Unit 3 AOS1b - Chapter 2: Law Making Through The Parliment Flashcards
1
Q
Define cabinet.
A
The policy-making body of the government, made up of senior ministers and the prime minister (federal) or premier (state).
2
Q
Define legislation.
A
An Act of parliament or sets of Acts.
3
Q
Define lobbying.
A
This involves making requests to politicians or groups for their assistance in trying to influence a change in the law.
4
Q
What is the office of parliamentary counsel?
A
The office of parliamentary counsel is responsible for drafting legislation; the drafters are given instructions from cabinet about the purpose and extent of proposed laws.
5
Q
What is a pressure group?
A
A group of people who have a common interest in trying to influence changes in the law.
6
Q
What is the Scrutiny of Acts and Regulations Committee?
A
This is a Victorian joint investigatory committee that looks at new Bills as they make their passage through the Victorian Parliament.
7
Q
What is the Senate Scrutiny of Bills Committee?
A
This is a Senate committee that is responsible for examining all Bills that come before the Commonwealth Parliament.
8
Q
Define Statute Law.
A
Law made by parliament, also known as legislation.
9
Q
What are terms of reference?
A
Instructions given to an organisation (for example, a law reform body) setting out the parameters within which an investigation will operate.
10
Q
Why do laws need to be able to change?
A
As society changes it needs new and different laws. The laws can only operate effectively of they reflect society’s needs and values of the majority of the community. Therefore, the laws must change as society’s needs and values change to be effective.
11
Q
What are the factors that influence changes in the law?
A
. Changing values in society * . Advances in technology * . Changes in society . International relationships . Greater need for protection of the community * . Greater demand for access to the law . Change in the nature of businesses . Community awareness of the law . Encouraged changes in values in society*
- = main ones I’ve chosen to remember
12
Q
Define abrogate.
A
Abolish; law made through the courts can be cancelled by an Act of parliament if the Act specifically states that it abolishes the law made by the courts.
13
Q
Explain the following reason why laws may need to change: Changing Values and Attitudes
A
In our society, values and attitudes are constantly changing so our laws need to be able to follow. This is because people are more willing to abide by a law which they deem acceptable, whilst tend to disobey laws they disagree with. Therefore, in order the law to remain acceptable and be followed it must keep up with society’s changing values and attitudes.
14
Q
What are examples of laws changing do to changing values and attitudes?
A
. Oscar’s Law
- most people today abhor animal cruelty, however people used to be much less concerned about the welfare of animals.
- When Debra Tranter rescued a dog called Oscar in a poor state from a puppy farm she began campaigning for change in relation to puppy farming.
- The Domestic Animals Amendment (Puppy Farm Enforcement and Other Matters) Act 2011 (Vic) was passed and provided more regulation over puppy farms and increased penalties for animal cruelty.
. De facto relationships and same-sex couples
- With greater understanding our views on these couples have changed.
- The Relationships Establishment Act 2008 (Vic.) establishes a register for the registration of domestic relationships in Victoria.
- This covers two people, regardless of gender, living together on a genuine domestic basis.
15
Q
What are examples of laws changing due to changes in society?
A
. Buying habits
- Buying habits have hanged as many items purchased 100 years ago were purchased from local markets and inspected before buying.
- Today with packaging thorough inspection is impossible.
- The law has had to change in order to protect consumers and make sellers ensure their products are safe.
- The Competition and Consumer Act 2010 (Cth) states that goods that are purchased must be acceptable quality and reasonably fit for any disclosed purchase.
. Drunk and disorderly
- People have become intolerant towards drunk and disorderly conduct in public.
- The Justice Legislation Amendment Act 2011 (Vic.) enables a licensee, responsible person or member of the police force to bar a person from entering or remaining on licensed premises.
. Bullying
- Bully is now seen as an increasing problem and not “just some fun”.
- Cyberbullying is a new and equally harmful problem (which can easily be anonymously) which results in depression, suicidal contemplation and suicidal attempts.
- The Crimes Amendment (bullying) Act 2011 (Vic.) was passed in order to tackle the rising incidence of bullying.
16
Q
Explain the following reason why laws may need to change: Greater protection of the community
A
The community needs to be protected do that it can continue functioning in a harmonious way. One of the major roles of the law is to protect individuals from harm (whether it be physical harm or unscrupulous practices). Therefore when laws fails to protect the community a change must occur in order to make unlawful those actions that harm anyone. This means as new situations arise, new laws are required.
17
Q
What are examples of laws changing due to greater need for protection of the community?
A
. Protection of children
- the Crimes Amendment (Grooming) Act 2014 (Vic.) was passed to protect children from individuals seeking to groom children for sexual purposes.
- this change in the law was recommended by the Victorian Family and Human Development Committee.
- this law is paternalistic because it is protecting those who are not prepared to protect themselves.
. Mobil phones while driving
- using mobile phones while driving increases the risk of being in an accident.
- as a result penalties have gotten tougher in order to deter people from using phones while driving.
. Restrictions on parole
- following murders committed by offenders who were on parole (such as Jill Meagher), the Corrections Amendment (Parole Reform) Act 2013 (Vic.) was passed.
- the purpose of this Act was to ensure the safety and protection of the community are the paramount considerations in decisions to release a prisoner on parole.
18
Q
What are examples of the law changing due to the need to protect rights?
A
. Discrimination
- The Equal Opportunity Act 2010 (Vic.) has been passed to replace existing legislation.
