UNIT 4 AOS2 - SAC 2a & 2b (constitution) Flashcards
(75 cards)
1
Q
Explain the Reasons for Law Reform.
A
- 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
2
Q
List the reasons in focus.
A
- Changes in community values
- Changes in living conditions
- Advances in technology
- Protection of society
3
Q
Explain changes in community values and attitudes.
A
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, 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).
4
Q
Explain changes in living conditions.
A
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.
5
Q
Explain advances in technology.
A
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
6
Q
Explain the greater need for the protection of the community.
A
- 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)
7
Q
List the abilities & means by which individuals can influence change in the law.
A
- Petitions
- Demonstrations
- The courts
8
Q
Explain petitions.
A
- 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.
9
Q
List the strengths and weaknesses of petitions.
A
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.
10
Q
Explain demonstrations.
A
- 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
11
Q
List the strengths and weaknesses of demonstrations.
A
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.
12
Q
Explain the courts.
A
- 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)).
13
Q
List the strengths and weaknesses of the courts.
A
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.
14
Q
List the role of media in law reform.
A
- Informing and raising awareness
- Assessing levels of community support
- Influencing community opinion on a change in the law
15
Q
Introduction - how can traditional and social media influence law reform?
A
- 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.
16
Q
Discuss the role of the ‘traditional’ media in law reform.
A
- 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.
17
Q
List the benefits and limitations of ‘traditional’ media influencing law reform.
A
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.
18
Q
Explain social media.
A
- 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
19
Q
List the benefits and limitations of social media influencing law reform.
A
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.
20
Q
Explain Law Reform Bodies.
A
- 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.
21
Q
Explain the Victorian Law Reform Commission (VLRC)
A
- 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.
22
Q
List the roles of the VLRC.
A
- 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
23
Q
Explain the roles of the VLRC.
A
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.
24
Q
Explain the recent VLRC projects.
A
- 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.
25
Explain the processes used by the VLRC.
1. Receive a terms of reference.
2. Undertake initial research and consultation with experts in the area.
3. Establish an expert panel to provide advice.
4. Hold consultations and discussions with, and invite submissions from, the community.
5. Publish a final report with recommendations for changes in the law.
6. Presents the final report to the Attorney General.
7. Attorney General will table it to the Victorian Parliament.
8. Parliament may choose to implement or not implement the recommendations made.
26
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.
27
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.
28
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.
29
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.
30
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.
31
Explain the RECOMMENDATIONS of the report into stalking.
- Making it easier for victims to report stalking and access support services.
- Enhancing Victoria Police's ability to record stalking reports centrally and referring cases to specialist investigators.
- Public education on non-family violence and cyber-stalking to raise awareness.
- Amending the Crimes Act 1958 to modernize the stalking offense definition.
- Training for magistrates and judges to better respond to stalking cases.
32
Explain the GOVERNMENT'S RESPONSE to the report into stalking.
The Victorian government committed to legislative reforms in September 2022, aiming to overhaul stalking laws, improve victim safety, and enhance police and judicial processes. Measures include expanding public education programs on healthy masculinity. Opposition parties criticized slow progress.
33
List the strengths and weaknesses of VLRC.
STRENGTHS:
- As the Government asks the VLRC to investigate the need for law change in specific areas,** the Government should be more likely to act on the VLRC’s report and recommendations.**
- **The VLRC can measure community views on areas of investigation by holding consultations and receiving public submissions,** and then reflect them in its recommendations. This should increase the likelihood of the Government implementing its recommendations, because, to maintain and increase voter support, governments generally implement law reforms that reflect the views of the people.
- **The VLRC is independent of the parliament and political parties** so it remains objective and unbiased in making its recommendations. It can also investigate an area comprehensively so the Government can initiate new legislation that covers a whole issue.
- **The VLRC 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. For example, a review in 2001 on bail resulted in changes to the Bail Act 1977 (Vic).
- **Statistics suggest that the VLRC can be highly influential on the Victorian Parliament.** All or some of its recommendations are adopted in approximately 70 per cent of cases.
WEAKNESSES:
- **The VLRC 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 also limited to the terms of reference, meaning 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 on the part of the Parliament to support or introduce law reform to adopt any of the recommendations** made by the VLRC. Also, while the Government may support the VLRC’s recommendations, it may need the support of the crossbench to pass law reform through the Parliament, particularly if the upper house is hostile.
