U4AOS2

Question 1

Restriction on the law-making powers of the parliament (Both States and Commonwealth Parliament)

Answer 1

Commonwealth Parliament- If a legislation or Act passed by Parliament breaches an express or implied rights, something with standing can bring a case to the HC, where the HC can swifty come in and declare the law “Ultra vires”, therefore invalid.

The roach case, the principle from section 7 and 24 establishes that Members of the senate and HOR are “directly chosen by the people”, therefore Parliament can’t make any laws which can restrict the Australian people from voting as further justified in the 2010 case of Howe.

State P:
Cannot legislate in exclusive areas of law-making power

Section 109 inconsistencies in concurrent areas

Cannot pass a law that infringes certain express rights (e.g., s 117)

Cannot pass a law that infringes the implied freedom of political communication.

Question 2

How representative government enables parliament’s law-making ability

Answer 2

Assists parliament in making laws that reflect the views and values of the ‘majority of people.
If MPs fail to do so, they risk not being re-elected. This principle ensures that MPs engage with and listen to the views and concerns of their electorates/constituents, to ensure the laws they make are consistent with the views and values of society.
Parliamentary committees and the VLRC can help the govt./parl determine the view of society/experts and then recommend changes to laws.

Question 3

How representative government hinders parliament’s law-making ability

Answer 3

Harder for the govt. to introduce bills on controversial topics due to the risk of being re-elected. This is particularly the case when there is a vocal minority opposing legislation, making it hard for the govt. to determine what the majority thinks. EG. Political parties weren’t willing to amend laws criminalising same sex marriage until they were certain that majority of Australians supported the change.
Governments may introduce popular laws to win the support of voters but that are not actually beneficial. EG Tax cuts.

Question 4

Political pressures.

Answer 4

Because members of parliament rely on the support of voters to be re-elected they may make decisions based on whether it will increase their popularity.
This opens up opportunities for individuals and groups to place pressure on politicians to support law reform that is in their best interest rather than the country’s/state’s. EG. religious groups/lobby groups.

Question 5

Domestic political pressures

Answer 5

The representative government ensures that MPs and the government are responsive to the needs of people and make laws reflecting the views of the majority.
This enables individuals and groups to feel heard and they can put pressure on their MPs in various ways (eg. Petitions, demonstrations, social media).
However, small but vocal minority pressure groups and powerful businesses/organisations can place a lot of pressure on politicians and impede important law reform. EG. When the Australian Christian Lobby successfully placed significant pressure on federal governments to not make this change, despite popular support.

Question 6

Internal political pressures

Answer 6

Australia’s strong party system means that members of parliament tend to vote along party lines. This means that the debate happens ‘in the party room’ and within Cabinet, and once a decision is made, the members of that party are expected to publicly support the policy and vote accordingly. This pressure can mean that individual MPs don’t vote in accordance with the views of the majority of their constituents, hindering representative government. Occasionally members will ‘cross the floor’ to vote with the opposition.
However, an analysis in 2020 shows that ‘in the last 20 years, crossing the floor has not changed the outcome of a single bill or resolution’.

Question 7

International political pressures

Answer 7

As Australia is part of a global community, it faces pressures from other countries, international organisations (eg UN) and multinational corporations in regards to its laws.
If Australia isn’t upholding the obligations in international treaties it has ratified, it can face significant political pressure.
EG. Climate change

Question 8

How courts make law

Answer 8

Through the doctrine of precedent. This is the common law principle/system by which the reasons for the decisions of higher courts are binding on lower courts in the same hierarchy in future ‘like’ cases. (Stare decisis). Only superior courts of record can create precedent and common law. Juries can NOT make precedent.

Question 9

When is precedent made

Answer 9

A novel case - a dispute before the court in which there is no existing law (statute or common). The reasoning behind the court’s decision will create precedent for future lower courts in the same hierarchy to follow.
When statutory interpretation is required for the first time - the courts need to give meaning to word(s) in a statute in order to settle the dispute before the court. The meaning given by the court will create precedent for future lower courts to follow.

