CH13, 14 - Law Reform

purpose of laws

• protect society and safety

• establish and protect basic human rights

• aim to achieve social cohesion

• provide ways of resolution

reasons for law reform

• changes in beliefs, values and attitudes

• changes in living conditions

• advances in technology

• a greater need for protection of the community

changes in beliefs, values and attitudes

• if the law is to remain relevant and acceptable to majority it must reflect changes

• but rapid changes which impose change before the community’s ready to accept may be met with resistance

• values can change as knowledge increases such as dangers of smoking

changes in living conditions

• social, population growth, healthcare, environment, gang related crime

• economic, wages, workplace protection

• international, terrorism, wars, refugees, global supply

advances in technology

cybercrime, scientific and medical

greater need for protection of the community

• physical, emotional and financial harm

• must protect individuals and groups especially vulnerable ones from harm

weaknesses of the ability of individuals to change the law

• limited as parliament must reflect majority views

• might not know the appropriate law making body such as whether state or cwth made the law and the policies regarding the proposed area of change

• has to have standing

petition

a written document signed by a number of people demanding change from a person or organisation

purpose of petition - may request to

• introduce a new law

• amend existing law

• take a particular course of action in relation to a policy matter or complaint

petition rules

• addressed to the house in which it is being presented

• clearly states the action being requested including desired change and reasons for the petition

• inside the word limit

• contains details of the principle petitioner

• legible and not offensive or disrespectful

• at least one signature

• an original document or made directly on website

process of petition

• petition drafted and certified

• presented in parliament

• becomes part of the parliaments records and seen by standing committees

example of petition

• 2019 e petition to the cwth parliament declaring a climate emergency and the immediate need to reduce the causes of human made climate change

• petition was tabled by an independent member of parliament and gained 400k signatures

• after being tabled, the minister for energy and emissions reduction responded by outlining the federal’s gov plan to reduce emissions and greenhouse gasses by 2030 while ensuring a strong economy

factors of petition effectiveness

• the number of people who sign

• passion and profile of presenting member of parliament

• whether petition is supported by additional pressure like a media campaign

• whether it meets the rules of a petition

strengths of petitions

• direct way individuals can make their desire for change known

• relatively simple, easy and inexpensive way for people to express support for a change

• act of creating and generating signatures can generate public awareness even if later unsuccessful

weaknesses of petitions

• some people may be reluctant to put their name and other info on a petition for privacy

• must adhere to rules to be presented in parliament

• petitions in vic must be tabled by a member of parliament, dependent on willingness

• no guarantee or compulsion for the suggested law reform to be adapted

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

demonstrations

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

example of demonstration

• change the date movement on australia day

• occurs anually, non vioelnt, large numbers, media attention, focuses on an injustice that parliament can change

• greater protection of the community - recognition of the human rights issues faced by first nations people

• change in community views, beliefs and attitudes - generating more community awareness about the harm of colonisation on first nations

strengths of demonstrations

• can generate awareness of a need for change

• demonstrations that attract large numbers often attract media which can further generate support

• can gain support of members of parliament who want to adopt a cause that might improve their image

• can alert and educate community about injustices and allow for change over time

weaknesses of demonstrations

• dependent on number of people

• violent, disorganised, inconvenient can be less effective

• may focus on an injustice or issue that can’t be changed by parliament like a human rights issue in a country where aus has no authority or little influence

the use of courts

an unclear area of law can be clarified or challenged when bringing a case to court

strengths of the use of courts in law reform

• individuals and groups can influence a changing the law by challenging the validity, meaning or fairness of an existing law

• even if unsuccessful can gain significant media coverage that may generate community interest

• judges can rule legislation as ultra vires

• judge comments can influence parliament

• poltiically independent and determine case based on facts rather than electoral concerns like voter support

weaknesses of courts for law reform

• reactive and limited to issues in the case

• no guarantee of success

• can be abrogated with the exception of HC constitutional cases

• not elected and decisions may not necessarily represent community views and values

