Flashcards in U4 AOS2: Law reform Deck (40)
Reasons for law reform
- Changes in beliefs, values and attitudes within the community
- Changes in social, economic and political conditions
- Advances in technology
- Greater need for protection in the community
- Greater awareness of the need to protect rights
- Greater need to provide improved access to the law
- Encouraging changes in social values
- Greater to clarify, simplify or expand unclear laws
Changes in beliefs, values and attitudes
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.
Examples: smoking laws, Oscar’s Law, equality for LGBTIQ people.
Changes in social, economic and political conditions
- Changes in social conditions: changes as Australia’s population grows and changes (e.g. binge drinking, online gambling, obesity epidemic).
- Changes in economic conditions: governments need to monitor and change laws in relation to goods and services, changes in the workforce, consumer trends etc. (e.g. competition laws, changes in employment laws).
- Changes in political conditions: changing domestic and international circumstances or global events (e.g. migration laws).
Advances in technology
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.
Example: changes to laws in relation to genes and patenting of genes.
Greater need for 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: new laws introducing carjacking and home invasion crimes and more severe penalties for those crimes.
Greater need to clarify, simplify or expand unclear laws
Laws need to be understood by all members of the community to effective.
Laws can be simplified or rewritten in plain English to be more accessible to the community.
A petition is a formal written request to the government to take action towards a particular law that is out-dated or unfair.
Petitions can be print or digital and must be signed by at least one individual. E-petitions (digital petitions) have become popular and most houses of parliaments accept e-petitions (but not the Legislative Assembly).
Example of petition: plastic bans
Petitions to parliament must
- Be addressed to only one house of parliament
- Be about a matter that parliament has the power to address
- Have a brief explanation of the reasons for the petition
- Have a request for parliament to take action
- Be legible and not contain any disrespectful or offensive language
- Be presented or tabled in parliament by a member of parliament.
Advantages VS disadvantages of petitions
- Petitions are a relatively simple, easy and inexpensive way for people to show their desire for a change in the law
- Members of parliament are more likely to consider law reform that has strong support within the community.
- An e-petition enables members of the public to submit and sign petitions online, and to track their progress. A wider pool of signatories may find petitions online.
- Some people are reluctant to place their name, address or email address on a petition and can find requests to do so an imposition.
- Good ideas may be overlooked if there is no other community pressure beyond the petition.
- Parliaments receive hundreds of petitions each year and there is no guarantee or compulsion for the suggested law reform to be adopted
While petitions are a relatively simple and inexpensive way for people to influence a change in the law, once they are tabled in parliament there is no guarantee that parliament will introduce the desired change.
If there is no other pressure, petitions can fail to gain attention. The impact of the petition can also depend on the passion and profile of the member of parliament who presents it.
A gathering of a group of people to protest or express their own concern to dissatisfaction with an existing law as a means of influencing law reform
Demonstrations need to attract large numbers of people and positive media coverage to be effective.
Demonstrations can take different forms but they all aim to bring an issue to the attention of the community and the law-makers with the objective of influencing reform.
Examples of demonstrations: Australia Day demonstrations, taxi industry reforms,
Advantages VS disadvantages of demonstrations
- Demonstrations that attract large numbers of participants can attract free positive media attention. Members of - Parliament are more likely to consider law reform that has strong support within the community.
- Demonstrations can gain the support of members of parliament who want to ‘adopt a cause’ – particularly a popular cause that might improve their public profile or image.
- An effective demonstration will focus on something that can be directly changed.
- Demonstrations can be less effective and even decrease support for a law change if they cause public inconvenience, become violent or lead to breaches of the law. Furthermore, any negative media attention may decrease the credibility of a demonstration and the likelihood of members of parliament supporting the cause.
- Demonstrations can be difficult and time-consuming to organise and attendance can be affected by factors like the location and weather.
- Demonstrations are often single or ‘one off’ events that may not generate ongoing support for the desired law reform.
Effectiveness of demonstrations
Demonstrations can be less effective and even decrease support for a law change if they cause public inconvenience, become violent or lead to breaches of the law. Furthermore, any negative media attention may decrease the credibility of a demonstration and the likelihood of members of parliament supporting the cause.
Demonstrations can be difficult and time-consuming to organise and attendance can be affected by factors like the location and weather.
Demonstrations are often single or ‘one off’ events that may not generate ongoing support for the desired law reform.
Individuals influencing law reform through the courts
Social media (internet tools, applications, programs and bookmarking sites) and traditional media (newspapers, television and radio) have an important role to play in influencing changes in the law
- Can be used to create interest in and awareness about legal issues on a massive scale.
- Social media can influence groups and individuals.
- Users are able to directly access a political party, politician or local member of parliament via social media.
- Social media’s ability to quickly communicate can influence changes in reform rapidly.
- Can be used to generate great interest in and awareness of legal and political issues (e.g. ‘chasing asylum’ to show and raise awareness of people seeking asylum).
Can be used to inform a global audience.
- Traditional media can influence law reform by examining, discussing and informing people about legal issues.
- Provide platforms for political parties and parliamentarians to outline their policy stance on law reform, explain their actions and be held accountable for their views.
- Often investigate problems and inform the public of the need for changes in the law (e.g. problems highlighted in relation to youth detention on an ABC program).
- Information presented can be biased and based on the interests of the owners.
