Law Reform

MECHANISMS of reform

THEME: The relationship between different legal institutions and jurisdictions

Courts

Parliaments

United Nations

Intergovernmental organisations

(IGOs)

HOWdoes the law end up

changing?

A ‘mechanism’ is the part that physically makes it happen.

Law Reform

MECHANISMS of reform

Examine the operation of the different

mechanisms of reform

Law Reform

MECHANISMS of reform

We need to look at:1. What they are; and2. HOW THEY WORK (“operate”)

THEME: The relationship between different legal institutions and jurisdictions

Courts

Parliaments

United Nations

Intergovernmental organisations

(IGOs)

Law Reform

MECHANISMS of reform

Courts

The main role of the courts is to interpret and apply law provided by parliament

Judges can change laws by precedents set in court cases, but they generally TRY NOT TO INTERFERE with the parliament’s laws (they just try to apply the law as it was intended.

But even when the courts DO make “new” common law, parliament CAN come along the next day and pass a law that makes the court ruling irrelevant!

Unless the court was ruling that a statute law is unconstitutional, in which case the parliament can’t do anything about it but try to pass a NEW law that ISN’T unconstitutional.

Law Reform

MECHANISMS of reform

Courts

Important High Court cases have included:

The Work Choices CaseGave more power to the federal government on workplace relations

Roach v Electoral CommissionerInterpreted the Constitution to mean that there is a right to vote (even for some

prisoners)

Australian Capital Television v CommonwealthFreedom of political communication allowed by the media

Mabo v Queensland (No. 2)Native title

Law Reform

MECHANISMS of reform

Courts

Important High Court cases have included:

The Work Choices CaseGave more power to the federal government on workplace relations

Roach v Electoral CommissionerInterpreted the Constitution to mean that there is a right to vote (even for some

prisoners)

Australian Capital Television v CommonwealthFreedom of political communication allowed by the media

Mabo v Queensland (No. 2)Native title

In the case of Mabo v Queensland (No. 2), the parliament passed the Native Title Act 1993 the next year to create the Native Title Tribunal and make the test for native title clearer (it’s pretty difficult to read the Mabo case).

Law Reform

MECHANISMS of reform

Courts

Important High Court cases have included:

The Work Choices CaseGave more power to the federal government on workplace relations

Roach v Electoral CommissionerInterpreted the Constitution to mean that there is a right to vote (even for some

prisoners)

Australian Capital Television v CommonwealthFreedom of political communication allowed by the media

Mabo v Queensland (No. 2)Native title

In the case of Mabo v Queensland (No. 2), the parliament passed the Native Title Act 1993 the next year to create the Native Title Tribunal and make the test for native title clearer (it’s pretty difficult to read the Mabo case).

Law Reform

MECHANISMS of reform

Parliaments

These are our MAIN law makers (which makes sense, because we vote for them, and can remove them if we haven’t approved of the laws they’ve passed).

A parliament reforms the law by passing legislation (statute laws).

PROBLEM: Politicians want to get elected/re-elected, so a lot of the changes recommended by other groups may not be a good idea for the government to bring in.e.g. The proposed poker machines changes (which would have caused Labor to lose an election)

Most of the reforms made by the government reflect their political policies. These policies can change as the Party decides though.e.g. the Labor government lifting the Australian ban on exports of uranium to India in 2011

NOTICE: You don’t put an ‘s’ at the end of ‘legislation’. The plural is the same as the singular.

There’s NO SUCH WORD AS ‘LEGISLATIONS’

It sometimes helps to say “A piece of legislation” or “Pieces of legislation”, so you can tell when you’re using the plural.

Law Reform

MECHANISMS of reform

Parliaments

Parliament usually doesn’t make a BRAND NEW law if there’s already one there that just needs fixing.

Parliament often only needs to pass an amendment to the current law.

e.g. We have an Act that covers crimes in NSW.

It’s called the Crimes Act (NSW). But it was passed in 1900 (the Crimes Act 1900 (NSW)).

Now parliament wants to add some sections. So it passes the Crimes Amendment (Criminal Organisations

Control) Act 2012.

An amendment might only be a page or two long, it just says things like “In s.171, the penalty should change from 20 years to 25 years imprisonment”

Law Reform

MECHANISMS of reform

Parliaments

+ORIGINAL

AMENDMENT

Law Reform

MECHANISMS of reform

Parliaments

= CONSOLIDATED

(the current version)

Law Reform

MECHANISMS of reform

Parliaments

EXAMPLE: Dealing with “bikie gangs”… (HSC ‘Crime’ topic)

Anthony Zervas was murdered at Sydney Airport in 2009.

