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Not everyone in a community is going to agree with or accept every law that is passed. Individuals, groups or communities may have key concerns about particular pieces of legislation or court decisions. The law is not static; it can and does change. Often the law is changed by Parliament passing new legislation. Parliament may decide to change the law for one of many reasons: the election of a government with a different approach; in response to perceived community concerns; in response to lobbying from an industry or community group, or following a report from an inquiry or a law reform commission. Sometimes the law is changed by the decisions of courts, especially the High Court of Australia. Australian law can also be challenged if it breaches basic international human rights standards.

Working to change the law takes knowledge, skills and often a great deal of time, patience and sometimes money. For example, it may involve taking a case to court, lobbying local members of parliament, community campaigning or submission writing. This section is a guide to how the law can be changed by the individual, community or particular interest groups.

Advocacy

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Put simply, advocacy involves promoting the interests of an individual, group or community of people, usually with a particular goal in mind. Anyone can be an advocate. Some groups who engage in advocacy include environment groups, women's groups and trade unions. Environment groups advocate for environmental protection - whether it is to save a patch of rainforest or protect a species from extinction. This may involve lobbying Parliament to enact legislation to stop logging or writing submissions to government calling for particular action. Women's groups advocate for equality of opportunities. Consistent advocacy by women in Australia during the early 1900's saw women get the right to vote in South Australia for the first time in 1910. Trade unions continue to lobby to protect workers' rights and entitlements by representing employees in disputes and providing input into Commonwealth and Territory legislation affecting workers. There are a range of industry and consumer groups that advocate for their clients. Some NT examples include the Chamber of Commerce, the Real Estate Institute and the Amateur Fishing Association NT.

Often individuals become advocates following a personal experience of discrimination or injustice. When this is the case, the process of arguing, or advocating, for their rights can be an empowering process. Empowerment is an important principle underpinning much of the work done by community legal educators who work to educate people about the law. There is a range of tools - legal and non-legal - available for people who wish to become empowered and advocate on a particular issue. This Law Handbook is designed to be one legal tool to help people know their rights and take action where their rights have been ignored. Legal agencies and government departments, amongst others, provide education programs and information brochures to increase the community's legal knowledge. Non-legal advocacy tools include the media, the internet and grass roots community networks. In this technological era the internet is increasingly being used as a tool by lobbyists in their campaigns. There is a number of publications that provide information on how to campaign effectively and how to lobby for change (see Useful publications ).

Members of the legal community also act as advocates. In court they advocate for their clients by arguing their case before the judge or magistrate. To be a good advocate for their clients in court, a lawyer must be prepared, disciplined, skilled and able to communicate on behalf of the client effectively. Some court cases may put a particular issue on the public and political agenda. A lawyer may seek compensation for a client who has been disadvantaged or discriminated against. If successful, the case can have implications for the broader community. A lawyer may take a company or department to court for breaking the law - perhaps by exceeding pollution limits or for producing a product that is harmful to the user's health.

Class actions attract a lot of public and media interest, often due to the broader social implications of the legal action. Class actions are when individuals group together for a legal challenge. Famous class actions in Australia include the case for compensation from Esso following the 1998 gas works explosion at the Longford gas plant which killed two workers and disrupted gas supplies, and the case against BHP and the OK Tedi mine in Papua New Guinea who were held responsible for polluting and destroying the traditional lifestyles of nearby villagers.

There are many legal organisations that actively engage in social change and advocacy work beyond representing clients. In the NT the community legal services are regularly involved in advocating for changes to the law. For example Darwin Community Legal Service was instrumental in working for gay and lesbian law reform. Following lobbying by the service the NT government passed the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003, which reformed the criminal, discrimination and a range of other laws to accord people in same sex relationships the same rights under the law as married and de facto couples. Young men under the age of 16 years were also given the same protection as young girls under the criminal law from sexual abuse. This Act also reformed the law so that young indigenous girls under the age of 16 years were accorded the same protection under the criminal law from sexual abuse. Prior to the amendment the criminal law excused men from responsibility in cases where they had sex with a young girl under the age of 16 years if they could establish they had a traditional Aboriginal marriage relationship with the young girl. At the same time the new law also gave full recognition to marriages under Aboriginal customary or traditional law, so that people in those relationships have the same rights as people in other marriages and de facto relationships.

Other legal organisations engage in advocacy to change the law including indigenous legal services and women's legal services. They may do this by participating in formal processes with government (for example where the government reviews existing legislation), or by identifying injustices and raising the need for law reform with the community and governments. Some community legal centres are specialised in a particular area of law - immigration, veterans' affairs, women's rights, children's rights, consumer rights and so on. On a national level, the Public Interest Advocacy Centre provides advocacy training, legal education and representation to 'public interest' causes (see Contact points ). All these organisations can be contacted and may be able to provide free legal assistance or advice about challenging or changing the law.

Where to start

It is important to note the law, or taking legal action, may not always be the most suitable or appropriate vehicle for taking action over a particular issue of perceived injustice. Sometimes other non-legal strategies such as lobbying the relevant authority to change its administrative procedures or the way it applies the law might be more effective. Writing to government ministers or politicians, letter writing or media campaigning are also useful and combining legal and non-legal action may be the most effective method of achieving the end result.