Question 10

Types of precedent

Answer 10

Binding - must be followed. Ratio decidendi from a higher court in the same hierarchy in a similar case
Persuasive precedent - does not have to be followed but may still be considered by a judge. Ratio decidendi from courts in a different hierarchy, from a lower court or a court on the same level. Obiter dicta statements in a court judgements (not part of the reasoning behind the decision, but said by the judge ‘by the way’.

Question 11

How can a lower court avoid following precedent

Answer 11

They can distinguish the case which set the precedent from the case before them. This involves the judge finding a difference in the material facts of the case (because, remember that precedent only needs to be followed in ‘like’ cases).
EG. Davies v Waldron distinguished from Gillard v Wenborn.

Question 12

How can precedent be updated

Answer 12

Higher courts can reverse the precedent set by a lower court (on appeal in the same case).
Higher courts can overrule a precedent set by a lower court (in a different and later case). Sometimes higher courts don’t reverse or overrule a precedent, but they refine it, by making it more clear or further interpreting word(s) from the previous precedent.

Question 13

Effect of disapproving a precedent

Answer 13

This is where the court expresses dissatisfaction with a precedent in their judgement. A lower court in the hierarchy can do this, BUT they are still bound to follow the precedent. A court at the same level could do so as well, but still feel they should follow it, for the sake of predictability and certainty. This may encourage parliament to change the law or encourage a party to consider lodging an appeal. Sometimes a court at the same level will disapprove and create a new precedent.
Sometimes even the HCA will express their disapproval of an existing precedent rather than overruling it, to convince parliament to change the law.

Question 14

Statutory interpretation

Answer 14

When judges decide on the meaning and application of the words in an Act to resolve disputes before the court. When a judge in a superior court of record engages in statutory interpretation, the reasoning behind the interpretation forms precedents. It then becomes part of the law, along with the statue. For future cases the ratio and the Act are read together and form the law(binding on lower in the same hierarchy in future like cases, persuasive for others).

Question 15

Reasons and effects of statutory interpretation-Act might not take into account future circumstances

Answer 15

Because due to legislation that have been drafted and passed decades ago they are still in force today, for example the Constitution. Therefore, when a case comes before the case, which involves a situation not contemplated when the Act was drafted,the court needs to decide whether the legislation was intended to apply to the case in front of them or not.
E.g: The United States and International treaties did not exist when the Constitution was drafted, so they had to decide whether “external affair” include the power of the Commonwealth Parliament to legislate to give effect to international agreements Australia has ratified even in areas of residual power. E.g: the Tasmanian Dam case.

Question 16

Reasons and effects of statutory interpretation-Act may be ambiguous

Answer 16

The Court may need to determine what the Parliament intended in the context of the Act; since the words and phrases used in an Act attempt to cover a broad range of issues, there might be more than one meaning to the word. E.g: Davies Vs Waldron, the VSC needed to interpret the meaning of the phrase “start to drive” in the Road Safety Act, they found this to mean being in control of the vehicle with the intent to drive.

Question 17

Reasons and effects of statutory interpretation-Meaning of words can change over time

Answer 17

Since Parliament legislates in futuro (for situations arising in the future). Words may need to be interpreted by the court because at the time Parliament passed the law, a particular meaning was not contemplated. E.g: the Kevin and Jennifer case, where the family court interpreted the word “man” in the Marriage Act at the time to include someone who had been born female but now identified as a man following sex-reassginment surgery. This may not have been the meaning of the word when Parliament passed the Act, but it has generally become an accepted meaning at the time of the case.

Question 18

Reasons and effects of statutory interpretation-Words in the Act are given meaning

Answer 18

Words are simply given meaning by the court in order to settle the dispute in front of it. However statutory interpretation does not alter the written words in the Acts. Example: The Kevin and Jennifer Case, the Family Court did not change the meaning of the word “man” but interpreted the word “man”to include someone who has been born female but now identified as a man following sex reassignment surgery.The meaning was applied to the case in fornt of them and the marriage between Kevin and Jeniffer was declared valid. Despite the fact that same-sex marriage was unawful and both had been born female.

