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Legal Studies > U4 AOS2 > Flashcards

U4 AOS2 Flashcards

1
Q

what are the reasons for law reform?

A
  • to address changes in beliefs, values, and attitudes
  • to address changes in living conditions
  • to address advances in technology
  • to address a greater need for protection of the community
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2
Q

what is a strength of law reform in order to address changes in beliefs, values, and attitudes?

A

beliefs, values, and attitudes often change as society becomes more educated

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3
Q

what is a weakness of law reform in order to address changes in beliefs, values, and attitudes?

A

if changes to the law are too rapid, society may be more reluctant to accept the laws/they may be met with resistance

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4
Q

what is an example of law reform due to changes in beliefs, values, and attitudes?

A

when societal attitudes towards smoking changed due to us becoming aware of the health risks associated with it, anti-amoking laws were introduced due to the now widespread negative attitude

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5
Q

what are the 3 types of living conditions that may result in a need for law reform?

A
  • social conditions
  • economic conditions
  • international conditions
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6
Q

what are examples of social conditions that may result in law reform?

A
  • population growing
  • life expectancy increasing
  • increases in domestic violence
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7
Q

what are examples of economic conditions that may result in law reform?

A
  • increasing female participation in the workforce
  • increasing part-time and casual employment
  • increases in online shopping
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8
Q

what are examples of international conditions that may result in law reform?

A
  • increasing global violence
  • global threat of terrorist attacks
  • international conflicts, e.g. wars
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9
Q

what is an example of law reform due to advances in technology?

A

new laws in areas of genetic research due to new breakthroughs being made in this new area of science and medicine

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10
Q

what is an example of law reform in order to address greater need for protection of the community?

A

environmental laws + human and animal rights laws that have come as a result of danger occuring towards the environment, humans, and animals

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11
Q

what are the ways that individuals and groups can influence a change in the law?

A
  • petitions
  • demonstrations
  • the use of the courts
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12
Q

what is a petition?

A

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

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13
Q

what are examples of what petitions might aim to do?

A
  • introduce a new law
  • amend an existing law
  • take a particular course of action in relation to a policy matter or complaint
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14
Q

what are some common rules of petitions?

A
  • must be prepared in a particular format in order to be accepted by the specific parliament
  • must be addressed to the house in which it is being presented
  • clearly states the action being requested
  • is limited by words
  • contains the details of the person who initiates/organises the petition
  • is legible with no offensive language
  • has at least one signature
  • must be created as an e-petition on the parliament’s website
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15
Q

what is the rule regarding sponsoring petitions in the victorian parliament?

A

all petitions must be sponsored by a member of parliament in order to be tabled and presented in the victorian parliament

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16
Q

what might petitions be in relation to?

A
  • an issue of general community interest
  • an issue relevant to a specific group of people
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17
Q

what are the stages of a petition in the house of representatives?

A
  • e-petition requested online
  • certification by the committee
  • signatures collected online for 4 weeks
  • presented to the house of reps
  • referred to a minister for a response
  • response seen by the committee
  • response presented to the house of reps
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18
Q

what are the strengths of petitions in influencing law reform?

A
  • petitions with lots of signatures will be more representative of the community
  • principle of representative government means that the government is more likely to make laws in accordance with community values
  • the member of parliament presenting/sponsoring the petition may be very high-profile and passionate about the issue
  • only petitions created on the parliament’s website can be presented, preventing unneccessary or repetitive petitions
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19
Q

what are the weaknesses of petitions in influencing law reform?

A
  • some people are reluctant to put their name, address, or email address on a petition, despite supporting the cause
  • petitions must adhere to certain rules to be presented to parliament
  • petitions in the victorian parliament must be tabled by a member of parliament
  • the ability of the petition to influence law reform may be affected by whether an mp is willing to present it, who tables it, and their influence within parliament
  • there is no guarantee for a petition to be adopted by parliament
  • may petitions don’t gain public attention after being tabled
  • opposing petitions can reduce the impact of the petition
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20
Q

what is a demonstration?

A

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

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21
Q

what is the aim of a demonstration?

A

to bring an issue to the attention of both the community and law-makers

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22
Q

what are the strengths of demonstrations?

