4a.law reform conditions

Law Reform

‘Law reform’ is the process of changing the law to:Make it MORE CURRENT;CORRECT defects in the law;SIMPLIFY the law; and/orFIX an INJUSTICE.

IMPORTANT: Law reform is really hard.

Just because the law should be changed,it doesn’t mean it will be.

Law Reform

WHYdoes the law need to

change?

WHO

HOWdoes the law end up

changing?

CONDITIONS that give rise to the need for reform…

- Changing Social Values

- New Concepts of Justice- New Technology AGENCIES of reform…

- Law Reform Commissions- Parliamentary Committees- The Media- Non-Government Organisations

MECHANISMS of reform…- Courts- Parliaments- United Nations- Intergovernmental Organisations

RECOMMENDS specific changes?

Law Reform

CONDITIONS that give rise to the need for reform

AGENCIES of law reform

MECHANISMS of law reform

Law Reform

CONDITIONS that give rise to the need for reform

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CONDITIONS that give rise to law

reform

‘CONDITIONS that give rise to law reform’

CONDITIONS: Things that happen that give rise to: that can lead to law reform: the law being changed

WHYdoes the law need to

change?

Changing social values

New concepts of justice

New technology

THEME: Influences on the Australian legal system

THEME: The development of law as a reflection of society

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THEME: Influences on the Australian legal system

THEME: The development of law as a reflection of society

Examine the conditions that give rise to law

reform

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So we have to go into a bit of detail…

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The BASIC ‘condition’ that gives rise to law reformIS NOT IN THE SYLLABUS.

But it is very simple:

Law reform has to happen because of a

FAILURE OF EXISTING LAW.The current law doesn’t work, so it has to be changed.

The rest of the ‘conditions’ tell us WHY the current law doesn’t work.

(Failure of existing law)

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If the law doesn’t change when our values as a society change, then parliament is not doing what it is supposed to do (represent us).

EXAMPLE: The Partial Defence of Provocation(You get a lighter punishment if someone says something that “makes” you lose control and kill them).

In Victoria, provocation was removed as a defence in 2005.REASON 1: The Ramage Case, which freaked people out (wife told husband their marriage was over so he killed her, saying that he was ‘provoked’ by what she said to him)

REASON 2: The idea of provocation reflects OLD social valuese.g. Women can be “asking for” violence by saying bad things to their partners

e.g. Men can lose control and kill their partners in “crimes of passion”

Assess the use of defences to criminal charges in achieving justicePartial Defences (to Murder): Provocation

CASE: Singh v R (2012)MEDIA ARTICLES: Six years for killing sparks call for law review (SMH, 2012)Bi-partisan call for NSW to ditch provoke defence (ABC, 2012)

KEEP IT (it IS achieving justice)The Law Society of NSW and the Domestic Violence Coalition: Removing the defence completely would disadvantage women who suffered years of domestic violence and then one day lost control. The R v Chhayi (1992) case meant that women could use this PARTIAL defence when they weren’t under immediate threat (in which case they could argue the COMPLETE defence of self-defence), and this is a positive outcome for women.

CONSEQUENCES: After Singh was found guilty of manslaughter instead of murder by using the partial defence of provocation (he claimed he was provoked by verbal abuse), there were questions in the media, and on both sides of politics, about whether the use of the use of the partial defence of provocation was achieving justice. A lot of the outrage came after the sentencing (where he received only the standard minimum non-parole period of 6 years). SO, the Select Committee on the Partial Defence of Provocation was formed in NSW. The question was whether we should keep the partial defence or remove it (IS IT ACHIEVING JUSTICE?)

MOST SENSIBLE JUDGEMENT:KEEP it

(it IS achieving justice for women who were long term victims of domestic violence)

butCHANGE it

(so that men cannot argue that their wife offending their manhood or a gay guy hitting on them counts as being provoked)

REMOVE IT (it is NOT achieving justice)Victoria abolished the defence in 2005 after the Victorian LRC concluded that allowing the provocation defence “partly legitimates killings committed in anger”. This came around the same time as the R v Ramage (2004) case (11 years for killing his wife for verbally abusing him).

R v Won (2012) came after the Singh case (Won killed her wife’s lover after finding them in bed together). He received 7½ years, which added to the controversy about the way the defence is used.

Homicides, homosexual advances and male honour (The Conversation, 2012): Gay rights groups argue that the defence is used too frequently by men who kill other men who make homosexual advances towards them (basically hit on them, the same way women get hit on all the time and don’t kill anyone). The case of Green v The Queen (1997) showed that even the High Court was not willing to remove non-violent homosexual advance as a grounds for provocation! So they say remove it completely.