- **The VLRC’s investigations can be time-consuming and costly.** For example, inquiries may take 12 to 24 months.
- **The VLRC is limited by its resources,** and therefore can only undertake investigations into minor legal issues if it does not require a significant deployment of those resources.
- **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 that Parliament has no ability to do so.
34
Explain royal commissions.
Royal commissions = major public inquiries established by the King’s representative on the recommendation of the government to investigate something of public importance or concern in Australia.
- These Commissions are called ‘royal’ commissions because they are created by Australia’s head of state (i.e. the King) through his representatives.
- They are one of the oldest forms of inquiry.
- They are funded by government
- They develop a final report of recommendations of law reform which is tabled in Parliament.
35
Explain the role of Royal Commissions.
The role of Royal Commissions is to investigate an issue of public interest.
- Royal commissions are given special investigatory powers, including the power to summon (i.e. compel) people to attend hearings, give evidence under oath, and be subject to cross-examination.
- At the Commonwealth level, the power to issue a royal commission is given to the Governor-General through the Royal Commissions Act 1902 (Cth).
- The inquiry is given ‘terms of reference’ (a description of what it is asked to inquire into) and asked to report on its findings and make recommendations.
- As a temporary inquiry, they are established on an ‘ad-hoc’ (as needed basis)
36
List the examples of Royal Commissions.
Commonwealth level:
- Aboriginal Deaths in Custody (1987–91)
- Institutional Responses to Child Sexual Abuse (2014-2017)
- Misconduct in the Banking, Superannuation and Financial Services Industry (2017~)
Victorian Royal Commissions:
- The failure of Kings Bridge (a bridge in Melbourne which collapsed in 1962) (1962–63)
- The collapse of the West Gate Bridge (1971–72)
- Bushfires Royal Commission (2009~2010)
- RC into Family Violence (2014~2015)
- RC into The Management of Police Informants (Lawyer X)
37
List the processes used by Royal Commissions (RC).
1. Consultation, research and background papers
2. Undertake consultation sessions and seek community submissions
3. Obtain relevant documents and hold public hearings
4. Prepare a report and make recommendations
38
Explain the processes used by royal commissions.
- Once the investigation is complete, the commission will prepare a report and make recommendations on ways to address the matters under investigation.
- Royal commissions also have the power to recommend prosecution.
- The media have often been a trigger for the calling of a Royal Commission.
39
Explain coercive power of investigation.
Royal Commissions can:
- Summons a person to appear before the commission.
- Require individuals to give evidence under oath.
- Require individuals/businesses/organisations to produce evidence under oath.
- Provide penalties of up to two years imprisonment for those who fail to attend or produce documentation as directed.
- This coercive power provides a Royal Commission with a greater ability to determine the truth, gain an insight into the issue and review all the evidence.
- This provides for a greater understanding of the social or legal issue, so new laws can be enacted to most effectively resolve the issue.
40
List strengths and weaknesses in the ability of Royal Commissions to influence law reform.
STRENGTHS:
- **Because the government asks royal commissions to investigate** something important, **the government may be more likely to act** on the royal commission’s report and recommendations.
- Royal commissions **can measure community views on areas of investigation by holding consultations and receiving public submissions**.
- The **report developed by the Royal Commission is tabled in Parliament** which brings the attention to members and, this generally becomes public to the wider community. In addition, hearings are often public
- Royal commissions **can investigate an area comprehensively** so the government can initiate a new law that covers the area inquired about. They have access to experts.
- Royal commissions **have the power to call anyone to appear before them** to give evidence (see ‘coercive powers’).
- **Royal commissions are independent of parliament,** and more likely to remain objective and unbiased in making their recommendations.
WEAKNESSES:
- Royal commissions **can be used as a tool against political opponents.** They can also be used to avoid getting on with difficult legislation.
- There is **no obligation on the part of the parliament to support or introduce law reform** to adopt any of the recommendations made by Royal Commissions BUT this is relatively insignificant as it is difficult for governments to ignore RC recommendations.
- Royal commission investigations can be **time-consuming and costly.** They take on average two to four years to complete, and are infamously expensive (The RC into Institutional Response to Child Sexual Abuse cost approximately $350 million/4 years.)
- The **extent to which a royal commission can influence law reform is mixed,** and depends on matters such as the subject matter and whether there is bipartisan support for the reform.
- Although they have coercive powers, there is a **lack of ability to enforce these** if there are breaches.