Question 19

Reasons and effects of statutory interpretation-Can create precedent for future cases

Answer 19

When a judge in a superior court of record engages in the statutory interpretation, the reasoning behind the interpretation forms precedent . The reasoning becomes part of the law, along with the statue. For future cases the Act and ratio are read together and form the law. Example: the Supreme Court’s interpretation of the phrase “start to drive” in Davies V Waldron ‘’ is binding on all lower courts in the Victorian Hierarchy, in future like cases.

Question 20

Doctrine of precedent

Answer 20

Only the superior court of records (High Court, Supreme Court (Trial Division and Appeal) can create/change precedent. However, even the Supreme Court (TD) and Court of Appeal are bound by decisions of higher courts in the Victorian Hierarchy. Unless they can be distinguished, they are bound by a precedent set by a higher court in the same Victorian hierarchy.They can disapprove but still have to follow the precedent, but this would encourage parliament to consider abborgating the common law, or encouraging parties to appeal to a higher court.
Before a court can declare a new legal principle,they must wait for a novel case.
Courts cannot make sweeping changes to an area of law. The court can only make a decision based on the specific facts of the dispute in front of them.
Parliament is the supreme-law maker, so can abrogate any common law decisions (except constitutional decisions made by the HCA).

Question 21

Limiting the scope of the legislation through narrow interpretation

Answer 21

If the court interprets a word or phrase narrowly, this could limit/restrict the scope of the law. Example: The decisions of the Victorian SC in Deing V Tarola restricted the definition of “a regulated weapon” to only items used for an offensive or aggressive purpose (so not a studded belt).

Question 22

Extending the scope of the legislation through a broad interpretation

Answer 22

A broad interpretation of the word or a phrase in an act can extend the law to cover a situation or area. Example: The High Court in the Tasmanian Dam case extended the interpretation of the phrase “external affair” in the Constitution to include areas covered by international treaties.

Question 23

Judicial conservatism

Answer 23

Conservative judges adopt a narrow/literal interpretation of the law when deciding cases and avoid major controversial changes to the law. They are not prepared to adapt to a law-making role. They believe that any major change in the law should be left up to the Parliament, whose members are elected and as they are the supreme law makers. They like to base their decision based purely on legal considerations and not on their own views or even the views of the community influence the decision. They also believe that judges should just interpret the law and not rewrite it. Example: Breen V Williams (1996).The case was about a patient’s right to access their one medical record.No common law existed and the HC was not prepared to make one in their case. As they believed that “if changes is to be made, it must be made by the legislature”.

Question 24

Judicial activism

Answer 24

Since judges are politically independent and can make decisions free from concern about re-election, they can make decisions about politically sensitive or controversial matters withouts fear of political repercussions.
The judges are prepared to adapt to a law-making role, particularly in novel cases. It supports the views that courts have a duty to broadly interpret statues in a way that recognises the rights of the people and addresses community concerns, even if it is different to what parliament intended when they first passed legislation.

Example: The HC case of Mabo overturned the long held principle of “terra nullius” and set a principle that established the right of inifegnous people to claim “niative title” to a certain land. The HC’s ruling was an example of judicial conservatism due to the Court broadly interpreting the law to protect the rights of the meriam people and the Court boldly overruled the law principle of Terra Nullius.

