Law Refrom Report PDF

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2021 assignment on law reform questions...

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1. What are the advantages and disadvantages of a federal system of government? How has the COVID-19 pandemic highlighted the advantages and challenges of federalism? (10 marks)

Federalism is a form of government utilised in Australia that permits for more than one body to exercise authority. This implies that there is a federal government that is above all others, followed by lesser, localised administrations that are in charge of local and regional concerns. This form of government offers numerous benefits for Australia, but also has significant drawbacks.

The advantages of a federalist government, some include protecting us from tyranny, separating power, increasing citizen participation, and increasing effectiveness through easier access to resources and security. By having separation between the states it allows for the choice of whether or not to obey a proposed new legislation, in addition to allowing Australians to vote for different parties at the state and national levels. Lastly, by having a federal system it helps to ensure that government remains close to the people and provide a better understanding for the needs and demands of locals.

There are also disadvantages to a federalist government as each state has their own policies, curriculums etc. it can lead to contradictory, overlapping or inefficient policies across the country sometimes leading to inequality between states. In Australia, the federal system’s goal is to encourage cooperation and coordination, but this does not always happen.

As of late the COVID-19 pandemic has highlighted the use of federalism in times of crisis. Australia's reaction to COVID-19 has been led by a newly created National Cabinet which guarantees a united and coordinated response across the country. This has proven to be a rather effective intergovernmental platform for delivering much-needed coordinated crisis leadership. In addition, the government has established a COVID-19 National Response and National Disaster Risk Reduction Partnerships. These are agreements established by the federal government, states, and territories to consider and implement steps to deal with the impacts of COVID-19 and future natural disasters.

Most of the responses implemented for the COVID-19 outbreak in Australia is legally supported under the Biosecurity Act 2015. (Cth). Following the declaration of a human biosecurity emergency, the Minister of Health was given extraordinary powers to prevent and limit the virus's spread in Australia. This involved prohibiting individuals from moving within and between international regions. Similarly, all state governments have enacted emergency legislation to activate extensive executive powers in response to the increasing threat posed by COVID-19 by restricting travel and association through hard border closures and lockdowns.

However, this notion has created considerable confusion. At the state and territory levels, there has been a rapid implementation of changing governmental directives and orders under public health and emergency laws, these impose limitations that can differ in depth, severity, and consequences throughout Australia. These measures that have been put in place due to COVID-19 are only temporary and lasting until the risk is relieved.

To combat the unprecedented threat to the nation's economy, all the Federal, State and Territory governments have devised significant stimulus programmes to prevent economic disaster. A $130 billion Job Keeper Payment has been proposed by the federal government to offer pay subsidies to businesses that have been substantially impacted by the pandemic.

In conclusion, the governance through a the new National Cabinet has allowed for valuable coordination, uniformity and freedom to the approaches that each States and Territories implement. Despite the positives, it also provides issues surrounding the ability to limit our freedom and mobility and blurring of rules between different states.

2. What is the difference between representative and responsible government? To what extent does the current federal Parliament represent the diversity of Australia’s people? (10 marks)

A representative and responsible government highlights how an effective election should be handled and the importance of understanding how elections impact our daily lives. To be a representative government the Parliament must be representative of the people within that country. Central to a representative government is the process by which the people elect representatives that best suit their wants and needs into the Houses of Parliament. By getting Australia to vote for a government, it helps to ensure that the government represents its citizens. The government that is elected then must act on the behalf of the people to ensure that it is always reflecting their interests and needs. Maintaining a representative government, Australia holds elections every three years, so if members of Parliament are not representing the views of the wider population, they are likely not to be re-elected.

However, a responsible government is a political principle that states the government must be accountable for their actions and answerable to the Parliament at any time. This enables ministers to be subject to continual questioning and subject to removal from Parliament if their support and trust has been lost. To keep the government responsible in Australia, all Parliamentary sessions are open to the public, allow for public participation, are aired, and are transcribed both digitally and physically so that anybody can view them at any time. Along with secondary measures like the media, Australia is able to hold the government accountable for their actions in public and responsible for making and amending laws.

In Australia, the government is not very well representative of our multicultural nation, with fewer than 23 out of the 226 current federal members having a non-English speaking background (Tasevski, 2018). Even though almost 50 per cent of Australians stated they or their parents were born overseas in the 2016 census. As previously mentioned, a representative government must represent the opinions and aspirations of all people in society; yet, it does not fully represent Australia's diversity. This demonstrates Australia's systemic inequality by poorly representing minority groups in Parliament. Without diversity in the Australian government there is no understanding of the experiences and inequality that diverse groups face. As of 2019 there are currently 81 women, 22 born overseas, 9 with a non-European parent and 5 Indigenous Australians within Parliament.

