LEGAL STUDIES

Changing the Law: VLRCU3.AOS1

Parliament and

the citizen

Structure of

Parliament

Principles of the

Australian Parliamen

t

Reasons laws

change

Influencing

legislative change

Legislative process

for the progress of a bill

Strengths/

weaknesses of parl. as a law making body

Structure of Parliament

At the end of this topic, we will be able to: Explain the role of the Victorian Law

Reform Commission (VLRC) Evaluate the effectiveness of the

methods by which individuals and groups influence legislative changes, including the VLRC

Use contemporary examples to explain the influences on legislative change

SD 22

Changing the Law

VLRC

What is the VLRC?

VLRC = an independent, government-funded organisation that develops, reviews and recommends changes to the law in Victoria.

The VLRC was established in 2001.

The VLRC is a type of formal pressure: Formal pressures = pressures for change in

the law arising from the formal structures of government and parliament

Who forms the VLRC?

The VLRC consists of a full-time chairperson, a full-time commissioner and 7 part-time commissioners.

There is also an advisory council that provides directions and priorities for community law reform.

Role of the VLRC

VLRC’s main role is to undertake research and make recommendations for changes in the law. Law reform projects begin in one of two ways:

References

The Attorney-General* asks the VLRC to review an area

of law.

VLRC undertakes research and makes

recommendations.

Community Law Reform Project

Any member of the public, or community organisation, with a good idea to improve

the law can suggest a community law reform

project.

VLRC undertakes research and makes

recommendations.*The attorney-general is the principal legal officer of the Crown.

Power: What action can the VLRC take?

The VLRC has the power to:

Make law reform recommendations on matters referred to it by the attorney-general;

Make recommendations on minor legal issues of general community concern;

Suggest to the attorney-general that s/he refer a law reform issue to the Commission;

Monitor and coordinate law reform activity in Victoria, and

Educate the community on areas of law relevant to the Commission’s work.

Process

1. VLRC receives a reference or begins a community law reform project

2. VLRC staff begin to research and consult with expert and people affected by the law

3. An expert panel is formed

4. Consultation paper is published, explaining key issues and asking the community for submissions

5. Consultations with affected parties

6. Submissions are received and considered

7. VLRC writes a report outlining research and making recommendations for changes to the law

8. Final report published and delivered to the Attorney-General

9. Attorney-General tables the report in Parliament within 14 sitting days.

10. Government decides whether to implement recommendations

11. Parliament decides whether to pass new or amended legislation

Example 1: Jury Empanelment

Type of project: Reference What was the project about?

In March 2013, the VLRC was asked to review the jury empanelment process to ensure it operates justly, effectively and efficiently. Jury empanelment is the selection of people in the jury pool for a particular case.

The VLRC review includes consideration of: The use of peremptory challenges in criminal and civil trials

and Crown stand asides Whether jurors should be identified by their name or a

number What happens to additional jurors who are empanelled for

long trials.

Example 1: Jury Empanelment

• The Commission received terms of reference from the Attorney-General.

March 2013

• The Commission set up an online survey for jurors and received 381 responses.

September 2013

• The Commission published a consultation paper asking 27 questions. 36 consultations were held.

October 2013

• The Commission received 18 submissions by the closing date.

15 November 2014

• The report was delivered to the Attorney-General. 31 May 2014

• The report was tabled in Parliament.3

September 2014

Example 1: Jury Empanelment

16 recommendations including: Reducing the number of jurors that both sides can

challenge, from six to three in criminal cases and from three to two in civil cases. This will help to ensure that juries are representative of the community.

Protecting the privacy of jurors by always identifying them in court by number instead of by name.

Changes to the jury empanelment process to make it less stressful for jurors and the accused.

Abolishing the practice of ‘balloting off’ any extra jurors empanelled for long trials, before the jury retires to consider its verdict, due to the distress this can cause.

Example 1: Jury Empanelment

Result? The report was tabled in the Victorian

Parliament in September 2014. The Attorney- General said the Victorian Government would give careful consideration to the report’s recommendations.

