U4 AOS2: Law reform

Question 1

Reasons for law reform

Answer 1

• Changes in beliefs, values and attitudes within the community
• Changes in social, economic and political conditions
• Advances in technology
• Greater need for protection in the community
• Greater awareness of the need to protect rights
• Greater need to provide improved access to the law
• Encouraging changes in social values
• Greater to clarify, simplify or expand unclear laws

Question 2

Changes in beliefs, values and attitudes

Answer 2

Values and attitudes change over time, and laws must keep up with those changes.
Rapid changes may be resisted, and sometimes changing laws to keep up with values an result in another problem requiring law reform.
Examples: smoking laws, Oscar’s Law, equality for LGBTIQ people.

Question 3

Changes in social, economic and political conditions

Answer 3

• Changes in social conditions: changes as Australia’s population grows and changes (e.g. binge drinking, online gambling, obesity epidemic).
• Changes in economic conditions: governments need to monitor and change laws in relation to goods and services, changes in the workforce, consumer trends etc. (e.g. competition laws, changes in employment laws).
• Changes in political conditions: changing domestic and international circumstances or global events (e.g. migration laws).

Question 4

Advances in technology

Answer 4

As technology improves, laws need to be altered and updated. Laws may need to control and regulate new inventions and opportunities, or protect people from being harmed or exploited because of new technology.
Example: changes to laws in relation to genes and patenting of genes.

Question 5

Greater need for protection of the community

Answer 5

Laws should make sure individuals and groups within a community feel safe and protected from harm.
Some people have specific needs and rights that must be protected (e.g. children, people with disabilities).
Example: new laws introducing carjacking and home invasion crimes and more severe penalties for those crimes.

Question 6

Greater need to clarify, simplify or expand unclear laws

Answer 6

Laws need to be understood by all members of the community to effective.
Laws can be simplified or rewritten in plain English to be more accessible to the community.

Question 7

Petitions

Answer 7

A petition is a formal written request to the government to take action towards a particular law that is out-dated or unfair.

Petitions can be print or digital and must be signed by at least one individual. E-petitions (digital petitions) have become popular and most houses of parliaments accept e-petitions (but not the Legislative Assembly).

Example of petition: plastic bans

Question 8

Petitions to parliament must

Answer 8

• Be addressed to only one house of parliament
• Be about a matter that parliament has the power to address
• Have a brief explanation of the reasons for the petition
• Have a request for parliament to take action
• Be legible and not contain any disrespectful or offensive language
• Be presented or tabled in parliament by a member of parliament.

Question 9

Advantages VS disadvantages of petitions

Answer 9

Advantages

• Petitions are a relatively simple, easy and inexpensive way for people to show their desire for a change in the law
• Members of parliament are more likely to consider law reform that has strong support within the community.
• An e-petition enables members of the public to submit and sign petitions online, and to track their progress. A wider pool of signatories may find petitions online.

Disadvantages

• Some people are reluctant to place their name, address or email address on a petition and can find requests to do so an imposition.
• Good ideas may be overlooked if there is no other community pressure beyond the petition.
• Parliaments receive hundreds of petitions each year and there is no guarantee or compulsion for the suggested law reform to be adopted

Question 10

Petitions effectiveness

Answer 10

While petitions are a relatively simple and inexpensive way for people to influence a change in the law, once they are tabled in parliament there is no guarantee that parliament will introduce the desired change.
If there is no other pressure, petitions can fail to gain attention. The impact of the petition can also depend on the passion and profile of the member of parliament who presents it.

Question 11

Demonstations

Answer 11

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

Demonstrations need to attract large numbers of people and positive media coverage to be effective.
Demonstrations can take different forms but they all aim to bring an issue to the attention of the community and the law-makers with the objective of influencing reform.
Examples of demonstrations: Australia Day demonstrations, taxi industry reforms,

Question 12

Advantages VS disadvantages of demonstrations

Answer 12

Advantages

• Demonstrations that attract large numbers of participants can attract free positive media attention. Members of - Parliament are more likely to consider law reform that has strong support within the community.
• Demonstrations can gain the support of members of parliament who want to ‘adopt a cause’ – particularly a popular cause that might improve their public profile or image.
• An effective demonstration will focus on something that can be directly changed.

