Legal Studies Year 12 World Order + CRIME CIs

UNSC Positives

Framework exists to maintain world order UN Charter

Article 41 —> Non-forceful responses to threats to peace + security

Article 42 —> Forceful responses via land sea air

Authorisation of force to maintain world order

Resolution 660: Kuwait, (1990), operation desert storm to expel Iraqi forces from Kuwait region

Peacekeeping operations can be successful

Resolution 1264 (1999) East Timor

• UNTAET: oversee + manage transition to independence

• INTERFET: Restore peace, protect UNMAET, provide humanitarian aid

Over 3,000 resolutions - proof of maintaining WO

UNSC Negatives

P5 veto power prevents resolution in conflicts where p5 member has geopolitical interests

—> Russia used veto 16 times to protect Syria at UNSC resolutions

—> Oxfam: Vetoing humanity report (2024): “a handful of powerful nations who represent only 25% of the world hold its nuclear button”

—> Conversation 2014: UNSC’s failure stretches from syria to crimea: “power structure prevents joint decisions”

UNSC = Unrepresentative

Conversation 2020 UNSC isn’t working will it ever be completely reformed?: “p5 members made up 50% of population in 1945, today they constitute only 26% of global population”

Prospects for reform:

• Increase p5

• p5 vow not to use in mass atrocities

• Increase non-permanent

International Criminal Tribunal for Rwanda ICTR Positives

Groundbreaking convictions and precedents

—> 93 indictments

—> 62 convictions

The Prosecutor v Jean Paul Akayesu (1998)

• Defined rape as crime against humanity

• Rape + sexual violence constitute genocide (with genocidal intent)

“The Media Case”

—> Inciting genocide = International crime

—> First court to hold members of media accountable

New York times 2003: “Court finds Rwanda media executive guilty of genocide” It was used to inflame ethnic hatred that led to massacres

Held perpetrators accountable commitment to justice

BBC 2025: “Rwandan beekeeper arrested in the US over genocide charges”

‘heinous acts of violence abroad’

International Criminal Tribunal for Rwanda Negatives

Criticism of victors justice as no RPF crimes have been prosecuted

—> None of the 25-30,000 war crimes by RPF in retaliation went to court

ICTR located in Tanzania, limiting access to justice

Martin Sebukanya: “did not serve the purpose of the Rwandans”

“few even travelled there”

The conversation 2020: “Many rwandans belive they’re trying to remove this guilt by promoting justice for international audiences rather than for victims”

Tribunal was costly

20 years work cost nearly $2 billion

$40 million per offender

DW: ICTR: A failed tribunal for genocide victims and survivors

“the tribunal is said to have devoured 2billion USD”

Nuclear Proliferation Treaty 1968 (nuclear) Positives

Most signed arms treaty

—> 191 states (190 today)

—> Caps nuclear states at 9

JFK 1963: “I am haunted by the feeling that by 1970 there may be ten nuclear powers instead of four”

Encourages cooperation

South Africa convinced to abandoned nuclear weapons program in 1989 and joined NPT in 1991
—> Article VI establishes ‘good faith’ negotiations between states - honest and meaningful negotiation,

IAEA Monitors compliance + enforces NPT

IAEA - established 1957

Monitors peaceful use of nuclear energy

Reports non-compliance to UNSC

Nuclear Proliferation Treaty (nuclear) Negatives

Sovereignty allows states to not sign, breach, leave NPT

• India, Pakistan, Israel never signed: possess 440 combined warheads

DPRK left in 2003.

Waltz N (1990) Nuclear Myths and Political Realities: “if a nation possesses nuclear weapons, even a small nation can confront a major power”

NPT has not achieved disarmament

Russia and the USA possessing 13,000 combined nuclear warheads

• Russia suspending NewSTART (prevents proliferation + promotes use of nuclear energy)

AlJazeera 2023: New START nuclear deal and why did Russia suspend it?

