Unit 4 AOS 2b Flashcards
What are the reasons for law reform?
Changing community values
Changing nature of technology
Changing expectations of the legal system
Community protection
What are changing community values?
Refers to a shift in what the cmmunity deems the ‘norm’ when it comes to beliefs, morals and ethics and they determine what the community determines what the community believes a fair and just society should be
What are examples of changing community values?
Legal abortion, same-sex marriage, euthanasia, treatment of asylum seekeers; land-rights for FNP
What is the changing nature of technology?
It refers to the efficient and fast development in technology for commercial purposes, often leading to the law failing to catch up and when this occurs peoples saftey can be put at risk as technology can be used to harm
What are examples of the changing nature of technology?
Driverless cars in Victoria + sophistication of cameras on phones, use of social media among young people, use of drones and privacy; facial recognition technology
What are the changing expectations of the legal system?
It is the way people view that the role of the law has changed overtime as it used to regulate behaviour and identify ‘norms’. It can be difficult for lawmakers to always reflect views and values of the community, needs to be a balance between rregulating people’s behaviour and upholding people’s rights
What are examples of changing expectations of the legal system?
Wearing masks, working from home when sick, scam watchdogs, regulations to protect privacy
What is community protection?
Laws need to be updated in order for individuals to feel safe during potential increased harm (physical, pyschological, political), this means changes in laws need to protect and uphold the rights of all community members but specifically those that are vulnerable e.g children, the elderly, individuals with disabilities, minorities
What are examples of community protection?
Changes in the Coward Punch law to be less restrictive, changes to online stalking laws
Who are individuals?
It refers to people or organisations that exist outside of parl who are attempting to influence law reform
What are the categories of individuals?
Private citizen, pressure group, industry organisations, professional organisations, unions
Examples of pressure groups
Strike4Climate, RSPCA, Amnesty International Australia
Examples of industry groups
Victorian Farmers Federation, RACV
Examples of professional groups
Australian Medical Association, Master Builders of Australia
What methods are used to influence law reform?
Petitions, demonstrations, use of the courts, pressure and interest groups
What are petitions?
Formal requests for parl to change/introduce a law based upon a collection of signatures from individuals who support the initiative. E-petitions can are now accepted and can be used to gain signatures online, can be more efficient at reaching younger audiences.
What are the drawbacks of petitions?
MPs are obligated to present any petitions that they recieve to parl but are not obligated to act on them
Examples of petitions
Making voting centres wheelchair accessible, flying of the Firts Nations flag in parl 365 days a year
What are demonstrations?
They are a gathering of a large group of people in a public place to express their disapproval or support towards a particular law/change
Examples of demonstrations
School Strike 4 Climate Change, anti-covid rallies, strikes from nurses, teachers and public transport operators over pay disputes
How are the courts used within law reform?
Establishing a precedent through a test case, seeking clarification on phrases in Acts and individuals can use courts to challenge the validity of legislation
Strengths of petitions
Easy way of showing support, e-petitions are quick and easy/efficient, MPs are obligated to present any petitions they recieve to Parl and they are cheap and easy to organise
Weaknesses of petitions
MPs are not obligated to act on a petition, can be ignored, e-petitions can be signed by bots, e-petitions may not capture everyone and petitions can take time
Strengths of demonstrations
Gains significant attention, draws attention of parl quicker than petitions, gains media attention and increases the awerness for an issue
Weaknesses of demonstrations
Causes chaos, disruptions and this can turn people off the cause, can significantly impact peoples live decreasing support, people can get hurt by certain actions, leads to misuse of police resources and parl are not required to do anything in response
Strengths of using courts
HC decision cannot be abrogated if regarding Const, superior courts can set binding precedent, obiter statements can draw attention of parl to change the law and unsuccessful cases can still draw attention to a need for change
Weaknesses of using courts
Takes significant amount of time and costs to bring a case to court, Locus standi, parl can abrogate decisions and the judge may be judicially conservative
What is the media bias?
Depending on the ownership of the organisation and the political views of the owner, theway in which nes is reported may be impacted
What biases are present within the media?
Liberal-National Coalition: The Australian, Daily Telegraph, Herald Sun
Left-wing and pro-Labor: The Age, Syndey Morning Herald
Pro-Labor and Aus Greens: ABC News, Insider
What is traditional media?
It is mediums that are often non-digital, existed prior to the digital age and may now be partially online but are still considered as traditional media
Features of traditional media
High number of audiences as it has existed for a long period of time, considered more trustworthy, info is more controlled and limited audience interaction
Benefits of traditional media
Can influence the views of a large group of people, many programs often contain segments surrounding the need for law reform and some programs investigate issues in the community
Limitations of traditional media
May not always present info in an unbiased way, content that is presented is able to be manipulated to alter audiences perception and can increase the level of political bias
What is new media?
