U4 AOS2 SAC

social cohesion

a term used to describe the willingness of members of a society to cooperate with each other in order to survive and prosper

law reform

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

Reasons why law reform is necessary

• changes in beliefs, values, and attitudes

• changes in living conditions

• advances in technology

• greater need for protection of the community

How do changes in belief, values, and attitudes influence law reform

• community values change as knowledge increases and society becomes more educated and aware

• it is important that our laws reflect this changed awareness in order to promote the new views and values of the community

How do changes in living conditions influence law reform

• as Australia’s population grows and changes, some laws need to change to ensure we can all live together peacefully and maintain our basic standards of living

• changes can include social, economic, and international conditions

How do advances in technology influence law reform

• As tech improves, laws must be altered and updated

• some laws will control and regulate new inventions and oppourtunities other laws will reduce the likelihood of people being harmed or exploited

How does the greater need for protection in the community influence law reform

• one major rule of law is to protect individuals from harm

• law reform must occur continuously to make sure individuals are protected

• the need for protection can extend to animals and the environment

petition

formal, written request to the parliament to take some action or implement law reform

principal petitioner

person who initiates or organises a petition, and whose name and contact details must be provided on the first page of the petition

factors that affect the ability of petitions to influence law reform

• number of people who show their support by signing the petition

• the passion and profile of the presenting member of parliament

• whether it is supported by additional pressure

  • an effective media campaign

Discussion points on petitions effectiveness

• some people may be reluctant to put their name, address or emal on a petition

• to be presented in parliament, petitions must adhere to certain rules

  • e.g. there may be a word limit, or may have to be tabled by an MP

• Peititions in the Victorian Parliament must be tabled by a member of parliament

  • may depend on whether a member is willing to table it, who tables it, and their influence

• Parliaments recieve hundreds of petitions annually and there is no guarantee or compulsion for the suggested law reform to be made

• Many peititions do not gain public and media attention after being tabled, especially if there is no other community pressure beyond the petition

• opposing petitions and multiple petitions on the same topic can reduce the impact

Explaination points on the effectiveness of petitions

• direct way for individuals to make their desire for changes in law known to parliament

• each parliament has rules or requirements for petitions to be accepted

• Simple, easy, cheap way for people to express support for change in the law

• to make laws that reflect the values of the community, members of the parliament are more likely to consider a petition for law reform that contains many signatures demonstrating strong support by the community

• act of creating a petition and gathering signatures can generater public awareness

• even if a petition is not successful in generating law reform it can help gain the attention of other members of parliament and the media - can generate further community support

demonstration

a gathering of people to protest or express their common concern or dissatisfaction with an existing law as a means of influencing law reform

aim of demonstrations

bring an issue to the attention of the community and lawmakers with the objective of influencing a change in the law

factors that impact the effectiveness of demonstrations

• ability to attract attention of the media and public

• can alert and educate members of the community about the need for reform

• disorganised, violent, or inconvenient demonstrations or those attended by very few people can have less impact

Explaination points on the effectiveness of demonstrations

• can be effective in generating an awareness for a need to change the law

• can attract large numbers of participants and media attention

• can gain support of MPs who want to ‘adopt a cause’ - particularly ones that might improve their public profile or image

• can alert and educate members of the community about social, economic, political, and legal injustice and the need for law reform

Discussion points of the effectiveness of demonstrations

• number of people who attend a demonstration may affect its ability to influence law reform

• effectiveness depnds on the type or nature of the demonstration

  • if they cause inconvenience, become violent or lead to breaches of law may be less effective

  • single events may not generate ongoing support for the deisred reform

• may focus on an injustice or issue that cannot be changed by parliament

  • although may attract global attention and have a longer-term influence

• disorganised demonstrations, or demonstrations that have no clear call for action or messaging may be less effective than organised demonstrations

how are courts limited in law reform

can only make changes when a case is brought before them and only in relation to the issues in the case

judges are unelected, and don’t often reflect the community’s views and values

relies on individuals being willing and able to challenge a law before the court

media

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

types of common media

• print - newspapers, journals, books, billboards

• broadcast- television, radio

• digital- websites, podcasts, live video streaming, social media

Roles of media in law reform

• Informing and rasing awareness

• Influencing community option on a change in law

• assessing levels of community support

How does the media inform and raise awareness to reform

inform people about social, political and legal issues and the need for reform

How does the media influence community opinion to reform

can influence opinion about social, political, and legal issues

How does the media assess levels of community support for reform

media can assist the parliament, government and political parties to assess the level of community support for a reform