“the Russian move was deeply unfortunate and irresponsible”

Treaty on the Prohibition of Nuclear Weapons (nuclear) Positives

Comprehensive ban on Nuclear Weapons (Jan 2021): Responding/reform to the failure of the NPT

As of Jan 2026:

—> 99 signatories, 74 ratifications

Championed by NGO: International campaign to abolish nuclear weapons (ICAN)

reflects changing VES regarding unacceptability of nuclear weapons

—> need to address impact

—> Article 6 commits member nations to provide assistance to victims of nuclear weapons

Treaty on the Prohibition of Nuclear Weapons (nuclear) Negatives

Limited Ratifications due to state sovereignty

No NWS or their allies (Australia) have ratified

Australian institute of International Affairs (2021)

“the TPNW will not eliminate one nuclear weapon”

Nuclear threat remains high as ever

(CNN 2022): “North Korea’s record year of missile testing putting the world on edge”

—> over 70 missile tests

2022: New DPRK law, prohibiting denuclearisation + allowing pre-emptive self defence

Geneva Conventions Positives

Universal framework limits effects of conflict, increases likelihood of future peace

• 196 Ratifications

• Achieved status of ‘jus cogens’

The conventions won’t prevent wars […] limit the physical damage caused by war (Think Again: Geneva conventions 2009)

GC’s have evolved —> changing nature of conflict

After WWII, Geneva Convention IV (1949) developed to protect civilians

Geneva conventions III (1949), entirely dedicated to POWs

States are enforcing GC’s

ABC 2025’s: Former SAS soldier Oliver Schulz committed to stand trial for war crimes charge of murder

“a three-year criminal investigation” found Oliver Schulz to be charged with “the war crime of murder”

Geneva Conventions Negatives

Non-Compliance is widespread

2024 Foreign Policy: Destroying Gaza’s Health Care System Is a War Crime: Israel “repeatedly targeting healthcare facilities”

Geneva Conventions laws of war need fixing - BBC News 2015: “shattering of the system of the Geneva Conventions".

Do not apply to modern assymetrical warfare

(foreign affairs 2024):“Hamas’s Asymmetric Advantage”

“Israeli forces killing thousands of palestinians”

Barriers to enforcement

Age of impunity: 2021:

"norms and laws... sanctified in the Geneva Conventions... are being lost" —> breaches unpunished

R2P (Responsibility to Protect) Positives

Reflects moral and ethical condemnation of sovereignty being used as a shield for atrocities

Sovereignty viewed as a ‘license to kill’

Gareth Evans 2018 speech:

“When genocide, or other major war crimes were being committed behind sovereign state borders, the world would regard this as everyone’s business”

Unanimous support for R2P

World Summit 2005, unanimous agreement for R2P, consistently at UNGA’s, is agreed on

Libya 2011 Success

Resolution 1970 + 1973

—> prevented looming massacre in Benghazi by Gaddafi

—> no fly zone established

—> naval and air force quickly deployed around mediterranean sea

R2P (Responsibility to Protect) Negatives

Actions in Libya 2011 led to criticisms of the R2P principle

Failure to rebuild meant that Libya descended into civil war from 2014-2020

Accusations of R2P being used as a Trojan Horse for Regime Change

Geoffrey Robertson 'Crimes Against Humanity':

“Resolution 1973 had become a justification for tyrannicide"

Pillar III dependant on UNSC approval - p5 veto blocks

17 vetoes by Russia stalled R2P in Syria

Foreign Policy 2021: ‘Responsibility to Protect’ Is One More Casualty of the Syrian War’

• 400,000 casualties in Syria

• 200,000 missing

China and Russia’s veto stopped intervention in Myanmar

GlobalR2p 2021: The Yearlong Failure to Protect Myanmar’s People and What to Do Now’

“only the Security Council can impose a legally binding international arms embargo”

Domestic political will to provide support limits R2P

'Syria is a failure of commitment, not principle' (Washington Post 2016)

Sanctions Postives

Sanctions have modified State’s behaviour

2015 Joint Comprehensive Plan Of Action (JCPOA), signed by nations sanctioning Iran, eased sanctions in exchange for restricted Nuclear Program

Tool of Persuasion rather than force, coerce states into compliance

UN Charter Article 41:

UNSC Imposed sanctions UN nations must follow

Autonomous sanctions imposed by nations signal condemnation

Sanctions don’t always change behaviour, but constrain ability to wage war

2023: ‘World’s Most Sanctioned Countries’

17,500 of Russia’s 18,772 sanctions are in condemnation of Ukraine Invasion

The Conversation 2022: “Are the West’s sanctions against Russia actually working?:

Russia’s economy has reportedly had a fall of 6%

Shortages of semiconductors for military

Signal condemnation - deterrence

Sanctions Negatives

Limited success in modifying behaviour

Despite 49 states + 17,500 sanctions, Russia is still at war with Ukraine

AlJazeera 2026: Mapping Russian attacks and territorial gains:

