Cambridge HSC Legal Studies

608 Pages·2016·90.546 MB·English

by  Paul Milgate, Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly, Kevin Steed

HSC
Cambridge
Legal Studies
Fourth Edition
Paul Milgate, Daryl Le Cornu, Alisha Murphy, Ann Miller, Tim Kelly,
Kevin Steed, Phil Webster, Sarah Hawke and Stephen Lippingwell
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
Photocopying is restricted under law and this material must not be transferred to another party.
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Information on this title: www.cambridge.org/9781316605677
First Edition © Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly and Kevin Steed 2006
Second Edition © Paul Milgate, Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly and Kevin Steed 2010
Second Edition Contributions by Travis McGregor and L. Elaine Miller
Third Edition © Paul Milgate, Daryl Le Cornu, Sarah Hawke, Ann Miller, Tim Kelly, Kevin Steed and Phil Webster
2013
Fourth Edition © Paul Milgate, Daryl Le Cornu, Alisha Murphy, Ann Miller, Tim Kelly, Kevin Steed, Phil Webster
and Sarah Hawke 2016
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Third Edition 2013
Fourth Edition 2016
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ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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Contents
About the authors vi Chapter 4 Sentencing and punishment 70
Author acknowledgements viii 4.1 Sentencing and punishment 72
Introduction ix 4.2 Statutory and judicial guidelines 72
How to use this resource x 4.3 The purposes of punishment 74
Components of Cambridge Legal Studies HSC xii 4.4 Factors affecting a sentencing decision 77
Glossary of key words xiii 4.5 The role of the victim in sentencing 78
Publisher acknowledgements xiv 4.6 Appeals 80
4.7 Types of penalties 82
4.8 Alternative methods of sentencing 88
Part I Crime 4.9 Post-sentencing considerations 90
Chapter summary 94
Chapter 1 The nature of crime 2 Questions 94
1.1 The meaning of crime 4
1.2 Elements of crime 6 Chapter 5 Young offenders 96
1.3 Strict liability offences 7 5.1 Young offenders and the law 98
1.4 Causation 8 5.2 Age of criminal responsibility 100
1.5 Categories of crime 8 5.3 The rights of children and young people when
1.6 Summary and indictable offences 22 questioned or arrested 104
1.7 Parties to a crime 22 5.4 Children’s Court – procedures and operation 109
1.8 Factors affecting criminal behaviour 23 5.5 Penalties for children 111
1.9 Crime prevention: situational and social 26 5.6 Alternatives to court 114
Chapter summary 29 5.7 The effectiveness of the criminal justice
Questions 29 system when dealing with young offenders 117
Chapter summary 122
Chapter 2 The criminal investigation Questions 122
process 30
2.1 Police powers 32 Chapter 6 International crime 124
2.2 Reporting crime 33 6.1 Defining international crime 126
2.3 Investigating crime 34 6.2 Categories of international crime 127
2.4 Arrest, detention and charge 40 6.3 Dealing with international crime 135
2.5 Court attendance notice, bail or remand 42 6.4 The effectiveness of measures dealing with
Chapter summary 45 international crime 143
Questions 45 Chapter summary 147
Questions 147
Chapter 3 The criminal trial process 46
3.1 Court jurisdiction: criminal courts 48 Themes and challenges for Part I Crime 148
3.2 The adversary system 54
3.3 Legal personnel in a criminal trial 55
3.4 Pleas and charge negotiation 57 Part II Human rights
3.5 Legal representation and Legal Aid NSW 58
3.6 Burden and standard of proof 59 Chapter 7 The nature and development
3.7 Use of evidence, including witnesses 60 of human rights 152
3.8 Defences to criminal charges 61 7.1 The definition of ‘human rights’ 154
3.9 The role of juries, including verdicts 65 7.2 The abolition of slavery 155
Chapter summary 69 7.3 Trade unionism and labour rights 158
Questions 69
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CAMBRIDGE LEGAL STUDIES HSC
7.4 Universal suffrage 160 Issue 1 summary 231
7.5 Universal education 162 Issue 1 questions 231
7.6 Self-determination 164 Issue 2 summary 232
7.7 Environmental rights 166 Issue 2 questions 232
7.8 Peace rights 167
7.9 Formal statements of human rights 169 Themes and challenges for Part II Human rights 233
7.10 Early development of domestic and
international documents and treaties 173
Part III Options
Refer to additional digital-only material at the
end of the book Chapter 10 Option 1: Consumers 236
10.1 The nature of consumer law 238
Chapter summary 174 10.2 Contracts 240
Questions 174 10.3 Consumer protection 249
10.4 Consumer redress and remedies 257
Chapter 8 Promoting and enforcing 10.5 Contemporary issue: Credit 264
