1. 4. Law Reform Flashcards
What is law reform? What is law reform necessary? What do usually trigger law reform?
Law Reform in Australia: A Dynamic Approach
Conditions for Law Reform
* Law reform is not just about change, but also about improvement and improvement.
* Changes to laws should reflect societal changes and provide protections against harm.
* Disagreements often arise due to the conditions that led to the need for law reform.
What is de facto relationships? What is the Family Act? Marriage Act?
Relationship between two people who are living together.
What was the De Facto Relationships Act 1984? What was it renamed to? What did it change? What did the Rudd government audit in Commonwealth law? What did it enact?
1/ * The De Facto Relationships Act 1984 (NSW) established rights for people living in de facto relationships.
2/ * The Property (Relationships) Act 1984 (NSW) was amended to include same-sex couples, renaming it the Property (Relationships) Act 1984 (NSW).
3/ It impacted the :Family Law Act 1975 (Cth)
* Deals with property and child matters for de facto and married couples.
* The Property (Relationships) Legislation Amendment Act 1999 (NSW) amended 25 other Acts excluding same-sex couples.
4/* The Rudd government audited Commonwealth legislation in 2008 to remove discrimination and enable same-sex couples and their children to be recognized by Commonwealth law.
* The legislation enacted the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth).
1/ What guides people’s thinking?
2/ What is public morality?
3/ What is law reform a response too?
Changing Social Values
* Social values guide people’s thinking about society and are influenced by individual and cultural factors.
* Public morality, which is not static, evolves with changing social values.
* Law reform is often a response to these evolving social values.
What did the Labour Party advocate for?
- The Labor Party advocated for parliament to amend the Marriage Act 1961 (Cth) to allow same-sex couples to marry.
What happened in December 2017 that resulted in the amendment in the Marriage Act?
Australian Marriage Law Postal Survey and Same-Sex Marriage
* In 2017, the Turnbull government conducted the Australian Marriage Law Postal Survey, which resulted in a 61.1% vote in favor of same-sex marriage.
* The Marriage Act was amended in December 2017 to redefine marriage to ‘the union of two people’ who meet all other requirements.
* The law now protects the rights of all people in a marriage or recognized de facto relationship, whether it be heterosexual or same-sex.
1/ [US] What happened in May 2008 in California? November 2008 what amended it?
2/ Which case legalised same-sex marriage nationwide in June 2015?
3/
Case Study: Same-Sex Marriage in California, United States
* In May 2008, the Supreme Court of California ruled that legislation banning same-sex marriages was discriminatory and violated the state’s Constitution.
* In November 2008, Californian voters overturned the Supreme Court’s ruling by agreeing to change the state’s Constitution in a ballot called ‘Proposition 8’.
* In June 2015, the Supreme Court of the United States legalised same-sex marriage in a nationwide decision (Obergefell v Hodges).
* Public morality on same-sex marriage is not clear-cut in the United States, with some sections opposing any such changes.
What changed peoples view on capital punishment?
Abolition of Capital Punishment
* Capital punishment for murder offences was once seen as the most effective way of dealing with heinous crimes.
* However, when capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting this punishment had little effect as a deterrent.
* Capital punishment is no longer permitted in any Australian jurisdiction due to a greater emphasis on rehabilitation as a means of achieving justice.
What established the Youth Justice Conferences? What the aim of these conferences? How many young people are participating in YJC.
Example: Youth Justice Conferences
* Youth Justice Conferences were established by the Young Offenders Act 1997 (NSW) to divert young, first-time offenders away from the court system.
* The aim of these conferences is to act as a ‘circuit breaker’ in a young person’s behaviour trajectory.
* In 2022–2023, there were 866 young people participating in Youth Justice Conferences.
What is circle sentencing? why was it induced?
Other Law Reform Initiatives
* Circle sentencing for First Nations offenders, the New South Wales Drug Court, and the enforcement of parenting orders in the Federal Circuit and Family Court are other law reform initiatives.
Why do you think there is a new need for a sexual assault court?
Example: Sexual Assault Court
* There has been speculation about the introduction of a specialist court to deal with sexual assault matters.
* This court may be better placed to achieve a balance between ensuring the accused can pursue a defence fairly, while avoiding re-victimising a victim.
What is domestic violence? how many forms does domestic violence manifest?
Combating Domestic Violence in Australia
Definition and Impact of Domestic Violence
* Domestic violence is when someone intentionally uses violence, threats, force, or intimidation to control or manipulate a partner, former partner, or family member.
