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Table of Contents

LEGALDATE

Volume 33, Issue 4, 2021

LEGALDATE

Volume 33, Issue 4, 2021

REFORMING THE LAW

David Hamper – Deputy Principal Malak Fahd Islamic School

Law reform is an essential part of the legal process. Laws themselves are a reflection of the society that creates them. Values and morals of community members influence laws. Advances in technology are another crucial driver of law reform as are extraordinary events, such as those we have experienced during the COVID-19 pandemic. 

Law reform in Australia

As a federation, both the Commonwealth Parliament and state and territory parliaments make laws, consequently, law reform happens at both levels of parliaments. Law reform commissions are a key part of the law reform process. The Australian Law Reform Commission (ALRC), established in 1975:

‘…undertakes research and provides recommendations to reform the law on topics selected by the Attorney-General of Australia. ALRC recommendations do not automatically become law, however over 85 per cent of ALRC reports have been either substantially or partially implemented…’ (ALRC, 2021). 

At state and territory levels similar law reform commissions operate and provide advice to governments on aspects of the law that are no longer fit for purpose or aspects of society that require legislative intervention. Such Commissions play a key role in our legal system, in fact as long ago as 1597 Sir Francis Bacon, who served as England’s Attorney-General and Lord Chamberlain called for the establishment of a ‘…body of commissioners to investigate laws and report to the Parliament’ (Neve, 2001) .

In addition to the law reform commissions there are many other sources of law reform in Australia. At a formal level these can include the recommendations of; Royal Commissions, Coronial inquiries, parliamentary inquiries and other statutory bodies, such as the Family Law Council.

Informal methods, such as community action groups, the media and other non-governmental organisations may have the ability to influence parliaments to reform aspects of the law. This has been notable in some recent areas of law reform around domestic violence, which began with significant community demands for changes. 

With a common law legal system the courts also have an ability to influence law reform in Australia. This is often referred to as judicial activism. Generally reserved for superior courts, in particular the High Court, judicial activism is often controversial. Some justices have argued that their sole role is to apply the law in deciding cases. Others have argued that in applying the law justices need to interpret, and in some cases, reinterpret the law to ensure that its application achieves justice. In Australian law perhaps the best examples of this lie within the decisions that created the concept of Native Title, most notably the Mabo Case (Mabo v Queensland (No. 1) (1988) 166 CLR 186). The ruling of the High Court in this case had a dramatic impact on the law around land rights in Australia. 

Therefore, the courts can have a significant role to play in law reform in Australia, however, this role must not be overstated, it is not the primary role of the courts and it is not a key feature of their typical work.  This contrasts significantly with the United States Supreme Court, the highest court in the US. The US Supreme Court has emerged as a major agency of legal reform in the United States using their decisions to change public opinion, often in very controversial areas.

