Changing the law

In Australia the law changes in several ways on an ongoing basis. The law can be changed through the federal and State legislatures enacting legislation. This legislation might reflect new social values or developments in society. For example, the emergence of internet technologies has required a new set of laws dealing with the issues of the internet.

Australian Law Reform Commission

New or changed legislation can also reflect political decisions and can be influenced by bodies such as lobby groups or the Australian Law Reform Commission (ALRC) and its State equivalents. Introducing mandatory sentencing for certain offences, or excising parts of Australia for the purpose of the processing of asylum-seekers, are examples of the legislature changing the law to accord with political values on those issues.

The law also changes when judges make decisions in court. Changes in the law brought about by judges' decisions are less predictable and less able to be controlled than legislative changes for two reasons. Firstly, judges make decisions on the basis of factual circumstances brought before them, so legal change in an area depends on an issue being brought before the court. Secondly, judges are constrained by the need to follow judicial precedents. The development of the common law through the courts is more fragmentary than is the development of statutory law through the enactment of legislation.

The Australian Law Reform Commission was established in 1975, pursuant to statute. It is a permanent and independent federal statutory body. The role of the ALRC is to examine how areas of law might be changed or reformed. The ALRC is officially requested to look into areas by the Attorney-General of the Commonwealth of Australia. Although it is established and directed by the federal government, the ALRC is intended to have intellectual independence and to be able to make reports and recommendations in an unbiased and non-partisan way.

The focus of the ALRC is on federal laws and the processes of the legal system. In conducting its inquiries, the official aims of the ALRC are:

• to simplify and modernise the law;
  
  
• to improve access to justice;
  
  
• to remove obsolete or unnecessary laws, and eliminate defects in the law;
  
  
• to suggest new or more effective methods for administering the law and dispensing justice;
  
  
• to ensure harmonisation of federal, State and Territory laws where possible; and
  
  
• to monitor overseas legal systems and ensure that Australia compares favourably with the highest international standards.

Other inquiries, such as complaints about the legal profession or particular cases, are not under the jurisdiction of the ALRC, but go to other organisations and services.

The recommendations the ALRC give to the government do not automatically become enacted as law or legislative amendments, but the ALRC has a strong historical record of having its recommendations put into practice. It has been reported that nearly 80 per cent of the ALRC's reports have been either substantially or partially implemented. This record makes it one of the most effective and influential bodies involved in legal reform in Australia.

Lobby Groups

'Lobby groups' also have an influence on the changing of the law. Lobbying is the practice of advocating private and public interests to legislative and government bodies. Many large corporations and political interest groups hire professional lobbyists to promote their interests to the government. Lobby groups can take a wide variety of forms: for example, the NSW Council for Civil Liberties would be concerned with any government legislation or judicial cases which might infringe upon the freedoms of the citizens of NSW; whereas a lobby group working for the mining industry would have a more narrow focus on mining, trade and employment laws, as well as developments in environmental laws.

The development of 'Alternative Dispute Resolution' (ADR) is an example of the process of the legal system changing. ADR involves the people in a dispute coming together with an impartial mediator in a non-legal setting to work out their dispute through discussion with, and direction from, the mediator. ADR services arose, in part, in response to the need to relieve pressure on the courts and to lower the cost of resolving disputes. The ADR service also developed because of the belief that it can be a more effective way of resolving disputes - particularly disputes where the parties need to work or live together afterwards.

The law might also be influenced to change in order to reflect developments in international law. Countries can be parties to a 'treaty' or 'convention', which is an agreement between countries which is binding at international law. These agreements are not strictly binding on the internal laws of a country, but in some instances can have a large amount of influence over legal developments within a country. Less binding international 'declarations', such as the Declaration on the Rights of the Child (1959), might also be seen as having a broad influence on the legislative direction of a government.

Finally, the development of the Law of Equity in the common law system could be seen as a way in which the law has changed. Equity is a response by the legal system to problems in accessing justice arising from rigidities in the common law. The Law of Equity was developed to provide remedies where a strict application of the common law would lead to an unfair or unconscionable result. Equity has also developed remedies which supplement the main common law, such as court orders to stop or command conduct (an 'injunction') so as to prevent unjust or unfair situations from continuing.