Law reform Flashcards
Reasons for law reform
CHANGES IN BELIEFS VALUES AND ATTITUDES
Values and attitudes change over time and laws must change with them to remain relevant and accepted. Values can change for several reasons, including improved knowledge of topics such as the dangers of tobacco or the therapeutic benefits of medical cannabis. Laws need to be reformed to respond to these changes. Awareness can also lead to changing community attitudes. For example, heightened awareness of animal welfare issues associated with pets breeding lead to a series of law reforms in Victoria under banner of oscars law. These reforms are aimed at reducing cruelty to animals across the breeding industry. Similarly, changing attitudes to LGBTI people have lead to numerous law reforms such as laws which allow same sex couples to register a domestic relationship (to protect the rights and provide proof of relationship) and to lawfully adopt children in Victoria.
CHANGES IN SOCIAL ECONOMICAL AND POLITICAL CONDITIONS
Social conditions
Laws need to change to reflect a growing and changing population. For example, Australia’s population is ageing and life expectancies are increasing so laws regarding health case, taxation and welfare need to respond. Other social changes prompting law reform include increasing domestic violence gang related growth in online sports and gaming.
Economical conditions
The economy is constantly changing and laws need to reflect factors such as new technologies. Globalisation and a shift to part time work that help to drive the economy. Changes to food labelling laws must be more clearly highlight where the product was made and its nutritional content both reflect laws made in response to brands in the economy.
ADVANCES IN TECHNOLOGY
As technology continues to evolve. Laws need yo be created or updated to regulate new inventions or manage the risks of created by the technology. For example, the wider use of mobile phones has lead to numerous new laws and regulations in relation to areas such as privacy, driving, buying and scams. Advances in medical technology also create the need for new reform. For example, the completion of the human genome project opened up many possibilities ad challenges regarding human genes. In Darcy v Myriad genetics 2015, the plaintiff successfully prevented the defendant from being granted a patent in relation to ownership of a gene mutation relating to breast cancer.
GREATER NEED FOR PROTECTION OF THE COMMUNITY
Continual law reform ensures people feel safe and protected from physical, emotional and economical harm. Those less able to protect themselves, such as the disables, children and some minority groups may need extra protection. As new threats and situations emerge laws need to change to address those issues. For example, the crimes amendment act 2016 introduced new laws and more severe penalties for the crimes carjacking and home invasion. This was in response to increasing numbers of these crimes being committed. Similarly, the crimes amendment act 2016 that banned all people from mooning in public reflected concern regarding the frequency of this behaviour.
GREATER AWARENESS OF THE NEED TO PROTECT RIGHTS
Laws relating to equal opportunity to have significantly changed over the last 30 years to protect people from unfair discrimination on numerous grounds, including race, gander and age. Law reform in this area can be slow and controversial at times, but progress continues to be made.
GREATER NEED TO PROVIDE IMPROVEMENT ACCESS TO THE LAW
As more people seek to protect their rights, the law has developed to provide more options for dispute resolution. Legislation in Victoria has created the victorian civil and administrative tribunal to provide a cheaper, quicker and less formal forum for solving civil disputes and the Koori court for the sentencing of indigenous offenders in some circumstances. The department of justice and regulation is consistently making changes to the justice system in an attempt to promote broader access to the justice system.
ENCOURAGING CHANGES IN SOCIETY VALUES
Some laws are made to encourage a change in society values. For example, the victorian charter of human rights and responsibilities act 2006 lists and protests numerous human rights for victorians. Similar, legislation which expunged convictions of those found guilty of homosexual behaviour under old laws promotes a change in values in relation to the treatment of homosexual people
GREATER NEED TO CLARIFY SIMPLIFY OR EXPAND UNCLEAR LAW
Laws that are too complex to be understood by the community need to be simplified or rewritten so that they can be followed by the community. Some laws are altered to ensure constancy between states. For example, the legal profession uniform law application act 2014 was passed in Victoria and new south wales to impose consistent obligations on lawyers in both states
The ability and means by which individuals can influence law reform
PENETITIONS
Can
Simple and inexpensive way to show support for a case
Petitions that gain many signatures are ore likely to be effective as they show greater community support for the issue
A petition presented to a member of parliament must be tabled in parliament and parliament must formally respond
Gathering signatures and tabling a petition can increase awareness of the issue and attract media attention, increasing pressure on the parliament
Can’t
Some people are reluctant to sign petitions as they have to include their address or email address
Smaller petitions not supported by other forms of community pressure normal do not succeed
Parliament receives hundreds of petitions each year and is not obliged to act upon any of them
Most petitions for not gain public media attention and as a result are easier for parliament to ignore
DEMONSTRATIONS
Can
demonstrations that attract media attention and increase pressure to act on parliament
They can raise awareness of an issue and create and attract additional public support
Demonstrations that attract a lot of people highlight a lot of supper for the issue, which increases the pressure on parliament to act
Can’t
If they are violent or cause significant inconvenience, demonstrations gain negative media attention and leas to loss of supper
Demonstrations are hard to organise and hard to attract a lot of peopleThose that attract small numbers or relate to an issue that cannot be changed by law makers in Australia are often ignored and are of little impact
THE USE OF THE COURTS
Can
Challenging an existing law can enable a vague or unclear law to be clarifies
Judges are independent and not subject to political pressure, so they can consider the case on its own merits
Judges have the power to rule legislation to be ultra vires
A judges decision and comments made in court can encourage the parliament to change the law
Can’t
Courts have to wait for a case to come before them and can only ride on that case
Judges are not elected so their decisions may not reflect community views and values
Parliament can abrogate common law, excluding a high court interpretation
Individuals can be reluctant to challenge a case because it can be expensive and time consuming
The role of the media in law reform
SOCIAL MEDIA
Through social media. People are able to communicate very quickly. With this being said, it means that people are able to share their views and opinions with the entire community, through platforms such as facebook, twitter, instagram and youtube. This means that videos can be shared wither supporting or disapproving a particular law or wanting to reform the law. It is becoming a method of choice for announcements and reactions to issues for many politicians.
