ENVIRONMENT

Soft law- not binding

Hard law- binding
Stewardship- protect your environment
Treaties- most successful international hard law
ICJ- jurisdiction: nominated in agreement OR both parties agree. Disputes of noncompliance. 15 judges.
International Customary Law- traditional practice that doesnt conflict with international
law eg. Transboarder pollution practices
UN- 1945. States sign charter. Initially world peace, now agencies develop and sponsor
environmental law.
UN Environmental Program- review environment. State and advice
NGOs- Non legal. Voluntary groups w/ common interests. No govt funding. UN sees as
a consultative body. Increase public awareness and pressure.
Media- non legal. Communicate. Mass consumption v Inform
Codification- Formalization and documentation of customary law
NSW POWERS
Environmental Protection Authority (EPA)- Enforcer. Licensing. Prosecute and direct
public authorities.
Heritage Council- Heritage Act. Environmental Planning and Assessment Act.
Conservation orders and refer offenders to Land and Environmental Court
Land and Environmental Court- Jurisdiction: environment and references by EPA.
Appelate. Part of department of environment and conservation.
Protection of the Environmental Policies (PEPs)- protection policies to decrease pollution
through guidelines and protocols etc. EPA ensures they are maintained.
Integrated environment protection licensing- PEP = licsnse.
License conditions- monitor, audit program, reduction program, management of waste
and resources.
License term- reviewed every 5 years. Valid unless revoked, suspended or surrendered.
INTERNATIONAL
STOCKHOLM CONFERENCE 72
- guidelines for resource management
- est. UNEP (environ program)
+stepping stone. Catalyst. Many issues. Showed need for changes
-Vague, no clauses, soft law.
RIO CONFERENCE 92
1) Agenda 21- human caused degradation and est. commission on sustainable
development
2) UN Convention on Biodiversity- Protect flora and Fauna
3) UN Framework convention on Climate change- Greenhouse gasses
4) UN Declaration on Environment and development- sustainable development

JOHANNESBURG 02
- Further Rios sustainable development
- Increase health and sanitation targets for 10 years
MONTREAL PROTOCOL 89
-Decrease Greenhouse
Single most successful kofi annan. Was what Sparked Rio.
KYOTO PROTOCOL
-Aus signed not ratified. Big players not taking part, cant enforce to non-compliers.
-Consessions = ineffective
Murphyores v Commonwealth
Section 51 of constitution = international agreements = environmental protection
-High court on board = institutions are aligning w/concerns
CRIME
CRIMES ON INDIVIDUAL
Homicide- unlawful killing (war and self defense is allowed)
1) Murder- deliberate or indifference to life
2) Manslaughter- killed but w/ defense
Involuntary- negligence
Voluntary- mitigating circumstances
Constructive- during crime
3) Infanticide- <12 months. Post-natal depression?
4) Death by reckless driving- Intention is overlooked by other factors
Assault- (threaten to) cause physical harm
Sexual assault- sexual contact w/out consent
OTHER CRIMES
AGAINST PROPERTY
Larceny- theft
Breaking and entering- illegal entrance for crime
Robbery- direct theft
White Collar- Business context. Eg. Tax evasion, computer crime, insider trading
Against state- sedition (hate) treason (bring down)
Public order offences- disrupting eg. Swear
Traffic offences- Traffic Act Small = fine and demerit. Large = court
Regulatory Offences- disobey protocol
Strict Liability- act = punishment (no mens rea)
Preliminary Offences- attempt, conspiracy (>2 people plan)

Victimless- no victim but affect society.