- High concentration of traditional media ownership can decrease its independence and give the owners too much power to influence community views
Effectiveness of social media
Can be effective in influencing law reforms – gain community support, parliamentarians can gauge or measure public opinion and responses, many of them have websites and social media accounts.
However, information may be presented in a more simplistic way and therefore people may not have a basic understanding of the issue involved.
Social media – no codes of ethics; inaccuracies or unauthenticated.
People may become overwhelmed or desensitised if excessive exposure to graphic or vivid images
The use of courts
Individuals can take a matter to court to instigate change in the law. People trying to prove a person claim may change the law if the law is unclear or ambiguous.
If a law is unclear the legislation can be challenged in court though Parliament can always override the court’s decision, with the exception of the High Court in constitutional disputes.
The court can only decide a point of law when people are prepared to challenge existing law in the courts.
Individuals may also challenge an existing law in the hope that a judge might rule that it has been made beyond the power of parliament.
Advantages VS disadvantages of courts
- Challenging an existing law in a higher court can enable a vague or unclear law to be clarified.
- Even if a court challenge is unsuccessful it may gain significant media coverage and help increase awareness of the possible need to change a law.
- Judges are politically independent and determine cases based on the merits rather than electoral consequences (i.e. gaining voter support).
- Courts are limited in their ability to change the law because they can only do so when a case comes before them and only in relation to the issues in the case.
- Individuals can be reluctant to challenge a case because it can be expensive and time-consuming and a successful outcome cannot be guaranteed.
- With the exception of High Court disputes involving the interpretation of the Constitution, a judge-made law can be overridden (abrogated) by parliament.
Effectiveness of courts
While challenging the law in the courts can lead to a change in the law, it can be an expensive and time consuming way for an individual to influence law reform and there is no certainty in the outcome of any case.
Victorian Law Reform Commission (VLRC)
Victorias leading independent law reform organisation. The VLRC reviews, researched and makes recommendations to the Victorian parliament about the possible changed to Victorias laws.
Role of the VLRC
To investigate areas of public important in the law and provide the Vic parl with a comprehensive report on their findings
inquiry – examine and report on any proposal referred by the Victorian Attorney-General and make recommendations for law reform
investigation – investigate any relatively minor legal issues that the VLRC believes are of general community concern and report back with recommendations for law reform (no need for reference from Attorney-General)
monitoring – monitor and coordinate law reform activity in Victoria
education – undertake educational programs and inform the community on any area of the law relevant to its investigations or references.
Aim of the VLRC
To assist the Vic gov in continuing to provide as fair, inclusive and accessible legal system by investigating the need for change in Vic laws and providing the gov with impartial advice and recommendations for change
Processed used by VLRC
- Initial research and consultation with experts in the area of law under review.
- Publishes a consultation paper which explains the key issues in the area of law under review.
- Holds consultations with and invites submissions from parties who are affected by the area of law under review.
- Asks experts to research areas that need further information.
- Publishes a report with recommendations for changes in the law.
- Presents the final report to the Attorney-General who will then table it in the Victorian Parliament – the Parliament is not bound to implement any of the recommendations
Recent project - Medical cannabis
Advantages VS disadvantages of the VLRC
- 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 has the ability to measure community views on areas of investigation by holding consultations and receiving public submissions.
- The VLRC is able to investigate an area comprehensively so the government can initiate a new law that covers a whole issue, such as the Access to Medicinal Cannabis Bill 2015 (Vic), which was the outcome from the VLRC’s report on medicinal cannabis
- The VLRC can only investigate issues referred to it by the government or minor community law reform issues that will not consume too many resources.
- There is no obligation on the part of the parliament support or introduce law reform to adopt any of the recommendations made by the VLRC.
- The VLRC’s investigations can be time-consuming and costly.
Parliaments have a committee system. Committees can investigate a wide range of legal, social and political issues and report back to the parliament about the need for law reform. The committee is made up of members of parliament who investigate a specific issue, policy or bill and report back with recommendations to parliament.
Allows members of parliament to examine and evaluate the need for law reform. Can consult with the community. Final reports of a parliamentary committee enable the parliament to be more informed before making a decision.
Parliamentary committees can act as a check on the parliament.
Processes used by parliamentary committees
- Committee will be given terms of reference which specify the precise purpose of the inquiry, the issues to be investigated and the deadline.
- The committee may use the media to publicise their investigations and seek input from the public and experts.
- Committees will usually hold formal public hearings.
- The committee will prepare a written report based on the submissions and hearings, which will contain recommendations for law reform and will be presented to parliament for consideration.
Same sex marriage
Advantages VS disadvantages of parliamentary committees
- Committees can investigate a wide range of legal, social and political issues and concerns and report back to the parliament about the need for law reform.
- Committees can examine issues more efficiently (i.e. more quickly, more economically and in greater detail) than having the entire parliament involved in investigation.
- The final reports prepared by committees enable the parliament to be more informed before deciding whether or not to support a bill.
- Due to limited resources a committee cannot be formed to examine all worthy issues and concerns.
- Committee investigations can be time-consuming and costly.
- The large number of committees and the time commitment involved may deter some members of parliament from sitting on committees.
The highest form of inquiries into matters of public concern and importance. Royal commission are formal public inquiries conducted by a body of formed to support the work of a person(s) (commissioner(s)) given wide powers by the government to investigate and report on an important matter of public concern