HSC Legal Studies

Multiple choice questions

1	C. We only see police prosecutors in the Local Court.
2	D: An individual is on remand if they are held in custody ahead of their trial.
3	C: The burden of proof lies with the prosecution in a criminal trial, who must prove each element of the offence beyond reasonable doubt.
4	A: Charlie has committed a transnational crime, meaning her case will not be heard in either the ICC (who deals with crimes against the international community) or the ICJ (who hears disputes between states and offers advisory opinions). As she was arrested and charged in Australia, an Australian court will hear this matter.
5	B: Greenpeace and Doctors without Borders are both examples of NGOs. The Federal Court is a court. The only intergovernmental organisation is the European Union.
6	D: This is an example of situational crime prevention.
7	A: As Australia is a dualist country, to ensure that the government is able to meet its obligations in the document, it must ratify and then enact the provisions into domestic law.
8	A: It is most likely that Joe will be placed into protective custody given he is at risk from other prisoners.
9	B: Charge negotiation best contributes to justice for society by being an efficient means of resolving criminal matters.
10	A: To prevent others from committing similar offences is to sentence someone in accordance with the principle of deterrence.
11	C: The freedom of movement is dealt with by the ICCPR, not the ICESCR.
12	C: The adversary system characteristically involves a dispute being heard before a third-impartial party (the judge).
13	D: As Blair has aided in the commission of the crime, she is likely to be the Principal in the second degree.
14	C: The main role of Legal Aid is to assist the accused in gaining legal representation.
15	A: Under the Victims Rights and Support Act 2013, eligible victims of a crime may receive compensation in recognition of the trauma and injury they suffered. However, this is only available to victims of violent crimes, and Frankie is only a victim of common assault. Another right of victims within the Act is to have their identity protected (unless a court orders otherwise), specifically their residential address and telephone number.
16	B: If Australia adopts a Charter of Rights, they will be in line with all other Western democracies who already have one.
17	A: Police cannot take a DNA sample of a suspect under 18 years old unless they have a court order allowing them to do so.
18	B: Judges do not determine the security classification of an offender.
19	D: Even if the country is a signatory to the ICC, the case does not have to be tried there. The ICC operates as a court of last resort, and will only exercise its jurisdiction where a state is unwilling or unable to prosecute the individual.We are told that the country where this person has been detained has a permanent judicial system, which would imply that they are able to prosecute the soldier. Thus, as long as they are willing to prosecute him (which is likely since he already has been detained), then it is likely that he will be tried within his country of origin.
20	D: This is an example of the judiciary ‘checking’ the decision made by a member of the executive.

Human Rights Short Answer

QUESTION 21

Identify TWO human rights explicitly included in the Australian Constitution.

The right to vote and the freedom to religion.

QUESTION 22

Outline the role played by non-government organisations in promoting human rights.

Non-government organisations (NGOs) are bodies that have a special purpose or interest, that operate without the financial support of any government. NGOs promote human rights by reporting on and exposing human rights abuses. For example, the International Committee of the Red Cross plays a crucial role in administering the Geneva conventions, promoting human rights such as the right to life (article 3 of the UDHR) and the freedom from torture (article 5 of the UDHR).

QUESTION 23

Explain how the recognition of ONE human right has developed over time.

Universal suffrage is the right of all persons to vote freely when electing public officials. Historically, the right to vote was limited to wealthy, male landowners. However, the perception of this right changed during the Suffragette Movement of the late-19th and early-20th centuries, which aimed to allow women the right to vote. Consequently, New Zealand was the first country to recognise the right for women to vote in 1893, through the passing of the Electoral Act 1893. Currently, the right to universal suffrage is protected within article 21 of the UDHR, yet, it remains a contemporary human rights issue as in some countries, women are still denied the right to vote.

QUESTION 24

‘The United Nations plays a significant role in the protection of human rights.’ Discuss this statement.

The United Nations (UN) is an international forum for the creation of international rules and laws. Whilst the UN has had a significant role in recognising and encouraging states to protect the human rights outlined in the international human rights documents it creates, such as the ICCPR, its ability to ensure the widespread protection of human rights in light of human rights abuses is often limited by the principle of state sovereignty.

This is evident within the recent chemical weapons attacks on civilians in Syria made by the Assad government within the Syrian civil war. Reports of indiscriminate chemical weapon attacks first emerged in 2013 after sarin gas attacks on Douma in Damascus killing over 1300 people. The use of chemical weapons has been widely condemned within the international community, as evident through the long-standing existence of international treaties such as the Geneva Gas Protocol and the Hague Declaration on Asphyxiating Gases, and other rights of the individual existing in the Universal Declaration of Human Rights (UDHR). These attacks contravene the fundamental human rights within the UDHR such as the right to life (article 3) and the right to not be subject to torture or mistreatement (article 5).

