Criminal law is constantly changing and laws are amended, created and repealed on a regular basis. Law reforms often come about due to a number of different factors, including new technology, evolving ideas about justice and what constitutes fair criminal procedure, and changes in social values and community standards which need to be reflected in the courts.
Changing social values is one of the main drivers behind criminal law reform as governments strive to be seen as meeting the needs of the community, and courts make decisions which set precedents for reforms and amendments. What is considered acceptable or not acceptable in society has undergone significant transformations in recent years and is continually changing with different generations.
There have been a number of cases over the years where existing laws have been amended or repealed altogether, and new laws created as a result of changing social values and community understanding. Here are a few examples.
The Vagrancy Act 1966
The Vagrancy Act made being homeless and having no lawful means of support a criminal offence, punishable by 12 months’ imprisonment. It was even considered reasonable in the 1940s to charge a baby for being negligent and/or destitute. The Vagrancy Act was repealed in 2005 as a reflection of more modern community values, which make it unacceptable to arrest someone and imprison them for not having a job or a home.
The controversial move to change the law surrounding assault to provide a mandatory sentence for punching someone fatally while under the influence of drugs or alcohol can be seen as the NSW Government’s way of responding to pressure from society. The one-punch laws were brought in earlier this year following a spate of fatal attacks which were fuelled by alcohol and drug consumption.
Under the Racial Discrimination Act 1975, it is a criminal offence to commit an act in public that is reasonably likely to offend, humiliate, intimidate or insult a person or group of people based on the race, colour, ethnic background or nationality of a person or group.
The Racial Discrimination Act was created in response to changing societal values which no longer made it acceptable to discriminate against someone because of their race or ethnic background. The community backlash against recent proposals to repeal sections of the Racial Discrimination Act, in particular section 18C, demonstrate how strongly society views racial discrimination, and the consequences when the government attempts to go against the social values of the wider community.
Sex discrimination legislation has also changed. The Sex Discrimination Amendment Bill was introduced into federal parliament in 2013 before being signed into law. This bill makes it illegal to discriminate against a person or couple on the basis of their sexual orientation, gender identity and/or intersex status. This has been as a result of a big shift in societal values which saw homosexuality illegal in many states until the mid-1970s.
Sexual assault laws
Sexual assault laws have gone through rapid changes in the last 30 years as a result of changing societal values and views surrounding what constitutes sexual assault and where the responsibility lies. Historically, sexual assault and rape were considered property offences as women were seen to be the property of their father or their husband. Rape was seen as damaging property and making it less valuable, and the effect it had on the woman wasn’t considered relevant. Marital immunity to rape was only abolished in Australia in the 1980s.
It’s clear that changing social values have a profound effect on criminal law. The views of the community and society as a whole shape and drive changes to the law and will continue to do so well into the future. As social values change, the law evolves to keep up with them to help ensure that the legal and criminal processes reflect modern day values.