UNIT 4 AOS2 - SAC 2a & 2b (constitution) Flashcards
Explain the Reasons for Law Reform.
- Laws regulate the actions of individuals, corporations and the government within a society.
- They are generally needed to protect society, or individual rights.
- Laws also serve the purpose of enabling society to function.
- The purpose of the law is to make clear what is acceptable behaviour within society.
For laws to be effective:
- Be known by the community
- Be easily understood
- Be able to be changed
- Be acceptable to individuals within society and society as a whole
- Be enforceable
List the reasons in focus.
- Changes in community values
- Changes in living conditions
- Advances in technology
- Protection of society
Explain changes in community values and attitudes.
1)
- Values and attitudes change over time, and laws must keep up with those changes.
- Rapid changes may be resisted, and sometimes changing laws to keep up with values an result in another problem requiring law reform.
- A law that is not consistent with the values of the majority of society will not be accepted
EXAMPLE: Most recently the Commonwealth Parliament legislated to enable same-sex marriage: Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).
Explain changes in living conditions.
2)
SOCIAL CONDITIONS
- As Australia’s population grows and changes, some laws need to change to ensure we can all live together peacefully and maintain our basic standard of living.
Some examples of social change that have promoted law reform include:
- Increases in reported domestic violence
- Binge drinking
- Gang-related crime
- Online gambling
- The obesity epidemic
ECONOMIC CONDITIONS
- Continually changing economic conditions creates new issues that need to be addressed by the law.
Some examples of areas that have changed due to economic conditions that required law:
- Changes in the workforce
- Industrial relations
- Consumer protection and banking law
- International trading law.
INTERNATIONAL CONDITIONS
- Changing political circumstances and global circumstances will influence law reform.
Some examples of the need for law reform given changing political conditions:
- Threat of terrorist attacks - see p435
- Rise of global refugees
- Changes to trading partners
- Changes to leadership.
Explain advances in technology.
3)
- As technology improves, laws need to be altered and updated.
- Laws may need to control and regulate new inventions and opportunities, or protect people from being harmed or exploited because of new technology.
- We tend to see advances in technology lead to new social issues arising; the possible legal implications of new technology are only known once there is an issue, at which point Parliament must respond.
EXAMPLE: Gene Technology Amendment Act 2016
Explain the greater need for the protection of the community.
- Laws should make sure individuals and groups within a community feel safe and protected from harm.
- Some people have specific needs and rights that must be protected (e.g. children, people with disabilities).
EXAMPLE: Crimes Act 1958 (Vic)
List the abilities & means by which individuals can influence change in the law.
- Petitions
- Demonstrations
- The courts
Explain petitions.
- A petition is a formal written request to the government to change the law. Those who sign it support the requested change in the law.
- Print or paper petitions must carry original signatures.
- E-petitions or online petitions are signed using digital signatures or email addressed.
E.g. A 2016 petition to the Commonwealth Parliament requesting the banning of the live export of cattle attracted 6661 signatures.
- Petitions presented to the Victorian Parliament must meet certain requirements.
- Similar rules apply to the Commonwealth Parliament.
Petitions presented to the Victorian Parliament must:
- Be addressed to one of the houses of parliament
- Relate to a matter within the law-making power of the parliament
- State the reasons for the petition and the request of parliament to act
- Be tabled in parliament by the member who received it.
List the strengths and weaknesses of petitions.
STRENGTHS:
- Simple and inexpensive way to show support for a cause (E-petitions have made this process much easier!).
- Petitions that gain many signatures are more likely to be effective as they show greater community support for the issue.
- A petition presented to a member of parliament must be tabled in parliament and parliament must formally respond to the petition.
- Gathering signatures and tabling the petition can increase awareness of the issue and attract media attention, increasing pressure on the parliament.
WEAKNESSES:
- E-petitions must be made through a parliamentary site AND the Senate will only accept these once they’ve been printed.
- Smaller petitions not supported by other forms of community pressure normally do not succeed.
- Parliament receives hundreds of petitions each year and is not obliged to act upon any of them. They are unlikely to if there’s no political will/agenda.
- Most petitions do not gain public or media attention and as a result, are easier for the parliament to ignore.
