Disclaimer

Abortion is the act of terminating a pregnancy and can be performed surgically or induced by medication (abortion pill). All states and territories within Australia, except for the Australian Capital Territory, have legislation prohibiting unlawful abortions and defining it as a criminal offence.

Legislation

Cases

Questions to think about ...

Capital punishment is defined as ‘the infliction of death by an authorised public authority as a punishment’. Ernest Austin, who was convicted of raping and murdering a 12-year-old Samford girl, was the last person to be executed in Queensland. He was hanged in Brisbane on 22 December 1913. In 1922 Queensland became the first Australian state to abolish capital punishment. By 1985, the death penalty had been completely abolished in Australia. The last person to be executed in Australia was Ronald Ryan on 2 February 1967 in Melbourne. He was convicted of shooting a prison guard during an escape attempt. Judges may now impose life imprisonment in lieu of the death penalty.

Legislation

Questions to think about ...

‘Manslaughter arises from the sudden heat of the passions and murder from the wickedness of the heart.’ (Blackstone)

In Queensland, provocation is a partial defence for murder and will result in the charge being reduced to manslaughter. Consequently, there is no mandatory sentence of life imprisonment imposed upon the defendant. Provocation is generally viewed as a concession for human frailty and is premised upon the notion that a distinction is required between premeditated murder and murder which is provoked and occurs in the ‘heat of the passion’ as a result of the loss of self-control. Historically, the defence originated from the necessity to mitigate the severe penalty of death imposed against those successfully convicted of murder.

There are three essential elements of the defence of provocation for murder:

1. Provocative conduct by the victim
2. A subjective element — ‘The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.’
3. An objective element — An ordinary person provoked with the same gravity could have lost control and acted in the manner in which the accused did (Masciantonio v The Queen (1995) 183 CLR 58 @ [66]; Stingel v R (1990) 171 CLR 312)

Legislation

Cases

The modern law of provocation is no longer governed by specified categories. Accordingly, a claim of provocation may be founded on any conduct which in fact causes a lethal loss of self-control in the defendant, and which also could have caused the hypothetical ordinary person to kill.

Questions to think about ...

‘A principle which holds that it is not permitted to try a man twice for the same offence, nor can a person be convicted of different crimes arising out to the same conduct unless the crimes are by definition of significantly different kind.’

Walker (1980), Oxford Companion to Law,
Oxford: Oxford University Press

Legislation

Exceptions to Double Jeopardy

• Criminal Code (Double Jeopardy) Act 2007 (Qld)
  1. Queensland Criminal Code s 678B — Retrial for murder where there is fresh and compelling evidence and it is in the interests of justice.
  2. Queensland Criminal Code s 678C — Retrial for offences punishable by 25 years or more of imprisonment if the acquittal is tainted and it is in the interests of justice.
• Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)
• Criminal Justice Act 2003 (UK)

Cases

Questions to think about ...

Euthanasia is defined as the intentional taking of life for compassionate motives. Assisted death or assisting a suicide refers to the act of helping or aiding another (with their consent) to die. The distinction between assisted death and euthanasia lies in who is responsible for the act that causes the death.

Euthanasia can be divided into active and passive euthanasia. Active euthanasia is the giving of drugs with the intention that death will ensue. Passive euthanasia is the withdrawal of life sustaining nutriment, medication or other medical processes resulting in death. Active euthanasia is unlawful. Consent of the victim is not a defence to murder or manslaughter. Passive euthanasia only attracts criminal liability where there is a duty to act.

Euthanasia can be categorised as voluntary or involuntary. Voluntary euthanasia is where the person gives express consent to the act or omission and involuntary euthanasia is where the person does not or is not capable of giving consent.

Active euthanasia is legal in the Netherlands and Belgium. Assisted suicide is legal in Switzerland (Dignitas clinic) and in Oregon, USA.

Legislation

Cases

Questions to think about ...