- This area of law has been changed a number of times to accommodate changes in values relating to discrimination and definitions of what is unacceptable discrimination, such as discrimination on the grounds of age, impairment, pregnancy or race.
. Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
- Part 2 of this Act establishes the Parliamentary Joint Committee on Human Rights.
- This committee examines Bills and legislative instruments for compatibility with Australia’s human rights obligations and reports to both houses of the Commonwealth Parliament.
-The committee will also investigate issues relating to human rights referred to it by the attorney-general.
19
Q
What are examples of laws changing due to advances in technology?
A
. Computers
- computers have brought us new problems that the law needs to address.
- eg. stalking on the Internet is a recent type of crime that has been made possible by the increased availability of computers.
- it is unlawful to stalk another person using the Internet, email or any electronic communication.
- computers have made it easier to steal a person’s identity so the Crimes Amendment (Identity Crime) Act 2009 (Vic.) has been passed to try to overcome this problem.
20
Q
Explain the following reason why laws may need to change: Advances in technology
A
Technology is constantly improving and opening up new frontiers. As it improves, new situations need to be covered by the law to reduce the opportunity for individuals and groups being exploited or harmed. It is hard to keep up with changing technology and the perverse ways that people can use it.
21
Q
Explain the following reason why laws may need to change: The need for greater access to the law
A
As people become better educated about the law and their rights, they are more likely to want to seek justice if they believe their rights have been infringed.
22
Q
What are examples of the law changing due to greater need for access to the law?
A
. The Victorian Civil and Administrative Tribunal
- to take a matter to court is expesnisve and intimidating.
- so to assist people in their efforts to seek a just resolution to disputes that arise, the law has been changed to provide alternative avenues of dispute resolution such as the VCAT.
- this tribunal was established under the Victorian Civil and Administrative Tribunal Act 1998 (Vic.).
. Drug Court
- this was established in 2002.
- and was established to assist people with drug problems with the aim of helping them to rehabilitate and reduce recidivism.
23
Q
Explain the following reason why laws may need to change: Changes in society
A
Our society is constantly changing and as a result new areas are been created which are not at first covered by existing laws. Therefore laws have to change in order to protect the community.
23
Q
Explain the following reason why laws may need to change: Protection of rights
A
The protection of individuals’ rights is seen as important in the community. When these rights are infringed, and injustices are unable to be resolved through the law, the law needs to change to deal with these injustices.
23
Explain the following reason why laws may need to change: Generating changing values in society
In some instances it appears that the law-makers have changed the law in order to encourage a change in society’s values.
23
What are examples of the law changing in order to generate changing values in society?
. The Victorian Charter of Human Rights and Responsibilities
- this seeks to educate the community on rights and tolerance, generate a respect for diversity, and promote an understanding of the balance between rights and responsibilities.
- this is achieved through providing legislative protection for an extensive number of human rights for Victorians, and setting out the responsibilities of governments, organisations and citizens in the general community.
. Discrimination
- The law-makers have helped to change values in relation to discrimination under the Equal Opportunity Amendment Act 2010 (Vic.) by making many types of discrimination unlawful.
24
Where does most reform occur?
Most law reform is initiated through parliamentary ministers. These ministers take advice from their departments and law reform bodies about required changes in the law.
Individuals and groups can also influence change (not just from demonstrations and petitions) through the political party they decide to vote in to form government. These parties will make promises which they will try to implement once elected.
25
What are the two sources that can place pressure on law-making bodies to bring about change in the law?
Informal and formal pressures.
26
What are informal pressures?
Informal pressures for change come from individuals, pressure groups, political parties and trade unions who are not connected with the law-making process and are therefore outside the formal structure of parliament. Informal change is used to influence law-makers and increase public awareness on an issue.
27
What are formal pressures?
Formal pressures for change come from within the formal structures of the law-making process and includes actions by formal law reform bodies such as the Victorian Law Reform Commission (VLRC) which was established to assess the need got change in the law.
It also includes actions from:
. Cabinet (decide what changes should take place)
. Government departments (decide what changes in the law are required in their area)
. Parliamentary committees (which are asked by parliament to investigate and issue)
. and other Law reform bodies (responsible for investigating the need for changes in the law as the need arises).
28
What are pressure groups?
Pressure groups are groups of people who join together because they have a particular common interest in trying to influence the government to change the law. Often the sheer weight of numbers can lead to their demands being listened to.
29
What are some examples of pressure groups?
. Dying With Dignity Victoria (DWDV)
. Animals Australia
. GetUp!
30
What are the methods used by individuals and groups to influence change in the law?
. Direct approaches to members of parliament
. Political action
. Petitions* (more likely to be used by groups)
. Use of the media*
. Submissions
. Demonstrations* (more likely to be used by groups)
. Civil disobedience
. Political action
. Court action
* = Ones you need to know
31
Explain the following method used by individuals and groups to influence change in the law: Taking political action
Voting: an individual can demonstrate support for a change in the law at an election. When we vote for a candidate we demonstrate support for the policies they represent. When they are elected into parliament we expect that they will implement those policies by changing the law.
Standing for election: an individual who wants to influence change may stand for election to parliament. They can be either an independent candidate or a representative of a political party.
32
Explain the following method used by individuals and groups to influence change in the law: Petitions
A petition is a formal, written request to the government pleading for action in reference to an outdated or unjust law. Advocates of a change in the law are able to sign the petition to support the written request before it is forwarded to a local member of parliament. That member of parliament can then present the petition at the next sitting of parliament.
33
What are the strengths of Petitions?
. Can make direct contact with the government when the petition is tabled in parliament.