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Sources of reform

Changing social norms

An effective and ‘good’ law is one that reflects the society to which it applies. Laws should therefore reflect the social values, or norms, held by the community. Of course, these values are never uniform and can be swayed by an individual’s personal views, ethics and morals, but the law must aim to reflect those values that are widely held within the community – these are typically referred to as social norms.  Social norms are not static they change over time and for this reason laws must adjust and adapt. There are countless examples of this within our legal system. The considerable changes that have taken place in the area of family law demonstrate how changes in social norms impact on the nature and application of law. The famous British case Hyde v Hyde and Woodmansee [1866] LR 1 P&D 130, provides the foundation for much of the legal principles of modern family law and in particular the institution of marriage. In this case Lord Penzance outlined four fundamental elements to marriage. It must be:
  • between a man and woman
  • entered into voluntarily
  • to the exclusion of all others
  • for life.
The four elements established by Lord Penzance’s ruling would go onto to form the definition of marriage as outlined in the Marriage Act 1961 (Cwlth). They reflected very strongly the social norms held at the time. However, those social norms were to gradually change and, as a consequence, we have seen significant law reform in this area. For example, the notion that marriage would be for life was widely held for a long time and demonstrated the well-established social norm that divorce was not permissible. While many people still hold this view, there has been a change in the social norms (which reflect the majority of society) with respect to divorce. The Family Law Act 1975 (Cwlth) was a major reform of family law. A key part of this Act was the introduction of no-fault divorce. This reform dramatically changed the concept of marriage as developed by the Penzance ruling by removing the fourth element of the definition of marriage.  Similarly, because of changing social norms, the first element of the marriage definition that it is between a man and woman was changed. In this instance the Commonwealth Parliament passed an amendment, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cwlth), which took effect on 9 December 2017. This Act changed the definition of a marriage as being between two people, rather than a man and a woman and so in effect recognised the concept of same-sex marriage.  Law reform that is the result of changing social norms is often controversial. The reforms around same-sex marriage are a case in point. They came about after considerable public and indeed political debate. Similarly, the reforms created by the New South Wales Crimes Act 1900 (NSW) around abortion met with fierce opposition and equally vocal support. In October 2019, the NSW Parliament passed the Abortion Law Reform Act 2019 (NSW). This Act effectively amended the Crimes Act removing s.81-84 of the Act. These Sections of the Act provided for up to 10 years imprisonment for a person who undergoes an abortion (s.82) and up to 5 years imprisonment for a person who provides an abortion or the drugs or implements to undertake an abortion.  Since a ruling in October 1971 by Judge Levine (DCJ) in New South Wales District Court abortion had been effectively legalised in the state if the termination was conducted for ‘…any economic, social or medical ground or reason…’ and to avoid ‘…serious danger to pregnant woman’s life or to her physical or mental health’. This is a very broad and quite vague definition and effectively gives doctors very considerable discretion. However, as common law, the Levine judgement lacks the stability of statutory legislation and for many years there was pressure on the New South Wales Parliament to repeal the relevant clauses within the Crimes Act There was widespread support for this law reform in New South Wales. Twelve members of parliament, including the premier and the health minister, co-sponsored the bill. However, there was also significant opposition to the amendment. Religious leaders, including the Catholic Archbishop of Sydney and key figures in the Anglican and Greek Orthodox Churches made public their desire to delay or stop the legislation. Amongst the concerns raised by those opposed to the Bill was that it might allow people to selectively abort a foetus on gender or other characteristics. Proponents of the bill pointed to safeguards within the Act to mitigate such risks.   The passage of the Abortion Law Reform Act 2019 (NSW) brought NSW into line with all other Australian jurisdictions in effectively decriminalising abortion, however, both the South Australian and Western Australian criminal codes retain some provisions around terminations of pregnancy. Reforms around family law and reproductive rights highlight some key issues with law reform. Most notably that law reform based on changing social norms is always challenging because by definition social norms are those held by the majority but not necessarily all members of society. Opposition to reform will be a feature of law reform. The passage of the Abortion Law Reform Act 2019 (NSW) also highlights the fact that many people are unaware of the tenuous nature of some of the perceived rights of individuals. When the bill was first proposed many in the media and society at large expressed shock that abortion remained within the NSW Criminal Code, little understanding that the ‘right’ to an abortion was in fact granted through a common law ruling. The nature of the legal system itself is another area of significant recent reform in Australia. Double jeopardy is a cornerstone of the legal system in Australia. In simple terms the double jeopardy rule states that a person cannot be held criminally liable for the same offence twice. Hence a person who has been acquitted of a crime cannot be retried for the crime again. The rule is designed to protect the accused from an overzealous prosecution. The New South Wales Parliament has been exploring reform of the rule for some time. The Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW) was put to the NSW Parliament nearly two decades ago, but defeated. More recently the NSW Attorney-General led a case in the NSW Court of Criminal Appeal – Attorney General for New South Wales v XX (2018) NSWCCA 198. This case sought to have the Court set aside the double jeopardy rule and allow the retrial of an individual accused of a series of murders – the so-called Bowraville murders. The Court found that there was no reason to allow a retrial of XX. The High Court subsequently refused to grant special leave for them to hear an appeal from the decision. There continues to be very considerable debate within legal circles, including within parliaments about reform of this area of law.  The challenges around reform of double jeopardy laws highlight the difficulty of making legal reforms, particularly where those reforms relate to areas of long-standing legal tradition and principle. A similar challenge arose in Victoria around changes to jury empanelment and peremptory challenges to jury members. The Victorian Law Reform Commission (VLRC) spent considerable time investigating this issue of challenges. Since 1993 the prosecution and the defence each has had the opportunity to challenge six jurors for any reason. In 2018 the VLRC recommended that the number of challenges be reduced to three in order to make jury trials more efficient and to reduce the number of community members needed for jury duty.  This recommendation has been accepted and has now been tabled in the Victorian Parliament for consideration (Victorian Law Reform Commission, 2021) but there continues to be considerable debate amongst legal practitioners and politicians relating to this change.

