LEGAL STUDIES UNIT 3

The role of the VLRC: questions and case studies for Unit 3

Jenny PooreTrinity Grammar School, Kew

VCE Legal Studies Unit 3 students are required to examine the role of the Victorian Law Reform Commission (VLRC) in Area of Study 1 (‘Parliament and the citizen’). They are also required to consider the reasons why laws may need to change and influences on legislative change. This combined knowledge will help students to evaluate the effectiveness of parliament as a law-making body. The following questions and tasks are designed to assist students to develop an understanding of, and make connections between, these aspects of Area of Study 1 in Unit 3. Also provided are teacher notes that outline a suggested teaching approach and resources for this topic.

Questions and tasksWhy legal change is neededLaws must be relevant, meaningful, fair and enforceable to operate effectively. As society changes, laws must also change to reflect the needs and values of society. For example:

following an increase in dog attacks on people the Victorian Government has introduced new offences for people who fail to control a dangerous, menacing or restricted-breed dog

due to the increased incidence of workplace bullying and the tragic effects of systematic bullying by employees, this behaviour has been made an offence under the Crimes Act.

There are various factors that influence the government to change the law, such as advances in technology; for example, the introduction of mobile phones has made it necessary to introduce privacy laws. Other factors include changing attitudes and values, the need to protect rights, out-of-date laws, changes in society, among others.

Influences on legislative changeAction that influences a change in the law can come from formal and informal sources. Formal sources include royal commissions, government inquiries, parliamentary committees and law reform bodies such as the Victorian Law Reform Commission (VLRC).

The VLRC is a state government agency responsible for developing law reform in Victoria. It is not an advocacy organisation or pressure group but an independent agency that reviews the law and makes recommendations. Decisions about implementation are entirely up to the government.

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To start the process of law reform, the Attorney-General gives the VLRC a reference identifying an area of law that needs to be reviewed or developed. The law reform process undertaken by the VLRC involves research, the publication of information, discussion and/or consultation papers, submissions from interested individuals and groups, and a final report that outlines the research findings and makes recommendations for changes in the law. The Attorney-General tables the report in parliament within 14 sitting days, and the government then decides whether to implement the recommendations (in whole or in part).

Informal sources include individuals and groups such as pressure groups, industry groups and professional associations.

Methods used by individuals and groupsMethods used by individuals and groups to influence a change in the law include petitions, the media, demonstrations, lobbying, a Private Member’s Bill, and preparing submissions to inquiries (for example, conducted by law reform bodies such as the VLRC).

Complete the following questions.

1 Explain why laws may need to change.

2 The following table lists factors that influence legislative change. Complete the table by listing other specific factors that influence a change in the law and provide examples of each factor.

Factor Example 1 Example 2

Problem with the current law Workplace bullying—inadequately covered in previous law

Advances in technology High-speed motor vehicles—impound or immobilise a vehicle for 30 days

Changing attitudes or values Plain cigarette packaging; abolition of provocation as a defence

Out-of-date laws In Victoria, only a licensed electrician is allowed to change a light bulb

Changes in society, such as changing expectations

Desire for extended shop-trading hours

Greater need for protection of the community

Need to protect rights

3 a. Action that influences a change in the law can come from formal and informal sources. Using examples, explain how these two sources differ.

b. Using examples, list the methods that can be used to change the law.

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The role of the VLRCRefer to the following resources to complete the questions below.

Victorian Law Reform Commission website: http://www.lawreform.vic.gov.au Law Reform: Our Process (poster, PDF or print version):

http://www.lawreform.vic.gov.au/student/law-reform-our-process Law Reform in Action (booklet, PDF or print version):

http://www.lawreform.vic.gov.au/student/law-reform-action.

