U4AOS2 Flashcards
definitions ONLY
What are the FOUR points of having laws?
- To protect our society and keep it functioning
- To protect individual’s rights and maintain peace and order in society
- Laws provide guidelines about what is acceptable behaviour in our society to minimise conflict
- To be truly effective, laws should (RECKS): be reflect society’s values, enforceable, clear and understood, known, stable
What is law reform?
Law reform is defined as the process of
constantly updating and changing the
law so it remains relevant and effective.
What are the FOUR reasons to law reforms?
- Changes in beliefs, values and attitudes
- Changes in living conditions
- Advances in technology
- Greater need for protection of the community
What does the reason (1) - changes in beliefs, values and attitudes mean?
- If the law is to remain relevant and acceptable to the majority of people, it must keep up with and reflect the changes that occur over time
- However, it can be hard to push changes to the law quickly as some members of society may be reluctant to accept controversial change
- Sometimes community values change as knowledge of an issue increases and, in turn, society becomes more educated and aware
What does the reason (2) - changes in living conditions mean?
Social: As Australia’s population grows and changes, some laws need to be
reformed in order to ensure our basic standard of living is maintained.
Economic: Governments need to monitor and change the laws that regulate
the buying, selling and production of goods across different areas of business.
International: Changing international circumstances or global events can
influence law reform. This is dependant on the values that the Australian and
World Leaders believe are most important in achieving peace.
What does the reason (3) - advances in technology mean?
- Technology is constantly improving and opening up possibilities that have not previously been considered
- Laws need to change in order to control and regulate new inventions as they become readily available, and risk harming or exploiting users
- Technology also makes it easier to pass on private information - this creates a need to protect the privacy of financial and medical records
What does the reason (4) - greater need for protection of the community mean?
- Law reform must continually occur to make sure individuals and different groups within our community are protected and feel safe
- Harm can include physical, emotional, or economic harm to an individual or group. Laws need to ensure the people are safe from harm
- Some people within the community have specific needs and rights that must be protected, especially if they cannot protect themselves (For example: children, consumers, people with disabilities, animals, etc)
What are the THREE ways individuals influence law reform?
- Petitions
- Demonstrations
- Use of courts
What are petitions? (Provide an example)
Is a formal, written request to the government to take some action or implement law reform.
Example:
“Secure Residency for Farm Workers Who Supported Agriculture During COVID-19”
- farm workers played a critical role in sustaining the agriculture industry
- regardless of risks for their health, they continued to work
- wanting the workers to be recognised for their contribution and skills
- 127 signature count (closes 18 September 2024)
What must a petition have?
- Be addressed to the house in which it is being presented
- Contain a clear statement of the request for action
- Keep to the word limit (e.g. House of representatives = 250)
- Contain the name, address and signature of one individual who supports the need for action (principal petitioner)
- Be legible and not contain any offensive language
- Be an original document (not a photocopy) unless it is an online petition (must be made on Parliament website)
What are the strengths to petitions?
- Petitions are relatively simple, easy and inexpensive way for people to show their desire for a change in the law
- The act of creating a petition and gathering signatures can generate public awareness of an issue and support for the desired legislative change
What are the weaknesses to petitions?
- Some people are reluctant to place their name, address or email address on a platform
- Parliaments receive hundreds of petitions each year and there is no guarantee or compulsion for the suggested law reform to be adopted
What are demonstrations? (Provide an example)
Is a gathering of people to protest or express their concern or dissatisfaction with an existing law.
Example:
‘Change the date’ movement
- 26 January every year, demonstrations take place to protect the Australia Day celebrations
- particularly First Nations people, holding celebration of Australia is considered innappropriate and offensive
- wanting to change the date to a more appropriate and inclusive date
- abolishing Australia Day entirely
- renaming and reframing Australia Day, to recognise and acknowledge the First Nations people and what 26 January 1788 meant for them
What are some characteristics of demonstrations?
- Can be called protests or rallies
- They can be run by individuals or pressure groups
- To be effective, they need to attract a large number of people and **positive media coverage **
- Members of parliament are less likely to support demonstrations that are violent or cause public inconvenience
What are the strengths to demonstations?
