Legal Last SAC

Reasons for law changes (5)

• Changing values and attitudes

• Technological Advances

• Changes in societal conditions

• Protection of the community

• Encouraging Changes in Behaviour

Pressures for change (Formal (4) and Informal (4))

Formal:

• Individuals - Private Member’s Bill

• Law Reform Commissions

• Parliamentary Committees

• Government/Cabinet

Informal Pressures:

• Petitions

• Taking/Appealing Court Cases

• Use of the Media

• Rallies/Demonstrations

Methods Used to Change the Law

Petitions

Demonstrations/Protests

Use of the courts

Petitions (Definition + Effectiveness)

A written request to parliament for action, usually accompanied by a collection of signatures to indicate the level of support for the specific request.

Petitions are generally only effective if they get a large amount of signatures. Successful petitions are often accompanied with supporting pressures such as media campaigns.

Petitions Strengths (3) + Weaknesses (3)

Strengths:

• A large amount of the public can express their concern to parliament

• The more signatures the greater the influence

• Allows citizens to have their views tabled in parliament

Weaknesses:

• Can be time-consuming and costly

• Even if tabled, parliament can ignore the petition

• Generally do not attract much media attention

Demonstrations (Definition + Effectiveness)

A public protest in which people take to the streets to show a support for a change in the law. The more people involved in a demonstration, the more likely it is to be successful. Demonstrations may be less effective if they become violent, people can be turned off demonstrations when they are inconvenienced by them.

Demonstrations Strengths (3) and weaknesses (4)

Strengths:

• Likely to gain media attention and gain awareness

• Communicate the views of a number of people

• Educate the community on an issue

Weaknesses:

• Can be time consuming and costly

• Rely on the support of a large number of people

• May inconvenience members of the public

• Parliament may dismiss they as a minority

Use of the courts (Definition + Effectiveness)

An individual can bring a case before a court to challenge a law that they feel needs to be changed. Judge’s decisions can change the law by changing precedent or making a statutory interpretation. However these laws can be overruled by parliament (unless the interpretation is of the constitution by the high court).

Courts are only effective at influencing law change if someone is willing and able to challenge the law. Legal cases, even if unsuccessful, may draw attention to push for law-change.

Using the courts to change laws Strengths (4) and weaknesses (4)

Strengths:

• Can enable vague laws to be clarified

• Court challenges can raise awareness for law reform, even if the case is not successful

• Judges decisions can encourage parliament to change the law

• Judges are independent and determine cases based on their merits

Weaknesses:

• Courts can only change law when a case comes before them

• Challenging a case can be expensive and time-consuming

• Most court decisions can be overridden by parliament

• Judges are not elected and may not represent the views and values of the community

Key roles of the media (3)

• Informing and raising awareness of issues

• Assessing levels of community support

• Influencing community opinion on a change in the law

Roles of the media - Informing and raising awareness of issues

Media can reach large amounts of the population. It can therefore by used to inform people about different social, political, and legal issues. Members of parliament or political parties can also use it to explain law-reform

Roles of the media - Assessing Levels of Community Support

Media polls or surveys can gauge the level of community support for law-reform.

Use of the media Strengths (4) and Weaknesses (3)

Strengths:

• Can reach a large audience

• Can be used to educate

• Members of parliament can gauge the views and attitudes of society

• Can present both sides of an issue

Weaknesses:

• May present biased reporting of an issue

• May highlight split views, which could work against law reform

• Lots of misinformation

What is the VLRC

The Victorian Law Reform Commission was established in order to examine areas of law reform as requested by Parliament that required a more in depth examination.

Role of the VLRC (5)

• To make law reform recommendations on matters referred to it by the Attorney-General

• Make recommendations on minor legal matters

• Suggest to the Attorney General that he/she refers a matter to the commission

• Educate the community on areas relevant to the commissions’s work

• Monitor and coordinate law-reform activity in Victoria

VLRC - Process

1. VLRC receives terms of reference from the attorney general

2. VLRC conducts an investigation, allowing for submissions from experts and the public

3. VLRC prepares a report and makes recommendations

4. VLRC’s report is tabled in parliament and considered. Some, all, or none of their ideas may be accepted

Processes of the VLRC

• Undertake initial research and consult experts

• Establish an expert panel or committee

• Publish a consultation paper

• Hold consultations and discussions with parties who are affected by the area under review

