U4 - AOS2 - The people and reform

Law reform

The amendment, progression or modernisation of law by aligning it with societal attitudes, removing defective elements and improving its effectiveness

Reason for law reform - Shift in community values

shared beleifs of the local, state and national communities are always changing and laws must adapt to suit these beliefs so that citizens are more likely to respect and obey the law.

• Parliament can do this by observing opinion polls,major events such as demonstrations or hosting consultations with the community

Advances in technology

Tech is becoming more widespread and essential everyday

• increased cyberstalking and online scams

• Affects the language used in legislation

• EG. In 2022 the Commonwealth Parliament passed the Corporations Amendment (meetings and documents) Act 2022 (cth) allowing companies to use technology to execute documents instead of singing in person – introduced in covid 19

Changes in economic conditions

Due to the cyclical nature of Australia’s economy, legislation should be created or amended throughout stages of its cycle

• Recession periods (period of significant decline in economic activity)

• Unusual economic events such as global supply shocks or pandemics

Protection of society

our society is compromised of different groups and communities who may be vulnerable to harm therefore laws must be changed when it is clear that existing legislation does not adequately protect these groups.

EG. In 2020 the Sentencing Act 1991 (Vic) was amended by the Sentencing Amendment (emergency worker harm) Act 2020 (Vic) to protect emergency workers from harm when an offender recklessly or intentionally injures them on duty

Improving the legal system

aims to improve access to justice

EG

• Solicitors charge hundreds of dollars ($500 per hour for their time) - leaving parties who may not be able to afford such fees to rely on self representation

• To rectify these inequalities law reform has occured to enable people to have access to legal information and advice

Petitions

a formal document addressed to the government that is signed by individuals who are demanding action or legislative reform

• can be made online as an e-petition which is lodged on the Victorian and Commonwealth parliamentary websites or to be presented to parliamentarians via hardcopies

• the relevant minister must action the requests of the petition

Advantages

• Petitions are convenient and a free method of collating support for action – particularly e-petitions

• The relevant minister is required to respond to all e-petitions in the petition report which is tabled every few weeks in parliament

• Petitions with a large number of signatures can successfully raise awareness about an issue within the media even if legislative change is not actioned

Disadvantages

• Parliament is unlikely to implement law reform if a petition does not have many signatures or community support

• It is ultimately up to the relevant minister to determine if the demands of a petition will be actioned on

• Petitions generally need to be about legislative issues that are on the current agenda for parliament to pay sufficient attentionto the petitions demand

2022 Raise the Age petition — facts

• organised by the Smart Justice for Young People coalition as part of the national #RaiseTheAge campaign

• presented to the Victorian Parliament on 16 August 2022.

• To raise Victoria's minimum age of criminal responsibility from 10 to 14 years.

• 65,799 Victorians signed the petition. 

• Supporters argued that children under 14 lack the maturity to be held criminally responsible contributing to further offending and concerns about the disproportionate impact on Aboriginal children. 

2022 Raise the Age petition — Outcome

• Victoria did not immediately raise the age to 14.

• Contributed to continued political pressure and debate.

• in Spetember 2025 Victoria eventually legislated to raise the age from 10 to 12, rather than 14.

Demonstration

a public protest to a law or action undertaken by a large group of people

• Must remain persistent and have momentum or legislative reform may not occur and the passion for an issue may fade

Advantages

• Due to disruptive nature such as blocking major intersections demands are likely to be met swiftly

• A large number of people can be good to agin publicity

• Given the representative nature of parliament parliamentarians should seek gto respond to demonstrations as teir constituents are clearly communicating their desire for chage

Disadvantages

• if it does not remain ersistent and have momentum legislative reform may not occur and the passion for an issue may fade

• The disruptions caused can result in negative media attention – particularly if the issue is considered extreme by the media and is against politicians interests

• Demonstrations are difficult to organise and are time consuming as they require a large mass of people to be in the same place at the same time

2022 Change the Date campaign - facts

• campaigns for Australia Day to be moved from 26 January to another date that can be celebrated by all Australians.

• This date marks the arrival of the First Fleet which began British colonisation and for First nations it represents invasion, dispossession and the beginning of colonisation. 

• survey of about 65,000 people, with 60% supporting a date change. 

