What is law reform?

One important challenge for lawmakers is law reform. Society changes over time and so the views and values of its citizens. Law reform is the process of changing and updating laws so that they reflect the current values and needs of modern society. Those responsible for making our laws must identify and study shifts in values, behaviours and expectations; they must consider whether new or amended laws are required; they must develop and implement these changes. Law reform is a perpetual or ongoing process: it never finishes. The law must be flexible and receptive to change, so that stays fair, relevant and up to date. Above all, it must serve the needs of the people. A law based on outdated or irrelevant values will only let down the people it is intended to serve and protect. The law must also be able to respond to situations and scenarios thrown up by a changing society, such as new forms of criminal activity.

Some of the ways that society changes, generating a possible need for law reform, include:

Changing social values. Social values are the fundamental ideas we have about people and society in general. They include ideas about race, gender, families, children, violence, personal responsibility and behaviour, and the law itself. Social values tend to change quite slowly – but they do change. Prior to 1972, for example, women in the workforce received only three-quarters of the average male salary, even if they were doing the same work as men. Shifting conceptions about the status of women produced social and political pressure. This pressure eventually led to minimum wage laws that brought women’s pay in line with that of men. Changing attitudes to narcotic drugs, homosexuality and divorce are also examples of changing social values that contributed to law reform.

Changing morality. Individuals can be quite rigid in their views about what is ‘right’ and what is ‘wrong’, shaped by upbringing, education and religious teachings. In the past, behaviours such as homosexuality, prostitution, pornography, adultery and promiscuity outraged individuals to such an extent that society deemed them to be immoral or sinful. This was reflected in various laws that criminalised these behaviours and imposed sanctions on those who engaged in them. Today, society is generally better informed about the causes and the nature of these behaviours, so the law has changed to reflect this.

Changing ethics. Like morality, ethics is concerned with what is right and wrong, though on a social level rather than what offends the individual. Ethics considers whether specific practices or decisions are fair to all involved and whether certain behaviours are both responsible and acceptable. Amongst the ethical questions that law academics and reformists have considered and will consider are capital punishment, abortion, euthanasia, stem-cell research, ‘cloning’, assisted reproduction therapies, experimentation on animals and genetically-modified foods.

Changing technology. As new technologies and medical advances are develop and come into common use, they impact on the way people live and behave. They may also produce ethical debates and dilemmas – and they may give individuals new avenues for offensive and potentially illegal behaviour. The rapid expansion of the Internet, mobile phones and other technological devices have provided lawmakers with new challenges. These technologies have created behaviours that a decade ago were unlikely or even unheard of, such as software piracy, ‘phishing’, ‘sexting’, cyber-bullying and e-stalking.

Significant events. Sometimes a single event can spark changes to a particular law or laws. Catastrophic events such as the Port Arthur massacre (1996) the September 11th terrorist attacks (2001) and the Victorian ‘Black Saturday’ bushfires (2009) have all prompted a significant review of laws and consequent changes. Sometimes the event may be relatively minor, such as a single criminal case, yet it may highlight an inefficiency, loophole or shortcoming in existing laws.

Sometimes law reform is driven not by social change but by procedure. It is sometimes necessary to simplify or ‘tidy up’ the law, to make it easier to access and understand, or to ensure it is more consistent for all Australians. Australia has thousands of laws, spread across numerous jurisdictions (Federal, State and Territorial) and made by numerous parliaments, court hierarchies and subordinate authorities. These laws can be found in a vast body of statutes, court rulings, precedents, rules and regulations. All this can make the law confusing, contradictory or difficult to access. Sometimes legislators may act to limit this by passing one of the following:

Codifying legislation. This is a bill that sets an existing judicial precedent or statutory interpretation into legislation. Codifying legislation ensures that these examples of court-made law are fixed in law and not subject to change by future court decisions.

Complementary legislation. A bill which replicates legislation in another jurisdiction. This ensures uniformity of laws in separate parts of the same nation so that individuals in one place enjoy similar rights and laws as those in another. In 2004-5 Australian State parliaments passed uniform defamation laws for this purpose.

Consolidating legislation. A bill that repeals two or more existing pieces of legislation and combines their content in the one act. This not only removes unnecessary legislation, it also simplifies access by having related laws under the same Act of Parliament.

These changes may not be ‘reforms’ as such, because they may not change the substantive meaning of the law. True law reform occurs because society has changed and the law needs to change with it.