One of the principal bodies within the UN who is able to respond to such issues and uphold the protection of human rights is the United Nations Security Council (UNSC), who, under their Chapter VII powers in the UN Charter, can impose sanctions on a State or launch a peacekeeping operation through the passing of a resolution. The UNSC also has the power to refer human rights issues to the ICC, allowing them to prosecute individuals involved in these chemical weapons attacks, such as Assad, and potentially sentence these individuals to life imprisonment, ensuring the protection of human rights through punishing those who breach them.

However, Russia, as a close ally to the Assad government and one of the permanent 5 members of the UNSC, has the power to veto any resolutions in relation to the chemical weapons attack, using its veto 12 times in 2017 despite 12/15 members of the security council and 65 members of the general assembly endorsing a resolution to condemn the attacks. This highlights issues with the enforceability of human rights due to state sovereignty, both through the fact that the Syrian government is able to commit human rights abuses and war crimes with impunity, and how the UN is unable to form a legal response towards this issue.

Other answers may include:

Discussion of a student’s chosen contemporary human rights issues.
The fact that the Human Rights Council (which operates as a part of the UN) ensures that States comply with their obligations under the ICCPR.
- The Toonen v Australia case is an example of the success of this response in protecting human rights.
The ability of the United Nations Security Council to address human rights issues through sanctions and peacekeeping operations.

Crime Essay

The following comment was made about a proposal to raise the age of criminal responsibility in NSW.

‘Any reform in this area would need to be in the best interests of the community, with the safety of the community a key consideration.’ (The Honourable Mark Speakman).

Assess the effectiveness of criminal law reform in balancing individual rights and community interests. In your answer, refer to the above stimulus and other examples.

As this is a law reform question, it is best to include the following in your response:
- A definition of what law reform is in your introduction, and a brief outline of some of the conditions which give rise to reform.
  - For example: ‘Law reform is the process through which laws are removed and changed. This process may arise as a result of new concepts of justice, changing social values or technological advancements.’
- In your body paragraphs, for each area of reform you discuss, you should:
  - Provide context as to why the law needed reform. Were there any issues with the previous laws?
  - Be explicit about the agent and mechanism of reform.
  - Evaluate the effectiveness of the new law. Ensure that you provide a balanced argument which discusses both its merits and disadvantages.
    - If there is an issue with the new law, you may want to recommend that further reform in this area is needed.
Another key element of this essay question is the phrase ‘balancing individual rights and community interests.’
- Throughout your essay, you may want to explore the idea that there is a tension between upholding individual rights and autonomy, and protecting community welfare.
- It is extremely difficult for a balance to be struck between these competing concerns, meaning that when you are evaluating the effectiveness of a particular law reform issue, you should make mention of whether the reform:
  - Is focused on protecting community interests to the extent that it undermines the individual rights and freedoms of offenders or those accused of a crime.
  - Gives too much weight to the individual rights of offenders and puts community safety at risk.
  - Adequately balances both considerations.
The final thing you must have done in your essay is provide reference to the stimulus. The easiest way to do this would be to have a paragraph which entirely focuses on the doli incapax debate, or young offenders in general.
- Raising the age of criminal responsibility is an area of the criminal law in Australia that has lacked law reform.
- The law as it currently stands treats young offenders in the following way:
  - For children under the age of 10, doli incapax is a conclusive presumption. That is, they are presumed to be incapable of committing evil.
  - For children between the ages of 10-14 (but not including 14), doli incapax is a rebuttable presumption where the onus of proof is on the prosecution to establish that the child was aware of the fact that their actions were wrong.
- Many bodies have advocated for the age of doli incapax to be raised. For example, the Royal Commission on the Protection and Detention of Children in the NT recommended that the age of criminal responsibility should be raised to 12, and that children under 14 years of age should only be detained for serious offences.
  - This particular recommendation was in response to the fact that ATSI peoples are overrepresented in the juvenile justice system.
- In terms of evaluating effectiveness, you may argue that currently, the law has lacked responsiveness in addressing these concerns. If the law was to be reformed in this area, it would offer better protection of the individual rights of young people as it would reduce their exposure to the justice system. However, here, less weight would be given to community safety (as suggested by the stimulus), given that some young offenders may pose a risk to society if they are not held criminally responsible for their actions.
Other issues you may have discussed in your essay:
- Law reform in the area of bail (greater weight given to community welfare, especially since the introduction of ‘show cause’).
- Law reform to the partial defence of provocation, now extreme provocation (a reform which prioritises the welfare of the community by substantially narrowing the defence by requiring that the victim commits a serious indictable offence).
- Mandatory sentencing (again, individual civil liberties are undermined here, and concerns for community safety are prioritised).