Keeping Up With Changing Morals: The Role of Law Reform Commissions in Australia

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Social values are constantly changing, so it’s only natural that laws should adapt to reflect contemporary values.

But have you ever wondered who is responsible for initiating law reform?

Of course, the parliament enacts and abolishes laws. But in Australia, the State and National Law Reform Commissions bear the responsibility for reviewing existing laws and recommending legislative reform to government.

Formed in 1996, the Australian Law Reform Commission is a Federal agency which reviews Commonwealth legislation.

It is composed of a president, deputy president and four other members.

Members are required to fulfil certain criteria to be considered for appointment by the Attorney General. They must either be a judge of a superior court, a lawyer with at least five years experience, a law graduate or academic, or otherwise be suitable because of their training, qualifications or experience.

Matters may be referred to the Commission by the Commonwealth Attorney-General, which then become the subject of inquiries.

Inquiries involve substantial research and broad consultation, and generally result in recommendations to government about whether laws should be enacted, abolished or amended to reflect contemporary standards, and the suggested nature and scope of proposed changes.

Inquiries may invite submissions from community bodies and groups with an interest in particular issues, such as community legal centres and human rights bodies, thereby giving various groups the opportunity to have their voices heard.

The Commission’s most recent inquiry examined of the rights of disabled people under Commonwealth laws. It found existing laws and legal framework to be woefully inadequate, and recommended various reforms.

Another inquiry conducted earlier this year considered Commonwealth laws that impinge on rights and freedoms; such as freedom of speech, client legal privilege and the right to a fair trial.

While the Attorney-General has the power to refer matters to the Commission, it remains an independent body.

The ALRC has considerable power to effect legislative reform and remedy defective laws.

Approximately 85% of ALRC reports end up being implemented into law, either in whole or in part.

The ALRC also plays an important role in safeguarding human rights and civil liberties through its decisions.

It must ensure that its recommendations uphold basic human rights and do not breach any international covenants to which Australia is a signatory.

While the Commonwealth Law Reform Commission is responsible for considering revisions to Federal laws, state law reform commissions, such as the New South Wales Law Reform Commission (The NSWLRC) are responsible for examining state and territory laws.

Like the Federal Law Reform Commission, the NSWLRC is responsible for reviewing state laws and preparing reports that containrecommendations for legislative change.

Matters can be referred to the NSWLRC by the state Attorney-General.

The NSWLRC recently conducted a review of appeal laws, which have been criticised for being complicated and outdated.

Along with other recommendations, it suggested consolidating existing appeals legislation into a single Act and streamlining appeals pathways. It also recommended making the Court of Appeal the final appeals court in NSW.

In 2013, the NSWLRC also undertook a review of sentencing laws in New South Wales.

The review was undertaken in response to concerns about the overrepresentation of certain groups in the prison system, particularly mentally ill and Indigenous persons.

It considered alternatives to prison for these groups, as well as mechanisms to reduce the likelihood of re-offending.

It recommended a range of reforms, including a consolidating and simplifying existing sentencing laws and promoting transparency in sentencing.

The NSWLRC also recently conducted research into how the law can best respond to instances of family violence, making a range of recommendations.

Law Reform Commissions play an important role in shaping the development of law in Australia, and are vital to ensuring that legislative changes are backed by independent and objective research.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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