Issues or limitations in the role of the media

• media concentration

• risk of spread or information

• use of algorithm online

how does media concentration limit its ability to influence reform

ownership of mass media by very few individuals or group

i.e. murdoch family

how does risk of spread of information limit the ability of media to influence reform

sharing of misinformation is widespread because the online environment is not regulated in the same way as more traditional media organisations and anyone can share ‘news’

how does online algorithms limit the ability of media to influence reform

readers will not be aware of a particular issue or injustice because they are not only presented with the types of news or information based on what they have previously read

impacting their ability to be informed about the need for law reform

Victorian Law Reform Commission (VLRC)

revuews, researches and makes recommendations to the state parliament about possible changes to Victoria’s laws

law reform bodies

organisation established by state and commonwealth parliaments to investigate the need for change in the law and make recommendations for reform

terms of reference

instructions given to a formal body to investigate an important matter

set out the precise scope and purpose of the inquiry and the date by which the final report must be completed

why are law reform bodies used

• MPs often lack time and resources to undertake thorough investigations on law reform issues

• instead, the may pass the investigation of the need for law reform to an independent law reform body

main role of the VLRC

main role is to assist the government in continuing to provide a fair, inclusive, and accessible legal system by investigating the need for change in Victorian laws

VLRC community inquiry role

investigate any relatively minor legal issues that the VLRC believes are of general concern with the community and report back to the Attorney-General with suggestions for law reform

VLRC major inquiry role

• to examine and report on any proposal or matter referred to it by the Victorian Attorney- General for law reform

• includes conducting research, consulting with the community and reporting on law reform projects

VLRC monitoring role

to monitor and coordinate law reform activity in Victoria, including making suggestions to the Attorney-General that they refer a legal issue or matter relating to law reform to it for investigation

VLRC education role

to undertake educational programs and inform the community on any area of the law relevant to its investigations or references

roles of the VLRC

• community inquiry

• major inquiry

• monitoring

• education

Processes used by the VLRC

VLRC needs to have terms of reference - either recieved from the attorney- general or drafted by the VLRC about a matter it identifies as a relatively minor legal issue that is of general community concern

Once VLRC recieves terms of reference…

• undertake initial research and consultation with experts in the area

• establish an expert panel to provide evidence

• hold consultations and discussions with and invite submissions from community

• publish a final report with recommendations for changes in the law

• final report presents to the Attorney- General

• Attorney- General will table it to Victorian Parliament

• parliament may choose to implement or not implement the recommendations made

Strengths of VLRC

• when the government asks the body to investigate an issue, it is more likely to act on the recommendations

• they gather public views through submissions and consultations, increasing democratic legitimacy and political appeal

• It is independent from parliament and political parties, making its recommendations objective and unbiased

• it can examine issues in depth, helping the government create well-informed, complete legislation

• it can investigate small legal issues without needing a referral (e.g bail review - changes to Bail Act 1977)

• About 70% of VLRC recommendations are fully or partly adopted by parliament

weaknesses of VLRC

• can only investigate issues referred by the Attorney-General or minor matters; cannot choose major topics itself

• must stay within the boundaries set by the government, even if broader reform is needed

• parliament can ignore or reject recommendations entirely

• reforms may require crossbench support especially if the upper house is hostile

• investigation can take 12-24 months and require significant resources

• it can only recommend changes to Victorian law, not Commonwealth law, limiting its reach

Example of VLRC inquiry

Inclusive Juries- Access for People who are Deaf, Hard of Hearing, Blind or have Low Vision

May 16th 2023

committee system

a system in federal, state and territory parliament in Australia that involves the members of seperate committees to investigate a wide range of legal, social, and political issues and report back to the parliament about the need for law reform

parliamentary committee

a small group of members of parliament who consider and report on a single subject in one or both houses - can be from any party

Hansard

the official transcript of what is said in parliament

why are parliamentary committees and important feature of the parliamentary system

means that Federal, state and territory parliaments have an extensive range of committees that can investigate a wide range of legal, social and political issues and concern and report back

processes used by parliamentary committees

• recieves the terms of reference

• publicises the committee’s investigation and seeks input

• hold formal public hearings

• prepares a written report

types of parliamentary committees

• standing committees

• select committees

• joint investigatory committees

• domestic committees

standing committees

• permanent committees

• exist for the whole life of a parliament and are usually re-created again in the next parliament

• constantly checks government activity and investigate ongoing issues

select committees

• temporary committees

• created to investigate one specific issue, once they finish their report they disappear

• made up of MPs from only one house (senate or House of reps)

Joint Investigatory Committees

• MPs from both houses

• can be ongoing (like standing) or temporary (like select)

• investigate range of issues each parliamentry term

Domestic Committees

• looks at internal matters within Parliament - things like procedures, rules, and how parliament runs day-to-day

• MPs from one house

think housekeepers of parliament’s internal matters

strengths of parliamentary committees

• can look into legal, social, and political problems and then tell parliament whether laws needs changing

• can make experts, organisation, and individuals come to hearing and answer questions - gives them high-quality information