Disadvantages

• Demonstrations can be less effective and even decrease support for a law change if they cause public inconvenience, become violent or lead to breaches of the law. Furthermore, any negative media attention may decrease the credibility of a demonstration and the likelihood of members of parliament supporting the cause.
• Demonstrations can be difficult and time-consuming to organise and attendance can be affected by factors like the location and weather.
• Demonstrations are often single or ‘one off’ events that may not generate ongoing support for the desired law reform.

Question 13

Effectiveness of demonstrations

Answer 13

Demonstrations can be less effective and even decrease support for a law change if they cause public inconvenience, become violent or lead to breaches of the law. Furthermore, any negative media attention may decrease the credibility of a demonstration and the likelihood of members of parliament supporting the cause.
Demonstrations can be difficult and time-consuming to organise and attendance can be affected by factors like the location and weather.
Demonstrations are often single or ‘one off’ events that may not generate ongoing support for the desired law reform.

Question 14

Individuals influencing law reform through the courts

Answer 14

Social media (internet tools, applications, programs and bookmarking sites) and traditional media (newspapers, television and radio) have an important role to play in influencing changes in the law

Question 15

Social media

Answer 15

• Can be used to create interest in and awareness about legal issues on a massive scale.
• Social media can influence groups and individuals.
• Users are able to directly access a political party, politician or local member of parliament via social media.
• Social media’s ability to quickly communicate can influence changes in reform rapidly.
• Can be used to generate great interest in and awareness of legal and political issues (e.g. ‘chasing asylum’ to show and raise awareness of people seeking asylum).
  Can be used to inform a global audience.

Question 16

Traditional media

Answer 16

• Traditional media can influence law reform by examining, discussing and informing people about legal issues.
• Provide platforms for political parties and parliamentarians to outline their policy stance on law reform, explain their actions and be held accountable for their views.
• Often investigate problems and inform the public of the need for changes in the law (e.g. problems highlighted in relation to youth detention on an ABC program).
• Information presented can be biased and based on the interests of the owners.
• High concentration of traditional media ownership can decrease its independence and give the owners too much power to influence community views

Question 17

Effectiveness of social media

Answer 17

Can be effective in influencing law reforms – gain community support, parliamentarians can gauge or measure public opinion and responses, many of them have websites and social media accounts.

However, information may be presented in a more simplistic way and therefore people may not have a basic understanding of the issue involved.

Social media – no codes of ethics; inaccuracies or unauthenticated.
People may become overwhelmed or desensitised if excessive exposure to graphic or vivid images

Question 18

The use of courts

Answer 18

Individuals can take a matter to court to instigate change in the law. People trying to prove a person claim may change the law if the law is unclear or ambiguous.

If a law is unclear the legislation can be challenged in court though Parliament can always override the court’s decision, with the exception of the High Court in constitutional disputes.

The court can only decide a point of law when people are prepared to challenge existing law in the courts.
Individuals may also challenge an existing law in the hope that a judge might rule that it has been made beyond the power of parliament.

Question 19

Advantages VS disadvantages of courts

Answer 19

Advantages

• Challenging an existing law in a higher court can enable a vague or unclear law to be clarified.
• Even if a court challenge is unsuccessful it may gain significant media coverage and help increase awareness of the possible need to change a law.
• Judges are politically independent and determine cases based on the merits rather than electoral consequences (i.e. gaining voter support).

Disadvantages

• Courts are limited in their ability to change the law because they can only do so when a case comes before them and only in relation to the issues in the case.
• Individuals can be reluctant to challenge a case because it can be expensive and time-consuming and a successful outcome cannot be guaranteed.
• With the exception of High Court disputes involving the interpretation of the Constitution, a judge-made law can be overridden (abrogated) by parliament.

Question 20

Effectiveness of courts

Answer 20

While challenging the law in the courts can lead to a change in the law, it can be an expensive and time consuming way for an individual to influence law reform and there is no certainty in the outcome of any case.

Question 21

Victorian Law Reform Commission (VLRC)

Answer 21

Victorias leading independent law reform organisation. The VLRC reviews, researched and makes recommendations to the Victorian parliament about the possible changed to Victorias laws.

