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Reasons for law reform

Definition: The process of contently updating and changing the law so it remains relevant and effective.

law reform must continually take place to ensure our law remain relevant and effective. there are various reasons why law may need to change, which include to address:

changes in beliefs, values and attitudes

These change over time. if law is to remain relevant, it must be kept up with changes. community values change as knowledge increases and society becomes more educated and award.

***age of criminal responsibility - age increased from 10 to 12, now will stay age 12 and will not increase next year. we are seeing increase of criminal activity in younger kids, raising the age to 14 will do more harm than good.

***law reform in cigarettes by children and teenager. extension of law as they now apply to vaping products, banned sale to those under 18, even is there is no nicotine, ban on sale, possession or use of nicotine without prescription

changes in living conditions

is a process that never ends. our laws need to continually reform to make sure they remain relevant and keep up with changes in living conditions such as:

COVID19 living conditions

social

***population grows and changes, some laws need to change to ensure we can live together peacefully and maintain basic standard of living. expected changes to social structure over the nest 25 years include that population will grow and live expectancy will be that of 87. this has implications for law reform areas of health care, taxation, welfare and enforcement infrastructure. other areas include domestic violence, drinking, etc.

changes in economic conditions

economy is continually changing, in tech and globalisation's create issues that need to be addressed by the law. governments need to monitor and change laws that regulate the buying selling and production of goods and services. significant changes in the workforce and in consumer trends. these developments have changes in industrial relations law, consumer protection and banking law and international trading law.

changes in international conditions

***circumstances or global events often influence law reform. global violence and terrorist attacks, international conflict are examples of influences. the commonwealth government monitor both so it can alter laws if necessary, such as anti-terrorism and migration laws.

advances in technology

technology rapid advancement creates new challenges that require legal updates to address issues:

***cyber-bullying, cyber-crime, privacy invasion, and noise pollution from drones. as technology evolves, laws must regulate new inventions and protect individuals from harm or exploitation. e.g. the rise of platforms like ChatGPT may necessitate legislative reform to manage artificial intelligence use.

additionally, cyber-criminals can now more easily access, disclose or delete personal data without consent, leading to significant financial and emotional harm, including identity theft. to combat these risks, there is a growing need for laws that regulate data management practices and ensure businesses notify individuals promptly in the event of a data breach.

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. as society evolves, new laws are needed to address emerging challenges and ensure the safety and ell-being of all community.

***age of criminal responsibility

Individuals influencing law reform through: petitions, demonstrations, courts, and media

PDF is saved here

what is the role of media in law reform?

Raise awareness of an issue. Publish issues in different forms of media including: print, social, TV/radio. Assessing levels of community support.

***Influencing community opinion on the changes in the law —> depending on how it is reported —> depends on the agenda of the media group reporting and their approval/dismissal on governments stance on the issue.

how does media influence law reform?

reporting on either the positive or negative outcomes of protests —> one sided. depends on the agenda of the media group reporting and the approval/disapproval of the governments stance.

The 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 - only need to look at 4

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 AG for law reform
monitoring - after consultation with various groups and law reform bodies, VLRC may make more suggestions to the AG for reform to areas where law reform would be desirable
educations - educate the community of their role

process of VLRC

commission receives a reference/begins community law reform
staff begin research and consult
expert panel is formed
consultation and questioning are published and submissions are called for
consulting with affected parties and the community
submissions received and considered
commission writes a report
report is delivered to victorian AG
report is tabled in parliament then published
government decides on response
parliament decides on legislation

strengths of VLRC	weaknesses of VLRC
government refers and willing to enact change	government may not support VLRC recommendations. needs it support to pass bill. time consuming to pass in parliament
conduct through investigation	investigate minor community issues, based on availability of resources
act without parliament (minor issues) on community suggestions	time consuming and costly
measure community views through consultations and submissions	limited by terms of reference, even is VLRC considers areas may merit reform. Ag tells VLRC to investigate
independent of parliament (objective and unbiased)	no obligation on government to enact reforms
recommendations have been adopted in 75% of cases	VLRC can only recommend changes to victorian parliament not commonwealth

stalking case - referred to in sac/exam

The Victorian Law Reform Commission (VLRC) was tasked with improving stalking laws in Victoria, focusing on victim safety and addressing reporting barriers. Stalking, a criminal offense under section 21A of the Crimes Act 1958 (Vic), can result in up to 10 years in prison. Prompted by the Attorney General, the inquiry highlighted the prevalence of stalking and challenges victims face in seeking help. The VLRC received 115 submissions, 36 consultations, and 254 survey responses. Key recommendations, including improving victim reporting and police practices, were outlined in reports, but none have been implemented yet.

