the victorian law reform commission

Question 1

overview of the VLRC

Answer 1

• Members of parliament often lack the time and resources to thoroughly investigate an issue
• In such cases, parliaments may pass the investigation of the need for law reform to independent law reform bodies that can conduct investigations and make recommendations
• Formal law reform bodies are organisations established by Commonwealth, state, and territory governments to inform them of societal changes that may require legal adjustments
• These bodies aim to provide impartial advice and make practical recommendations for law changes
• Parliament is not bound to follow the recommendations of formal law reform bodies, but the government is often influenced by their reports when considering legal changes
• The Victorian Law Reform Commission (VLRC) is Victoria’s leading independent law reform organisation, which reviews, researches, and makes recommendations to the Victorian Parliament regarding potential changes to laws

Question 2

define law reform bodies
organisations

Answer 2

established by the state and Commonwealth parliaments to investigate the need for
change in the law and make recommendations for reform

Question 3

Victorian Law Reform
Commission (VLRC)

Answer 3

Victoria’s leading independent law reform organisation. The VLRC reviews, researches and makes recommendations to
the state parliament about possible changes to Victoria’s laws

Question 4

define statute

Answer 4

a law made by parliament; a bill that has passed through
parliament and has received royal assent (also known as
legislation or an Act of Parliament)

Question 5

Introduction to the VLRC

Answer 5

• The Victorian Parliament established the VLRC in 2001 by passing the Victorian Law Reform Commission Act 2000 (Vic)
• The VLRC was created by statute and derives its powers and functions from that statute
• The VLRC aims to assist the Victorian Government in maintaining a fair, inclusive, and accessible legal system by investigating the need for changes in Victorian laws
• It provides the government with impartial advice and recommendations for legal reform
• Although created and funded by the Victorian Government, the VLRC operates as an independent organisation not involved in the political process or influenced by government policies or political parties
• The VLRC monitors and coordinates law reform activity in Victoria and advises the government on updating and improving laws
• When conducting investigations, the VLRC engages in community-wide consultation and debate to ensure its recommendations align with the needs and desires of the Victorian community
• The VLRC responds to issues and concerns raised by individuals and pressure groups while considering newly emerging rights and responsibilities

Question 6

Functions of the VLRC

Answer 6

Section 5 of the Victorian Law Reform Commission Act sets out the specific roles of the VLRC, four of
which are as follows:
* major inquiry
community inquiry
* monitoring
* education

Question 7

Functions of the VLRC - major inquiry

Answer 7

to examine and report on any proposal or matter referred to it by the Victorian
Attorney-General and make recommendations to the Attorney-General for law reform. This
includes conducting research, consulting with the community and reporting on law reform
projects

Question 8

Functions of the VLRC - community inquiry

Answer 8

to investigate any relatively minor legal issues that the VLRC believes are of general concern within the community and report back to the Attorney-General with suggestions for law reform. This means that in addition to its main role of examining legal issues and matters referred by the Attorney-General, the VLRC can also examine minor matters or areas of law reform without a reference, provided the review will not consume too many of its resources. These investigations are called community law reform projects

Question 9

Functions of the VLRC - monitoring

Answer 9

to monitor and coordinate law reform activity in Victoria, including making
suggestions to the Attorney-General that they refer a legal issue or matter relating to law reform to it for investigation. In other words, after consultation with various groups and other law-reform bodies, the VLRC may suggest to the Attorney-General new references relating to areas where law
reform would be desirable

Question 10

Functions of the VLRC - education

Answer 10

to undertake educational programs and inform the community on any area of the law relevant to its investigations or references. This means the VLRC delivers programs to help inform the community about its work. One way the VLRC achieves this is by visiting schools
throughout Victoria to talk to students about its role and past and current projects. It also provides a vast range of information about its investigations and references on its website.