1 What does the VLRC do?

2 Name the legislation that established the VLRC.

3 List the powers of the VLRC under Section 5 of the legislation. (Hint: Refer to Law Reform in Action.)

The law reform processTerms of reference

1 With regard to the Victorian Law Reform Commission, define ‘terms of reference’.

2 Locate a current inquiry (reference) on the VLRC website and identify the: purpose of the review terms of reference.

Process of investigation

After a legal problem has been identified and the Victorian Attorney-General has given a reference to the VLRC, the VLRC follows a process to determine if a change in the law is needed. Outline the process in detail, by drawing and labelling a flow chart. (Hint: Refer to the VLRC poster.)

Case studyChoose a completed law reform inquiry from the VLRC website (click on Inquiries), for example:

Surveillance in Public Places (completed June 2010) Child Protection (completed February 2010) Jury Directions (completed June 2009) Abortion (completed August 2008) Bail (completed October 2007).

Each completed inquiry provides the terms of reference, a final report and recommendations.

Copy and then complete the following table by making abbreviated notes based on the selected inquiry.

Topic:

Terms of reference/date:

Process of investigation:

Recommendations (final report):

Accepted by parliament?

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The Victorian Law Reform Commission uses a variety of publications to inform its audiences and most inquiries have at least two publications, including a consultation paper and a final report.

Structured questionsQuestion 1

a. Outline the role of the VLRC. (1 mark, 1.7 minutes)

b. Describe the role of the VLRC. (2 marks, 3.4 minutes)

c. Explain the role of the VLRC. (3 marks, 5.1 minutes)

Question 2Explain why the Victorian Government refers legal issues to the VLRC for investigation. (4 marks)

Question 3Explain how the VLRC ensures that recommendations for change to the law reflect best practice and community values. (4 marks)

Question 4Explain how the VLRC involves the community in determining recommendations for changes to the law. (4 marks)

Question 5Outline the process followed by the VLRC in determining the need for a change in the law. (5 marks)

Question 6Evaluate the VLRC’s role in assisting the Victorian Parliament to make effective and relevant laws for the state of Victoria. (5 marks)

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Question 7Discuss factors that may hinder reforms recommended by the VLRC for introduction by the government. (6 marks)

Question 8Evaluate the effectiveness of the VLRC’s contribution to best practice in laws. (6 marks)

Question 9Analyse the importance of the VLRC including marginalised groups, such as Indigenous people and those from non-English speaking backgrounds or from country regions, in their investigations of legal issues referred to it. (6 marks)

The Victorian Law Reform Commission investigates legal issues of general community concern such as the current review of the process for birth registration and obtaining a birth certificate, which includes asking people about their experience in using the system.

Past examination question and sample questionComplete the following questions under timed conditions.

Question 13, 2011 VCAA examinationIn a recent submission to the Victorian Law Reform Commission (VLRC), an individual stated that the ‘jury system is outdated and should be abolished.’ Discuss the extent to which you agree or disagree with this statement. In your answer, describe the role of the VLRC. (10 marks)

2012 sample VCAA paper: Question 2 The Victorian Law Reform Commission (VLRC) recently completed a report on existing bail laws. One of its findings was that bail laws in Victoria needed to be simplified and streamlined.

a. Explain one purpose of bail.

b. Describe the role of the Victorian Law Reform Commission in attempting to bring about a change to bail laws. (2 + 2 = 4 marks)

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Teacher notesAn examination of the role of the VLRC provides an excellent means of cross-referencing to other topic areas in VCE Legal Studies Units 3 and 4, for example the jury system and pre-trial procedures such as bail. It also provides the opportunity for students to develop higher order skills such as ‘evaluate’, ‘critically evaluate’, ‘discuss’ and ‘analyse’ in preparation for a range of task words in examination questions. In addition, it is a useful revision topic for students who have completed VCE Legal Studies Units 1 and 2, particularly by using the completed VLRC reports. For further information, refer to http://www.lawreform.vic.gov.au and click on Publications … Reports. To access a particular report, select form the topic search types in ‘Document search’. For example, the report on jury directions can be found by searching under the topic of ‘Courts and Processes’.

