unit 4 aos 2 Flashcards
1
Q
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
2
Q
changes in beliefs, values and attitudes (reason for reform)
A
- if the law is to remain relevant and acceptable to the majority of people, it needs to keep up with and reflect society’s changing values
- values can change as knowledge increases and society becomes more educated
eg. once society became aware of health risks of smoking, anti-smoking laws were introduced across aus
3
Q
changes in living conditions (reason for reform)
A
- laws need to be continually reformed to ensure they keep up & remain relevant with changing living conditions, including social, economic and international conditions
changes in social conditions:
> as aus population grows, laws need to be changed to ensure we can live together peacefully. social changes that have prompted law reform include increased domestic violence, binge drinking, gang related crime and online gambling
changes in economic conditions:
> changes in the workforce & consumer trends have necessitated changes in the law relating to consumer protection & international trading
changes in international conditions:
> increased global violence & the threat of terrorist attacks. wars cause a rise in refugees & can put pressure on the supply of some goods, meaning laws will need to be adjusted
4
Q
advances in technology (reason for reform)
A
- laws need to be updated along with constant improvements in technology
- the increased use of mobile devices means the law must address related problems such as cyber bullying, stalking and scams, data breaches and identity theft
5
Q
greater need for community protection (reason for reform)
A
- law reform needs to continually occur to ensure individuals and groups in the community feel safe and protected
- the law needs to protect individuals from harm, including physical, emotional and economic harm
- some people have specific rights that need to be protected
- animals & the environment need protection
6
Q
the means by which individuals or groups can influence law reform
A
- petitions
- demonstrations
- the courts
7
Q
petitions to influence law reform
A
- a common way of raising awareness of the need for law reform & influencing change is through petitions
> a formal, written request to parliament to take some action or implement law reform - it must be addressed to the house in which it is being presented, clearly state the action being requested & the reasons for the petition, and is limited by words
examples: - 2019 e-petition to the house of representatives to declare a climate emergency
- 2022 petition to change the age of criminal responsibility to 14
8
Q
effectiveness of petitions to influence law reform
A
depends on:
- the number of people who have signed the petition. more signatures will appear more representative of the community and indicate greater support, more likely to influence a change in laws
> few signatures may mean there is not enough interest for the change
- petitions must adhere to rules , and if they don’t then they are unlikely to get any attention in parliament
- petitions must be tabled by a member of parliament in vic, its ability to influence change can depend on who tables it and their influence within parliament
9
Q
the use of demonstrations to influence law reform
A
- occur when a group of people gather together to express their common concern for an issue
- alert the government to the need for a change in the law and raise community awareness
> eg. animal rights activists protest for animal cruelty - their effectiveness depends on:
> the number of people who attend the demonstration
> the nature of the demonstration- if they cause inconvenience or are violent they may not be effective
> the attention they attract from the media & the public, which will generate more support
10
Q
the use of the courts to influence law reform
A
- an individual can bring a matter to court which highlights the need for change, this can clarify an unclear area of law, meaning that the case has played a part in changing the law
> party must have standing - if parliament has passed a law that is unclear or unfair, an individual can challenge it in court to have the meaning clarified
- comments made by judges can also influence parliament to change a law
- however, if courts do change a law, parliament can pass legislation to override the decision, unless it is a high court decision on a constitutional matter
11
Q
effectiveness of the courts to influence law reform
A
- whether someone is willing & able to challenge a law in court, as courts can only change a law when a case is brought before them
- judge made law can be abrogated, with the exception of high court decisions on constitutional matters
- the party must have standing in a case in order to bring it to court
- views may differ between judges, and may not always represent community views
12
Q
role of the media in law reform (including social media)
A
- inform & raise awareness
- assess levels of community support
- influence community opinion
13
Q
the role of the media to inform & raise awareness
A
- the media can inform people about social, political & legal issues, as well as the need for law reform
- it can also provide a platform for parliament, government & political parties to explain the need for law reform or their law reform agenda to the community
- the media is able to reach huge numbers of the population