. Can show a high degree of support when a lot of signatures obtained.
. Can arouse public awareness of an issue when collecting signatures.
. E-petitions can gather large support over the Internet.
34
What are the weaknesses of Petitions?
. Many petitions are presented to parliament and parliament cannot respond to them all.
. Are not as visual as other methods such as demonstrations so less likely to gain media support.
. It may be difficult to obtain large numbers of signatures.
. The minister tabling the petition may have little influence on government policy for new laws.
35
What are some examples of petitions being used to change the law?
. Asylum Seekers
- some people think that there should be tighter restrictions on who should be allowed to settle in Australia.
- others would like to see a more generous treatment of asylum seekers. In the petition below.
- the petitioners are asking the Commonwealth Government to consider removing all asylum seekers from offshore detention centres and providing them with greater assistance.
. Cruelty to Animals
- thousands of people have been protesting against the treatment of cruelty to animals.
- some of those people who were trying to influence a change in the law to abolish puppy factories signed a petition and tabled it in the Legislative Assembly.
- a second petition was tabled in 2013 asking for tougher penalties for people found treating animals cruelly.
. Marriage Definition
- sometimes petitions ask the parliament not to change the law. People have written petitions to the Commonwealth Parliament requesting changes in the law to allow same-sex marriage.
- others have petitioned the Commonwealth Parliament to keep the definition of marriage as between ‘a man and a woman’.
36
What are e-petitions?
An e-petition is a petition that is signed online. The Queensland Government and the Senate accept electronic petitions. E-petitions have the ability to gather far more signatures than a petition that has to be taken around by hand. This could lead to a groundswell of support for a particular change in the law. They are also less time-consuming and require less effort to conduct.
37
Explain the following method used by individuals and groups to influence change in the law: Demonstrations
Demonstrations are also known as protests or rallies and involve large groups of people showing their support to alert the government of a need to change the law. Advocates of a change in the law are able to come together to shoe their support snd bring attention to what they believe the be a necessary change.
38
What are some examples of demonstrations being used to change the law?
. Action on climate change
- on 17/Nov/2013 tens of thousands of Australians demonstrated across Australia, demanding that the federal Coalition change its policy on climate change and take action on global warming by keeping the carbon tax brought in by the previous Gillard Government.
- the Abbott Government vowed to keep its election promise and abolish the carbon tax.
. Cruelty to Dogs in Puppy Farms
- following wide media coverage, thousands of animal lovers participated in rallies against puppy ‘factories’ in Melbourne, Sydney and Adelaide in September 2011.
- the massive turnout gave a powerful voice to all the dogs suffering in terrible conditions in industrial breeding facilities where they lack care and affection.
. Marriage equality
- many people have been calling for the definition of marriage to be changed in the Marriage Act 1961 (Cth) to include same-sex couples.
- there are regular demonstrations around the country in favour of same-sex marriage.
- many people also try to influence the Commonwealth Parliament to keep the marriage laws as they are.
39
What are the strengths of Demonstrations?
. If numbers are large, the media is likely to report on the demonstration.
. With media support, they are likely to gain wide support in the community and nationally for a cause.
. Can arouse public awareness of the issue.
40
What are the weaknesses of Demonstrations?
. They have to be publicised well to get the numbers to attend to make an impression.
. Unless there is ongoing support and media attention, they are likely to have little effect.
. They are time-consuming to organise.
41
Explain the following method used by individuals and groups to influence change in the law: Media
The media have an important role to play in influencing changes in the law. Without media coverage the law-makers would not be able to gauge public opinion, and individuals would not be able to inform the law-makers of changes in attitudes and needs in society. If demonstrations and petitions are to have any impact, media coverage is required in order to gain community awareness and perhaps support to assist in alerting the law-makers to the need for a change in the law.
42
What are the different forms of media that can be used to influence a change in the law?
. Newspapers - a forum to inform the public of both sides of an issue
. Letters and emails to the editor - It is possible for an individual to send letters or emails to the editor of a newspaper with comments about how the law needs to be changed. Publication of these can alert the public and the law-makers to a need for a change in the law, or the inappropriateness of a suggested change in the law.
. Social Media - People can make their opinions known to the wider community on Facebook, blogs or Twitter. It can be used to inform a huge number of people, including the state and federal governments, about injustices and to rouse people to action.
. Radio - There are many talkback shows on television and radio that allow individuals to communicate their opinions about defects in the law and the need for change. Raising issues on talkback radio can be more influential than articles in a newspaper, as it is likely to bring the matter to the attention of more people, which can lead to other people demanding a change in the law.
. Television - Many television programs investigate problems in the community to inform the community of injustices and the need for changes in the law. These programs, such as the ABC’s Four Corners, can influence governments in deciding if there is sufficient community support for a change in the law.
43
What are the strengths of the Media?
. Can gain a groundswell of support for an issue if the issue is widely reported, such as through radio, television, newspapers, blogs, Facebook and Twitter.
. The government is fully aware of the issues that the media is covering and can gauge public support about an issue through the media.
. Without the support of the media, other methods of influencing changes in the law will have little effect.
44
What are the weaknesses of the media?
. Can show that there are very strong conflicting views on an issue, such as same-sex marriages, which will deter the government from changing laws in this area.
. The government will only take on board an issue if it fits in with their legislative program and there is a high level of community support.
. Letters to the editor, newspaper reports, radio, television, blogs, Facebook and Twitter will only be influential if the public gets behind an issue and demands a change in the law.