Section 5 of the Marriage Act 1961 (Cth) legally defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. This definition thus prohibits same-sex marriage. Same-sex couples are therefore restricted to being in a de facto relationship, which is defined as a relationship that bears the hallmarks of marriage but has not been formalised through a marriage ceremony. Although, in most instances, de facto couples have similar rights to those of married couples, within Queensland the absence of a ‘relationship register’ means that couples are required to repeatedly prove their de facto status.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth) amended 84 federal laws as a result of an inquiry into discrimination against same-sex couples and their children by the Australian Human Rights Commission. However, despite these amendments, in defining ‘marriage’ in this manner, same-sex couples are effectively denied the choice of formalising their relationship through marriage.

Legislation

Cases

Questions to think about ...

Rape is considered to be a serious crime in the eyes of society and the law. The precise definition of rape varies across Australian jurisdictions. However, all state legislation deems rape to be an act of non-consensual sexual penetration. The Australian Bureau of Statistics records that 4, 221 rapes were reported in 2005.

Legislation

Cases

Questions to think about ...

In undertaking the process of sentencing judges are granted a wide degree of discretion in order to ensure the imposed sentence responds to the particular circumstances of the offender. However, in order to ensure consistency, the discretion of judges is constrained primarily through the imposition of statutory maximum or mandatory penalties associated with a particular offence.

The Penalties and Sentences Act 1992 (Qld) (PSA) serves as the primary piece of legislation governing sentencing and in Section 9(1) sets out five, at times conflicting, purposes for which a sentence can be imposed namely, just punishment, rehabilitation, deterrence, denunciation and community protection. Moreover, in order to ensure that the sentence accords with the particular circumstances of the offence and offender, section 9(2) defines mitigating and aggravating factors which the court must have regard to in determining the appropriate sentence.

In determining the appropriate penalty, judges have a further discretion as to whether to record a conviction, make a non-contact order, impose a fine, make an intermediate order (such as probation or community service orders), make an intensive correction order (or home detention order) or whether to impose or suspend a period of imprisonment. Additionally, in prescribed circumstances the court must declare that an offender is convicted of a serious violent offence.

Perhaps more controversial is the ability of the courts to impose indefinite sentences upon violent offenders thus potentially conflicting with notions of finality and just punishment in favour of community protection (PSA, Part 10). Similarly, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) allows the Supreme Court to post-sentence preventative detention or supervision of sex offenders who pose a serious danger to the community if released at the conclusion of their sentence.

Legislation

Cases

Questions to think about ...

A surrogacy agreement occurs where a woman agrees to bear a child for another person. Surrogacy is classified as a ‘reproductive technology’ which often involves the use of artificial insemination to induce pregnancy. Previously, surrogacy agreements were illegal under Queensland law. However, the introduction of the Surrogacy Act 2010 (Qld) legalises non-commercial (or altruistic) surrogacy arrangements, whilst commercial surrogacy arrangements, whereby a person receives a payment, reward or other material advantage (other than reimbursement of surrogacy costs) as a result of entering into a surrogacy arrangement, are prohibited.

Furthermore, the Act recognises the rights of the ‘intended parents’ of non-commercial surrogacy arrangements by enabling them to apply to the court for a parentage order, which results in the child legally becoming the child of the intended parents and ceasing to be that of the birth parent. Although, a non-commercial surrogacy arrangement is no longer illegal in Queensland, it remains unenforceable. Therefore, even if the parties have a written agreement establishing the terms of the surrogacy, neither party can rely upon the agreement to enforce the surrogacy arrangement. As a result, disputes may occur as the intended parents do not have prima facie rights to the child.

Legislation

Cases

Questions to think about ...

A taser is a hand-held conducted device that uses electricity to immobilise a person. In Queensland the significant number of deaths caused by police shootings prompted the introduction of tasers as a safer and more effective means of arrest. The use of tasers by police officers was introduced in Queensland in January 2009.

