VCAA Legal Studies The people and reform

One role of the VLRC in this case is to conduct thorough investigation into the issue of access for deaf, blind or vision or hearing impaired people. The VLRC would likely receive public submissions relating to this area of law, as well as consulting with experts, such as judges or experts on juries. This investigation would inform the VLRC of the impact of the law should law reform allow more inclusive juries.

Another role of the VLRC would be to make recommendations to the Victorian Parliament following their investigation. These recommendations would include how the law would best be reformed in relation to ‘Inclusive Juries’ to increase access to jury trials for hearing or vision impaired people.

The VLRC has many strengths and weaknesses in its ability to influence a change in the law, as seen by the VLRC’s investigation into the committals system.

One strength is that the VLRC holds consultations and receives submissions from the community during their investigations. As Parliament must represent the people, if the VLRC report suggests that the majority of the community believes there is a need for the reform, it is likely to implement changes such as a more inclusive jury that is representative of the community.

However, a weakness is that VLRC’s recommendations do not need to be implemented by the Parliament. Parliament is under no obligation to implement law reform, and the ability of VLRC to change the law for jurors who are hard of hearing, deaf or blind may be limited. Though the VLRC had 51 recommendations to make committals more efficient and reduce trauma on victims and witnesses, the Parliament has not implemented law reform yet. The test for committals to be abolished and replaced with a discharge application, one of the recommendations, may not be implemented as a result.

Another strength of VLRC is that it receives a term of reference from the Attorney-General in order to begin its investigations. This is a strength as Parliament is likely to implement the change as they already believe there is a need for law reform.

However, this can also be seen as a weakness as the VLRC is reliant on Parliament in order to begin its investigations, though it is able to investigate small community based projects.

Overall, there are a number of strengths and weaknesses of the VLRC in its ability to influence a change in the law.

One strength of a royal commission is that it is an effective way to gauge community opinions and measure the views and values of the people. This is evident through the royal commission on family violence initiated by Alex Chernov as it received 1000 submissions from individuals who were interested in the matter and organisations with expertise on family violence such as the Australian Law Research Centre. As a result royal commissions and their suggestions regarding possible law reform are informed, credible and knowledgeable as a wide range of perspectives have been taken into account and those who have expertise in the field have been consulted as royal commissions have coercive powers and can force individuals to give their opinion.

However one weakness of a royal commission is that parliament is under no compulsion or obligation to accept suggestions or the verdict regarding law reform and can easily ignore it if they don’t agree wasting the time and costs of this research body. But parliaments request the use of royal commissions which means that they are more likely to accept their propositions. This is demonstrated in the royal commission on family violence where the parliament accepted all 227 recommendations including increased establishment of family violence courts and increased support hubs in the community for victims – establishing the 2016 Family Violence Implementation Monitor to ensure that the parliament continue to implement the suggestions.

Royal Commissions like the Yoorok Justice Commission are more able in influencing legislative reform because of their community inquiry function. Members of the Yoorok Justice Commission can meet with members across Australia and various stakeholders gain an insight into the systemic injustices faced by First Nations people. This can be done by meeting with Elders in the community and seeking information via group yarning circles that can help them create a report with all of their recommendations. One recommendation the Yoorok has made is improving the criminal justice system for Aboriginal and First Nations children as they are facing such injustices in the system. By gathering such first hand data, it can make Parliament more likely to change the law to address these concerns to gain electoral support.

One role of the Commonwealth Parliament is for both houses to pass the proposal for the referendum with an absolute majority. The lower house will provide its approval to the bill. The upper house will debate the bill but would also approve it in order for it to be a successful referendum.

One factor that contributed to the success of the 1967 referendum was that there was bipartisan support. Bipartisan support refers to when the two main political parties are both in support for the change, rather than solely the government in support and the coalition against it. This positively contributed to the 1967 referendum because of the ability for people to be more inclined to vote alongside their preferred political party. When voters in 1967 saw that their preferred party was in support they would have been more likely to vote “yes” because they believe that their party will do what is best for their voters and therefore voting yes was the right decision to make. This positively contributed to the 90.77% national support as both political sides were in agreement for the amendments.

The 1967 referendum was highly significant as it broadened the law-making powers of the Commonwealth Parliament to legislate for First Nation Australians. As the referendum passed with a large amount of support, fulfilling the double majority requirement, the Commonwealth Parliament law-making powers was extended to include making laws for indigenous people. Consequently they were able to move into a previously considered residual area of law making power and this resulted in the passing of the Native Title Act 1993 (Cwth) legislating over land rights of First Nations people. Furthermore this allowed the Commonwealth Parliament to pass laws in 1975 that over rid Queensland laws that were discriminatory against Indigenous Australians. Thus, the impacts of the 1967 referendum was that it broadened the Commonwealth Parliament’s law-making power.