. Change in the law usually requires bipartisan support, or at least support of the minor parties and independents.
45
What are some examples of the media being used to change the law? COME BACK
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46
What are other methods of influencing changes in the law?
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. Defiance of the law
. Lobbying
. Submissions to law reform bodies
. Courts
. Private member's bills
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47
What is medicinal cannabis?
Medicinal cannabis is cannabis used for medicinal purposes, that is, to either cure or relieve the symptoms of medical conditions. It has become apparent in recent years that a number of people were illegally using cannabis go alleviate the symptoms associated with a broad range of health conditions.
Current laws restrict the cultivation, manufacture, supply and use of narcotic drugs, except for medical or scientific purposes.
48
What are the pros and cons of medicinal cannabis?
PROS:
. It is argued that it is a safe and effective treatment for the symptoms of cancer, AIDS, multiple sclerosis, pin, glaucoma, epilepsy and other conditions
. It is currently legal in 23 states in the United States
. Other countries approving it include Israel, Holland and the Czech Republic
CONS:
. Argued that it is too dangerous for use
. Lacks Therapeutic Goods Agency approval
. Various legal drugs make marijuana use unnecessary
. Opponents say it is addictive, leads to harder drug use, interferes with fertility, impairs driving ability and injures the lungs, immune system as well as the brain.
49
How did the Victorian Law Reform Commission get the medicinal cannabis issue referred to it?
There have been calls for changes in the law since the 1990's, however governments have been slow to respond. The introduction of a bill to allow for clinical trials of medical cannabis lapsed with a change of government in 2014 and the new labor government referred the issue to the VLRC. They did this so the VLRC could report on options for changes to the law to allow people to be treated with medicinal cannabis in exceptional circumstances.
50
What steps did the VLRC take when it had the medicinal cannabis study referred to it?
. Expert panels - terms of reference asked VLRC to appoint expert panels to assist it in identifying issues and exploring options for reform.
. Published an issues paper - this provided background info about the benefits and risks of using cannabis for medicinal purposes, the experiences of other countries and the interconnecting cth and vic. laws that could be affected if vic. introduces its own scheme.
. Submissions - some 99 submissions were received from individuals as well as organisations.
. Public and private consumption - the VLRC held 9 public consultations in metropolitan and regional Victoria. It also consulted privately with a number of interested individuals and organisations.
52
What were the VLRC's recommendations?
The VLRC delivered its report to the Attorney-General, with 42 recommendations for changes to the law to allow people to be treated with medicinal cannabis in exceptional circumstances, including multiple sclerosis, cancer, HIV or AIDS, epilepsy and chronic pain.
The government announced that it fully accepted 40 of the VLRC's recommendations and accepted the other 2 in principle. I announced that it would legalise access to medicinal cannabis in exceptional circumstances from 2017.
53
What are formal law reform bodies?
Formal law reform bodies are organisations that are employed by the State and the Commonwealth governments to inform them of changes in society that may require a change in the law. They aim to give impartial advice and make recommendations that are practical and able to be implemented.
. They exist because parliament does not have the time nor resources to undertakes thorough investigations of an issue.
. Parliament is not bound to follow the recommendations from formal law reform bodies.
54
What is the Victorian Law Reform Commission?
The VLRC was established under the Law Reform Commission Act 2000 (Vic.) and came into operation on April 6 2001. It is an independent, government funded organisation and was established to develop law reform and to monitor and co-ordinate law reform activity in Victoria.
55
What is the role of the Victorian Law Reform Commission?
The VLRC's main role is to provide the government with independent advice in relation to any laws that happen to be out of date, discriminatory or too complex. They do this by undertaking research and making recommendations for change in the law on issues referred to it by the attorney-general, this is called a reference. The VLRC can also make recommendations on areas that have not been referred.
The VLRC engages in community-wide consultation and debate, and advises the attorney-general on ways to improve and update Victorian law.
The VLRC encourages all Victorians to participate in consultations. The VLRC is independent of the political process and is committed to being transparent. It consults with marginalised groups such as people from non-English speaking backgrounds, people with disabilities, Indigenous people and people living in remote communities.
56
What is the aim of the VLRC?
The VLRC’s main aim is to ensure that the legal system meets the needs and aspirations of the Victorian community. It is responsive to issues raised by lobby groups and individuals, and considers newly emerging rights and responsibilities.
After receiving a report from the VLRC, parliament decides whether to implement the recommendations, either in whole or in part, which will then be incorporated into a Bill.
57
What can the VLRC do?
. It can make recommendations for law reform on matters referred to it by the attorney-general. This includes conducting research, consulting with the community and reporting on law reform projects.
. The VLRC can make recommendations on minor legal issues of general community concern. It can recommend changes in the law relating to minor issues that have not been referred by the
attorney-general, but have been brought to the VLRC’s notice by members of the public.
. It can suggest to the attorney-general that he or she refer a law in need of investigation to the VLRC. After consultation with various groups, the VLRC may suggest new references relating to areas where change in the law would be desirable.
. It can educate the community on areas of law relevant to the VLRC’s work. The VLRC works with groups in the community to ensure that changes in the law are effective. It also provides relevant
information on what the law is.
. The VLRC can monitor and coordinate law reform activity in Victoria. It works with other law reform bodies to ensure effective law reform in Victoria.
58
What are the processes used by the VLRC?
