unit 4 aos2- the people and reform

what are reasons for law reform?

• changes in beliefs, values and attitudes

• changes in living conditions

• advances in technology

• protection of the community

what does changes in beliefs, values and attitudes mean?

community values changing as society gets more educated and aware of issues

eg: laws introduced to ban smoking in enclosed public spaces due to the knowledge of second hand smoking

what does changing living conditions mean?

as population grows and changes, measures to uphold standard of living must also change

eg: social change in the obesity epidemic

Australian government has been called to introduce tax on sugary drinks to discourage consumption with more than 30 countries already implementing legislation to do so with research indicating it being successful

what does changing economic conditions mean?

changes in economic conditions create new issues

eg: working from home due to the pandemic which has prompted need for legislation

what does changes in international conditions mean?

changing political and global circumstances

eg: threat of terrorist attacks- counter terrorism legislation amendment act was passed to make it more difficult for individuals changes with terrorist related offences to be granted bail and parole

what do advances in technology mean?

technology improving and providing different opportunities means need for regulation or risk of harm/exploitation

eg: laws regarding cyber crime, bullying, stalking, scams

what does need for protection of the community mean?

groups may need more protection due to change in society/circumstances or gain certain needs and rights which need protection

eg: Crimes Legislation Amendment Act 2022 which was made in response to the man who recorded 4 police officers who died at the scene of a vehicle collision due to lack of legislation created and only common law that had no set minimum penalty- created maximum penalty and clarified the law for protection of community

what is a petition?

a formal, written request to government to take action or implement law reform

what are the requirements a petition must meet?

• addressed to the house in which it is presented

• clear statement of the request for action

• name, address and signation of 1+ who supports need

• legible and not contain offensive language

• be original

what is an example of a petition?

Brandan Fevola and Fifi from the Fifi, Fev and Nick Fox show created a petition demanding action on repeat youth offenders with more than 115,000 disnatures

Premier Jacinta Allen addressed on the show how the current bail system has failed community expectations, announcing law reform on bail laws as a result

what makes a petition effective?

• simple, easy and inexpensive to show desire for law reform

• online petitions are particularly easy and allow access for members of the public to submit and sign petitions

• members of parliament are more likely to consider a petition for law reform that has many signatures for personal benefit

• creating a petition can generate public awareness and support for legislative change

• when a petition is given to a member of parliament they have to present the petition in parliament

what makes a petition ineffective?

• some people are reluctant to place their name, address or email address on a petition

• some people may sign a paper petition more than once and compromise integrity of petition

• influence of petition depends on who tables petition in parliament and their influence

• parliaments receive a lot of petitions and there is no guarantee for law reform to be adopted

• many petitions do not gain public or media attention

what are demonstrations?

gathering of people to protest or express common concern or dissatisfaction with existing law to influence law reform

example of ineffective demonstration?

the climate protests in Melbourne which held up traffic and created a disturbance and negative association with the cause

what makes demonstrations effective?

• large number of participants at demonstrations can generate free positive media attention

• parliamentarians may want to adopt the cause in order to improve public profile or image with causes that have large support

• creates social awareness to create change over time

• demonstrations focus on something directly changed

what makes demonstrations ineffective?

• cause public inconvenience or become violent and breach the law, reducing credibility of the demonstration

• difficult and time consuming organisation and attendance can be affected by factors like the location and weather

• single events that may not generate ongoing, continous support after demonstration

• when a demonstration is about something that can’t be changed

how can courts influence law reform?

through cases presented to them but can be limited due to need for money, time and legal standing

what does media refer to?

• print media like newspaper

• broadcast media like TC

• digital media through internet and electronic devices like social media

what is the role of media in law reform?

• inform and raise awareness

• assess levels of community support

• influence community opinion on change in law

what does inform and raise awareness mean?

provide platform for parliament, government and political parties to explain to the community, the need for law reform

eg: 83% of Australian population have active social media accounts and 97% of population read form of newspaper (digital/print) every week

what does assess levels of community support mean?

