Indictable offenses require trial before judge and jury, and so are usually reserved for more serious offenses. Trial by a jury of one’s peers is at the symbolic core of liberal democratic and common law concepts of justice. The jury ultimately connects the community with the administration of justice. In order to give some perspective to the role of the jury within the overall criminal justice system, it must be recognized that only a small percentage of criminal cases are heard before a judge and jury. The jury as an institution is, nevertheless, an important component of the criminal justice system. In the first place, the most serious criminal cases are tried before a judge and jury. In those cases where the State makes allegations of the most grave kind which are contested by the accused person, the responsibility for the determination of guilt is not vested in a single public official. It is placed in the hands of a group of 12 citizens chosen in a random manner as representatives of the general community. In this way the institution of the jury serves as an important aspect of the declaratory or denunciatory function of the criminal law. The maintenance of trial by jury emphasizes the serious nature of the criminal offenses which are so dealt with. In New South Wales a jury has no role in determining the penalty for a person once that person has been found guilty. A jury can only convict or acquit an accused person if they are unanimous, that is all 12 members of the jury agree.
... every story and the circumstances of Criminal Justice 5 each case diverges with each plaintiff and defendant. Each case is tried on its merits ... defense attorneys wage against each other to secure the best trial jury. Minick, 2000, p. 5) This is where stereotypes come into ... play because someone who might look like one type of person may actually be someone totally different. Someone who is well ...
Australia has a tradition of court proceedings being based on an adversarial model. In this model the role of the ‘Judge’ is to determine disputes between parties by applying the law to particular facts. Judges determine the facts on the basis of evidence presented to them, either given in Court by witnesses in person or provided in writing by way of an affidavit. Judges will consider the ‘credit’ of a party, and evidence will be accorded ‘weight’ depending on its relative importance.
‘A trial does not involve the pursuit of truth by any means … judge’s role … is to hold the balance between the contending parties … not an inquisitorial role …’ (Justice Dawson 1983)
‘There’s a distinction between telling the players how to play and telling them the rules of the game’ (Justice Brennan 1981)
The quotes stated above summarise the principle role of the judge as an impartial observer of the case who ensures that order is established in the court and through the facts provided and laws establishes the appropriate sentence if the accused is found guilty. A judge can not tell the jury to convict, but he/she can direct the jury that there is not a strong enough case to convict. A judge does not have the power to dismiss charges if they feel a conviction is not warranted.
The primary role of the judge as stated above is to conduct a trial according to the rules of the court. The judge’s responsibilities include:
•Supervising trial proceedings, by making sure the trial is conducted according to the rules of evidence.
•Ruling on points of law over which barristers have argued.
•Excluding irrelevant, misleading and illegally obtained evidence.
•Advising members of the jury on points of law and their role.
•Passing sentence on those accused found guilty.
Judges must be impartial and a party can request that a Judge disqualify him or herself on the basis of bias or a reasonable apprehension of bias.
Judges must be aware not only of the provisions of the relevant legislation but must also know how it has been interpreted and applied in other cases. If there is a decision on the same law and similar facts made by another trial Judge, they are not bound to follow it, but would need to show clearly why they disagree. Where there is a decsion made by a higher Court, for example the High Court of Australia, they must accept that interpretation of the law and apply it (system of precedence).
... wish to avoid aspects, which weaken their case. The Jury In jury trials the judge decides questions of law, sums up the evidence for the ... . -. , , ().It is important to draw attention to the role and activities of the Crown Court... -... Everything depends on the circumstances: contested trials ...
The above case study gives little information on whether this offence was dealt with by a judge and jury. The case study portrays a serious crime since it was murder; which implies that most likely it was an indictable offence. This gives us the impression that it would have been dealt with by a judge and most likely a jury. The jury had no role in determining the penalty for Maria and Ray once they have been found guilty. All twelve members of the jury unanimously came to the decision that the two were guilty of this serious offence.