In assessing the need for change in the law, the VLRC consults with expert bodies in the area under review, and also with the general community. After receiving a reference, the general process is to:
. undertake initial research and consultation with experts in the area under review
. publish an issues or discussion paper, which explains the key issues and asks the community
questions
. invite and consider written submissions from members of the public, organisations, legal bodies
and interested individuals or groups
. undertake consultation with interested and relevant individuals and groups – this could include
public forums or roundtable discussions
. ask experts to research areas requiring further information – findings are sometimes published as
an occasional paper
. publish a report with recommendations for changes in the law – either a final report or an interim
report if further comment from the community is desired
. table the final report in the Victorian Parliament.
New technologies are used to facilitate debate about law reform issues, including electronic mail bulletins and online discussion groups.
59
What are some completed VLRC inquiries?
. abortion
. birth registration and birth certificates
. jury directions
. sex offenders registration
Should i make flashcards explaining these?
60
What are some current VLRC inquiries?
. jury empanelment
. crimes (mental impairment)
Should i make flashcards explaining these?
61
What are the strengths of the Victorian Law Reform Commission?
. The government has asked the VLRC to investigate an area and therefore the government is more likely to act on its report on the need for change.
. It can gauge public opinion by receiving public submissions and holding seminars on which people can have their say.
. Is is able to investigate an area comprehensively so the government can initiate a new law that covers a whole issue, such as the the Abortion Law Reform Act 2008 (which was the outcome from the VLRC abortion report).
62
What are the weaknesses of the Victorian Law Reform Commission?
. It can only investigate issues referred to it by the government or minor issues that it can look into without a reference.
. There is no obligation on the part of the government to follow any of the recommendations made.
. Investigations can be time-consuming and costly (yet still not necessarily considered).
63
What does the legislative process begin with?
It begins with a problem that has been identified in the community and which the government thinks should be addressed by a change in the law.
64
What is main role of parliament?
Law-making is the main role of parliament. It has an executive process when making laws which begins with identifying a problem in the community which the government thinks should be addressed.
65
What are government departments?
Government departments constantly review the laws in operation and the need for changes in the law. For example, the Department of the Environment is responsible for investigating changes in the law to protect the environment.
66
What is the role of cabinet and ministers?
Cabinet is made up of the prime minister (or premier) and senior ministers, such as the treasurer and the minister for defence. Cabinet ministers decide on which laws need to be changed. They have extensive resources to help them find out what laws need to be changed or what new laws need to be developed. Cabinet decides what Bills need to be introduced to parliament and is therefore very influential on Bills that are passed through parliament. This is particularly the case when the government holds a majority in both houses, as Bills that are proposed by cabinet will receive the support of the majority of members in both houses.
If a minister who wants to propose a change in the law is not a member of cabinet (for example, the minister for human services), he or she will contact a member of cabinet to have the proposal brought to the notice of cabinet. The relevant minister will usually introduce the Bill (proposed law) to parliament (that is, the minister whose department was responsible for initiating the Bill).
67
What are parliamentary committees?
Parliamentary committees have been set up to investigate a variety of matters and report back to parliament. They are a way of achieving greater public input into issues being investigated. They consist of members of parliament and are established because parliament does not have the time to carry out its own enquiries into particular aspects of society and the possible needs for changes to the law. Committees may be asked to investigate the need for change in the law and make recommendations to parliament.
68
How is a law made? (Step-by-step)
Pressure for change ➡ ️ Idea ⬅ ️ Pressure against change
⬇️
Drafting Legislation
⬇️
Initiation/First Reading ➡️ Second Reading ➡️ Consideration in Detail
⬇️
Third Reading
⬇️
The bill proceeds to the other house
Same procedure ➡️ Certification ➡️ Royal Assent ➡️ Proclamation ➡️ Becomes Law
69
Why are proposed changes in the law sent to the Office of Parliamentary Counsel (OPC)?
This is because it is responsible for drafting legislation. Its principal function is drafting Bills for introduction into either house of the parliament and drafting amendments of Bills. Therefore prosed changes to the law are sent to the OPC because they prepare necessary amendments and provide copies to the parliament. In Victoria, the office responsible for drafting Bills is called the Office of the Chief Parliamentary Counsel (OCPC).
69
What happens before each parliamentary sitting?
Before each parliamentary sitting the government formulates a program of Bills that it requires to be drafted. Based on this program, agencies instruct the parliamentary counsel (relevant drafter of the Bill) on the policy required to be incorporated into the proposed Bills. The parliamentary counsel also assists in formulating private member’s Bills.
70
What is the role of the parliamentary counsel?
The role of the parliamentary counsel is to:
. examine and analyse the instructions given by cabinet
. examine the constitutional, legal and other implications of the policy
. discuss the proposals with the relevant government department to ascertain the intention of the department and cabinet and to clarify any matters
. decide how the policies can be implemented and put into a comprehensive, clear and easily understood Bill
. prepare a draft Bill
. check the draft Bill for compatibility with the Victorian Charter of Human Rights and Responsibilities (at a federal level the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth))
. send the draft Bill to the relevant government department for consideration and other departments if appropriate
. ensure that legislation is legally effective; that is, it does what it is intended to do.
71
What are the problems of drafting legislation?
The OPC (or OCPC in Victoria) has special knowledge and expertise in the drafting of proposed legislation. However, problems arise from time to time because of poorly drafted legislation. The difficulties faced by the OPC include the following.
. It is not always possible to foresee future circumstances.
. The meaning of words changes over time.
. Poor communication between the departments and the OPC could result in loopholes or omissions.
. It is difficult to cover all situations that might arise.
. Mistakes can be made with technical terms, even though the OPC seeks advice in technical areas.