By introducing more diverse leaders into Parliament and the public eye, minority groups are encouraged to get more involved in Australian politics and society as a whole, as they feel more understood and appreciated at a federal level. Without change, Australia’s democratic system will become less representative as the country becomes increasingly more diverse. Currently, the diversity of our nation is being severely underrepresented due to the continued reinforcement by the government of historical misconceptions of majority white male politicians.

3. In August 2021, the Surveillance Legislation Amendment (Identify and Disrupt) Act (Cth) passed the federal Parliament. What powers did this law create, and why are the powers controversial? (10 marks)

The Surveillance Legislation Amendment (Identify and Disrupt) Act was an amendment to the Surveillance Devices Act of 2004 and the Telecommunications (Interception and Access) Act of 1979 that permitted data distribution warrants, allowing the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission to conduct investigations (ACIC). The Act gave the AFP and ACIC access to devices and networks used to assist in illegal activity, allowing them to gather intelligence on criminal activities. In 2021, a new amendment to the Surveillance Legislation was adopted to allow the AFP to effectively combat cyber-enabled severe and organised crime, including online child exploitation. The Bill introduced changes to allow; “a data disruption warrant, which allows the AFP and the ACIC to access data on one or more computers and perform disruption activities in order to prevent criminal activity; a network activity warrant, which allows the AFP and the ACIC to collect intelligence on criminal networks operating online; an account takeover warrant, which allows the AFP and the ACIC to take over a person's account to gather information; and minor amendments to the controlled operations regime, to ensure controlled operations can be conducted effectively in the online environment” (Parliament of Australia, 2020).

This new Bill, however, is very controversial, since many people think that the increased monitoring capabilities infringe on people's privacy and freedom. Critics of the Bill argue that these capabilities may be used to target political activists or even ordinary Australian citizens' civil freedoms. Despite the government's claim that the additional powers

were established exclusively for situations of serious wrongdoing and concern, the Bill itself is so broad that it goes beyond justification. Due to the complexity of internet crime, it is difficult for law enforcement to identify and deter illegal behaviour, therefore this Bill assists in that regard. However, as surveillance levels increase, our democracy is impacted particularly concerning journalists and whistle-blowers who are vital for democracy to function efficiently.

Some major concerns for activist and critics are in regards to; Police and intelligence agencies also have the ability to instal malware on target computers and even entire computer networks and modify files this introduces the possibility of planting and manipulating evidence that can be used in a prosecution even though the warrants are claimed not to be for the purpose of evidence-gathering; Trying to stop specific behaviours from occurring before they occur, similar to predictive policing which is often scrutinised due to questions surrounding accuracy and sometimes rooted in discrimination; This Bill also implies that it has the potential to apprehend other criminal activities like animal rights activists, who may employ concealed cameras to collect film, despite not being a ‘severe crime’ and; these warrants may provide police and intelligence services access to anyone's communications, even if they are only slightly related to someone who is being investigated.

Therefore, even though the Bill was ultimately intended for good and to increase the clearance rate of internet crime in Australia there were many questions surrounding the freedoms and rights that citizens have. However, there is not enough evidence to justify or criticise the need and use of these powers and how it impacts the privacy of individuals in Australia.

4. In March 2021, the Queensland government established the Women’s Safety and Justice Taskforce. Among other issues, the Taskforce will examine whether the Queensland Parliament should enact a new domestic violence offence for Does Queensland need new laws against coercive control, and how would this new offence help to improve safety and justice for Australian women? (10 marks)

Coercive control is a behaviour that is used to dominate and control another person, generally an intimate partner, but it can also include other family members. Coercive control is a common element of domestic and family violence, and it encompasses a wide range of methods and behaviours. The offender is continuously demanding compliance or control over the other person's thoughts, body, and movements, instilling fear and making it very difficult for them to leave the relationship.

Through increased interest and the concerning number of deaths of women in Australia during 2020, a public conversation started surrounding coercive control and some groups have even started lobbying for all Australian States and Territories to change legislation and criminalise coercive control. In March 2021, the QLD government created The Women’s Safety and Justice Taskforce, which is an independent and consultative group that examines; coercive control, review the need to make it a new offence under domestic violence and look into women's overall experience with the criminal justice system. The Taskforce’s duty is to make recommendations for changes to the Attorney-General, Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence.

In its initial discussion paper, the Taskforce outlined thirteen reform ideas for how to legislation against coercive control in order to better safeguard women in society. Some of the recommendations they made include the Queensland Government providing extensive education on coercive control, investing resources to ensure that all frontline responders and the Criminal Justice System are trained to respond appropriately to domestic violence and coercive control, and increasing funding for services that meet the needs of victims, particularly in rural areas. However, it also suggests that the Government provides perpetrators with access to evidence-based online programmes, interventions and information in ways that are culturally appropriate and safe.

After hearing from experts and examining recommendations that were submitted to the Attorney-General who overall backed all the recommendations, but just as the women’s safety sector recognised with such a complex law, careful consideration, training and public education were required to have the desired outcome. This led to Premier Annastacia Palaszczuk confirming that QLD is committed to criminalising coercive control in early 2022.

