Criminal laws “lead almost to a ‘brain explosion’”, says Supreme Court Judge

Victorian Supreme Court Judge Mark Weinberg has seen a great deal in his 50 years as a lawyer, including the criminal law’s “shift from common law to statute, and in some cases, to codification”.

In his speech to the Victorian Law Foundation’s annual Law Oration on 21 July 2016, Weinberg argues that parliaments have enacted “too many laws”, that “a number of these laws are incredibly prolix”, that their provisions are “unnecessarily complex, lack coherence, and are far too prescriptive” and that Acts “are too frequently amended”.

Too many laws

The Judge discusses the proliferation of criminal laws in the context of both Victoria and the Commonwealth.

In respect of the latter, he notes that:

“Over the past 20 years there has been an explosion of Commonwealth criminal law. It now encompasses, inter alia, such areas as bribery of foreign public officials, people smuggling (both in its simple and aggravated forms), terrorism, offences against humanity and related crimes, slavery, trafficking in persons, child sex offences outside Australia, trafficking controlled drugs and precursors, identity crime, money laundering, telecommunications offences, and computer offences.”

He says that:

“anyone wanting to practise criminal law must have at least a good working knowledge of some 20 or so separate Acts of Parliament, State and Federal.”

He asserts that we do not need “so many quite separate and distinct statutes, and codes, to govern the operation of our criminal justice system”, wishing his colleagues in the Federal Court “the very best of luck” in trying to make sense of laws which are of “extraordinary complexity”.

Unduly prolix

Weinberg believes “many of our laws are expressed in language that is convoluted, and poorly expressed”, giving several examples from Victoria, NSW and the Commonwealth.

As to the latter, he notes that:

“The Crimes Act 1914, when originally enacted, managed to set out the entire body of Commonwealth criminal law, as it then stood, in 25 pages. By 1998, that Act had grown to 331 pages. In its current version, it extends to an astonishing 857 pages.”

He then moves onto the Criminal Code Act (1995) (‘the Code’):

“The first tranche of the Code contained 28 pages… Within a decade, the Code had grown to 451 pages. It now runs for 887 pages.”

He says “I know of no one who has ever had to deal with the Code who has had a single kind word to say about it”

As to the number of Commonwealth Acts, he says:

“… in 1950, the Commonwealth Parliament passed 80 Acts, all of them published in just one slim volume of 281 pages… In 2000, 372 Commonwealth Acts were passed, and published in five volumes, taking up 4383 pages.”

Unduly complex and excessively prescriptive

Weinberg gives several examples of legislative provisions which are drafted so poorly they are incomprehensible, remarking that “Judges these days often find themselves having to grapple with seemingly intractable problems of interpretation”.

“Regrettably, there have been a number of instances where, by reason of poor drafting, the criminal law has been left in a state of uncertainty”, which Weinberg says causes problems for those before the courts and leads to appeals.

He gives examples of laws which, he argues, are “basically useless” or inherently problematic – including provisions of the Victorian Sentencing Act and the hearsay, tendency and coincidence rules contained in the Evidence Act.

While recognising the difficulties in legal drafting, Weinberg is of the view that many criminal laws are nevertheless excessively complex, imprecise and even condescending to the point of assuming judges lack judgment and common sense:

“In making these criticisms, I do not wish to be misunderstood. I recognise that drafting is a difficult process. It requires considerable skill, and experience. Language is an uncertain and imperfect means of communication.”

“Even making due allowance for these difficulties, however, there is something unsettling about the way in which some modern statutes are drafted.”

“In addition, judges can surely be credited with some modicum of common sense. They should not be forced to trawl through provisions that, in some cases, are so obscure as to lead almost to a ‘brain explosion’. Sadly, distrust of the judiciary, and of its ability to exercise sound judgment, lies at the heart of much of the unduly prescriptive drafting that we see.”

Amended too frequently

The Judge gives several examples of unnecessary amendments to laws, many of which are ‘knee jerk’ political reactions with minimal consultation.

In the context of Commonwealth law, he notes that between 2013 and 2016:

• The Crimes Act 1914 was amended by 19 separate amendment Acts,
• The Criminal Code was amended by 26 separate amendment Acts, and
• The Proceeds of Crime Act was amended by 10 separate amendment Acts.

He says that “[s]ome degree of restraint in this area would be a good thing” because “[c]riminal law is a vastly complicated body of rules, where almost every in almost every Act is likely to be intertwined… [and if you] [c]hange one part… you may inadvertently change others” – causing problems in construction and interpretation.

Consequences of poor drafting

Weinberg concludes that:

“Every time a judge is confronted with a provision that is either poorly drafted, or requires a lengthy trawl through numerous other sections in order to make sense of it, some harm is done. If the judge ultimately falls into error, and the matter has to be corrected on appeal, the situation is made even worse.”

He believes poor drafting leads to an increase in the number of appeals, pointing out that “[m]any of these cases had to be tried again, at emotional cost to the parties and witnesses, and at financial cost to the community”.

He suggests that less laws, fewer amendments and greater precision in drafting would lead to better outcomes for the community as a whole.