4a.law reform conditions

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4a.law reform conditions

  1. 1. 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/or FIX an INJUSTICE. IMPORTANT: Law reform is really hard. Just because the law should be changed, it doesn’t mean it will be.
  2. 2. Law Reform WHY does the law need to change?CONDITIONS that give rise to the need for reform… - Changing Social Values WHO - New Concepts of Justice RECOMMENDS - New Technology specific changes? AGENCIES of reform… - Law Reform Commissions - Parliamentary Committees HOW does the law end up - The Media - Non-Government Organisations changing? MECHANISMS of reform… - Courts - Parliaments - United Nations - Intergovernmental Organisations
  3. 3. Law Reform CONDITIONS AGENCIES MECHANISMS that give rise of law reform of law reform to the need for reform
  4. 4. Law Reform CONDITIONS that give rise to the need for reform
  5. 5. Law Reform CONDITIONS that give rise to law ‘CONDITIONS that give rise reform to law reform’ CONDITIONS: Things that happen that give rise to: that can lead toWHY law reform: the law being changed Changing socialdoes the law need to values change? New concepts of justice New technology THEME: The development of law as a reflection of society THEME: Influences on the Australian legal system
  6. 6. Law ReformCONDITIONS that give rise to law reform Examine the conditions that give rise to law reform So we have to go into a bit of detail… Law Reform CONDITIONS that give rise to law reform THEME: The development of law as a reflection of society THEME: Influences on the Australian legal system
  7. 7. Law Reform CONDITIONS that give rise to law reform (Failure of existing law) The BASIC ‘condition’ that gives rise to law reform IS 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.
  8. 8. Law Reform CONDITIONS that give rise to law reform Changing social valuesIf the law doesn’t change when our values as a society change, thenparliament 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 wasover 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”
  9. 9. Assess the use of defences to criminal charges in achieving justicePartial Defences (to Murder): Provocation MOST SENSIBLE JUDGEMENT: KEEP it CASE: Singh v R (2012) (it IS achieving justice for women who were long term victims of domestic violence) MEDIA ARTICLES: but Six years for killing sparks call for law review (SMH, 2012) Bi-partisan call for NSW to ditch provoke defence (ABC, 2012) CHANGE it (so that men cannot argue that their wife offending their manhood or a gay guy hitting on them counts as being provoked)CONSEQUENCES:After Singh was found guilty of manslaughter instead of murder by using the partial defence of provocation (he claimed he wasprovoked by verbal abuse), there were questions in the media, and on both sides of politics, about whether the use of the use of thepartial defence of provocation was achieving justice. A lot of the outrage came after the sentencing (where he received only thestandard minimum non-parole period of 6 years). SO, the Select Committee on the Partial Defence of Provocation was formed inNSW. The question was whether we should keep the partial defence or remove it (IS IT ACHIEVING JUSTICE?) KEEP IT (it IS achieving justice) REMOVE IT (it is NOT achieving justice)The Law Society of NSW and the Domestic Victoria abolished the defence in 2005 after the Victorian LRC concluded that allowingViolence Coalition: Removing the defence the provocation defence “partly legitimates killings committed in anger”. This camecompletely would disadvantage women around the same time as the R v Ramage (2004) case (11 years for killing his wife forwho suffered years of domestic violence and verbally abusing him).then one day lost control. The R v Chhayi(1992) case meant that women could use R v Won (2012) came after the Singh case (Won killed her wife’s lover after finding themthis PARTIAL defence when they weren’t in bed together). He received 7½ years, which added to the controversy about the wayunder immediate threat (in which case they the defence is used.could argue the COMPLETE defence of self-defence), and this is a positive outcome for Homicides, homosexual advances and male honour (The Conversation, 2012): Gaywomen. 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 FROM THE 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 HSC COURSE homosexual advance as a grounds for provocation! So they say remove it completely.
  10. 10. Law Reform CONDITIONS that give rise to law reform Changing social valuesIf 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).
  11. 11. Law Reform CONDITIONS that give rise to law reform Changing social valuesEXAMPLE: 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 wasover 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”
  12. 12. Law Reform CONDITIONS that give rise to law reform Changing social valuesEXAMPLE: 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 couples2008: 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 into Commonwealth 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…
  13. 13. Law Reform CONDITIONS that give rise to law reform Changing social valuesDuring the inquiry into the two gay marriagebills in 2012, the public (SOCIETY!) were askedto contribute and share their opinions abouttheir VALUES with the committee.This included written submissions, but alsorandom phone calls. Our law does not reflect our changing social values regarding same sex marriage.
  14. 14. Law Reform CONDITIONS that give rise to law reform New concepts of justice 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.
  15. 15. Law Reform CONDITIONS that give rise to law reform New concepts of justiceEXAMPLES: Youth Justice Conferencing (HSC ‘Crime’ topic) Circle Sentencing (HSC ‘Crime’ topic)In our criminal justice system, our idea of ‘justice’ has moved (for someoffenders) from trying to seek retribution/revenge to trying torehabilitate 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 bytheir 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!).
  16. 16. Law Reform CONDITIONS that give rise to law reform New technologyAs technology improves, the law has to try to keep up and cover new types of technology used by: 1. Individuals e.g. Criminals using the internet to trade in child pornography 2. Investigators e.g. Police using new surveillance technologies
  17. 17. Law Reform CONDITIONS that give rise to law reform New technologyAs technology improves, the law has to try to keep up and cover new types of technology used by: 1. Individuals e.g. Criminals using the internet to trade in child pornography 2. Investigators e.g. Police using new surveillance technologies
  18. 18. Law ReformCONDITIONS that give rise to law reformNew technology
  19. 19. Law Reform CONDITIONS that give rise to law reform New technologyThe Crimes Legislation Amendment Act 2004 (NSW) made it illegal totake photos or videos (e.g. with camera phones) of people when theyare unaware of it, or undressed (the law only covers doing “for sexualgratification” though – so if you can argue it was for “something else”,
  20. 20. Law Reform CONDITIONS that give rise to law reform New technologyAs technology improves, the law has to try to keep up and cover new types of technology used by: 1. Individuals e.g. Criminals using the internet to trade in child pornography 2. Investigators e.g. Police using new surveillance technologies
  21. 21. Law Reform CONDITIONS that give rise to law reform New technologyAs technology improves, the law has to try to keep up and cover new types of technology used by: 1. Individuals e.g. Criminals using the internet to trade in child pornography 2. Investigators e.g. Police using new surveillance technologies
  22. 22. Law Reform CONDITIONS that give rise to law reform New technology Laws that control police use of technology Telecommunications (Interception) Act 1979 Covers phone taps (police can’t get one without a warrant) Surveillance Devices Act 2004 Covers other police surveillance (“bugs” in houses, video surveillance, etc)Law Enforcement (Powers and Responsibilities) Police have to tell you you’re being recorded Amendment (In-car Video System) Act (by their in-car camera and microphone) Laws that control employer use of technology Workplace Video Surveillance Act 1998 Bosses need to tell their employees that they’re being recorded (and never in bathrooms or change rooms) Privacy Amendment (Enhancing Privacy Bosses are responsible for protecting Protection) Act 2012 customers’ private information

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