“Russia occupies ~20% of Ukraine territory”

Effectiveness depends on State Sovereignty cooperation

49 countries make up 60% of Global Economy

Conversation 2023: How Putin has shrugged off unprecedented economic sanctions

Russia earns $800 million/day

"AlJazeera 2023: How China + India’s appetite for oil and gas kept Russia afloat”

“China’s imports surged 20% to 68.06 million tonnes

ICC Positives

First permanent court to end impunity for war crimes and other serious international crimes

The most serious crimes of concern to the international community as a whole must not go unpunished' Preamble to Rome Statute 1998

Rome Statute 1998

—> Article 8: builds upon experiences of ICTR and ICTY in the 1990s to establish a permanent court to prosecute individuals of war crimes

Upholds aspects of the rule of law —> Rome Statute

Crimes Against Humanity; Robertson 2012

- arrest warrants against Putin 2023 and Netanyahu 2024

Some successful prosecutions

Prosecutor v Lubanga (2012) 

Lubanga serves 14 years for war crimes of conscripting children under 15 participate in hostilities (child soldiers)

Supports victims of crime

Rome Statute

—> Section 70: Sets up ICC Trust Fund for Victims. Lubanga case 473 received an average of $8,000USD

ICC Negatives

Jurisdiction is limited State consent and referral from the UNSC

→ Only 125 ratifications

→ US withdrawal 2002

→ Philippines withdrawal 2019

Enforceability is limited

61 arrest warrants

50% remain at large

Only 22 have ever stood trial

Costly and Slow

DW News 2016: 13 years, 1 billion dollars, 2 convictions: Is the ICC worth it?’

First conviction took 10 years

4 people have been convicted

ICJ Positives

Can resolve hostilities

El Salvador v Honduras (1992)

Settled 100 year dispute over land, sea, air borders

Puts states on global judgement/reputation on the line

Timor leste v Australia (2020)

Pressured to return stolen data

Compliance is generally achieved

Joan Donoghue (ICJ Judge) Recent studies show that the losing side accepts its rulings 75-80% of the time

ICJ Negatives

Reliant on States consent, enforceability relies on UNSC

Nicuaragua v United States (1986)

• USA didn’t show up to ICJ

• USA Veto UNSC enforcements

Ukraine v Russian Federation (2022)

→ Russia tried using genocide as justification

The Washington Post: UN Court orders Russia to halt its invasion of Ukraine, in a largely symbolic ruling

Processes are slow

The Gambia v Myanmar (2019)

Gambia states; Mass Murder, rape, destruction of community since 2016.

Arguments presented 2026 (10 years on)

ICRC Positives

Protective emblems help the ICRC to conduct its mandate

Misuse is an offence under s 15 Geneva Conventions Act 1957 (Cth)

The Digital Emblem Project 2025', 'Why we digitalised the Red Cross'

Non-political and impartial nature increases likelihood of being granted access to fulfil mandate

• Prosecutor v Simic (2006) upholds freedom from being compelled to testify - upholds neutrality

A recent UNSC Res has facilitated the ICRC's humanitarian work by exempting them from breaching sanctions

• UNSC Res 2664 (Dec 2022) exempted the ICRC’s humanitarian aid activities from sanctions regimes.

ICRC Negatives

As a non-legal measure, the Red Cross's mandate is limited, states are ultimately the key actors in world order

“Humanitarians can put a bandage on the patient. But it’s only States that can cure that patient.” – Finding hope amid the ruins - ICRC Director of Operations (2019)

Despite the protective symbols, Red Cross workers are being attacked

In 2025, 18 staff and volunteers of the ICRC were killed (“A grave betrayal of humanity": Abhorrent attacks on aid workers must stop - ICRC)

Sovereignty allows states to refuse access to Red Cross workers, impeding aid

ICRC 2016: Red Cross aid convoy denied entry to Syrian city of Darayya

“it's tragic that even the basics we were bringing today are being delayed unnecessarily”

Bail Positives

Bail laws aim to protect victims and society from harm, intimidation, safety, whilst maintaining suspect rights

s17 Bail Act (2013): “unacceptable risk test” Emphasises balancing act between bail concerns and bail conditions.