A
  • may gain media attention if creative and original, even if it is small
  • non-violent demonstrations that are still disruptive may generate media attention
  • ongoing events with several public demonstrations will often be memorable and gather support
  • may gather global support and attention, even if the parliament of that country can’t do anything
  • organised demonstrations have more impact + show a united front
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23
Q

what are the weaknesses of demonstrations?

A
  • if there are only few participants, they may not generate awareness
  • violent/inconvenient demonstrations may be less effective in gathering support
  • demonstrations that are single events may be forgotten and therefore less effective
  • demonstrations may focus on an issue that the country’s gov. cannot change
  • demonstrations may be unorganised and have an unclear call to action, therefore having little impact
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24
Q

what does ultra vires mean?

A

beyond the powers, or when a law is made beyond the powers of the parliament

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25
Q

what are some reasons that individuals can use the courts to challenge laws?

A
  • to challenge laws to do with equality
  • to challenge existing legislation by claiming it was made outside of the law-making powers of whichever body created it
  • to challenge existing state legislation on the basis that it conflicts with federal legislation (section 109)
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26
Q

what are the strengths of using the courts?

A
  • can highlight to parliament thar there is a need for reform in an area of law
  • can influence judges to use their relationship with parliament + influence parliament to change a certain law in their court judgements
  • high court decisions about constitutional matters cannot be abrogated by parliament
  • judges are politically independent and therefore can determine cases based on the facts, rather than the need to gain voter support
  • a judge’s decision may lead to clarification about the meaning of a law, e.g. they may interpret words of phrases in the law through statutory interpretation
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27
Q

what are the weaknesses of using the courts?

A
  • courts can only change the law when a case is brought before them
  • can only change the law in relation to the specific issue presented in the case
  • relies on individuals being willing to challenge a law in court
  • requires individuals to have standing
  • court cases can be costly, time-consuming, and stressful
  • no guarantee of success
  • judges must wait for parties to challenge the authority of parliament to declare any law ultra vires
  • judge-made law can be abrogated at any time
  • judges are not elected by the public, therefore their decisions may not represent the views and values of the community
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28
Q

what is media?

A

the way that information is communicated to the public

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29
Q

what are the types of media?

A
  • print media
  • broadcast media
  • digital media (including social media)
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30
Q

what are the roles of the media in law reform?

A
  • informing + raising awareness
  • assessing levels of community support
  • influencing community opinion on a change in the law
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31
Q

how does the media inform and raise awareness?

A
  • can inform people about social, political, and legal issues
  • provides a platform for government, parliament, and political parties to explain to the community the need for law reform or their plans for law reform
  • the media can reach large numbers of the population
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32
Q

how does the media assess levels of community support?

A
  • through media polls and surveys that re used to gauge public opinion about a particular issue
  • through data analytics (tools that allow them to rack online behaviour)
  • through monitoring ‘letters to the editor’ about certain issues
  • throug measuring the amounts of likes, shares, etc. about a particular post
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33
Q

how does the media influence community opinion?

A
  • many media organisations are high profile
  • the media can investigate local, national, and global events and circumstances
  • the media can scrutinise gov. policy
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34
Q

what are the limitations of the roles of the media?

A
  • media concentration
  • the risk of the spread of misinformation
  • the use of algorithms online
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35
Q

what is media concentration?

A

the ownership of mass media by very few individuals or groups

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36
Q

why are algorithms a limitation of the roles of the media?

A
  • can cause readers to only see a certain viewpoint on an issue/not consider alternative viewpoints
  • can cause readers to potentially be completely unaware of an issue
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37
Q

what are the strengths of the media?

A
  • can create interest/raise awareness about issues
  • can gauge community support + influence community views about certain issues
  • can reach a large number of people (especially social media)
  • can give individuals direct access to organisations and political parties
  • parliament can use the media to gauge public opinion of a proposed law reform
  • can influence community support through investigating + reporting on issues
  • can pressure the government to act + encourage people to act (e.g. petitions, demonstrations)
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38
Q

what are the weaknesss of the media?

A
  • can be unreliable or biased
  • social media news generally does not follow same ethics as traditional news
  • inaccurate stories can spread fast and are difficult to get rid of
  • excessive exposure to graphic images may cause people to be overwhelmed or desensitised to injustice
  • algorithms can influence what people are reading/show them only a limited amount of information
  • may try to influence the community/change the way that they vote with their biases
  • high concentration of media ownership gives certain individuals power to influence community views
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39
Q

what is a law reform body?

