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LAW REFORM

By Mary Doolan Coonabarabran High School

The agencies of reform and the conditions which give rise to the need for reform:

Students need to understand HOW law reform occurs, what the AGENCIES OF REFORM which initiate change in our laws are and also about the various CONDITIONS WHICH GIVE RISE TO THE NEED FOR LAW REFORM.

A. AGENCIES OF REFORM

Law Reform Commissions (agencies of Reform):

Both state and federal Law Reform Commissions (the NSW LRC and the ALRC) play a vital role in reforming laws, including criminal laws. These commissions whilst funded by government are independent statutory bodies which act on referrals from their respective Attorney General. They aim to reform the law to eliminate defects in existing laws, remove out of date laws and simplify and modernise the law (for example, when new technologies arise) and improve the processes for the efficient administration of justice. In this regard, the ALRC plays a vital role in pursuing uniformity across state jurisdictions (for example through the push for uniform evidence laws).

The process of law reform is a consultative one and for this reason can often be slow. After a referral is received from the Attorney General a lengthy process of research is undertaken. Once the draft research report is prepared, it is released to the public and submissions are invited. Once these are received and considered, a final report is sent to the Attorney General.

While many suggested reforms are substantially or partially implemented (in the case of the ALCR 80%) not all proposed reform recommendations are taken up by government. For example, in November 2005 the NSWLRC released its report on Majority Verdicts recommending that unanimous verdicts be retained for criminal trials in NSW. On the same day the NSW Attorney General announced it would implement majority verdicts, which it did in May 2006 (Jury Amendment (Verdicts) Act2006).
Parliament

State and Federal Parliament are the main law-making bodies in Australia. As discussed above, it is a matter for the parliament as to whether proposed reforms are implemented. This is often swayed by the demands of the political agenda of the government of the day. As Criminal Law is primarily State based, it is the NSW Parliament that has the greatest role to play in the area of implementing changes to our criminal laws. An example of criminal law reform via the NSW parliament is the passage of the Jury Amendment (Verdicts) Act2006 which legislated to for 11:1 majority verdicts in criminal trials in NSW.
Courts

The primary role of courts is to impartially interpret and apply the law however, judges can, through deciding new precedents, operate as law reformers. This may be in an area of law which is not covered by the specific terms of legislation. However, in the main, judges are reluctant to create new law in the absence of any express parliamentary intention. The case of R v Fernando(1995) is a good example of a court refusing to intervene to create new law, via a judicial decision, in the absence of clear statutory authority. In this case two defendants, charged with murder, refused to consent to supply blood for DNA testing. The Supreme Court approved the prosecution’s application for an order permitting the blood to be taken. On appeal the NSW Court of Criminal Appeal overturned the Supreme Court’s decision permitting the blood to be taken. The Appeal Court’s decision was based on the fact that “in the absence of clear statutory or other lawful authority or excuse” (such as a previous decision of a court) the Court should not intervene to permit the blood test. As a result the NSW Parliament passed the Crimes (Forensic Procedure) Act 2000(NSW).

Often judicial reform via the creation of precedent will become the basis for later codification of the law. For example, S90 of the Evidence Act 1995 (NSW) which empowers a court, in any criminal proceeding to refuse (in the exercise of their discretion) to admit prosecution evidence of an admission if, “having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence”, is an example of codification of a long held common law principle about the inadmissibility of certain admission evidence (e.g. in R v Parker(1989) 19NSWLR (Intellectual disability is relevant)).

Further, provided their impartiality is not compromised, Judges are free to criticise the law and to suggest reform of the law. Many Australian courts have mechanisms for suggesting to the parliament or LRC, proposals to change the law; Of course it is a matter for the parliament as to whether these proposals are acted upon.

Finally if the parliament does not like the way that a statute has been interpreted by the courts it has the power to amend the statute (or perhaps a section of the statute). It does this because it has identified that the process of judicial reason and decision had given an unintended meaning to the original intent of the statute. Students should keep in mind the fact that common law principles can always be overridden by legislation.

B. CONDITIONS WHICH GIVE RISE TO THE NEED FOR REFORM

Changing social values and composition of society:

As society changes, the challenge for the law is for it to continue to reflect and embody society’s morals and values. A criticism of the process of law reform is that it can take a long time; hence the law runs the risk of lagging behind social change.

