Law reform: why and how the law changes

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.

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 strong answer links a clear reason for reform to a real Australian or Tasmanian example and explains which mechanism delivered the change.