• requires standing, costly, time consuming

the role of media in law reform

• informing and raising awareness

• assessing levels of community support

• influencing community opinion on a change in law

assessing levels of community support

polls, surveys, post analytics

informing and raising awareness

• provides platform for parliament, gov and parties to explain need for law reform

influencing community opinion on a change in law

for example media can investigate local, national and global events to inform, generate interest and influence the community by covering it

issues and limitations in the role of media

• media concentration

• risk of spreading misinformation

• use of algorithms

media concentration

the ownership of mass media by very few individuals or groups therefore leading to being accused of bias

strengths of use of media

• provides a platform to generate awareness, encourage debate and gain community support for law reform

• allows gov and parliament to gauge public opinion on an issue

• various social media platforms allow law makers to communicate with and influence the public

• can investigate and report on injustices that the broader public aren’t aware of

weaknesses of use of media

• visual manner in which media displays issues might result in oversimplification and a lack of understanding

• platforms can evoke emotional responses based on limited understanding

• social media posts lack the ability to be authenticated like with traditional and may be inaccurate

• can use bias to negatively impact political decisions or leave voters uninformed

• can edit, manipulate or refuse to cover certain events

example of a purpose of law reform

• animal welfare

• greater protection

• Puppy farms and pet shops act 2017

• Became illegal to sell dogs and cats in pet shops unless they are obtained from rescue shelters or pounds

VLRC

• aims to assist the victorian government in continuing to provide a fair, inclusive and accessible legal system

• monitors, coordinates and investigate the need for change and provide impartial advice and recommendations

• vic law reform commission act 2000

functions of the vlrc

major and community inquiries
monitoring
education

major inquiry

• examine and report any proposal or matter referred to it by the attorney general and make recommendations

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

community inquiry

• relatively minor legal issues vlrc believes are of general concern

monitoring

after consultation with groups and other law reform bodies vlrc may suggest to the attorney general new terms of reference relating to areas where reform is needed

education

vlrc undertake education programs and inform the community in any area of law relevant to investigation in schools and on website

terms of reference

• instructions given to a formal body for law reform or royal commission to investigate an important matter setting out precise scope, purpose and due date

• received from attorney general or drafted by vlrc for community inquiries

processes used by vlrc in law reform

• undertake initial research and consult experts to identify most important issues

• establish an expert panel or committee to provide advice

• public a contribution paper that explains key issues under review and poses questions

• hold consultations, discussion and invite submissions from affected parties

• public and present final report to attorney general

VLRC example - stalking

• 2022

• considered how laws could be strengthened, how to enhance victim safety and wellbeing, barriers to reporting, sentencing practices and options

• greater protection of the community - prevalence, intimidation and frightening nature, lack of community awareness, difficulty seeking assistance

• advances in technology - cybercrime

• submissions from individuals and organisations, consultations with affected people and police, courts, online surveys

VLRC - stalking recommendations

• require police officers to refer complex stalking cases to specialist police in criminal investigation units

• funding the training of magistrates, judges and other court personnel so they are better able to respond

• victims to be provided with tech to prevent cyber stalking and independent expert advocates to support through the criminal process to improve their ability to report stalking and seek support

strengths of vlrc

• gov more likely or willing to act on recommendations because they asked them to

• has power to investigate and take recommendations on minor matters without a terms of reference as long as it doesn’t take up too many resources

• can measure community views by holding consultations and receiving public submissions

• independent of parliament and political parties

• stats suggest highly influential on parliament, all or most reccommendations have been adapted in 75% completed inquiries

weaknesses of vlrc

• while government may support recommendations it may need support of cross bench if they don’t have majority in the senate

• limited in how many projects it can undertake at a time

• can be time consuming with inquiries taking 12-24 months

• parliament no obligated or compelled to support or adopt any recommendations

• can only recommend changes to vic not cwth, if certain areas of investigation are governed by cwth vlrc can’t directly recommend because vic has no power

• law making is process is noy always quick so recommendations may not be immediately implemented

royal commissions

once off major public inquiries established by the gov to investigate matters of public importance and concern, royal commissions act 1902

establishing a royal commission

• set up by executive branch, however the governor general acts on the advice of government ministers so in reality its the legislative

• kings rep issues a letters patent which specifics person or persons appointed to constitute commission and chair the inquiry, specify due date