- Demonstrations that attract a large number 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
- Can raise social awareness, making members of the public think about the issue for the first time. This can bring change over time
What are the weaknesses to demonstrations?
- Can be difficult and time consuming to organise and attendance can be affected by factors like the **location **and weather
- A demonstration about something that cannot be changed by the Commonwealth Parliament will be less effective (e.g. demonstrating against a trade deal between the United States and China). However, they may still attract attention (even wide global attention) and may have a longer-term influence
What is the use of courts? (Provide an example)
If an unclear point of law needs to be clarified then the creation of a precedent can get the ball rolling about why and how a law needs to be amended.
Sperm donor case - Masson v Parsons
- donated his sperm to Ms Parsons
- asked the court to determine whether Mr Masson was the legal father of the child and had rights
- the High Court’s ruling was that a sperm donor who has been actively involved in the child’s life may be recognised as a parent and have parental rights
What are some examples of traditional media?
- newspapers
- radio
- television
What are some examples of media?
- tiktok
What are the strengths to media?
- Allows individuals, pressure groups, businesses and organisations to generate massive interest in, and awareness of, legal and political issues on a larger scale
- The use of Australian television programs, such as the Nine Network’s 60 Minutes have had an impact on public opinion. This can assist the government in deciding whether there is sufficient community support for a change in law
- Approximately 60% of the Australian population actively use Facebook, and around 15 million Australians visit YouTube per month. So, it makes sense for groups to use these platforms to reach a large audience instantaneously
What are the weaknesses to media?
- The risk of spread of misinformation
- The use of algorithms online
- Media concentration
What are the perceived bias for News Limited, Fairfax Media and ABC?
NL - recognised for supporting the Liberal-National Coalition
FM - being left-wing and pro-Labor
ABC - pro-Labor and the Australian Greens
What are the THREE roles of media in law reform?
- Informing and raising awareness
- Assessing levels of community support
- Influencing community opinion on a change in the law
What is informing and raising awareness?
The media can inform people about the social, political and legal issues and the need for law reform, and can also generate interest in, and awareness of, those issues or need.
It is estimated that 97% of the population read some form of newspaper every week (in either digital or print)
What is assessing levels of community support?
The media can assist the parliament, government and political parties to assess the level of community support for law reform.
Ipos Issues Monitor is an ongoing survey that determines which issues are of most concern for Australians. A survey in 2022 showed that the cost of living is a key concern for people. This may result in government seeking to introduce legislation to relieve the daily costs of living
What is influencing community opinion on a change in the law?
The media can influence community views and opinions about social, political and legal issues and the need for law reform.
For example, the “BLUE” documentary can influence the community on their views about marine life in the ocean
What is the Victorian Law Reform Commission? (and an example)
- The Victorian Law Reform Commission (VLRC) is an independent law reform organisation
- The VLRC reviews, researches, and makes recommendations to the state parliament about changes to the laws
- VLRC was established in 2001 and is funded by the Victorian Government, however it has no involvement in the political process
Stalking:
- Attorney-General inquiry
- affects at least one in six women and around one in 15 men
- AG was asked to look over the area of law
- took 1 1/2 years to get through the inquiry
- started in 2021, ended in 2022
- people should be held accountable as victim survivors have a range of justice needs
- Course of Conduct of the Crimes Act 1958 (Vic)
What is the role of VLRC? (including any other specific roles)
Is to assist the government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change in Victorian laws.
- major inquiry
- community inquiry
- monitoring
- education
What are the strengths for VLRC?
- Victorian Government asks the VLRC to investigate the need for law change in specific areas, the government may be more likely or willing to act on the VLRC’s report and recommendations
- Has the power to investigate and make recommendations on minor matters or areas of law reform without a reference from the Attorney-General, which can lead to important law reform
- Is independent of parliament and political parties, it can remain objective and unbiased in making its recommendations
What are the weaknesses for VLRC?
- Limited by how many projects it undertake at a time, and can only initiate investigations without a reference if it will not consume too many resources
- VLRC’s investigation can be time-consuming. For example, inquiries may take 12 to 24 months
- The Victorian Parliament is not obliged to support or adopt any of the VLRC’s recommendations for law reform
What are royal commissions?