* It can manifest sexually, physically, verbally, or financially, and in most cases causes psychological harm to the victim.
What is are the victims’ reporting and legal challenges they go through?
Victims’ Reporting and Legal Challenges
* Victims of domestic violence had to report incidents of violence to the local police.
* The initial response of the police to a victim’s report determines whether they proceed further with the complaint.
* The victim also had to rely on assault provisions under the relevant criminal legislation.
What are the amendment made on domestic violence? what concept did it introduce?
Legislation and Law Reforms
* The Crimes (Domestic Violence) Amendment Act 1982 introduced the concept of an Apprehended Domestic Violence Order (ADVO).
* The court must be satisfied ‘on the balance of probabilities’ that the person has reasonable grounds for fear – a lower standard of proof than ‘beyond reasonable doubt’.
* The Crimes (Domestic and Personal Violence) Act 2007 was passed and took effect in 2008.
* The new Act repealed Part 15A of the Crimes Act 1900 (NSW), dealing with apprehended violence orders, and re-enacted those provisions as a new Act.
Additional Domestic Violence Initiatives
* Since 2015, women and children can give evidence via audio- or video-link in domestic violence cases in New South Wales.
* The Australian, state and territory governments released the National Plan to End Violence against Women and Children 2022–2032 (National Plan) in October 2022.
* The NSW Government has also released its Domestic and Family Violence Plan 2022–2027, which will align and coordinate with the National Plan.
Why is there a requirement for further reform?
Future Reform
* Further reform is still required, with NSW Premier Chris Minns calling for a review into bail laws pertaining to domestic violence incidences.
Increased Domestic Violence and New Technology Impact on Australia
- The number of women killed from domestic violence in Australia is on the rise, with an average of one woman killed by an intimate partner every 11 days in 2022–23.
- The April 2024 killing of Molly Ticehurst, allegedly by her partner, was the 25th case of a woman dying from gender-based violence in Australia that year, 11 more than the previous year.
- There are calls for a Royal Commission into this national crisis of staggering proportions.
New Technology and Legal Changes
- Advances in technology often put the law under pressure to remain current.
- The invention of the petrol-powered motor vehicle changed the way people lived in industrialised countries, requiring new laws for safety, ownership, licensing, and environmental protection.
- The development of life-support devices and treatments since the 1960s has led to changes in the legal definition of death.
- The progress made in ‘birth technologies’ has led to changes in laws at both state and federal levels to resolve issues about parentage, inheritance, and financial maintenance.
DNA Evidence in Criminal Matters
- The use of DNA evidence in criminal matters has led to convictions where previously, without other physical evidence, there would have been no conviction.
- The Crimes (Forensic Procedures) Act 2000 (NSW) was introduced to set guidelines for the DNA testing of criminal suspects.
- Amendments to the Act in 2007 allowed DNA samples to be collected from suspects in an increased range of offences.
- The period of time a suspect’s DNA material can be kept for forensic use has been changed, with DNA material not having to be destroyed if a suspect ends up being convicted of a different crime as a result of an investigation of the same acts.
- The NSW Government outsourced some DNA testing to private laboratories in 2008, but this requires further safeguards to ensure the privacy, confidentiality, and integrity of the testing procedures.
Identity Theft and Social Media: Legislative Provisions and Challenges
Identity Theft
* Increase in identity theft due to advancements in technology and software.
* Potential for immediate financial loss, damage to credit rating, and psychological distress.
* Activities include using credit card numbers, fraudulently obtaining loans, evading taxes, money laundering, drug smuggling, people smuggling, and stalking.
* Identity theft is not a criminal offence under Australian federal law, but what is done with the stolen identity can be considered criminal conduct.
* Current legislation requires proof that the accused had the intent to use the information to obtain a financial benefit.
* Law reform could include enacting state and federal legislation creating general identity crime offences.
Legislative Provisions for Identity Theft in New South Wales
* Section 192E of the Crimes Act 1900 (NSW) is most directly relevant to identity theft.
* Other sections could be used to prosecute identity crime, including dealing with identification information, possession of identification information, intention to defraud by false or misleading statement, and intention to defraud by destroying or concealing accounting records.
* Unauthorised access to and modification of computer data are covered in Part 6 of the Crimes Act 1900 (NSW).
* As of June 2023, 31% of respondents have experienced identity crime in their lifetime.