• chairperson then engages people to assist the commission

processes used by royal commissions

• prepare consultation, research or background papers

• undertake consultation sessions to gain views and opinions from range of people

• seek community input via submissions

• obtain docs

• hold public hearings to gather evidence

prepare consultation, research or background papers - royal commissions

• provide info to interested parties and community to form basis for discussion and submissions

• outlines matter, poses questions and provide guidance for those that wish to make a written submission

obtain documents

• rc have wide ranging powers to compel organisations and individuals to produce docs

• can help to understand issues or identify where there has been potential misconduct

hold public hearings - rc

• can summon or compel people to attend. give evidence under oath and be cross examined

• can also hold private hearings

royal commission example - robodebt

• in 2016 the gov established a system called online compliance intervention which aimed to ensure people who received welfare benefits met qualifying criteria

• rc was established on the 2022 to inquire about the systems establishment, design and implementation including the use of third party debt collectors, concerns raised following implementation and intended outcomes

• terms of references asked ways to prevent similar failures of government administration in the future

• budget of 30 million

• received written and oral submissions, obtained docs from government close to 1 mil, 46 days of hearings where senior members of government answered questions

• report highlighted the harm that can be caused by failures of government administration and inadequate gov policy

recommendations of robodebt rc

• should ensure they have in regard any vulnerable people who may be affected by compliance programs when designing

strengths of rc

• gov can use findings and recs to justify making changes to law and policy

• can raise community awareness and interest, encouraging submissions, petitions and demonstrations

• gov more likely to act on recs because they asked them to do it

• can measure community views

• can investigate comprehensively to ensure gov can initiate new law that covers all areas

• has wide ranging powers like compellation

• independent of parliament

weaknesses of rc

• may lose credibility in situations where the gov of the day chooses to not include areas that might poltically damage them

• the extent of their influence depends on the subject matter and whether there is bipartisan support

• may be used as a tool against political opponents to avoid addressing more critical issues

• parliament has no obligation to support or introduce recs

• time consuming and costly taking on average 2-4 years

• commissions choose how they conduct investigations there making it possible certain individuals or organisations with relevant info and evidence aren’t called

• ability to influence law depends on timing of its report and the terms of reference for example just after an election might diminish influence

reasons for constitutional law reform

• recognition of first nations

• increase protection of rights

• change the cwth law making powers

• reform political system

• allow mroe people to be eligible to sit

increase protection of rights

• theres only 5 express rights

• most rights are protected by statute or common law including freedom of thought, speech, assembly

changes in cwth law making powers

• 1967 referendum

• prior to then the commonwealth didn’t have power to legislate in relation to first nations people due to section 127 and chapter 5 section 27 of the constitution

• went from residual to concurrent broadening commonwealth lawmaking powers

reform australia’s political system

• timing of federal elections

• allow more people to be eligible to sit in parliament

• become a republic 1999 referendum

timing of federal elections

• under the constitution max term for rep is 3 but can be dissolved sooner by gov general

• only allows for maximum terms, and the pm can call an election whenever they choose prior to the max term when the climate suits them

• 1988 referendum tried to increase reps from 3 to 4 and decrease senate from 6 to 4

allowing more people to be eligible to sit in parliament

section 44i prevents dual citizens or dual nationals form being members of cwth parliament

changing the constitution

• process where words can be added, deleted or amended set out in section 128

• referendums

• new words will appear once bill containing the proposal has been passed by parliament and given royal assent

process of changing the constitution

• bill is introduced and must be passed by absolute majority by both houses of parliament

• info is given to voters on proposed change and they vote yes or no

• if a majority of voters in aus and in states vote yes royal assent is given and the constitution is changed

the parliament in changing the constitution

• if either house passes the bill with over 50% and the other rejects, after three months the first house can once again pass the bill by an absolute majority

• if the bill is rejected again the governor general may submit the proposed changed to voters

double majority provision

• majority of voters in aus and majority voters in a majority of states

• it protects the smaller states from being dominated by larger populated states and so that they have an equal voice regardless of size

strengths of processes used in changing the constitution

• voters are directly involved in constitutional amendment

• section 128 gives voters the power to reject changes even after they’ve been approve by parliament