COURTS
Local- Summary. Magistrate (your worship). No jury. Inquisitorial.
Committal hearings prima facie. DPP gather evidence, take to district?
Childrens- All <18 not including extremes. <21@trial
Coroners- Circumstantial Evidence. Cause/manner. DPP investigates suspects after
inquest.
District- District Courts Act. All indictable not including extremes. Can choose to have
jury.
Supreme/Criminal Court of Appeal- Most serious indictable. Governer elects chief
justice and senior judges. Appelate. Perceived Leniency = harshness
High Court- No original jurisdiction. Constitutional.
Criminal Behavior- edu, upbringing, extra Y chromosome (XYY), protests that go out of
hand, material gain.
Situational Crime Prevention- decrease reward, increase risk = increase difficulty
Social Crime Prevention- decrease factors
LEGAL AID
Means test- ability to get lawyer
Merit test- chance of success in trial
Jurisdiction test- fit legal aid applicability. eg. Not family law, unless child
INTERNATIONAL
Committed in another jurisdiction not Australian law. Sex Tourism Act = extend
Australian power to S.E Asia
Transnational- Several laws eg. Wonderland club (pedophiles) break many nations laws.
Against international law- ICC if nation ignores
ELEMENTS OF A CRIME
Mens Rea- intention = awareness
Actus Reus- carry out crime
Causation- link action to crime
DEFENCE
Complete/Absolute Defense- =acquittal
Mental Illness- BOP = insane @ crime. McNaughten Test = unaware of wrong
actions (no mens rea)
Compulsion- Forced
Necessity- better than possible outcome
Consent- Not absolute in NSW
Partial/Qualified defense- reduction/change sentence
Provocation- Victim caused crime. Reaction is compared to ordinary person
Diminished Responsibility- Partial mental illness

Principal in 1st degree- carry out

Principal in 2nd degree- lesser role
Accessory before the fact- helped mens rea
Accessory after the fact- help after
Guilty Plea- no trial. Sentencing
Plea bargaining- 1) drop some charges 2) prompt plea w/likely verdict 3) decrease degree
of charge
Jury- Jury Act. 12 Jurers
Peremptory Challenge- 3 no reason. Unlimited challenges w/reason
Education- learn right v wrong
Regulation- administrative dealing
Coercion- expectations from law. Eg. Red lights
PUNISHMENT
Rehabilitation- decrease recidivism
Deterence- General = scapegoat specific = individual
Retribution- Vengence for victim
Incapacitation- Protect society. No Rehab.
Reintegrative shaming- Meet victim
SENTENCING *Has reasoning (radio decendendi)
The Hearing- judicial officer gives sentence
Prosecutor- decrease recidivism by increase sentence. Bring up past record.
Defense- Character whitness. Reasons eg. Abused
Victim- Victim impact statements
CIRCUMSTANCES *discretion is used, but guidelines from Higher Courts
Objective- weapon? General increase in crime?
Subjective- age, history etc
Aggrevated- severe execution of crime
Mittigating- decrease sentence. Age? Intoxicated?
PENALTIES
Fine- Summary. $120 penalty units
Bonds- aka recognisances. Conditions eg. Good behavious
Probation Orders- active surveillance of bond
Community Service Orders- up to 5000hrs
Home Detention- Device sends random signal, verify it in <10sec.
Periodic Detention- Weekend Jail
Imprisonment- All max security until Department of Constructive Services reviews.
Security Classification- Constructive services. Crime type and escape likelihood
Protective Custody- isolate if risk of abuse
Parole- Require to finish head sentence then can be released w/conditions

INTERNATIONAL
Ad hoc tribunal- Temporary courts for war crime. Now ICC is permanent
Extradition- Extradition Treaty. Crime in both nations. Transfer to jurisdiction where
crime was offended. Apply with court
-

DECRIMINALISATION FO CANNABIS
Most common recreational drug. Increase respiratory disease and decrease
cognitive function.
1970s, USA removed all small penalties in 11 states and no change in usage
Decrease tobacco usage with ads
High costs of arrest
Medicinal Benefits (cancer)
Secondary crimes committed by those arrested for cannabis. Link?

Australian Law Reform Commission- Keep law w/society. Reports -> Feedback -> Fix
Report etc.
WHY? Value changes, new concepts (victim impact statements), failing existing laws,
international law, new technology.
DPP- Prosecute for community, independent from govt, investigate but not w/police
Zecevic v DPP
Subjective threat v objective reaction
Katarynski v R
Intoxication is included in subjective assessment of threat felt, but not for reaction to
threat.
R v Dudley and Stevens
Necessity not for murder
Toonen v Australia
Decriminalised homosexual acts in private. TAS law infringed on International
Convention on Civil and Political Rights
Yanner v Eaton
Customary rights to hunt crocodiles- override QLD laws
Dugan v Mirror Newspapers ltd.
right is lost = cant sue if committed offence punishable by death. No longer free from
defamation always, and equality before law.

