Assess the effectiveness of law reform in achieving just outcomes with regard to a contemporary law reform issue (i.e. double jeopardy). In your response you must refer to law reform processes (CAM). As Australia changes its societal values and morals, technology and new concepts of justice means that some laws we once have had in Australia are sometimes unjust and unfair or just don’t fit in with the ever changing societal values, morals and ethics consequently why law reform can play an crucial part in the Australian legal system in maintaining just outcomes for Australians The legal system ensure the law reform maintains current and up to date so that the legal system can continue to stay modern, law reform is the process of changing a law to correct, simplify, make more current or fix an injustice within it. This is essential in Australia, as the law must remain relevant to an ever-changing society. Double jeopardy is just one example of law reform that Australia had adapted a change by law reform. Double jeopardy is a fundamental part of our criminal system it’s a principle that a person cannot be put on court trial twice for the same offence. It used to be an unquestioned rule that was kept untouched, as well …show more content…
as it being a protection for those that were accused, if found not guilty then they are acquitted by our criminal justice system and can not be charge again for the same crime. A significant case that displays the change and law reform from double jeopardy is the Bowraville murders. The case R v Jay Hart was a significant case that exposed a man tried and acquitted for the deaths of 2 Indigenous Australian’s in Bowraville in late 1990 and early 1991, the first a 16-year-old boy Clinton Speedy Duroux and second a 4-year-old girl named Evelyn Green, Mr. Hart was tried for the death of Clinton Speedy Duroux first in 1994 but acquitted and tried for Evelyn in 2006 but again acquitted. He was trialed twice and both trials were held separately, the trial said denied both courts the chance to see new and compelling evidence that corresponded with similarities between the two children’s deaths. After being acquitted for the two deaths many of the Bowraville community and NSW police fought for Jay Hart to be re-trialed but under the principle of double jeopardy, the legal system would not allow it. There are some certain exemptions that exist to the principle of double jeopardy protections, most commonly are the Crown appeals against sentences. There were no mechanisms for prosecution to apply to overturn acquittals until 2006. After the government had realized that there were flaws within the legal system, especially the double jeopardy legislation they decided that new legislation was to take place.
The Carr government announced a Bill, that was called the ‘Criminal Appeal Amendment (Double Jeopardy) Bill 2003. That Bill was intended to amend the Criminal Appeal Act 1912’ (NSW), this act allowed a person to be retried for an offence if there was “fresh and compelling evidence”. The Bill caused a lot of debate within Parliament committees, in which it was discussed at federal level, although it was not passed until 2006 when they tried again presenting the ‘Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2006’. The new bill was to amend was to the Crimes Act
2001. With the new part of the principle of double jeopardy concerning the evidence to be ‘fresh and compelling’, The evidence that was found in Jay Hart’s case that was ‘compelling’ was to similar and already offered and presented in the trial of the two children’s deaths, which thereby makes the evidence not new or ‘fresh’ thus not complying with Section 102 about the evidence being fresh. Jay Hart was there for acquitted on both murders of Clinton Speedy-Duroux and Evelyn Green based on the double jeopardy laws. Through the Bowraville community and through media outlets many have voiced there complains demanding for a parliamentary inquiry and the double jeopardy law to be reviewed over. With the ‘Amendment (Double Jeopardy) Bill 2006’ being passed it meant that the possibility for a re-trial was opened the application would have to be passed through the NSW Court of Criminal Appeal. Law reform is a crucial part of the Australian legal system in the way that the laws are formed and changed. With Australia and the world’s perception of societal value, morals, ethic, technology and concepts of justice constantly changing the laws also have to change with it. The gradual process that it takes for law reform is one of it downfall with many criticizing the slowness of it losing the effectiveness. Although the time taken for the process to be considered and put in place, in the long term of the law it can widely benefit those who have felt and or dealt with the seeming’s of unjust outcomes. Law reform is there to achieve maximum effectiveness when attempting to achieve all just outcomes for Australia’s benefit.
The roots of Australian laws are similar to traditional Aboriginal laws, dating back to before the Norman Conquest in 1066, where each separate village had their own laws developed to their own customs. This changed however, after a centralized legal system was established after 1066. A common law was formed, that applied to all of England. This was later combined with equity law and mercantile law, which is the basis of Australian law today, known as ‘statute law’.
With the implementation of a nationwide set of legal codes, this could potentially allow new lawyers access to a much larger client base as well as the ability to legally represent a family or friend in court. However, there are still some very key components that need to be addressed in order for the code to be used in the most efficient and effective manner. Whether it is a general disconnect between the definitions of crimes or the oversimplification of terms, the Model Penal Code still has quite a few obstacles to overcome before it will be uniformly adopted by all states. However, with today’s modern communications network, getting the greatest legal minds of our generation together would be far easier than when it was back in 1961, and by doing so could make the necessary changes that are needed for the code to become truly effective.
Rice, S (2011) ‘Reflections on reforming discrimination laws in Australia’, Human Rights law Centre, viewed 4 October 2011, .
In this essay, I will be examining how the court system can fail to deliver justice for particular cases and people’s circumstances, as well as looking at alternatives to court, like circle sentencing, restorative sentencing and alternatives for children to the formal court system, as outlined in the Young Offenders Act 1997 (NSW). Crime is defined in the Oxford Dictionary as an action or omission which constitutes an offence and is punishable by law. On the other side of this is justice; the quality of being fair and reasonable.