human rights 176 10.6 Contemporary issue: Product certification 267
8.1 Introduction 178 10.7 Contemporary issue: Marketing innovations 272
8.2 Human rights in the international community 178 10.8 Contemporary issue: Technology 275
8.3 State sovereignty 179 Chapter summary 279
8.4 The role of the United Nations 181 Questions 279
8.5 The roles of other international groups 186 Themes and challenges 280
8.6 Human rights in Australian domestic law 192
8.7 The role of the Australian Constitution 193 Chapter 11 Option 2: Global environmental
8.8 Other human rights roles in Australia 195 protection 282
8.9 A charter of rights for Australia 199 11.1 The nature of global environmental protection 285
Chapter summary 202 11.2 The development of global environmental law 288
Questions 202 11.3 The need for global environmental protection 290
11.4 The importance of ecologically sustainable
Chapter 9 Contemporary human rights development 294
issues 204 11.5 The role of the state and state sovereignty in
responses to global environmental protection 297
Issue 1: Human trafficking and slavery 206
11.6 The role of the UN in response to global
9.1 Contemporary slavery 207
environmental protection 299
9.2 Human trafficking and slavery 208
11.7 Other international responses to global
9.3 Extent of human trafficking 209
environmental protection 302
9.4 Responses to human trafficking and slavery 211
11.8 Effects of Australia’s federal structure in
Issue 2: Child soldiers 217 responding to global environmental protection 313
9.5 Defining the issue of child soldiers 218 11.9 Contemporary issue: The law’s role in relation
9.6 Extent of the issue 219 to global environmental threats 316
9.7 Responses to the issue of child soldiers 222 11.10 Contemporary issue: The demand for
resources and global environmental protection 319
Issue 3: Exploitation of workers – refer to 11.11 Contemporary issue: Australia’s responses
additional digital-only material at the end to international initiatives 322
of the book 11.12 Contemporary issue: Barriers to achieving
9.8 Defining the issue of exploitation of workers an international response to global environmental
9.9 Extent of the issue protection 324
9.10 Responses to the issue of exploitation of workers Chapter summary 326
Issue 3 summary Questions 326
Issue 3 questions Themes and challenges 328
iv ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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CONTENTS
Chapter 12 Option 3: Family 330 Chapter 15 Option 6: Workplace 382
12.1 The nature of family law 333 15.1 The changing nature of workplace law over
12.2 Responses to problems in family time 384
relationships 348 15.2 Contracts 388
12.3 Contemporary issue: Recognition of same-sex 15.3 Awards, agreements and statutory
relationships 361 conditions 391
12.4 Contemporary issue: The changing nature of 15.4 Regulation of the workplace 398
parental responsibility 365 15.5 Contemporary issue: Discrimination 407
12.5 Contemporary issue: Surrogacy and birth 15.6 Contemporary issue: Safety 411
technologies 367 15.7 Contemporary issue: Termination of
12.6 Contemporary issue: Care and protection of employment 416
children 372 15.8 Contemporary issue: Leave 419
Chapter summary 376 Chapter summary 423
Questions 376 Questions 423
Themes and challenges 378 Themes and challenges 425
Chapter 13 Option 4: Indigenous peoples – Chapter 16 Option 7: World order 428
this additional digital-only chapter can be 16.1 The nature of world order 430
found at the end of the book
13.1 Definition of indigenous peoples Refer to additional digital-only material at the end
13.2 Rights and legal recognition of the book
13.3 Responses to indigenous peoples
13.4 Australia’s federal structure 16.2 Responses to world order 437
13.5 Contemporary issue: Loss of cultural rights
including language Refer to additional digital-only material at the end
13.6 Contemporary issue: Land rights of the book
13.7 Contemporary issue: Legal rights to natural
resources 16.3 Contemporary issue: The principle of
13.8 Contemporary issue: Intellectual property ‘Responsibility to Protect’ (R2P) 456
rights 16.4 Contemporary issue: Regional and global
Chapter summary situations that threaten peace and security – the
Questions nuclear threat 458
Themes and challenges
Refer to additional digital-only material at the end
Chapter 14 Option 5: Shelter – this of the book
additional digital-only chapter can be
found at the end of the book 16.5 Contemporary issue: The success of global
14.1 The nature of shelter cooperation in achieving world order – East Timor
14.2 Purchasing shelter and UN intervention 463
14.3 Leasing 16.6 Contemporary issue: Rules regarding the