2022 Change the Date campaign - Outcome

Australia Day remains on 26 January nationally.

• Increased awareness of the significance of 26 January to First Nations Australians.

• Some councils and organisations have either stopped or moved celebrations away from 26 January.

• However, there is still substantial opposition to changing the date - a 2025 Roy Morgan poll found 58% supported keeping the date, while 41% supported moving it. 

The use of the courts

Individuals and groups with standing can influence law reform by bringing their case to court as this may lead to the establishment of new precedent

however if a party is unable to demonstrate they are sufficiently impacted by the law and issues of the case they will not have standing – unable to influence law reform

• attention can be drawn to the issue – class actions

• attention to an unsuccessful outcome – may gathering community support for a particular issue or law reform

• through parliamentary supremacy common law may be confirmed through codification or overruled through abrogation limiting parties ability to influence law reform

Advantages

• the courts may establish a new precedent when a case is brought before them

• parliament may codify common law principles into statutory law

• even if a matter is unsuccessful in court attention may be garnered that can prompt legislative change

Disadvantages

• individuals or groups pursuing litigation must hold sufficient standing while establishing enough evidence to bring the case to court but also have an outcome in their favour

• supremacy of parliament allows it to abrogate any common law precedent by the courts

• persuing litigation is expensive and time consuming so the average person may be deferred form perusing an issue through the courts

Mabo v Queensland (1992) - Facts

• In 1982 the Meriam men led by Eddie Mabo lodged a case against the Queensland Government and the Commonwealth of Australia in the High court to determine the legal rights of the First nations Meriam people

Mabo v Queensland (1992) - Outcome:

• On June 3 1992 the high court overturned the legal principle that Australia was am empty land belonging to no one (terra nullius) before the 1700s British colonisation

• they set precedent allowing First nations peoples to claim native title over their land

The role of the media in law reform

to inform and educate people about current contentious political and legal issues as well as debates in the public realm

• Those on one side of a contentious debate may attempt to influence law reform through the media as community values can be shifted when people are educated about certain issues

• the media generates public pressure – compelling the government to act in compliance with demands

the role of traditional media - Inform and raise awareness

• media can inform people about social, political and legal issues and injustices and need for law reform

• provide a platform for parliament, the government and political parties to explain and disseminate to the community the need for law reform or political agenda

• resources media possesses are informative and allow for deep and large scale investigation

 

the role of traditional media - Access levels of community support

• media can assist parliament, government and the political parties or even voters themselves determine level of community support

• occurs via media polls (surveys) which are used to gauge what readers, viewers and listeners think about a social, political or legal issue

• poll results published in media and commentary provided about the results

the role of traditional media - Influence community opinion

• Through the high profile of media organisations and mass listener and support the media can influence community opinions particularly when supporters only view one type of media

• media can investigate local national or global events

• investigations inform and generate interest and influence government to take action

 

Four corners

• In 2016 Four corners broadcast “Australia’s shame” – focused on the treatment of children in juvenile detention centres in the Northern Territory

• The Done Dale Juvenile Detention Centre – minors were handcuffed to chairs and held in solitary confinement where tear gas was used to subdue the inmates

• This prompted the PM to call for a royal commission

Advantages

• The government may be fearful of negative representation – likely to reform the law following an in depth investigation exposing poor practice in certain areas

• Traditional media outlets have the finances and political connections to investigate and report contentious issues – people become more informed

• Traditional media oitlets remain accessible such as newspaper to all generations in Australia – particularly to older generations who do not use social media – ensures everyone makes informed decision.

Disadvantages

• News outlets may have biases depending on their own ownership – causing them to disseminate misleading information to the public – limiting the ability for people to remain informed (In Australia there is a limited number of newspaper companies – able to influence large portions of the country)

• Traditional media may sensationalise certain events in order to gain attention – oversimplification of news may lead to the spread of misinformation as people may not bother to read beyond the eye catching title – reducing level of meaningful influence

• Newspapers carry a cost meaning not everyone will be able to purchase them or be incline to purchase then – young people (rly on social media

Role of social media - Inform and raise awareness

• media can inform people about social, political and legal issues and injustices and need for reform to resolve issues

• provide a platform for parliament and the government and political parties to explain and disseminate to the community the need for law reform or political agenda