ResourcesThe VLRC website provides succinct and current information on the role of the Commission and the inquiries it conducts (http://www.lawreform.vic.gov.au). This website also has a number of excellent publications (click on Publications on the home page). Access the following resources:

Law Reform: Our Process (poster, PDF and print versions available): http://www.lawreform.vic.gov.au/student/law-reform-our-process

Law Reform in Action (booklet, PDF and print versions available): http://www.lawreform.vic.gov.au/student/law-reform-action.

Print versions of the above resources can be ordered from the VLRC by phoning (03) 8808 7800 or by sending an email to: law.reform@lawreform.vic.gov.au.

Suggested teaching approachStep 1: Influences on legislative changeStudents are to complete the questions on the reasons why laws may need to change, the influences or sources of legislative change and the methods used by individuals and groups to bring about a change in the law.

Formal sources

Formal sources refer to the formal structures of parliament or government, including the work of law reform bodies that review areas of law and make recommendations for reform.

Examples: Australian Law Reform Commission (federal), Victorian Law Reform Commission (state), parliamentary committees (federal/state), Cabinet (federal/state), government departments (federal/state).

Calls for submissions for particular reviews are sometimes advertised in newspapers. Consultation papers for specific reviews also contain a section inviting comments on the paper.

Informal sources

Informal sources include individuals and groups that try to influence legislative change through, for example, petitions, pressure groups, by joining a political party, protests or demonstrations, the media in its different forms, and submissions to law reform inquiries.

Examples: GetUp—Pokies petition; CommunityRun—Julian Assange petition; Animals Australia—campaign against puppy farms and abuse of animals in abattoirs; Avaaz.org—action against child labour laws and government control of the Internet.

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Step 2: Questions and tasksStudents are to complete the questions listed. Suggested answers are provided below.

The role of the VLRC

1 What does the VLRC do? The VLRC is an independent, government-funded organisation that reviews and recommends reform of Victoria’s state laws. The VLRC undertakes community consultations and conducts research into particular areas of Victorian law, usually at the request of the Attorney-General. It also provides information and education to students and the community on law reform.

2 Name the legislation that established the VLRC.Victorian Law Reform Commission Act 2000

3 List the powers of the VLRC under Section 5 of the legislation. (Hint: Refer to the VLRC booklet Law Reform in Action.)The powers of the VLRC as set out in Section 5 of the Victorian Law Reform Commission Act 2000 are: review areas of the law referred to it by the Victorian Attorney-General (Robert Clarke) make recommendations for reform on minor legal issues of general community concern suggest to the Attorney-General that he or she refer a law reform issue to the VLRC educate the community on areas of law relevant to the work of the VLRC monitor and coordinate law reform activity in Victoria.

The process of law reform

Terms of referenceThe review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 provides a current example of a VLRC inquiry. Using the interactive board to display the terms of reference (ToR) for the review, discuss the ToR and the date that the VLRC will report to the Attorney-General. This information can be found at: http://www.lawreform.vic.gov.au/inquiries/crimes-mental-impairment and http://www.lawreform.vic.gov.au/projects/crimes-mental-impairment/crimes-mental-impairment-terms-reference.

1 In regard to the Victorian Law Reform Commission, define ‘terms of reference’.Depending on the agency, terms of reference vary widely. In regard to the Victorian Law Reform Commission, the terms of reference received from the Attorney-General describe the matters to be investigated and specify a reporting date. The terms of reference may also include some guidance as to the scope of the investigation. This might include issues of particular importance and/or issues that are not to be included in the investigation.

2 Locate a current inquiry (reference) on the VLRC website and identify the: purpose of the review terms of reference.Students are to refer to http://www.lawreform.vic.gov.au > Inquiries and select from the current inquiries.

