When the law is unable to deliver just outcomes to individuals and the commu-nity, there may be a need for law reform.
For example, if the criminal law is failing victims, the community and/or the accused, new concepts of justice may need to be formulated.
In the past, capital punishment for par ticular murder offences was seen as the most effective way of dealing with the most heinous crimes. It was a case of society delivering pure retribution for a crime: ‘a life for a life’. It was also suggested that it provided a strong deterrent to those disposed to commit murder. In fact, in a significant number of homicides the offender and the victim knew each other, and many involved extreme breakdown of family relationships. Many murderers could be described as one-time killers unlikely to reoffend. When capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting that as a form of punishment it had little deterrent value.
It was also recognised that, whatever the chances of a criminal’s rehabilitation, executing him or her extinguishes the possibility completely. There are very strong arguments that capital pun ish ment violates prohibitions of cruel, inhuman and degrading punishments in international human rights treaties, and that where it exists, it is imposed more often on poor, uneducated and otherwise vulnerable persons. In addition, there is the risk of killing an innocent person.
As a result of these moral arguments and prac tical considerations, social attitudes with respect to capital punishment shifted and no Australian jurisdiction now permits it. Because the concept of what justice requires shifted from pure retri bution to
a greater emphasis on rehabilitation, and because deterrence clearly was not being achieved, capital punishment no longer served the community’s purposes.
Another notable example of changes in the way the law punishes offenders can be seen in Youth Justice Conferences estab-lished under the Young Offenders Act 1997 (NSW). This is discussed in more detail in Chapter 9. Youth Justice Conferences are an attempt to divert young first-time offend-ers away from the court system and hence a criminal record. Their aim is to act as a
‘circuit breaker’ in a young person’s behav-iour trajectory. A conference may involve members of the community, the offender’s family, the victim and his or her family, and professionals such as a social worker. Youth Justice Conferencing has enjoyed support from the community, as it has achieved posi-tive results for young first-time offenders.
Some have argued that it should be used for a wider range of offences, including serious offences, because it obliges the young person to consider the consequences of his or her actions, in particular the harm caused to the victim.
Other law reform initiatives to address new concepts of justice include circle sentencing for Indigenous offenders, the NSW Drug Court and the enforcement of parenting orders in the Family Court, to name a few. All of these reforms are attempts to deal with issues that the current laws were clearly failing to address.
R E S E A R C H 4 . 1
Go the following websites to research law reform in the areas outlined.
Identify how the initiatives work and assess whether they are an improvement on the previous ways in which the law dealt with these issues.
C I R C L E S E N T E N C I N G meetings of all the people who may be affected by a crime committed by a young offender; used to help them to accept responsibility for their actions while avoiding the court system Figure 4.4 Capital punishment, now abolished in
Australia, was once seen as a way of dealing with the most heinous of crimes.
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case study
Domestic violence is different from violence perpetrated on the street, in schools or in the workplace. The Women’s Action Alliance defines domestic violence as ‘violence occurring within a household or between family members. Its most common form is violence by a husband against a wife (legal or de facto) but it can also include violence by wife against a husband or child against parent. Violence by parent against child is more commonly referred to as child abuse’.
Domestic violence can be manifested sexually, physically or verbally and in most cases causes psychological harm to the victim. Victims of domestic violence are usually isolated socially and they often stay in these relationships for many reasons, including fear of reprisal.
In the past, victims of domestic violence had to report an incident to the local police. In many cases the victim was told that this was a private matter more appropriately sorted out within the family. Research has indicated that the initial response of the police to a victim’s report of domestic violence will determine whether that victim proceeds further with the complaint.
The victim also had to rely on assault provisions under the relevant criminal
legislation. Not only were there often delays in bringing the matter to court, but the necessity of proving the charge beyond reasonable doubt could be a high hurdle when the evidence was essentially one person’s word against another’s.
Victims of domestic violence incidents had inadequate protection under the law and it was clear that the legislation was not sufficient.