. The proposed legislation might be in conflict with existing legislation.
. The draftsperson is under time constraints to draft the Bill.
. There could be inconsistencies in the way words or terms are used within the Bill.
72
Explain the following legislative process: the scrutiny of bills
At both federal and state levels, Bills are scrutinised by parliamentary committees. This scrutiny can occur before or during the progress of a Bill. The main advantages of the process of referring proposed legislation to committees are that committees:
. provide further scrutiny of proposed legislation
. are able to undertake thorough examination of proposed legislation – such examination by a small committee specially selected for its particular expertise is quicker than examination by the whole house
. are able to hear submissions from interest groups and individuals in the community interested in the proposed legislation
. provide the public a chance to contribute to the legislative process.
73
Explain scrutiny of bills in the Senate.
The Senate Standing Committee for Selection of Bills considers all Bills that come before the Senate (other than just appropriation Bills), decides whether a Bill should be referred to a legislative and general purpose standing committee and which committee is appropriate.
The Senate Standing Committee for the Scrutiny of Bills is responsible for examining all Bills that come before the Senate. The role of the committee is to assess legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations.
74
Explain scrutiny of bills in the House of Representatives.
The House of Representatives has a Selection Committee that determines the program of business for committee and delegation business and private members’ business. There are a range of house standing committees, such as the Standing Committee on Health, which looks into proposed legislation, petitions, financial matters and reports relating to health. There are also a range of joint standing committees, such as the Joint Standing Committee on Migration.
75
Explain the scrutiny of bills in Victoria.
In Victoria, the Scrutiny of Acts and Regulations Committee considers all Bills introduced into the Legislative Council or the Legislative Assembly and reports to the Victorian Parliament on whether the Bill directly or indirectly:
• trespasses unduly on rights or freedoms
• makes rights, freedoms or obligations dependent on insufficiently defined administrative powers
• makes rights, freedoms or obligations dependent on non-reviewable administrative decisions
• unduly requires or authorises acts or practices that may have an adverse effect on personal privacy
within the meaning of the Information Privacy Act 2000
• unduly requires or authorises acts or practices that may have an adverse effect on privacy of
health information within the meaning of the Health Records Act 2001
• inappropriately delegates legislative power
• insufficiently subjects the exercise of legislative power to parliamentary scrutiny
• is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities
• does not raise any issues in relation to the jurisdiction of the Supreme Court.
Once the second reading speech for a Bill is completed, administrative staff from the Scrutiny of Acts and Regulations Committee collect copies of the Bill and second reading speech from the Procedures Office of the Legislative Assembly or the Legislative Council. The senior legal adviser of the committee then begins careful examination of all the clauses and schedules of each Bill.
76
What is a statement of compatibility?
In Victoria, the minister introducing the Bill to parliament will also prepare a statement of compatibility that sets out whether the Bill complies with the Charter of Human Rights and Responsibilities (the Charter). The statement goes through sections of the Bill that are relevant to human rights and gives reasons for decisions about compatibility. The Victorian Scrutiny of Acts and Regulations Committee is responsible for examining compatibility statements in Victoria. Parliament can override any statement of incompatibility, but it is the intention of parliament to only do so in exceptional circumstances.
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Progress of a bill through parliament.
A Bill may be introduced in either the upper or the lower house, except those Bills that give the government the authority to raise taxes or spend money (money Bills). These Bills must be introduced in the lower house. The opposition will sometimes use a private member’s Bill to put pressure on the government and bring a particular issue to the notice of the public.
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What are the different types of bills?
. Government bills
. Appropriation bills (also know as money or supply bills)
. Private bills (very rare - only applies to one person or group)
. Private member's bills (a bill introduced by an individual member of parliament not acting on behalf of parliament - not usually successful)
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What happens before a bill is introduced into parliament?
. Policy development
| . Preparation of draft bill
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What is the progress of a bill introduced into the Victorian Legislative Assembly?
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Original house
. Introduction and first reading
. Second reading
. Committee stage - consideration in detail
. Third reading
. The bill passes the original house
Second house
. Same procedure
. The bill passes the second house
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. Certification
. Royal assent
81
What is the introduction and first reading?
This is when the bill is formally introduced to either house in the state of federal parliament. The minister who wishes to introduce a Bill gives notice of his or her intention to bring the Bill into the house. The member introducing the bill reads the long title of the bill and copies of the proposed law are distributed and explanatory notes are circulated to all members of the house whilst the bill remains confidential.
The introduction and first reading are separate stages in the Commonwealth Parliament.
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What is part of the second reading?
Summary:
In this stage the clerk announced the bill, but instead reads the short title. The member who present the bill must put forward a statement of compatibility before outlining the bill's intentions. Members are then given time to study the bill before they debate and vote on the main ideas of the Bill.
. Statement of compatibility
. Purpose of the bill
. Scrutiny
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Explain the following aspect of the second reading: statement of compatibility
The member of parliament introducing the Bill must lay before the house a statement of compatibility, which states whether the Bill is compatible with the Charter of Human Rights and Responsibilities, giving reasons. If, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of this incompatibility must be explained during the second reading speech. A Bill can still be passed if it is in some way not compatible with the Charter, but there would have to be exceptional circumstances.
84
Explain the following aspect of the second reading: purpose of the bill
In the second reading speech the relevant minister (or private member) outlines the purpose of the Bill. At the end of the minister’s second reading speech he or she presents an explanatory memorandum to the house, explaining the reasons for the Bill and outlining its provisions. Debate is is usually adjourned to allow the members of parliament to have an opportunity to study the Bill and its effects before speaking and voting on it (and to provide time for public discussion and reaction).