A

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

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40
Q

what are the aims of law reform bodies?

A
  • to give impartial advice
  • to make practical recommendations
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41
Q

what is the victorian law reform commission (vlrc)?

A

victoria’s leading independent law reform organisation that reviews, researches, and makes recommendations to the state parliament about possible changes to victoria’s laws

42
Q

how was the vlrc established?

A

by a statute that passed through the vic gov in 2000

43
Q

who created and funded the vlrc?

A

the vic gov, although the vlrc is an independent body from the government

44
Q

what are the functions of the vlrc?

A
  • major inquiry
  • community inquiry
  • monitoring
  • education
45
Q

what is major inquiry?

A

examining/reporting on any proposal/matter referred to the vlrc by the vic attorney-general, then making recommendations to the attorney-general for law reform

46
Q

what is community inquiry?

A

investigating relatively minor legal issues that the vlrc believes to be of general concern within the community, and to then report back to the attorney-general with law reform suggestions

47
Q

what is monitoring?

A

monitoring and coordinating any law reform activity in vic, then making suggestions to the attorney general that they refer a legal matter to the vlrc

48
Q

what is education?

A

undertaking educational programs to inform the community on any area of the law that is relevant to its investigations or references, and to deliver programs to help inform the community about its work

49
Q

what are terms of reference?

A

instructions given to a formal body (e.g. a royal commission or a law reform body, such as vlrc) to investigate an important matter, that set out the precise scope of the inquiry, its purpose, and the date that the final report must be completed

50
Q

how can terms of reference be received by the vlrc?

A
  • received from the attorney general
  • drafted by the vlrc about a minor legal issue of general community concern
51
Q

processses that are used by the vlrc?

A
  • undertaking initial research and consulting experts
  • establishing an expert panel or committee
  • publishing a consultation paper
  • holding consultations and discussions tat invite submissions
  • publishing a final report
  • presenting the final report to the attorney-general
52
Q

what is the recent vlrc project?

A

the 2022 vlrc inquiry into victoria’s laws on stalking (received terms of reference from the attorney-general)

53
Q

reasons for the vlrc inquiry into stalking?

A
  • the prevalance of non-family violence stalking within the community
  • the intimidating + frightening nature of stalking
  • the lack of community awareness surrounding stalking as a crime
  • the difficulty associated with seeking assistance through the criminal justice system
54
Q

what did the terms of reference ask the vlrc to consider in the vlrc into stalking?

A
  • how laws could be strengthened to promote + enhance victim safety and wellbeing
  • barriers to reporting for victims of stalking
  • sentencing practises + sentencing options
55
Q

what were some of the parts involved in the inquiry process in the vlrc into stalking?

A
  • 115 submissions from interested individuals and organisations
  • consultations with experts
  • small group discussions with affected people
56
Q

how long did the vlrc inquiry into stalking take?

A

a year and a half

57
Q

what did the interim report focus on for the vlrc into stalking?

A

improving vic police’s ability to identify stalking + respond to it (after it has occured)

58
Q

what did the final report focus on for the vlrc into stalking?

A

preventing stalking before it occurs

59
Q

how many recommendations were given at the end of the vlrc into stalking?

A

45

60
Q

what were some of the recommendations given in the final report of the vlrc inquiry into stalking?

A
  • that victims can more easily obtain financial and practical support to improve their ability to report stalking
  • that vic gov funds + supports ongoing public education about non-family stalking and cyber-stalking
  • that the crimes act be amended to clarify the offence of stalking to make it easier for people to understand
61
Q

what are the strengths of the vlrc in influencing law reform?

A
  • gov is more likely to act on recommendations because they give the terms of reference
  • vlrc has the power to investigate + make recommendations on minor matters without terms of reference
  • can measure community views by holding consultations/receiving submissions
  • can investigate an area comprehensively so the gov can initiate new legislation that covers the whole issue
  • has great influence over vic parliament, as most of its recommendations are adopted into law
62
Q

what are the weaknesses of the vlrc influencing law reform?