Question 22

Role of the VLRC

Answer 22

To investigate areas of public important in the law and provide the Vic parl with a comprehensive report on their findings

inquiry – examine and report on any proposal referred by the Victorian Attorney-General and make recommendations for law reform

investigation – investigate any relatively minor legal issues that the VLRC believes are of general community concern and report back with recommendations for law reform (no need for reference from Attorney-General)

monitoring – monitor and coordinate law reform activity in Victoria

education – undertake educational programs and inform the community on any area of the law relevant to its investigations or references.

Question 23

Aim of the VLRC

Answer 23

To assist the Vic gov in continuing to provide as fair, inclusive and accessible legal system by investigating the need for change in Vic laws and providing the gov with impartial advice and recommendations for change

Question 24

Processed used by VLRC

Answer 24

• Initial research and consultation with experts in the area of law under review.
• Publishes a consultation paper which explains the key issues in the area of law under review.
• Holds consultations with and invites submissions from parties who are affected by the area of law under review.
• Asks experts to research areas that need further information.
• Publishes a report with recommendations for changes in the law.
• Presents the final report to the Attorney-General who will then table it in the Victorian Parliament – the Parliament is not bound to implement any of the recommendations

Recent project - Medical cannabis

Question 25

Advantages VS disadvantages of the VLRC

Answer 25

Advantages

• As the government asks the VLRC to investigate the need for law change in specific areas, the government should be more likely to act on the VLRC’s report and recommendations.
• 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 new law that covers a whole issue, such as the Access to Medicinal Cannabis Bill 2015 (Vic), which was the outcome from the VLRC’s report on medicinal cannabis

Disadvantages

• The VLRC can only investigate issues referred to it by the government or minor community law reform issues that will not consume too many resources.
• There is no obligation on the part of the parliament 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.

Question 26

Parliamentary committee

Answer 26

Parliaments have a committee system. Committees can investigate a wide range of legal, social and political issues and report back to the parliament about the need for law reform. The committee is made up of members of parliament who investigate a specific issue, policy or bill and report back with recommendations to parliament.

Allows members of parliament to examine and evaluate the need for law reform. Can consult with the community. Final reports of a parliamentary committee enable the parliament to be more informed before making a decision.

Parliamentary committees can act as a check on the parliament.

Question 27

Processes used by parliamentary committees

Answer 27

• Committee will be given terms of reference which specify the precise purpose of the inquiry, the issues to be investigated and the deadline.
• The committee may use the media to publicise their investigations and seek input from the public and experts.
• Committees will usually hold formal public hearings.
• The committee will prepare a written report based on the submissions and hearings, which will contain recommendations for law reform and will be presented to parliament for consideration.

RECENT:
Same sex marriage

Question 28

Advantages VS disadvantages of parliamentary committees

Answer 28

Advantages

• Committees can investigate a wide range of legal, social and political issues and concerns and report back to the parliament about the need for law reform.
• Committees can examine issues more efficiently (i.e. more quickly, more economically and in greater detail) than having the entire parliament involved in investigation.
• The final reports prepared by committees enable the parliament to be more informed before deciding whether or not to support a bill.

Disadvantages

• Due to limited resources a committee cannot be formed to examine all worthy issues and concerns.
• Committee investigations can be time-consuming and costly.
• The large number of committees and the time commitment involved may deter some members of parliament from sitting on committees.

Question 29

Royal commissions

Answer 29

The highest form of inquiries into matters of public concern and importance. Royal commission are formal public inquiries conducted by a body of formed to support the work of a person(s) (commissioner(s)) given wide powers by the government to investigate and report on an important matter of public concern

Question 30

Role of royal commissions to influence law reform

Answer 30

A major public inquiry into matters of public importance. Its role is to investigate issues within the law and provide recommendations and reports to parliament on what actions should be taken

Question 31

Advantages VS disadvantages of royal commissions

Answer 31

Advantages

• Because the government asks royal commissions to investigate something important, the government may be more likely to act on the royal commission’s report and recommendations.
• Royal commissions can measure community views on areas of investigation by holding consultations and receiving public submissions.
• Royal commissions have the power to call anyone to appear before them to give evidence.

Disadvantages

• Royal commissions can be used as a tool against political opponents. The can also be used to avoid getting on with difficult legislation.
• The ability of the royal commission to influence law reform depends on the timing of its reporting and its terms of references. For example, if they are to report immediately after an election, its influence might be diminished.