The proposal for change will be unsuccessful in both Referendum 1 and Referendum 2.

This is because, as outlined in S128 of the Australian Constitution, for a referendum to be successful, more than 50% of Australia must support the change and more than 50% of individuals in 4/6 states must also support the change. Thus, referendum 1 will not be successful as there are only 2 states that have over 50% of people supporting the change. These states are Victoria (65.10%), and Queensland (61.87%). However, more than 50% of Australia supports the change but still this will be unsuccessful as 4/6 states (a majority in those states) need to accept and support.

Further, Referendum 2 will also not be successful as only 3 states (Western Australia, Tasmania, and Queensland) support the change. Thus, one requirement is already not satisfied. Also, there is no more than 50% of Australia supporting the change as only 49.44% supporting thus making this referendum unsuccessful as both provisions that need to be satisfied are not being satisfied.

The Australian people could have a large impact on the establishment of a First Nations Voice to parliament to protect or change the Constitution as a result of the double majority requirement in a referendum and the means the Australian people can use to promote legislative change.

The Commonwealth parliament is elected by the Australian people through the system of preferential voting, which enshrines the principle of representative government. This means that MPs are incentivised to pass legislation which aligns with the interests and values of the people in their electorate in order to retain their seat at the following election. In this case, the Australian people would have a strong ability to influence this legislative change by voting in MPs to the House of Representatives - and also the Senate - who were supportive of a First Nations Voice to Parliament. This is because these MPs could then advance bills or Constitutional Alternation Bills regarding this issue on behalf of the people to change the Constitution.

Additionally, the requirement for a double majority in a referendum means that the Australian people could have a large impact on the introduction of a Voice to Parliament. The double majority provision is outlined in s128 of the Constitution and it requires that a referendum proposal be sent out to all eligible Australian voters, who vote 'yes' or 'no' on a proposal. For it to be satisfied, the first test of the double majority is that there must be a majority of voters overall (50%+) of 'yes' votes, and the second test is that there must be a majority of 'yes' votes in a majority (4/6+) of states, in order for a referendum to be successful and passed on to the Governor General for royal assent before becoming law.

The Australian public could vote in favour of the reform to advance the social issue of Indigenous Australian representation through the establishment of a First Nations Voice in the Constitution, in order to change the Constitution. With the high standard of support necessitated to change the Constitution, a successful referendum would result in a change to Constitution.

However, the Australian people could vote 'no' to protect the Constitution from this Constitutional change. This was seen in the 1999 republic referendum where no Australian state received a majority of 'yes' votes and there was a 40% and 46% 'yes' vote for the two proposals, as the Australian people protected the Constitution from this change.

Finally, the Australian people would have a strong ability to establish or prevent the creation of a First Nations voice through means of influencing law reform. Through petitions, demonstrations and use of social media, supporters and opposers of the referendum proposal to alter the Constitution to introduce this amendment could change public opinion to influence the outcome of the referendum and thus whether or not it would be successful, in turn protecting or changing the Constitution.

The purpose of royal commissions is to provide advice or investigate an issue, through research and community input. They hear witnesses under oath, collect evidence and offer protection to people who co-operate. Ultimately, they hold people accountable for doing the wrong thing by law. They are powerful in addressing human rights issues through awareness-raising, leading to changes in the law and prosecution of wrongdoers. However, their recommendations are non-binding, which can impact their effectiveness. This was evidenced in the Royal Commission into the Detention and Protection of Children in the Northern Territory. This royal commission raised public awareness of issues relating to juvenile detention and led to changes in the juvenile justice system including increasing diversionary approaches to youth justice. However, because its recommendations are non-binding, it did not lead to the raising of the minimum age of criminal responsibility or to prosecution of those who violated the rights of the inmates of the Don Dale Youth Detention Centre.

One reason why the wording of the Australian Constitution may need to be reformed is to change the division of law-making powers. Since the Constitution limits the powers of the Commonwealth parliament, they could possibly want to expand their law-making powers so that they can make laws on some areas. By passing the Constitutional Alteration Bill and bring a referendum to the people, the Constitution may be able to be reformed.

A factor that may affect the success of a referendum is bi partisan support. Bi partisan support regards Australia's political duopoly, in which the country has 2 major political parties. (labour/liberal)

1-way bi partisan support may assist in affecting the success of a referendum is where it is present. This means both major political parties support constitutional reform, therefore members/supporters/those unaffiliated with any party are more inclined in voting in favour of change, thus in turn increasing the likelihood of success of a referendum.

