U4AOS2A - Law Reform

Question 1

What is the point of having laws?

Answer 1

• Protect society and keep it functioning
• Protect individual’s rights + Maintain peace and order in society
• Provide guidelines about what is acceptable behaviour
  
  • Minimise conflict
• What makes a law effective?
  
  • Known
  • Reflect society’s values
  • Clear and understood
  • Stable and enforceable

Question 2

What is law reform?

Answer 2

• Process of constantly updating and changing the law so it remains relevant and effective

Question 3

What are the reasons for law reform?

Answer 3

• Changes in beliefs, values and attitudes
• Changes in living conditions
• Advances in technology
• Greater need for protection of the community

Question 4

Describe changes in beliefs, values and attitudes

Reason for Law Reform

Answer 4

• Keep up with and reflect changes
• Sometimes difficult → Members of society reluctant to change
• Values change as knowledge of issue increases

Question 5

Describe changes in living conditions

Reason for Law Reform

Answer 5

• Social
  
  • Ensure basic standard of living is maintained
• Economic
  
  • Regulate buying, selling and production of goods
• International
  
  • Changing international circumstances or global events

Question 6

Describe advances in technology

Reason for Law Reform

Answer 6

• Always improving and opening up possibilities not previously considered
• Law Reform → Control and regulate new inventions
  
  • Risk harming or exploiting users
• Technology makes private information easier to pass on
  
  • Need to protect privacy of financial and medical records

Question 7

Describe the greater need for protection of the community

Reason for Law Reform

Answer 7

• Make sure individuals and different groups within our community are protected and feel safe
• Harm
  
  • Physical
  • Emotional
  • Economic
• Some people have specific needs and rights that need to be protected → Especially if they cannot protect themselves
  
  • Children
  • Consumers
  • Disabilities

Question 8

How do individuals influence law reform?

Answer 8

• Petitions
• Demonstrations
• The Courts

Question 9

What is a petition?

Answer 9

• Formal, written request to the government to take some action or implement law reform

Question 10

What are requirements for a petition?

Answer 10

• Must…
  
  • Be addressed to the house being presented to
  • Clear statement of the request for action
  • Keep to word limit
  • Contain name, address and signature of one individual who supports the need for action
  • Be legible and not contain any offensive language
  • Be an original document

Question 11

What are the strengths of a petition?

Answer 11

• Simple, easy and inexpensive way for people to show their desire for a change in law
• Members of parliament are likely to consider a petition with many signatures
  
  • Power of numbers

Question 12

What are the weaknesses of a petition?

Answer 12

• Some people are reluctant to put their name, address or email address on a petition
• Parliaments receive hundreds of petitions each year with no guarantee or compulsion for the suggested law reform to be adopted

Question 13

What is a demonstration?

Answer 13

• A gathering of people to protest or express their concern/ dissatisfaction with an existing law
• Can be called protests or rallies
• Run by individuals or pressure groups

Question 14

How can a demonstration be effective?

Answer 14

• Needs to attract a large number of people and positive media coverage
• Members of parliament less likely to support demonstrations that are violent/ cause public inconvenience

Question 15

What are the strengths of demonstrations?

Answer 15

• Large numbers → Free positive media attention
  
  • Parliament more likely to support
• Raise social awareness → Public think about issue, bring change over time

Question 16

What are weaknesses of demonstrations?

Answer 16

• If they cause a public inconvenience, they can be less effective/ have decreased support
  
  • Negative media decrease credibility + Likelihood of parliament members supporting the cause
• Often are standalone events unlikely to generate ongoing support for the desired law reform

Question 17

How can the courts be used for law reform?

Answer 17

• Unclear point of law → Creation of precedent can initiate why and how a law needs to be amended

Question 18

What are strengths of courts in law reform?

Answer 18

• Court challenge unsuccessful → Can still have media coverage
  
  • Generate community interest in the decision + Possible need to change a law
• Judge decisions and comments made in court can encourage parliament to change the law

Question 19

What are weaknesses of courts in law reform?

Answer 19

• Individuals reluctant to challenge existing laws through courts because…
  
  • Expensive
  • Time-consuming
  • Successful outcome not guaranteed
• Judges are unelected and their decisions and comments may not necessarily represent the views and values of the community

Question 20

What is meant by the term ‘media’?

Answer 20

• Traditional
  
  • Newspapers
  • TV
  • Radio
  • Broadcast time and length determined by owner → Biased towards own values
• Social
  
  • Facebook
  • Twitter
  • Tiktok
  • People and groups communicate quickly → Spread views to wider audience

Question 21

Why is media important?

Answer 21

• Allows individuals, pressure groups, businesses and organisations to generate interest and awareness of legal and political issues on a larger scale
• High widespread usage → Reach large audience instantaneously
• Assist gov. in deciding whether there is sufficient community support for law reform

Question 22

How does media play a role in law reform?