Explain demonstrations.
- Demonstrations (or protests or rallies) involve a group of people gathering to express support for a particular issue.
- Demonstrations effectively raise awareness of issues and can attract support and media coverage when well attended.
EXAMPLE: Australia Day demonstrations
List the strengths and weaknesses of demonstrations.
STRENGTHS:
- Demonstrations that attract positive media attention can increase pressure to act on parliament.
- They can raise awareness of an issue and create attract additional public support (can persuade others of the need for reform).
- Demonstrations that attract a lot of people highlight a lot of support for the issue, which increases the pressure on parliament to act.
WEAKNESSES:
- If they are violent or cause significant inconvenience, demonstrations can attract negative media attention and lead to a loss of support/may undermine the cause.
- Demonstrations are hard to organise and hard to attract a lot of people.
- Those that attract small numbers or relate to an issue that cannot be changed by lawmakers in Australia are often ignored and are of little impact.
Explain the courts.
- Individuals can bring about a change in the law by taking a matter to court (although this is not usually their prime motivation).
- If p’ment has passed a law that is unclear or unfair, this can be challenged in the hope the judge will interpret the law in their favour.
- Most matters only make it to court where there are tricky legal issues involved, such that the outcome of the dispute is unclear.
EXAMPLE: The High Court found that Norrie’s gender could be recorded in a gender-neutral way (Deaths and Marriages v Norrie (2014)).
List the strengths and weaknesses of the courts.
STRENGTHS:
- Challenging an existing law can enable a vague or unclear law to be clarified.
- Judges are independent and not subject to political pressure so can consider the case on its merits.
- Judges have the power to rule legislation to be ultra vires.
- If a court challenge is unsuccessful it may gain significant media coverage and help increase awareness.
- Judge’s decisions and comments made in court can encourage the parliament to change the law.
WEAKNESSES:
- Courts have to wait for a case to come before them and can only rule on the issues of that case.
- Judges are not elected so their decisions may not reflect community views and values.
- Parliament can abrogate common law (unless it is a High Court interpretation of the Constitution).
- Judges must wait for a party to challenge the authority of parliament to legislate before they can make a ruling.
- Individuals can be reluctant to challenge a case because it can be expensive and time-consuming AND have standing.
List the role of media in law reform.
- Informing and raising awareness
- Assessing levels of community support
- Influencing community opinion on a change in the law
Introduction - how can traditional and social media influence law reform?
- Exposing social issues and injustices, creating community awareness regarding how the existing law may be inadequate in a particular area (which can then lead to law-makers passing new laws in response to community opinion on the issue).
- Making law-makers informed of community opinion on social issues, who may then change the law to match community opinion.
- Groups using the media to persuade voters to hold a particular opinion on a social issue; law-makers may then change the law to retain the support of these voters.
Discuss the role of the ‘traditional’ media in law reform.
- Newspapers, television and radio are still a major source of news within our community, and have the ability to shape the views and attitudes of their audience.
- Television programs such as Sunrise, Today, The Project, Lateline, 7.30, Foreign Correspondent, Q&A, and A Current Affair often contain segments about the need for law reform and possible changes to the law.
- They also provide a forum for political parties and parliamentarians to outline their policy stance on law reform, explain their actions and be held accountable for their views on law reform.
- However, they may not always present information in an unbiased and independent manner.
- Producers and editors can manipulate content / misinform in an attempt to alter the community’s perception of a particular individual or pressure group (if the owners of their media organisation do not support their views).
- The high concentration of ownership in the traditional media may also decrease its independence and give the owners of media organisations excessive power and too much ability to influence community views on controversial legal issues.
List the benefits and limitations of ‘traditional’ media influencing law reform.
BENEFITS:
- Traditional media, including newspapers, television, and radio, can influence law reform by examining, discussing, and informing people about legal issues, shaping their audience’s views and attitudes.
- Television programs like Sunrise, Today, The Project, and The Drum often discuss law reform, providing platforms for political parties and legislators to express their stance and accountability.
- Television programs like ABC’s Four Corners and Nine Network’s 60 Minutes investigate community issues, influencing public opinion and aiding governments in determining law change support.