Are major public inquiries established by the government to investigate an area or matter of public importance or concern in Australia.
Who is given the power for Commonwealth level and State level for royal commissions?
Commonwealth: Governor-General
State: governor
What are the processes used by royal commissions?
- Prepare consultation, research or background papers to provide information to interested parties and the community and form the basis for discussion and submissions
- Undertake consultation sessions to gain input, views and opinions from a range of individuals and organisations that have an interest in the area being
- Seek community input via submissions so the commission can gain input and opinions from individuals who may not otherwise attend consultation
- Obtain documents that are relevant to the subject matter. Royal Commissions have wide-ranging powers to compel organisations and individuals to produce
- Hold public hearings to gather evidence relevant to the terms of reference. Royal Commissions have extensive powers to gather evidence at their hearings
What are the strengths for royal commissions?
- Governments can use the findings and recommendations of royal commissions to justify making changes in the law and government policy
- Can measure community views on areas of investigation by holding consultations and receiving public submissions
- Independent of parliament, and more likely to remain objective and unbiased in making their recommendations
What are the weaknesses for royal commissions?
- May be used as a tool against political opponents. They may also be used to avoid addressing more critical issues requiring law reform
- No obligation on the part of the parliament to support or introduce legislation which adopts any of the recommendations made by royal commissions
- Can be time-consuming and costly
What is an example of a royal commission?
Aged Care Quality and Safety
- started in 2018, ended in 2020
- RC invited members of the public and institutions to make submissions to the RC using an online form
- the amount of time it took to have the final report published was a challenge
- Royal Commissions Act 1902
- Aged Care Act 1997
What are the FOUR reasons for Constitutional Reform?
- Recognises First Nations People
- Increase protection of rights
- Change the Commonwealth’s law-making powers
- Reform Australia’s political system
What is recognises first nations people? (provide an example)
- Did you know that there is no mention of Australia’s First Nations people in the Constitution? Nor is there any recognition that they have been living on the continent for at least 65,000 years
- Before 1967 the Australian Constitution did not recognise First Nations people as part of the Australian Population
- Because the law-making that related to Aboriginal and Torres Strait Islander people belonged to the states and territories, it lead to many inconsistencies across the nation
Example:
- To establish a First Nations Voice to parliament
What is increase protection of rights? (provide an example)
- As you learned, there are five express rights in the Australian Constitution that impose restrictions on what laws the Commonwealth Parliament can make
- The number of rights protected by the Constitution is limited, with the rights themselves being narrow in scope
- Most rights in Australia are protected in statute or common law, including freedom of speech, assembly, thought and movement
- There have been calls to change the Constitution to include basic freedoms, to broaden the existing rights, or to incorporate a Bill of Rights into it
Example:
- Freedom of Speech
- wanting to have a right to have their own voice
What is change the Commonwealth’s law-making powers? (provide an example)
- As you learned, the Commonwealth Parliament has exclusive and concurrent powers, and the states have concurrent and residual powers
- In the past, the Commonwealth Parliament has wanted to change the Constitution to increase their law-making powers. Many of these were in response to the High Court ruling against their legislation
- However, there have been suggestions to change the Constitution to limit the powers that the Commonwealth has in law-making
Example:
- In 1911, the Commonwealth proposed to change the Constitution to extend its power to control companies, labour and employment (including wages and conditions). The Commonwealth argued these were national issues that should be regulated at a federal level. The proposal was not passed. An almost identical reform was also put in 1913, but again, it did not pass
What is reform Australia’s political system? (provide an example)
- The timing of federal elections has been discussed as one of the potential changes to the Constitution, as it only states the maximum term of three years but the Prime Minister can call elections prior to this
- The Constitution currently prevents anyone who is a citizen or swears allegiance to another nation to be a member of the Commonwealth Parliament under Section 44(i). A change would allow more people to be eligible to sit in our Federal Parliament
- In the past, there have been calls to change our political system to make Australia a republic. This would mean we would have a head of state instead of the British monarch and would be free from the Commonwealth
Example:
- allow more people to be eligible to sit in parliament
- Restricts who can sit as a member of the Commonwealth Parliament
- In 2017, the High Court had to determine whether some members of parliament were invalidly elected because of section 44
What are the THREE phases constitution can be changed through referendums?