The judge was responsible for determining the sentence when Maria and Ray were found guilty of manslaughter in the process. The judge sentenced both of them to four years imprisonment. The conviction proved to be weak and the Director of Public Prosecutions (DPP) appealed. The DPP appealed largely due to the leniency in the conviction of Maria and Ray whom murdered a defenceless and innocent elderly woman. The DPP represents the public’s interests in appealing as this conviction does not deliver justice for society. The weak conviction was overturned in the appeal court with an increase in the sentence to ten years.
The criminal law is concerned with the establishment and continuity of public order. The criminal law is continually under review by different sectors of our society. A fundamental feature of an effective legal system is its ability to respond to a changing society. Without reforming the law, the ceaseless shifts in social values that accompany a developing society may not be accommodated for, and the law may quickly become insufficient in upholding community perceptions of justice and societal safety and peace. Although only the government of the day and the courts to a lesser extent can make changes to the criminal law, individuals and groups can have a say in many official areas of review of the criminal law. The New South Wales Law Reform Commission, parliamentary committees and Royal Commissions all undertake public hearings and submissions in which individuals and groups can have a say. These agencies must then take account of what the public says when they make their recommendations to parliament.
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The New South Wales Law Reform Commission
As society evolves, the law needs to change to reflect, among other things, economic and technological developments, different social values and new concepts of justice. Law reform commissions are one of a number of agents of change which operate to alter our law and its administration.
The New South Wales Law Reform Commission began operation in New South Wales in 1966, and was formally created by statue in 1967 (Law Reform Commission Act 1967).
The Attorney General has ministerial responsibility for the Law Reform Commission.
The functions of the Commission are set out in section 10(1) of the Law Reform Commission Act 1967. it says the Commission is required to consider the laws of New South Wales with a view to
•Eliminating defects and anachronisms,
•Repealing obsolete or unnecessary enactments
•Consolidating, codifying or revising the law
•Simplifying or modernizing the law
•Adopting new or more effective methods for the administration of the law, and
•Systematically developing and reforming the law.
The NSWLRC carries out an investigation, prepares a report and makes recommendations to the New South Wales Attorney-General. It can do this only after a request from the Attorney-General; it does not have the power to initiate inquiries. However, the NSWLRC may recommend areas of investigation to the Attorney General for consideration.
It is then left to the government to change the law by implementing all or some law reform commission recommendations.
Parliament is the main law-making body. While the NSWLRC makes recommendations for law changes, it is the New South Wales Parliament that implements any criminal law changes.
Most recently the NSW LRC has addressed the issue of sentencing Aboriginal offenders and the Attorney general has requested that the Commission recommend legislation to consider Aboriginal customary laws when relevant in sentencing Aboriginal people. After recommendations from NSWLRC the state parliament reviewed section 316 of the Crime Act to introduce the offence of concealment of a serious offence because laws relating to public justice issues were fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, and anomalies and uncertainties, according to the commission.
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The protection given to husbands and wives that allows them not to be compelled to give evidence against each other in court is not given to De facto or same sex couples, but in 2002, the NSW attorney General presented amendments to the Crimes Act and Evidence Act to give these partners this protection that those statutes only gave to spouses.
The NSW Government amended the Crimes Act 1900 (NSW) with the Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001, so that the judges could impose longer sentences. The crimes of Bilal Skaf prompted the NSW Government to make gang rape punishable by life imprisonment (this was largely imposed due to pressure from women lobby groups and most of society itself).
Reform has been evident in the decriminalisation of certain drug offences and homosexuality in which has been driven by society.
Governments have a political agenda and many changes recommended by various groups may not be seen as politically desirable by the government of the day and are therefore ignored. Much of the reform undertaken by governments reflect their political policies.