- The **ability of the royal commission to influence law reform depends on the timing of its reporting and its terms of references.** For example, if they are to report immediately after an election, its influence might be diminished.
- While independent, **still rely on the government calling** an RC.
41
Identify the case for Royal Commissions.
Example – Royal Commission into the Management of Police Informants - “Lawyer X Royal Commission”.
42
Explain the reasons for the establishment of the “Lawyer X Royal Commission”.
Reasons for establishment:
- Criminal defence barrister Ms Nicola Gobbo was used as a police informant and breached her legal obligation of confidentiality and privilege to her clients.
- Ms Gobbo provided the police with information about her clients without their knowledge that was used to assist in their investigations and prosecutions of the case.
43
Explain the terms of reference to investigate of the “Lawyer X Royal Commission”.
Terms of reference:
To investigate:
- The number of times and extent to which the conduct of Nicola Gobbo as a police informant affected the outcome of criminal cases.
- The conduct of the police in disclosing their use of Ms Gobbo as a police informant.
- The effectiveness of the process the police use in governing how people with legal obligations of confidentiality are managed.
- Whether the police should use such people.
44
Explain the recommendation in focus.
RECOMMENDATION 8
The Victorian Government, within two years, implemented legislation for Victoria Police’s registration, use and management of human sources, to provide a clear framework for police to obtain and use information from human sources and to ensure they are used in an ethical and justifiable manner.
45
Explain the result of the “Lawyer X Royal Commission”.
- The information led to the review of more than 20 criminal cases in which convictions were obtained as a result of Ms Gobbo's rile.
- Faruk Orman, who was found guilty of murder, became the first person to have their conviction overturned.
46
Explain the government's response of the “Lawyer X Royal Commission”.
Government response:
Since the Commission delivered its final report on 30 November 2020, of the 111 recommendations made by the Commission, 90 have been delivered, in particular The Victorian Government has introduced legislation tproviding a clear framework for police to obtain and use information from human sources, with appropriate protections to manage risks, including by:
- Setting out the process for the registration, use and management of Victoria Police’s human sources, AND
- Establishing an external oversight model to ensure that human sources are used in an ethical and justifiable manner.
47
List the reasons for constitutional reform.
1. Recognise First Nations people
2. Increase protection of rights
3. Change the Commonwealth’s law-making powers
4. Reform Australia’s political system
48
Explain the reason for constitutional reform to recognise First Nations people.
Recognise First Nations people:
There is no mention of Australia’s First Nations people in the Constitution, nor is there any recognition of the fact that First Nations people have been living on the continent for at least 65 000 years, long before European colonisation in the late 1700s.
Two proposed changes have been:
- To establish a First Nations Voice to Parliament.
- To honour and recognise First Nations people in the Constitution.
49
Explain the reason for constitutional reform to increase protection of rights.
Increase protection of rights:
- The number of rights protected by the Australian Constitution is limited, with many of the rights themselves being narrow in scope.
- Most rights in Australia are therefore protected by statute law or common law, rather than by the Australian Constitution. These include freedom of thought, speech, assembly and movement.
- There have been calls to change the Australian Constitution to protect basic democratic freedoms, or to clarify or broaden the existing express rights.
- Some have suggested that Australia should incorporate a bill of rights into the Australian Constitution (a specific list of rights).
50
Explain the reason for constitutional reform to change the Commonwealth’s law-making powers.
Change the Commonwealth’s law-making powers:
- The Commonwealth Parliament has exclusive powers and concurrent powers, and the states have concurrent powers and residual powers.
- The Commonwealth Parliament has sought to change the Australian Constitution to provide it with more powers; however, there have also been suggestions to reduce the Commonwealth’s law-making powers.
51
Explain the reason for constitutional reform to reform Australia’s political system.
Reform Australia’s political system:
There have been suggestions to change the Australian Constitution to reform our political system, for example:
- Increase the term of the House of Representatives from three years to four years.
- Allow more people to be eligible to sit in parliament (e.g. dual citizens).
- Become a republic.
52
Explain changing the Constitution.
- Australian voters determine whether an express change (change to the wording) can take place.
- This is because the Australian Constitution can be amended only with the approval of Australian electors.
- Any proposed alteration, including a proposal to add or extend important rights, must be put to a national vote.
- The founders of Federation determined that any changes to the Constitution can only be made as part of a national vote, requiring all voters to participate.
