Jamie Kennedy PART A: EXTENDED RESPONSE. To reform the law is to make changes to it so that it operates more efficiently. There are many reasons why laws need to be reformed however there are only three bodies that can actually make changes to the law. The three bodies in Australia that can make changes to the law are: 
Courts 
Parliament 
Delegated Legislators However, there are also other bodies which can place pressure on governments to change the law and these include: 
Law Reform Commissions 
The Media 
Interest and Lobby Groups Courts play a vital role in the legal system in the interpretation the statute as impartially as possible (as per the Rule of Law – everyone is equal in the eyes of the law). However, through the creation of precedents, the courts can operate as law reformers for example, in an area that may not be covered by statutory legislation. That being said, sometimes the courts do not like creating common law without a statute law basis such as in the case of R v Fernando [1999] NSWCCA which ruled that in the absence of clear legislation, the court need not intervene. In other cases, legislators may take long established precedents and enshrine them in statute. For example, s90 Evidence Act [1995] NSW allows the court to use their discretion to refuse to admit prosecution evidence of an admission if “In the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence”1. This has been a long held common law principle shown in cases such as: R v Parker [1989] NSWLR and Pavic v R [1998] HCA. Of course, if parliament does not like the decision made by the court, then it can always override common law by passing statue law such as the passing of the Crimes (Forensic Procedure) Act 2000 [NSW] as a result of R v Fernando [1999]. Parliaments, both State and Federal are the main law making bodies in Australia as it is they who decide what reforms are passed as well as Parliament having the ability to override common law decisions made by the court simply by passing new legislation. Criminal law is a state power under the constitution and in NSW is covered mainly under the Crimes Act 1900 [NSW]. Criminal law reform in NSW being controlled by the government means that is it also subject to the political agenda of the government of the day. 1
http://www.idrs.org.au/cjsn/lawyers/05.html 1 D:\Documents\School\School Work\Legal Studies\Crime Assignment.docx Jamie Kennedy The final group that can make changes to the law are delegated legislators. Delegated legislation is legislation made by persons or bodies of whom parliament has given delegated law making authority. Rules and by‐laws are usually the types of laws created under delegated authority and can only exist in relation to an enabling act. There are limits to delegated legislation, and laws may only be created within those specified limits or else it is deemed ultra vires and may be challenged. The other group that is extremely important in law reform is the Law Reform Commission both state (NSW LRC) and federal (ALRC). Although the commission cannot directly make laws itself, it can make recommendations to its respect government. These bodies, although government funded are independent bodies and act on referral from the Attorney‐General. The aim of these bodies is to eliminate defects in the law, remove out of date laws, simplify and modernise laws (such as changes in technology) and to make the administration of law more efficient. However, law reform can often be slow due to the nature of consultations, drafting, public submission and consideration of submissions before the report is submitted back to the Attorney‐General. Furthermore, the government does not have to accept all the recommendations made by the commission although most reforms are usually fully or partially implemented (80% in the case of the ALRC) by the government. The media can be very powerful in bringing a legal issue to the public eye. Even though they do not have the power to reform the law, they can influence public opinion (sometimes not in the correct way) to push for change in the law. Interest and lobby groups have significant influence and can pressure the government into making decisions that they believe are correct. Such groups include welfare, community and business groups as well as trade unions. Although there groups do not have the power to reform laws, they can call on their member base and use their numbers to pressure the government into changing laws. There are many reasons why the law may need to be reformed including: changing social values, new concepts in justice, failures in existing laws, technology and international law as well as many other reasons why the law would need to be changed and it is up to the agencies of law reform to detect and update the law. Changing social values is one of the key reasons why laws are usually changed. In our democratic society, the public elects a government. This government then represents the people and their views and therefore must legislate according to the wishes of the people if they wish to remain in power. One of the problems with law reform is that it takes a long time and therefore changes in the law may lag behind the changes in social morals and values. This was demonstrated when marriage was removed as a defence to rape in 1981 by the Crimes Act (Sexual Assault) Amendment Act 1981 [NSW]. One example of a change in society leading to law reform is multiculturalism. Swearing the oath on a bible is now not the only way that a juror or witness can be sworn in. Due to the 2 D:\Documents\School\School Work\Legal Studies\Crime Assignment.docx Jamie Kennedy changing nature of our society and increasing multiculturalism, amendments were made to the Oaths Act 1900 [NSW] which allowed the use of any holy text or to simply make an affirmation to tell the truth. An example of changing social values leading to law reform is the decriminalisation of homosexuality between consenting adults in 1984 (Crimes Act (Amendment) [1984] NSW) to reflect society’s morals and values. Another key driver to law reform is the changing concepts of justice. This is somewhat linked in with social values and morals and our views of “justice” is always changing. For example, we now believe that capital punishment is not just and we have therefore taken steps to ban this form of punishment in every single jurisdiction in Australia. Another question that is posed in our legal system is what is about justice for this victim? Over time, this concept has changed and in NSW we have seen the Provision of the Victims Support and Rehabilitation Act 1996 [NSW] established to allow victims to claim for compensation. Failure of existing laws is another reason why laws may be reformed. This can link in with changing social values as laws become obsolete (such as the use of marriage as a defence to rape) or it could do with changes in technology. Other failures of law can include loopholes that are being exploited (intoxication as a defence) and it is the job of the parliament (and to some extent the law reform commission) to ensure that our laws are up to date. International law can actually affect domestic law despite that fact that is it an unlikely source of criminal law reform. The federal government is the only institution with the power to sign and implement an international covenant by enshrining the covenant in domestic legislation. This can also have an impact on the states as they can legislate themselves to reflect international treaties that Australia has signed. Additionally, if the federal government creates legislation to implement international law but this causes conflict with existing state law, then under s109 of the Australian Constitution, the federal law will prevail to the extent of the inconsistency. A clear example of a law reform in Australia following an international covenant is the Young Offenders Act 1997 [NSW] which focuses on warnings, cautions and other non‐court methods of dealing with those who have committed summary offences. This aim is in line with the United Nations Convention on the Right of the Child (UNCROC) which is a legally binding agreement signed by Australia in 1990 which states in Article 4o (3)(b): “Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.”2 However, not all our legislation is in line with international law which may indicate that international law is not a strong force for law reform in Australia. Technology is another contributing factor that could lead to conditions for law reform. As new technologies emerge, laws need to be updated to reflect this new frontier. For example, with 2
http://www2.ohchr.org/english/law/crc.htm#art40 3 D:\Documents\School\School Work\Legal Studies\Crime Assignment.docx Jamie Kennedy the wide spread use of the internet, laws need to be in place to protect society from dangers such as hackers and those who threaten others using electronic means. In NSW, Parliament passed the Crimes (Computer Offences) Amendment Act 2001 [NSW] to deal with hackers and other cybercriminals.Not only does technology such as computers lead to law reform but advances in areas such as forensics, DNA and other areas can lead to law reform as seen in the case R v Fernando [1999]. Subsequently there are many reasons why laws need to be reformed in our criminal justice system and therefore there are many ways that such reforms can be carried out. 4 D:\Documents\School\School Work\Legal Studies\Crime Assignment.docx