Legislation

Cases

Questions to think about ...

A fundamental feature of criminal justice in Queensland is that defendants should be judged fairly and impartially by a jury, that is, “a panel of ordinary and anonymous citizens, assembled as representative of the general community, at whose hands neither the powerful nor the weak should expect or fear special or discriminatory treatment”: Brown v The Queen (1986) 160 CLR 171 per Deane J.

Trial by jury was introduced into Queensland in 1859 upon its separation from New South Wales. It is a mode of hearing criminal matters whereby the case is determined by a judge and jury and is reserved for the more serious offences. In criminal trials the jury consists of 12 persons. Generally, the judge decides questions of law, such as the admissibility of evidence. In contrast, the jury decides questions of fact from the evidence presented. For example, in a murder case, the jury may have to determine whether or not the defendant shot the victim. After the closing of evidence, the judge sums up the evidence from the case and instructs the jury by giving directions on the law that is applicable. After receiving these instructions the jury is able to consider their verdict by applying the law to the facts. In some cases, the jury’s verdict must be unanimous in order to find the defendant guilty e.g. murder. In other cases, a jury may be asked to deliver a majority verdict if it is unable to reach a unanimous verdict.

Each juror is required to swear an oath or make an affirmation that they will determine their verdict according to the evidence and not by implication, and that they will keep their deliberations confidential.

Legislation

Cases

Questions to think about ...

Over the past 30 years tissue and organ transplant technology has advanced rapidly. One donor can save the lives of up to ten people and significantly improve the life of many others. However, there is still a worldwide shortage of organs for transplant. Australia in particular, has one of the lowest donation rates among developed countries. It seems that Australian’s attitudes are shifting more towards donation, with the number of donors steadily rising over the past decade. There are two types of donations: living donation and deceased donation.

Living donation is where a healthy living person donates. For adults this is not a contentious issue. In order for a living adult to donate he/she must:

• Be 18 years of age or older;
• Be of sound mind;
• And consent must be freely given

Transplantation and Anatomy Act 1979 (Qld) s 10

Living donation is a more contentious topic when it comes to children, due to their possible lack of capacity to consent. Under the Transplantation and Anatomy Act 1979 (Qld) s 12B, a parent can give consent for a child to donate under special circumstances:

• Both parent and child are of sound mind;
• It is certified by a designated officer;
• And the transplant is for a brother, sister or parent

In addition to this the child must be have Gillick competence. This is a concept that came from the case Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, which means that they must have a full understanding and appreciation of the consequences of the treatment and the consequences of a failure to treat. The court must always act in the best interests of the child.

Saviour siblings

In some cases, parents have used pre-implantation genetic diagnosis (PGD) to determine whether an embryo created by in vitro fertilisation (IVF) can be a matching donor child (or saviour sibling) for a sick child. In addition to consent issues, there are other ethical issues. Embryos that do not match the sick child are destroyed or donated to medical research or another family. There can be long term health consequences for the mother and child. There is a danger that the saviour sibling could be viewed as a commodity rather than a person. Also, there is concern for the vulnerability of the donor child. It could be argued that the donor child could endure lifelong testing and harvesting which can be detrimental to that child, although he or she may gain a sense of self-worth and an enhanced relationship with their sick sibling.

DECEASED DONATION is where a deceased person donates. There are two competing issues when it comes to the consent of deceased person to donate. The first approach is the ‘opt-in’ approach where it should at the individual’s initiative that they give up their organs. The other approach is the ‘opt-out’ or ‘presumed consent’ approach where the onus is placed on the individual to refuse the donation.

In Australia the current position is the opt-in approach. Section 22 of the Transplantation and Anatomy Act 1979 (Qld) states that if a deceased person is in hospital an authorised officer (eg a doctor) can authorise a donation if the deceased person has not expressed objection during their life time and the next of kin give consent. However, statistics have shown that only 40 per cent of Australians don’t know what their loved ones wishes were. When the decision is left to next of kin, only 58 per cent of families consent to donation. People can sign up with the Australian Organ Donor Register, which is a register of a person’s consent to donate.