- This process is called a Referendum.
53
Explain what a referendum is.
Referendum – s.128
'The process used to changed the written wording of the Commonwealth Constitution, as outlined in section 128'
- Only way to change the written wording of the Constitution.
- When Constitution was written, it was anticipated the document would need to changed and updated to suit modern times
- This process has been mostly unsuccessful
- 45 referenda since 1901 – 8 effective
- In order for the wording to be changed, a referendum must be accepted by both the people of Australia & the Commonwealth parliament.
- This is known as the Double Majority – an important means in maintaining a check on the law making powers of C’wealth Parliament.
54
Explain a double majority provision.
- The double majority is difficult to achieve. Only 8 out of 45 referendums have been successful in Australia's history.
- This strict requirement ensures that the wording of the Constitution can be changed only with the agreement of voters.
55
Explain the referendum process (commonwealth parliament).
Commonwealth Parliament
1. Proposed change is drafted as a bill which sets out the proposed changes (Constitutional alteration bill).
2. Bill is introduced into Parliament.
3. It must be passed by a majority of both houses of Commonwealth Parliament
4. If one house rejects the bill, after a period of 3 months it can be passed by the first house again.
5. If the bill is still rejected, the Governor General may elect to submit the proposed change to the people regardless.
56
Explain the process of changing the Constitution.
The Australian Constitution can only be changed through a referendum.
The procedure for changing the Australian Constitution, as set out in section 128, has three stages:
- The parliament
- The people
- The Governor-General.
57
Explain the referendum process (the people).
The People
- The vote must take place between 2-6 months.
- Information is sent to each household detailing the proposed change and supplying arguments for & against.
- The people of the Commonwealth eligible to vote in elections for the House of Representatives, must partake in a compulsory vote on any proposed change to the Constitution. A double majority must be received.
58
Explain a Double Majority.
Majority of voters in the whole of Australia must vote yes.
+
Majoirty of voters in a majority of states must vote yes.
=
Successful referendum.
To become law, the proposed change to the Constitution must be approved by a 'double majority' of electors voting for the changes. That is:
- A national majority of electors from all states and territories, AND
- A majority of electors in a majority of the states (i.e. at least four of the six states).
59
Explain the referendum process (governor-general).
Governor-General
- If the proposed change receives a ‘YES’ vote from a majority of voters in a majority of states, as well as a majority of all voters (double majority)
- …the proposed change is presented to the Governor-General for royal assent
Change to the wording of the Constitution occur!!!
60
Explain the double majority as a check on parliament.
- The requirements to change the Constitution are strict and complex, meaning that Parliament cannot easily change the wording of the Constitution.
- The strict double majority test can be seen as safeguarding and effectively protecting citizens’ existing constitutional rights.
- However, it simultaneously restricts and limits opportunities for the Constitution to progress and evolve with society.
- The double majority rule may not reflect the majority will of voters nationwide because of the majority of states requirement.
61
List the factors affecting the success of a referendum.
1. Bipartisan support
2. Whether voters are seeking change
3. The nature of the proposal
4. Education about the proposal
62
Explain bipartisan support.
Bipartisan support:
- Bipartisan support refers to approval by two or more political parties.
- History suggests that the success of a referendum often depends on whether there is support from the two major political parties.
- Many voters do not understand the Constitution and the nature of proposed changes, so people may look for guidance about how to vote from the political party they support.
- If the opposition does not agree with the proposed change, they will lead a ‘no’ campaign, and voters will be faced with two strongly argued, opposing campaigns focusing on ‘yes’ and ‘no’.
- Because majority support is needed in at least four states, state premiers can be influential in the outcome of the referendum.
Example of the NO campaign .
63
Explain whether voters are seeking change.
Whether voters are seeking change:
- One factor that can affect the success of a referendum is whether the people themselves support and actively promote the change.
- If the government is driving the change, Australians may be more cautious because of a potential general distrust of politicians.
64
Explain the nature of the proposal.
The nature of the proposal:
- Another factor affecting success is whether the proposed change is straightforward and accessible or complex and difficult to understand.
- If the question being asked is complex or the proposed alterations to the Constitution are difficult to understand or messy, voters may not understand what they are being asked to vote ‘yes’ to and therefore be more inclined to vote ‘no’.
65
Explain education about the proposal.
Education about the proposal:
- The general public has very little knowledge of the Constitution and government and parliament structures.