• media polls or surveys can gauge what reader, viewers and listeners think about a particular issue

• data analytics such as tools to track online behaviour

• monitoring ‘‘letters to the editor’’ or comments

• measuring likes, shares, follows, retweets and quotes on media outlets

eg: Ipos issues monitor conducted in december 2022 showed that cost of living was greatest issue of concern

what does influence community opinion mean?

• radio broadcasters can influence community through having large amount of listeners

• media can investigate local, national and global events and circumstances

eg: Documentary Australia supporting filmmakers and assisting in production of 600 documentaries since 2008- ‘‘Blue’’ seen by approx 3 million people and highlighted environement laws and need to manage marina resources

what are limitations of the media?

• media concentration- too much ownership and influence

eg: News corp and Nine own approx 82% of Australia’s print media

• misinformation- online environment is not regulated in same way as traditional media and anyone can share news causing distrust in government and orgs

eg: COVID 19 misinformation about pandemic and how to manage risks

• use of algorithms

influence what people read, and what information they receive causing lack of education due to only being presented other information

what is the role of the VLRC?

to assist the government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change in Victorian laws through monitoring law reform activity and educating public of any areas of the law relevant to references/investigations

what do VLRC do in major inquiries?

examine and report on any proposal/matter given by the Victorian Attorney general and make recommendations to the attorney general for law reform

• conducting research

• consulting with the community

• reporting on law reform projects

what do the VLRC do in community inquiries?

investigate any minor legal issues that the VLRC believes is of general concern within the community independently without reference from Attorney General

Must be reported back to Attorney General with suggestions for law reform but the inquiry can’t consume too many resources of the VLRC

what is the process of a VLRC inquiry

• attorney general provides a terms of reference

• initial research and consult with experts

• publish a consultation paper to community explaining why VLRC is investigating an issue and provides suggestions for law reform

• consultations and submissions from parties affected by the area under review

• publish final report with recommendations for law reform

• present the report to attorney general who must table the report within 14 sitting days to parliament

what is a terms of reference?

sets out the specific scope and purpose of the inquiry and date which the final report must be completed (outlines what VLRC is able to investigate)

what are the strengths of the VLRC’S ability to influence law reform?

• government more likely to act on VLRC’s report as they sought VLRC

• VLRC can measure community values on areas of investigation, increasing likelyhood of government implementing recommendations in order to retain voter support

• VLRC is independent

• VLRC can make recommendations on minor legal issues without reference eg: review in 2001 on bail= changes to Bail Act 1977 (VIC)

• VLRC is very influential (70% success rate of all/some of recommendations being adopted)

what are weaknesses of the ability of the VLRC to influence law reform?

• VLRC can only investigate issues referred to it by government and community inquiries that dont use too many resources which are further limited to terms of reference

• no obligation of parliament to adopt recommendations made- may need crossbench to pass law reform even if government approves

• VLRC investigations are time consuming and costly (12-24 months)

• VLRC is limited by resource

• VLRC can only recommend changes to Victorian law not Commonwealth law

VLRC stalking inquiry

reasons for stalking inquiry

• prevalence of non family violence stalking (affected 1/6 women and 1/15 men)

• intimidating and frightening nature of stalking

• lack of community awareness of stalking being a crime

• difficulty with seeking legal assistance

inquiry process

• 115 submissions from interested individuals, groups and orgs such as vic police, vic pride lobby

• 36 consultations with organisations that have expertise and experience in dealing with stalking including childrens, magistrates and county court, sexual assault service network

• small group meetings and round table discussion from specific groups of people who have been affected by and continue to be affected by stalking

• 254 responses to online survey from members of the public about their experiences of stalking

• submissions and consultations highlighted the mental harm and trauma caused and need for victims to be able to get practical, timely and ongoing support

recommendations made (interim report- in the middle of inquiry investigation)

• make easier for victims to report stalking to vic police at earliest opportunity

