PDO, a person may be detained by the AFP for up to 48 hours—and up to fourteen days under state legislation—for the purpose of preventing an ‘imminent’ terrorist attack or to preserve evidence about a recent attack. As with control orders, the person need not be suspected of a criminal offence. There are significant restrictions on a detainee’s contact with the outside world. A detainee may contact a family member and their employer, but only to say they are ‘safe but not able to be contacted for the time being’. If they reveal anything about their detention, they face a criminal offence punishable by five years in prison. PDOs are an extraordinary power not available in similar countries such as the United Kingdom, Canada or the United States. In 2013, a committee appointed by the Council of Australian Governments (COAG) examined these and other counterterrorism powers. Justice Whealy, a former New South Wales Supreme Court judge who chaired that review, wrote the following about the PDO powers in the committee’s final report: [T]he concept of police officers detaining persons ‘incommunicado’ without charge for up to 14 days, in other than the most extreme circumstances, might be thought to be unacceptable in a liberal democracy. There are many in the community who would regard detention of this kind as quite inappropriate. To some, it might call to mind the sudden and unexplained ‘disappearances’ of citizens last century during the fearful rule of discredited totalitarian regimes. (Council of Australian Governments 2013: 68) To detain someone incommunicado means the person is not able to contact anyone while they are being

detained, or even explain their disappearance. Despite many recommendations that the PDO powers be repealed, they remain current law. Incommunicado when a detained person cannot contact anyone

C. Questioning and detention warrants Another extraordinary counterterrorism power is ASIO’s power to detain non-suspects for questioning. ASIO is Australia’s domestic intelligence agency, meaning it collects and analyses information about threats to national security. This requires a wide range of secretive powers, such as intercepting communications, inspecting mail and placing tracking devices on vehicles. ASIO officers also conduct undercover operations, using agents to pose as members of terrorist organisations and other groups. ASIO the Australian Security Intelligence Organisation, Australia’s domestic intelligence organisation responsible for protecting national security In 2003, the federal government introduced new laws that allow the Director-General of ASIO to apply to the federal Attorney-General for questioning and detention warrants. These powers are found in Part III Division 3 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). The ASIO Act is the main piece of legislation that provides ASIO with all its intelligence-gathering powers. Questioning and detention warrants powers that allow ASIO to detain people for up to a week for questioning Under Part III Division 3, a person may be questioned in eight-hour blocks up to a maximum of 24 hours where this would ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’. A person may be detained for up to a week for questioning where there are reasonable grounds to believe that he or she will alert another person involved in a terrorism offence, not appear before ASIO for questioning or destroy evidence. Importantly, unless the person is under 18, they need not be suspected of any involvement in terrorism. This means the powers could be used against family members, journalists or innocent bystanders. It is an offence punishable by five years imprisonment to refuse to answer ASIO’s questions or to disclose information about the questioning and detention. Special intelligence operation an undercover operation that has been specially approved by the AttorneyGeneral, in which ASIO officers are granted immunity from civil and criminal liability Immunity protection from legal liability

D. Special intelligence operations In 2014, in response to the threat of terrorism from IS, the federal government introduced legislation creating a special intelligence operations regime. A special intelligence operation (SIO) is a special undercover operation approved by the Attorney-General in which ASIO officers are granted immunity from civil and criminal liability. Immunity means that ASIO officers who commit a crime or do some other unlawful act during an SIO cannot be punished by a court. Immunity cannot be granted for conduct which would cause death or serious injury, constitute torture, cause serious property damage or involve the commission of a sexual offence. One of the biggest controversies surrounding the SIO regime relates to section 35P of the ASIO Act. Section 35P provides a maximum penalty of five years imprisonment where a person discloses any information about an SIO and the disclosure will endanger health or safety or ‘prejudice’ (undermine the success of) the operation. The original version of this offence did not require any harm to be caused by disclosing the information. This caused significant controversy over the impact it would have on journalists reporting on national security matters. Any journalist who recklessly disclosed information about an SIO could face a long prison sentence (Hardy & Williams 2016b).