- Some have argued that referendums in the past have failed not because the Australian people are reluctant to change, but because they do not receive the necessary information and education to understand the proposal fully.
66
Explain the proposal for constitutional change (1967 referendum).
1. Whether the Commonwealth Parliament should have the law-making power to legislate in relation to indigenous people (Proposed alteration to s.51(xxvi))
AND
2. Whether indigenous people should be counted in the national census (Proposed alteration to s.127)
67
Explain the reasons for the referendum.
The problem:
Until 1967 after the referendum was passed, the CC denied the Cth p’ment the power to legislate for indigenous people in each state or to include them in the national census.
↓
Why was this a problem?:
Many felt this was unjust and discriminated against indigenous people. Also made it difficult for Cth P’ment to implement government policy.
↓
What does this all mean?:
This effectively meant the Commonwealth P’ment was unable to pass any laws that directly affected or benefited the indigenous community. Eg: passing appropriation bills to provide financial services for indigenous people.
68
Explain the vote of the 1967 referendum.
Majority of people
- 90.77% of all voters voted in favour (9.23% against nationwide)
Majority of people 4/6 states?
- All 6 states voted in favour
- The 1967 Referendum was the highest recorded YES vote in history.
69
Explain how the referendum changed the Constitution (1967 referendum).
1. Altered s.51(xxvi) to remove ‘other than Aboriginal race in any state’ therefore permitting Cth to legislate for these people
AND
2. Repealed (removed) s.127 which previously indicated that indigenous people were not to be counted in national census
70
Explain the significance of the 1967 referendum.
- The changes allowed the Cth the power to legislate in areas previously denied to it by the CC.
- An area of residual power became a concurrent power.
- The changes permitted Cth P’ment to become more involved in dealing with indigenous people and catering to their needs eg: government could spend in relation to indigenous affairs.
- These changes also allowed for reform to take place such as Native Title Act.
- The very high level of support across all states sent a clear message to the Commonwealth that it needed to act to address the inconsistencies in state law in regard to First Nations people.
- The Commonwealth Parliament was able to use its powers to override laws that were racially discriminatory. E.g., it passed legislation in 1975 that overrode Queensland laws that treated Aboriginal people differently from others.
- It allowed the Commonwealth to legislate in relation to land rights, and eventually led to the passing of the Native Title Act 1993 (Cth), which allowed First Nations people to claim land rights.
71
Explain the background of attempting to establish a First Nations Voice (future constitutional reform).
- A Voice to Parliament would be a constitutionally entrenched advisory body that would advise the Commonwealth on matters and laws that affected First Nations people. However, as we know the result failed.
- A Voice to Parliament was recommended voice following the National Constitutional Convention held at Uluru in May 2017.
- The body would be made up of First Nations people and be separate from Parliament.
72
Explain the 2023 referendum proposal (future constitutional reform).
- On 14 October 2023, a referendum was put to the people about whether to change the Consitution to formally recognise First Nations people and to enshrine a Voice to Parliament.
- The proposed change did not have bipartisan support.
73
Explain the referendum results (future constitutional reform).
60.06 per cent of voters in Australia voted ‘no’ to the referendum question. No state achieved a ‘yes’ majority. Therefore, the referendum did not achieve the double majority requirement and was not successful.
74
Explain the significance of the 2023 referendum (future constitutional reform).
* No changes were made to the Constitution.
* The lack of bipartisan support was likely a significant factor in the outcome of the referendum. Of the 45 referendums held in Australia, only 8 have ever succeeded and they have had bipartisan support.
* Australians generally lack knowledge of the Constitution and the way it works. The ‘yes’ campaign may not have been able to explain the change clearly enough. The‘no’ campaign raised concerns about the lack of detail, with the message ‘if you don’t know, vote no’.
* The referendum may have highlighted embedded racism that continues to impact on people’s beliefs and voting behaviours in relation to First Nations people.
* Some people may have voted ‘no’ because they did not believe the proposal went far enough.
75
Explain becoming a republic (future constitutional reform).
Becoming a republic:
- Making Australia a republic rather than a constitutional monarchy would result in the removal of the King of England as Australia’s head of state
Future constitutional reform:
* It is possible a referendum may be held on the question of becoming a republic.
* The lack of success of the 2023 referendum, and many others, suggests that governments be reluctant to commit resources to another referendum in the near future.