The main role of courts is, to interpret and apply the law provided by parliament. Judges can change laws by creating a precedent in a court case, but they are reluctant to interfere with the government’s law-making role. Judges play a role in law reform to improve areas where the law may lack clarity or is deemed unfair. This is seen in the High Court case of Williams v The Queen which asserted that if a person is found with a quantity of cannabis so minute that it is not usable in any manner which the Misuse of Drugs Act 1971 (Qld) was intended to prohibit, then a conviction for being in possession of this quantity would not be justified. If statutes fail to cover a legal situation or are inadequate like seen above, the judge’s decision will become the new law. Where punishment does not fit the crime a retrial may be heard like seen in the case study.
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Individuals cannot change the law but as members of lobby groups they can influence its reform. They attempt to achieve their aims by targeting:
•members of parliament
Lobby groups try to raise public awareness of their cause; the higher the profile of their cause the more likely it is that the government will listen to their ideas. If they can influence government decision making, then they can achieve law reform in the area in which they are interested.
Laws are consistently changing largely due to the above agencies of reform. The changing values of society could have been the most justifiable reason for the increase in the sentencing as seen in the case study. The murder of the defenceless and innocent elderly woman could have prompted the need for the increase in the sentence so to serve justice for society. The increase in the sentence could have been brought about by the victim’s lobby group creating a large public awareness of the crime which then would have led to the greater condemnation of the crime by the whole society.
The effectiveness of the agencies mentioned above in achieving reform of the criminal law varies. The weakness of the law reform commissions, courts and lobby groups is that they rely on parliament either to carry out recommendations or to act upon judges’ decisions. While these agencies can strongly influence law reform, ultimately it is only parliament that can make suggested changes by incorporating them into statutes.
Within each society there is a set of attitudes and beliefs that are shared by the majority members of society. These attitudes and beliefs reflect what is valued and believed to be right and wrong and, therefore, what is acceptable to society. A punishment is imposed on those convicted of breaking the law depending on the seriousness of the case which is largely determined by society’s perceptions of the crime committed.
The objectives and aims of punishment which are discussed below are broken down into five main categories stated as retribution, deterrence, rehabilitation, incapacitation and reintegrative shaming.
... happening in the first place, is rehabilitation. Rehabilitation as a form of punishment to crimes is a “let the punishment fit the criminal” mentality. The ... remove an offender from society, making it physically impossible (or at least very difficult) for him or her to commit further crimes against ...
The objective of reform and rehabilitation is to change the behaviour of the offender to that which society deems acceptable. Many observers of the criminal justice process state that this objective should always be given the highest priority. It focuses on the future behaviour of those who have been found guilty of an offence and benefits society as a whole.
If reform and rehabilitation are to be seen as important, it is essential that governments spend money on programs that will allow for rehabilitation to take place. Increased emphasis on rehabilitation leads to fewer prisoners and a reduction in recidivism.
Incapacitation is the concept of making an offender incapable of committing further offences by detaining them in home detention, imprisonment or other forms of incarceration. It is seen as a purpose of punishment by protecting the community from certain offenders who may continue to offend.
Lex talionis-‘an eye for an eye’-is an old Hebrew rule of justice. Retribution is the notion that the guilty ought to suffer the punishment which they deserve. As such, it is an important aim of sentencing. As a philosophical basis for punishment, retribution has, in the past two decades, experienced a revival among punishment theorists, has spurred public debate, and re-emerged in the concept of “just deserts”. This revival was largely brought about by a growing disillusionment with the emphasis on rehabilitation as an objective of contemporary penal systems, together with the influence of the media on the way society reacts to crime. Some criticisms of this objective include that this largely excludes reference to individual circumstances of offenders and their prospects of rehabilitation.
Is a punishment designed to discourage people from committing certain crimes in the future. There are two kinds of deterrence: first, specific deterrence, which aims to dissuade the offender from committing further crime; and secondly, general deterrence, which aims to dissuade others, who have been made aware of the punishment inflicted upon the offender, from committing crime. One of the main purposes of punishment is the protection of the community from crime by making it clear to the offender and others that they will be appropriately punished if they behave in like fashion. Below are justifications for deterrence as an objective of sentencing.