Art 14 ICCPR → presumption of innocence

Art 9 ICCPR Freedom from arbitrary detention

Ben Roberts Smith (April 2026):

• $250,000 surety

• Surrender passport

• One phone + laptop + no encrypted apps

Bail Reforms have sought to improve society’s protection against terrorism and domestic violence

Following Lindt cafe siege (2014), s22A introduced into Bail Act 2013 requiring ‘exceptional circumstances’ why they should be granted bail

Following murder of Molly Ticehurst by ex-partner

• Bail And Other Legislation Amendment (Domestic Violence) Act 2024 (NSW)

• DV offences added to list of ‘show cause’ offences

• Electric monitoring compulsory

Bail Negatives

‘Kneejerk’ reforms have prioritised society’s interests ahead of individuals’ rights, turning bail into punishment

Bail Act 2013 (NSW) faced criticism mounted for being “too lenient on suspects”

“The NSW Bail Act Changing Again?” (NSWCourts 2014)

2014 Bail Amendment Act

• 16b ‘Show Cause’ offences → reduced presumption of innocence to please concerns over community safety

Remand Rates are increasing

BOCSAR custody stats 2025:

• Remand made up 28% of custody population (2013)

• Remand made up 46% of custody population (2025)

Remand can be harmful by exposing suspects to a cycle of reoffending

Law Society 2024:

“Parliament is prepared to, in effect, sacrifice a cohort of young people to the long term criminogenic effects of incarceration”

Imprisonment Positives

Prisons meet the retribution purpose of punishment

R v Xie 2015 NSWSC

Imprisonment of five life sentences acts which were “heinous in the extreme” (Guardian 2017)

Incapacitates dangerous offenders, including after sentences (CDOs)

Division 105A Criminal Code Act 1995 → 3 year CDOs for high risk terrorist offenders

Abdul Nacer Benbrika → “Some offenders are too dangerous to be freed” (The Strategist 2023)

Penalty of last resort, upholding right to liberty

Article 9 ICCPR → No one should be subject to arbitrary detention → s5(1) Crimes (Sentencing Procedure) Act 1999

Imprisonment Negatives

Prisons are failing in their goal to rehabilitate

Full House: The growth of the inmate population in NSW (2015 NSW inspector of Custodial Services)

• 21/44 correctional centres operating over design capacity" → rehabilitation is compromised when over design capacity

• Prison job opportunities have decreased 10% → important part of rehabilitation

Prisons are not achieving a reduction in recidivism

BOCSAR Reoffending stats 2023

• 49% adults reoffend within 12 months

• 4,750 people

Prisons are resource inefficient

Insititute of Public Affairs 2025

• $436/day per prisoner

Australia’s prison dilemma, productivity commission 2021

“Prisons are expensive, costing Australian taxpayers more than $5 billion per year.”

Justice Reform Initiative: ‘Jailing is Failing’ 2026

“If we are serious about community safety, we must invest in what works”

Drug Court Positives

Aims to tackle the underlying causes of offending

s3 → Aims to reduce drug dependency and promote re-integration

Reduces recidivism

Judge Roger Dive at LSA Conference 2023

“Once you’ve done it this way you can’t go back… pointless to process people through without making any changes”

NDARC Impact of NSW Drug Court

• 30% lower risk of reoffending at 12 months

• 18% lower risk of reoffending at 24 months

Resource efficiency

2025 Drug Court Cost and Financial Information

→ 17% lower reoffending rate = long term savings

BOCSAR 2008, costs of NSW Drug Court

→ 287 offenders in prison = $18.134 million

→ 287 offenders in Drug Court = $16.376 million

Drug Court Negatives

Limitations on accessibility due to eligibility requirements

Reg 4 Drug Court Regulation 2020 (NSW)

→ Must reside in 32/128 local government areas

→ only 55% of population

Only 4 drug courts in NSW

ABC 2025: Inside the growing push for more drug courts in regional NSW

“Justice by postcode”

Consent Positives

New affirmative consent laws better reflect moral and ethical standards around sexual consent

Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)

→ Requires “communicative and affirmative consent”

→ Absence of yes does not = no

NSW Law Reform Commission report 148: 77.5% respondents believe not checking for consent = shouldn’t be allowed to argue they thought there was consent

New Jury directions address out-dated societal ‘rape myths’