Question 25

Costs

Answer 25

Conservative judges adopt a narrow/literal interpretation of the law when deciding cases and avoid major controversial changes to the law. They are not prepared to adapt to a law-making role. They believe that any major change in the law should be left up to the Parliament, whose members are elected and as they are the supreme law makers. They like to base their decision based purely on legal considerations and not on their own views or even the views of the community influence the decision. They also believe that judges should just interpret the law and not rewrite it. Example: Breen V Williams (1996).The case was about a patient’s right to access their one medical record.No common law existed and the HC was not prepared to make one in their case. As they believed that “if changes is to be made, it must be made by the legislature”.
Since judges are politically independent and can make decisions free from concern about re-election, they can make decisions about politically sensitive or controversial matters withouts fear of political repercussions.
The judges are prepared to adapt to a law-making role, particularly in novel cases. It supports the views that courts have a duty to broadly interpret statues in a way that recognises the rights of the people and addresses community concerns, even if it is different to what parliament intended when they first passed legislation.

Example: The HC case of Mabo overturned the long held principle of “terra nullius” and set a principle that established the right of inifegnous people to claim “niative title” to a certain land. The HC’s ruling was an example of judicial conservatism due to the Court broadly interpreting the law to protect the rights of the meriam people and the Court boldly overruled the law principle of Terra Nullius.
Court action can be expensive especially in higher courts as parties are required to pay for their own legal fees. Therefore, Parties may therefore be reluctant to take a novel case to the courts due to the risk involved or may be unable to afford to appeal to a superior court of record in order for precedent to be created or developed.
Although, an adverse costs order may be ordered after the case has concluded, this usually doesn’t cover all legal fees and relies on the other party to be able to pay their own legal costs PLUS the successful party’s.

Question 26

Requirement for standing

Answer 26

The right of a party to start a legal action in court. A party must show a sufficient connection to the action (i.e., directly affected or have a ‘special interest’ in the subject matter). Must show that they are more affected than the general public and will gain greater material advantage/loss if the case succeeds/loses.
Leading case on standing is Australian Conservation Foundation v Cth (1980), where majority of the HC decided that ACF did not have standing to challenge Cth govt.’s approval for a resort and tourist areas under the EPA.

Question 27

Discuss of requirement for standing

Answer 27

Ensures cases are only brought to court by people who are genuinely affected by an issue rather than wasting court time/resources on listening to people unaffected. Additionally this also encourages people not directly affected by issues to seek other avenues of redress (eg lobbying, petitioning) rather than going to court.

However, this means people who have general interest have no right to pursue legal challenges on behalf of public interest or for common good. Which means that potential improvements to laws that could have been made by listening to those with only intellectual interest in case are lost.

Question 28

The Supremacy of Parliament

Answer 28

Law-making is their primary role. Since in a representative democracy Parliament is representative of and responsible for the people who elect them, they can make and amend any laws within its constitutional power. Courts only exist because they were created by legislation and their jurisdiction has been set by parliament. If Parliaments want, they can abolish courts, create new ones and alter their jurisdiction. Statute law also overrides the common law. This is why parliament is known as the supreme-law maker.

However Parliament cannot make or amend any law if it involves decisions regarding the Constitution which only the HC has the original jurisdiction over. HC can declare a law “ultra vires” if Parliament breaches an express or implied rights, additionally Parliament cannot abrogate constitutional decisions made by the HC. Parliament cannot abolish courts such as the High Court and State Supreme Courts

Question 29

The ability of the courts to influence Parliament

Answer 29

Courts can influence changes in the law through comment in court judgments (also known as Obiter dictum). EG Trigwell case, where HCA was reluctant to set a new precedent that landowners should be responsible for damage caused by their stray animals, but stated that the law should be changed by parliament. It later was.
Courts can highlight problems/gaps in legislation and lead to a public outcry (EG: the Crimes Amendment (Bullying) Act 2011 (Vic).
A pogressive decision reached by the Court could also alert Parliament to the need for a major change in an area of law. EG: Mabo (Native title Act)
Parliament can be influenced to change the law if a Court is bound by a previous decision and makes a decision that creates an injustice.