A
  • the gov may support the vlrc’s recommendations, however, it may need the support of the crossbench to pass the law reform
  • the law-making process is slow, law reform may not be implemented straight away
  • vlrc is limited with how many projects it can take on at any one time
  • investigations and inquiries and time consuming
  • investigations are limited to the terms of reference
  • vlrc can only recommend changes to vic parliament, not commonwealth
63
Q

what is a royal commission?

A

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

64
Q

who establishes a royal commission?

A

established by either the governor (at the state level) or the governor-general (at the commonwealth level), however, established on the advice of the premier/prime minister, therefore in reality established by the gov.

65
Q

where can royal commissions be established?

A

at the commonwealth or the state level

66
Q

what are the processes used by royal commissions?

A
  • preparing consultation, research, or backgorund papers
  • undertaking consultation sessions
  • seeking community imput via submissions
  • obtainoing documents
  • holding public hearings
67
Q

when was the robodebt scheme established and what was it then called?

A

2016, called the online compliance intervention (oci)

68
Q

what was the purpose of the robodebt scheme?

A

to ensure that people who received welfare benefits from the gov via centrelink met the qualifying criteria

69
Q

how was the oci system faulty?

A

if it discovered that a welfare overpayment had been made, it sent a debt recovery notice, however, it automatically sent debt recovery notices to people who hadn’t received welfare overpayments

70
Q

how may people were affected by the incorrect debt recovery notices as past of the robodebt scheme?

A

over 470 000

71
Q

when was the oci system discontinued?

A

2020

72
Q

what were the purposes of the robodebt scheme?

A
  • examining who was responsible for designing + setting it up + why it was implemented
  • examining the use of external/non-gov. debt collectors
  • examining concenrs raised after the scheme was implemented
  • examining the intended vc actual outcomes of the scheme, including the impacts on invividuals
73
Q

what was the budget for the robodebt royal commission?

A

$30 million

74
Q

how long was the robodebt royal commission given to investigate + prepare its final report?

A

8 months

75
Q

what methods did the royal commission into the robodebt scheme use while inquiring?

A
  • accepting written + oral submissions
  • holding public hearings
  • compelled gov departments to produce documents
76
Q

what were the key findings of the robodebt royal commission?

A
  • highlighted the harm that was caused by the failure of gov administration
  • outlined the number of failings in the way the scheme was set up, implemented, and monitored
77
Q

what recommendations were made by the royal commission into the robodebt scheme?

A
  • that services australia (department that manages centrelink) designs its policies + processes with a primary emphasis on the recipients it is meant to serve
  • that services australia should ensure they have regard to any vulnerable people who may be affected by any compliance programs when designing such programs
78
Q

what are the strengths of royal commissions in influencing law reform?

A
  • gov can use findings to justify making law changes
  • important in raising community awareness
  • encourage individuals to make submissions to royal commissions
  • encourage individuals to utilise their own methods of influencing change to the law (e.g. petitions)
  • gov is likely to act on recommendations because they give the royal commission the terms of reference
  • measure community views on an area
  • investigate an area comprehensively
  • wide-ranging powers, including the power to call anyone to appear before them to give evidence
  • independent of parliaemnt, therefore are more likely to remain objective and unbiased in their recommendations
79
Q

what are the weaknesses of royal commissions in influencing law reform?

A
  • may lose credibility in situations where the gov of the day chooses no tto include any areas that may be politically damaging to them in the terms of reference
  • extent to which the royal commission can influence law reform = depends on the subject matter of the commission + if it has bipartisan support
  • may be used as a tool against political opponents
  • parliament has no obligation to adopt recommendations
  • can take 2-4 years, time-consuming
  • expensive
  • royal commissions choose how they want to undertake their investigations, therefore it is possible that certain individuals have information but are not called upon
  • ability of royal commissions to influence law reform = depends on timing of reporting + terms of reference
80
Q

what is constitutional reform?

A

when the constitution needs changing or updating because it may not be adequate for the changing needs + circumstances of the australian people

81
Q

what are the reasons for constitutional reform?

A
  • to recognise australia’s first nations people
  • to increase the protection of rights
  • to change the commonwealth’s law-making powers
  • to reform australia’s political system
82
Q

what is an example of recognising first nations people as a reason for constitutional reform?