14.4 Securing other types of shelter conduct of hostilities – international
14.5 Dispute resolution mechanisms humanitarian law 467
14.6 Contemporary issue: Affordability Chapter summary 472
14.7 Contemporary issue: Discrimination Questions 472
14.8 Contemporary issue: Homelessness Themes and challenges 473
14.9 Contemporary issue: Social housing and
community housing Answers to multiple-choice questions 477
Chapter summary Glossary 478
Questions Index 491
Themes and challenges Additional digital-only material 497
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press v
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About the authors
Paul Milgate DipTeach BEd and Grad Cert in Theology and Masters in Educational
Leadership is the Executive Officer to the Director of Schools at the Catholic Schools
Office in Lismore. In the past he has been the Leader of Pedagogy and Head Teacher
of the HSIE (Human Society and Its Environment) Faculty at Xavier Catholic College,
on the North Coast of New South Wales. He has extensive experience in Legal Studies,
having taught it since its inception, and has assisted over many years in the planning
and running of HSC study days on the North Coast.
Dr Daryl Le Cornu BA(Hons) DipEd PhD has many years of experience teaching Legal
Studies in high schools. He has a passion for teaching about human rights, the United
Nations, global governance and nuclear disarmament. Daryl has also been involved in
curriculum development in New South Wales for many years. Currently, he is a History
Curriculum Lecturer at the Australian Catholic University, the Education Officer for the
United Nations Association of Australia, President of the World Citizens Association
Australia and a member of the Board of ICAN Australia (International Campaign to
Abolish Nuclear Weapons).
Alisha Murphy BA LLB Grad Dip Ed Post Grad Cert Ed RE obtained her BA LLB from the
University of New England in 2006. She obtained work in a small regional legal practice
specialising in legal aid, family law and criminal work for two years before completing her
Grad Dip Ed at Southern Cross University. In 2008 Alisha started teaching at St Mary’s in
Casino before obtaining her current position at St John’s College Woodlawn. She comes
from a teaching background of legal studies, society and culture, commerce and history.
Ann Miller BEd Grad Dip Ed Admin M Ed Admin is a teacher at Sir Joseph Banks High
School. Her background in over 30 years of teaching includes Economics, Commerce,
Business Management, Information Technology, History and Legal Studies. Ann is also
an experienced HSC marker in both Legal Studies and Economics.
vi ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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ABOUT THE AUTHORS
Tim Kelly BA DipEd DipLaw obtained his BA DipEd from the University of New South
Wales in 1984 and completed his Diploma in Law from the Legal Practitioners Admissions
Board in 1996. He began teaching Legal Studies in 1993 at St Mary’s Maitland. Since 1998
Tim has been the HSIE Coordinator at St Mary’s in Casino and is currently an Education
Officer for the Lismore Catholic Schools Office. Tim is also a tutor in HSIE Curriculum
Specialisation at Southern Cross University and is a recent HSC marker for Legal Studies.
Kevin Steed BA LLB, BEd, MEd(Hons), DipTeach is a former Head Teacher and Deputy
Principal with the New South Wales Department of Education, holding degrees in Arts,
Law and Education. He is a highly experienced teacher of the social sciences having
taught and programmed Legal Studies over a 25-year period. Kevin regularly contributes
various articles for professional journals in the social sciences, particularly in the
curriculum area of Society and Culture. Currently Kevin is working with the Macquarie
University research community while completing his PhD.
Phil Webster BA DipEd MEd MACE is Head Teacher of HSIE at Mosman High. He has
over 25 years’ experience in HSIE as a teacher of Legal Studies, Society and Culture, and
Business Studies, with a particular interest in the changing role of law in society. Phil
is passionate about issues of human rights, indigenous affairs and justice in a rapidly
changing world.
Sarah Hawke BA DipEd is Deputy Principal at Sir Joseph Banks High School, where
she also teaches Ancient and Junior History. She comes from a background of Modern
and Ancient History, Geography and Commerce as well as Legal Studies. Sarah has
had many years of program, assessment and curriculum development across all KLAs
within her school as the Curriculum Coordinator. She has past experience in both School
Certificate and HSC marking.