E. Metadata

In 2015, amendments to the Telecommunications (Interception and Access) Act 1979 (Cth) meant that all communications service providers (CSPs) must retain metadata for two years. CSPs are businesses like Telstra and Optus that provide mobile phone, email and other communication services. Metadata is a popular term used to describe data about a communication, other than its substance or content. In other words, metadata captures the time, date, location and other information about a phone call, email or SMS message, but not the content of the message inside. CSPs must retain this data about all of our communications for a two-year period. This poses a risk to privacy, as metadata can reveal significant information about our lives: who we talk to, how long we talk to them for, where we spend our days and how long we spend travelling to and from work (Ockenden 2015). Metadata popular term for data about a communication, rather than its substance or content Under the new laws, metadata may be accessed by ‘enforcement agencies’ without a warrant. Such requests can be made where access to the metadata would be reasonably necessary to enforce the criminal law, enforce a monetary fine or find a missing person. Enforcement agencies include police and other investigative agencies such as the Independent Commission Against Corruption (ICAC). However, a much longer list of agencies have accessed metadata under the new laws, including local councils (Anderson 2016). This is concerning because it suggests that data about people’s whereabouts and private communications is being accessed to enforce minor fines and infringements. In addition, the use of this data is not subject to the same legal protections (such as the laws of evidence) that are available in a criminal court.

V. LESSONS Australia’s experience with counterterrorism laws suggests a number of important lessons for our legal and parliamentary system. Three of these are addressed below.

A. Parliamentary process Australia’s counterterrorism laws confirm the need for parliaments to spend sufficient time examining laws before they are enacted. With the exception of ASIO’s questioning and detention warrant powers, most of Australia’s counterterrorism laws have been passed with no more than a few days’ scrutiny in parliament. A key example was the legislation introduced in 2014 to address the threat from foreign fighters. That legislation created the declared area and advocacy offences, as well as many other offences and powers. The Bill was 160 pages long in total and made many complicated amendments to more than 25 pieces of existing legislation. A committee inquiry by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) allowed only eight days for law reform organisations and members of the public to make submissions. Following that process, the Bill was given just three days’ scrutiny in parliament, with debate in the House of Representatives lasting just two days. Another concerning trend is for the federal parliament to enact laws that it knows are problematic and then to review the legislation after it is enacted. This happened in 2014 with the National Security Legislation Amendment Act (No 1) 2014 (Cth), which created the SIO regime and section 35P offence. It happened again in 2018 with new laws requiring the technology industry to assist police and intelligence agencies with counterterrorism (Bogle 2018). It was seen previously under the Howard government, when controversial laws that revived older sedition offences were passed on the understanding that they would be reviewed immediately by the Australian Law Reform Commission (2006). Passing laws so quickly through the federal parliament when they are lengthy, complex, go beyond laws enacted by other countries and clearly impact on important human rights is not adequate for an advanced liberal democracy like Australia. Enacting laws that our elected representatives know are problematic, and expecting to review those laws later, is bordering on a dereliction of duty by parliament. It also undermines the separation of powers by giving too much power to the executive branch of government. In theory, parliament should decide on the laws that the executive gets to use. In counterterrorism, the executive often demands new powers to address a security threat, and parliament does not act as an effective check and balance. In our democratic system, parliament is designed as a representative forum where every piece of legislation should be appropriately and thoroughly reviewed.

B. Human rights

Australia’s counterterrorism laws impact on many different human rights. These include the rights to freedom of movement (declared area offence), freedom of speech and opinion (advocacy offence), privacy (metadata laws), liberty, a fair trial and freedom from arbitrary detention (control orders and PDOs). By making it a criminal offence to refuse to answer ASIO’s questions, ASIO’s questioning and detention warrants undermine the right to silence, which normally requires that a person is not required to answer questions put to them by law enforcement. The declared area offence undermines the presumption of innocence because it assumes that any person in a declared area is guilty of some harmful conduct. It requires an accused person to provide evidence that they were in the declared area solely for a legitimate reason. Many of these powers would simply not be possible in a country with stronger human rights protection. If Australia had constitutional protection for human rights, the laws could be struck down using the High Court’s power of judicial review. In the absence of such protections, a court cannot invalidate the legislation on human rights grounds. Other reasons to invalidate the legislation might be found—a law may, for example, breach the separation of powers—but, so far, all the laws remain valid. The Parliamentary Joint Committee on Human Rights examines legislation for its impact on human rights, but this process did not exist when most of Australia’s counterterrorism laws were enacted. In any case, the committee can only make recommendations to the Commonwealth parliament; it cannot prevent a Bill from becoming law. The committee has little effect in the face of political and community pressure to respond strongly to the threat of terrorism. Many Bills that clearly impact on human rights have been enacted with little scrutiny or substantive change.