It freaked people out.

The media pushed the government to make drastic changes to the law (despite the fact that murdering people at the airport was already illegal)

Law Reform

MECHANISMS of reform

Parliaments

EXAMPLE: Dealing with “bikie gangs”… (HSC ‘Crime’ topic)

Because the murder had something to do with bikie gangs (the guy who was convicted was a bikie, as well as the victim’s brother), the NSW

government focused on bikie gangs when it came to reforming the law.

So parliament passed the Crimes (Criminal Organisations Control) Act 2009 (NSW)

This law allowed ANY group (not just bikie gangs, or gangs in general) to be banned and its members put in jail for seeing each other after the ban. It only took 3 people to ban an entire organisation – the Police

Commissioner, A-G, and ONE SINGLE JUDGE, who didn’t even have to give REASONS for WHY they were banned!!!

Law Reform

MECHANISMS of reform

Parliaments

EXAMPLE: Dealing with “bikie gangs”… (HSC ‘Crime’ topic)

Because the murder had something to do with bikie gangs (the guy who was convicted was a bikie, as well as the victim’s brother), the NSW

government focused on bikie gangs when it came to reforming the law.

So parliament passed the Crimes (Criminal Organisations Control) Act 2009 (NSW)

Some laws take months to debate and change (‘amend’) and fix and vote on.

This law was announced, written and passed through both Houses of the NSW Parliament in one week due to the public and media outrage.

Law Reform

MECHANISMS of reform

Parliaments

EXAMPLE: Dealing with “bikie gangs”… (HSC ‘Crime’ topic)

BUT, a member of the Hells Angels challenged the law in the High Court and WON! (Wainohu v NSW (2011)).

After being overturned by the High Court, the NSW government tinkered with the law and came up with a new law that is basically the

same (but won’t be overturned by the High Court).

Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW)AKA: ‘The Consorting Law’

Law Reform

MECHANISMS of reform

Parliaments

EXAMPLE: Dealing with “gangs”… (HSC ‘Crime’ topic)

7:30 Report (2012)

“Inverell man Charlie Foster, 21, who was born with an intellectual disability and cannot read or write, was sentenced to between 9 and 12 months' jail a fortnight ago for a series of shopping trips and walks with three friends who have prior convictions”.

Law Reform

MECHANISMS of reform

Parliaments

EXAMPLE: Dealing with “gangs”… (HSC ‘Crime’ topic)

His conviction was eventually overturned, but the law itself is STILL IN PLACE!

Law Reform

MECHANISMS of reform

United Nations

The United Nations (UN) has been able to encourage international support for treaties/conventions.

e.g. The International Covenant on Civil and Political Rights has 167 signatory countries.

As more countries agree to ratify these conventions, they will also look to reform their own DOMESTIC laws to follow the agreement they have signed.

e.g. Removing discriminatory sections of Acts to better protect the human rights of their people.

Law Reform

MECHANISMS of reform

United Nations

The United Nations has had serious difficulty in reforming the law because of:

- A lack of real commitment by some countriese.g. The US refusing to sign the Rome Statute (to allow Americans to be tried by the International Criminal Court), AND encouraging other countries not to be part of it either.

- The massive difficulty in getting countries to agree (a lack of ‘consensus’)

e.g. The United Nations still has NO DEFINITION OF ‘Terrorism’ because countries can’t agree on the difference between “terrorists” and “freedom fighters”. – One Man’s Freedom Fighter… can we ever define terrorism? (The Conversation (2013)

- A history of failurese.g. They did not prevent, or even stop, the Rwandan genocide in 1994

Law Reform

MECHANISMS of reform

Intergovernmental organisations

(IGOs)

Intergovernmental Organisations (IGOs) are organisations that have sovereign states (individual countries) as members.

e.g. United Nations, the European Union and the World Trade Organisation.

The ‘member states’ have certain common goals. e.g. Increasing trade between member

nations e.g. Resolving conflicts between member

nations

Intergovernmental organisations have become increasingly important.

Pronounce it: INTER-GOVERN-MENTAL

Law Reform

MECHANISMS of reform

Intergovernmental organisations

(IGOs)

They are able to:- Encourage cooperation between states- Provide a forum for countries to resolves disputes without violence

e.g. the European Court of Justice- Create consistency across countries in law reform

e.g. The European Parliament e.g. The European Court of Human Rights