Question 11

Processes used by the VLRC in law reform

Answer 11

• Before conducting an inquiry, the VLRC needs to have terms of reference
• Terms of reference can be received from the Attorney-General or drafted by the VLRC for relatively minor legal issues of general community concern
• The terms of reference outline the matters for inquiry and the completion date for the inquiry
• To assess the need for legal change, the VLRC consults with expert bodies in the relevant area and engages with the general community

Question 12

The other processes it uses will depend on the nature of the inquiry, but the VLRC may:

Answer 12

• undertake initial research and consult experts
• establish an expert panel or committee
• publish a consultation paper
• hold consultations and discussions with, and invite submissions from
• publish a final report
• present the final report to the Attorney-General

Question 13

Processes used by the VLRC in law reform - undertake initial research and consult experts

Answer 13

in the law under review to identify the most
important issues

Question 14

Processes used by the VLRC in law reform - establish an expert panel or committee

Answer 14

to provide advice to the VLRC about the subject
matter of the inquiry

Question 15

Processes used by the VLRC in law reform - publish a consultation paper (or issues paper)

Answer 15

which explains the key issues in the area under review and poses questions about what aspects of the law should be changed, and how, for community consideration

Question 16

Processes used by the VLRC in law reform - hold consultations and discussions with, and invite submissions from

Answer 16

parties who are affected by the area under review and members of the Victorian community. Submissions can be made in writing, online or by speaking to a Commission staff member. Members of the community may include interested individuals, groups and organisations. In particular, the VLRC will seek the views and opinions of people from marginalised groups such as those from non-English speaking backgrounds, people with disabilities, Fist Nations people and people living in remote communities

Question 17

Processes used by the VLRC in law reform - publish a final report

Answer 17

with recommendations for changes in the law. Depending on the requirements in the terms of reference, the VLRC may also publish an interim report during their inquiry which may focus on one particular aspect or area of the inquiry

Question 18

Processes used by the VLRC in law reform - present the final report to the Attorney-General

Answer 18

who will then table it in the Victorian Parliament within 14 sitting days. The government may decide to implement some or all of the
VLRC’s recommendations by incorporating them into a bill, but it is not bound (compelled) to do so, and there is no timeline for the government to respond

Question 19

define terms of reference

Answer 19

instructions given to a formal body (e.g. a law reform body or royal Commission) to investigate an important matter. Terms of reference set out the precise scope and purpose of the inquiry and the date by which the final report must be completed

Question 20

define stalking

Answer 20

following or monitoring an individual in a way that is intrusive or creates distress, anxiety or fear of harm
(e.g. maintaining close physical proximity to
the victim or repeatedly contacting them by post, telephone, texts, emails or other information and communication technology referred to as online stalking or cyber-stalking).

Question 21

Recent VLRC projects

Answer 21

• Since its creation in 2001, the VLRC has conducted numerous investigations and made hundreds of recommendations
• The VLRC has completed over 38 inquiries referred by the Victorian Attorney-General
• The VLRC has undertaken at least nine minor community law reform projects
• The government has adopted all or most of the VLRC’s recommendations in about 75% of completed inquiries
• The VLRC website provides information on completed and current projects

Question 22

Some completed projects include an examination of:

Answer 22

• Victoria’s committal and pre-trial procedures in indictable criminal matters (2020)
• improving the way the Victorian justice system responds to sexual offences (2021)
• making Victorian juries more inclusive (2022)
• improving Victoria’s stalking laws (2022)
• the meaning of ‘recklessness’ in the Victorian criminal law (2023)

Question 23

Investigating Victoria’s stalking laws - case example

Answer 23

• In 2022, the VLRC completed an inquiry into stalking, harassment, and similar conduct after receiving terms of reference from the Attorney-General
• The inquiry focused on how to strengthen laws to enhance victim safety and wellbeing, barriers to reporting for victims, and sentencing practices
• Stalking is a criminal offence in Victoria, with a maximum imprisonment of 10 years under section 21A of the Crimes Act 1958 (Vic)
• Stalking involves intrusive behaviours that create distress, anxiety, or fear of harm
• Family violence stalking refers to stalking by a family member
• The VLRC inquiry mainly focused on improving non-family violence stalking laws

Reasons for the inquiry included

• Prevalence of non-family violence stalking (affecting one in six women and one in fifteen men)
• Intimidating nature of stalking, making it hard to identify and escape
• Lack of community awareness surrounding stalking as a crime
• Difficulty in seeking assistance through the criminal justice system

Inquiry process included

• 115 submissions from individuals, groups, and organisations
• 36 consultations with expert organisations, including Victoria Police and the Victims of Crime Commissioner
• Small group meetings and round-table discussions with affected communities
• 254 responses to an online survey capturing public experiences of stalking