In order to work out the best way forward, it is important to clearly define what the concern is and the social and political context for that issue. Is it due to a problem with the implementation of law or policy, or is it because of a bad law? What needs to be changed and who has the power to make the change? These are essential questions to ask to determine the appropriate path ahead. Legal advice may be helpful to clarify the answer to these questions. Community legal centres and legal aid offices may be able to provide initial legal assistance for free. A lawyer should be able to provide their clients with information about what impact non-legal strategies, such as media or letter writing, may have on any impending legal action. Lawyers are not experts in non-legal strategies and may have a vested interest in encouraging legal action so it is worth researching into other options before progressing with any actions.

How laws change

By courts

Generally speaking the ability of the courts to change the law is limited. Although judges are normally bound by the rules set out in previous cases, courts, especially the High Court, can occasionally develop or even radically transform the law in a particular area in certain circumstances. This is especially so where a novel situation arises or the existing law is widely perceived as no longer fair or relevant to the times.

However, before a court can decide a new principle of law or modify an old one, there must be a dispute between parties. A problem that raises new legal issues can be expensive to bring before the courts. Consequently such legal action has usually been out of the reach of most people. However, over the past 20 years the establishment of legal aid organisations, such as the NT Legal Aid Commission, community legal services and indigenous legal services, has gone some way towards addressing this inequity. These legal aid organisations can assist people with difficult legal problems which might require the law to be changed or reinterpreted. In certain circumstances these organisations can assist with the running of such court cases (see Legal Aid ).

Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562 is one of the most celebrated examples of how a court case changed the law. The facts of the case were as follows: a woman bought a bottle of ginger beer from a shop and gave it to her friend who drank it. Unfortunately, a snail had crawled into the bottle in the factory. By the time the ginger beer had reached its consumer, the snail had decomposed. The person who drank the ginger beer had not paid for it and therefore had no contract with the manufacturer or supplier. However, rather than allow the manufacturer to get away with selling bottles of ginger beer with decomposing snails in them, the court created the law of negligence.

A more recent example is the High Court decision in Mabo v Queensland (No 2) (see Where does the law come from? ).

Legislation

Legislation is made by Parliament, so changing it involves persuading politicians to take action. The process of influencing the attitudes of politicians is generally referred to as lobbying. However, the voice of one citizen carries little weight. Strength lies in numbers - politicians are more likely to listen to a group of people suggesting legislative change.

Perhaps the suffragist movement earlier this century is the most inspiring example of effective lobbying. Through a long campaign of public meetings and protests and some individual acts of bravery, the movement persuaded many male-dominated Parliaments around the world to extend the right to vote to women.

Another example of effective lobbying can be seen in the successful protests that halted construction on the Franklin River Dam in Tasmania. Lobbying by environmental and community groups prompted the Federal Government to pass legislation that prevented the Tasmanian Hydro Electric Commission from building the dam.

Not all lobbying and action is effective, and in some areas of the law some groups might lobby for changes that are opposed by other groups in the community. One recent example of this are changes to the Family Law Act 1975 made by the Australian Government in 2006 that require a consideration of shared care of children in disputes about the care of children.

Most governments are conscious of the need to review and amend law. Parliamentary committees, law reform commissions and government departments are regularly assigned the task of examining legislation to decide if amendments need to be made, or to consider whether new laws are needed to address emerging problems or issues. Most States and Territories have some kind of law reform body. In the NT it is called the Law Reform Committee (see Contact points); the Australian Law Reform Commission investigates questions referred to it by the Federal Attorney-General.

Bodies charged with responsibility for law reform, or the review of laws, usually provide opportunities for members of the public to participate in consultations and to give evidence or information about what changes might need to be made to the law. Particularly valuable in this process is evidence provided by community groups that have first-hand experience of the problems lay people encounter with the law. These bodies collate information from their investigations and consultations, consider similar laws or new initiatives in other countries or States and Territories, and make recommendations to governments for reform. It is then up to the relevant government whether to turn those recommendations into law. Information about opportunities to participate in these processes is easily found on government and law reform commission websites.

All members of the public can have input into the development of new legislation at both Territory and Federal Government levels. Mechanisms to achieve this include:
  • contacting the local member of Parliament (MP). Every resident of the NT has three representatives in government: a member of the NT Legislative Assembly (MLA); a member of the Federal House of Representatives (MHR), and a member of the Federal Senate (senator). As elected representatives, these people have a duty to respond to the requests of their constituents (the people in their electorate). Each local member has an office in the electorate; details are listed in the NT Government section of the White Pages. A resident who wishes to make a point regarding the activities or proposals of the government is welcome to visit an MP's office to discuss their opinions or to telephone or write to them. Letters may be addressed to the MP at their electoral office or to Parliament House (either in Canberra or Darwin, as appropriate). Letters addressed to Federal Parliament do not require a stamp.
  • contacting the responsible government Minister. It is possible for members of the public to write to a relevant NT or Federal Government Minister to raise an issue, idea or concern. Such letters can be written even if the government is not in the process of drafting a piece of legislation, and can be used to encourage the government to tackle a new issue. Such letters generally receive a written response from the Minister. It is worth noting that few people ever write to their local members or to government Ministers, and that each letter they receive is considered to represent the feelings of many other people in the electorate who feel strongly about the subject but did not bother to write.
  • having input into community consultations or inquiries or reviews about laws. Notices are published in the daily newspapers, as well as on websites, calling for submissions or input from the community. While this may sound daunting it is not necessary to prepare a large submission filled with complex arguments. A simple, one page letter stating an opinion or putting forward any concerns or ideas may be sufficient. Some inquiries and consultations also hold hearings at which members of the public and representatives of community organisations can present their opinions in person or by telephone.