FROM THE HSC COURSE

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If the law doesn’t change when our values as a society change, then parliament is not doing what it is

supposed to do (represent us).

The law MUST keep up with changing social values, otherwise people will be punished doing things that

are socially acceptable (or won’t be punished for doing things that are no longer socially acceptable).

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EXAMPLE: The Partial Defence of Provocation (HSC ‘Crime’ topic)

(You get a lighter punishment if someone says something that “makes” you lose control and kill them).

In Victoria, provocation was removed as a defence in 2005.

REASON 1: The Ramage Case, which freaked people out (wife told husband their marriage was over so he killed her, saying that he was ‘provoked’ by what she said to him)

REASON 2: The idea of provocation reflects OLD social valuese.g. Women can be “asking for” violence by saying bad things to their partners

e.g. Men can lose control and kill their partners in “crimes of passion”

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EXAMPLE: The recognition of same sex relationships (HSC ‘Family’ topic)

1999: The NSW government passed the Property (Relationships) Legislation Amendment Act 1999 so same-sex couples are

counted as de facto couples

2008: The Commonwealth government passed the Family Law Amendment (De Facto Financial and Other Measures) Act 2008 to allow separating same-sex de facto couples the ability to have their case heard in the Family Court.

2012: Two bills (one from Labor, one from the Greens) were introduced intoCommonwealth parliament. There was an

inquiry into whether the bills should be passed. Despite strong public support, neither passed due to the Liberal Party.

2012-13: State same-sex marriage laws were on the table in the A.C.T., Tasmania, South Australia, New South Wales, Western Australia and Victoria. At least ONE will pass in at least one of those jurisdictions in 2013… probably…

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During the inquiry into the two gay marriage bills in 2012, the public (SOCIETY!) were asked to contribute and share their opinions about their VALUES with the committee.

This included written submissions, but also random phone calls.

Our law does not reflect our changing social values

regarding same sex marriage.

64.3% 35.5% idiots

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As society becomes more complex, our concepts (“ideas”; “opinions”) of ‘justice’ change.

If the law is unable to deliver just (“fair”) outcomes, there is a reason for law reform to happen.

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EXAMPLES: Youth Justice Conferencing (HSC ‘Crime’ topic)

Circle Sentencing (HSC ‘Crime’ topic)

In our criminal justice system, our idea of ‘justice’ has moved (for some offenders) from trying to seek retribution/revenge to trying to rehabilitate young offenders so that they do not to reoffend.

This has led to programs like Youth Justice Conferencing, where young people who commit less serious crimes are able to work out their punishment with the people they have hurt.

There’s also a new concept of indigenous offenders being sentenced by their own community to make them feel more ashamed.

This has led to the Circle Sentencing program, where indigenous offenders who plead guilty are sentenced by the elders in their community (though the punishment itself is not “Aboriginal” – it’s usually jail!).

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New technology

As technology improves, the law has to try to keep up and cover new types of technology used by:

1. Individualse.g. Criminals using the internet to trade in child pornography

2. Investigatorse.g. Police using new surveillance technologies

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New technology Covered new types of computer data

Covered new ways of cheating

when gambling on the internet

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New technology

The Crimes Legislation Amendment Act 2004 (NSW) made it illegal to take photos or videos (e.g. with camera phones) of people when they are unaware of it, or undressed (the law only covers doing “for sexual gratification” though – so if you can argue it was for “something else”, you’re fine!).

Etc etc etc…

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New technology

As technology improves, the law has to try to keep up and cover new types of technology used by:

1. Individualse.g. Criminals using the internet to trade in child pornography

2. Investigatorse.g. Police using new surveillance technologies

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New technology

Telecommunications (Interception) Act 1979

Surveillance Devices Act 2004

Workplace Video Surveillance Act 1998

Privacy Amendment (Enhancing Privacy Protection) Act 2012

Law Enforcement (Powers and Responsibilities) Amendment (In-car Video System) Act

Covers phone taps(police can’t get one without a warrant)

Covers other police surveillance(“bugs” in houses, video surveillance, etc)

Police have to tell you you’re being recorded(by their in-car camera and microphone)

Laws that control police use of technology

Bosses need to tell their employees that they’re being recorded (and never in bathrooms or change rooms)

Laws that control employer use of technology

Bosses are responsible for protecting customers’ private information

4a.law reform conditions

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