•To prevent crime by making a public statement that certain offences will not be tolerated.
•To achieve social coherence through the making of symbolic statements that certain crimes will not be tolerated by the community.
•To make a symbolic statement to the offender him or herself that society will not tolerate the commission of the crime for which he or she has been convicted.
The crucial justification for deterrence is that it prevents future crimes. But this justification has been questioned on four principal grounds:
•First, there is doubt about the extent to which, empirically, punishment actually prevents the commission of future offences.
•Secondly, assuming that punishment does deter, it is argued that it is the threat of detection and resulting punishment (in some form), rather than the level of punishment, which deters the offender. If so, then it follows that a positive deterrent response (for example, by setting higher penalties) achieves little or nothing in terms of the incidence of crime.
•Thirdly, accounting for deterrence, particularly general deterrence, in setting punishment can be seen as unjustly punishing the offender for what others might do, as opposed to what the offender has in fact done (“scapegoating”).
•Fourthly, there is considerable doubt as to the efficiency of the communication of the penalties to the wider audience upon which the general deterrence depends.
Reintegrative shaming is a method of correction that encourages offenders to confront their offences and experience shame because of the harm they have caused to others. It adopts the principles of restorative justice. The idea behind this is for the offender to condemn the crime they have committed and try to re-establish a moral bond with society.
To what extent do these ranges of punishments achieve the objectives of the criminal justice system?
A fine is a sum of money ordered by the court to be paid by the offender to the state. Fines are possibly the most extensively used punishment. Fines create minimal disruption, and are quick, flexible, appropriate for many offences and cost-effective. Because fines involve monetary forfeits, if they bear no relationship to the ability of the offender to pay, they are biased against the poor and therefore do not deter the rich person from committing the crime again. They may not serve the purpose of retribution for example if a company were to pollute a river through illegal dumping of hazardous waste, what difference would a fine make to the environment?
Under probation the offender does not go to gaol but is placed under the supervision of a probationary officer. The probation order basically requires the person on probation to be of good character, to contact their probationary officer regularly and not to commit further offences. This allows for rehabilitation to take place but the success of probation hinges on the quality of supervision and may not serve the objective of incapacitation.
With the prison population growing by 40% in the last decade alternative punishments are being examined. Once such example is the idea of Reintegrative shaming, which involves the offender volunteering to participate in a conference with the victim, their families and the police to discuss the impact of the crime on the victim and community and then prepare a sentencing plan. After a similar program for children introduced by the Young Offenders Act 1997 NSW, helped re-offending rate drop by 20%, a 2yr trial of this program began this September in Tweed Heads and Liverpool for criminals (18-24).
It aims to prevent low-level offenders from reoffending or moving onto more serious crimes and allows the victim to address offenders directly. Its effectiveness however depends on the offender’s sincerity and it may not achieve the objective of retribution.
Community Service Order
A Community Service Order (CSO) involves the convicted offender performing some form of work in the community that is beneficial to society. The objective of a CSO is to rehabilitate the offender and compensate the community. Since 1980, when they were introduced in New South Wales, CSOs have become an increasingly important alternative to prison sentences and are being extended as a main alternative to fine punishments. Arguments in favour of CSOs include:
•the positive outcomes for society
•the rehabilitation effect on the offender
•their diversionary success away from prison.
The criticism of this form of punishment is that it does not serve the objective of incapacitation and can result in society being harmed.
There are a number of variations of this program, but all involve the close monitoring of an offender within their own home or a restricted area. Home detention is used for a wide variety of offences, including drink-driving, repeated traffic offences and social security fraud, and for those on diversionary programs. There are a number of benefits of home detention as an alternative punishment. These include:
•cost-efficiency (home detention costs approximately one-seventh of prison detention)
•decreased prisoner numbers
•increased chances of rehabilitation
•less family disruption for offenders-it allows them to continue working or looking after family members.
