Obstacles to law reform

While changing the law may seem relatively easy, there are several factors that can work against successful law reform. Because of these obstacles, some law reforms can be blocked or delayed. Some of these obstacles include:

Constitutional requirements. The Commonwealth Constitution and the various State constitutions are our highest laws, so they shape and restrict all other laws to a large degree. Laws must be constitutionally valid or they will almost certainly be challenged in the High Court, where they may be overturned. When drafting and passing new legislation, lawmakers must ensure they are not exceeding their constitutional powers to legislate in that particular area.

The difficulty of changing the Constitution. The requirements for changing the Commonwealth Constitution – itself a law but also a determinant of other laws – are rigorous and difficult to achieve, so relatively few attempts at constitutional reform have ever succeeded. There have been 44 proposed changes to the Constitution since Federation, with only eight passing. This makes the Constitution and its distributions and limitations on law-making power very difficult to alter.

The parliamentary structure. Without the support of the parliament, any proposed law reform is destined to fail. However parliament is not just a legislative assembly, it is also a political body. Governments seeking re-election may resist introducing law reforms that are unpopular with the public or liable to attract negative media coverage. Oppositions, minor parties and independent members of parliament may ‘block’ government bills for political as much as practical reasons. The government may not have control of or sufficient voting support in the upper house. All these factors can make it difficult to usher through new legislation.

Political factors. Some law reform proposals are ignored or blocked because they clash with the core values of the party in government, or because they may be unpopular with the general public and therefore may be harmful to the election chances of the government. Depending on how the parliament is structured (see above) the opposition, minor parties and independent MPs can also block bills or force amendments.

Too many voices can confuse the need for law reform. When ‘big issue’ law reforms are being discussed, many people and organisations want to have a say. Leading figures in the government and other MPs may speak on the proposed changes; the media and commentators report on the proposed reforms, often with their own agenda. Pressure groups can be vocal and forceful in suggesting change, even though they may be relatively small. Lastly, public opinion can be largely indifferent – or it can be passionate, depending on the issue – but it is not always rational and informed. With all these competing voices, it can be difficult to objectively assess the need for law reform.

Common law relies on appropriate cases. Since judicial precedents are binding on all lower courts, these precedents can only be amended or revised if a similar case arises in the superior court. This does not always happen, so it may be years before there is a change – and in that time the precedent could determine several judgements in the lower courts. A significant weakness of court-made law is that it cannot initiate necessary changes to the law; it is entirely dependent upon whatever cases come before it. Parliament can legislate to abolish, amend or codify precedents, but may not for the reasons outlined above.