• improving how vic police records incidents and reports of stalking made by victims (do it on a central info management system)

• requirement of vic police to refer to complex stalking cases to specialist police and victims to appropriate external services for support and assistance

recommendations made (final report- end of inquiry investigation) had 45 recommendations including:

• Crimes act 1958 be amended to clarify the stalking offence so that it is easier for people to understand apply (moderrnise and simplify language used in act)

• victims are able to easily obtain financial and practical support to improve their ability to report stalking and access support services eg: tech to prevent cyberstalking and independent expert advocates to support them through criminal process

what is a parliamentary committee?

a group of government and non government members of parliament who are given the responsibility of investigating a specific issue, policy or bill and reporting their recommendations back to the entire parliament

processes used by parliamentary committees

• receives terms of reference

• publisises terms of reference and seeks interest via written submissions

• undertakes public/private hearings- invites a range of people to provide input and can ask for specific people to participate (if they refuse, they can receive a formal reprimand/penalty) , ask for individuals/groups to give evidence relating to matter, answer specific questions and explain actions

• prepare written report (usually all written submissions + hearings are published in Hansard and made public on parliament’s website)

what are types of parliamentary committees?

• standing committee- selected for each term of parliament, established after each election which can include members of both houses

• select committee- parliament committee for a specific issue that when completes inquiry is then disbanded

• joint investigatory committee- made from members of parliament from each house

• domestic committee- examines issues regarding the operation/practises of parliament

what are the strengths and weaknesses of the ability of parliamentary committees to influence law reform?

strengths

• can explore range of issues and report back to parliament about need for law reform

• power to request specific people attend hearings to give evidence and answer questions= extensive and valuable info

• allow members of parliament to be involved and gain knowledge, expertise and understanding

• allows members of the community to have input in issues and have views considered

• final reports allow parliament to be more informed before deciding to support a bill

weaknesses

• limited resources mean a committee cannot examine all issues and concerns

• can only examine issues within terms of reference

• committee investigations can be time consuming and costly

• large number of committees and time commitment can deter parliamentarians from sitting on committees

• members of public may not be aware of committee inquiry

• no obligation on parliament to support law reform suggested by committees

inquiry into online gambling by parliamentary committee?

House of Representatives Standing Committee on Social Policy and Legal Affairs was asked by House of Representatives to conduct inquiry into online gambling

inquiry process

• consultation process so that interested individuals and organisations can share experiences of harm caused by online gambling from which 161 written submissions were received from interested individuals and groups like Australian Medical Association, AFL and sportsbet

• 13 days of public hearings which provided opportunity to particularly question Alliance for Gambling Reform for their recommendations like their recommendation to ban gambling ads to broadcast media and introduce a national body to regulate gambling

recommendations made

online gambling was noted as being an especially risky form of gambling as it is easily accessible and therefore 31 recommendations were made to better regulate online gambling, ads and reduce its harm

• government banning all forms of online gambling ads over a 3 year period

• establish online gambling public education program

result

• increased protections like intro of national restrictions on sports betting on tv in 2017 and education programs

• banning all forms of online gambling ads over a three year period and establishing an online gambling education program

• however online gambling is broad and is still ongoing challenge due to accessibility and addictive nature

what are reasons for constitutional law reform?

• recognise first nations people

• increase the protection of rights

• change the commonwealth’s law making powers

• reform australia’s political system

what does recognise first nations people mean?

• no mention of first nations people in the constitution/recognition first nations people have lived here for at least 65,000 years

what constitutional law reform has been attempted to recognise first nations people?