LIMITATIONS:
- Traditional media may not always present information impartially due to their owners’ vested political interests.
- Producers and editors can manipulate content to alter public perception of individuals or pressure groups, discrediting media organizations if they don’t support their views.
- Broadcasting time can be increased resulting in spreading political bias in interviews with individuals, pressure groups, and parliamentarians, particularly in Australia, where ABC and News Limited are criticized.
Explain social media.
- Through the use of social media platforms, individuals, specific interest or pressure groups and parorganisations now have the ability to communicate their opinions to a broader audience
- Images, videos and live streaming of events can be used to generate great interest in legal and political issues and the need for law reform.
Social media can influence change in the law in the following ways:
- Provides instant means of sharing information;
- Connects people across domestic & international boundaries
- Can easily gain the attention of members of p’ment
- Can easily alert the public to the legal implications of a current issue
- Can easily encourage action
List the benefits and limitations of social media influencing law reform.
BENEFITS:
- Social media users can create interest in, and raise awareness of, legal issues on a massive scale.
- Social media and mobile devices are used to capture and broadcast images, videos, and live stream events, generating interest in legal and political issues and advocating for law reform.
- Social media connects global communities, enabling global reform movements to establish local branches for domestic issues like climate change, exemplified by Extinction Rebellion Australia’s non-violent civil disobedience.
LIMITATIONS:
- Social media users often disregard ethical codes of conduct, leading to potentially inaccurate, authenticated, or biased information.
- Social media platforms often depict complex legal issues in a simplistic manner, potentially leading to individuals making decisions about law reform without a basic understanding of the issue.
- Excessive exposure to graphic or vivid images can lead to feelings of overwhelm and desensitization to social, political, and legal injustices.
Explain Law Reform Bodies.
- Law reform bodies exist at the federal and state levels.
- Their role is to investigate and make recommendations for changes in the law surrounding an issue.
- Many of these bodies have similar powers to the courts during their investigation phases, including the ability to question witnesses and experts in order to gather evidence.
- Law reform bodies have a more direct relationship with parliament, and have usually been set up specifically to investigate the need for law reform, and report back to parliament with recommendations for change.
- As such, the processes involved in influencing law reform are much clearer and more straightforward than the means that are available to individuals.
Explain the Victorian Law Reform Commission (VLRC)
- The VLRC is the Victoria’s central, independent law reform body.
- It is a formal body set up under the Victorian Law Reform Commission Act 2000 (Vic) for the purposes of improving and updating Victorian laws.
List the roles of the VLRC.
- The main role of the VLRC is to assist the government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change in Victorian laws.
The other specific roles of the VLRC include:
- Major inquiry
- Community inquiry
- Monitoring
- Education
Explain the roles of the VLRC.
The role of the VLRC is set in section 5 of the Victorian Law Reform Commission Act 2000 (Vic). The functions of the VLRC are:
- Inquiry - To examine, report and make recommendations to the Attorney-General on any proposal or matter relating to law reform in Victoria that is referred to it by the Attorney-General.
- Investigation - To examine, report and make recommendations to the Attorney-General on any matter that it considers raises relatively minor legal issues that are of general community concern. To do this, the Commission must be satisfied that the examination of the matter will not require a significant deployment of resources.
- To suggest that a proposal or matter relating to law reform in Victoria be referred to the Commission by the Attorney-General.
- Monitor - To monitor and coordinate law reform activity in Victoria.
- Education - To undertake educational programs on any area of the law relevant to a reference, whether past or current.
Explain the recent VLRC projects.
- Since its creation in 2001, the VLRC has conducted numerous investigations and made hundreds of recommendations to help ensure Victoria’s laws remain relevant fair.
- In the first 15 years of its operation it received 36 references from the Victorian Attorney-General to investigate major areas of law reform and undertook another 7 minor community law reform projects with the government adopting all or some of the VLRC’s recommendations in approximately 70 per cent of cases.
Some recently completed projects include an examination of:
- Medicinal cannabis
- Adoption laws
- Funeral and burial instructions
- Family violence
- Litigation funding.
Explain the processes used by the VLRC.
- Receive a terms of reference.