Question 30

Statutory interpretation

Answer 30

• for legislation to be effective, courts must apply statutes to cases before them
  
  • to do this, sometimes necessary for court to interpret (give meaning to) words/phrases in an Act
• in doing so, judges can clarify words/phrases in legislation & broaden/narrow its meaning
• courts interpret statues by looking at text of relevant section, its stated purposes, the context of the Act, & materials from parliament
  
  • such as explanatory memorandum & second reading speech to determine parliament’s intention
• if done so in superior court of record, this interpretation establishes a precedent that must be followed in future similar cases in lower courts in same hierarchy
  
  • statue & precedent are read together
• Parliament can abrogate/change a court’s interpretation of a word/phrase in a statute
  
  • eg. Pearson case
    exception to this is HC interpretations of Constitution
  • for courts to be able to interpret meaning of words/phrases in an Act, a case has to be brought before them
    
    • requires standing/costs/time etc

Question 31

Codification

Answer 31

Parliament can pass statute law that confirms a precedent set by the court.
Example: The Mabo decision of the HC establishing the common law principle of the native title, the CP passed the Native title Act which mostly codified the decision.

Question 32

Abrogation of the Common Law.

Answer 32

Parliament can pass a state law that cancels/overrides common law decisions made by the courts. Example the Trigwell case. However, the only exception to this is the HC decision interpreting the Constitution.

Question 33

Reasons for law reform-Changes in beliefs, values and attitudes

Answer 33

People’s beliefs/values/attitudes change over time. If the law is to remain relevant, it must reflect these changes (link to representative government).
EG. Same sex marriage - state and Cth parls introduced law reform ensuring all people, regardless of sexuality, are treated equally by the law. The Marriage Amendment Act 2017 was passed to show how society has become more aware of the difficulties faced by queer members of the community.

Question 34

Reasons for law reform-Technological advancements

Answer 34

Technology is constantly improving and opening up possibilities that have not previously been imagined. Laws regarding areas relevant to changing technology will also need to be updated so that people are not harmed or exploited and that the new technology is working appropriately. EG. Maeve’ law regarding legalising mitochondrial donation through IVF. The reproductive technology is designed to help parents avoid passing on a potentially fatal disease.

Question 35

Reasons for law reform-Greater need for protection of community

Answer 35

Laws must be updated to ensure general protection of individuals and groups within society. Specific groups also need further protection and as new situations threatening the community arise, new laws are required.
EG. Any attack on Victoria’s emergency service workers that result in injury classifies as a category one under new reforms, requiring the court to impose a custodial sentence.

Question 36

Reasons for law reform-significant events

Answer 36

• significant events can show where there are gaps in existing statute/common law
  
  • this can prompt people to pressure parliament to create new laws to address that event as it’s happening or in future, or to amend existing law
• eg.
  
  • [Pandemic]
    
    • new legislation took lot of negotiating w/ crossbench of upper house (Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021)
      
      • vic gov agreed to make significant amendments to proposed pandemic bill after discussions w/ crossbenchers following weeks of criticism (for human rights protections etc)
        
        • amendments include:
          
          • Significant reductions in fines for breaching public health orders
          • A stronger threshold for declaring a pandemic
          • Strengthened human rights protections
          • The right to protest to be enshrined in regulations
          • Guaranteed resourcing for an independent oversight committee
          • Faster publication and tabling of public health advice and orders
          • Stronger powers for parliament’s Scrutiny of Acts and Regulations Committee
      • Vic gov says proposed legislation will create purpose-built laws
        
        • Opposition Leader says they’re an overreach & there have been demonstrations against them
        • crossbenchers have supported amendments, but others say changes don’t go far enough to protect rule of law
      • large group of demonstrators
      • passed through both houses after weeks of debate
        
        • votes 20-18 (with the support of 4 crossbenchers)- dozens of amendments were made to garner support from crossbench
        • days of debate and sitting lasted 21 hours
      • petition to stop the pandemic management legislation → ‘unchecked power’
  • [Judge-alone trials]

Question 37

Law reforms-Petitions

Answer 37

A formal, written request to the parliament to take some action or implement law reform. Must be in a particular format(based on which house and which state/cth) in order to be accepted by parliament. Might be about a general topic or a specific issue. The HoR has a Standing Committee on Petitions to ensure that all petitions presented to the House are considered.
For example: stopping the religious discrinsion act, year 2019, there were over 185,000 signatures on epeition.org and with other effective forms of pressure such as media and demonstrations. The bill was shelved and five liberal senators threatened to cross the floor.