• political parties used social media to communicate information with little to no restriction or censorship

• events are held to raise awareness

 

Role of social media - Access levels of community support

• media can assist parliament, government and the political parties or even voters themselves to determine level of community support

• Media can guage public opinion by using data analytics and tools to track online behaviour (number of times a post is clicked on)

• Measuring the number of likes, shares

• Social media campaigns

Role of social media Influence on community opinion

• Given the accessible nature of social media – mass viewers and access allows for instant support and influence for an issue

• Social media campaigns assist politicians to directly influence opinion and popularity for a reform

• provides a means for individuals to view issues occurring globally, encouraging others to vouce opinion

EG. The age of criminal responsibility

• #riasetheage was shared across social media and tens of thousands of people joined the campaign

• Victorian government held that children aged 10-11 will not be held criminally responsible by end of 2024 and plans to increase age to 14 by 2027

Advantages

• Social media campaigns can help ensure governments that there is popular support for particular reforms – increasing the likelihood of parliament adopting the reform being called for

• Social media allows information to be shared globally instantly – law reforms in other countries may influence Australia to campaign for law reform

• MPs on social media – can directly engage with their constituents – allowing them to gauge the views and values of members of their electorate

Disadvantages

• Social media algorithms tend to highlight content for individuals based on what they have previously interected with meaning people are less likely to be exposed to alternative opinions –leading to uninformed decisions because people are unaware of the other side of the debate

• Parliament will generally only make legislative change if it is on their political agenda – regardless of how much traction a proposed law reform receives the government has the final decision on the law reform

• Anyone can post on social media claiming it is news – complex events can be oversimplified with people not receiving the full information – basing their opinions on political issues on lies from social media

Victorian Law Reform Commission

• Established in 2000 and is the main independent law reform body which provides the Victorian government insight into areas of potential law reform

• Mian role is to investigate, report and make recommendations on issues referred to it by the Victorian Attorney general who provides a terms of reference on matters that need to be investigated

• receives its powers from the Victorian Law Reform Commission Act 2000 (Vic) (section 5 sets out roles)

Receive and analyse the Victorian Attorney generals terms of reference

Must investigate, report and provide recommendations about matters referred to the commission by the Victorian Attorney General

Terms of reference contains

• Scope of the inquiry

• Particular issue being investigated

• Final report due date

Investigate minor community legal issues

Investigates and recommends to the Vctorian Attorney general about minor issues within broader society without a terms of reference

• Conducts research without a significant amount of resoruces (community law reform projects and are established by VLRC rather then the Attorney general)

Conducts inquires

1. VLRC receives a terms of reference.

2. research relevant matters and form a consultative committee that provides advice about topics under examination

3. A consultation paper providing investigatory questions is published, submissions from the community are reviewed and experts and affected parties are consulted

4. The commission prepares a report including the suggested recommendations and presents to the Victorin Attorney General  

5. The Attorney tables the report in parliament within 14 sitting days of receiving the report and publishes it on the VLRC website

6. The Victorian gov may implement the recommendations and amend the law – not obligated

Monitor and coordinate law reform

Responsible for monitoring law reform activity throughout Victoria and can request the Victorian Attorney General to refer a matter of law reform to the commission

Provide educational programs

Educational materials to the community to inform individuals about its projects, general work and other relevant law – found online and accessible to the community

• Presentation to schools and student specific resources

The attorney general may

• Modify the terms of reference

• Give directions to the commission as to - The priority it must give to a reference, The time in which it must report a reference, Can ask for an interim report

Advantages

• The terms of reference are received from the Victorian Attorney-General, who is a member of parliament – the recommendations made are more likely to be considered and adopted by parliament

• The VLRC is able to independently initiate projects and investigate matters concerning minor community legal issues without a terms of reference from the Victorian Attorney general – recommendations for law reform in areas specific to the needs of certain communities

• The VLRC invites submissions from the community and consults parties who have expertise in the subject matter – ensuring parlaimenst law making is centred around its representative nature and reflects the views and values of the majority

Disadvantages

• The government is not obligated to consider or implement any recommendations provided by the VLRC

• The VLRC is limited by the terms of reference – can only research and recommend law reform within areas outlined by the Victorian Attorney General limiting the commissions impact on law reform

