Choices in Law

Hi all, just posting up some relevant points as to Choices from this week's tutes. Take note of the different guidelines/rules/regulations/laws applicable to each gatekeeper in the CJS AND reflect on whether the use of discretion has been exercised EQUALLY...

1.Discretion may be defined as the ability to make a decision or determination with a greater degree of freedom or choice. ‘Absolute’ or ‘Unfettered’ discretion leads to a situation where an individual can exercise discretion without being guided by eternal parameters. While most discretion in the criminal justice system is neither ‘absolute’ or ‘unfettered’ (as decision-makers have parameters and guidelines they act within) we can debate whether these are at times exploited or abused for certain ends. For example, there is a disproportionate amount of indigenous Australians facing charges for ‘offensive language’ offences.

At first blush we mentioned words and phrases  like 'flexibility', 'jurisdiction', ‘power’ ,'not limited', ‘subjectivity’, 'extension of ordinary powers to decide', 'leniency', 'harsher punishments', 'when one is a gate-keeper', ‘potential for corruption’, ‘abuse of power’, ‘fairer decisions based on the circumstances’, ‘lack of consistency’, ‘more resource efficient’, ‘alternatives to traditional punishment’,etc.

2. Whenever you see the term ‘may’ used in statutory language, it denotes discretion as the person relevant to the operation of that section has been given the choice to act or not act. In contrast, if the term ‘must’ or ‘shall’ is used in statute it does not allow for discretion.

3) We identified a number of parties who have some form of discretion in the Criminal Justice System (CJS). 

Police

(a) We found that the police are able to exercise discretion, eg. with respect to the decision to arrest or not arrest or charge with an offence and be taken into custody/ provide a caution or warning/ give an on-the-spot fine. 

(b) We acknowledged that police discretion can lead to...