Question 38

Are petitions effective?

Answer 38

They are a relatively simple and inexpensive way for ordinary people to try to influence reform.
There is no guarantee or obligation for parliament to reform the law in the way requested, especially if it isn’t within the policy platform of the political party in governments.
Petitioning is the only direct way individuals can ask a house of parl to do something. It must be tabled directly in parl and can gain the attention of relevant MPs.
Parl receives hundreds of petitions per year, making it hard for any to stand out, especially if they don’t have a large number of signatures and aren’t associated with any other pressure.
Due to the representative nature of parl, MPs are likely to take large petitions seriously.
The existence of petitions on opposition sides of an issue can lower impact, as it doesn’t show a clear majority view.

Question 39

Demonstrations

Answer 39

A gathering of people to protest or express their common concern/dissatisfaction with an existing law or issue. A very visual way to attempt to gain the attention of the government/parliament, especially if it gets positive media attention.

Question 40

Are demonstrations effective?

Answer 40

A very visual way to show the government a large group of people’s support for a change.
No guarantee/obligation for parliament to reform the law in the way requested by demonstration, especially if it isn’t within the policy platform of the party in government.
Due to the representative nature of parliament and desire for MPs to be re-elected, large demonstrations are likely to be taken seriously.
The government is unlikely to associate themselves with violent or disruptive protests.
A counter protest held at the same time can lower their impact as they don’t show a clear majority view.
Can be difficult to organise, and attendance can be affected by factors like weather.

Question 41

How individuals can use the courts to influence law reform

Answer 41

Novel cases - superior court of record can create a new precedent which is then binding on lower courts in the same hierarchy in future cases and parliament may codify (but may also abrogate).
Statutory interpretation - by interpreting the statute, courts can expand/limit the scope through a broad/narrow interpretation. Can frm precedent (but can be abrogated).
Appeals - to a higher court and ask to overrule an outdated precedent, and even if declined, they can get media/govt./parl attention, who may reform the law.
Challenge constitutional validity - of legislation, and if the court determines an Act as ultra vires, it cannot be abrogated.
Judge can express dissatisfaction - with current law, influencing parliament to take action, even if judges are bound by outdated precedent/Act or are judicially conservative.

Question 42

Limitations on use of courts

Answer 42

Doctrine of precedent may mean the court is bound by precedent from higher courts.
Courts only make laws as a secondary role and can only do so when a case is brought before them, in relation to issues in the case. Cannot make sweeping changes to whole areas of law.
Judicial conservatism may mean that judge(s) are unwilling to create/develop laws in the case.
Costs and time in bringing a case to court, especially if the case is starting in a higher court OR need to appeal their way up to CoA or HCA in order for law to be developed because of existing precedent.
Requirement for standing.

Question 43

Is using the courts effective?

Answer 43

Superior courts of record can create new precedent in novel cases or develop common law if relevant to a particular case before them.
Lower courts are bound by the decisions of higher courts in a hierarchy in like cases, and limited in ability to reform the common law.
Courts can expand/limit meaning of legislation through statutory interpretation, to keep it relevant to society.
Using the courts requires standing and is potentially expensive, time-consuming and risky process particularly in novel cases or where parties need to appeal to a higher court to overrule previous precedent.
Even unsuccessful cases can create media attention and make the govt./parl aware of need for changes in law.
Judges can be conservative, not seeing their role as the creation/development of law, leaving any changes to parliament.
Parliament can abrogate common law