Changing technology

Technology is a major driver of law reform. Advances in technology are likely to be rapid and are often sources of major disruption to the status quo. These advances are frequently beyond the realm of regulation and it is common for there be a legal void around new technologies. For this reason, the law is often out of step with technological changes and this requires regular law reform.  There are many examples of this from a wide range of legal areas. The Copyright Act 1968 (Cwlth) covers a body of law that protects the intellectual property rights of content generators. This Act was drafted in a media and content environment very different from the one that exists today. Hence there has been considerable reform of the Act in recent years to align it with contemporary technologies, most notably the internet and digital content.  Scientific technologies, especially around genetic engineering and assisted reproductive technologies have been subject to significant law reform. In recent years genomic testing has become widespread as costs of such testing have fallen greatly. Such testing has significant medical benefits but also poses significant questions around privacy and discrimination. Life insurance is a key area where concerns around genomic testing have been raised. Under the Private Health Insurance Act 2007 (Cwlth) insurers cannot cancel the cover of a person who is already insured because of the results of a test. However, there is vagueness in the law as to whether such tests can be used in determining premiums or even if cover is offered. An inquiry by the Commonwealth Parliamentary Committee on Corporations and Financial Services began a broad reaching inquiry into the industry in 2016, including the question of genomic tests. The Committee’s report and recommendations are currently with the Commonwealth Parliament for consideration with little progress to date.  Genetically modified agricultural products are another controversial law reform area in Australia. A number of laws place considerable restrictions around such products in Australia. The Gene Technology Act 2000 (Cwlth) is one of the key pieces of legislation in this area. States and territories also have their own legislation in this space. Western Australia had some of the strictest rules as outlined in the Genetically Modified Crops Free Areas Act 2003 (WA). However, following pressure from multiple sources, including some farmer groups, the federal agriculture ministry and others, the Act was repealed (removed) in 2016. In 2018, further reforms at a federal level were announced to further reduce regulation of the use of genetically modified products in agriculture. These reforms followed specialist technical advice that argued that new gene technologies are now about editing an organism’s existing genes rather than adding new genomic material from a foreign source, which was the basis of the technology when much of the legislation was written. Therefore, it has been argued that the new technology reduces risks to the environment and human health associated with the genetic manipulation to close to zero. However, the proposed reforms that are still under consideration, have considerable opposition. Farmers that produce genetically-modified-free produce, usually at a premium price, have expressed real concern that the law reforms will greatly undermine their business model and consumer confidence in Australia’s food security. The passage of the Road Transport Amendment (Mobile Phone Detection) Bill, 2019 (NSW) created a new Section within the Road Transport Act 2013 (NSW), s.139B. The amendment allows the use of special cameras to detect the use of people using mobile phones, touching them or even resting them on the body of the driver (for example in their lap). If caught, drivers would be issued with an infringement notice. Advances in camera and artificial intelligence technology have allowed for the development of the sophisticated technology used in the cameras.  Research by the NSW Centre for Road Safety found that between 2012 and 2020 there had been 202 casualties causing road accidents that resulted directly from mobile phone use, leading to 18 deaths and 271 serious injuries (NSW Centre for Road Safety). Between July 2019 and June 2020, 62,400 infringement notices were issues to drivers using hand-held mobile devices whilst driving. Much of the traffic law in NSW dates back to the early part of the 20th Century, long before the advent of the mobile phone. The significant statistics shown in the Centre for Road Safety report demonstrate that the reform was much needed to bring the laws up to date with this new technology. Despite some opposition to the laws they now operate widely in the state.

