Causes of Law Reform (HSC SSCE Legal Studies): Revision Notes

Causes of Law Reform

Introduction

Law reform occurs when society recognises that existing laws no longer effectively regulate behaviour or deliver just outcomes. While society constantly evolves, the law often responds more slowly—a situation captured in the saying "Society moves ahead and the law limps behind." However, meaningful reform requires more than mere change. As former High Court Justice Michael Kirby noted, reform should represent "an improvement, an advance: not just change, a change for the better."

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Changing social values

Social values are ethical standards that guide how people think about their society. These values are underpinned by beliefs about right and wrong and are shaped by various cultural factors, often including religion. When the majority of people within a society hold similar views about an issue, these views reflect public morality—the standards of behaviour generally agreed upon by the community.

For law to remain relevant and achieve high compliance rates, it must reflect the social values of the majority. However, this presents challenges in a diverse, multicultural society like Australia, where consensus on contentious issues can be difficult to achieve. Moreover, public morality is not static; it continually evolves over time.

These changing social values create pressure for law reform. When community attitudes shift significantly, existing laws may become outdated or disconnected from contemporary values. While the law typically lags behind social change—which is not always problematic, as deliberate reform requires careful consideration—eventually legislators must respond to maintain the law's legitimacy.

Case study: Recognition of same-sex relationships

Australia's Christian traditions have historically influenced social values, particularly the belief that families form a cornerstone of stable society. Traditional understanding held that families must comprise a mother and father in a heterosexual relationship, formally recognised through religious ceremony and legally through the Marriage Act 1961 (Cth).

Over the past 40 years, Australian understanding of what constitutes a family has evolved substantially. Many Australians in same-sex relationships were living together without the legal protections afforded to heterosexual couples, leaving them with few rights—particularly regarding property—if relationships ended.

Legislative timeline

This progression demonstrates how law reform responds to changing social values, progressively recognising relationships that significant portions of Australian society now accept as legitimate and deserving of legal protection.

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New concepts of justice

When the law fails to deliver just outcomes for individuals and the community, reform becomes necessary to develop new approaches to justice. This often occurs in criminal law when existing systems fail victims, the community or accused persons.

Capital punishment: From retribution to rehabilitation

Historically, capital punishment (sentencing a person to death by judicial process) was considered the most effective way to deal with the most serious murders. It embodied pure retribution—"a life for a life"—and was believed to provide a strong deterrent.

As social attitudes shifted from pure retribution toward greater emphasis on rehabilitation, and as deterrence was clearly not being achieved, capital punishment no longer served community purposes. Australia no longer permits capital punishment in any jurisdiction.

Youth Justice Conferencing

The Young Offenders Act 1997 (NSW) established Youth Justice Conferences—meetings involving all people affected by a crime committed by a young offender, designed to help young people accept responsibility while avoiding the court system.

Conferences may involve:

• Community members
• The offender's family
• The victim and their family
• Professionals such as social workers

Other justice reform initiatives include:

• Circle sentencing for Indigenous offenders
• NSW Drug Court
• Enforcement of parenting orders in the Family Court
• Proposed specialist courts for sexual assault matters

Case study: Combating domestic violence

Domestic violence refers to violence occurring within a household or between family members. While it can take various forms, the most common involves violence by a husband against a wife (legal or de facto). It can manifest sexually, physically or verbally and typically causes psychological harm to victims, who are often socially isolated and remain in relationships due to fear of reprisal.

Historical inadequacies

Traditionally, victims reporting domestic violence to police were often told it was a "private matter" best sorted out within the family. Victims had to rely on assault provisions in criminal legislation, which presented several problems:

• Delays in bringing matters to court
• High burden of proof (beyond reasonable doubt)
• Difficulty when evidence essentially involved one person's word against another's

Legislative reforms

Recent initiatives (2015)

Recognising that approximately one woman is killed each week in Australia due to domestic violence, governments announced new initiatives:

• Women and children in domestic violence cases can give evidence via audio or video link
• Police have power to collect video and photographic evidence when responding to incidents
• Additional $100 million federal funding for prevention and response measures
• Trials of GPS trackers for perpetrators
• Special safe phones for victims
• Proposed CCTV cameras to enhance home security
• Specialist training for general practitioners

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New technology

Advances in technology continually pressure the law to remain current. Technological changes may be radical and sweeping or subtle and incremental, but they consistently require legal adaptation.