• a small group can investigate something more quickly, cheaply, and deeply than 150+ MPs trying to do it together

• By investigating issues, MPs become more informed about the topic and understand law reform better

• People can make submissions and share their views, which makes the process more democratic

• final report gives parliament clear information before voting on a bill

weaknesses of parliamentary committees

• they can’t investigate everything because MPs are busy and funding is limited

• they must stick to the specific topic they were assigned, they can’t explore outside it

• some inquiries take months or years and cost a lot of money

• there are many committees and they require a big time commitment, so some MPs don’t want to participate

• if people don’t know a committee is asking for submissions, they can’t contribute

• even if a committee suggests a law reform, parliament can simply choose not to act on it

royal commissions

the highest form of inquiry into matters of public concern and importance

established by the government and are given wide powers to investigate and report on an important matter of public concern

Process used by royal commissions

• consultation, research and background papers

• undertake consultation sessions and seek community submissions

• obtain relevant documents and hold public hearing

• prepare a report and make recommendations

strengths of royal commissions

• governments used these to justify changing laws or policies

• raise awareness and encourage submissions, petitions, demonstrations and media attention

• since they’re initiated by government, they are often more willing to implement the recommendations

• investigates issues thoroughly, helping government design detailed, informed laws

• can compel witnesses and evidence, giving them strong investigative authority

• operate independently of parliament, making their recommendations more objective and unbiased

weaknesses of royal commissions

• governments set the terms of reference sometimes avoiding politically damaging areas

• impact depends on timing, subject matter and bipartisan support

• can be used against opponents to avoid addressing more urgent issues

• parliament doesn’t have to adopt any recommendations

• expensive and slow (often 2-4 years + some cost tens of millions)

• they choose who to call, meaning relevant evidence may be missed

• if they report at a politically inconvenient time (e.g. right after an election) its influenced can be reduced

republic

a form of governance in which the power is held by the people and their representatives and in which there is an electd head of state rather than a monarch

first nations voice

an independent advisory body for first nations people to advise the commonwealth and government on the views of first nations people on matters that affect them

preamble

the introductory part of a statute that outlines its purpose and aims

express rights

rights that are stated in the constitution and are entrenched, meaning they can only be changed by referendum

exclusive powers

powers in the constitution that only the commonwealth parliament can exercise

concurrent powers

powers in the constitution that may be exercised by both the Commonwealth and the states

resdiual powers

powers that were not give to the Commonwealth Parliament under the constituion and therefore remain solely with the states

reasons for constitutional change

• recognise first nations people

• increase protection of rights

• change the commonwealth’s law-making powers

• reform australia’s political system

recognise first nations people as a reason for constitutional change

• currently no mention of first nations people in the constitution or recognition for their ownership of the land

• proposed changes;

  • to establish a first nations voice to parliament

  • to honour and recognise First nations peole in the constitution

increase protection of rights as a reason for constitutional change

• number of rights protected by constitution is limited and many are narrow in scope

• most rights in Australia are protected by statute or common law rather than constitution

• Australia currently does not have a bill of rights

change the commonwealth’s law making powers as a reason for constitutional change

• commonwealth has exclusive and concurrent powers

• commonwealth has sought to change the constitution to provide it with more powers

  • has also been calls to reduce commonwealth’s powers

reform australia’s political system as a reason for constitutional change

have been suggestions to change the constitution to reform our political system

e.g.

• increase the term of House of Reps from 3 to 4 years

• allow more people to be eligible to sit in parliament i.e. dual citizens

• become a republic

procedure for changing constitution as set out in s.128

• the parliament

• the people

• the govenor general

how does the parliament act to change constitution

• any change must first be introduced and passed in the Commonwealth Parliament

• a bill is prepared which will set out the proposed alteration to the constitution

• bill must pass each house by more than 50%

• proposal must be submitted to voters between 2 and 6 months after the passage of the bill through parliament

if a house rejects a proposed constitional change

• the house that passes the bill must wait 3 months before reintroducing it to the parliament

• if the bill is rejected again by the other house, the govenor general can submit the proposed change to voters

how do the people act to change the constitution

• once passed through parliament, proposed change becomes a referendum (compulsory vote)

• before the vote begins, the electoral commission send information about the choices to be made including arguments for and against the proposal to each household

• if proposed change recieves a double majority yes vote it is then presented to the govenor general for royal assent

double majority provision for referendums

• a majority of votes in the whole of Australia AND

• a majority of votes in a majority of the states

• difficult to achieve

  • only 8/45 referendums in history have passed

• strict requirement ensures that the wording of the constitution can be changed only with the agreement of the public

how does the govenor general act to change the constitution

if the proposed change recieves a ‘yes’ in a double majority it is then presented to the Govenor-General for Royal Assent

factors a successful referendum depends on

• bipartisan support

• nature of the proposal

• whether voters are seeking change

• education about the proposal

bipartisan support impact on success of referendum

• history suggests success depends on this

• many voters do not understand the constitution and nature of proposed changes so they may look for guidance about how to vote from the party they support