Around half of Australians still rely on traditional media as their main source of news. Television programs like Q$A and late night often cover topics relating to law reform and provide a forum for politicians and the community to exchange views on such topics. Programs such as four corners, sometimes highlight injustice, policy failure and the need for law reform. For example, its 2016 program on the treatment of children in custody in the Northern Territory led to a royal commission into youth detention in the NT.
TRADITIONAL MEDIA
Traditional media, however, is not always unbiased. More broadcast time can be allocated to presenting views consistent with those of the owners of the relevant media organisations. Similar, stories about things such as demonstrations or press conferences can be edited to manipulate the message sent to viewers and listeners. Ownership of Australia’s traditional media is highly concentrated. This provides significant influence for the large media organisations like news corp, Fairfax media and ABC. Each of the organisations is generally perceived to be more sympathetic to a particular political parties and philosophies so this can directly affect the message they divider on topics such as the need for law reform. They can also influence law reform by publishing selected opinions, through emails, letters and opinion pieces.
The role of the Victorian Law Reform Commission and its ability to influence law reform
ROLE
Undertake initial research and consultation to identify the key issues
Publishes a consultation paper explaining the key issues and inviting community considerations about the issue
Receives submissions from and holds discussions with interested parties, ay conduct surveys or collect other data
May seek expert opinions of key aspects of the relevant issue
Publishes a report on recommended changes in the law and presents the report to the AG who must table it in the Victorian parliament
HOW IT DOES
The VLRC has the ability to measure community views on areas of investigation by holding consultations and receiving public submissions
the VLRC is able to investigate an area comprehensively so the government can initiate a law that covers a whole issue, such as the access to medical cannabis bill 2015, which was the outcome of the VLRC’s report on medical cannabis.
the VLRC has the power to make recommendations on relatively minor legal issues without any reference from the attorney-general, which can lead to important law reform. For example, a review from 2001 on bail resulted in changes to the bail act 1977.
HOW IT DOESN’T
There is no obligation on the part of the parliament to support or introduce law reform to adopt any of the recommendations made by the VLRC
the VLRC’s investigations can be time-consuming and costly
the VLRC is limited by its resources, and therefore can only undertake investigations into minor legal issues if it does not require a significant deployment of those resources
One recent example of the Victorian Law Reform Commission recommending law reform
MEDICAL CANNABIS
the VLRC investigated whether medical cannabis should be legalised for use in specific circumstances. The VLRC held nine community consultations before making 42 recommendations, 40 of which were accepted by the Victorian parliament. An act to allow the use of medical cannabis in Victoria was subsequently passed in 2016.
- Referral
In December 2014 the AG asked the VLRC to report on options for changes to the law to allow people to be treated with medical cannabis in exceptional circumstances - Issues paper
Published march 2015
Identified two areas of investigation, how to define exceptional circumstances, how the law could enable this, whilst still preventing unauthorised cannabis use - Public participation
Nine public consultations held across Victoria
99 submissions received from individuals and organisations - Recommendations
Delivered in august 2015 with 42 recommendations for changes to the law to allow people to be treated with medical cannabis - Response
Tabled in parliament in October 2015
Victoria government announced it fully accepted 40 of the 42 recommendations
In April 2016 the access to medical cannabis act 2016 (Victoria) passed
The role of one Royal Commission, and its ability to influence law reform
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One recent example of a recommendation for law reform by one Royal Commission
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The ability of parliament and the courts to respond to the need for law reform.
CAN
When a case with novel facts comes before them, and no statute exists
When not bound by a precedent, such as in situations when a case is being appealed to a higher court, a case with a similar fact situation to one that was previously decided in a lower court
Judges are appointed rather then elected, and thus are not concerned with voter backlash if they make an unpopular decision. This is a strength as courts can change the lawn controversial issues which parliament may avoid due to political pressure
Can only legislate on the facts of the matter before them. May result in a narrow response to law reform, as opposed to parliament’s ability to respond broadly
CAN’T
Courts cannot actively seek out to reform laws, as they cannily respond when a case comes before them. The case must appear before a superior court of the record, the lawyers must be valid reason for avoiding earlier precedent
If bound by a precedent a court is unable to change the law, even if they want to
Judges are often conservative, and do not believe it is their responsibility to change the law
Parliament may abrogate any response to law reform made by the courts