• Publish a final report and present this to the attorney general

Strengths and Weaknesses of VLRC

Strengths:

• Government is more likely to act on VLRC’s recommendations

• Can gauge public opinion on an issue of law-reform

• Law can be investigated comprehensively

Weaknesses:

• No obligation for parliament to follow VLRC’s recommendations

• Not elected by the people

• Can only investigate major issues referred to it by the government

• Investigations can be time-consuming and expensive

Royal Commission

Major public inquiries established by the government to investigate areas of public importance. Both the federal government and the states can establish royal commissions. Royal commissions will:

• Investigate complex issues

• Encourage Public Participation

• Have extensive powers of investigation

• Independent from the government

• Provide recommendations, but cannot prosecute or make binding decisions

Terms of reference

Royal commissions are issues by the King’s representative, who acts on the advice of the government. A royal commission is given clear terms of reference as to what it will look into as well as a specific time that the royal commission should report.

Processes of a royal commission

Royal commissions will complete the following things:

• Preparing issues papers, which outlines the matter of concerns and provides guidance for people wishing to make a submission

• Conduct consultation sessions to gain input and opinions from individuals and groups who have an interest in the area being investigated

• Hold public hearings to gain evidence relevant to the terms of reference. They can compel people to give evidence under oath and be subject to cross examination.

Once they have completed their investigation, the royal commission will prepare a report. This report will generally include recommendations for legal changes and government policy. They can also recommend to the DPP that a person is charged for unlawful conduct.

Ability of Royal commissions to influence law reform

• Governments often use the findings of royal commissions to justify changes in policy

• They also help raise community awareness that may encourage members of the community to take other actions to influence law-reform

• Because the government sets the terms of reference, they can limit this so as to not cover anything that is politically damaging

• The excessive questioning powers of a royal commission may lead to a negative view of the proceedings by the public

Strengths (5) and weaknesses (3) of Royal Commissions

Strengths:

• Governments are more likely to act on the recommendations of royal commissions

• Can measure community views

• Can investigate areas comprehensively

• Can compel people to give evidence

• Independent of parliament

Weaknesses:

• Can be used as a delaying tactic to prevent necessary legislation

• Parliament does not have to support the recommendation of royal commissions

• Time consuming and expensive

Example of Royal Commissions

Victoria: Mental Health Royal Commission (2018 - present)

Commonwealth: Banking Royal Commission (2017-2019)

VLRC Example - Stalking Laws (Key focus for report, process, parliamentary response)

Key Focus for the report:

• How laws could be strengthened to promote and enhance victim safety and wellbeing

• Barriers to reporting for victims of stalking

• Sentencing practices and sentencing options

Process:

• 115 submissions were received and 36 consultations were held with different groups

• 45 recommendations were made including that:

  • Victims can more easily obtain financial and practical support

  • Victorian government funds ongoing public education around stalking

  • Amendment of the crims act to modernise and simplify the language used for stalking in the act

  • Government better funds magistrates and court personnel so they can better respond to stalking cases

Parliamentary Response:

• Justice Legislation Amendment (Family Violence, Stalking and Other Matters) Act 2026 was passed that:

  • Clarified “course of conduct”

  • Extended to include stalking of animals

  • Let courts grant emergency protection orders faster, without waiting for someone to apply

  
  

Royal Commission Example - Disability royal commission (CWTH)

Investigated:

• Preventing and better protecting people with disabilities from experiencing violence, abuse, neglect, and exploitation

• Achieving best practice in reporting, investigating, and responding to violence, abuse, neglect, and exploitation of people with disability

• Promoting a more inclusive society that supports people with disability to be independent and live free from violence, abuse, neglect and exploitation.

Took 4 years.

Final report had 222 recommendations, including:

• Establishing a disability rights act

• A new national disability agreement

• Establish a national disability commission

• Provide equal access to mainstream health and education

Referendum Process

1. Proposed change must pass in parliament: The proposed change is put into a constitutional alteration bill which must then be passed through bout houses of parliament by a majority vote.

2. A referendum proposal must be put to a vote of the people within 2 to 6 months after the passage of the bill in parliament, where it has to achieve a double majority in order to be successful

*If a constitutional alteration bill passes one house, but not the other, it can be brought up again after 3 months. If the bill is then rejected by the other house again, the GG can choose to put the referendum forward to voters.

