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Macquarie University *
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Course
2050
Subject
Law
Date
Feb 20, 2024
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7
Uploaded by EarlHawk809
Take Home Exam Laws 2050
Question 1- Martha Minow notes that religious leaders and psychologists acknowledge that
forgiveness is “a force for good”, but still, it remains “complicated” to incorporate
forgiveness into justice and law (2019, p. 34). What role does forgiveness play in restorative
justice? Illustrate your answer by referring to one example of a restorative justice process
explored in this unit.
[For the purposes of this question, you may consider “a restorative justice process” to
include examples of restorative justice processes, reintegrative shaming processes,
responsive regulation processes, and/or transitional justice processes studied in this unit.
For example, the Children’s Court, the Drug Court, Koori Courts, the South African TRC,
Domestic Violence RJ mediations, RJ used in the Land and Environment Court, and so
on].
According to Martha Minow (2019, p. 34), an intricate issue arises when incorporating
forgiveness—which is viewed as "a force for good" by psychologists and religious leaders—into
the legal system. Reconciliation between victims, criminals, and the larger community is
facilitated by forgiveness, which is a fundamental component of restorative justice. A great
example of a restorative justice process is the Truth and Reconciliation Commission (TRC) in
South Africa.
Following apartheid, the TRC offered a forum for speaking the truth, rapprochement, and
healing. Forgiveness went hand in hand with enabling victims to learn the truth about their loved
ones' fates and offenders to own their wrongdoings. Honest regret was shown by offenders who
asked the families of their victims for forgiveness after admitting their offenses (Fairbank, 2019).
Accepting responsibility and giving victims the confidence to speak were essential steps in the
forgiveness process. Ultimately, forgiveness was crucial to supporting societal reconciliation in
South Africa through the TRC (Fairbank, 2019).
Forgiveness and acknowledging guilt can have highly beneficial outcomes for both perpetrators
and victims. The transformative potential of forgiveness within the restorative justice model is
highlighted by the South African TRC, which serves as an example of how forgiveness can be a
powerful force for "healing, reconciliation" (Fairbank, 2019, p. 331). This possibility builds a
more peaceful and harmonious community by mending societal divisions.
It is crucial to recognize the difficulty of incorporating forgiveness into the legal system (Minow,
2020). Procedures involving restorative justice are a “Key role of remorse” (Lecture Wk.12 slide
21), such as the TRC in South Africa, are sometimes criticized for giving the impression that
perpetrators are exempt from punishment, which could put accountability and reconciliation at
odds. The idea of forgiveness, which is ingrained in moral and religious traditions, may conflict
with the judicial system's predominant punitive approach.
Clarifying
the
conceptual
complexities
surrounding
restorative
justice
is
necessary,
as
demonstrated by "Reconciliation, forgiveness, healing, and something more victim-focused
might be achieved" (Clamp, 2016, p. 25). Forgiveness plays a significant role in this endeavor.
"Without forgiveness, there is no future," (Clamp, 2016, p. 26), underscoring the importance of
forgiveness. Through candid confessions and open dialogue, the TRC urged victims and
offenders to face their past transgressions and work toward reconciliation (Clamp, 2016, p. 62).
Overall, The difficulty of incorporating forgiveness into the legal systems is highlighted by the
continuous discussion and investigation of balancing justice and forgiveness (Clamp, 2016).
Word count: 400
Question 2- The Honourable Justice Brian Preston argues that restorative justice applied
to environmental crimes “can be transformative for the victims, offender, community,
environment and justice system” (2011,p.136). Considering the events that occurred at
Juukan Gorge in May 2020 and their significance, devise an appropriate alternative justice
response to these events. You may propose either a restorative justice, reintegrative
shaming or responsive regulation response (or a response that includes a combination of
these approaches). Critically analyse whether or not your response would offer the kinds of
transformation that Justice Preston envisages.
In response to the significant events at Juukan Gorge in May 2020, where sacred Indigenous
cultural sites were destroyed for mining purposes, The response integrates elements of
restorative justice, reintegrative shaming, and responsive regulation to address the extensive
harm caused by the incident.
The strategy incorporates components of restorative justice, such as the creation of Truth and
Reconciliation Forums that facilitate open communication among all relevant parties, including
the mining firm, Indigenous people, environmental specialists, and regulatory authorities
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(Braithwaite, 2006). These forums offer a space for airing complaints, comprehending
viewpoints, and establishing expectations.