- The Parliament
- The People
- The Governor-General
What is Phase 1 - The Parliament?
- Any proposed change to the Australian Constitution must be introduced and passed through the Commonwealth Parliament, giving them the overall power to decide whether a change to the Constitution is necessary
- Just like a regular change to a law, a bill is prepared that outlines the alteration of the wording to the Constitution that they are proposing
- The bill must be passed by an absolute majority of both houses of parliament, then they have between two and six months to submit the proposal to the voters
What is Phase 2 - The People?
- Once it has passed through the Commonwealth Parliament, the referendum process occurs. This is a nationwide, compulsory vote on a proposed change to the wording of the Australian Constitution
- Before it is put to the people, the Australian Electoral Commission sends information to every household that explains the change and provides arguments for and against it
- For a referendum to be successful, it must satisfy the double majority provision
A majority of voters in the WHOLE of Australia must vote ‘yes’ to the proposed change
AND
A majority of voters in a majority of states must vote ‘yes’ to the proposed change (In at least 4 of 6 states)
What is Phase 3 - The Governor-General?
Once the referendum has passed both Houses of Parliament and achieved a majority ‘ yes ’ vote from the voters in the nation and in a majority of states, then it is presented to the Governor-General for royal assent.
However, the double majority requirement has been difficult to achieve, with only 8 out of 45 referendums making it to the Governor-General for approval.
How does change happen through a referendum?
- bill is introduced to change the Constitution
- bill is passed by both houses
- information is given to voters explaining the proposed change
- all eligible voters choose ‘yes’ or ‘no’
- majority of the nation (over 50%) and majority of states (4/6) vote ‘yes’ (hence, double majority)
- royal assent is given
- the Constitution is changed
What are the FOUR factors that affect the success of referendums?
- Bipartisan support
- Whether votes are seeking change
- Nature of the proposal
- Education about the proposal
What is Bipartisan support?
- Before the referendum is exposed to the people, it must get the support of two or more political parties, or bipartisan support
- This is usually from the two major political parties: the Australian Labor Party (ALP) and the Liberal Party
- If the opposition party does not support the proposal, then they will lead a ‘no’ campaign against it
- But if their own preferred party supports the change, then they are more likely to vote ‘yes’
What is whether votes are seeking change?
- One factor that can impact the success of a referendum is whether the people themselves support and actively promote the change
- If the people, rather than the government, are driving the change then they are more willing to vote ‘yes’
- Due to a general distrust of politicians, voters will tend to maintain the status quo and vote along the line of those they are surrounded by
What is the nature of the proposal?
- If a proposal is straightforward, clear and accessible for everyone to understand then it is more likely to be successful than if it was complex and unclear
- If voters don’t understand what they are being asked to vote for then it’s unlikely they will vote ‘yes’ when the time comes
What is the education about the proposal?
- It is rare to see the Australian Constitution in the media and the general public has very little knowledge about its contents
- This can make it difficult for voters when they are asked to consider changes for something they don’t know very much about
- If a referendum has had a large amount of media attention or education campaigns leading up to the vote then it is more likely that the people can make an educated decision
- However, the existence of social media can help to spread misinformation that can confuse the voters
What is the 1967 referendum in Australia?
Until 1967, the Australian Constitution did not give the Commonwealth the power to legislate for First Nations people or to include them in the national census.
- “DO YOU APPROVE the proposed law for the alteration of the Constitution entitled - ‘An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population’?”
- Essentially, voting ‘yes’ to this question would have resulted in Section 51(xxvi) being changed so that the words ‘other than the Aboriginal Race in any State’ would be abolished, and that Section 127 would be removed.
Results: This referendum was the most successful in Australian history, with 90.77% of Australians voting in favour of the proposal.
Why was the 1967 referendum significant?
- it allows First Nations people to be considered as part of the population instead of being secluded from the rest of the nation
- provide them a symbol of recognition
- most successful in Australian history, with 90.77% of Australians voting in favour of the proposal
What is the 2023 referendum in Australia?
- recognise First Nations people by establishing a voice in the Constitution
- however, it was not passed (60.06% rejected the proposed referendum - voting ‘no’)