Technological impacts requiring reform

The invention of the petrol-powered motor vehicle revolutionised industrialised societies throughout the 20th century, requiring new laws for:

• Safety regulations
• Ownership and licensing
• Environmental protection

The development of life-support devices since the 1960s necessitated changes to the legal definition of death. Rather than referring to cessation of respiration and heartbeat, most jurisdictions now require irreversible cessation of all functions of the entire brain, as it is possible to keep hearts and lungs operating without brain function.

Progress in "birth technologies" prompted changes to state and federal laws resolving issues about:

• Parentage
• Inheritance
• Financial maintenance

DNA evidence and forensic procedures

DNA evidence has revolutionised criminal investigations, leading to convictions where previously no physical evidence existed. As technology improved, "cold cases" could be reopened. In New South Wales, more than 400 unsolved homicides dating back to 1975 remain under investigation. Because DNA is stable over significant periods, biological material collected decades ago can still be analysed.

Crimes (Forensic Procedures) Act 2000 (NSW)

This Act established guidelines for DNA testing of criminal suspects, specifying:

• Who may be tested
• Who may order tests
• Detailed requirements for conducting procedures

The manner of obtaining DNA samples determines their admissibility in court.

2007 amendments

Section 11 was revised to allow DNA sample collection from suspects for an increased range of offences, including some indictable and summary offences.

Section 88(2)(c) changed DNA material retention periods. Previously, DNA had to be destroyed after 12 months if cases did not proceed. Under amendments, where DNA collected from a suspect who was convicted of a different crime resulting from investigation of the same acts, the DNA material need not be destroyed.

Issues with implementation

Such provisions aim to increase conviction rates. However, concerns exist about erosion of accused persons' rights without sufficient legislative protections:

The New South Wales Government in 2008 decided to outsource some testing to private laboratories. Such delegation generally requires additional safeguards to ensure privacy, confidentiality and integrity of testing procedures.

Identity theft

Over the past 10 years, identity theft (obtaining or using another person's identity to commit fraudulent activities, usually for financial gain) has increased. More sophisticated computers, scanning devices and software applications have made this crime easier and more attractive, as it can yield significant rewards with high probability of avoiding detection.

Fraud is a dishonest act done intentionally to deceive.

Impacts of identity theft

Identity theft can cause:

• Immediate financial loss
• Damage to victims' credit ratings and reputations
• Psychological distress from knowing someone else uses their identity for criminal activities

Criminal activities may include:

• Using credit card numbers
• Fraudulently obtaining loans, government benefits or employment benefits
• Evading tax payments
• Money laundering
• Drug smuggling
• People smuggling
• Stalking or intimidating others

Legislative challenges

Theft or assumption of another person's identity was not itself a criminal offence in most Australian jurisdictions until recently (South Australia and Queensland enacted such legislation in 2003 and 2007, respectively). Previously, prosecution focused on what was done with the stolen identity.

Adapting specific theft, fraud and forgery offences to identity crime facts proved difficult. Existing legislation often required proving the accused intended to use information to obtain financial benefit. However, identities can be assumed for other reasons, such as crossing national borders for organised crime or terrorism.

NSW legislative provisions

Section 192E of the Crimes Act 1900 (NSW) is most directly relevant to identity theft. A person who, by deception and dishonestly, obtains property belonging to another or obtains financial advantage or causes financial disadvantage is guilty of fraud (maximum penalty: imprisonment for 10 years).

Key Parts of the Crimes Act:

• Part 4AA deals with fraud generally
• Part 4AB deals specifically with identity offences
• Part 4AC deals with money laundering

These Parts define terms including "deception," "obtaining financial advantage or causing financial disadvantage," and "identification information."

In 2008, the Model Criminal Law Officers' Committee of the Standing Committee of Attorneys-General recommended enacting state and federal legislation creating general identity crime offences, including:

• Making, supplying or using information capable of identifying a person
• Possessing such information with intent to commit or facilitate an indictable offence
• Possessing equipment to create such information

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