An example of social change leading to law reform is in the area of the laws response to the multicultural nature of contemporary Australian society by amendments to the Oaths Act1900 (NSW). Swearing an oath on the Bible is no longer the only way that a witness or juror can be validly sworn in. A witness or juror may instead make an affirmation, swear an oath simply to tell the truth or swear an oath on the holy text of their faith.

An example of changing social morality leading to law reform is the decriminalisation of homosexual sex between consenting adults which occurred in NSW in 1984. A good example of law reform being overdue in terms of reflecting society’s values is the fact that it was not until 1981 that marriage, as a defence to rape was removed (by the Crimes (Sexual Assault) Amendment Act1981).
New concepts of justice

Justice is a complex concept. In criminal law, it begs the question, justice for who?
- the accused?
- the victim?
- the community?
Certainly society’s views of what constitutes justice are ever changing. Capital punishment is now widely regarded as an unjust form of punishment (and certainly is a breach of international law) Our domestic law reflect this view that as it is now banned in every Australian jurisdiction.

As discussed above, justice for the victim has received increasing legislative attention this past decade and is reflected in the fact that many victims of crime are now entitled to apply for compensation under a Statutory Scheme in accordance with the Provisions of the Victims Support and Rehabilitations Act1996 (NSW).

The Sentencing Act1988 (NSW) and subsequent Crimes (Sentencing Procedure) Act1999 embody a “tougher” approach to sentencing. Some would argue that this embodies contemporary notions of justice relating to the need for punishments to be harsh (and for Life to mean Life) when a serious crime has been committed.
Failure of existing law

Laws can fail because they become obsolete and as such they no longer reflect or relate to the expectations and values of society. For example, the law which permitted marriage to be raised as a defence to an allegation of rape (as discussed above) clearly was out of touch with society’s view that women deserve equality before the law. Further, new technology may render old laws irrelevant. It is the role of parliament to amend or revoke out of date laws to ensure that our laws continue to serve society.
International Law

Changes in international law can lead to change in Australia’s domestic law through the process of Australia signing an international convention and then passing domestic legislation to implement (either wholly or in part) the terms of the covenant.

Whilst the Federal Government is responsible for signing international treaties they clearly have an impact upon laws within a state. For example, the provision of the Young Offenders Act1997 (NSW) clearly reflect the spirit of the United Nations Conventions on the Rights of the Child (CROC) which Australia became a signatory to in 1990. Article 40(3) (b) of CROC states that “wherever appropriate and desirable, there should be measures for dealing with such children (i.e. children who have broken the law), without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

For summary and less serious indictable offences one of the main focuses of the Young Offenders Act1997 (NSW) is the diversion of young offenders from the courts by a system of warnings, cautions and youth justice conferencing. In line with CROC this act focuses upon the rehabilitation of young offenders so that they can once again, as outlined in Article 40(1) of CROC “assume a constructive role in society”.

Students should also be aware that our state and federal laws can and do conflict with Australia’s international treaty obligations. For example, many would argue that the federal government’s Anti Terrorist Act2004 (Commonwealth) violates CROC as it provides for the detention, without charge, for a period of up to 14 days, of terrorist suspects from the age of 16. Further, current mandatory sentencing legislation pertaining to young offenders in WA is also in conflict with CROC. To read more about CROC (a great idea to deepen understanding and assist for example other areas of study like Family Law) students should go to www.unhchr.ch/html/menu3/b/kcpc.htm .
New Technology

New technology has led to significant law reform, particularly in the past two decades. New technology impacts upon the criminal law in two main ways:

Firstly, through the development of more highly sophisticated crime investigation and evidence gathering techniques which has meant that new laws have had to be enacted to deal with, for example, advances in forensic science such as the use of DNA (students are referred to the above discussion of courts as agents of law reform and Fernando’s Case(1995) which led to the passing of the Crimes (Forensic Procedures) Act2000 (NSW). Such new laws must try to strike the difficult balance of allowing police to make use of such new technologies but at the same time protecting the rights of the accused.

Secondly, new technology has led to new areas of computer related crime such as hacking and the deliberate transmission of viruses. Parliaments both state and federal have responded to the ever increasing breadth of criminal activity by passing new legislation and amending existing legislation. For example, in NSW Part 6 of the Crimes Act1900 (NSW) now deals with computer offences such as unauthorised modification of data with intent to cause impairment (section 308D) and unauthorised impairment of electronic communication (section 308E).These amendments were added to the Crimes Act with the passage of the Crimes Amendment (Computer Offences) Act2001. In the Federal sphere the parliament has passed the Cybercrime Act2001 (Commonwealth).