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law reform

the process of continually updating and changing the law so it remains relevant and effective.

changes in belief, values and attitudes (law reform)

if law is to remain relevant, it must be kept up with changes, community changes as knowledge increases and society becomes more educated and aware.

age of criminal responsibility was meant to change in 2025, but now will remain at 12 years after the last change from 10 - 12. this is because there was huge pressure by community to put accountability on teens who commit crimes.

changes in living conditions (law reform)

our laws need to continually reform to make sure they remain relevant and keep up with changes in living conditions. (COVID19)

social - population grows and changes, maintain basic standard of living

changes sin economic conditions - continually changing, in tech and globalisation create issues that need to be addressed, governments need to monitor and change laws that regulate buy, selling and production of goods and services.

changes in international conditions - circumstances or global events often influence law reform. global violence and terrorist attacks, international conflict are examples of influences. commonwealth goverment monitor both so it can alter law.

advances in technology (law refrom)

rapid advancement creates new challenges that require legal updates to address issues. cyber bullying, cyber crime, privacy invasion and noise pollution from drones are examples. laws must regulate new inventions and protect individuals from harm or exploitation.

a greater need for protection of the community (law reform)

is crucial to protect individuals and groups from various forms of harm, including physical, emotional and economic harm. vulnerable groups, such as children, workers, consumers, and those facing discrimination, require special legal protections. society evolves, new laws are needed to address emerging challenges and ensure the safety and wellbeing of all community.

criminal responsibility

petitions

a formal, written request to the parliament to take some action or implement law reform. theses are to introduce a new law, amend an existing law or take a particular course of action in relation to a policy matter or complaint.

strengths (petitions)

1) a direct way for individuals can make known to the parliament their desire for changes to the law

2) are relatively simple, easy and inexpensive way to express support for a change in a law. E-petitions are easier to set up, sign and monitor.

3) creating a petition and gathering signatures can generate public awareness of an issue and support for the desired legislative change

4) of not initially successful, its tabling can help gain attention of other members of parliament and the media, which can then generate further community support.

weaknesses (petitions)

1) privacy reasons some will be reluctant to put their name, address or email on a petition. Therefore, while they may support the change they may not be prepared to demonstrate that support by signing a petition.

2) to be presented parliament, petitions have to adhere to rules. (word limit or the petitions may be tabled)

3) parliament receive hundreds of [petitions each year and there is no guarantee or compulsion for the suggested law reform to be adopted.

4) many do not gain public and media attention after being tabled, especially if there is no other source of community pressure beyond the petition. This means valuable requests for law reform may be overlooked.

5) opposing petitions and multiple petitions on the same topic can also reduce the impact of a petition

are petitions effective?

The influence of a petition on law reform largely depends on the number of signatures it gathers, as a petition with widespread support is more likely to reflect the views of the community and gain attention from members of parliament. A petition with few signatures may struggle to generate interest, especially given the volume of petitions received by parliament annually. Additional factors include the prominence and passion of the MP presenting the petition and whether it is supported by a media campaign. Only e- petitions created on a parliamentary website can be tabled in parliament, limiting the effectiveness of other online petitions

demonstrations

is a gathering of people to protect or express their common concern or dissatisfaction with an exisiting law as a means of influencing law reform. can take different forms, but all aim to bring attention to an issue

strengths (demonstrations)

1) can be effective in gathering an awareness for a need to change the law

2) attract large numbers of participants that often attract media attention, which can generate further public support for the desired law reform. Import because in attempt to make laws that reflect majority, parliament are more likely to consider laws reform that has strong support within the community.

3) can gain support of members of parliament who want to ‘adopt a cause’ – particularly ones that might improve their public profile or image

4) can alert and educate members of the community about social, economic, political and legal injustice and the need for law change.

weaknesses (demonstration)

1) number of people that attend affect ability to influence. Few participants = less interest or awareness generated

2) demonstrations ability to influence law change may depend on the type or nature of the demonstration.

• Cause inconvenience, can become violent or lead to breaches of the law will be less effective in generating positive media coverage. • Non-violent that involve civil disobedience (human blockade) generate media coverage and persuade members of community to consider various injustices.

• Simple events may not generate ongoing support

3) may focus on an injustice or issue that cannot be changes by parliament (human rights issue in a Country over which Australia has no authority), may attract global attention but have no long-term influence

4) disorganised demonstrations, or demonstrations that have no clear call for action or messaging, may be less effective. Organised demonstrations, particularly those where there is a global movement or messaging, may have more of an impact

are demonstrations effective?

