Law Reform - TCE Legal Studies (Tasmania)
“Law reform: why and how the law changes”
Law reform is the process of changing the law to keep it fair, relevant and effective. It happens mainly through parliament passing or amending Acts, courts developing precedent, and the recommendations of law reform bodies, all driven by pressures such as social change, technology and public values.
What this dot point is asking
This dot point asks you to explain why the law needs to change and the ways in which reform happens.
Why the law needs to reform
Society does not stand still, so the law must change to remain effective. Common reasons include:
- Changing social values: community attitudes shift over time, for example on relationships and equality. Same-sex marriage was legalised nationally through the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) after a national survey showed majority support.
- New technology: developments such as the internet, social media, artificial intelligence and genetic testing create situations the existing law did not anticipate, requiring new rules on privacy, cybercrime and data.
- Changing economic conditions and protecting the vulnerable: reforms to consumer law and workplace law respond to new commercial practices.
- Inconsistency or injustice: where the existing law produces unfair or unclear outcomes, reform can correct it.
The core purpose of law reform is to keep the law fair, certain, accessible and reflective of current community standards. Law that falls out of step with society loses respect and effectiveness.
How the law is reformed
There are three main mechanisms:
- Parliament: the primary law-maker. Parliament can pass new Acts or amend existing ones. Because parliament is elected, it is the most democratic and far-reaching way to change the law.
- Courts: through the doctrine of precedent, judges develop the common law as they decide novel cases. Higher courts, especially the High Court, can change legal principles, although courts can only change the law when a suitable case comes before them.
- Law reform bodies: independent organisations that research areas of law and recommend changes. The Australian Law Reform Commission (ALRC) advises the Commonwealth, and the Tasmania Law Reform Institute (TLRI) reviews Tasmanian law and reports to government. Their recommendations are not binding but are influential.
Influences that drive reform
- The media, which can raise public awareness and pressure governments to act.
- Pressure groups, lobby groups and non-government organisations that campaign for change.
- Individuals, including through petitions and public campaigns.
- Royal commissions and parliamentary inquiries, which investigate problems and recommend reform.
- Changing community values and demographic change.
The reform process in practice
A typical pathway begins with a problem being identified, often raised by the media or interest groups. The government may refer the issue to a law reform body or hold an inquiry. Recommendations are made, the government decides whether to act, and parliament debates and passes any resulting bill. Not every recommendation becomes law, because the final decision rests with elected parliaments.
Strengths and weaknesses of each mechanism
When you evaluate law reform, weigh the mechanisms against one another. Parliament is the most democratic and far-reaching, because it can rewrite whole areas of law and answers to voters, but it can be slow, may avoid politically risky reform, and depends on the government of the day having the will to act. Courts can respond quickly to an injustice and develop the law incrementally, but they are reactive, since they can only change the law when a suitable case is litigated, and they must respect statute and binding precedent. Law reform bodies bring expert, independent, evidence-based analysis and wide consultation, but their reports are only recommendations and can sit on a shelf if government ignores them. The system works best when these combine: an inquiry or law reform body identifies the problem and proposes a solution, public pressure builds, and parliament then legislates.
A common task asks you to connect the reasons for reform to the mechanisms that deliver it. Work through it in steps.
Step 1: Give a reason for reform
Identify a driver such as changing social values, new technology, changing economic conditions or correcting injustice, and link it to a concrete example.
Step 2: Identify the mechanism
Name which mechanism delivered or could deliver the change: parliament (new or amended Act), courts (precedent) or a law reform body (recommendation).
Step 3: Trace the pathway
Explain how a problem is identified (often by media or pressure groups), referred to an inquiry or law reform body, recommended on, and then legislated by parliament.
Step 4: Reach a judgement
Conclude on how effectively the law responded, noting parliament's power but possible slowness, the courts' reactive limits, and the influence but non-binding nature of law reform bodies.
Students sometimes treat judges as free to change any law at will. Courts can only develop the law through the cases that come before them and must respect statute and binding precedent. Parliament, being elected, is the principal and most powerful agent of law reform.
A strong answer links a clear reason for reform to a real Australian or Tasmanian example and explains which mechanism delivered the change.
Exam-style questions
Questions in the style of TASC exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
Practice6 marksExplain the three main mechanisms by which the law is reformed.Show worked answer →
A 6 mark response needs all three mechanisms with a brief explanation of each.
Parliament. The primary and most democratic law-maker; it can pass new Acts or amend existing ones, and being elected it can make far-reaching change.
Courts. Through the doctrine of precedent, judges develop the common law as novel cases arise; higher courts, especially the High Court, can change principles, but only when a suitable case comes before them.
Law reform bodies. Independent bodies such as the Australian Law Reform Commission and the Tasmania Law Reform Institute research areas of law and recommend changes; their recommendations are influential but not binding.
Markers reward all three correctly explained, especially the point that courts can only act through cases while parliament is the principal agent.
Practice12 marksExplain why the law needs to change and analyse how effectively the mechanisms of law reform respond to social change.Show worked answer →
A 12 mark response needs the reasons for reform, the mechanisms, and an analysis of how well they work.
Reasons. Explain that changing social values, new technology, changing economic conditions and the need to correct injustice all drive reform; use an example such as the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).
Mechanisms and influences. Set out parliament, courts and law reform bodies, plus influences such as the media, pressure groups, royal commissions and individuals.
Analysis. Judge parliament as the most powerful and democratic but sometimes slow or reluctant; courts as responsive but limited to the cases before them; law reform bodies as expert but non-binding. Conclude that the system reforms effectively when these combine (an inquiry recommends change and parliament acts), but can lag where there is no political will. Markers reward a defended evaluation with a real example.