14
Q
the role of the media to assess levels of community support
A
- the media can be used to assist parliament, government & political parties, or voters, to determine the level of community support for law reform
- can occur through media polls which gauge what readers, viewers and listeners think about an issue, which can be used by parliament to assess community support
other ways media can also be used to measure public opinion:
> using powerful data analytics
> monitoring letters to the editor in relation to an issue
> measuring likes, shares, retweets & quotes of a post on social media
15
Q
the role of the media to influence community opinion
A
- radio broadcasters with a large number of listeners can influence the way people think on a particular issue
- media can investigate local, national & global events & circumstances, these can try to influence community opinion or influence governments to take action
16
Q
role of the victorian law reform commission (VLRC)
A
- independent law reform organisation which reviews, researches & makes recommendations to vic parliament about changes to vic laws
- aims to assist the vic government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change and providing the government with impartial advice
- terms of reference: instructions to investigate a matter, set out the precise purpose of the investigation
17
Q
VLRC roles
A
- undertake research about the issue and consult experts
- appoint an expert panel or committee to provide them with advice about the matter of inquiry
- publish a consultation paper which explains the key issues in the area and ask questions about what should be changed for community consideration
- hold consultations with, and invite submissions from people affected by the area under review
- publish a final report with recommendations for changes in the law
- present final report to the attorney general, who will table it in parliament, gov may then implement some of the recommendations in a bill.
18
Q
functions of VLRC
A
- major inquiry: examine & report matters referred to it by the attorney general
- community inquiry: minor legal issues that are of general concern in the community & report back suggestions
- monitoring: monitor law reform in vic, including making suggestions to attorney general that they refer an issue to it for investigation
- education: programs to inform the community on its work & areas of law relevant to its investigations
19
Q
overview of one recent VLRC inquiry relating to law reform
A
- improving vicoria’s stalking laws
- VLRC commenced an inquiry into stalking, after it received terms of reference from the vic attorney general
- the inquiry was because of the prevalence of non-family violence stalking in the community, the intimidating and frightening nature of stalking, the lack of community awareness & difficulty associated with seeking assistance through the justice system
- it received submissions from the law institute of victoria & the victims of crime commissioner, as well as holding consultations with organisations with expertise in dealing with stalking, and receives responses in its online survey
20
Q
recommendations for law reform made by VLRC about stalking laws
A
- that victims are able to more easily obtain financial & practical support to improve their ability to report stalking & access support services
- the government funds & training of magistrates, judges & other court personnel so they are better able to respond in stalking cases
- training to vic police so it can improve the way it identifies & responds to stalking
- the government funds & supports public education about non-family violence and cyber stalking, the community can be more informed about how to identify stalking, the harm it can cause and ways to seek help
- the crimes act to be amended to clarify the stalking offence so that its easier for people to understand
21
Q
ability of VLRC to influence law reform (strengths & weaknesses)
A
- investigate an area comprehensively, ensuring parliament is provided with adequate advice for law change, however it can only investigate and make recommendations on major matters referred to it by the attorney general
- it can investigate minor issues without terms of reference, which can lead to law reform
- investigations can be time consuming
- as government asks them to investigate the need for law change, they are likely to act on their recommendations
- measure community views, gov more likely to implement changes that reflect the views of the people in order to maintain voter support
- the government is not required to introduce any of its recommendations, limiting its effectiveness, however statistics show that they are highly influential, as almost all of their recommendations have been adopted in completed inquiries
- independent of parliament, so it can make objective and unbiased decisions
- while government may support the changes, they may not be passed by the upper house if gov doesn’t hold majority
22
Q
government response to VLRC stalking recommendations
A
the government announced that it would introduce changes to victoria’s stalking laws in response to the VLRC’s recommendations in 2025
23
Q
royal commissions
A
- the highest form of inquiry into matters of public concern and importance, they are established by the government and are given wide powers to investigate and report on areas of public concern.