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Process of investigation

After a legal problem has been identified and the Victorian Attorney-General has given a reference to the VLRC, the VLRC follows a process to determine if a change in the law is needed. Outline the process in detail, by drawing and labelling a flow chart. (Hint: Refer to the VLRC poster.)Students should outline the following steps in their flow chart:

initial research and consultation, such as the law in other states and countries; the work of other law reform bodies; studying cases and talking to people affected by the law; possible formation of a committee of experts to offer specialist advice; release of an information paper outlining the issues and asking for submissions

consultation paper is published that outlines the issues involved and may identify options for reforms and invites submissions; submissions are considered by researchers and further research is undertaken

consultations with affected individuals, groups and organisations and experts in the field, using methods such as roundtables or public forums (examples of consultation papers can be found on the VLRC website)

a report with recommendations is published, which can be an interim or final report—this outlines the VLRC research and makes recommendations for changes to the law

the Attorney-General tables the report in parliament within 14 sitting days the government decides whether to draft legislation as a result of the recommendations in the

report parliament decides whether or not to pass the proposed legislation.

Step 3: Case studyStudents are to choose a completed law reform inquiry from the VLRC website: http://www.lawreform.vic.gov.au > Inquiries. They should then copy and complete the table provided (see page 3).

Step 4: Structured questionsThe role of the VLRC is an excellent topic for students to develop an understanding of the differences between different task words in questions, such as ‘outline’, ‘describe’ and ‘explain’, and to practise exam-style questions under timed conditions. This section also includes questions with higher order task words.

Task words provide students with a guide to how much time they should spend on a question or on a multi-part question. Questions or question parts with higher order task words such as ‘discuss’ require students to spend more time on the answer than for lower order questions or question parts.

Question 1 highlights the use of the task words ‘outline’, ‘explain’ and ‘describe’. ‘Outline’ means to provide a brief description; ‘explain’ means to make the meaning of something clear; ‘describe’ means to provide a detailed account of something.

Students should obtain a sheet containing task words commonly used in VCE Legal Studies Units 3 and 4 examination questions and definitions.

Suggested answers or points to be covered in answers are provided for three of the questions.

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Question 1

a. Outline the role of the VLRC. (1 mark, 1.7 minutes)Sample answer:

The VLRC is an independent organisation that reviews and recommends law reform in Victoria. It undertakes community consultations and educates the community on law reform.

b. Describe the role of the VLRC. (2 marks, 3.4 minutes)Sample answer:

The VLRC is a government-funded organisation that provides independent advice to the government on the need for law reform within the state based on the terms of reference given by the Attorney-General. It reviews laws and practices, and recommends law reform in Victoria, undertakes community consultations and provides information and education to students and the community on law reform.

c. Explain the role of the VLRC. (3 marks, 5.1 minutes)Sample answer:

Established under the Victorian Law Reform Commission Act 2000, the VLRC reviews areas of the law, undertakes research, and makes recommendations for reform, either on matters referred to it by the Attorney-General or on minor matters of community concern. It does this by conducting research into particular areas of Victorian law and consulting with experts and the public through such means as the release of discussion papers and public forums. It publishes a final report that is presented to parliament by the Attorney-General. The government then decides whether to draft legislation as a result of the recommendations in the report. It also provides information and education to students and the community on law reform and educates the community on particular areas of law relevant to the work of the VLRC.

Question 2

Explain why the Victorian Government refers legal issues to the VLRC for investigation. (4 marks)Suggested points:

the government is representative of the electorate and therefore must implement laws that reflect the majority of the voting public’s views and values—if a particular law is out of step with prevailing community views and values, a review of that law may become necessary

the government must provide for the diverse needs of the community; in reviewing the law the VLRC consults widely and makes recommendations for reform that help to ensure that the legal system meets the needs of the Victorian community

the process of investigation of a legal issue or question allows for public (individuals and groups) to contribute their views and experiences

the VLRC considers best practice in laws from other states and countries.

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Question 7

Discuss factors that may hinder reforms recommended by the VLRC for introduction by the government.Suggested points:

how politically acceptable/controversial the recommendations for change are whether, at the time of the final report, the government has other considerations and priorities the time lapse between the terms of reference being issued and the final report being published

may reduce the importance of the area of law the support of the relevant government department.

Step 5: Past examination question and sample questionStudents are to complete the following questions under timed conditions.