Judge must read out s292 A-E

Broader range of forms of sexual assault, such as ‘stealthing’, have been explicitly criminalised

s61HI States stealthing negates consent

RMIT Uni 2022: 1000 person survey found 81% support criminalising stealthing

Daily Telegraph 2023: “Man who removed condom during sex marks state’s first stealthing conviction”

Consent Negatives

Consent law reform alone won’t address out-dated adversarial courtroom practices

Louise Mulligan ‘witness’: An investigation into the brutal cost of seeking justice (2020)

“The system is comprehensively stacked against them”

“Cross-examination can be belittling, and traumatising”

BOCSAR 2023: 84% of trials cross-examine about delayed complaints

Legislation must be coupled with education and awareness campaigns (social crime prevention strategies)

(Guardian 2021): Barriers to Justice: “we are still governed by the idea that women lie about SA”

→ Of the estimated 200,000 sexual assaults in Australia/year

• 12% report to police

• 5% make it to trial

• 1.5% result in a conviction

“Changing the law is one thing but at the end of the day it is about changing community attitudes” (Attorney General Mark Speakman)

Provocation Reform Positives

New law better reflects society’s moral and ethical standards towards violence and self-control

Crimes Amendment (Provocation) Act 2014 → reduces murder to manslaughter following R v Singh 2014 and Six years for killing sparks call for law review' (SMH 2012)

R v Turnbull 2016 NSWSC → Farmer Ian Turnbull got 35 years

Daily Telegraph 2014: Law passes reducing ability of defendants to claim they were provoked into murdering

“Our changes bring the law into line with community attitudes.”

New law better upholds equality and society’s moral and ethical acceptance of diverse sexualities removing ‘gay panic’ defence

(CEO of Equality Australia Anna Brown) “Our laws should condemn prejudice, not condone it”

Ian Hunter MLC after SA became the last Australian jurisdiction to abolish the Gay Panic defence in 2020: “The so-called gay panic defence… is in every way deeply discriminatory.”

Provocation Reform Negatives

New law makes it harder for victims of domestic violence who lash out after prolonged trauma/suffering

Requires proof of ‘serious indictable offence’ prior to killing

“This may negatively impact the victims it aims to protect" (SMH 2014: "How to end the war on women")

‘Gay panic’ defence abolition took too long

Took 23 years from R v Green HCA 1997 for SA to abolish

Equality Australia 2020: “long overdue reform”

NSW Reforms did not go far enough

Should:
Abolish the defence and instead deal with provocation during sentencing
Dr Kate Fitzgibbon: Homicide Law Reform in NSW’ (2017):

“NSW should abolish the defence and instead dealt with provocation during sentencing”

Replacing it with a sentencing guideline would allow NSW courts to better attend to the myriad of contexts which provoked lethal violence

DNA Evidence Positives

Powerful tool for helping police to investigate crime and missing persons cases

R v Xie 2017 NSWSC

ABC 2017: Robert Xie murder trial: the evidence that helped catch a killer:

“A tiny stain (stain 91)… could have been the difference between Xie being convicted and walking free.”

There are strict rules to protect individual rights around collection and storage of DNA Evidence

Article 17 ICCPR → Freedom from arbitrary interference with privacy

Crimes (Forensic Procedure) Act 2000 (NSW) Can be taken by:

• Informed consent

• Senior police officer

• Court order (magistrate)

DNA evidence is destroyed after 12 months (no charges/not guilty)

If DNA Evidence evidence is inadmissable

DNA Evidence Negatives

Can lead to miscarriages of justice

Secondary transfer →

Fitzgerald v The Queen 2014

The Traps of Relying only on DNA evidence (ABC Radio National)

“highlights the dangers of blind faith in DNA evidence” → ‘CSI effect’

Little opportunity for a convicted person to challenge their convictions

Guardian 2022: Folbigg pardon

“there is a need for an independent body to investigate possible miscarriages of justice”

Back Capture program is too extensive

(Part 7A of CFPA) → police can take samples from some former offenders

NSW Police take DNA from hundreds of ex-offenders to build crime-solving database (ABC 2014)

“the program was an attack on civil liberties”

Strip Searches Positives

Empowering police with Strip Searches allows for better detection of crime

s31-34 of Law Enforcement (Powers and Responsibilities) Act 2002

Redfern Legal Centre 2021/22: Strip Searches confiscated:

105 knives

138 items of stolen property

675 illegal drugs

Safeguards exist in LEPRA governing when + how SS’s are used

s31 LEPRA → Upholds Art 17 ICCPR (privacy while deprived of liberty) → ‘reasonable suspicion’

s32 LEPRA → Maintains preservation of dignity through search rules

Accountability measures exist for when strip search powers are misused

Attalla v NSW (2018) NSWDC → $112,000 damages paid

RLC 2022 Class Action → "gross failure" by police to follow guidelines

Strip Searches Negatives

Non-Compliance with safeguards is widespread

RLC 2025 Report: of over 80,000 strip searches 2014-2023,

85% found nothing

ABC 2020: NSW Police set “quota of 241,000 personal searches and strip searches”

Strip searches can cause trauma and risk safety

Inquest into the death of 6 patrons of NSW music festival (2019):

Fear of strip searches/being caught led to “panic ingestion”

Deputy coroner strongly recommended Strip Searches be amended and only used for the “most urgent cases”

Victim Impact Statements Positives

s28-30n Crimes (sentencing procedure) Act 1999 (NSW)

Helps Judges understand the severity of the offence

Helps achieve ‘retributive justice’ → key purpose of punishment (s3A)

R v Xie (2017) NSWSC → sole survivor and nephew provided VIS (family member victim impact statement) Bill 2014

“there are not enough words to describe the pain and suffering caused to me”

→ Xie handed “five life sentences for Lin family murders” (The Guardian 2017)

Gives victims a role in proceedings to express feelings and achieve therapeutic justice

Upholds right of victims to express their views:

art 6(b) Declaration of Basic Principles of Justice for Victims of Crime (1985)

(s 29(4)) → choice to submit VIS or not

Victim Impact Statements Negatives

VISs have impact on sentencing which impacts equal justice

SMH 2016: “Victims of crime should be equal in their human dignity”

→ Pressures to provide VIS in fear of lower punishment (VISs shouldn’t determine perceived severity of offence)

Legislation restricts what can go into VIS leading to cross-examination and frustration/distress

s30E (CSPA) → rules of evidence and admissability apply to VISs

SMH 2010: Per a suggestion by a defence lawyer, Justice Williams crossed out sections of VIS which limited ability to express impact: “We feel like we have been violated by the courts,”

Intensive Correction Orders Positives

Crimes (Sentencing Procedure) Amendment (sentencing options) Act 2017

Aim to address the failures of short-term prison sentences

Art 10 ICCPR → Prioritise rehabilitation (prisons failure)

Community safety is still a priority → long term safety via rehabilitation

s66 CSPA → Community safety is paramount consideration in decision

s67 CSPA → ICOs not available for a number of serious offences (including: manslaughter, murder)

Reduces Recidivism

2017 BOCSAR ICO Report: 11-31% lower reoffending likelihood compared to prison sentence up to 24 months

Intensive Correction Orders Negatives

ICOs lack accessibility for some offences

s67 CSPA 2017: → not available for manslaughter, so in:

R v White 2025 and R v Eckersley 2021: next best punishment is a CCO which has much less supervision

ICOs can risk community safety → supervision can fail

ABC 2022: Jamil Hopoate jailed for for trying to deliver eight kilograms of cocaine in Sydney:

received ICO for domestic violence in 2021

reoffended with large-scale cocaine supply in 2022, → ICO supervision failed to deter and prevent reoffending

Mental Health/Cognitive Impairment defence Positives

MHCIFPA (2020)

Law reforms improve access to justice

Old Law: established by M’Naghten’s Case (1843) → ‘genuine Insanity’

New Law: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

s36 → ‘fitness test’ → defendants can’t do trial unless they understand it

Upholds Art 14 ICCPR → Right to fair trial

s14 → allows diversion to treatment, stems over-representation and reduces reoffending by 12% (2019 Royal College of Psychiatrists)

Reforms better uphold the rights of victims

previously, victims had no official acknowledgement of act happening

new ‘special verdict’ of ‘act proven but not criminally responsible’ available to help achieve closure and grieve

R v Jawid 2022 NSWSC → Judge-alone trial ‘proven but not criminally responsible”

Mental Health/Cognitive Impairment defence Negatives

Possibility of indefinite detention remains, violating rights of disabled

Guardian 2022: “there are still over 1200 people in custody indefinitely who suffer cognitive impairment”

Art 9 ICCPR → Freedom from arbitrary detention NOT achieved

Limited access to mental health support resources fails to prevent violent crimes

4Corners 2020 ‘Please don’t judge’: “it took the murder of an innocent person… for the offender to be removed from the community and receive treatment”

Parole Positives

Aims to reintegrate offenders back into society safely through supervision and conditions

SPA must not release an offender unless it is “satisfied that it is in the interests of the safety of the community."