LAW IN SOCIETY
Arbitrary law- power w/out reference to law
Influences on law- moral, political, social, economic, cultural
Customary law- indigenous. Mabo Case
Family law- Family Law Act Deal with marriage and divorce etc.
Common Law- case law
Distinguish case- find reason to not follow precedent
Civil Law- More inquisitorial. Written submissions, not argue.
Natural Justice- Fair treatment
Domestic law- Jurisdiction in entity that promulgates the law
International law- only govts.
Public Law- Operating of a govt. Constitutional, administrative, criminal
Private law- individuals
Contract- offer, accept, consideration
Tort- Civil wrong. Negligence, nuisance (hinder others to enjoy rights),
defamation (damage) and trespass
Property- ownership, use and disposal. Real (land and interests), Personal
(Goods, shares, copyright).
Customary- kinship (family), land, spirits, stories.
CIVIL AND CRIMINAL
Civil BOP= Plaintiff
Civil SOP= Balance of probability (more likely right than wrong)
Criminal BOP= Prosecution (state)
Criminal SOP= Beyond reasonable doubt
Equity- court deal w/injustices in law
Equality- equal for all
Fairness- equal outcomes
*Equality is not Fairness
Human Rights- Fundamental (for all) and Inalienable (cant remove)

WORLD ORDER
Darfur conflict- Military + Janjaweed v Sudan Liberation Movement. Because govt not
respond to natural disasters and feelings of non-arabic oppression.
LEGAL: UN= ineffective- Resolution 1556 ignored. Another 3 Rejected. STATE
SOVEREIGNTY. Also, EU not willing to donate troops, USA too thin spreading in Iraw
and Afghanistan
LEGAL: Regional Intergovernmental Organisations (RIGOs)= effective. African Union
= quick response and 7000 troops there today. BUT small size and lack of funds is
limiting.
NONLEGAL: NGOs- Amnesty international = camps, reports to UN and Media =
attention and exposure. Recommendations. BUT NGOs not a sovereignty and
oppressive govt attack
East Timor Crisis- Stem from Indonesian invasion in 1975. West soldiers v Govt
because discriminated against for East Soldiers.
LEGAL: UN= effective- extend deadline of UNOTIL twice. Resolution 1704 = UNMIT
keeps Australia in charge = increased idea of regional focus. Security Council backed it.
LEGAL: Unilateral Govt Response= effective- spark others to come on board. Foreign
Minister Horta called for help and next day help arrived. Operation Astute. Withdrew
240 Soldiers from Solomon Islands and others backed those troops left there.
NONLEGAL: Media- not just sell papers, increase awareness and support.
Communication = quick response. John Howard inform us of balancing act = if dont go
and crisis worsens we bad, if we do go we bully.
World Order- address conflict. Post WW1 est League of nations- collapsed at start of
WW2.
Conventional Warfare- Large number of troops. Organised
Standing Army- Permanent National army
Guerilla Warfare- part-time, independent, unorganized, hard to find and recognize. Hit
and run.
Nuclear Warfare- WW2= race for weapon that kills best and fastest. Treaties now to stop
stockpiling.
CONFLICT WITH NATIONS
Civil war- armed conflict in nation