Despite the complex nature of trying to define and enact legislation surrounding coercive control, the new offence will stop domestic violence being seen as a single occurrence, rather more so a pattern of abuse. With “one in five women in Australia having experienced sexual violence, and on average one woman a week being murdered by her current or former partner” (Australian Institute of Health and Welfare, 2018) it has become increasingly more urgent to enhance the safety of women within the home. Legislating against coercive control is also important as it highlights the non-physical element of abuse

and further validates these experiences for the victims. Lastly, based on the evidence that 99% of perpetrators who killed their partners used coercive control during their relationship (Australian Institute of Health and Welfare, 2018), meaning this new law may also act as an intervention due to it being a likely precursor for more violent behaviour and homicide.

Just like there are advantages, there are also many critics that disagree with the new Bill. The main concerns around this new legislation come from many Indigenous women, despite them experiencing violence at 3.1 times the rate of non-Indigenous women and being 35 times more likely to experience domestic and family violence (Parliament of Australia, 2014). These women argue that this new law will only provide police with more power, which also gives them more opportunities to penalise victims and increase, the already high incarceration rates for Indigenous people. Not to mention, the courts would have to rely heavily on victims' willingness to involve the police in order for this law to be effective, even though victims are usually hesitant to do so when it comes to abuse because they are frightened of not being believed, that if police interfere the violence will intensify, or that they would be blamed for the trauma they have suffered. Lastly, most of the acts associated with coercive control are not considered criminal and rarely leave evidence or have witnesses that would typically help lead to a conviction. Therefore, this law could provide a false sense of security to victims, when it would really cause more harm than good.

In conclusion, it is hard to tell whether the advantages outweigh the disadvantages but overall if it helps provide some safety for women at risk, it is ultimately a beneficial law.

5. Based on the Uluru Statement from the Heart, there have been ongoing calls to establish an Indigenous Voice to the Australian federal Parliament. What would an Indigenous Voice to Parliament involve, and how would it be achieved? (10 marks)

In 2017, the National Constitutional Convention gathered together to make the Uluru Statement from the Heart. This statement expresses that the Aboriginal and Torres Strait Islander people were the first sovereign nations on Australia and its surrounding islands that were run entirely off their own laws and customs that date back to 60,000 years ago. Sovereignty relates to the ancestral connection between the land and Indigenous peoples which has be ongoing since the beginning, however this sovereignty now co-exists with the Crown. Through the statement it urges Parliament that through constitutional change and structural reform Indigenous peoples sovereignty can be better expressed in Australian society. Therefore, the Uluru Statement from the Heart calls that Australia establishes a First Nations Voice within Parliament and the Constitution so that we can ‘come together after a struggle’ (Makarrata) capturing the goal for a fairer and more truthful relationship that is based on justice and self-determination.

Currently, the proposal from the Indigenous Minister, Ken Wyatt has enabled two Aboriginal leaders to create an Indigenous Advisory Board, this would give Aboriginal and Torres Strait Islander people a say when the government chooses to make decisions and legislation that will affect them. However, the pursuit of enshrining a First Nations voice in the Constitution has only resulted in the submission of an interim report to the Australian Government based on Indigenous Voice, meaning that their 'Voice' is not protected under the Constitution.. Their proposal is the Indigenous Voice could be made up of two parts; Local and Regional Voices and a National Voice. By having this enshrined in the constitution the

Federal Government would be obligated to consult ‘the Indigenous voice’ when creating laws based race, native title and the racial discrimination of Indigenous peoples even though they would have no powers to overturn or prevent any policies. Due to Aboriginal and Torres Strait Islander people only making up 3.3% of the Australian population (Australian Institute of Welfare, 2021) it is difficult for them to be properly heard when it comes to federal matters. For this reason, it is important that First Nations people are given the opportunity to have a say in laws, policies and programs that impact them, making the Australian Parliament more effective.

By making the ‘Voice’ constitutional enshrined means that the core foundation would be added into the Constitution and a power would also be put in place to enable the Commonwealth to determine composition, powers and the procedures of legislation. To achieve constitutional enshrinement a referendum would be required, this would provide Australians with an understanding of what the ‘Voice’ would do and how it would positively impact the Indigenous peoples. However, a reform will only take effect if a referendum obtains the approval of a majority of voters in a majority of states. Since 1901, 44 referendums have been conducted, with just 8 of them succeeding. But without constitutional enshrinement the First Nations peoples Voice risks being ignored or even abolished by Parliament, so to perform the role intended for the ‘Voice’ it needs the stability, certainty and flexibility that the Constitution ensures.

There is no official declaration regarding the form the 'Voice' will take, but the Interim Report suggests two basic types. Both models provide a gender balance among the 16 to 18 Aboriginal and Torres Strait Islander peoples t...