C. Freedom of the press A final concerning trend is that counterterrorism laws undermine the ability of media organisations to report on national security matters. Key examples include the disclosure offences attached to the SIO regime, PDO powers and ASIO’s questioning and detention warrants. These prevent journalists from reporting on the use of the powers, even if doing so would reveal information that the Australian community ought to know about. For example, journalists would be prohibited from revealing that ASIO officers physically mistreated a suspect during an investigation. The metadata laws also pose a risk to journalists because the powers can be used to reveal a journalist’s confidential sources. Because of this, the legislation now requires that enforcement agencies seek a ‘journalist information warrant’ to request access to a journalist’s metadata. However, journalists cannot challenge these warrants and they are not even notified that a warrant has been issued. The federal government has maintained that it will not use counterterrorism laws to prosecute a journalist for ‘doing their job’ (Taylor 2014). Such assurances depend on executive discretion and are not sufficient to protect freedom of the press in Australia. Freedom of the press means that media organisations can decide what they publish and are able to criticise government agencies without fear of retribution. It means that journalists should be free to publish information that is in the public interest, even if that information embarrasses government or exposes wrongdoing. Indeed, it is precisely those circumstances involving government wrongdoing that are important for journalists to report. Certainly, there is much about counterterrorism that should not be reported in the press, in order to protect Australia’s national security. However, the legislation does not account for situations where journalists working for respected media organisations reveal significant information in the public interest. In a submission to a PJCIS inquiry, a coalition of Australia’s largest media organisations wrote that ‘fair scrutiny and public interest reporting is increasingly difficult and there is a real risk that journalists could go to jail for doing their jobs’ (Media, Entertainment & Arts Alliance 2018).

KEY POINTS • The federal parliament has enacted more than 75 pieces of legislation in response to the threat of terrorism. These laws have created many new criminal offences and significantly expanded the powers of police and ASIO, Australia’s domestic intelligence agency. • Australia has some of the most extraordinary counterterrorism laws in the world. These laws are possible in Australia because the Constitution does not protect human rights. • Criminal offences for disclosing information about national security matters, as well as new metadata laws,

restrict the ability of journalists to report significant information in the public interest.

DISCUSSION QUESTIONS 1. Do you think Australia’s counterterrorism laws are a justified response to the threat of terrorism? 2. How do preparatory offences differ from the ordinary law of attempt? 3. What terrorist organisations are currently proscribed by the Australian government? What can you find out about these organisations (such as their motives, tactics, and recent attacks)? 4. How does the declared area offence undermine the presumption of innocence? 5. What kinds of conduct could fall under the offence of advocating terrorism? Do you think it should be a criminal offence to post material online that supports or promotes terrorism? 6. How do control orders differ from bail, probation and parole? 7. How significant a risk do the metadata laws pose to our right to privacy? How much private information can metadata reveal about our lives? 8. How could Australia’s counterterrorism laws be amended to provide greater protection for freedom of the press? ________________ 6 This count includes at least five new counterterrorism laws enacted since that publication.

Acknowledgements I owe much of this book to the brilliant public law teaching team at the Gilbert + Tobin Centre of Public Law, University of New South Wales. I am particularly grateful to Professors George Williams and Andrew Lynch and Associate Professor Ben Golder for their mentoring and guidance, and for discussions in the Centre over many years about Australian law and politics. Many thanks also go to Sandra Rigby and Tessa Feggans at Allen & Unwin and the anonymous reviewers, whose insightful feedback helped shape this book into its final form. I owe thanks in equal part to my new home at Griffith Criminology, which is a wonderful environment for teaching and research. My colleagues continually remind me how important it is to examine the law in practice and improve justice in Australia. I was lucky to inherit two fantastic courses on criminal justice and government, which introduce criminology students to Australia’s legal system. I am particularly grateful to Professor Janet Ransley, Director of the Griffith Criminology Institute, for her ongoing support, and to the Griffith students for many interesting discussions. It is this intersection between public law and criminology that, I hope, will help students to understand Australia’s legal system as a whole.

References INTRODUCTION Anderson, S., 2017, ‘Euthanasia in Victoria: How the state’s assisted dying laws will work’, ABC News, 27 November. Aneez, S. & Sirilal, R., 2015, ‘Saudi Arabia sentences woman convicted of adultery to death by stoning—her male partner gets 100 lashes’, The Independent, 27 February. Australian Government, 2018, Closing the Gap: Prime Minister’s Report 2018, Canberra: Australian Government. Australian Law Reform Commission, 2017, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples: Discussion Paper, Canberra: Australian Government. Smee, B., 2018, ‘Queensland parliament votes to legalise abortion’, The Guardian, 17 October. Stuart, R., 2017, ‘Same-sex marriage: The Yes campaign, from the Howard years to headbutts’, ABC News, 16 November. Ryan, E., 2017, ‘University dean addresses nationwide human rights debate’, Lawyers Weekly, 24 July. Williams, G. & Reynolds, D., 2017, A Charter of Rights for Australia, 4th edn, Sydney: UNSW Press.

CHAPTER 1: LEGISLATION None.