- Undertake initial research and consultation with experts in the area.
- Establish an expert panel to provide advice.
- Hold consultations and discussions with, and invite submissions from, the community.
- Publish a final report with recommendations for changes in the law.
- Presents the final report to the Attorney General.
- Attorney General will table it to the Victorian Parliament.
- Parliament may choose to implement or not implement the recommendations made.
List the strengths and weaknesses of VLRC’s ability to influence law reform (detailed).
STRENGTHS:
- As the government asks the VLRC to investigate the need for law change in specific areas, it should be more likely to act on the VLRC’s report and recommendations.
- The VLRC can measure community views by holding consultations and receiving public submissions, and then reflect these views in its recommendations. This should increase the likelihood of the government implementing its recommendations to maintain and increase voter support.
- The VLRC is independent of the Parliament and political parties, so it remains objective and unbiased in making its recommendations.
- It can investigate an area comprehensively so the Government can initiate new legislation that covers a whole issue.
- It has the power to make recommendations on relatively minor legal issues without any reference from the Attorney-General, which can lead to important law reform. E.g., a review in 2001 on bail resulted in changes to the Bail Act 1977 (Vic).
- It can be highly influential on the Victorian Parliament. All or some of its recommendations are adopted in approximately 70 per cent
of cases.
WEAKNESSES:
- It can only investigate issues referred to it by the government (i.e. the Attorney-General), or minor community law reform issues that will not consume too many resources.
- Inquiries are limited to the terms of reference – the VLRC can only investigate and make recommendations for law reform on areas included in the reference even if it considers there are other areas of reform required in that particular matter.
- There is no obligation for Parliament to support or introduce law reform to adopt any of the recommendations made by the VLRC.
- The VLRC’s recommendations may need the support of the crossbench to pass law reform through the Parliament, particularly if the upper house is hostile.
- Investigations can be time-consuming and costly (inquiries may take 12 to 24 months).
- The VLRC can only recommend changes to Victorian law, not Commonwealth law. If certain areas it is investigating are governed by a Commonwealth law, the VLRC cannot directly recommend that the Victorian Parliament change this law as it has no ability to do so.
List the strengths and weaknesses of VLRC’s ability to influence law reform (simplified).
STRENGTHS:
- Government is more likely to listen and act on the VLRC’s recommendations as they requested the investigation.
- It can measure the community’s views on the law-reform issue.
- It can comprehensively investigate an area of law reform.
- It can make recommendations on minor law-reform issues without the need for a reference.
- It is an independent body.
- Previous VLRC investigations have resulted in a high percentage of recommendations being adopted.
WEAKNESSES:
- It is limited to investigating large areas of law reform when referred by the Attorney-General.
- Parliament is under no obligation to adopt any of the recommendations made.
- Investigations are time-consuming and costly.
- Limited resources mean that minor issues can only be investigated if they do not pose a drain on the VLRC’s resources.
- References constrain the scope of the VLRC’s research.
Explain the ISSUE of the report into stalking.
VLRC was tasked with reviewing and recommending improvements to Victoria’s laws on stalking, harassment, and similar conduct. Stalking is defined as intrusive behaviour that causes distress, fear, or harm, and can include physical following, unwanted contact via phone or email, or surveillance. The focus was particularly on non-family violence stalking, as family violence stalking had already been addressed in other reforms.
Explain the REASON FOR THE INQUIRY of the report into stalking.
- The prevalence of non-family violence stalking, which affects 1 in 6 women and 1 in 15 men.
- The intimidating and frightening nature of stalking, making it difficult for victims to identify and escape it.
- A lack of community awareness about stalking as a crime.
- Difficulties victims face in seeking assistance through the criminal justice system, which can be time-consuming and stressful.
Explain the INQUIRY PROCESS of the report into stalking.
- Receiving 115 submissions from individuals, legal organizations, and advocacy groups.
- Conducting 36 consultations with stakeholders like the Victoria Police, courts, and community organizations.
- Engaging in round-table discussions with specific groups affected by stalking, such as young people, people with disabilities, and multicultural communities.
- Conducting an online survey with 254 responses, gathering public experiences of stalking.