Opposingly where there is a lack of bi partisan support, a referendum is likely to fail. Where 1 major political party opposes constitutional reform a "no" campaign is likely to be established, thus influencing members, supporters, those unaffiliated to adopt a conservative approach which may hinder the likelihood of a future referendum in succeeding.

Another factor that may affect the success of constitutional reform is the double majority requirement. Under S128, to change the Australian Constitution requires the approval of the people through a referendum. Where the people disapprove the referendum, proposals are unlikely to satisfy the double majority requirement (majority of yes votes across Australia and a majority of states) in turn leading to an unsuccessful attempt at constitutional reform.

The Australian Constitution acts as a check on Commonwealth Parliament in law making through the separation of powers. This principle divides the responsibilities into three distinct categories, thus checking the legislative branch of Commonwealth Parliament through the independent judiciary and executive. This is evident with the judiciary holding the power to interpret legislative principles through application ensuring that Parliament remain within their law making powers. This may occur through the protection of express rights, such as the freedom of religion in s116 as the courts can rule Parliament to have violated their abilities ruling the act ultra vires. However the separation of powers is limited through the overlap of branches, with the Prime Minister and cabinet members sitting in both the legislature and executive arms. This raises the possibility of corruption as the bodies making and administering the laws are composed of the same members.

The Commonwealth Parliament has the ability to incorporate international treaties into Australian law through the external affairs power. The external affairs power has increased the power of the Commonwealth Parliament, as the High Court has given a broad interpretation to the external affairs power to mean that it enables the Commonwealth parliament to pass legislation to give effect to any obligations under an international treaty signed by the Commonwealth government. This has enabled the Commonwealth Parliament to "specifically incorporate into Australian law", obligations in international treaties. For example, in the Tasmanian Dam case, the High Court held that the external affairs power enabled the Commonwealth Parliament to pass legislation in areas of residual law-making power when enabling obligations under international treaties signed by the Commonwealth government, thus, increasing the power of the Commonwealth Parliament, by enabling them to legislate in an area that was previously left exclusively to the states. However, the impact of the external affairs power is limited as the Commonwealth Parliament cannot use the external affairs power to legislate beyond what is in the treaty. For instance, if the Commonwealth government signs a treaty relating to racial discrimination, this cannot be used to allow them to legislate about religious discrimination.

One reason judicial activism is a strength is because it can lead to courts making more decisions which alter the law in ways that it wouldn’t otherwise. The activist approach adopted in the Mabo case, in 1992 for instance, was what led to the abolition of the outdated & incorrect "terra nullius" principle. It was because of the judge’s creativity and ability to go beyond the law and consider the original land rights of Indigenous Australians before the British arrived in Aus that this precedent could be abolished.

Another strength of judicial activism is that it can also prompt Parliament to change the law, for example, by highlighting gaps or problems in legislation. As seen in the Mabo case, the HC Justices alerted Parliament to recognise the land rights of Indigenous people. This would not have been possible if an activist approach had not been adopted as a conservative judge, would have simply read and applied the common law as it existed. The activism demonstrated in the Mabo case subsequently prompted Parliament to codify the decision with legislation such as the Native Title Act.

THE FOLLOWING IS AN EXTRACT FROM A FULL HIGH-SCORING RESPONSE:

One way individuals may successfully influence law reform through courts is by bringing a case to the court. As seen in the Mabo case, the High Court would not have been able to abolish the terra nullius principle had an individual not brought the case in the first place. The outcome of this case demonstrates how by bringing a case to court, individuals can both have common law changed & prompt parliament to change the law too. For instance, it was following the Mabo case that Parliament was encouraged to codify the Mabo decision with the Native Title Act, recognising the land rights of Indigenous Australians.

However, a weakness of using courts is that individuals must have time, money & standing to bring a case. This can prevent some people from bringing cases, as not everyone has the financial resources, special interest in the issues of the case, or the luxury to endure the time it will take to see the case through. This can mean that in some instances, using courts isn’t always the best way for individuals to influence law reform.

THE FOLLOWING IS AN EXTRACT FROM A FULL HIGH-SCORING RESPONSE:

The Commonwealth Parliament can effectively respond to the need for law reform if there is a majority government, and a "rubber stamp" Senate. In this case, the government will be able to pass legislation without the need to debate the merits of the law with other parties, resulting in law reform which is efficient. However, this law reform is less likely to be scrutinised, as the government would not need to debate the bill with any other parties, resulting in a law that may not reflect a wide range of views.

Furthermore, if there is a hostile Senate the government will have to convince the opposition and minor parties to support law reform, potentially delaying or diluting this reform.