Periodic detention or weekend detention allows the offender to serve their sentence
on a periodic basis, usually on weekends. Periodic detention increases the chances of rehabilitation and reduces the need for detention. The advantage here is that offender is still paying tax and supporting a family while paying debt to society. However, there has been a great deal of criticism of periodic detention, mainly due to the lack of monitoring and due to the fact that it does not entirely fulfill the objective of incapacitation.
With the removal of the death penalty in New South Wales in 1955, imprisonment became the most severe punishment imposed by our legal system and can be seen as performing the objective of retribution.
This form of punishment protects society and incapitate prisoners so they cannot reoffend. A serious punishment, it acts as a general deterrent (this is seen in the case below in the case DPP (Cth) v El Karhani) and provides for rehabilitation through drug programs.
In DPP (Cth) v El Karhani, a case involving the importation of a traffickable quantity of heroin by an elderly man from Lebanon, who was funded and instructed by an apparently unknown person, the Court of Criminal Appeal said:
[The trial judge] observed in this case that it was most unlikely that this elderly, frail and sick man would ever be tempted to offend again. But that leaves another audience to be addressed …. It is those in Lebanon, or elsewhere outside Australia, who might be tempted to organise or commit this type of offence. To them it is necessary to send the message of general deterrence.
After the Bilal Skaf-Gang Rapes in year 2000 the NSW Government amended the Crimes Act 1900 (NSW) with the Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001, so that the judges could impose longer sentences. The crimes of Bilal Skaf prompted the NSW Government to make gang rape punishable by life imprisonment. The need for this law reform came as a result of the increased support from the community for the objective of retribution to be fulfilled. Bilal Skaf received 48 years imprisonment due to the fact that the horrendous offence which he committed went against the delicate moral fabrics of society and so had to have a harsher punishment imposed on the offenders so to serve justice for the community in a whole. This form of punishment was to serve also as a general deterrent to others since it was a new crime that was rapidly increasing.
Justified by the high crime rate and the high number of reoffenders, imprisonment is not entirely effective in achieving the criminal justice system’s goals. Criticisms include its cost at $50,000 a year per person and the financial and emotional hardship on offender’s families. It stigmatises the offender on release and provides little chance of rehabilitation.
It has also been criticised in relation to the differential association theory, which states that living with criminals increases a persons likelihood of committing a crime.
Debate on crime and punishment issues has lead to a shift in punishment objectives at different times. During the 1960s and mid-1970s there was a move to rehabilitation, which developed as a major motive behind prison reform in the 1960s and was also the driving force behind the development of alternative sentencing. In the late 1970s and 1980s there was a re-emergence of retribution as an objective, and during the 1990s there has been a push towards protection of the community and continued support for retribution. Over the past twenty years the media have had a major influence on the way society reacts to crime and therefore its attitude to punishment. Serious crimes create sensational headlines, which in turn can create uninformed or poorly informed citizens. This then flows on to policy decisions which then causes for the push of retribution as a main objective of punishment. Politicians have created increasing support for the philosophy of `just deserts’ so to increase their law and order vote.
In other jurisdictions within Australia, such as the Northern Territory, there had been an increase in incapacitation via mandatory sentencing legislation, which has now been amended. The press and politicians have reacted strongly to the law and order push and other jurisdictions are also considering similar legislation.
An increase in the time given to Maria and Ray could have been as a result of the demand by society for the retribution of the murder of the innocent, defenceless elderly woman. The long sentence could have been imposed as to make them incapable of committing further offences (Incapacitation) as this crime was revered by society. The sentence increase could also serve as a deterrent for others. The sentence length imposed by the judge is in turn what society seems as an acceptable form of punishment.
It is clear that the criminal justice system’s objectives are achieved by each punishment to a certain extent, yet each punishment’s effectiveness is limited. While retribution has been given a higher priority in recent times by society, the criminal justice system still needs to focus on deterrence and rehabilitation in the punishments it issues. Judicial decisions in the end are a reflection of community standards and their priority given to a certain objective of the criminal justice system.