Many countries in Europe have an opt-out approach. In 2008, Spain had 34.4 donors per million people (dpmp); Australia had an average of 14 dpmp inhabitants. On the other hand Greece has an opt-in donation system and had 5.6 dpmp; the United States of America has an opt-in approach and had the second highest donor rate in the world at 26.6 dpmp.

Legislation

Cases

Questions to think about…

Civil Negligence can generally be established through finding an existing duty of care has been breached and that damage has resulted.

Prior to the late 1990’s the medical world took a very paternalistic approach to patient care. For instance, doctors routinely only informed patients of risks that they felt the patient should be aware of before consenting to treatment. Medical law now takes a more patient centred approach and requires doctors to inform patients of risks that the patient would attach significance to.

Legislation

Cases

Questions to think about…

The adversarial system is a fundamental part of the Australian legal system. It was inherited as part of the common law legal system from the United Kingdom on English settlement of Australia.

The adversarial system (as opposed to an inquisitorial system) is a court process where two opposing parties, usually represented by lawyers, must persuade an impartial judge that their version of the facts, which they have separately established prior to the court hearing, is more persuasive than their adversary’s argument.

An inquisitorial system, on the other hand, is the court process whereby the judge and the parties actively seek the truth of the case together. This joint effort means that the court is not confined to two accounts of the case, as in an adversarial system. Countries which use the adversarial system include Australia, the United States of America and England. Countries such as France and Germany use the inquisitorial system.

Main Points

Role of the judge in an adversarial system

The adversarial system mandates that the judge must make a decision based only on the evidence put forward by the two parties, and must not prepare their own investigations into the disputed matter. Hence, the burden is solely on the representatives of the individual parties to actively lead their case. The judge must only be an impartial adjudicator. Owing to these strict boundaries in tasks, the rules of evidence in an adversarial system are vast and complicated.

In an inquisitorial system, however, the judge is expected to play an active part in establishing evidence (for example, through questioning witnesses) in order to reach a final decision on the case. Hence, there are fewer rules of evidence as all participants share the same burden of establishing the truth.

Role of the jury in an adversarial system

The jury can only decide questions of fact based on the evidence presented by the advocates of the parties. As conflicting accounts of facts are usually presented in the adversarial system, the jury is crucial in deciding which facts are more credible. The jury consists of lay-people.

This is in contrast to the inquisitorial system. As the inquisitorial system is based on all the court participants arriving at the conclusive truth of the facts together the use of juries is rare. Where one is required, the jury is made up of people qualified in the field of that dispute.

Role of legal representation in an adversarial system

Solicitors and barristers are officers of the court. This means that, despite being advocates of their clients, they have an overriding duty to the court. Advocates must remain honest and responsible in their management of the case. This duty is foundational to the adversarial system – because the judge does not undertake any fact-finding, the system is dependent on the proper conduct of the advocates to present the court with truthful and relevant information.

Advantages of the adversarial system

As the judge is not actively involved in investigating the case, this will minimise predispositions in the ultimate decision of the case.

The adversarial system provides the accused with the right to silence when questioned by legal authorities. The right to silence is fundamental as it protects the accused from self-incrimination. Conversely, as an inquisitorial system requires all parties to be jointly involved in establishing the evidence, this right of silence is not available.

Disadvantages of the adversarial system

As the court is confined to two versions of the case in an adversarial system, this may result in a skewed version of the truth.

As an adversarial system is based on the better advocate succeeding, this has caused concerns that the party who is able to afford superior legal representation is more likely to succeed. Self litigants are at a considerable disadvantage.