Answer 22

• Inform and Raise Awareness
  
  • Inform people about social, political and legal issues and the need for law reform
  • Generate interest & awareness
• Assess levels of Community Support
• Influencing Community Opinion on a Change in the Law
  
  • Broadcasters w/ large following influence how people think about issue

Question 23

What are limitations of the role of the media?

Answer 23

• Media Concentration
  
  • Ownership of mass media by few individuals/groups
  • Many brands → Owned by 1
  • Some face criticism for political bias
• Risk Spread of Misinformation
  
  • Online environment isn’t regulated like traditional media
  • Anyone can share ‘news’
  • Erode trust in professional sources
• Algorithms
  
  • Set of instructions that tell computer what to do
  • Influence what people read + information
  • Allows engagement but also means they may miss out on things that ‘should’ be seen

Question 24

What is the Victorian Law Reform Commission (VLRC)?

Answer 24

• Independent law reform organisation
• Reviews, researches and makes recommendations to the state parliament about changes to the laws
• Funded by government
  
  • No involvement in political process

Question 25

What is the role of the VLRC?

Answer 25

• Assist the government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change
• Other roles
  
  • Major Inquiry → Examine proposals from Victorian Attorney-General
  • Community Inquiry → Minor issues within community
  • Monitoring → Monitor and coordinate law reform activity in Victoria
  • Education → Undertake educational programs and inform community

Question 26

What are strengths of the VLRC?

Answer 26

• Victorian Gov. asks VLRC to investigate need for law change → Will be more likely/ willing to act on VLRC report and recommendations
• Power to investigate and make recommendations on minor issues without a reference from the Attorney-General
  
  • Does not need permission
• Measure community views by holding consultations and receiving public submissions → Increase likelihood of gov. implementing
  
  • Want to reflect views of people

Question 27

What are the weaknesses of the VLRC?

Answer 27

• Gov. support still requires support of crossbench to pass law reform
  
  • Especially if no majority in upper house
  • Law-making slow → Recommendations not immediately implemented
• VLRC limited by number of projects it can undertake at a time
  
  • Can only do w/o reference if it does not involve too many resources → Money, staff & time
• Investigations time-consuming

Question 28

Discuss a recent VLRC inquiry (8 marks)

Strength/weakness - Link to example

Answer 28

• (S) Gov. requests VLRC investigation → More likely to implement
  
  • Stalking - VLRC suggested for community to be educated
• (S) VLRC able to measure community views with consultations and receiving public submissions
  
  • Stalking - VLRC obtained personal statements from venues - RMIT University + Online feedback form ∴ Garner public sentiment
• (W) Even if gov. is willing, still require crossbench approval
  
  • No upper house → Stalking viewed as unimportant ∴ Unlikely to be implemented
• (W) VLRC limited by number of projects they can take at a time
  
  • 2 predominant issues, stalking overshadowed
• (W) VLRC process long
  
  • Many things need to be researched for stalking ∴ Longer time to take to gov.

Question 29

What are processes used by Royal Commissions?

Answer 29

• Prepare consultation, research and background papers
  
  • Provide information to interested parties & community
  • Form basis for discussion and submissions
• Undertake consultation sessions
  
  • Gain input, views and opinions from a range of individuals and organisations that have an interest
• Seek community input via submissions
  
  • Input and opinions from individuals who don’t attend consultations sessions
• Obtain relevant documents
  
  • Help understand issues/identify potential misconduct
• Hold Public Hearings
  
  • Evidence relevant to Terms of Reference

Question 30

What are strengths of royal comissions?

Answer 30

• Raise community awareness and interest in particular area
  
  • Encourage submissions
  • Initiative (petition/ demonstration)
• Government asks → More likely to act on royal comission report/ recommendations
• Independent of parliament → Likely to remain objective and unbiased with recommendations

Question 31

What are weaknesses of royal comissions?

Answer 31

• Mixed extent to influence law reform
  
  • Depends on subject matter
  • Bipartisan support
• Can be used as tool against political opponents
  
  • Avoid addressing more critical issues
• Ability to influence law reform depends on timing and terms of reference
  
  • If immediately after election → Diminished

Question 32

Evaluate a recent Royal Commission (8 marks)

Answer 32

• (S) Raise community awareness
  
  • Robodebt covered to large scale ∴ Individuals not directly involved would be able to read report and see signfiicance
• (S) Gov. request → More likely to implement
  
  • Terms of reference request information on whether processes were handled fairly
• (S) Independent of parliament → Objective
  
  • Political views don’t come into play e.g Recommendations
• (W) Tool against political opponents
  
  • Robodebt coverage delayed
  • Peter Dutton use child abuse to gain political public leverage
• (W) Influence restricted by timing
  
  • Immediately after election = Disregarded
• Overall, [summarise points] Royal Comissions influence law reform to a [.] extent

Question 33

What are the reasons for constitutional reform?

Answer 33

• 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

Question 34

Describe the need to recognise First Nations

Answer 34

• There is no mention of First Nations in the Constitution
  
  • No recognition that they have been living on the continent for at least 65,000 years
• Before 1967 not recognised as part of the Australian population
• Law-making related to states → Many inconsistencies

Question 35

What is a proposed change to the Constitution for First Nations?