The mining firm must acknowledge and apologize for destroying cultural sites, which shows a
commitment to healing and transformation. This aligns with the ideas of restorative justice
(Menkel-Meadow, 2007) and highlights the value of admitting guilt and expressing regret as a
necessary step in the healing process.
Measures of restitution and compensation, such as monetary awards and contributions to
environmental rehabilitation, support the process of healing and trust-building. This restorative
strategy aims to improve communication and understanding among all parties involved while
addressing the direct harm brought about by the destruction of cultural sites.
Combining public shame with chances for the mining corporation to show that it is genuinely
committed to change and remediation is how reintegrative shaming is implemented (Braithwaite,
2006). "Transformational acts" are sparked by public humiliation. In order to effectively engage
affected Indigenous communities in long-term cultural preservation and environmental
stewardship, as well as for rapid remediation, the mining firm must work in concert with them.
Part of the reaction is to make the mining firm answerable to the public for its deeds while
providing a way out via proactive community involvement.
In order to prevent future incidents, corporate accountability, cultural heritage preservation, and
environmental protection, "regulatory frameworks" must be thoroughly evaluated and improved
(Cunneen et al., 2023, p. 43). This is where responsive regulation comes into play in conjunction
with the response. Strong oversight and monitoring systems guarantee that the business complies
with its responsibilities for cultural preservation, environmental restoration, and community
involvement (Stokkom, 2002).
One essential element that responsive regulation can do is stop similar occurrences from
happening again (Menkel-Meadow, 2007); it emphasizes systemic transformation by
strengthening regulatory frameworks and guaranteeing compliance. Encouraging
communication, responsibility, and cooperation establishes the framework for sustained change.
To fully align with Justice Preston's vision of “transformation”, ongoing efforts may be necessary
to ensure the lasting change.
Word Count: 400
Question 3- According to Rebecca Tiger, advocates of drug courts “want to see courts as
therapeutic and punitive vehicles for personal transformation” (2012, p.72). Does this
description accurately describe the NSW Drug Court? And does the mandate of using
therapeutic and punitive approaches correspond with the goals of either restorative justice,
reintegrative shaming or responsive regulation?
Rebecca Tiger's description of drug courts as both punitive and therapeutic vehicles for human
development (Tiger, 2012, p. 72) is reflected in the New South Wales (NSW) Drug Court. The
goal of this dual-purpose strategy is to address the intricate problem of drug misuse in the
criminal justice system.
Therapeutic jurisprudence
is "A legal theory that uses the law as a therapeutic tool" (Lecture
Wk.9 slide 6). The therapeutic component of the NSW Drug Court is based on the idea that
people with substance abuse issues can benefit from treatment and rehabilitation services.
Program participants have access to drug treatment. The goal is to assist people in overcoming
their addiction and any associated criminal activity.
Concurrently,
the
NSW
Drug
Court
introduces
a
punitive
element
into
its
framework,
encompassing mandatory drug testing, frequent court appearances, and possible repercussions
for participants who fail to comply with the program's guidelines. By encouraging participants to
take their rehabilitation seriously, these punitive tactics strengthen accountability within the
therapeutic process.
The objectives of restorative justice, reintegrative shaming, or responsive regulation dont align
with the applying therapeutic and punitive measures in drug courts. Drug courts combine
treatment and rehabilitation services with judicial supervision in order to address substance
misuse and related criminal behavior (Tiger, 2013, p. 6). Although drug courts have similar
goals, such as lowering criminal activity and encouraging personal growth, they do not support
direct communication and reconciliation—a crucial aspect of restorative justice (Braithwaite,
2011).
While expressing displeasure for their behavior, reintegrative shaming aims to reintegrate
offenders into society (Braithwaite, 2006). However, drug courts seek to address the shame
attached to drug misuse and criminal behavior by providing participants a chance to rehabilitate
and reintegrate. It works by motivating an individual's conscience and creating a "bond of respect
and approbation upon the offender's restoration." (Lecture Wk.5 slide 8). Rehabilitating and
transforming offenders is still the priority rather than stigmatizing them (Braithwaite, 2006).
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Responsive regulation aligns more with the drug court model since it adjusts its response
following each person's behavior and compliance (Braithwaite, 2011). Drug courts modify their
interventions and sanctions in response to participants' adherence to court orders and treatment
programs.
With the main objective of treating drug addiction and associated criminal behavior, the NSW
Drug Court represents the dual approach of being both therapeutic and punitive. Although it has
some similarities, it is not a direct implementation of these ideas (Braithwaite, 2006).
Word Count: 401
Total Word Count: 1201