Extraordinary circumstances

There are occasions when law reform is forced upon governments by circumstances well outside of their control. Natural disasters, conflict and acts of extreme violence (such as terror attacks) can be sources of rapid law reform. The 1996 National Firearms Agreement provides a good example of this. The Agreement negotiated between the federal, state and territory governments significantly reformed gun ownership laws across Australia and came after the Port Arthur mass shooting where a single gunman using a high-powered weapon killed 35 people and seriously wounded another 23. This reform came after years of calls to reform gun laws in Australia.  The COVID-19 pandemic is a prime contemporary example of how an unexpected event has led to rapid law reform. Beginning in-early 2020 the COVID-19 outbreak has impacted all sectors of society and governments across Australia, and indeed the whole world, and has forced them to adapt to accommodate the pandemic. In a legal sense this has resulted in considerable legislative work to introduce amendments and in some cases whole new laws.  The Federal Court of Australia has produced a summary of the significant amount of legislation that has been introduced across Australia as a direct result of COVID-19. Hundreds of individual amendments and in some cases whole new laws have been drafted and passed by Commonwealth, state and territory parliaments since early 2020. Many of the laws deal with public health legislation but a review of this list reveals that virtually every aspect of law has been impacted in some way (Federal Court of Australia, 2021). Consumer, family, criminal, workplace, administrative, immigration, taxation and even environmental laws have been impacted by COVID-19. Many of the laws have so called sunset clauses meaning that they apply for a fixed period, but the sheer volume of the laws and amendments indicates the extensive impact the pandemic has had on law reform in Australia.  Like many states, South Australia amended their criminal code in March 2020 in order to provide police with additional powers to detain people who were infected, or suspected of being infected with COVID-19. In Victoria the COVID-19 Omnibus (Emergency Measure) Act 2020 (VIC) introduced a raft of changes to Victorian laws. Omnibus acts are a special kind of legislation that brings together a number of amendments to a whole range of legislation and passes them in a single act of parliament. Key features of the Omnibus Act included significant changes to consumer laws in Victoria to provide greater protection to tenants.  Another interesting amendment made in the Omnibus Act was in regards to the conduct of criminal proceedings and trials by jury. The Act allowed a trial by jury to take place without the jury being actual present in the courtroom or even altogether in another room. This was a very significant departure from the normal conduct of jury trials. This reform, brought about by the extenuating circumstances of the COVID-19 pandemic, was made possible by changes in technology. Perhaps law reform such as this will survive beyond the COVID-19 pandemic as they highlight efficiencies that technology has created. 

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The challenges of law reform

The law is a reflection of a society’s values and social expectations. However, these values and norms are far from static. Our social norms change, and technology and extraordinary events create a need for our laws to be updated and reformed. This process is often a very time-consuming and drawn-out process. As shown in the examples discussed here in this article many of the reforms take years of careful consultation and negotiation. This is because while the law requires change it also requires stability. This tension causes reluctance towards reform. Equally while views and values change they don’t happen universally or at the same rate. This is particularly true of law reform that reflects adjustments in social norms. This adds a further complexity to our law reform process. The use of law reform commissions greatly assists in identifying those areas of law that require reform. They also conduct far reaching research and consult widely with the community and key stakeholders to gauge whether a reform will meet the expectations of the majority of society. In this way our law reform process, although it may be slow and at time cumbersome, is transparent and consultative.

Student Activities

1. Assume you are a government minister (state or federal). Think up a scenario of a change in the law that you think could be useful. Discuss which law reform body or bodies you might ask to investigate. It will be necessary to ascertain which parliament is likely to have passed the law that you think needs changing, before you begin this. Explain your reasons.

2. How do you think community interest groups could influence a change in the law? Discuss.

3. What is judicial activism?

4. Investigate Mabo v Queensland (No. 1) (1988) 166 CLR 186. How did this case change the law in Australia?

5. How does the primary role of the Australian High Court differ from that of the US Supreme Court?

6. What are social norms? Why do you think laws should reflect these?

7. What is no fault divorce and how did this change the fourth requirement for marriage?

8. How did the Marriage Amendment (Definition and Religious Freedoms) Act 2017 change the law?

9. Explain the Judge Levine ruling of October 1971. Do you think it was a good idea to pass legislation confirming this judgment? Discuss. In your discussion, include objections to the bill.

10. Explain the double jeopardy rule.

11. Do you think that there should be six or three challenges allowed in a jury trial for both the prosecution and the defence? Explain your reason.

12. Explain why technology can often result in the law being out of date. Give an example.

13. Should farmers of agricultural products be restricted in the gene technology used? Discuss.

14. What are omnibus acts? Explain the change to jury trials that has taken place to accommodate COVID-19.

15. Do you think our law reform process is transparent and consultative? Discuss.

References

Australian Law Reform Commission (ALRC) (2021), About the ALRC, https://www.alrc.gov.au/about/

Federal Court of Australia (2021), Coronavirus (COVID-19) Legislation, https://www.fedcourt.gov.au/covid19/legislation 

Neve, M. (2001) Law reform in the 21st Century: some challenges for the future, https://www.lawreform.vic.gov.au/publications-and-media/speeches/law-reform-21st-century-%e2%80%93-some-challenges-future 

NSW Centre for Road Safety (2021), Get your hand off it campaigns, https://roadsafety.transport.nsw.gov.au/campaigns/get-your-hand-off-it/index.html#:~:text=In%20NSW%20since%202012%2C%20there%20have%20been%20202,preliminary%20data%20available%20as%20at%201%20September%202020  

Victorian Law Reform Commission (2021) Jury empanelment, http://lawreform.vic.gov.au/all-projects/jury-empanelment 

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