U4AOS2A - Law Reform Flashcards
1
Q
What is the point of having laws?
A
- 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
2
Q
What is law reform?
A
- Process of constantly updating and changing the law so it remains relevant and effective
3
Q
What are the reasons for law reform?
A
- Changes in beliefs, values and attitudes
- Changes in living conditions
- Advances in technology
- Greater need for protection of the community
4
Q
Describe changes in beliefs, values and attitudes
Reason for Law Reform
A
- Keep up with and reflect changes
- Sometimes difficult → Members of society reluctant to change
- Values change as knowledge of issue increases
5
Q
Describe changes in living conditions
Reason for Law Reform
A
- Social
- Ensure basic standard of living is maintained
- Economic
- Regulate buying, selling and production of goods
- International
- Changing international circumstances or global events
6
Q
Describe advances in technology
Reason for Law Reform
A
- 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
7
Q
Describe the greater need for protection of the community
Reason for Law Reform
A
- 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
8
Q
How do individuals influence law reform?
A
- Petitions
- Demonstrations
- The Courts
9
Q
What is a petition?
A
- Formal, written request to the government to take some action or implement law reform
10
Q
What are requirements for a petition?
A
- 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
11
Q
What are the strengths of a petition?
A
- 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
12
Q
What are the weaknesses of a petition?
A
- 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
13
Q
What is a demonstration?
A
- 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
14
Q
How can a demonstration be effective?
A
- 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
15
Q
What are the strengths of demonstrations?
A
- Large numbers → Free positive media attention
- Parliament more likely to support
- Raise social awareness → Public think about issue, bring change over time
16
Q
What are weaknesses of demonstrations?
A
- 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
17
Q
How can the courts be used for law reform?
A
- Unclear point of law → Creation of precedent can initiate why and how a law needs to be amended
18
Q
What are strengths of courts in law reform?
A
- 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
19
Q
What are weaknesses of courts in law reform?
A
- 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
20
Q
What is meant by the term ‘media’?
A
- Traditional
- Newspapers
- TV
- Radio
- Broadcast time and length determined by owner → Biased towards own values
- Social
- Tiktok
- People and groups communicate quickly → Spread views to wider audience
21
Q
Why is media important?
A
- 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
22
Q
How does media play a role in law reform?
A
-
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
23
Q
What are limitations of the role of the media?
A
-
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
24
Q
What is the Victorian Law Reform Commission (VLRC)?
A
- 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
25
Q
What is the role of the VLRC?
A
- 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
26
Q
What are strengths of the VLRC?
A
- 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
27
Q
What are the weaknesses of the VLRC?
A
- 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
28
Q
Discuss a recent VLRC inquiry (8 marks)
Strength/weakness - Link to example
A
- (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.
29
Q
What are processes used by Royal Commissions?
A
-
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
30
Q
What are strengths of royal comissions?
A
- 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
31
Q
What are weaknesses of royal comissions?
A
-
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
32
Q
Evaluate a recent Royal Commission (8 marks)
A
- (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
33
Q
What are the reasons for constitutional reform?
A
- To recognise Australia’s First Nations people
- To increase the protection of rights
- To change the Commonwealth’s law-making powers
- To reform Australia’s political system
34
Q
Describe the need to recognise First Nations
A
- 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
35
Q
What is a proposed change to the Constitution for First Nations?
A
- 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
36
Q
Describe the need to increase protection of rights
A
- 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
37
Q
What is an example of increasing the protection of rights?
A
-
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
38
Q
Describe the need to change the Commonwealth’s law-making powers
A
- 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
39
Q
What is an example of a proposed change to expand + limit the Commonwealth’s law-making powers?
A
-
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
40
Q
Describe the need to reform Australia’s political system
A
- 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
41
Q
What is an example of a proposed change to Australia’s political system?
A
-
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
42
Q
How is constitutional law reform different to regular law reform?
A
- Involves changes that affect entire country inst. of one state
- Change cannot be altered unless via another referendum
43
Q
How does Parliament initiate a change to the Australian Constitution?
Phase 1 - Referendum
A
- 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
44
Q
How are the people involved in a change to Constitution?
Phase 2 - Referendum
A
- 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
45
Q
Explain the double majority provision
A
- 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
46
Q
How is the Governor-General involved in changing the Constitution?
Phase 3 - Referendum
A
- Pass both houses + Double majority → GG royal assent
47
Q
Describe the factors affecting the success of a referendum
A
-
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
48
Q
1967 referendum - Which two sections were against the Indigenous population of Australia?
A
- 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