A fundamental feature of an effective legal system is its ability to respond to a changing society. Without reforming the law, the ceaseless shifts in social values that accompany a developing society may not be accommodated for, and the law may quickly become insufficient in upholding community perceptions of justice and societal safety and peace. Law reform may develop as a result of community pressure, new concepts of justice or failure of existing law.
The most important statute governing crime in New South Wales is the Crimes Act, but as it was passed in 1901, many of the offences covered in it were no longer considered by the public to be wrong and as a result the statute has been amended on various occasions or new statutes have come about so to allow for no discrepancies in the field of crime. Drug offences and those that offend morality (for example, in relation to abortion and homosexuality) have been altered and others redefined, such as sexual assault.
The law tends to reflect public morality and is therefore a reflection of the moral standards of many individuals. Over time there are changes in social attitudes and perceptions of what is morally right and wrong. These changes will sometimes be reflected in the changes made by parliament of what is legal and illegal. The gradual move to decriminalise prostitution or certain forms of it over recent years can be seen as a response to a change in society’s values.
There are a certain conditions that give rise to need for reform and they include changing social values and composition of society, new concepts of justice, failure of existing laws, international law and new technology.
Changing social values and composition of society
The law has to adapt to changes in social values. Governments have decriminalised many offences originally seen as summary or public order offences (for example, homosexual sex between consenting adults, prostitution) due to the changes evident in society. The ethnic composition of the Australian population has changed dramatically since the Crimes Act was first passed in New South Wales in 1900. There is now a diversity of ethnic groups within our population and many laws have had to be amended to reflect this diversity; for example, laws concerning burial have been changed to accommodate non-Christian religions. However there is little evidence of similar changes occurring in the criminal law. Some jurisdictions allow the inclusion of Aboriginal customary law and take into account cultural factors that may have an influence on the behaviour of the offender. Greater education has led to the questioning of laws in relation to abortion, euthanasia and drugs.
The decriminalising of certain drug offences and homosexuality are two areas in which reform has been driven by society. Also the introduction of laws relating, for example, to the carrying of knives by juveniles or the congregation of youths in certain areas, has been driven by society. In some cases, the media has played an integral part in reform. The media continually tells its viewers what its community standards are. Current affairs programs shows its viewers glimpses of life and newspapers and magazines poll people and report these findings. Nightly current affairs programs concentrate on issues that create sensational comment and so shape the community’s perception of certain issues..
Community attitudes and standards change over time. A true reflection of changing community standards was the approach on gun control taken by Prime Minister John Howard in 1996 after the Port Arthur shootings. The public demanded stricter gun laws and the Prime Minister insisted that all States-without exception-pass uniform gun laws.
The emergence of grave sexual assault has seen the introduction of harsher laws so as to reflect society’s perceptions of the offence. These offences are reviled by society as they go against the moral standards of the community in a whole. For example the case study Bilal Skaf-Gang Rapes (2000).
Gang rape at the time was a new crime-aggravated rape (maximum: 14 yrs), there was no relevant punishment.
Bob Carr passed new laws which changed sentencing legislation to suit a new crime emerging. The NSW Government amended the Crimes Act 1900 (NSW) with the Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001, so that the judges could impose longer sentences. The crimes of Bilal Skaf prompted the NSW Government to make gang rape punishable by life imprisonment. The need for this law reform came as a result of the increased support from the community for retribution in these cases. This horrendous offence went against the delicate moral fabrics of society and so had to have a harsher punishment imposed on the offenders so to serve justice for the community in a whole.
In light of the recent London and Bali bombings, the Australian community has demanded for greater protection and thus more rights during a time of terrorist threat. The criminal justice system has reacted to such a change in community values to the protection of societies right to safety with the meeting of the Council of Australian Governments on 27th September 2005, which saw the creation of new counter-terrorism laws. The laws allow suspects who have never been charged to be electronically tagged for up to 12 months, give police the power to “stop, search and question” and detain suspects without charge for a fortnight. A new crime has also been put in place of incitement for advocating or supporting terrorism. These counter terrorism laws were introduced to protect society from the ultimate acts of terrorism. These laws have come about due to the fear by many people of potential terrorist acts. The law in this situation had to change so to meet the challenges of a new horrendous crime and ultimately the changing social values of society.