Compare and contrast the arguments that have been advanced for and against the incorporation of Aboriginal and Torres Strait Islander Law in the criminal justice system.
Punishment occurs to individuals who break the law. It is also used to maintain the level of crime and to protect community members in Australia. To determine that society is content with maintaining the crime rate, this essay will discuss punishment types given to offenders and how society justifies the use punishment. Additionally, providing a brief overview of the community correction and prions rates to show that communities prefer to incarcerate lawbreakers. Highlighting that crime rates are being maintained by looking at the personal crime rate for assault before concluding that Australian society feel safe enough to allow the criminal justice system to sustain the crime rate.
Australian laws change in various ways on a continuous basis. The federal and State legislatures can change laws when enacting legislation. This law could reflect on improvements or/and new social esteems in contemporary society. Legislation that is new or amended can indicate political choices and can be determined by organisations such as the Australian Law Reform Commission (ALRC) or lobby groups.
Justice systems world-wide employ and enact approaches that are supported by the wider community and government social policy. Exploring social and community expectations on the justice system and the actual theoretical approach behind a sentencing and rehabilitation policy can bring to the light why certain practices are upheld. A social shift towards the practice and implementation of “…restorative justice [practices] (2001) have become mainstream in Australian Juvenile justice and [has] been extended for use with adult offenders…” (Joudo-Larsen, 2014), this approach gains its base from the theory that “…crime causes harm to people, to relationships and to the community…” (Joudo-Larsen, 2014), and that it is not simply an offence against
The Bail Act works in order to protect the community and prevent future offences, to protect individuals whom might be at risk if the accused is granted bail and to ensure the integrity of the justice system by ensuring the accused appear in court while avoiding the possible interference of evidence and witnesses. (Australian Government, 2017) The aim of the Act is to maintain the assumptions of innocence and liberty, while also taking the publics opinions and interests into consideration. Although granting and refusing of bail follows certain provisions and constraints, in recent years’ stakeholders have not been provided with suitable outcomes in relation to the process of bail. The Bail Act 1980 (QLD), is effective, however suggestions could
In 2013, reforms were made regarding the new concepts of justice surrounding the laws of those awaiting trial under the Bail Act 2013 (NSW). The concept of bail is that when someone is charged for an offence and is waiting for trial, instead of being held in remand, one can be released on bail at liberty however may have to respond to a series of conditions. This feature enables that one is presumed innocent until the very end, if proven guilty. This right is fundamental for everyone however it’s value in our legal system is gradually decreasing, as shown under new laws as illustrated in the Bail Act 2013. In the case of bail laws, the need to protect society is also important and can often come into conflict with other fundamental rights.
This element is centred around an advertisement in the Courier-Mail that read “Queensland Law Is Now Tougher On Criminals”. In this advertisement, there were two tables, one indicating increases in maximum penalties for 23 nominated crimes, and the second one set out penalties for a range of “new charges and laws introduced for ‘New Age’ crimes”… (Hogg, Brown 1998, p. 38). Hogg and Brown state that “the call for ‘tougher penalties’ is a perennial theme of law and order debate”…(Hogg, Brown 1998, p. 38). According to Hogg and Brown, there are numerous sub-themes including the re-introduction of capital punishment, complaints about the leniency of prison sentences, parole and remission being overly generous, and prisoners’ living conditions being too comfortable and enjoyable. One of the major flaws in tougher penalties is “it is possible to generate public confidence simply by putting more people in prison”…(Hogg, Brown 1998, p. 39) leaving open the risk of false imprisonment, which in itself, brings along other major long-term problems. Overall, the commonsense element ‘we need tougher penalties’, involves the implementation of tougher penalties on criminals due to the strong public opinion on the
Individual responsibility provides a just and effective base that current Australian legal system. This following essay will analyse how the criminal justice system rests upon the idea of individualised responsibility with reference to the main two core principles that make person criminal liable, these being the Latin phrases Mens Rea “guilty mind and atus reas “Guilty act”. These two core principles will then be used to critically analyse the current model of individual responsibility to support that it is an effective and fair system for Australian criminal law. Finally this essay will conclude by outlining another alternative to the current model of individualised responsibility, which theory of scientific critique.
After further research, I found that the decision by the trial judge was appealed by the convicted when they presented the following arguments: failed to consider the aboriginal perspective, erred in applying the wrong test for what constitutes colour of right or honest belief, erred in applying the wrong test for mens rea (conscious guilty state of mind), failed to apply the standard of proof beyond a reasonable doubt and erred in making material errors of fact on the evidence. The appeal judge, Honourable Mr. Justice Cole, dismissed all the arguments as contradictory, opinionated and self-serving.
Social change and the law are codependent. If one wishes to see progress in the world, a world crippled with corruption, ignorance, fear, and hate amongst other injustices, he or she must acknowledge the relationship that law and social change have on one another. Social change requires a shift in the mindset of a collective body. It requires the norms of a culture to gradually change and progress with the values of the evolving society in order for change to happen. Laws change over time as the society’s values evolve. Thus, new laws come about when values change and conversely, laws change or progress when values change or progress. Laws create social change as social change creates law. The relationship is cyclical.
The New South Wales Criminal trial and sentencing process is adequate in balancing the rights of the victims, offenders and society however like any legal system is does have its faults. The options in the trial and sentencing process are stipulated in the Criminal Procedure Act 1986, the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 and the Crimes (sentencing procedure) Act 1999 which features the use of charge negotiation, rehabilitation, mitigating factors and intensive corrective orders.