The second reading debate usually begins with the relevant opposition minister delivering the main opposition speech in response to the Bill. The second reading debate is normally the most thorough debate that takes place relating to the general principles of the Bill. A vote is taken at the end of the debate.
85
Explain the following aspect of the second reading: scrutiny
Once the second reading speech is complete the senior legal adviser of the Scrutiny of Acts and Regulations Committee examines all the clauses and schedules of each Bill.
86
What is the committee stage - consideration in detail?
This stage is eliminated if the house unanimously agrees with the bill. If it does happen, each clause of the bill is discussed in detail. This allows for members to discuss any amendments to be made clause by clause.
The process of the committee of the whole house is:
. The Speaker (lower house) or the President (upper house) leaves the house and
the house is then said to be in committee.
. Each clause of the Bill is discussed in detail, clause by clause.
. Amendments are most likely to be made at this stage.
This stage is referred to as the Committee of the Whole in the Legislative Council.
In the House of Representatives the committee stage includes the House Committee followed by consideration in detail.
In the Senate the committee stage includes the Senate Committee followed by consideration in detail.
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What is the third reading?
If the bill is supported by the majority of members in the 2nd reading then the bill goes to the third and final mandatory stage. Here, if necessary, there may be some further debate but members eventually vote for the bill in its final form.
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What happens when the bill passes the original house?
When a bill is passed in its original house/in the first house then it is sent to the next house where it does through the exact same procedure. Any amendments must be communicated to the original house. Messages flow between both houses. Any amendments must be approved by both houses in identical form before a Bill can become law.
89
What happens when the bill passes both houses in the commonwealth or state parliament?
Certification and royal assent cam occur.
90
What is certification?
This occurs once a bill has been passed by both houses of parliament and involves the clerk of parliaments certifying or confirming the Bill. The bill then moves onto waiting fir the approval of the crown.
91
What is royal assent?
Once a bill has been passed by both houses of state or federal parliament it is presented to the governor/governor-general. The crown representative signs the bill, giving it royal assent, of they don't see any necessary amendments.
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When does a bill officially come into operation?
An Act comes into operation on a day stated in the Act or on a day proclaimed by the governor or governor-general in the government gazette (the proclamation). If not otherwise stated, an Act comes into operation 28 days after royal assent. The fact that the Bill has been passed is published in Hansard.
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Why does parliament pass on its power go less authorities?
Parliament passes on its power to subordinate authorities because Parliament’s limited sitting time makes it impossible to pass all laws necessary for the governing of the country. It therefore passes some of its law-making power to lesser authorities that can deal with a specific area of law-making and develop expertise in it.
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What are some lesser authorities?
Subordinate bodies or delegated authorities.
95
What are subordinate authorities?
Subordinate authorities are bodies that have been given the power to make rules and regulations by parliament. These rules and regulations are known as delegated legislation or subordinate legislation.
Subordinate authorities bring the law-making process closer to the people and are more accessible to the general public than parliament. They also place the law-making in the hands of experts – specialised bodies can make laws in their particular field.
However, subordinate authorities (other than local councils) are not elected and therefore parliament is giving up its role of legislating to bodies that have not been voted into office by the people. Subordinate legislation may be passed without the debate that is part of the parliamentary law-making.
96
What do subordinate bodies include?
. The executive council
. Local councils
. Government departments
. Statutory authorites
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What is delegated legislation?
Delegated legislation is enforceable through the courts. Parliaments pass enabling Acts to give power to subordinate authorities to make laws in specialised areas such as local government. Subordinate authorities must not go outside the power granted to them under the enabling Act.
98
What is supremacy of parliament?
This means that parliament is the supreme law-making body within its jurisdiction and has overriding authority when exercising the law-making powers given to them. Parliaments are not bound by previous Acts of parliament and can change the law when the need arises. Courts can interpret the words in an Act of parliament, but parliaments can abrogate (cancel) a law made by courts, or can pass an Act to reinforce court-made law.
99
Summarise parliament.
Parliament is able to investigate a whole area of law. There are many parliamentary committees that can hold public forums and request public submissions to determine the needs of the people. A whole area of law can be thoroughly investigated to gain the necessary expert advice. Committee findings are reported to parliament. As committees are often made up of members of the government and the opposition, their findings usually have bipartisan support (support of both parties).
100
What are the restrictions on parliaments ability to make laws?
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. Conflicting views within the community
. Economic viability
. Public debate
. Constitutional restrictions
. A hostile upper house
. A hung parliament
. Outdated legislation
. Lack of time
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101
Explain the following restrictions on parliaments law making ability: conflicting views within the community, economic viability, public debate and constitutional restrictions.
. Conflicting views within the community – It is very difficult to make a law that suits everyone’s needs within the community. For example, the law regulating abortion has many supporters and
many people who disagree with it.
. Economic viability – A change in the law may be needed but the implementation of that change
may not be possible because of financial restraints. For example, the law needs to be changed to provide for more hospital beds to alleviate the long waiting lists of people wanting surgery. The lack of funds places a restriction on this change in the law taking place.
. Public debate – Changes in the law may be delayed so public debate can take place. This can often take a long time and the change in the law may be delayed indefinitely.
. Constitutional restrictions – The law-makers can only change the law if it is within their jurisdiction to do so. The Constitution can only be changed by holding a successful referendum.
102
Explain the following restrictions on parliaments law making ability: a hostile upper house, a hung parliament, outdated legislation and lack of time.