The effectiveness of demonstrations in influencing law reform depends on their ability to capture media and public attention. Successful demonstrations can raise awareness about injustices and build community support for law change, which may pressure members of parliament to respond. However, demonstrations that are violent, poorly attended, disorganised, or lack a clear message may be less effective and fail to generate the desired impact.

courts

individuals can be instrumental in bringing a change in the law by taking a matter to court. they may be involved in a dispute or even a criminal case, which highlights the need for a change in the law. individual may be proving their own claim, change an area of law, unclear area be clarified or identified.

strengths (courts)

1) individuals and groups can influence a change in the law by challenging the validity, meaning or fairness of an existing law in the courts. A judge’s decision can lead to a change in the law or clarify the meaning of the law.

2) challenging an existing law in a superior court can clarify a vague or unclear law. Even if the challenge is unsuccessful, it may gain significant media coverage

3) judges can rule legislation made outside the power of the parliament (ultra vires) is invalid

4) judges are politically independent and determine cases based on facts and merit rather than for electoral concerns

weaknesses (courts)

1) courts are limited in their ability to change the law because they can only do so when a case is brought before them and only in relation to the issues in the case. Relies on individuals being willing to mount a court challenge (have standing and willing to pursue costly and time-consuming stressful cases with no guarantee of success.

2) exception of high court disputes involving the interpretation of the constitution, a judge-made law ca be abrogated by parliament

3) judges must wait for a party to challenge the authority of parliament to legislate before they can make a ruling and declare legislation invalid. Must also have standing

4) judges are unelected and their decisions and comments may not necessarily represent community views and values.

are courts effective?

The ability to use the courts to influence law reform depends on whether someone is willing and able to challenge the law in court. Such a challenge can draw attention to legal issues or result in the law being declared void. However, this method can be costly, time-consuming, and offers no guarantee of success. Additionally, the requirement of standing limits who can pursue this approach to change the law.

media

the way information is communicated to the public, including print media, broadcast, and digital media, which includes media distributed through the internet and electronic devices and social media.

strengths (media)

1) media including digital platforms, can reach a vast audience quickly, making it effective tool for informing the public about social, political, and legal issues. 83% of aussies have social media

2) can shape public opinion by presenting information, commentary and investigative reports. This influence can drive public support for or against a legal reform

3) media can spotlight social injustices and legal issues, raising public awareness and generating interest in law reform. Documentaries and investigative journalism often highlight problems that may otherwise be overlooked.

4) media polls and data analytics help gauge public opinion, assisting governments and political parties in understanding community support for law reform. Guide legislative decisions.

weaknesses (media)

1) concentration of media ownership in aus, where a few corporations control a significant portion of media landscape and lead to biased reporting. Limit the diversity of viewpoints in ways that reflect the interests of media ownership.

2) digital platform, which are less regulated than traditional media, can be breeding ground for misinformation. False information can spread rapidly eroding public trust in reliable sources and leading to misguided calls for law reform based on incorrect or misleading information

3) social media algorithms can limit the diversity of news content users see by prioritizing information that aligns with their previous behaviour. This can create echo chambers, where users are only exposed to certain viewpoints, potentially limiting their awareness of broader issues and need for law reform

4) media outlets, especially those with concentrated ownership, may exhibit political bias, influencing public opinion and law reform debates in a way that reflects the interests of particular political groups rather than the broader community

Victorian law reform commission (VLRC)

is an independent body established by the vic parliament to assist it with law reform and research in the state. funded by parliament and they will set terms of reference but not controlled by the parliament

5 main roles (VLRC)

major inquiry - examine and report on matter referred to by the attorney general. make recommendation to the attorney general for law reform

community inquiry - examine a minor issue which the VLRC believes is of concern and make suggestions to the attorney general for law reform.

monitoring - after consultation with various groups and law refrom bodies, VLRC may make more suggestions to the AG for reform to areas where law reform would be desirable

education - educate the community of their role

process of VLRC

1. commission receives a reference and begins community law reform

2. staff begin research and consult

3. expert panel is formed

4. consultation and questioning are published and submissions are called for

5. consulting with affected parties and the community

6. submissions received and considered

7. commission writes report

8. report is delivered to victorian AG

9. report is tabled in parliament then published

10. government decides on response

11. parliament decides on legislation

strengths (VLRC)