Question 13, 2011 VCAA examination

In a recent submission to the Victorian Law Reform Commission (VLRC), an individual stated that the ‘jury system is outdated and should be abolished’. Discuss the extent to which you agree or disagree with this statement. In your answer, describe the role of the VLRC. (10 marks)Points to discuss with students:

this question combines content from Units 3 and 4, that is, the role of the VLRC and issues about the jury system (an opinion must also be provided in the answer)

the meaning of the relevant task words: ‘describe the role of …’ and ‘discuss the extent to which …’

only 17 minutes were available to answer the question, including thinking and planning time refer to pages 13–14 of the 2011 Legal Studies Exam Assessment Report, which can be found

on the Victorian Curriculum and Assessment Authority (VCAA) website: http://www.vcaa.vic.edu.au/Pages/vce/studies/legalstudies/exams.aspx. The average mark achieved for this question was 5.3. The report provides a detailed comment on how the question should have been answered. In relation to the part of the question asking for a description of the role of the VLRC, the report (page 14) states that the following points could have been made:

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.

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2012 sample VCAA paper: Question 2

The Victorian Law Reform Commission (VLRC) recently completed a report on existing bail laws. One of its findings was that bail laws in Victoria needed to be simplified and streamlined.

a. Explain one purpose of bail. b. Describe the role of the Victorian Law Reform Commission in attempting to bring about

a change to bail laws. (2 + 2 = 4 marks)Points to discuss with students:

this question combines content from Units 3 and 4, that is, the role of the VLRC and bail (criminal pre-trial procedures)

the meaning of the relevant task words: ‘explain one purpose …’ and ‘describe the role of …’.

Step 6: End-of-topic discussionOn the interactive whiteboard, display the PDF version of the VLRC final report on the Abortion inquiry (completed August 2008): http://www.lawreform.vic.gov.au/projects/abortion/law-abortion-final-report. (Note: An HTML version of the report is also available.)

The Crimes Act 1958 states that it is an offence to bring about, or attempt to bring about, an unlawful termination of pregnancy. The circumstances in which an abortion is lawful has been left to the courts to determine. For laws to be effective, they need to be clear, up-to-date, widely understood, and must keep pace with changes in society. The law on abortion is an example of where this has not occurred and illustrates the role and importance of both courts and parliament as law-makers.

Refer to Chapter 2 of the report to discuss the following points with students: Section 2.1 (page 16): The law of abortion in Victoria was unclear—early law came from a

19th century British statute. Suggest reasons why abortion law may have taken such a long time to be clarified.

Section 2.3 (page 16): The determination of circumstances in which abortion could be lawful was left to the courts. What problems arise when the law lacks clarity?

Section 2.6 (page 16): The reference to the Victorian Charter of Human Rights and Responsibilities Act 2006. What observation about the Charter is made in the report? Why is this significant?

Section 2.21, (page 18): Three sections of the Crimes Act 1958 (statute law) refer to the word ‘unlawfully’. What does this word mean? It is not defined in the Crimes Act, and, according to the report, it is unlikely that its meaning is the same in all sections of the Act; hence its meaning is left to the courts. What problems could arise for cases before the courts?

Section 2.22 (page 18): This section describes the Menhennitt ruling in R v. Davidson (1969) as an exercise in statutory interpretation (1969) where Justice Menhennitt interpreted the word ‘unlawfully’. He looked at the meaning given to the word in an earlier English case and to common law rules that can assist when giving meaning to criminal law statutes. Justice Menhennitt determined that therapeutic abortions were lawful in particular circumstances.

Page 8: The VLRC made a number of recommendations and presented a number of legislative options for reform of the law. One of the options presented was codification of the current circumstances in which an abortion is lawful. The second legislative option related to the timing of termination, while the third option for change was based on a woman’s decision.

This discussion will highlight: the role and work of the VLRC; the types of legal issues that arise that need to be analysed and reviewed by the VLRC; and the reasons why laws need to change. It will also allow consideration of how effective parliament is as a law-making body. In addition, the discussion will provide a lead-in to Area of Study 3 in Unit 3: ‘The role of courts in law-making’.

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