- given special investigatory powers, including to summon people to attend hearings, give evidence under oath & be subject to cross-examination
- the power to establish royal commissions is given to the governor general (governor at state level)
- once it has completed its investigation and evidence and submissions have been considered, it will prepare a report on its findings and make recommendations to government about how to change laws in the area
24
Q
ability of royal commissions to influence law reform
A
- can raise community awareness and interest in an area of concern, encourage people to undertake their own initiatives to influence law reform
- the extent to which they influence parliament is mixed and can depend on the issue and whether there is bipartisan support
- parliament is not obligated to adopt any recommendations made, however they are likely to as the government asks them to investigate a matter, making them more likely to take their suggestions
- they are independent of parliament
- they can investigate an area comprehensively, so government can initiate a law that covers the inquired area
- investigations can be time consuming and costly, taking 2-4 years to complete
25
recent royal commission- robodebt inquiry
- governor general established the royal commission into the robodebt scheme in 2022
- the purpose was to examine a range of issues regarding the scheme, including who was responsible & why it was implemented
- 8 months to complete the inquiry
- accepted written and oral submissions from the public and undertook hearings where people gave evidence
- found that there was a number of failures in the way the scheme had been set up, implemented and monitored, highlighting the harm that can be caused by failures of government administration & inadequate government policy
- recommended that services australia design policies with an emphasis on the recipients it is meant to serve, and ensure they have regard to vulnerable people that may be affected
- government committed to implementing the recommendations, & additional funding is being provided to support this
26
reasons for constitutional reform
- to recognise australia's first nations people
- to increase the protection of rights
- to change the constitution's law-making powers
- to reform australia's political system
27
constitutional reform- to recognise australia's first nations people
there have been increased calls for the constitution to be amended to recognise first nations australians
> proposals to establish a FN voice to parliament, and to honour & recognise FN people in the constitution
28
constitutional reform- to increase the protection of rights
- there are 5 express rights in the constitution, limiting parliaments law making ability
- there have been calls to change the constitution to clarify or broaden the 5 express rights, due to the narrow scope of the rights outlined in the constitution
29
constitutional reform- to change the commonwealth's law-making powers
- the commonwealth parliament has sought to change the constitution to provide it with more powers
> eg. proposal in 1946 to give the commonwealth parliament power to legislate on a wide range of social services, this was successful
- there have also been suggestions to change the constitution to decrease commonwealths law making power, such as suggestion to remove section 51 (race power)
30
constitutional reform- to reform australia's political system
suggestions to change the constitution in relation to:
- the timing of federal elections
> changing to 4 years, which would encourage long term policy decisions
- to allow more people to sit in parliament
- to substantially change our political system so that it becomes a republic
> proposal in 1999 which failed, however this is growing in support in recent years
31
reforming Australia's political system to allow more people to sit in parliament
- section 44 of the constitution prevents dual citizens from being members of commonwealth parliament
- there has been criticism that australias parliament is not representitive of our multicultural society
- there have been calls to amend section 44 to allow more people to be eligible to sit as a member of parliament
32
section 44 of the constitution scenario
- the original aim of section 44 was to protect parliament from foreign influences & ensure national sovereignty
- the high court had to decide whether barnaby joyce was validly elected to the house of representatives
- joyce was born in nsw, and his father was from NZ, making him a citizen by descent. he didn't know of his dual citizenship
- he argued that he didn't know section 44 applied to him, however the constitution makes no mention of only applying to those who know they are dual citizens
33
the process to change the constitution
referendum process has 3 stages:
1. the parliament
2. the people
3. the governor general
34
the parliament stage of the referendum process
- a proposed change to the constitution must first be introduced & passed through both houses of commonwealth parliament
- the bill is prepared, which sets out the proposed alteration to the constitution (constitutional alteration bill)
- it then must be passed by an absolute majority of both houses of parliament
> if one house passes the bill by an absolute majority, and the other rejects it, after 3 months the first house can once again pass the bill , and if it is rejected again by the other house, the governor general may submit the change to voters
- between 2 and 6 months after the bill is passed through the house of reps, it is submitted to the voters
35
the people stage of the referendum process