• government refers and willing to enact change

• conduct through investigation

• act without parliament (minor issues) on community suggestions

• measure community views through consultations and submissions

• independent of parliament (objective and unbiased)

• recommendations have been adopted in 75% of cases

weaknesses (VLRC)

• government may not support VLRC recommendations. needs it support to pass bill. time consuming to pass in parliament

• investigate minor community issues, based on availability of resources

• time consuming and costly

• limited by terms of reference, even is VLRC considers areas may merit reform. Ag tells VLRC to investigate

• no obligation on government to enact reforms

• VLRC can only recommend changes to victorian parliament not commonwealth

stalking case (VLRC)

The Victorian Law Reform Commission (VLRC) was tasked with examining and improving the legal framework surrounding stalking in Victoria, focusing on enhancing victim safety and addressing the barriers to reporting. Stalking is defined as a criminal offense under section 21A of the Crimes Act 1958 (Vic), with offenders facing up to 10 years of imprisonment. The inquiry was prompted by the Attorney General due to the prevalence of stalking, particularly non-family violence stalking, which affects one in six women and one in fifteen men. The inquiry revealed a lack of public awareness about stalking as a crime and the difficulties victims face in seeking assistance through the criminal justice system. The VLRC process included 115 submissions, 36 consultations, and 254 survey responses to gather insights. The interim report, due by 31 December 2021, focused on enhancing police response, while the final report, due by 30 July 2022, addressed preventive measures. Key recommendations included improving victim reporting to police and the police's recording practices. However, as of the latest update, none of the recommendations have been implemented

parliamentary committee

Both the state and federal parliaments have committee which can investigate issues and report back to parliament about the need for law reform. They consist of government and non-government members of parliament. They investigate a specific issue, policy or proposed bill and report their findings and recommendations back to parliament.

committee process

hearings are usually public but on occasion can be private. Most committees have the power to compel certain individuals and experts to give evidence.

1. terms of reference and date for report due

2. community input - publicity in media and public hearings

3. recommendations - report and tabling

4. implementation - government response and changes to the law.

committee types

• standing committees - committees that exist for the life of parliament and are often renewed. They are ongoing that investigates and reports on issues. Exist in both houses of parliament

• select committees - appointed to investigate a particular issue as a need arises. Once the inquiry has been reported the committee disbands. Involves only one house.

• joint investigatory committees - ‘joint’ refers to the fact that they involve both houses. appointed each parliamentary term, they are usually standing committees.

• domestic committees - committees that specifically examine the operation and practices of parliament. involve members from one house of parliament

strengths (committee)

• small group working on an inquiry therefore more efficient than all of parliament working on researching an issue

• acts as a check on law making by parliament

• allows for in-depth investigation of a political, social and legal issue which will enable parliament to be well informed when discussing and supporting the passing of the bill

• community and expert input

• power to request individuals to appear at hearings to give evidence and answer questions regarding the inquiry

weaknesses (committee)

• lack of funding and time constraint committees cannot be used to examine all issues and concerns

• committees can only investigate the terms of reference, they cannot go beyond that

• no requirement for the government to implement recommendations

• committees are most effective when there is a bipartisan approach. party politics can be constraining force.

• parliamentarians may be reluctant to take on the word of a committee due to the time needed to the inquiry process

• members of public may not know that a public inquiry is taking place regarding a particular issue and have not given a submission

compare committee and VLRC

VLRC is independent from government whereas parliamentary committee is made up of government members and non-government members. VLRC has a attorney general that instructs VLRC to research an area and write recommendations for law reform, whereas prime minister or premier will determine the parliamentary committee and will be part of the committee.

racial vilification (committee)

The Victorian parliamentary standing committee conducted an inquiry into anti-vilification laws, focusing on acts that offend, insult, humiliate, or intimidate others based on specific attributes. This state-level inquiry, initiated in September 2019 by the legislative assembly, aimed to assess the effectiveness of current laws and explore whether they should be expanded to protect more groups. The committee received 73 public submissions, including contributions from Lifeline Australia, the Victorian Gay and Lesbian Rights Lobby, the Jewish Community Council of Victoria, and Gender Equity Victoria. The report, released in March 2021, made 36 recommendations, such as extending anti-vilification provisions to cover additional attributes like race, religion, gender, sexual orientation, and disability, and funding research into why people engage in vilification. The Victorian government responded in September 2021, showing support or support in principle for all but two recommendations, with plans for further community consultation. The inquiry's recommendations influenced legislation like the Summary Offences Amendment [Nazi Symbol Prohibition] Act 2022, reflecting the committee's role in updating and improving laws on vilification

recognise FN people (reasons for constitutional reform)

