Australian law in need of significant overhaul

OVERHAUL: Peta Hawker says recent events have caused her to question how Australia's laws have developed, and whether they are meeting their aims.
OVERHAUL: Peta Hawker says recent events have caused her to question how Australia's laws have developed, and whether they are meeting their aims.

In the past few months, “the law” has been under the microscope and in the public conscience for reasons other than youth detention centres and parole system inadequacies. The past two weeks have been overshadowed by an imminent (although not guaranteed) change to the marriage laws, and the citizenship laws governing the eligibility of political candidates. It does seem odd that while it appears completely “doable” to change the marriage laws, changing the citizenship laws to make them more in line and reflective of modern and future Australia is not on any agenda. 

However, the issue here is not these two situations, but how fluid the law needs to be in order to best serve the national interest, and the interests of the Australian populace. I am sure the majority of Australians take for granted that the law exists to maintain the stability of society, to protect us from “anarchy”, and to uphold “justice”. But does it, as it stands in 2017, actually achieve this? 

Very few of us actually know our nation's laws well, especially those pesky little clauses and amendments. And although people are always claiming to “know their rights”, how many of us really do know our rights – or responsibilities – under law? If it were really that easy, we would have no need of barristers and lawyers, highly educated and specialised in the many different branches of the law, to represent us.

It is very naïve to consider law and justice, or law and morality (what is “right”) as the same thing. Justice and morality carry many ethical pitfalls, and are open to interpretation and subjectivity. 

Our laws have to be impartial, and somehow above, or beyond, emotionally tinged interpretation. Most modern Australians would argue that the laws serve to protect the weak, and keep people safe, that they exist to give everyone a “fair go”. 

That has been part of the argument surrounding the legalisation of same-sex marriage, the desire to change the law so that everyone has equal rights while also ensuring that the ability to follow religious teachings are protected. This type of situation can become complicated, balancing personal freedoms against laws governing the state. Where is the line between free speech and bigotry, between religious tolerance and human rights (according to Australian law)? 

There are also sections of the law which can be an absolute minefield, full of archaic clauses and sub-clauses which are no longer relevant, or seem to contradict each other. Anyone who has tried to get a building permit in post-2009 Hepburn Shire would be well aware of how difficult abiding by the new requirements can be. Consumer and financial law can also be complex and confusing landscapes, and two more which could do with a complete overhaul, especially in the internet age. Family law is also a hideous minefield, especially since it was made easier to file an application for a restraining order.

With society changing so fast, a complete overhaul of our laws is due. It is also time to review punishments and decide, not so much whether the punishment fits the crime, but what makes one crime more serious than another. Not from, for example, a monetary point of view, but on how the victims are affected.

Also, should a democratically elected politician lose their seat because they hold dual citizenship in an era where a large proportion of the population has at least one parent born overseas?

Australia, as a nation, is more than 200 years old and ready for new, simplified and modified laws – and possibly even a new constitution.

The demographics have changed so much, along with technology and social values, that what we have no longer reflects who we as a nation are.

Spending money to ensure that the law reflects the values of this nation is money much better spent than on plebiscites on a human rights issue the parliament could have voted on months ago, or witchhunts against politicians with dual citizenship.