The role of law reform in the CJS Flashcards
what did the NSW Law Reform Commission state about law reform? ‘as society evolves; the law needs to change to reflect…
economic and technological developments, different social values and new concepts of justice
How can law be reformed?
legislation of by adaption of common law in courts
What bodies recommend law reform?
Law reform commissions
Parliamentary Committees
NGOs
Media
What bodies cause law reform?
UN
Parliament
Courts
IGOs
law reform is…
imperative to an effective CJS
what is the main purpose of parliament
to enact laws for society through acts or delegated legislation.
What are the agencies of Law reform
LRCs Parliament Courts Media NGOs
What are the agencies of Law reform
LRCs Parliament Courts Media NGOs
what does this T/C link strongly to?
The extent to which law reflects moral and ethical standards.
What conditions give rise to the need for law reform?
- A perceived failure of existing law
- Media pressure
- New tech
- New concepts of justice
- Changing social values and composition of society
- International law
What are the major law reform bodies?
ALRC, NSW LRC
Chief Justice’s Reform Committee.
What do the ALRC, NSW LRC
Chief Justice’s Reform Committee.
investigate and make recommendations regarding reform to the law.
How do courts reform law?
by creating common law and interpreting statutes
How can the UN instigate domestic law reform?
by developing new international law. If Aust ratifies a treaty/becomes party to a convention, law reform may be needed so the can fulfil their binding commitment
How can the UN instigate domestic law reform?
by developing new international law. If Aust ratifies a treaty/becomes party to a convention, law reform may be needed so the can fulfil their binding commitment
Is the ability of the courts to achieve law reform slow or fast>
SLOW and often minor. They have to first apply legislation, follow precedent and only make decision on the cases presented to them
Despite the ability of the courts to achieve law reform generally being slow and small what case highlighted that court decisions can have a profound influence on the CJS?
Dietrich v Queen (1992)
What was the case of Dietrich v Queen (1992) about?
conviction for several drug offences was overturned by High Court due to lack of adequate representation. Case established limited right to legal representation
What is the most relevant law reform commission for criminal law?
NSW LRC
What influence can LRC’s have?
They can evaluate laws, investigating their effectiveness and make recommendations to parliament, but they cannot make new law. Govs aren’t compelled to implement their recommendations
What is an example of the NSW LRC recommending a change that wasn’t followed?
When it inquired into whether to allow majority verdicts in 2005, recommending against their intro. The gov ignored this, introducing majority verdicts of 11 to 1
Overall does the gov implement the NSW LRC’s recommendations?
yes, eg. 1996 NSW LRC report ‘Sentencing’
How can the government be alerted to the perceived failure of an existing law?
media coverage surrounding failures
lobbying of various pressure groups
What do parliamentary committees do?
draft legislation and conduct enquiries into specified matters
What is the role of media in law reform?
MAJOR
- it has wide access to public and can shape public opinion around issues, report on parliamentary events and put pressure on politicians to change laws.
- the stance it takes on an issue can greatly influence public opinion and pressure politicians
How can pressure groups/NGOs exert lots of pressure onto law-makers?
By having large memberships & lots of financial resources, directly lobbying ministers.
Who are pressure groups/NGOs more effective than?
much more effective than an individual working alone
How can the public opinion influence law reform?
through official opinion polls
What is the role of the Coroner in law reform?
as it investigates ‘reportable deaths’, it is common for the findings to include recommendations for reform to law
new concepts of justice develop from…
changing social values, evident through rehab programs and abolishment of corporal punishment and recognising DV as a serious crime
what happens as new technology arises?
new crim law and enforcement measures must constantly be adapted/created to handle the new tech.
What has happened to technology
computers, internet and increased globalisation have give rise to the new issues that can arise from the use of these technologies.
how has the internet enhanced the ability for crimes to be committed?
by enabling illegal pornographic images to be distributed and for crime syndicates to operate more effectively
What did advances in DNA technology to identify individuals by their DNA mean?
laws had to be introduced where DNA could be collected by suspects and convicted criminals, whilst regulating this method of collecting evidence
The Crimes (Forensic Procedures) Act 2000 regulates
collection, use & destruction of DNA evidence. Currently, police can only perform forensic procedures on individuals by informed consent or through a court order where they must convince a judge that they have good reason to perform the procedure.
Act regarding the use of DNA tech to collect evidence?
The Crimes (Forensic Procedures) Act 2000
What reforms have changing social values given rise to?
- decrim of homosexual behaviour
- recognition of victim’s rights
- new defences in CTP
- alt methods of sentencing
- YJC
- Anti-terrorism Act (No. 2) (CTH) 2005
When was homosexuality decriminalised?
1984
What act recognised victims’ rights and what did it highlight?
Victims Rights and Support Act 2013 (NSW) where victims can get compensation for the damage done from violence
What does the Anti-Terrorism Act (No.2) 2005 Cth provide for?
preventative detention for 48 hrs w/o charge.
What does the Anti-Terrorism Act (No.2) 2005 Cth reflect?
Changing social values following 9/11, as terrorists pose a much greater risk than other alleged offenders
Sentencing
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What do most reforms aim to do?
reduce delays and increase efficiency
What does law reform require?
Balance, if parliament is too reactive to media pressure, ineffective laws can be enacted
What can happen if law reform occurs too quickly?
basic principles of human rights and fairness that any individual caught up in the process should expect to be able to receive may be overlooked by the legislation and laws can be come very complicated
overtime has reform made laws more or less punitive?
more punitive
To what extent does international law influence domestic reform?
To an extent. HR treaties and organisations have led to some reforms.
What did the coronial inquiry Roberto Curti’s in 2012 death lead to?
recommendations regarding the use of Tasers which were then implemented by police
What did the coronial inquiry Roberto Curti’s in 2012 death lead to?
recommendations regarding the use of Tasers which were then implemented by police