. A hostile upper house – A government may not have a majority in the upper house. When the government does not hold a majority in the Senate, the latter is referred to as a hostile Senate. This is because the senators may be hostile to plans for changes in the law and may vote against them. The advantage of a hostile Senate is that there is likely to be more vigorous debate about proposed legislation.
. A hung parliament – Sometimes a government may not hold a majority in the lower house, because they have the same number of members as the opposition, and therefore have to negotiate with other members of the lower house to get their support for the passage of a Bill. This can lead to a government’s legislative agenda being considerably watered down in order to reach compromises with independents and minor parties.
. Outdated legislation – Times and values change rapidly and it is difficult for the government of the day to keep up with the need for changes in the law.
. Lack of time – Parliaments do not have the time to pass laws relating to the minor details of a particular area of law. Parliament passes its power to make law to delegated bodies (also known as subordinate authorities), which are not elected by the people (other than local councils).
103
What are the strengths of parliament as a law-making body?
. Members of parliament are elected by the people
. Parliament is able to investigate a need for change
. Parliament provides an arena for debate
. Parliament can delegate its power to make laws to expert bodies
. Parliament can change the law as the need arises
104
Explain the following strengths of parliament as a law-making body: members of parliament are elected by the people
Members of parliament are elected by the people to represent the needs of the people and are responsible to the people. Law-making by parliament should, therefore, reflect the needs of the people.
105
Explain the following strengths of parliament as a law-making body: parliament is able to investigate a need for change
Parliament is able to investigate a need for a change in the law thoroughly, and gauge public feelings about a proposed change in the law, although this can be very time-consuming. Parliamentary committees can investigate matters fully and gain public input through public forums and submissions in response to discussion papers. Government departments provide ministers with the knowledge required to initiate necessary changes in the law. There was comprehensive community comment about abortion law reform during the Victorian Law Reform Commission (VLRC) investigation.
106
Explain the following strengths of parliament as a law-making body: parliament provides an arena for debate
A very important part of the law-making process through parliament is the debate that takes place in parliament. Members of parliament can point out the advantages of a particular change in the law, as well as the flaws in any proposed change in the law. In this way the views of more sections of the public can be considered. (This lessons the chance of an unjust law being passed and allows different views to be heard).
107
Explain the following strengths of parliament as a law-making body: parliament can delegate its power to make laws to expert bodies
Parliament can delegate some of its law-making powers to subordinate authorities to make delegated legislation on its behalf. This saves parliamentary time and also passes the law-making task to bodies that are expert in their particular fields. Subordinate authorities may be more likely to be aware of the need for changes in the law because they are more accessible to the people. Local councils are more likely to know local requirements in their areas.
108
Explain the following strengths of parliament as a law-making body: parliament can change the law as the need arises
Parliament can change the law as the need arises, although this can be a slow process as any law made by parliament has to be passed by both houses of parliament. However, when a Bill receives the support of parliament, it is able to be passed quickly if needed. For example, the Crimes Amendment (Integrity in Sports) Act 2013 was quickly passed through the Victorian Parliament in response to growing concerns about the number of incidents of match fixing in recent times, both in Australia and overseas.
109
What are the weaknesses of parliament as a law-making body?
. There are often conflicting views within society
. Investigations may be lengthy and expensive
. The process of passing a law through parliament is time-consuming
. Subordinate bodies are not elected by the people
. Parliaments may not be able to foresee all future circumstances
110
Explain the following weakness of parliament as a law-making body: there are often conflicting views within society
Parliament may be restricted in its law-making by the fact that there are strong conflicting views in the community regarding a particular issue, such as same-sex marriage. This hinders parliament in the law-making process. If both sides of the discussion have strong support, it is likely that the law will not be changed. For example, there are strong and conflicting views about legalising voluntary euthanasia and becoming a republic, and as a result the law remains unchanged.
111
Explain the following weakness of parliament as a law-making body: parliament may no be able to foresee all future circumstances
Parliament may not always be able to foresee future circumstances when drafting a law. For example, when the Commonwealth of Australia Constitution Act 1900 (UK) was passed, it did not refer to television as this type of communication did not exist at the time. The courts had to interpret the Constitution at a later date to include television.
112
Explain the following weakness of parliament as a law-making body: subordinate authorities are not elected by the people
Parliament delegates some of its law-making powers to subordinate authorities, but these subordinate authorities (other than local councils) are not elected. Many of the laws that we follow are made by subordinate authorities, and therefore are not being made by our elected representatives and may not be representative of the needs of the people. Parliament does, however, have the means to scrutinise these subordinate authorities in their law-making activities.
113
Explain the following weakness of parliament as a law-making body: investigations may be lengthy and expensive
Investigations for the need for a change in the law can be very thorough but also lengthy and time-consuming. Furthermore, the government is not forced to actually change the law after investigations.
114
What happens when the government decides to amend a Bill during its passage through parliament?
The parliamentary counsel prepares the necessary amendments and provides sufficient copies to the parliament.
114
Explain the following weakness of parliament as a law-making body: the process of passing a law through parliament is time-consuming
Parliament may not be able to respond quickly to a need for a change in the law, either because it is not sitting at the time, or it is not possible to gain the support needed to pass the Bill through the parliament (if there is a hung parliament or a hostile upper house). Also, the process of law- making through parliament is very time-consuming because it has to pass through three readings and debates in both houses. If the opposition to a Bill is strong it can result in the Bill not being passed or being considerably watered down.