• 2023 First Nations voice to parliament- would allow first nations people to provide advice to parliament on laws/policies that directly impact first nations people

• 1999 amendment proposal to honour and recognise first nations people in the constitution

‘‘aborigines and tores strait islanders, the nations first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’’

what does increased protection of rights mean?

express rights are limited in scope and there are only 4 express rights so there is a need for a broadening of existing rights

eg: right to a trial by jury for commonwealth indictable offences

what does change the commonwealth’s law making powers mean?

commonwealth has attempted through referendums to change the constitution to provide it with more powers

eg: 1946- allow the commonwealth the power to legislate a range of social services such as unemployment benefits, medical/dental and parental leave- this was successful

what does reform australia’s political system mean?

suggestions include:

• change timing of federal elections

constitution gives house of representatives a max term of 3 years but this means that the prime minister can call an election before 3 years at any time they want

eg: 1988 refernendum to increase term in parliament- failed

• allow more people to be members of parliament/diversity

section 44(i) prevents dual citizens from being members of parliament

• change australia to become a republic

an australian as head of state not the king

1999 referendum to do so failed

where is the requirement for and process of a referendum listed?

in section 128

the process of a referendum is that it must pass:

• parliament

• people

• governer general

what is the process of a referendum?

• bill is proposed to parliament which must be passed by absolute majority of both houses

• proposal then has to be put to the Australian people between 2-6 months

• double majority must be met

• governor general provides royal assent

how many referendums have been succesful?

8/45

what are factors that affect the success of a referendum?

• bipartisan support for the proposal

• support from the community for change

• nature of the proposal

• education about the proposal

what does bipartisan support mean?

approval by two+ major political parties

this is important as if they don’t agree, they can lead the ‘‘no campaign’’ and most voters look to politicians for guidance

eg: 1967 referendum- bipartisan support for counting indigenous people in the referendum- successful

2023 referendum- lack of bipartisan support- unsuccessful

what does support from the community for change mean?

• people driving/campaigning for a cause

‘‘people’s ownership’’- if voters are driving the change, they are more willing to vote yes

eg: 1967 referendum was driven by Aboriginal activists and supporters

what does the nature of the proposal mean?

whether the proposal is straightforward or complex

what does education about the proposal mean?

• strong but simple message needs to be presented to voters and reasons for change are needed

eg: 1999 republic referendum- booklets were given to voters which presented only one proposed model which wass that the parliament would vote the president

this was unclear and not simple and many australians wanted to directly elect a president

what is the significance of the 1967 referendum about first nations people

reasons for the referendum:

• constitution denied the parliament ability to make laws for first nations people which people felt was discriminatory and hard for parliament to implement government policy

• parliament could make laws that directly affects or benefited first nations community

process of the referendum:

• bipartisan support

• driven by activists and campaigners (community support)

• no ‘‘no case’’

• nature of proposal was simple/not overly complex: ‘‘do this so that Aboriginals are to be counted in reckoning the population’’

• double majority

why was it significant?

• allowed commonwealth the power to legislate in areas it previously couldt (area of residual power became concurrent)

• allow parliament to become more involved with first nations people and their needs

• turning point for widespread desire for first nation equality such as the initiation of the Mabo case with native title given

• allowed government to create legislation that eliminated Indigenous rights- exclusion of first nations people from protection in the Racial Discrimnation Act 1975

• some felt that the referndum didnt change any part of daily life with discrimination still present

• inclusion of first nations people in the cencus

what is the significance of the 2023 referendum about first nations people?

reasons for the referendum:

• National consitutional convention held in 2017 with an Uluru statement from the heart declared with a desire for voice to parliament

• Treaty between first nations and non indigenous people was included in Uluru statement from the heart

• Voice to parliament was passed by absolute majority

  Process of the referendum:

• nature of the proposal was complex with the specific details to be decided after the referendum including compisition, powers, functions ect

• lack of bipartisan support (with Liberal and Nationals party leading no case alongside Lidia Thorpe who resigned from Greens to campaign against the voice

• double majority was not met (40% nationally voted yes only and no states got majority)

  significance of the referendum:

• wording of the constitution did not change and showed how vital bipartisan support is as all 8 successful referendums had bipartisan support

• even though it failed, there was broad support for constitutional recognition

• showed how nature of proposal impacted no vote with most australians confused on what would happen