Robert Black Farmer refused Parole in 2026 for 2005 Lauren Huxley attack

Mohammed Skaf granted Parole (2021) as “further time in custody would not be useful in relation to his reintegration”

Lower reoffending than unsupervised release

BOCSAR 2022: of 50,000 prisoners on parole 2010-2019.

• 17.5% less likely to be convicted within a year

• 18.2% less likely to be imprisoned within a year

No body no parole' laws aim to help homicide victims' families grieve

SPA can not grant parole unless offender has cooperated to find remains (s135A Crimes (AS)) → ‘Lyn’s Law’ (Dawson)

Parole Negatives

Community safety can never be entirely guaranteed

R v Adrian Bayley (2013) → Bayley breached parole and killed Jill Meagher.

→ BOCSAR 2014 ‘Re-offending on parole’:

9,604 offenders 2010-2011:

• 28% reoffended

• 7% committed a violent reoffence

_{No body no parole' laws are unlikely to be meet their goals}

Only incentive for offenders who realistically get released, Dawson no-parole period = age 92

Since 2015, ‘No remains detected to date’ (SMH 2022: Experts question the utility of ‘no body no parole’ laws)

YJCs Positives

pt5 Young Offenders Act 1997

High participant completion rate

BOCSAR 2024: in 2023/24: 91.2% completion rate → 990 successfully completed

Reflects restorative justice principles → high participant satisfaction rate

BOCSAR 2013: Participant satisfaction

85% of victims and offenders reported being ‘satisfied’ or ‘highly satisfied’

Tailored outcome plan designed to promote accountability and restorative justice: → Apologised to shop owner

• R v SB 2019 → after 4 years of summary offences

→ since 2019 YJC has maintained full time work and stopped offending

Avoids unnecessary exposure to courts of youth detention

CROC Art 40: Promotes rehabilitation and avoid condemnation

YJCs Negatives

Minimal impact on reducing reoffending

BOCSAR 2012: effect of YJCs on reoffending:

64% of YJC reoffended vs 65% court reoffended

of 918 young people in each

Don Weatherburn (Director of BOCSAR) 2012: “we found no difference at all… they were equally likely to reoffend”

Access is limited as various offences are excluded

s8 YOA 1997: excludes indictable offences which can’t be dealt with summarily → deemed ‘too serious’

Law Society 2018 submission to the inquiry into the adequacy of Youth Diversionary Programs in NSW: “The general exclusion of all indictable offences from the YOA is inappropriate”

→ criticises blanket exclusion without looking at facts of case before deciding whether it can be dealt with summarily

Juries Positives

Jury Act 1977 NSW → upholds Art 14 ICCPR → impartiality

Juries represent a cross section of community values → impartial

s12 Jury Act 1977 NSW: Random selection

Cheattle v The Queen 1993 HCA

"essential feature…of the institution…is that the jury be a body of persons representative of the wider community”

Introduction of majority verdicts reduces hung juries and expense of re-trials

s55f Jury Amendment (verdicts) act 2006 → 11/1 or 10/1 verdicts

‘Majority jury verdicts' (Cowdery 2007): “eliminates the impact of ‘rogue jurors’ who are unreasonable”

→ supreme court trials cost $40,000/day to run

Judge instructions aim to prevent misconduct

Jury Act in 2004 introduced s68c: $5,500 fine and up to 2 years prison

Juries Negatives

Juror misconduct violates right to fair trial

Jury received 17 warnings yet misconduct still occurred (outside research) in R v Lehrmann 2022 ACT

s68c has never been enforced

Susceptible to bias from media interference

ABC 2017: Can jury trials still be fair in the age of social media: “running their own criminal investigations using the internet”

R v Dawson “Teacher’s pet” (2018) → switched to judge-alone trial which impacted ‘representation’

Not fully representative

NSWLRC 2007 (jury selection) → ATSI make up:

0.5% jurors but 3% population

R v Rolfe 2022 → “we thought we were coming to a neutral ground… we felt we were left out”