Answer 35

• To establish a First Nations Voice to Parliament
  
  • Body enshrined in the Constitution
  • Allows First Nations to provide advice to Commonwealth on policies/ laws that directly affect
  • Body chosen by First Nations + Representative

Question 36

Describe the need to increase protection of rights

Answer 36

• Number of rights expressed by the Constitution is limited → Also are narrow
• Most rights protected in statute or common law
• Calls to change the Constitution to…
  
  • Include basic freedoms
  • Broaden existing rights
  • Incorporate a Bill of Rights

Question 37

What is an example of increasing the protection of rights?

Answer 37

• Freedom of Speech
  
  • Not protected in Constitution but primarily by statute law
• Real Scenario
  
  • Who → Former SBS sports reporter Scott McIntyre
  • What → Write a series of tweets described as offensive and wrong - ‘Wonder if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered’; Terminated from employment
  • Where - Twitter
  • When - Anzac Day 2015
  • Why → Ignited debate about freedom of speech in Australia

Question 38

Describe the need to change the Commonwealth’s law-making powers

Answer 38

• Has exclusive and concurrent
• Commonwealth has wanted to change the Constitution to increase their powers
• Have been suggestions to instead limit the powers that Commonwealth has

Question 39

What is an example of a proposed change to expand + limit the Commonwealth’s law-making powers?

Answer 39

• Expand
  
  • 1919 → Commonwealth sought to alter the Constitution to extend its powers in air navigation and aircraft
  • Commercial air navigation and aircraft did not exist at the time the Constitution was drafted
  • Deduced by High Court that parliament did not have general power over aviation → Proposal
  • Did not pass
• Limit
  
  • Calls to repeal Section 51(xxvi)
  • Gives the power to make laws for people of any race
  • Identified as potentially allowing Commonwealth to make laws that negatively discriminate

Question 40

Describe the need to reform Australia’s political system

Answer 40

• Timing of federal elections is a suggested change
• Constitution currently prevents anyone who is a citizen/ swears allegiance to another nation to be a member of the Commonwealth Parliament
  
  • Change allows more people to be eligible
• Calls to change Australia into a republic
  
  • Head of state instead of the British Monarch → Free from Commonwealth

Question 41

What is an example of a proposed change to Australia’s political system?

Answer 41

• Timing of Federal Elections
  
  • HoR has a maximum term of 3 years which is uncommon → Other parliaments have longer terms
  • Senate 6 years
  • Referendum in 1988 tried to change the Constitution - ↑ HoR to 4 years, ↓ Senate to 4 years → Unsuccessful
  • 2004 → Parliamentary Committee suggested HoR to 4 years
    
    • Long-Term policy decisions
    • Enhance business confidence
    • Save resources spent on federal elections
    • Longer + Fixed term = Prevent elections being held at a convenient time

Question 42

How is constitutional law reform different to regular law reform?

Answer 42

• Involves changes that affect entire country inst. of one state
• Change cannot be altered unless via another referendum

Question 43

How does Parliament initiate a change to the Australian Constitution?

Phase 1 - Referendum

Answer 43

• Bill is prepared that outlines the alteration of the wording to the Constitution that is being proposed
• Must be passed by absolute majority of both houses of parliament

Question 44

How are the people involved in a change to Constitution?

Phase 2 - Referendum

Answer 44

• No less than 2 months, no more than 6 months after bill passed
• Australian Electoral Commission sends information to every household that explains the change
  
  • Arguments for and against
• Double majority → Successful referendum

Question 45

Explain the double majority provision

Answer 45

• Must satisfy 2 criteria
  
  • Majority of voters in whole of Australia vote ‘yes’
  • Majority of voters in majority of states → 4/6
    
    • Protects smaller states from being dominated by larger, more populated states → Each state has a voice regardless of size

Question 46

How is the Governor-General involved in changing the Constitution?

Phase 3 - Referendum

Answer 46

• Pass both houses + Double majority → GG royal assent

Question 47

Describe the factors affecting the success of a referendum

Answer 47

• Bipartisan Support
  
  • Approval by 2+ political parties → Labor and Liberal
  • Many voters don’t understand implications of Constitutional change → Seek guidance
• Whether voters are seeking change
  
  • If gov. is deciding the change people may be more cautious because of distrust in politicians
  • Doubt → Worried about change being for sake of advocates inst. of greater good
• The nature of the proposal
  
  • Straight forward and accessible
  • Complex and difficult to understand → Voters won’t understand what they are voting for
• Education about the proposal
  
  • Constitution doesn’t have much media coverage
  • Some referendums fail not because of reluctance for change but because of lack of knowledge

Question 48

1967 referendum - Which two sections were against the Indigenous population of Australia?

Answer 48

• Section 51 (xxvi)
  
  • ‘… respect to any race other than the aboriginal race in any state’
• Section 127
  
  • Aboriginies not to be counted in reckoning population