Often associated with digital media/content and it incorporates online platforms such as social media, apps, guerilla advertising
Features of new media
May have lower usage among older audiences, considered by some as less trustworthy, info less controlled by ownership as users can share content and high level of audience interaction
Benefits of new media
Social media users can create interst in and raise awareness of legal issues on a massive scale, people can capture and broadcast images on social media to generate awareness, connects people around the world, provides direct acces to MPs and political parties and lawmakers can use it to guage public opinion
Limitations of new media
Info may not be accurate, authenticated or impartial as no journalism standards, can lead to uneducated decisions being made, excessive esposure to graphic imagery online may overwhelm or desensitise people to issues and it is easy to spread harmful or inaccurate stories
What are informal pressures?
All individuals or groups that exist outside of parliament including the media
What are formal pressures?
Institutions or organisations that are created and funded by parl e.g VLRC and Royal Commisions
What is the Victorian Law Reform Commission?
VLRC is a statutory body, meaning that it was established as a result of parl passing the VLRC Act 2000 and it is an independent, government-funded body that is responsible for developing, monitoring and coordinating law reform in Vic
What are the roles of VLRC?
Examine, report and make recommendations to the AG on proposals relating to law reform in Vic, improve the operation of the legal system by ensuring laws meet the needs of the community and educate the community on its operation and function
Where do ideas for law reform come from?
A formal reference by the Attorney General
The Commission decides to begin a community law reform project - usually stemming from desires of the community
What is the process undertaken by VLRC?
Stage 1: A problem arises in society and, there is a desire for change in the law. The AG provides a reference to VLRC to begin work on law reform
Stage 2: VLRC begins initial resarch to ascertain challenges/problems that currently exist within legislation. Initial report is published to outline the problems and make the community aware
Stage 3: VLRC begins thier consultation stage - holding meetings, consulting with academics, experts and professionals, inviting community members to have a say and these findings are collated
Stage 4: VLRC produces their final report for parl with its findings and recommendations for law reform, the report is tabled in parl for discussion
What are the impacts of VLRC findings?
Parl implements all recommendations made by VLRC, implements some of the recommendations are implements none of them
Parl is not obligated to implement any recommendations made by VLRC but it may recieve criticism for not reflecting the views and values of the people
Strengths of VLRC
Because request is made by gov it is more likley that they will implement recommendations, recommendtions made by VLRC will represent the community which makes it more likely that gov will implement as remains representative and VLRC is independent of parl and political parties which makes it more likely to be impartial and unbiased
Weaknesses of VLRC
Can only investigate issues reffered to it by the gov, inquiries are limited to the terms of reference, parl is not obligated to act on recommendations and investigations can be time consuming and costly
VLRC investigation into Inclusive Juries
Jury service inaccessbile becasue there are no obligations under the current Act for judges to provide adjustments for those with diabilities and the 13th person common law principle means services such as interpreters are not allowed in the jury room
Details of the VLRC investigation
Began in March 2020 and finished in July 2022 and there were 53 recommendations
Recommendations made in VLRC investigation into Inclusive Juries
Amendments made to the Juries Act 2000 (Vic) to require the courts to provide reasonable adjustments to enable jury service, remove 13th person rule for interpreters and support persons
Auslan interpreters and support persons should undertake training to work with jurors
Disability awareness training should be required for judges, lawyers and court staff who work with juries
What are Royal Commissions?
Formal inquiries into a particular area of law or public concern upon recommendation from the Crown and the inquiry is given in terms of people providing evidence and the commission will then compile a report on their findings
What is the purpose of Royal Commissions?
To investigate the casues and reasons that has led to an area of public concern, gather evidence to support their findings and make recommendations for law reform
How are RCs different to VLRC?
RC focus on one important issue and work for a specific period of time until the inquiry is finsihed
RC have special powers including the power to subpoena witnesses and hear sworn evidence
How are RC established?
Can be established at both State and Commonwealth level through the Royal Commission Act (Cth) 1902 and the Inquiries Act (Vic) 2014 and by the executive branch via the Governor/Governor General but advice is given by relevant ministers and members of parl
What is the RC process?