Warlordism- military, dictatorship

Insurrection- oprising citizens/revolution
Coup Detat- rapid, unexpected govt overthrow.
Expansionism- increase size and influence. Eg. Colonialism
League of Nations Covenant- Cooperation, peace and security. Ineffective @ restraining
large power like USA w/mediation (negociated encouragement) and Arbitration
(impartial decision that is binding)
Act of Paris 1928- aka Briand-kellogg pact. War = instrument of national policy in their
relations w/one another No mechanism for compliance. 65 signatories, 11 werent
league members.
League = ineffective- Nicaragua v Mexico: not take responsibility of unrest. Also, USA
not part, Germany and Japan pulled out.
State sovereignty- Barrier. Domestic govt has right to run its own body. BUT also,
sovereignty leads to a unilateral response, successful in East Timor. Peacekeeping forces.
REMEDIES
Force- UN Charter Act 2. Force for self defense or humanitarian reasons (Human Rights)
Self defense- immediate threat, last resort, anticipatory.
Sanctions- Diplomatic, sporting, military, economic
Negociation- leads to web of treaties and agreements that can increase world order
International Instruments- Treaties and Dec.
Treaties and International Law- must register all. Vienna convention on Laws of
Treaties = change or stop if agreed to or new treaty covers same material.
Jus Cogens- new ethical philosophy = change in laws = treaties conflict and become void.
Eg. 18th century slave treaties dissolved.
TREATIES = World Order
Classification
Contract- like agreement. Hard law (vertrage)
Guideline- of behavior. Soft law.
SEABED TREATY
No nuclear weaponry on seabed. Only allowable 22km from shoreline. Cant est launch
sites.
NGOS
Globalisation, media, technology, groups increasing, input in conferences
Red Cross and Red Crescent- International Committee of the Red Cross: humanity,
impartial, neutrality, volunteer. Prepare all treaties and conventions relating to
international humanitarian law eg. Geneva convention. Reminds nations in war
(belligerent) of obligations

RIGOs (regional intergovernmental orgs)

UN Charter- must comply with UN, can deal with disputes before UN does. Eg Arab
League
INTERNATIONAL TRIBUNALS
ICJ- for nations. 15 judges. Apply international conventions and customary law.
1) contentious issues- binding decisions to adhere to.
2) advisory- non-binding resolutions on questions submitted by UN General
Assembly.
Ineffective- USA v Nicaragua- USA not pay reparation.
ICC- Rome Statues est. in 1998. War crimes, Genocide, humanity, referrals to ICC by
security council (can be vetoed) and authorized by 3 judge-panel to decrease politics.
International Criminal Tribunal of Yugoslavia (Balkans)
International Criminal Tribunal of Rwanda
AUSTRALIA AND WORLD ORDER
*S.51- external affairs powers
Ratification- policies codified in law
NON-LEGAL REMEDIES
Force- accordance to doc. of humanitarian intervention
Persuasion- Sanction threats = increase compliance
Political Negotiation- No 3rd party. Resolve disputes themselves = greater chance of
compliance to own resolutions
Why would commitment to international law lack?
-Lack of resources (eg. Kyoto- developing nations)
-National security. Everyone protects themselves
-Conflict of interests (eg. Economy v Environment)
-Political conflict
-Lack of shared values.
Conditions of Law reform
-Change in social values (eg. Human rights)
-Composition of society (eg. Increased extremists, globalization)
-New technology (media, new war)
-Failures (soft law)
-New concepts of justice (ICC)

EFFECTIVENESS OF INTERNATIONAL LAW

INDIVIDUALS
Equality:
NGOs, International legislation
low enforceability, sovereignty, different laws in different nations.
Accessibility:
NGOs, developed nations, ratify = access
Individuals cant access tribunals, sovereignty = not ratify
Enforceability:
ICC punishment, ratify = domestic laws
not binding, ratification not always = upheld laws
Resource Efficiency:
NGO = increased awareness, Media = increased awareness
Govt. hides matters, individuals not allowed in the UN
SOCIETY
Resource efficiency:
UN members = $, Money goes to developing nations
Timing isnt always right (delayed reaction), peacekeeping = optional
Enforcement:
ICC, embedded in domestic through ratify
Not all nations are democratic, sovereignty
Appeal/review:
ICC appeal option, domestic review = less cost to UN
Not all domestic systems are good, opportunity to appeal isnt transparent
Standards:
Treaty = unity, not discriminate
Westernized view, slow transition period for laws to change
NATION STATE
Recognition:
Sovereignty = recognize diversity, 80% budget to developing nations
Increased power to some states
Interdependence:
Harmony, increased wealth and prosperity
Occurs from power, sanctions impact on this negatively
Equality:
No limit to join UN, treaty for all
Economic power = inequality, buying of votes
Enforceability:
ICJ, sanctions
Soft law, sanctions = detrimental