Social Media: Responsibility of Social Media Companies
* The advent of social media platforms has raised complex challenges, including the responsibility social media companies have regarding what is posted on their platforms.
* The denial of a request by X to remove a violent video from its platform has galvanized political efforts to strengthen laws regarding social media content regulation within Australian borders.
* ‘Post and boast laws’ have been introduced to address the ‘growing phenomenon’ of crimes being posted to social media, with arrests coming under specialist Strike Force Sweetenham.
Australian Marriage Law Postal Survey and Same-Sex Marriage
* In 2017, the Turnbull government conducted the Australian Marriage Law Postal Survey, which resulted in a 61.1% vote in favor of same-sex marriage.
* The Marriage Act was amended in December 2017 to redefine marriage to ‘the union of two people’ who meet all other requirements.
* The law now protects the rights of all people in a marriage or recognized de facto relationship, whether it be heterosexual or same-sex.
Case Study: Same-Sex Marriage in California, United States
* In May 2008, the Supreme Court of California ruled that legislation banning same-sex marriages was discriminatory and violated the state’s Constitution.
* In November 2008, Californian voters overturned the Supreme Court’s ruling by agreeing to change the state’s Constitution in a ballot called ‘Proposition 8’.
* In June 2015, the Supreme Court of the United States legalised same-sex marriage in a nationwide decision (Obergefell v Hodges).
* Public morality on same-sex marriage is not clear-cut in the United States, with some sections opposing any such changes.
Abolition of Capital Punishment
* Capital punishment for murder offences was once seen as the most effective way of dealing with heinous crimes.
* However, when capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting this punishment had little effect as a deterrent.
* Capital punishment is no longer permitted in any Australian jurisdiction due to a greater emphasis on rehabilitation as a means of achieving justice.
Example: Youth Justice Conferences
* Youth Justice Conferences were established by the Young Offenders Act 1997 (NSW) to divert young, first-time offenders away from the court system.
* The aim of these conferences is to act as a ‘circuit breaker’ in a young person’s behaviour trajectory.
* In 2022–2023, there were 866 young people participating in Youth Justice Conferences.
Other Law Reform Initiatives
* Circle sentencing for First Nations offenders, the New South Wales Drug Court, and the enforcement of parenting orders in the Federal Circuit and Family Court are other law reform initiatives.
Example: Sexual Assault Court
* There has been speculation about the introduction of a specialist court to deal with sexual assault matters.
* This court may be better placed to achieve a balance between ensuring the accused can pursue a defence fairly, while avoiding re-victimising a victim.
Australian Marriage Law Postal Survey and Same-Sex Marriage
* In 2017, the Turnbull government conducted the Australian Marriage Law Postal Survey, which resulted in a 61.1% vote in favor of same-sex marriage.
* The Marriage Act was amended in December 2017 to redefine marriage to ‘the union of two people’ who meet all other requirements.
* The law now protects the rights of all people in a marriage or recognized de facto relationship, whether it be heterosexual or same-sex.
Case Study: Same-Sex Marriage in California, United States
* In May 2008, the Supreme Court of California ruled that legislation banning same-sex marriages was discriminatory and violated the state’s Constitution.
* In November 2008, Californian voters overturned the Supreme Court’s ruling by agreeing to change the state’s Constitution in a ballot called ‘Proposition 8’.
* In June 2015, the Supreme Court of the United States legalised same-sex marriage in a nationwide decision (Obergefell v Hodges).
* Public morality on same-sex marriage is not clear-cut in the United States, with some sections opposing any such changes.
Abolition of Capital Punishment
* Capital punishment for murder offences was once seen as the most effective way of dealing with heinous crimes.
* However, when capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting this punishment had little effect as a deterrent.
* Capital punishment is no longer permitted in any Australian jurisdiction due to a greater emphasis on rehabilitation as a means of achieving justice.
Example: Youth Justice Conferences
* Youth Justice Conferences were established by the Young Offenders Act 1997 (NSW) to divert young, first-time offenders away from the court system.
* The aim of these conferences is to act as a ‘circuit breaker’ in a young person’s behaviour trajectory.
* In 2022–2023, there were 866 young people participating in Youth Justice Conferences.
Other Law Reform Initiatives
* Circle sentencing for First Nations offenders, the New South Wales Drug Court, and the enforcement of parenting orders in the Federal Circuit and Family Court are other law reform initiatives.