Stage 1: An issure of concern is identified, the GG issues a Latter Patent which outlines the terms of reference, the time by which the RC is to report, who will chair the RC and the scope of the investigation
Stage 2: RC has unique powers to gather info includes summoning and cross-examining witnesses, applying for warrants to search and seize evidence and provide protection for witnesses
Stage 3: Findings are published in a report, formally submitted to the GG and it is tabled in parl but there is no requirement for parl to adopt any of the recommendations made
Royal Commission into Aged Care Quality and Safety 2018
Finished in March 2021 and was established in response to community concern about widespread reports of violence against, and the neglect, sexual abuse, death and exploitation of elderly residents within the aged care system. It lasted 28 months in which there were 23 public hearings, 641 witness hearings, including patients, their families, health professionals, community social workers, academics, advocates and individuals within the legal sector, and over 10500 public submissions
Recommendations made in the RC into Aged Care
There were 148 recommendations
The creation of a new Act
Regulations on the use of restraints
Introduction of a National registration scheme
Strengths of RC
Gov can use the findings and recommendations from RC to justify teh need for changes in the law and gov policy, important in raising community awareness and ecouraging individuals to take action and because RC happen at govs request, more likely to adopt recommendations
Weaknesses of RC
Parl is not obligated to implement any recommendations, may lose credibility if gov that initiates it limits the terms of reference to limit the scope of the RC, the extent to which it can influence law reform depends on things such as the subject matter and whether or not there is bipartisan support and RC can be used as a tool against political opponents and to avoid getting on with difficult legislation
Strengths of parl as a lawmaking body
Able to legislate at any time
MPs democratically elected
Able to undertake comprehensive law reform
Able to ensure scrutiny and debate in lawmaking
Able to delegate their lawmaking powers
Parls ability to legislate at any time
Can create laws at any time, do not have to wait for a case to present itself (courts) so can legislate when needed. Parl can also make laws in futuro (in future) if it can see that a problem may arise
MPs being democratically elected
Parl is democratically elected by the people, therefore members are obligated to act in a way that responds to the needs of the people and ensure that laws that are made reflect the views, wants and needs of its people
Parls ability to undertake comprehensive law reform
Parl has the resources to undertake comprehensive law reform, can establish committees and bodies that are tasked with investigating and making recommendations surrounding an area of law reform
Parls ability to ensure scrutiny and debate in lawmaking
Parl provides for debate and scurtiny as the legislative process allows MPs to stay informed about proposed changes and express their views. Ensures members of parl can follow the pocees of reform and have the opportunity to inform parl and provide feedback if the law doesnt reflect the views of the people
Parls ability to delegate lawmaking powers - strength
Parl can hand over some of its lawmaking powers to other bodies such as local councils or bodies like VCAT which enables parl to prioritise important areas of law reform
Limitations of parl as a lawmaking body
Electoral pressures within parl
Able to delegate lawmaking powers
Delays in lawmaking
Party politics
Laws may be slow to change
Electoral pressures within Parl
Parl may be reluctant to act on controversial issues due to the govs wish to remain in power and MPs may be reluctant to adress these issues if there is no dominant community view or if their party policy is considered different to the dominant community view
Parls ability to delegate law making powers - limitation
Parl may fail to supervise delegated legislation and this may lead to subordinate authorities which may mean changes in the law can be inconsistent and confusing
Delays in lawmaking
Parl can only alter the law when sitting and parl only sits aprox 40-70 days a year and this may cause laws to be delayed in being passed
Impact of party politics
MPs are expected to vote along party lines and may face strong party pressure to uphold the collective interests of their party over the views of the electorate they represent
Laws may be slow to change
The process of passing bills involves various stages and this can be very time consuming which may result in delays to changes in the law, this can make laws obsolete or prevent society from progressing
Courts as lawmakers
Able to set precedent and make laws
Able bring about legislative change
Courts are independent of parl
Precedent ensures consistency and fairness
Courts can provide individuals with standing access to law reform
Courts ability to bring about legislative change
If the community is dissatisfied with court rulings or if judges are bound by precedent, campaigns to change law may occur and this can encourage changes in legislation
Courts ability to be independent of parl
Judges do not have to worry about being re-elected or deal with political pressures as they are independent and this can lead to courts employing judicial activism to bring about law reform more freely, especially in controversial areas
Courts decisions and precedent promote consistency
Judges use the doctrine of precedent and stare decisis to promote consistency and fairness and individuals can use this to predict the outcome of their case
Courts can provide individuals with standing access to law reform
Provided a person has standing and the resources, courts can provide individuas with the opportunity to challenge the law and initiate reforms to ensure the opperation of the law is effective
Limitations of courts as lawmakers
A case must be presented to the courts before they can intiate law reform
Decisions made by judges are undemocratic
The legal system is time consuming and exensive
A case must be presented to the courts before they can initiate law reform
A case must come before the courts and muswt be sufficiently unique from prior cases to allow a judge to influence law reform
Decisions by judges are undemocratic
Judges are not elected and do not have the necessary requirements and resources to ensure their decisions reflect community values which means their changes to the law may not be appropriate. Most judges can come from a very narrow socia-economic background which also may impact their ability to reflect community values
The legal system is time consuming and expensive
Not all individuals may have the resources to pursue their matter in courts unless they recieve support from pro-bono lawyers or assistance