CHAPTER 2: CASE LAW Ackland, R., 2017, ‘“This doesn’t get to be over for me”: the rape case that put consent on trial’, The Guardian, 21 July. Harding, M. & Malkin, I., 2010, ‘Overruling in the High Court of Australia in common law cases’, Melbourne University Law Review, vol. 34, no. 2, pp. 519–557. Monash University Library, 2018, ‘Law research & writing skills: writing case notes’, . Queensland Courts, 2017, About the Magistrates Court, . Survive Law, 2014, ‘How to write a case note’, .

CHAPTER 3: POLITICS AND THE MEDIA Australian Academy of Science, 2016, ‘The mathematics of voting’, . Australian Electoral Commission, 2017, Counting the votes for the Senate, . ——2016, Voter Turnout: 2016 House of Representatives and Senate elections, Canberra: Australian Electoral Commission. Australian Labor Party, 2019, Labor’s Fair Go Action Plan, . Brown, B., 2014, ‘Bob Brown reflects on saving the Franklin River’, Australian Geographic, 10 June. Browne, R., & Cox, L., 2014, ‘Ricky Muir fumbles his way through rare media interview’, Sydney Morning Herald, 9 June. Bump, P., 2018, ‘All the ways Trump’s campaign was aided by Facebook, ranked by importance’, The Washington Post, 22 March.

Carson, A., 2018, ‘Nine–Fairfax merger rings warning bells for investigative journalism—and Australian democracy’, The Conversation, 1 August. Federal Parliamentary Press Gallery, 2019, Australia’s Federal Parliamentary Press Gallery, . Freking, K., 2017, ‘Obama makes his mark as first “social media” president’, Seattle Times, 6 January. Gobbett, H., 2016, Composition of the 45th Parliament: A quick guide, Canberra: Parliament of Australia, . Greenslade, R., 2013, ‘“Kick this mob out”: Murdoch flexes his election muscle from day one’, The Guardian, 5 August. Griffiths, E., 2015, ‘Q&A: PM Tony Abbott labels program a “lefty lynch mob” as ABC admits error in judgment over former terrorism suspect Zaky Mallah’s appearance’, ABC News, 24 June. Hull, C., 2018, ‘As the major party vote slides away, the independents come out to play’, Sydney Morning Herald, 8 September. Human Rights Committee, 2011, General comment No. 34: Article 19—Freedoms of Opinion and Expression, Geneva: United Nations. Hutchens, G., 2017, ‘Turnbull challenges Abbott, saying party is Liberal, not conservative’, The Guardian, 11 July. Knaus, C. & Evershed, N., 2018, ‘Major parties failed to declare corporate donations, electoral commission finds’, The Guardian, 26 November. Liberal Party of Australia, 2018, Securing Australia’s Borders, . Markey, R., 2016, ‘How the influence of trade unions on the Labor Party is overestimated’, The Conversation, 27 April. McIlroy, T., 2018, ‘Prime Minister Malcolm Turnbull says the ABC “biased to the left”’, Australian Financial Review, 22 June. Meade, A. & Keneally, P., 2018, ‘ABC funding slashed by $84m in budget to help broadcaster “live within their means”’, The Guardian, 8 May. Melleuish, G., 2018, ‘Can the Liberal Party hold its “broad church” of liberals and conservatives together?’, The Conversation, 10 April. Morey, S., 2013, ‘Explainer: How does the Senate voting system work?’, The Conversation, 5 September. Murphy, K. & Karp, P., 2018, ‘Liberal Party changes rules to require two-thirds majority to unseat sitting PM’, The Guardian, 3 December. Pollard, C., 2017, ‘The facts of the Whitlam dismissal are more important than ever’, ABC News, 12 November. Riordan, P., 2017, ‘Hanson wears burka in “appalling” Senate stunt’, The Australian, 17 August. Stevenson, A., 2018, ‘Clive Palmer’s assets frozen by Supreme Court over Queensland Nickel collapse’, ABC News, 25 May. Swan, J., 2013, ‘It was “people play”: Would-be senator Ricky Muir on the kangaroo poo fight’, Sydney Morning Herald, 9 September. Thomsen, S., 2016, ‘The loophole that let Ricky Muir enter the Senate on less than 1% of the vote has been closed’, Business Insider, March 18. Webster, A., 2016, ‘Election explainer: What does it mean that we’re having a double-dissolution election?’, The Conversation, 8 May. Williams, G., 2013, ‘The legal legacy of the war on terror’, Macquarie Law Journal, vol. 12, pp. 3–16.

CHAPTER 4: FOUNDING PRINCIPLES American Bar Association, 2011, The Declaration of the Rights of Man and of the Citizen, 1789,