• The VLRC inquiries can be time consuming due o the nature of the process used – reviewing submissions, consulting parties to provide informed recommendations – this slows the law reform process

VLRC into stalking

In February 2021 the VLRC received a terms of reference from the Victorian Attorney general

• terms of reference - goal - to investigate Victorias response to stalking, harassment and similar conduct, Barriers to current legislation that restrict the effectiveness of protecting victims – with concern to victims safety and wellbeing acting as the overarching inquiry

• The VLRC is required to consider -Legislation – “Personal Safety Intervention Orders Act 2010 (Vic)”, existing criminal offences that apply under the crimes act 1958 (vic) and evidence required to establish each offence

• the interim report was due 31 december 2021 and the final report was due 30 june 2022

VLRC into stalking

• received 115 written submissions and 254 responses to an online form for people who have experienced stalking, consultations with 36 different parties such as the eSafety Commissioner

• interim report on 22 December 2021 tabled in the Victorian parliament April 6 2021 – findings were concerned with the polices response to stalking and how earlier intervention into stalking may alleviated issues

• The final report then have 45 recommendations for law reform

• Recommendation example - Reform the stalking offence in section 21A of the crimes act 1958 (Vic) to enhance clarity and practicality

 

Royal commission

the highest form of inquiry which investigates issues through consultation with experts and community then develops a final report of recommendation for law reform to be tabled in parliament

• Commonwealth royal commissions are established once a letters patent is issued by the governor general under the Royal Commissions Act 1902 (Cth)

• At state level the governor has the power to establish a royal commission (In Vic this power is under the Inquires Act 2014 (Vic)

• independent of parliament

• Set up by the executive branch of government because the king’s representation belongs to this branch who acts on the advice of government ministers – The government initiates a royal commission in response to a major issue of public interests or concern

Receive and analyse a terms of reference

When the government determines an issue or policy that needs to be investigated it must prepare a terms of reference that formally outlines the subject matter the royal commission will be investigating

Information about

• the scope of inquiry

• the issue being investigated

• the final report due date

Undertake research and prepare consultation papers

Before engaging in discussion with the community a royal commission prepares a consultation paper that details the matter being investigated and the possible reforms that may be implemented as a result of the inquiry – provides guidance to members of the community seeking to make submissions to the inquiry

Seek submissions from the community

To ensure the recommendations for law reform effectively reflect the views of society – provides an avenue for:

• individuals or organisations to express their opinions regarding matters of public concern to instigate legislative reform

• experts can provide their opinions on complex social issues to inform proposed changes to the law

• interest groups can express their stance in issues where they seek to influence law reform

Conduct hearings

A royal commission will conduct hearings which may be public or private where members of the public are summoned to observe or provide evidence n the issue being investigated

Engage in coercive powers

• require individuals, businesses or organisations to produce evience under oath

• penalties of up to two years imprisonment for those who fail to comply with summons or intentionally provide false or misleading evidence

ensures royal commissions have greater ability to determine the truth, gain insight into the issue and review all the evidence – leads to greater understanding of the social or legal issue being investigated allowing law reforms to be recommended that would effectively resolve the issue

Present a final report to parliament with recommendations for law reform

After the investigation royal commissions produce a report of the investigations findings that provide recommendations for law reform to parliament

Royal commission into the robodebt scheme

• August 2022 the royal commission into the robodebt scheme was established

• In 2015 the department of human services (DHS) proposed and the federal government initiated the debt recovery scheme commonly referred to as robodebt

• sought to ensure people who received centerlink benefits were not underreporting their income and receiving overpayment - relied on a process called “income averaging”

• OCI was faulty and the income averaging was sending individuals receiving Centrelink payments or who had once received such oayments but no longer did inaccurate debt notices

• scheme persisted until Novermber 2019

Royal commission into the robodebt scheme

• May 2020 the government announced it would be repaying indviduals - scheme reimbursed 381000 affected individuals totaling approximateky $746 million

• terms of reference - Who was responsible for the scheme and why they considered it necessary, Any concerns raised regarding the legality or fairness of the scheme, The use of third party debt collectors under the scheme, how concerns raised by any individual after implementation were handled and what systems were in place to address public complaints against the scheme, intended or actual outcome of the scheme