• if the opposition does not agree with the change, they will lead a ‘no’ campaign

  • voters will be faced with two strongly argued opposing campaigns focused on ‘yes’ and ‘no’

• since majority is needed in 4/6 states, state premiers can be very influential

voters seeking change impact on success of referendum

• whether the people themselves support and actively promote the change proposed

• if the government is driving the change, Australians may be more cautious became of a potential general distrust of politicians

nature of the proposal impact on success of referendum

• whether the proposed changes straightforward and accessible or complex and difficult to understand

• if question being asked is complex or proposed alteration is hard to understand, voters may not understand what they are being asked to vote ‘yes’ to and therefore may be more inclined to vote ‘no’

education about the proposal impact on success of referendum

• general public has very little knowledge about the constitution and government/ political structures

• a strong education campaign in the lead-up to the referendum is required with strong messaging about the need for change

• some have argued past referendums have failed not because of the public’s reluctance to change but because they dont recieve necessary information and education to fully understand the proposal

Context to 1967 referendum

• until 1967, constitution didn’t give the commonwealth the power to legislate for FNP or to include them in national census

• instead, constitution gave commonwealth the power to make laws in relation to any race other than “aboriginal race”

1967 proposal

• referendum put to the people about whether to change the constitution to allow the commonwealth to make laws about FNP and allow them to be formally counted in the census

• proposed change unanimously passed through parliament

• there was no ‘no’ campaign put to the voters

results of 1967

90.77% of voters in australia and a majority in all states

significance of 1967

• allowed commonwealth parliament to move into a law making area that it was previously denied

• very high level of support across all states sent a clear message to the commonwealth that it needed to act to address the inconsistencies in state law in regards to FNP

• commonwealth was able to use its powers to override laws that were racially discriminatory

• formal inclusion of FNP in national census which enabled commonwealth to make informed decisions about policies based on population and distribute commonwealth funds based on that population

However, the commonwealth did very little in this area for some time, suggesting that although australian population can change the constitution they cannot necessarily enforce the commonwealth to change laws

Importance of establishing a first nations voice

• voice to parliament would be a constitutionally entrenched advisory body that would advise the parliament on matters relating to FNP

• recommended following the national constitutional convention held at Uluru in 2017

• body would be made up of FNP and be seperate from parliament

background to 2023

• FNP have advocated for their ability to participate in and be consulted about decisions and laws that affect FNP and their rights and for formal constitutional recognition

• uluru statement from the hert was declared following the NCC in 2017

  • a constitutionally recognised Voice to Parliament

  • a treaty between government and FNP

  • a ‘truth-telling’ process

2023 proposal

• amendment proposed to formally recognise FNP and enshrine a voice to parliament

• would see Chapter IX and section 129 added

2023 results

• 60.06% of Australia rejected the proposal

• EVERY STATE AND TERRITORY had a majority ‘no’ vote

significance of 2023

• lack of bipartisan support likely a significant factor in the outcome

• ‘yes’ campaign may not have been able to explain the change clearly enough

• ‘no’ campaign highlighted the lack of detail with the message ‘if you don’t know, vote no’

• may have highlighted embedded racism that continues to impact on people’s beliefs and voting behaviours in relation to FNP

• some people may have voted no if they believed the referendum didn’t go far enough

Ability of australian people to change the constitution

• process under s.128 for changing the constitution is supposed to be difficult to achieve

• australian voters have to wait for commonwealth to be prepared to move forward with referendum proposal

  • however, the people can influence government through petition/demonstrations

• failure of 2023 referendum and many others suggesrs that government may be reluctant to commit resources to another referendum in the future

beliefs and values

the shared moral, ethical, and cultural attitudes or standards held by a society.

Often drive law reforms

social conditions

the current living conditions, demographic trends, lifestyle habits and wellbeing of society

changes in these conditions create a need for law reform

economic conditions

factors relating to the production, consumption, distribution of wealth, and financial stability within a state or country

i.e. inflation, housing affordibility, employment rates

political conditions

prevailing political climate, power dynamics between political parties, government policies and public trust in political institutions

tabled (in parliament)

formal act of placing a document, report or processed bill before a house of parliament so that it becomes part of the official public record

inquiry

an official investigation or examination conducted by a government body, parliamentary committee or commission, to examine a specific issue or area of law reform

attorney general

cheif legal officer of the crown and the cabinet minister responsible for the legal system, courts, and administration of justice (at state and federal level)

consultation paper

a document published by a law reform body outlining key issues, questions, and proposed options for reform