Recommendations from the inquiry

• Interim report aimed to improve Victoria Police’s response to stalking
• Final report focused on prevention measures and addressing stalker conduct

Interim report recommendations included

• Making it easier for victims to report stalking to police
• Improving how Victoria Police records stalking incidents
• Referring complex stalking cases to specialists in criminal investigation units

Final report recommendations included

• Easier access for victims to financial and practical support
• Ongoing public education about non-family stalking and cyber-stalking
• Amending the Crimes Act 1958 to clarify the stalking offence
• Funding training for magistrates, judges, and court personnel in stalking cases
• Reaffirmed recommendations for adequate training for Victoria Police to improve responses to non-family violence stalking

Question 24

Investigating more inclusive
juries

Answer 24

• In March 2020, the VLRC began a community law reform project to investigate changes to the law for inclusive jury service for people who are deaf, hard of hearing, blind, or have low vision

Reasons for the inquiry included

• Jurors must be capable of performing duties, including understanding, communicating, paying attention to evidence, and following the judge’s instructions under the Juries Act 2000 (Vic)
• Individuals with hearing or vision impairments are not technically prevented from serving, but communication barriers hinder their participation
• The ‘13th person rule’ prevents support persons from being present during jury deliberations, limiting access for those with impairments
• The inquiry aimed to consider legislative and practical changes to enhance access for these individuals wishing to serve as jurors
• The inquiry also considered whether there are specific circumstances for limiting jury service

Other reasons for the inquiry included

• Ensuring laws reflect contemporary community standards and do not discriminate based on personal characteristics
• Promoting inclusivity and civic responsibilities for individuals with impairments
• Ensuring juries represent a cross-section of the community

Inquiry process involved

• Extensive research and investigation by the VLRC
• 14 submissions and 29 consultations with legal bodies, support providers, and services
• An online survey to gather experiences and views from the community

Recommendations from the final report, tabled in May 2023, included

• Requiring judges to direct reasonable adjustments for individuals who are deaf, hard of hearing, blind, or have low vision to enable them to serve as jurors
• Suggested adjustments include Auslan interpreters, support persons, assistance animals, and disability aids
• Altering the ‘13th person rule’ to allow interpreters or support persons in the jury room as directed by the court
• The VLRC did not recommend changes regarding eligibility for those who cannot understand or communicate in English, as this issue was outside the inquiry’s terms of reference

Question 25

The ability of the VLRC to influence law reform

Answer 25

• The VLRC plays a crucial role in reviewing Victorian law
• It provides independent advice and recommendations for law changes to the Victorian Parliament
• Its scope to investigate major issues is limited, primarily focusing on matters referred by the Attorney-General
• The Victorian Parliament is not obligated to implement any of the VLRC’s final recommendations

Question 26

strengths

Answer 26

• The Victorian Government is more likely to act on VLRC reports and recommendations when it asks for investigations into specific areas
• The VLRC can also investigate and recommend changes on minor matters without a reference from the Attorney-General, leading to significant law reform
• The VLRC measures community views through consultations and public submissions, reflecting these in its recommendations
• This approach increases the likelihood of government implementation, as governments generally pursue reforms that align with public opinion to maintain voter support
• The VLRC can conduct comprehensive investigations, enabling the government to create new legislation that addresses entire issues
• The VLRC’s independence from parliament and political parties allows it to maintain objectivity and unbiased recommendations
• Statistics indicate the VLRC is influential, with approximately 75 percent of its recommendations being adopted in completed inquiries

Question 27

weaknesses

Answer 27

• Government support for the VLRC’s recommendations may require crossbench backing to pass law reform, especially if the government lacks a majority in the upper house
• The law-making process can be slow, delaying the immediate implementation of recommendations
• The VLRC is limited in the number of projects it can undertake simultaneously and can only initiate investigations without a reference if they do not consume excessive resources (money, staff, time)
• Investigations can be time-consuming, often taking 12 to 24 months to complete
• VLRC investigations are restricted to the terms of reference, limiting recommendations to specified areas even if other reforms are deemed necessary
• The Victorian Parliament is not obligated to adopt any of the VLRC’s recommendations
• The VLRC can only recommend changes to Victorian law, not Commonwealth law; it cannot suggest changes to areas governed by Commonwealth law as the Victorian Parliament has no jurisdiction over them