The Government has already introduced legislation to amend the Juries Act to provide that any prospective juror who is stood aside by the Crown should be removed from the ballot for that trial, allowing them to go back into the jury pool for other trials, as was recommended by the Commission.

Example 2: Birth Registration and Birth Certificates

Type of project: Community Law Reform What was the project about?

This enquiry was implemented to look at ways of improving the process of registering births of children. Legally, all births of children should be registered.

There are about 75,000 births in Victoria per year. However, it is estimated that more than 2,000 births are not registered within six months of the birth. It is unknown how many births are not registered.

If a birth is not registered it is not possible for the child to obtain a birth certificate or access their full civil citizenship rights such as being covered by Medicare or enrolling at school. People from disadvantaged backgrounds have sometimes been found to not register births.

VLRC looked at ways to improve processes to make it easier for everyone, in particular to assist disadvantaged and vulnerable groups.

Example 2: Birth Registration and Birth Certificates

• VLRC held discussions with the Castan Centre about barriers to birth registration affecting Aboriginal people.

Early 2012

• VLRC developed terms of reference for a project about birth registration and birth certificates for the whole community.

May 2012

• VLRC published a consultation paper that identified the issues and asked people for their opinions, ideas and experiences.

September 2012

• VLRC held 33 consultations with individuals and groups in Melbourne and regionally.

Sep 2012 -

Jan 2013

• Deadline for submissions. 1 Nov 2012

• VLRC completed its final report on birth registration and birth certificates, with 26 recommendations, and delivered it to the A-G.

July 2013

• The report was tabled in the Victorian Parliament. November 2013

Example 2: Birth Registration and Birth Certificates

26 recommendations including: Granting a fee waiver of the birth certificate

fee ($28.60) for vulnerable and disadvantaged people. VLRC suggested methods of offsetting this cost against other Registry services.

Making it easier for people to obtain the identity documents they need, if they apply for a birth certificate years after their birth was registered.

Changing the process for birth registration in cases where domestic violence may be an issue.

Example 2: Birth Registration and Birth Certificates

Result? A-G tabled the report in Parliament in November 2013. A-G said work by the Registry of Births, Deaths and

Marriages was underway or completed on many of the Commission’s recommendations, including:

Additional information provided on birth registration forms Additional protections for identifying information where the

applicant is at risk of family violence Development of an online system for parents to register

births A page on the Registry website providing information about

Koori services Revisions to proof of identity requirements when registering

a birth Development of guidelines for waiving certificate fees

Strengths and Weaknesses of the VLRC

Strengths

• the government has asked the VLRC to investigate an area and therefore the government is more likely to act on its report on the need for change

• can gauge public opinion by receiving public submissions and holding seminars in which people can have their say

• is able to investigate an area comprehensively so the government can initiate a new law that covers a whole issue, such as the Abortion Law Reform Act 2008, which was the outcome from the VLRC abortion report

Weaknesses

• can only investigate issues referred to it by the government or minor issues that it can look into without a reference

• there is no obligation on the part of the government to follow any of the recommendations made

• investigations can be time-consuming and costly

• VLRC may be restricted by terms of reference

Practice Question

Sophie has a civil dispute with her neighbour. She is seeking $500 000 in damages. Sophie thinks that she can go to the Victorian Law Reform Commission (VLRC) to seek legal advice.

Outline why this statements is incorrect. (1 mark, 2013)

Sample Answer

The VLRC is a government body that makes recommendations to the Victorian Parliament for law reform. It does not give legal advice.

Examiner’s ReportThe question indicated that each statement was incorrect, so simply stating that ‘the Victorian Law Reform Commission (VLRC) does not give legal advice’ was not awarded any marks (as this sort of response did not explain why and did not expand on the information already given).

Practice Question

Describe the role of the VLRC.(3 marks, 2011)

Sample Answer

The VLRC: reviews the current law finds out how it is operating in practice discovers any problems or omissions consults the public and interested parties and groups formulates a report.

The VLRC can use a variety of strategies including internal research and contributions from the public, community organisations, academics, lawyers, government and private sector organisations. It calls for submissions from these groups, holds face to face consultations in rural and metropolitan areas, prepares issues and discussion papers, and prepares final reports. Examiner’s Report

Some students were too vague or brief in describing the role of the VLRC and therefore did not gain full marks for this part.