Question 32

Family Violence royal commission recommended changes

Answer 32

Established in 2015 to investigate and recommend changes to government policy, administrative procedures and the law regarding family violence to:

• Reduce and eliminate family violence in the Victorian community- Prevent the occurrence and escalation of family violence
• Build respectful family relationships
• Increase awareness of the extent and effects of family violence
• Ensure the safety of people who are or may be affected by family violence.

Question 33

Establishment of royal commission

Answer 33

Royal commissions are set up by the Governor-General at the federal level, or the Governor at the state level (therefore are set up by the executive branch, though on the advice of government ministers). Set up on an ad-hoc basis and look into matters of significant importance or surrounded by controversy.

The Queen’s representative must issue a letters patent which specifies the person/persons who are appointed to constitute the Royal Commission. The letters patent must also specify a time by which the Royal Commission is to report on its inquiry and the terms of reference.

Question 34

Processes used by royal commissions

Answer 34

• Prepare an issues paper
• Conduct consultation sessions
• Hold public hearings or sit in private to gain evidence
• Royal commissions have coercive powers to seize and gain evidence at hearings
• Once investigation is complete, the commission will prepare a report and make recommendations on ways to address the matters under investigation
• Royal commissions also have the power to recommend prosecution

Question 35

Family Violence royal commission recommendations

Answer 35

The final report was provided in March 2016, and contained 227 recommendations. the recommendations include:

• Changing the laws to improve provision of Support and Safety Hubs in local communities
• Introducing new laws to make sure that privacy considerations of perpetrators are not put before the victim’s safety
• Increasing the funding for the provision of more support services
• Changing the law to provide more family violence courts
• Introduce family violence training for all key workforces
• Establishing an independent Family Violence Agency to hold government to account

Question 36

Family Violence royal commission outcome

Answer 36

The Victorian Government has committed to implementing all 227 recommendations and has a website at which the public can track the progress.

In 2017 the Victorian Parliament passed an Act which reformed the law in response to the Royal Commission.

Question 37

Parliaments is ability to respond to the need for law reform

Answer 37

• The supreme law-making body
• Can investigate the need for law reform
• Can initiate a royal commission or parliamentary committees
• Can get recommendations from independent law reform bodies and can listen to individuals and pressure groups.

Can respond quickly
- Do not have to wait like courts to make laws
subordinate authorities can be used to make rules and regulations on behalf of the government, this is delegated legislation.

Limited

• Reluctance to change laws if there are conflicts in social views and values
• Financial or budget restrictions
• Royal commissions and parliamentary committees can take extended amounts of time and be costly

Question 38

Advantages VS disadvantages of parliament

Answer 38

Advantages

• Parliament is an elected supreme law making body with the power to make and change any law within their own jurisdiction or area of law making power.
• Parliament can make and change laws as the need arises to ensure the law reflects the changing needs, views and values of society
• Parliaments can abrogate court make law (except for decisions made by the High Court in relation to constitutional matters).

Disadvantages

• Parliament is not able to change law if it is considered to be ultra vires or outside their law making powers.
• Members of parliament may be reluctant to legislate in areas where there are conflicting community views, or the benefits will not be seen for many years, through fear of losing voter support.
• Parliaments may cancel court made law to gain political advantage and voter popularity.

Question 39

Ability of courts to respond to law reform

Answer 39

Judges can establish law in areas where law does not exist.
- However parliament may be able to pass legislation to override a court decision.
Judges may be reluctant to change the law (e.g. Trigwell).
Courts can only change the law when a case is brought before them and in relation to the issues involved in that case.

• Courts are able to interpret legislation.
• Judges make decisions without fearing the loss of voter support.

Question 40

Advantages VS disadvantages of courts

Answer 40

Advantages

• Courts can make law where none exists and given meaning to unclear legislation so it can be applied to resolve the case at hand.
• Decisions and comments made by judges can indirectly influence the parliament into changing the law (e.g. Mabo Case) by enshrining court decisions.
• Judges are independent from the parliament and can make decisions without fearing the loss of voter support.

Disadvantages

• Judges in superior courts may be reluctant to change the law (by overruling and reversing existing precedents or broadly interpreting legislation), preferring to leave the law making to parliament.
• Judges in superior courts can only make law (including interpret legislation) when a case is brought before them and in relation to the issues involved that case. This is reliant on parties being willing and financial able to pursue a case.
• Judges are not elected by the people and may make decisions that do not reflect the views and values of the community.