Success Rate of Referendums

8 out of 45 proposals have achieved the double majority provision.

5 other proposals achieved more than a 50% national vote, but didn’t meet the second aspect of a double majority

Reasons referendums have difficulty in succeeding (4)

• The need for bipartisan support

• Whether voters are seeking change

• The nature of the proposal

• Education about the proposal

Reasons referendums have difficulty in succeeding - Bipartisan Support

Generally, it is the party that is in government that is pushing for the referendum. If the opposition doesn’t agree with the goals of the referendum, they will lead a No campaign. Because many voters don’t understand the constitution, they will often follow the party they support

Reasons referendums have difficulty in succeeding - Whether Voters are Seeking Change

Referendums that come from political parties or government are “top-down.” Referendums that come from the community are “ground-up”

A referendum driven by community support would generally be more likely to succeed as it is seen as a natural development.

Reasons referendums have difficulty in succeeding - Nature of the Proposal

When proposed changes are straightforward, they are more likely to be successful. Complex changes may be difficult to understand. In that situation, confused voters are more likely to default to a no.

Reasons referendums have difficulty in succeeding - Education about the proposal

Setting out the details, explaining the proposal and the need for change is required for a successful referendum.

1999 Referendum

• Centred on turning Australia into a republic

• A constitutional convention was held in order to determine the form of the constitutional change. The model that was settled on was a President chosen by a 2/3rds vote of parliament with the same powers as the GG

• Whilst the majority of people supported a republic, many republicans would vote no as they wanted to have a direct say in who was chosen.

1967 Referendum Background Information

• When the constitution was written, powers to make laws on indigenous matters were left explicitly with the states. Nor were they allowed to be counted in the Census

• First Nations people led pressure and protest campaigns against this, which grew during the 1960s

• With rising support, the Holt government put forward the referendum proposal to alter the constitution to deal with these issues. The proposal passed unanimously through parliament

• Because no party opposed the referendum, there was no official “NO” case.

1967 Referendum Results

• Achieved support of 90.77% of voters

• Achieved a “yes” vote in all 6 states

How did the 1967 referendum change the constitution

• Changed section 51 to include people of any race, instead of excluding first nations people

• Removed section 127

How did the 1967 referendum change the division of power

• Aboriginal affairs became a concurrent power

• Increased the law-making power of the commonwealth

• Commonwealth could now spend money on aboriginal initiatives, rather than relying on the states

• Allowed for the development of further laws and initiatives related specifically to aboriginal people

Significance of the 1967 Referendum

• The new power of the Federal government allowed it to override racially discriminatory laws, such as those in Queensland which treated indigenous people differently

• It also allowed for the establishment of specific indigenous legislation, such as the native title act

• The ability to count indigenous people in the census also allowed for the federal government to more equitably distribute funds

• It was a big moment for indigenous rights and recognition in Australia

2023 Referendum

• A referendum to establish a First Nations voice to Parliament was put to the people in 2023

• Came from a long process of determining the best way of recognising indigenous people in the Australian constitution

• In 2016 and 2017, dialogues were heard across the country with indigenous peoples to determine the best form of recognition

• In 2017, a national constitution convention was held at Uluru in may. Delegates from all over Australia attended

• The convention drafted the Uluru statement, which called for the establishment of an indigenous Voice to Parliament

Reasons for a Voice to Parliament

• Provides a platform for First Nations voices to seek improvement in programs and outcomes for First Nations Peoples. Advice would be non-binding on Parliament

• Provide representation by having representatives elected from all across Australia

• Enshrining the voice would mean it could not be easily dissolved

• Allow for First Nations empowerment and self determination

Result of 2023 referendum

39.94% of people voted yes

All 6 states had a majority no vote

2023 referendum - Reasons for failure (4)

• Political division: The Labor party put forward the proposal, but the Liberal and National parties opposed

• Lack of apparent unity amongst indigenous people: Whilst the majority of indigenous people supported the referendum, high profile indigenous figures on the No campaign made people feel that the first Nations community was more split on the proposal than they actually were.

• Difficulty of understanding the proposal: There was a lack of clarity over the roles and powers of the First Nations voice.

• Disinformation: Numerous bad actors put out false information regarding the referendum

Reasons for constitutional change

• Recognising first nations people

• Increase protection of rights (expand the express rights in the constitution)

• Changing the Commonwealth’s law-making powers

• Reforming the political system