LEGISLATION
In New South Wales, the Crimes (Domestic Violence) Amendment Act 1982 (NSW) inserted new provisions into the Crimes Act 1900 (NSW),
introducing the concept of an Apprehended Domestic Violence Order (ADVO). ADVOs could be obtained by victims through the Local Court or the police. The court must be satisfied
‘on the balance of probabilities’ that the person has reasonable grounds for fear – a lower standard of proof than ‘beyond reasonable doubt’. An ADVO can be tailored to suit the victim’s situation; for example it can forbid the accused from coming close to the victim’s children, residence, place of work, or another specified place that the victim frequents. It is a criminal offence to breach an ADVO.
As more became understood about the perpetrators and circumstances of domestic violence, significant law reform continued to unfold. Some of these developments have included:
sThe Crimes (Domestic Violence) Amendment Act 1993 (NSW) – allowed police to apply for interim ADVOs after hours by telephone, as well as making it an offence to ‘stalk’ or
‘intimidate’ a person.
sThe Crimes Amendment (Apprehended Violence) Act 1999 (NSW) – distinguished between orders taken out for domestic violence and those relating to ‘personal violence’ in other situations, such as disputes between neighbours. In addition, the police must record in writing why they did not proceed with criminal charges for a breach of an ADVO.
Amendments to the
s Bail Act 1978 (NSW)
– removed the presumption that bail will be granted in relation to domestic violence offences or breaching an ADVO, where the defendant has a history of violence.
Amendments to the
s Firearms Act 1989 (NSW)
– allowed police to seize any firearms present New concepts of justice to combat domestic violence
#HAPTER 8 3
The legal system
when called to the scene of a domestic violence incident.
After 30 years of amendments to various legislation, especially the Crimes Act, it was felt that the crime of domestic violence deserved a stand-alone Act of Parliament. Hence the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was passed and took effect in 2008.
This Act repealed Part 15A of the Crimes Act, which dealt with apprehended violence orders, and re-enacted those provisions as a new Act, with some modifications and additional provisions. It was also felt that domestic
violence was treated as a lesser crime, hidden in the Crimes Act. Under the new Act a person may be charged with a ‘domestic violence offence’. While the acts constituting such an offence are not new, being charged with the criminal acts under the new name has significant implications for bail, the offender’s criminal record and any future convictions.
Under s 38, an ADVO made to protect an adult must automatically include any children living with that adult, unless sufficient reasons are given are to why they should be left off.
ADDITIONAL DOMESTIC VIOLENCE INITIATIVES IN NEW SOUTH WALES The NSW government has recognised that there is still room for improvement, with respect to both the protection of victims and the prevention of domestic violence in the future.
The Domestic Violence Intervention Court Model (DVICM) involves a coordinated
response to domestic violence by the police and government agencies in an attempt to support victims and break the cycle of violence.
Once a report is made the police will make an immediate request for an ADVO. They can also initiate an arrest warrant with strict bail
conditions and begin targeted case management processes focusing on protection. Upon arriving at the scene of an incident, they can, with the consent of the victim, use video and still-image cameras to photograph the scene and any injuries, and record any witness statements.
Thereafter, weekly meetings with repre-sentatives from welfare agencies, the Local Court, the Department of Community Services and the police are scheduled, to assist the victim and ensure that his or her needs are met. The Office of the Director of Public Prosecutions will also provide a prosecutor specifically trained in the legal and social issues associated with domestic violence cases, who will handle the case from start to finish. Each cases is to be finalised within 12 weeks, in an effort to minimise the stress and trauma on the victim and any children.
The DVICM also offers support to offen ders to assist with their own psycho logical and social difficulties. Police and correction officers are involved in the process.
The photographic evidence has been credited with an increase in guilty pleas by offenders, from 50% in 2004 to approximately 63% by 2006.
While an increase in financial resources, as well as political will, is necessary to ensure the ongoing effectiveness of programs such as the DVICM, its positive results to date indicate that such costs would go towards breaking the cycle of violence and protecting individuals in their own homes.
Apprehended Domestic Violence Order (ADVO) a court order used for the protection of a person involved in an intimate, spousal or de facto relationship
Go to the following website to read more about the law relating to domestic violence: www.liac.
sl.nsw.gov.au/hot/pdf/domestic_
violence_66.pdf
legal links
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