There is no mention of australia’s first nations people in the constitution, nor is there any recognition of the fact that first nations people have been living on the continent for at least 65000 years, long before European colonisation in the late 1700’s. This led to inconsistencies in the law across individual states.

there have been calls for the Australian Constitution to be amended to recognise first nations people. there have been two proposed changes.

to establish a first nations voice to parliament: would have been a body enshrined in the constitution to allow first nations people to provide advice to the Commonwealth parliament on polices or laws that impact directly on first nations people. the body would have been chosen by themselves, working alongside exisiting organisations and structures.

to honour and recognise first nations people in the constitution: in 1999 referendum, there was a proposed change to insert a ‘preamble’ to the constitution. this sought to honour ‘aboriginies and torres 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’ this referendum was not successful.

increase protection of rights (reasons for constitutional reform)

the five express rights impose limits or restrictions on what laws the commonwealth parliament can make. it is broadly accepted that the number that the number of rights protected by the australian constitution are therefore protected by statute law or common law, rather than by the australian constitution.

change commonwealths law-making powers (reasons for constitutional reform)

the commonwealth parliament has exclusive powers and concurrent powers, and the states have concurrent powers and residual powers. listed are examples of past referendums where the commonwealth sought to increase its power

1. 1911, commonwealth proposed to change the constitution to extend its power to control companies, labour and employment. the commonwealth argued these were national issues that should be regulated at a federal level. proposal was not passed, but an almost identical reform was put in 1913, but again did not pass.

2. 1919,, commonwealth sought to alter the constitution to extend its powers in relation to air navigation and aircraft. commercial did not exist at the time, high court held that parliament did not have the general power over aviation and so proposal was put to people, it did not pass.

3. 1946, a proposal to change constitution was put to give the commonwealth the power to legislate on a wide range of social services. a high court case found that the commonwealth did not have power to legislate in relation to unemployment benefits, medical and dental services, benefit for family and students, parental leave, but had already done so despite having power. proposal was successful

sought to increase law-making powers. there had been suggestions to change constitution to decree commonwealths law-making powers. previously this power has been seen as potentially allowing the commonwealth to make laws the negatively discriminate against certain races. if power were removed law making powers would be reduced or decreased.

reform australia’s political system (reasons for constitutional reform)

Final need is to reform our political system.

timing of federal elections: constitution only allows for maximum terms and the prime minister of the day can call elections whenever they choose prior to that maximum term. parliaments around the worlds have longer terms, 10% globally have three year terms. referendum in 1988 tried to change the constitution to increase term of house of representatives to four years and reduce term of senate from six to four. this failed. in 2004, a parliamentary committee recommended that federal term for house be extended for four. some argue that this would encourage the making of long term policy decisions and would enhance business confidence. save resources otherwise spent on number of elections, longer and fixed term may also stop elections being held at a time that is convenient for federal government.

allow for more people to be eligible to sit in parliament: at times there has been criticism that those who represent people do not reflect the broader composition of society. in 2017, high court had to determine whether some members of parliament were invalidy elected because of section 44. some members did not even know if they were technically incapable of sitting as a member of parliament. there has been calls to change the constitution to delete section 44 (i) or to amend it to clarify its effect. some have called for it to be clarified to require candidates to be aussie citizens, but allow parliament to legislate to determine disqualification where a person has foreign allegiance as result of their ancestry.

becoming a republic: calls to change political system to make australia a republic. mean to have an australian person elected as head of state instead of a British monarch. 1999, there was a proposal to make a republic. this failed to win majority support in any state. despite this, many aussies believe a modern australia should formally remove its ties to the monarch. as of 2023, a proposed referendum on a republic was being explored by federal government.

(process to change constitution) the parliament

the first house passes the bill and the other house votes too. if the bill is not passed in second house (achieving majority 51%), it can go through the houses again after 3 months. It can continue if it gets majority house, however if it is rejected again the governor general can submit the proposal change to eligible voters (aka the public). A bill will only pass if it gains absolute majority of both houses of parliament, where it will be given to voters after 2-6 months.