• The government provided 30 million of funding and received 1009 submissions and the commission held over 46 days with appearances by more then 100 witnesses

• Used its coercive powers by compelling witnesses such as senior government officals to appear at public hearing

• final report on July 7 2023 that was over 900 pages criticising the establishment and oimpleentation of the robodebt scheme - 57 recommendations were made

Advantages

• Royal commission are able to investigate incidents, areas of policy or social legal or political issues in their research – can provide insightful recommendations for law reform that accurately and adequately address the issue at hand

• Royal commission are independent of the government and meaning their investigations are not influenced by political bias

• A royal commission is established by the government – parliament may be more likely to act on and implement the law reform based on the findings of the commission

Disadvantages

• Royal commissions are the highest form of inquiry they are only established in rare and exceptional circumstances

• Royal commissions can be very expensive due to resources required – staff and use of experts – the robodebt commission were given a budget if $30 million

• The government is not obligated to follow the suggested recommendations by the commission meaning the inquiry may be a waste of time and money

Parliamentary committee

a group of members of parliament who undertakes work on the behalf of parliament and investigate the need for law reform

Types

• Standing committees - Appointed on the behalf of parliament and are usually re-established in successive parliaments to continually investigate issues relating to particular subjects EG. Standing committee on employment, education and training

• Select committees - Created for a specific purpose to investigate a policy issue, EG Select committee into the provision of and access to Dental services in Australia

• Joint committees - Composed of members from both houses of parliament – standing or select - EG, on Aboriginal and Torres Strait islander affairs

Receiev and analyse the terms of reference

When parl determins an issue or policy that needs to be investigated it must provide the parliamentary committee the terms of reference to set the scope of the inquiry, containing:

• The purpose of the committee

• The issue or policy being investigated

• The final report due date

Invite written submissions from the community

During each investigation, parliamentary committees conduct research and consult with the community to ensure the law making process effectively reflects the views of society – therefore providing an avenue through which

• Individuals or organisations can express their opionins regarding parliamentary issues to insitate legislative reform

• Experts can provide their opinion on complex social issues to inform proposed changes to the law

• Interest groups can express tehir stance on issues where they seek to influence law reform

Conduct public committee hearings

• conduct oublic hearinsg where members of public can observe or give evidence in the issue being investigated

• have powers allowing them to gain a vast range of perspectives to ensure the whole truth emerges when resolving complex issues including: Summoning witnesses such as experts

• Protecting evidence given during a hearing through parliamentary privilege to ensure witnesses provide accurate information

Present a final report to parliament with recommendations for law reform

After the conclusion of the public hearing parliamentary committees must write a report of their findings as revealed by the investigation and provide their recommendations for law reform

Inquiry into tackling climate change in Victorian communities

In 2019 the Legislative Assembly Environment committee launched its inquiry into tachling climate change in Victorian communities

• Terms of reference - investigate existing actions to combat climate change in urban, rural and regional communities of Victoria and how the Victorian government could support these communities

• Submissions - received 162 submissions EG Victorian farmers federation

• Committee hearing - Over 15 days

• recommendations - tabled a final report in parliament on 25 November 2020 - the report contained 72 recommendations EG Increased investment in public transport, walking, cycling infrastructure to reduce reliance on cars and support the transition to electric cars

• Changes made EG - Preparation of a five yearly adaption action plan under the climate change act 2017 (vic) to improve the resilience of seven key systems vulnerable to climate impacts

Advantages

• Parliamentary committees can investigate specific matters of policy or government performance in depth ensuring parliament has a thorough understanding of the issue in question

• Parliamentary committees can invite submissions from members of the community and listen to their evidence at hearings – ensures the committees proposed recommendations for law reform are reflective of community values and accepted by society

• Expert opinions obtained may encourage parliament to adopt a parliamentary committees recommendations for new laws 

Disadvantages

• Parliament has no obligation to implement law reform based on the recommendations made by the committee

• Parliamentary committees may be unable to analyse all issues or concerns due to limited government funding

• Parliamentary committees may not be independent meaning biases could exists where the committee is predominantly composed of members from the same political party or where members are split along political party lines and do not provide a uniform set of recommendations