Law reform has been prevalent over the past decades regarding cannabis to improve areas where the law may lack clarity or is deemed unfair. This is seen in the High Court case of Williams v The Queen which asserted that if a person is found with a quantity of cannabis so minute that it is not usable in any manner which the Misuse of Drugs Act 1971 (Qld) was intended to prohibit, then a conviction for being in possession of this quantity would not be justified.
The changing values of society could have been the most justifiable reason for the increase in the sentencing as seen in the case study. The murder of the defenceless and innocent elderly woman could have prompted the need for retribution to be fulfilled. This comes in the increase in the length of time being imposed on the two offenders. This sentence could have come as a result of new legislations or amendments being passed on the seriousness of manslaughter or as a result of the court imposing a tougher punishment to suit this horrendous crime.
New concepts of justice
As our society changes and becomes more complex, concepts of justice held by individuals and groups also change. Changing views of punishment have led to a movement away from very harsh punishments for some offenders to more meaningful and just punishments, such as community service and home detention. Likewise, for certain serious offences the concept of truth in sentencing is seen as more just by many in the community.
Failure of existing laws
Poor or obsolete laws may be repealed by new statutes, or amendments to legislation, or interpretation in the courts. Changes to obsolete laws have been made in relation to many summary offences such as vagrancy and drunkenness, and in criminal law areas such as homosexuality and attempted suicide. It is up to the government to make sure present laws do not fail society. There have been cases now where some offences which have been committed by Aboriginal people have resulted in them being convicted according to their customary laws. This has come about so to cut down on the disproportionate number of Indigenous Australians in custody.
International law and conventions
As a signatory to human rights conventions (UN Declaration on Human Rights and the UN Declaration on the Rights of the Child), Australia must adhere to their tenets. The Crimes Act makes illegal those actions against the person and property that contravene these rights. If States have laws that are contrary to the international convention which the Federal government has signed, then a conflict between the two levels of government may occur. If there is a conflict the High Court may need to make a decision on the laws. Such a conflict occurred when the Federal government passed human rights laws on sexuality which were opposed to the laws outlawing homosexuality in Tasmania. In this situation the Federal law overrides the Tasmanian law-eventually the Tasmanian government repealed the law which made sex between two consenting males a crime (Toonen case).
The debate over the Northern Territory and Western Australia mandatory sentencing laws is an example of this conflict. These States are in conflict with the Convention on the Rights of the Child 1989. Early in 2000 the Federal government was reluctant to challenge the right of these States to pass such legislation.
In the past twenty years changes in technology have probably created the greatest need for reform of the law, particularly the criminal law.
New areas of computer-related crime have arisen-such as fraud, hacking, the deliberate transmission of viruses, sabotage and pornography on the Internet and new legislation has to be put in place to combat such crimes. Computer crime is one area that is yet to be adequately addressed by legislators and the courts. Although trade in pornography is illegal, it is difficult to trace it on the Internet; copyright is protected in Australia through the Copyright Act 1968 (Cwlth) but is also difficult to protect because of the Internet.
Technology has improved techniques of criminal investigation and interrogation, which has meant that the law has had to be kept up to date to protect the rights of the accused and the legal system. Advances in forensic science, such as the use of DNA and blood sample testing, have led to the tabling of new laws to allow police to take samples forcibly for use as evidence in a court case. Methods of electronic surveillance such as phone tapping or video surveillance have required strict laws to govern the use of such methods so as to protect individual freedom.
For justice to be done and to be seen to be done, the law must adapt to accommodate society’s changing needs and attitudes. As society evolves, the law needs to change to reflect, among other things, technological developments, different social values and new concepts of justice.