Stephen Lippingwell has been working in various secondary schools for over 20
years. Stephen is currently completing his LLB while taking the position as Head of
Department for Social Science, and is working closely with Indigenous and Pacific
Islander communities to increase their engagement and success in education. He has
over 15 years’ experience with authority boards, holding positions such as District Review
Panel Chair for Economics and Legal Studies.
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Author acknowledgements
Thanks to my wife Barbara, my daughter Ebony and For Margaret, Amy, Liam and Riley.
my son Zach – a great team! Kevin Steed
Paul Milgate
To Katie Wood at Amnesty – huge thanks for your
To the American branch of the family – Jared, Katie, support and research. To Tristan Tipps Webster –
Ryker and Chiara. the ATSI guru – many thanks.
Daryl Le Cornu Phil Webster
To all of my family and friends for your constant To my husband and children for their support, and
support – especially Mum, Dad and Jason. to the victims and families of crime – may justice
Alisha Murphy prevail.
Sarah Hawke
A big thank you to the team at Cambridge, especially
Harriet. For Cynthia, a dedicated teacher, great head Many thanks to Nicholas Gangemi, Barrister-at-
teacher and better friend; and a special thank you to Law, who reviewed this book and the accompanying
Sandy, for your help and support. Teacher Resource material.
Ann Miller
My family and friends are fabulous. Well done,
Breakers (Hannah) and Trojans (Jack). Always.
Tim Kelly
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Introduction
To the student
the world and how you understand the concept
Congratulations on choosing Cambridge Legal Studies of achieving justice through legal and non-legal
HSC Fourth Edition. This edition has been updated means.
to meet the changing processes of the legal system, Cambridge Legal Studies HSC Fourth Edition
while meeting the requirements of the current Stage is a comprehensive resource that builds on the
6 Legal Studies Syllabus in New South Wales. knowledge and skills introduced in the Preliminary
Since the introduction of Legal Studies as a course, as it thoroughly covers all key content areas
HSC discipline in 1989, the world has undergone of the HSC syllabus.
incredible change. Predictions of increasingly You will discover a wealth of engaging material
‘disruptive’ technologies will continue to challenge that critically examines the core areas of crime and
the ability of the law to balance the tension of human rights, as well as a wide range of options
individual and community rights. Regardless, in Part III. You will gain insight into how the law
Legal Studies continues to contribute to students operates in practice in each of these contexts. A
completing their secondary schooling as better range of interesting, up-to-date cases, media articles
informed citizens, able to think more critically about and statistics is provided to bring the law to life.
the processes and institutions that shape their lives Updated review and research questions will assist
on a daily basis. you to revise and build on your knowledge, and a
The rights people enjoy within democratic variety of HSC-style examination questions (in the
societies have at times been eroded by governments Student Book and the Study Toolkit) will give you the
when citizens become apathetic about their rights, best opportunity to succeed in your exam. We wish
freedoms and liberties. Legal Studies will allow you the very best of luck and much success in Legal
you to explore the power vested in our democratic Studies.
institutions and wielded by our elected leaders. It
explores issues that will change the way you view Paul Milgate
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press ix
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How to use this resource
Part and chapter openers
Each part and chapter of Cambridge Legal Studies
HSC begins with an opener that contains:
• principal focus and themes and challenges
from the Stage 6 Syllabus
• information relating to the HSC external
examination.
• chapter objectives
• key terms/vocabulary
• relevant law (including important legislation
and significant cases)
• legal oddity.
In Court
A number of relevant legal cases appear
throughout the text. Each case allows you to apply
your knowledge of the legal system to real-world
situations. Many cases are followed by a range
of questions to help you test what you’ve learnt.
Media articles
A range of current media articles is provided to
help you understand how the law operates in real-
world situations.
Glossary terms
Glossary terms are bolded in the text, and
defined for you on the page in the print book, or
as pop-ups in the interactive version. They are
also gathered in the Glossary.
Review and research activities
Review activities are designed to help you test
your knowledge of key concepts and skills.
Research activities are designed to extend your
knowledge by researching relevant cases or
issues using source material.
Legal Links
In addition to the activities, there are a number
of suggested links to internet resources and
activities in each chapter. These will help you
extend your knowledge and stay up to date with
changes in the legal system.
x ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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