Vilification case

The Victorian parliamentary standing committee conducted an inquiry into anti-vilification laws, examining acts that offend, insult, humiliate, or intimidate others based on specific attributes. Launched in September 2019, the inquiry aimed to assess current laws and explore their expansion. The committee received 73 public submissions from various organizations and released a report in March 2021 with 36 recommendations, including expanding protections and researching vilification causes. In September 2021, the Victorian government supported most recommendations, influencing legislation like the Summary Offences Amendment [Nazi Symbol Prohibition] Act 2022.

Parliamentary committee’s

similarities and differences of parliamentary committees and VLRC

VLRC	Parliamentary Committees
independent from government	government members and non-government members are apart of the committee
attorney general instructs VLRC to research an area and write recommendations for law reform	Prime Minister or Premier will determine the parliamentary committee and who will be part of the committee
allows for input of individuals of non-government.

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.

terms of reference and date for report due
community input - publicity in media and public hearings
recommendations - report and tabling
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	weaknesses
small group working on an inquiry therefore more efficient than all of parliament working on researching an issue	lack of funding and time constraint committees cannot be used to examine all issues and concerns
acts as a check on law making by parliament	committees can only investigate the terms of reference, they cannot go beyond that
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	no requirement for the government to implement recommendations
community and expert input	committees are most effective when there is a bipartisan approach. party politics can be constraining force.
power to request individuals to appear at hearings to give evidence and answer questions regarding the inquiry	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.

using one recent case example, evaluate the ability of parliamentary committees to influence a change in law.

Reasons for constitutional reform

the four reasons for constitutional reform include:

to recognise Australia’s First Nations people

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.

to increase the protection of rights

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.

to change the Commonwealth’s law-making powers

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

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.
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.
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.

to reform Australia’s political system

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.

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 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.

factors affecting referendum success

factor	explanation	success of the referendum	failure of the referendum
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.
do the 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
the nature of the 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.
education about the 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.

the 1967 referendum

changing the constitution - 1967 Aboriginal and Torres Strait Islander peoples referendum. The people wanted to change the wording of the constitution in relation to Indigenous and Torres Strait Islander people read:

commonwealth of Aus Con Act 1900 (UK) 51

- Legislative powers of the parliament

S51(xxvi) ‘The parliament shall, subject to this constitution, have power to make laws fro the peace, order and good government of the commonwealth with respect to… the people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws’

S127 Aborigines not to be counted in reckoning population’

In reckoning the numbers of people of the commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

The 1967 proposal put to the people: two proposals were put to the people

1. altering the members of the house of representatives

2. a question relating to Aboriginal people in Australia

“DO YOU APPROVE the proposed law for the alteration of the Constitution entitled - ‘an act to alter the constitution so as to omit certain words relating to the people of the aboriginal race in any state and so that aboriginals are to be counted in reckoning the population’?”

the results: proposal 1 was rejected, proposal 2 was overwhelmed with ‘Yes” results across Australia. 90.77% were in favour to change the wording of the constitution.

the change made:

S51(xxvi) ‘The parliament shall, subject to this constitution, have power to make laws fro the peace, order and good government of the commonwealth with respect to… the people of any race, ~~other than the aboriginal race in any state~~, for whom it is deemed necessary to make special laws’

~~S127 Aborigines not to be counted in reckoning population’~~

~~In reckoning the numbers of people of the commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.~~

the significance: this area became a concurrent power (was a residual power). Boundaries for determining the electorates and seats for the commonwealth parliament were now bases on all the population in the country, which meant more tex revenue. commonwealth laws overrode state laws that were racially discriminating towards indigenous Australians.

Commonwealth could legislate in areas of land rights, which gave way to the Native Title Act 1993 (Mabo case). Bodies were established that focused solely on issues faced by first nations people. highlighted the facts that change needs ot be made regarding the welfare, rights, anti-discrimination and closing the gap between first nations people and non-indigenous people of australia.

the 2023 referendum

timeline:

May 2022 Anthony Albanese announced there will be referendum on the Voice to Parliament.
November 2022 National Party stated that they would not support the Voice to Parliament (no bipartisan support)
Late 2022 polls suggested that more than 60% of population supported the voice to parliament change in the referendum
early 2023 Amendments to the Voice in Parliament had been made, introduced to Parliament and passed by an absolute majority in both houses

the proposal: to alter the constitution to recognise the first peoples of australia by establishing an Aboriginal and Torres Strait Islander voice. Do you approve?

problems: parliament would still make laws regarding first nations people, bases on the independent advice given to parliament by the body established in the referendum. voters only had to agree that there needed to be direct voice to parliament.

Results: the proposal was rejected. 60.06% of voters nationally noted ‘NO”

Significance: no bipartisan support makes it more difficult to be successful. First Nations people supported the idea of a Voice to parliament where they would have a say in issues that affect them and address the wrongs of the past based on the high ‘YES’ vote in aboriginal communities. the ‘YES’ campaign did not clearly explain what would be changed therefore its safer to vote ‘NO’. needed to be more changed regarding First Nations, it was too limiting or was unconscious or conscious form of racism.

Note