Using international law to challenge Australian law

International human rights instruments provide important standards for the development of new laws, or to criticise existing domestic legislation and policy. International human rights standards are not guaranteed unless they are implemented in domestic law.

Both Victoria and the ACT introduced specific laws about how human rights, initially recognised under international law, are to be recognised in their domestic law ( Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Vic)). Generally speaking, the approach of these Acts is to articulate basic human rights (such as the right to life); and how Parliament should take those rights into account when making laws. The Victorian Act sets out how Parliament must consider all future draft legislation to see whether it is compatible with human rights.

There is also Federal legislation that relates to the human rights treaties that Australia has signed. Some examples of these pieces of legislation (with the human rights instruments they relate to in parentheses) include:
  • Racial Discrimination Act 1975 (The Convention on the Elimination of All Forms of Racial Discrimination)
  • Sex Discrimination Act 1984 (The Convention on the Elimination of all Forms of Discrimination Against Women)
  • Human Rights Commission Act 1981 and Human Rights and Equal Opportunities Commission Act 1986 (International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Declaration on the Rights of Mentally Retarded Persons, Declaration on the Rights of Disabled Persons, ILO Convention Concerning Discrimination in Respect of Employment and Occupation)
  • Crimes (Torture) Act 1988 (Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment)
  • Disability Discrimination Act 1992 (ILO Convention Concerning Discrimination in Respect of Employment and Occupation, International Covenant on Civil and Political Rights)
  • Human Rights (Sexual Conduct) Act 1994 (International Covenant on Civil and Political Rights).
Being aware of the international human rights treaties to which Australia is party can be useful to illustrate and highlight injustices. These treaties cover a broad range of rights. Drawing on international focus to an Australian domestic human rights issue can have a powerful effect on persuading governments to take action by, for example, changing unfair laws or introducing new ones.

Some of the international treaties Australia is a party to include:
  • the Universal Declaration of Human Rights
  • the International Covenant on Civil and Political Rights
  • the International Covenant on Economic, Social and Cultural Rights.
These three instruments are often referred to as the 'International Bill of Human Rights'. Rights referred to in these instruments include:
  • freedom from torture or cruel, inhuman or degrading treatment or punishment
  • equality before the law
  • freedom from arbitrary arrest, detention or exile
  • an adequate standard of living
  • measures to protect the rights of children.
As well as the instruments measured above, Australia is a party to the following: A list of international human rights issues as well as the text of several international human rights documents can be found at http://www.ohchr.org. To investigate if Australia is a signatory to a treaty, go to http://www.dfat.gov.au/treaties/index.html.

Individuals who have been unsuccessful in challenging injustice or discrimination under Territory, State or Commonwealth laws might also be able to make a complaint under international human rights law to specialist United Nations committees that have been established to determine complaints under certain treaties. Australia has agreed that complaints can be made about its obligations under the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.

There are quite strict rules about who can lodge a complaint to these committees. Very few complaints made are successful. A favourable finding by a committee is not binding on Australian governments; however, it can be very persuasive. One example of a successful complaint made by an Australian under the International Covenant on Civil and Political Rights is one made by Nicholas Toonen, which led to changes to the criminal law in Tasmania. In this complaint the Human Rights Committee found that provisions in the Tasmanian Criminal Code, that criminalised sexual conduct between men, violated the right to privacy of Mr Toonen. The Committee also held that the appropriate remedy for the violation was changes to the Tasmanian Criminal Code.

Bodies such as the Office of the United Nations High Commissioner for Human Rights also carry out other types of inquiries and investigations into breaches of human rights. One example is the work undertaken by special rapporteurs who are appointed to investigate and report on particular issues. In 2006 the UN Special Rapporteur on adequate housing visited Australia, including Darwin, and engaged in meetings and consultations with community groups concerned about housing.

More information about the committees, the complaints process and work of special rapporteurs can be obtained from the Office of the United Nations High Commissioner for Human Rights website located at http://www.ohchr. See also Discrimination and human rights.

Useful publications

  • Human Rights in Australia: Treaties, Statutes and Cases, Flynn M. (Butterworths, 2003).
  • Lobbying Kit, Villamanta Legal Service's Lobbying Kit (March 1999)
  • Reinventing Australia, Mackay H. (Angus and Robertson, 1993)
  • Working the System, Duffy, B., second edition (Public Interest Advocacy Centre, 2003).

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