(process to change constitution) yes and no case

Those who are eligible to vote must participate in the referendum. because of this information is sent to every household before the referendum, it explains the proposed change and provides arguments for and against it. this is called yes and no cases.

(process to change constitution) process of double majority and the importance of achieving double majority

A double majority is a voting system that requires a national majority. meaning majority of people in states (51%) and majority of states (4/6), the territories are not counted in this but in the majority of people. Double majority is required for change to be made to the wording of the australian constitution at a referendum, allowing for an equal voice regardless of its size or population

(factor that affect success) bipartisan support

refers to approval by two or more political parties. usually means support from two major parties: Australian labour party and liberal party.
success rests on the opinion of the political party they support. if their party supports the change they will likely too. if there is bipartisan support the proposal will likely be passed. major party apposes change, voters will not be encouraged to support change as they look towards political parties for guidance on how to vote. likely to succeed as voters will see that both major political parties in agreance at both state and commonwealth.

(factor that affect success)do voters want change

if dependent the people or during the change they may be more willing to vote ‘YES’, whereas if it is owned and supported by the government the people will likely vote the same as their political party. support and ownership to change by the voters? voters driving the change then it will be successful. if government tun the public may be more cautious because of distrust and suspicion. also state government or political parties may be lacing doubt in the minds of the voters if change will increase powers to the commonwealth

(factor that affect success) nature of proposal

One thing that may affect the success of a referendum is whether the proposed change is straightforward and accessible or complex and difficult to understand. straight forward and easy to understand. easier to receive ‘YES’ vote. difficult for double majority if voters do not understand wording, or complexity. if the ‘NO’ party proposes a better change voters may choose that

(factor that affect success) education about proposal

rarely subject to mainstream analysing and general public has very little knowledge of the constitution and government/parliament structures. strong education campaign needed in the lead up to the referendum, straight forward and plain explanations so the voters understand the change and how it will impact law making and the right of the individual. lack of awareness of the constitution and its purpose in our law-making by a majority of voters. if booklet for campaign for yes, is confusing or complex then voters will likely vote no

1967 referendum

The 1967 referendum in Australia sought to amend the Constitution to remove discriminatory references to Aboriginal and Torres Strait Islander peoples. Two proposals were presented to the public: one to alter the composition of the House of Representatives, and another to change the wording related to Indigenous Australians in the Constitution. Specifically, the referendum proposed removing Section 127, which excluded Aboriginal people from being counted in the population, and amending Section 51(xxvi), which prevented the Commonwealth from making laws for Aboriginal people. The first proposal was rejected, but the second proposal received overwhelming support, with 90.77% of voters in favor. The successful change made Indigenous Australians a concurrent power under Commonwealth law, allowing the federal government to legislate on issues affecting them. This led to significant advancements, such as the Native Title Act 1993 following the Mabo case, and the establishment of bodies dedicated to addressing the welfare, rights, and anti-discrimination of First Nations people. The referendum marked a pivotal moment in closing the gap between Indigenous and non-Indigenous Australians

2023 referendum

In May 2022, Australian Prime Minister Anthony Albanese announced a referendum to establish an Aboriginal and Torres Strait Islander Voice to Parliament, aiming to recognize First Peoples in the Constitution. By November 2022, the National Party declared it would not support the proposal, indicating a lack of bipartisan support. Despite this, late 2022 polls suggested over 60% of Australians were in favor of the Voice. Early in 2023, amendments to the Voice were introduced to Parliament and passed by an absolute majority in both houses. The referendum proposal asked voters if they approved of altering the Constitution to recognize First Peoples by establishing a Voice to Parliament. However, the proposal faced criticism for still allowing Parliament to make laws affecting First Nations people based on advice from the Voice, with concerns that the scope of change was too limited. The referendum was ultimately rejected, with 60.06% of voters nationally voting 'NO.' The lack of bipartisan support contributed to the failure, despite strong support in Aboriginal communities. The 'YES' campaign struggled to clearly communicate the implications of the change, leading many to vote 'NO' out of caution. The outcome highlighted ongoing challenges in addressing the rights and recognition of First Nations people in Australia, with some viewing the rejection as influenced by unconscious or conscious racism.