HUMAN RIGHTS
Magna Carta (1215)- Limit king Johns power. No interference w/church, no taxes w/out
parliamentary consent, no prison w/out trial, cant deny rights of towns or rights to travel.
English Bill of Rights (1688)- James II expelled for increased parliament interference.
William II signed bill: Parliament function w/out royal interference. Shifted power from
monarchy to parliament.
Dec. of Independence of USA (1776)- Live life free from oppression. Stemmed out of
Britain trying to tax N.American colonies who had own character.
Constitution of USA (1787)- Separation of powers (no one branch w/greater power). No
arbitrary law change. Came after war of independence from British parliament.
US Bill of rights- 10 articles (1st 10 amendments to the constitution eg. Free from
unreasonable searches).
Dec. of the Rights of Man (1789)- Formed by common people in the 3rd estate of French
parliament when forming the national assembly. Freedoms and equality.
Basic law of Federal Republic of Germany (1949)- en of WW2. W.Germany protected
rights of its individuals.
Universal dec. of Human rights- Post WW2. 30 articles. Equality, freedom and
prosperity.
Arbitrary/absolute power- total power over citizens. Dissolved by Magna Carta.
Popular sovereignty- people = power through election
Natural law- derived from god/bible rules
Positive Law- made by the state. Precedence over natural law.
State sovereignty- Nation defined by boarders it can protect; rights ro govern itself, pave
own destiny, impose own controls.
HUMAN RIGHTS: INALIENABLE AND UNIVERSAL, NOT UNIVERSALLY
SUPPORTED YET, THREATENED BY STATE SOVEREIGNTY, A RECENT
PHENOMENON.
The state sovereignty includes:
-political control
-values
-ethnicity
-security pursuit

ABOLITION OF SLAVERY
Slavery = ancient tradition- no rights.
Natural rights (love thy neighbour) = question slavery.
Emancipation Act British govt. abolish slavery.
3rd amendment to US constitution also abolish slavery, but still oppression in the sthn.
States up until 1960s.
Slavery Convention as soon as possible = soft
A supplementary convention on the abolition of slavery less colonialism/apartheid
(African and Soviet Union states)
A.4 of UDHR
UNIVERSAL SUFFERAGE
The right to vote.
The 1st partly-elected body in NSW = the legislative council (only extremely wealthy
men could vote).
Women right to vote in Federal election in 1902 (as opposed to 1928 in Britain).
A.21 UDHR
UNIVERSAL EDUCATION
Increased social mobility.
The need for children to work and provide for family = less education.
UN invests $ to relieve poverty.
A.26 UDHR
Types of Rights
Customs- typical way to do things = law
Moral- immoral to kill = moral RIGHT to life. What is good.
Legal- instilled in law. Not always reflect society ie. In a dictatorship.
Domestic- Domestic law = that jurisdiction
International- universal rights for all humans. Cant grant or remove. Codified into
domestic for protection.
Civil and Political- Protect from oppressive govt.
International covenant on civil and political rights- life, freedom (expression etc.),
equality before law.
This est. International Human Rights Committee- monitor and read submissions from
signatories.
Covenant on the:
Elimination of all forms of discrimination against women
Elimination of all forms of racial discrimination
Rights of the Child (CROC)
Prevention and punishment of the Crime of Genocide
Torture and other cruel, inhumane or degrading treatments and punishments

Types of Rights cont.