Question 44

Traditional media

Answer 44

Refers to more conventional, pre-internet ways of community info to the public (newspapers, radio, TV).
In 2020 more than 50% of Australians relied on traditional media for info.
Many newspaper articles, TV programs and radio broadcasts have created law reform due to public awareness of issues and need for change,
Media coverage of demonstrations and petitions helps further their public impact/awareness. Also helps MPs gauge public opinion.
EG. - in Nov 2022, ABC program Four Corners broadcast an episode showing conditions in youth detention in WA
- as part of this investigation, they released previously-withheld 130 page gov report into youth detention policy in Aus
- recommended that age of criminal responsibility should be increased to 14 yrs across Aus, w/o exception
- following this investigation, Age of Criminal Responsibility Working Group was established between all gov in Aus to develop proposal to increase minimum age of criminal responsibility
- the ACT, NT & VIC have indicated they will increase age unilaterally rather than waiting for national agreement

Question 45

Evaluate traditional media

Answer 45

Able to examine, discuss and inform people about legal issues and possible changes to laws. Major source of news, accessed by millions, shapes the views and attitudes of their audience depending on how they present a legal/political issue.
May not always present information in an unbiased/independent way in preference to reflecting the political interests of their owners.
TV programs often contain segments about the need for law reform and possible changes to the law, and provide a forum for political parties/MPs to explain their policy stance and actions to be held accountable.
TV/radio producers and newspaper editors can manipulate content in an attempt to alter the community perception of particular individuals or pressure groups.
Some TV programs investigate problems in the community to inform the public of injustices and need for changes in law, influences public opinion and governments to decide if there is sufficient community support for change in law.
More broadcasting time can be given during radio and TV interviews to individuals, pressure groups and parliamentarians who support the views held by owners of media organisations.

Question 46

Social media

Answer 46

Enables individuals/groups/businesses/organisations to share info and generate interest and awareness in law reform issues. Very effective at organising and distributing info about petitions/demonstrations.
Most MPs have twitter/facebook and can be directly contacted by voters.
Hashtags can also spread awareness of certain law reform . EG., trending #voteyes and #loveislove during same-sex marriage postal vote, and a new emoji created by twitter. EG. #killthebill spread awareness during the Religious Discrimination Bill debate earlier this year.
BUT despite prominent hashtags and social media campaigns against Australia’s immigration detention policies, current border protection policy has bipartisan support.

Question 47

Evaluate social media

Answer 47

Can create interest in and raise awareness of legal issues on a massive scale.
People who place info/opinions/images/videos on social media do not generally follow a code of ethics, meaning info may not be accurate, authenticated or impartial.
Use of social media and mobile devices allows people to capture and broadcast images/videos and live stream events to generate interest in and awareness of legal/political issues and need for law reform. EG footage of cruelty to animals.
Social media platforms are highly visual and can include graphic images/live streams that portray complex legal issues in simplistic ways, evoking emotional responses based on limited facts and knowledge and individuals making decisions about law reform without a basic understanding of issues involved.
Connects people around the world and can be used by global reform movements to create local branches to influence law reform on global issues at a domestic level.
Excessive exposure to graphic/vivid images may overwhelm and desensitise people to social/political/legal injustices.
Can give individuals/groups/organisations direct access to political parties and local MPs insight into views on legal issues to receive up to date info, increasing accountability for political actions.
Owners of social media platforms have struggled to stop the spread of harmful or inaccurate stories in the past, as they are shared so fast.
Lawmakers themselves can monitor social (and traditional) media coverage to gauge public opinion and responses to recent events and proposed law reform.

Question 48

VLRC

Answer 48

Victoria’s leading independent law reform organisation. Reviews, researches and makes recommendations to the Vic parl about possible changes to Vic laws.
Examines, reports and make recommendations to the Vic Attorney-General on any matter they refer to it, and on any matters that the VLRC raises that it considers relatively minor that are of general community concern without AG approval(community law reform project).
To suggest to the AG that they refer a proposal or matter relating to law reform to the VLRC.
Monitor and coordinate law reform activity in Vic
Undertake educational programs on areas of law relevant to a reference

Question 49

Processes used by VLRC

Answer 49

Undertake initial research and consultation with experts in the area, and individuals/groups (round table discussion)
Publish issues/discussion papers explaining key issues and asking the community questions.
Invite and consider written submissions from the public, organisations, legal bodies and interested individuals/groups.
Publish a report with recommendations for change
Table the final report in the VIC parl.