A

the voice referendum

83
Q

what is an example of increasing the protection of rights as a reason for constitutional reform?

A

the belief by some that aus should implement a bill of rights into the constitution

84
Q

what is an example of changing the commonwealth’s law-making powers as a reason for constitutional reform?

A

proposing to change the constitution to extend the commonwealth’s law-making powers in relation to air navigation and aircraft

85
Q

what are examples of reforming australia’s political system as a reason for constitutional reform?

A
  • the timing of federal elections
  • allowing more people to be eligible to sit in parliament
  • becoming a republic
86
Q

where is the process for changing the constitution set out?

A

in section 128 of the constitution

87
Q

what are the 3 main steps of the process of constitutional reform?

A
  • the parliament
  • the people
  • the governor-general
88
Q

what is a referendum?

A

a compulsory vote on a proposed change to the wording of the australian constitution

89
Q

what is a double majority?

A

a voting system that requires a national majority of all voters in australia and a majority of electors in a majority of states (a majority of voters in at least states) to vote in favour of the proposal (a double majority is required for a referendum to pass and therefore for a change to be made to the wording of the australian constitution

90
Q

what factors affect the success of a referendum?

A
  • whether there is bipartisan support for the proposal
  • whether the voters themselves are seeking change
  • the nature of the proposal
  • education about the proposal
91
Q

what is bipartisan support?

A

approval by 2 or more political parties

92
Q

what was the most successful referendum in australia and how much support did it have?

A

the 1967 referendum that has over 90% of voter support

93
Q

what was the race power and what part of the constitution was it set out in prior to the 1967 referendum?

A

the part of the constitution that gave the commonwealth the power to make laws in relation to any race other than ‘the aboriginal race’ -> set out in section 51 (xxvi) of the constitution

94
Q

how was law made in relation to aboriginal and torres strait islanders before the 1967 referendum?

A

made by the states

95
Q

what did the constitution say about aboriginal people and national censues and in what section was this said prior to the 1967 referendum?

A

section 127 of the constitution, states that first nations people were not to be counted in national censuses that determine the amount of people in each state and in australia

96
Q

what were the reasons for the 1967 referendum?

A
  • indigenous and non-indigenous people thorugh that these sections of the constitution were discriminatory and racist
  • pressure grew in the 1960s for there to be greater protection of aboriginal rights and for the commonwealth to be able to legislate in the area of first nations people
97
Q

what were the 2 referendums that were put to voters in 1967?

A
  • one in relation to altering the members of the house of reps
  • one in relation to aboriginal people
98
Q

what changed as a result of the 1967 referendum?

A
  • section 51 (xxvi) was altered (the race power) to omit the words ‘other than the Aboriginal race’
  • section 127 was comepletely removed
99
Q

how did the 1967 referendum alter the division of powers?

A

made legislation surrounding aboriginal people a concurrent power rather than a residual power

100
Q

what were the results of the 1967 referendum?

A

over 90% of voters voted yes to the aboriginal rights referendum, however the referendum altering the members of the hosue of reps did not pass

101
Q

what was the positive significance of the 1967 referendum?

A
  • led to a key constitutional reform that allowed the commonwealth to legislate in an area of now concurrent power
  • allowed for first nations people to be counted in state and national censuses, therefore ensuring that commonwealth tax revenue was distributed based on actual population counts
  • showed that constitutional change is possible, and the australian people do have the ability to significantly influence change
  • proposal was driven by the people
  • referendum was likely successful as it has bipartisan support and there was a lack of a ‘no’ campaign
  • the referendum proposal was easy for voters to understand
102
Q

what was the negative significance of the 1967 referendum?

A
  • if the proposal had been driven by politicans and the government rather than by the people, people may have been less willing to support it
  • although the aus people can change the constitution through referendum voting, they cannot necessarily force the commonwealth to change laws
  • the commonwealth did very little to legislate this new area for approx. 5 years
  • if the referendum didn’t have bipartisan support, it likely would not have passed
  • the other referendum proposal about increasing the number of members elected to the house of reps did not pass, showing that although voters can embrace one propoal, they can reject another one on the same day
  • if the proposal had been difficult to understand, had been asked differently, or had included a lot of additional matters, people may have voted differently due to a lack of knowledge + a lack of understanding

Legal Studies (10 decks)

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