Example: Sexual Assault Court
* There has been speculation about the introduction of a specialist court to deal with sexual assault matters.
* This court may be better placed to achieve a balance between ensuring the accused can pursue a defence fairly, while avoiding re-victimising a victim.
Australian Marriage Law Postal Survey and Same-Sex Marriage
* In 2017, the Turnbull government conducted the Australian Marriage Law Postal Survey, which resulted in a 61.1% vote in favor of same-sex marriage.
* The Marriage Act was amended in December 2017 to redefine marriage to ‘the union of two people’ who meet all other requirements.
* The law now protects the rights of all people in a marriage or recognized de facto relationship, whether it be heterosexual or same-sex.
Case Study: Same-Sex Marriage in California, United States
* In May 2008, the Supreme Court of California ruled that legislation banning same-sex marriages was discriminatory and violated the state’s Constitution.
* In November 2008, Californian voters overturned the Supreme Court’s ruling by agreeing to change the state’s Constitution in a ballot called ‘Proposition 8’.
* In June 2015, the Supreme Court of the United States legalised same-sex marriage in a nationwide decision (Obergefell v Hodges).
* Public morality on same-sex marriage is not clear-cut in the United States, with some sections opposing any such changes.
Abolition of Capital Punishment
* Capital punishment for murder offences was once seen as the most effective way of dealing with heinous crimes.
* However, when capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting this punishment had little effect as a deterrent.
* Capital punishment is no longer permitted in any Australian jurisdiction due to a greater emphasis on rehabilitation as a means of achieving justice.
Example: Youth Justice Conferences
* Youth Justice Conferences were established by the Young Offenders Act 1997 (NSW) to divert young, first-time offenders away from the court system.
* The aim of these conferences is to act as a ‘circuit breaker’ in a young person’s behaviour trajectory.
* In 2022–2023, there were 866 young people participating in Youth Justice Conferences.
Other Law Reform Initiatives
* Circle sentencing for First Nations offenders, the New South Wales Drug Court, and the enforcement of parenting orders in the Federal Circuit and Family Court are other law reform initiatives.
Example: Sexual Assault Court
* There has been speculation about the introduction of a specialist court to deal with sexual assault matters.
* This court may be better placed to achieve a balance between ensuring the accused can pursue a defence fairly, while avoiding re-victimising a victim.
Australian Marriage Law Postal Survey and Same-Sex Marriage
* In 2017, the Turnbull government conducted the Australian Marriage Law Postal Survey, which resulted in a 61.1% vote in favor of same-sex marriage.
* The Marriage Act was amended in December 2017 to redefine marriage to ‘the union of two people’ who meet all other requirements.
* The law now protects the rights of all people in a marriage or recognized de facto relationship, whether it be heterosexual or same-sex.
Case Study: Same-Sex Marriage in California, United States
* In May 2008, the Supreme Court of California ruled that legislation banning same-sex marriages was discriminatory and violated the state’s Constitution.
* In November 2008, Californian voters overturned the Supreme Court’s ruling by agreeing to change the state’s Constitution in a ballot called ‘Proposition 8’.
* In June 2015, the Supreme Court of the United States legalised same-sex marriage in a nationwide decision (Obergefell v Hodges).
* Public morality on same-sex marriage is not clear-cut in the United States, with some sections opposing any such changes.
Abolition of Capital Punishment
* Capital punishment for murder offences was once seen as the most effective way of dealing with heinous crimes.
* However, when capital punishment was abolished in each of the Australian states, the murder rate remained relatively unchanged, suggesting this punishment had little effect as a deterrent.
* Capital punishment is no longer permitted in any Australian jurisdiction due to a greater emphasis on rehabilitation as a means of achieving justice.
Example: Youth Justice Conferences
* Youth Justice Conferences were established by the Young Offenders Act 1997 (NSW) to divert young, first-time offenders away from the court system.
* The aim of these conferences is to act as a ‘circuit breaker’ in a young person’s behaviour trajectory.
* In 2022–2023, there were 866 young people participating in Youth Justice Conferences.
Other Law Reform Initiatives
* Circle sentencing for First Nations offenders, the New South Wales Drug Court, and the enforcement of parenting orders in the Federal Circuit and Family Court are other law reform initiatives.
Example: Sexual Assault Court
* There has been speculation about the introduction of a specialist court to deal with sexual assault matters.
* This court may be better placed to achieve a balance between ensuring the accused can pursue a defence fairly, while avoiding re-victimising a victim.