Question 50

Recent example of VLRC

Answer 50

In Oct 2018, VLRC was asked by the AG to review Victoria’s committal system. The report was tabled in Sept 2020.
One recommendation was to abolish the current committal test for indictable offences, which involves a magistrate assessing if the evidence is of sufficient weight to support a conviction at trial. The VLRC recommended a new ‘discharge application’ procedure, where the MC has the power to discharge where it finds there is no reasonable prospect of conviction.
The application would be initiated by the accused and the magistrate would take into account the evidence in the hand-up brief, defences available, whether the prosecution witnesses are available, etc.

Question 51

Evaluate VLRC

Answer 51

Where the AG(a govt. minister) has referred a matter to the VLRC, they are more likely to act on recommendations made.
Parl and govt have no obligation to implement the recommendations for law reform.
Significant public and expert consultation undertaken by VLRC means govt. Is more likely to reflect the recommendations in law reform (due to the representative nature of parl).
VLRC is limited by resources, and can only investigate matters referred by AG or minor community law reform issues that will not consume many resources. If it doesn’t have much resources. If it doesn’t have as many resources, it can’t do as much research, and parl is less likely to give it weight without a lot of research..
VLRC’s political independence lets it investigate controversial areas of law reform and make well-informed recommendations.
VLRC investigations are time consuming and law reform is slowed.

Question 52

Parliamentary committees

Answer 52

A small group of MPs who consider and report back to parliament on a specific issue, policy or bill. Most have govt. and non govt. members on them. Allow MPs to examine and evaluate the need for reform in more detail, and lets members of the public give input into issues and bills being investigated.

Question 53

Processes used by parliamentary committees

Answer 53

Committee is given terms of reference by parl to investigate a particular issue or bill.
Members of the public can provide written submissions to the committee.
Committee holds public (sometimes private) hearings where many people (experts, affected individuals) can give evidence and answer questions by committee members.
Committee prepares a final written report which contains findings and recommendations for law reform or actions. Tables in parl and govt. generally has a period of time to provide a response.

Question 54

Example of parliamentary committee and reform

Answer 54

Victorian Legislative Council → Legal and Social Issues Committee
Role of this PC is to examine in detail matters connected with community services, education, gaming, health and law and justice.
Standing (ongoing, appointed for the life of parl and usually re-established in later parliaments) committee of the LC, composed of seven govt. and non govt. members from a range of parties.
In April 2021, the committee launched an inquiry into the operation of Vic’s criminal justice system.
Committee received 170 public submissions and heard from >90 witnesses at 8 days of public hearings.
Final report was tabled in parl in March 2022 and made 100 recommendations → The committee recommended that the age of criminal responsibility in Victoria is increased from 10 to 14 years of age. Vic govt. now has 6 months to provide a response.

Question 55

Evaluation of parliamentary committees

Answer 55

Because one or both houses (LLC) have asked the committee to investigate, govt. may be more likely to act on recommendations.
No obligation on Vic govt. to follow any recommendations made.
Allows the public opportunity to have their views heard, including impacted individuals/groups, experts. For criminal justice inquiry there was even a day of public hearings inWangaratta. Because of the representative nature of government.
Time-consuming and law reform can slow.
May encourage Vic parl to make changes to controversial areas because the committee is cross-partisan and reports are based on public consultation and expert evidence.
Because its a house of parl instead of govt. who gives terms of reference, the inquiry may not have govt. support.
Committee can investigate an area comprehensively so that parl can pass a law that covers the whole area, rather than piecemeal changes