Economic, social and cultural- International Covenant on economic, social and
cultural rights- provisions to maintain human dignity eg. Equal pay for equal work, free
choice to work etc.
Collective- received by those in a group eg. Environmental rights = intergenerational
equity
Peace- Resolution of UN General assembly = right of people to peace. A.2 UN Charter
Collective right to self determination- Indigenous. Partial sovereignty over their land.
SO WE HAVE RIGHTS!
Civil = equal before law, free expression
Political = vote, join party
Economic = to work, trade union
Social = engage freely in community
Cultural = maintain heritage
Environmental = intergenerational equity
CONSTIAUTIONAL PROTECTION OF HUMAN RIGHTS
Freedom to religion, jury trial, freedom of movement, free of state-based discrimination,
right to just compensation (if land is taken).
Bill of Rights in Australia?
+Currently rights arent protected enough
+Increase universal rights
+Empower the powerless
+Bring Australia in line with ROW
+Meet int. obligations
+Increased democracy as rights for minorities are increased and promoted
+Rights > Politics
+Increase policies
+Educative function
+Increased tolerance
-Rights are already protected
-Politicises the judiciary
-Litigation = costs
-Decreased parliamentary sovereignty
-Limit our rights to those in the Bill
-Rights are not freedoms
-Not flexible enough to change w/change in perceptions
*The UN UDHR = 1st International agreement on basic rights
*Free speech is in the constitution as a democracy = free speech

*Geneva Conventions and additional protocols have a lot of International Humanitarian

law
*The Magna Carta curtailed the power of the King and gave specific rights to nobility
and free man
Current Context Issues
Trial by Media
Chamberland and Haneef = selective leaking
Decreased justice due to sensationalism run with interesting stories rather than truth
Defamation = prejudice
Theoretically: Increased awareness w/media = effective justice
Media = middle man: increase deterrence, knowledge of rights etc.
Media = pressure to deliver justice (parliament setting laws, enforcement and judge
decisions in a trial)
Media = lobbyist: representation of what society values
Mandatory Sentencing
(eg 3rd charge found guilty in = jail)
Blurs distinction between parliament (legislature) and courts (judicial) as law = less
interpretation involved in courts at the quota.
17 y.o stole teatowel in NT as his last crime and then committed suicide
Increased justice in the community: repeat offenders are taken out of the community at
the expense of justice for the individual
Majority Verdict
11-1 = accepted ruling = resource efficient less retrials due to one dissenting person
(dealing w/rogue jurer)
Increased justice for society but less rights for the accused
AntiTerror Law
Right is at stake: Hedius Corpus- cant be held w/out charge
Better safe than sorry Howard = contradict presumption of innocence
Increased powers of surveillance etc.
Prohibitted evidence to magistrate but not defence = unjust
Death Penalty
Acted as a deterrent initially, but people get used to the idea and crimes dont stop
Ethical dilemma- UDHR says Death penalty is wrong
Right to life, free of hanus punishment

Other INTERNATIONAL and DOMESTIC CRIME ACTS

Crimes (Child Sex Tourism) amendment act 1994

Stop Australian males going to SE Asia to commit sexual acts with underaged children =
controls Australians outside Australian jurisdiction
Terrorism Act 2002
Answer to Sept. 11 2001
Anti-Terrorism Act 2005
Like 2002 act, increase police powers and ASIO investigative powers
Proceeds of Crime Act 1987
Stop money laundering and drag trafficking and seize assets that may have been bought
by crime.
Crimes Amendment Act 1989
Computer crime. Keep up w/technology
Migration Amendment Act 2002
Decrease people smuggling. Increase sentences = deterrence
Seabed Treaty
Decrease nuclear testing on the seabed
Drug Trafficking Act 1974
Decrease import of drugs
Law Reforms
Victims Rights Act 1996
Impact statements
Crimes (serious sex offenders) Act 2006
Extend detention for prisoner whose term is up. Increased community justice. Decreased
individual rights. Therefore, must rehabilitate and show remorse
Copyright Amendment Act 2006
Decriminalising copying music to i-pod. Personal use = ok. Responded to
unenforceability of previous law

Environmental Law Reform

Treaties Conventions International Bodies Jus Cogens Role of Lobbyists (Media,

NGOs) Govt. bodies and LRCs
Treaties and Conventions = est. new directions and policies. Catalyst for change
International bodies = UN, UNEP, IWC, APEC
Jus Cogens = New law for new philosophy
Lobbyists = awareness
Govt. bodies = EPA, Parliament, ALRC, Courts
Ozone Protection Act 1986
Antarctic Treaty Environment Protection Act 1980
Protection of the Environment Operations Act 1997
Australian concerns- Water, Forests, CO2 emissions
International concerns- Global warming, Whaling, Ozone