Practice Question

‘Without the assistance of the Victorian Law Reform Commission (VLRC), the Victorian Parliament would be less able to make laws that reflect society’s values.’

To what extent do you agree? Give reasons for your answer.

(7 marks, 2012)

Sample Answer

I agree partly with this statement. I agree that the role of the VLRC is crucial to the Victorian Parliament, and I agree that the Victorian Parliament is often not in touch with society’s values, however I do also believe that the Victorian Parliament is able to make laws that reflect society’s values without the assistance of the VLRC.

The Victorian Parliament is elected by the people. It is meant to be representative of the people. Given that members of parliament could be voted out at the next election if the people feel that it is not representative of them, usually the members of the Parliament will consult with their local areas to determine their views on various issues. This does not require the assistance of the VLRC.

However, many people would say that despite members of parliament doing this, that Parliament itself is often reluctant to change laws, despite the values of the community, because they are afraid that they will be elected out on controversial issues. Therefore, in some respects, Parliament is not able to make laws that reflect society’s values because of its own concerns about the consequences of that.

Sample Answer

Examiner’s ReportThe statement made two general assumptions: that the Victorian Parliament was not able to make laws that reflected society’s values, and that the VLRC was able to assist the Victorian Parliament to do so. Therefore, students were expected to state their opinion, and consider and break down both of the assumptions.

To gain full marks, the following needed to be evident in the response. • an indication of the extent to which the student agreed or

disagreed with the statement • references to the VLRC and how it may or may not assist

the Victorian Parliament to make laws that reflect society’s values (depending on the opinion of the student)

• a consideration of the ability of the Victorian Parliament to make laws that reflect society’s values – that is, the strengths or weaknesses of Parliament to do so (depending on the opinion of the student)

Let’s brainstorm the most important points for the VLRC assumption

The VLRC has several roles that enable it to be in touch with the values of society and therefore take those values into consideration when it provides its final report.

Consult with the community, including: asking questions of the community inviting written submissions from the public and other organisations o

undertaking consultations through discussion groups or forums publishing draft reports for public comment.

After consulting with the community and experts, makes recommendations to the Victorian Parliament.

If the public has given notice to the VLRC about changes that should be made to a law in relation to minor issues and the VLRC has not been provided with terms of reference, the VLRC is able to recommend changes to the law.

On major issues, the VLRC is able to suggest to the Attorney-General that terms of reference be provided after having consulted with the community.

Let’s brainstorm the most important points for the Victorian Parliament assumption

It is elected by the people and is considered to be both responsible and representative of the people. Many parliamentarians consult with their constituent to gauge their views and values.

Parliament is able to investigate a topic extensively and is able to consider society’s values in those investigations.

It is able to delegate its law-making power to those bodies that are ‘closer’ to people’s values, such as councils and statutory authorities.

Parliament is open to debate and the public is able to access their members of parliament through their electorate or even through processes such as petitions, which may alert parliament to values held by society.

Parliament is often reluctant to change laws that are controversial, even though society’s values may differ from those laws.

Because of the many conflicting values in society, parliament is not necessarily able to make laws that ‘reflect society’s values’, as those values differ.

The Victorian Parliament may be reluctant to change controversial laws to avoid not being re-elected.

Summary Notes: guiding questions

What are formal reform bodies? How successful is the VLRC likely to be in influencing

parliament to change the law? Discuss giving examples to illustrate your answer.

Describe the role of the VLRC. Discuss an area of law that has been investigated by the

VLRC. Explain the methods used by the VLRC to assess the need for change in the law. Comment on what, if any, changes in the law have taken place as a result of the VLRC investigation.

Evaluate the effectiveness of methods used by individuals and groups to influence change in the law. In your evaluation look at the strengths and weaknesses of the methods used.

Homework

1. Complete your summary notes for VLRC1. Use the guiding questions on slide 29 to

help structure your notes

2. Complete the folio activity on page 61 of your textbook.