• the yes or no format is clear and simple, reducing confusion and making it more likely to accurately reflect views

• the double majority requirement ensures equal protection of states

weaknesses of processes used to change the constitution

• expensive 1999 cost 66.82 mil

• success can be difficult due to double majority requirement 8/45

• due to compulsory voting people may vote not by choice but because they have to, potentially causing them to cast a random vote

• time consuming as bill must be passed through both houses and the people

factors affecting referendum success

• bipartisan support

• whether voters are seeking change

• the nature of proposal

• education about proposal

bipartisan support

• the approval of two or more political parties

• many voters may not understand constitution and look for guidance by following stance of party they support

• 1967 was successful

whether voters are seeking change

• whether people themselves actively support or promote the change is known as people’s ownership

• 1967 was seen as a people movement following decades of first nations discrimination

• if gov is driving change, people may be cautious because of a potential general distrust of politicians

the nature of the proposal

• whether proposal is straightforward and accessible or complex, difficult to understand or messy

• many voters who don’t understand may be more inclined to vote no

• 1999 raised complex issues about the mechanics of voting and elections and due to limited public knowledge failed

education about the proposal

• the constitution is rarely the subject of mainstream media analysis and the public therefore making it challenging when voters are asked to consider changing they know little about

• a strong info and education campaign including straightforward explanations and details of the yes and no cases will help

• 1967 had a simple and clear message immediately appealing to voters

the 1967 referendum

• before then the constitution didn’t give the cwth power to legislate for first nations or include them when calculating population, 127

• it was instead a residual power in section 5 26

• proposed the changing of 5-26 so that the words “other than the aboriginal race in any state” were abolished and section 127 being completely removed

• the yes case advocated that these changes sought to right the wrongs and address ongoing discrimination, no no case

• successful with 90.77% in favour

significance of 1967 referendum

• ensured first nations were included in total population numbers, allowing any electoral boundaries were determined accurately

• residual into concurrentr

• cwth used power to override laws that were racially discriminatory like in 1975 where they overrode qld laws that treated aboriginal people different, native title act 1993

• highlighted power of the people, need for bipartisan support, importance of simple nature of proposal

discussion points in the ability of the aus people to change the constitution 1967

• overwhelming support may have been influenced by the fact that it was driven by the people, if it was gov driven people may have been less willing due to distrust

• although aus people can change the constitution they can’t force cwth to change laws as they did very little in the policy area for some time despite high levels of need and support

• unanimous support from parliament meant no no case meaning voters weren’t faced with two strong opposing campaigns, no bipartisan may have been different

• the proposal was about a matter arguably easy to understand, had a different question been asked or additional matters added results may have been different

the 2023 referendum

• a proposed law to alter the constitution in recognition of first peoples by establishing an aboriginal and toress strait islander voice was given to voters, amendment would see a insertion of ch9 s129

• it was limited in whether aus voters agreed one establishing a voice, and not on the specific details, composition or functions

• did not have bipartisan support

• unsuccessful with 39.94% support and no majority in states

details of the 2023 referendum voice

• the voice would give independent and non binding advice on law policies and affects on first nations

• members would be elected by first nations communities with balanced gender and inclusion of young members

• the voice would be accountable and transparent, working alongside existing organisations and not have veto power

significance of 2023 referendum

• didn’t change anything form law making perspective

• importance of bipartisan support, clear nature of proposal

• its possible ppl didn’t understand what would practically change due to lack of understanding and voted no

• possible people voted no because they didn’t believe the change went far enough

future constitutional reform after 2023 referendum

• little discussion about reform in relation to recognising first nations

• possibility of future reform in relation to whether australia should be made a republic

ability of aus to change the constitution in the future 2023 - strengths

• no mention of first nations but there is about becoming a republic

• people may be able to drive constitutional change if they support the proposal, 2023 showed younger australians were more supportive

ability of aus to change the constitution in the future 2023 - weaknesses

• while people have the final say they can only do so when the government is interested and proposes a bill

• expensive 2023 450mil