Speaking at the Victoria Law Foundation Law Oration last week, Justice Mark Weinberg said that poor legislative drafting has turned criminal law at both the Victorian and Commonwealth levels into “almost a nightmare” for judges and practitioners.
“My assessment is that few of my judicial colleagues, and even fewer of my friends at the criminal bar, would have anything at all good to say about large swathes of our current criminal law,” he said.
Justice Weinberg pointed to the complexity of criminal legislation as an obstacle to the effective administration of criminal justice.
“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,” he said.
He pointed to figures from the Victorian Office of Public Prosecutions showing that there were 345 successful appeals against conviction in Victoria between 2005 and 2016.
“It would be interesting to know how many of these successful appeals involved the misinterpretation, by trial judges, of statutory provisions,” he said. “My suspicion is that the number would be high.”
Justice Weinberg raised four main concerns over current criminal laws: their high number, their convoluted framing, their complexity and the frequency with which they are amended.
Regarding the number of laws enacted, Justice Weinberg flagged that Victorian practitioners must grapple with around 20 acts governing criminal law at both a state and federal level.
Meanwhile, these laws are frequently changing. Between 1 January 2013 and 30 June 2016, the Victorian Crimes Act 1958 was amended 25 times, the Victorian Sentencing Act 1991 34 times, and the Commonwealth Criminal Code 1995 26 times, according to Justice Weinberg.
In his view, these laws are often expressed in language that is “convoluted and poorly expressed,” with many statutes running long due to overly wordy formulations.
As an example, he pointed to the Crimes Act, which has grown from 208 pages in 1958 to 645 pages today.
“If, as I think, Victorian statutes are becoming ever more verbose, the position regarding Commonwealth statutes is, if anything, worse,” he said.
His most in-depth argument was that poor drafting has rendered the legislation “unduly complex and prescriptive”.
“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,” he said.
At a state level, he believes the greatest issues arise within clauses of the Sentencing Act, some of which are contradictory, confusing or overly detailed.
He also took particular aim at sections 97 and 98 of the Evidence Act 2008, describing them as the “bane of many trial judges”.
The Commonwealth regime did not escape his scrutiny either, with provisions within the Criminal Code critiqued for failing to clear up uncertainties arising from case law.
“[Judges] should not be forced to trawl through provisions that, in some cases, are so obscure as to lead almost to a ‘brain explosion’,” he said.
“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.
“In making these criticisms, I do not wish to be misunderstood. I recognise that drafting is a difficult process,” he said.
He acknowledged that drafting requires a high degree of skill and needs to balance the desires of the judiciary with accessibility to the public.
“Even making due allowance for these difficulties, however, there is something unsettling about the way in which some modern statutes are drafted.”