Questions to think about…

Stem Cells

This technology involves the development of stem cells into specialised cells where they can then multiply. Stem cells can potentially 1) assist research on the link between stem cell separation and life-threatening diseases such as cancer, and 2) as they regenerate into specialised cells, can replace the damaged cells in people suffering from numerous medical conditions including diabetes, Parkinson’s disease, and spinal cord injury.

Stem cells used for research purposes are obtained from adult stem cells (aSC), core blood stem cells (cbSC) and embryonic stem cells (eSC). Embryonic stem cells are only found at the embryonic stage of development. They are regarded as pluripotent, due to their capability of developing into any cell type in the body. Conversely, adult stem cells are located in adult and foetal body tissue and umbilical cord blood. Furthermore, they are generally restricted to differentiating into the cell types from their tissue of origin, and are considered multipotent.

Embryonic stem cell research requires destroying the embryo. Thus, legislation regarding its use is highly controversial. Adult stem cell technology doesn’t require the use of embryos and is currently used in the treatment of a wide field of diseases. Due to the destructive nature of embryonic stem cell research, opponents argue that this technology is immoral because of the potential loss of life. However, proponents argue for the liberalisation of embryonic stem cell research laws because of the significant potential benefits in treating diseases, replacing damaged cells and in producing blood products. Proponents also argue that excess embryos created as a result of assisted reproductive technology have no potential of achieving life as they are already scheduled for destruction. Instead, these embryos could be donated to research purposes.

Cloning

Cloning has become one of the most contentious legal and moral issues with the recent scientific advancements allowing the procedure to move beyond the realms of science fiction into reality. To date, human cells and organisms such as animals, including ‘Dolly’ the sheep, have been successfully cloned, however a human clone has not yet occurred.

Although supporters of cloning argue its relevance is vital due to the invaluable medical advancements it will make possible, opponents are concerned with the significant unpredictable medical and physical consequences that could result.

The procedure of cloning involves replicating a copy that has genetically identical DNA to the original.

Therapeutic cloning involves the nuclear transfer of the donor’s own cells into a fertilized egg of which the genetic material has been removed. The donor’s disease can then be treated with stem cells obtained from this embryo.

Reproductive cloning is where a cloned embryo is implanted into a female uterus and allowed to develop naturally.

Legislation

Cases

Incidents

Early 1900’s – Adult stem cells first discovered.

1960’s – Adult stem cells used in procedures such as bone marrow transplants.

Late 1970’s – Discovery of cord blood cells.

Late 1990’s – Discovery of embryonic stem cells.

1996 – Dolly the sheep was the first animal to be successfully cloned.

1998 – American scientist, James Thomson successfully removes and propagates cells from embryos, creating the first human embryonic stem cell line.

2006 Japan – The first induced pluripotent stem cells (iPSC) were developed from mice.

2007 – Japanese and American scientists caused human skin cells to imitate embryonic stem cells.

2007 – US researchers successfully cloned the embryo of a primate species and extracted stem cells.

2008 – UK scientists cloned the world’s first human embryos using adult human cells as donor cells.

2009 – New York became the first state in the US to pay women for donating their eggs to stem cell research.

Questions to think about…

The incidences of bullying vary across Australia, a study in 2009 finding 27% of students between years 4 to 9 were frequently bullied ¹.

“Bullying” isn’t a legal concept and isn’t defined in legislation. Bullying manifests itself in numerous ways and can form the elements to a variety of criminal and civil wrongs including but not limited to; stalking, racial vilification, assault and defamation. New South Wales is the only jurisdiction in Australia to include specific provisions within its Criminal Act for assaults in schools.

The evolution of social networking and developments in technology has seen the incidences of “cyber-bullying” increase. These new technologies allow perpetrators to bully far beyond the school gate. There have been no cases before the courts in Australia on the issue of cyber bullying to date. However, there has been discussion on the legal implications this form of bullying poses.

Legislation

Cases

Questions to think about…