- after the parliament stage, the referendum process occurs- a compulsory vote on a proposed change to the wording of the constitution
- the australian electoral commission sends info about the proposed change to every household before the referendum and provides arguments for and against it
- there must be a double majority 'yes' vote for the proposed change in order for the referendum to be successful
36
what is a double majority vote
- a majority of voters in the whole of australia must vote 'yes'
- a majority of votes in a majority of the states (4 out of 6) must vote 'yes'
37
the governor general stage of the referendum process
if the change receives a double majority 'yes' vote, it is presented to the governor general for royal assent
38
factors affecting success of a referendum
the double majority requirement has proven difficult to achieve, factors affecting referendum success include:
- whether there is bipartisan support for the change
- whether the voters themselves are seeking change
- the nature of the proposal
- education about the proposal
39
bipartisan support affecting referendum success
- support from the two major political parties
- success of a referendum often depends on whether there is bipartisan support
- if the opposition does not agree with the proposed change, they will lead a 'no' campaign, people will often follow the views of their preferred party when deciding their vote
40
whether voters are seeking change- factor affecting referendum success
- if the voters themselves are seeking change, they will be more likely to vote 'yes'
> such as in the 1967 referendum
- if government is driving the change, voters may be more cautious because of general distrust of politicians
- australians may support a change in the lead up to a referendum, but support may fall away when it gets closer
41
the nature of the proposal- factor affecting referendum success
whether it is straightforward and accessible, or complex & difficult to understand will affect the success of a referendum, as australians won't vote in favour of a change they do not understand
42
education about the proposal- factor affecting referendum success
- the general public has little knowledge about the constitution and parliament, which can create challenges when voters are asked to consider changing something they know little about
- the extent to which information & education campaigns have been provided in the lead up to the referendum will heavily impact its success
> strong & simple info about the change
43
overview the 1967 referendum
- more than 90% of people voted in favour of the change, making it the most successful referendum
- until 1967, the constitution did not give power to the commonwealth parliament to make law for A&TSI people or include them in the national census
> gave power to make laws in relation to any race other than 'the aboriginal race' > race power
- 2 proposals to remove these barriers were introduced ( 1 unsuccessful, 1 successful)
> regarding aboriginal people, involved removing the words 'other than the aboriginal race' from the constitution, removing this section from the constitution
- results gave the commonwealth parliament power to legislate for first nations people in the states & territories & include them in the national census, making this a concurrent power
44
significance of the 1967 referendum
- gave the commonwealth parliament power to legislate in an area that it was previously denied, making the residual power a concurrent power
- the commonwealth used this power to:
> override laws that were discriminatory
> legislate in relation to land rights, passing the native title act
> formal inclusion of FN people in the census allowed parliament to make informed decisions about policy
- the referendum raised the importance of FN rights and welfare, and the need for reconciliation & closing the gap
- the outcome highlighted the power of the people to decide whether key changes in the wording of the constitution are able to be made, esp in relation to social and human rights issues
45
the significance of the 2023 referendum
- proposal involved recognising aboriginal and torres strait islander people in the constitution by establishing an indigenous voice to parliament
- the referendum was unsuccessful, with ~40% of australians supporting the proposal and ~60% rejecting it
- reasons why the referendum was unsuccessful:
> it's almost impossible to change the wording of the constitution when there isn't bipartisan support
> constitutional recognition of FN people and the importance of allowing them to have a say in matters affecting them still had broad support, but the 'no' campaign may have raised concerns about the proposed voice, shifting peoples views
> voters may not have understood the change
> racism may have impacted votes
> some people believed the change didn't go far enough to recognise FN people
46
the ability of the australian people to change the australian constitution in the future
- the lack of success in the 2023 referendum, as well as many others (only 8 out of 45 successful) suggests that governments may be reluctant to commit the resources to another referendum in the future, even if there is support for change
- although the community can influence change through petitions & demonstrations, it is ultimately up to the government to decide whether to propose a change
- however, community support for a proposal may be able to drive change, evident in the 1967 referendum
- whether the people can change the constitution also depends on the nature of the proposal, education about the change and bipartisan support
