Agencies of Law Reform (HSC SSCE Legal Studies): Revision Notes
Agencies of Law Reform
Introduction
Laws can become outdated or unable to regulate society fairly. When this happens, various organisations and groups investigate the need for reform and report their findings. These are known as agencies of law reform. They research legal issues, consult with stakeholders, and make recommendations to government about how laws should be changed.
Law reform commissions
Law reform commissions are independent bodies established by parliaments to investigate and report on legal matters. They play a crucial role in identifying areas where the law needs modernising or simplifying.
Key features of law reform commissions
Independence: Law reform commissions must be independent of the parliament that created them. This independence is critical because:
- Political interference can distort research findings
- Governments should not already know the answer when setting terms of reference
- Objective analysis leads to better recommendations
Terms of reference: A set of guidelines that define the purpose and scope of an inquiry. These establish what the commission should investigate and what questions it should answer.
Process: Commissions conduct inquiries through:
- Detailed research into existing laws
- Public consultation with affected groups
- Analysis of international approaches
- Examination of expert evidence
Recommendations: After completing their inquiry, commissions submit reports containing recommendations to government. The government may:
- Accept all recommendations
- Accept some recommendations
- Reject the report entirely
- Delay implementation depending on political circumstances
The Australian Law Reform Commission (ALRC)
Establishment: Created in $1975 under the Australian Law Reform Commission Act 1996 (Cth).
Legal status: An independent statutory body (established by statute/legislation).
Main roles:
- Review Commonwealth laws referred by the Attorney-General
- Conduct inquiries into areas of federal law reform
- Advise government on how laws can meet current needs
- Promote harmonisation of Commonwealth, state and territory laws
Harmonisation means achieving agreement among the laws of different jurisdictions, reducing inconsistencies across Australia.
Protection of rights: The ALRC must ensure that:
- Laws and recommendations do not violate personal rights
- Proposals align with Australia's international obligations
- Human rights considerations are central to recommendations
Success rate: More than 80% of ALRC recommendations have been either substantially or partially implemented by government, demonstrating its significant influence on law reform.
Recent areas of reform: The ALRC has examined:
- Federal sedition laws (words or acts intended to urge others to use force against government)
- Privacy laws
- Freedom of information legislation
The NSW Law Reform Commission
Establishment: Set up under the Law Reform Commission Act 1967 (NSW). This was the first law reform commission in Australia.
Main roles at state level:
- Consider NSW laws to eliminate outdated, unnecessary, or overly complex provisions
- Identify defective aspects of legislation
- Consolidate overlapping legislation to simplify the law
- Respond to issues referred by the NSW Government
- Consult with the public during investigations
Worked Example: Majority verdicts inquiry (2005)
The Commission investigated changing from unanimous jury verdicts to majority verdicts of 11 or 10 jurors.
Background statistics:
- NSW Bureau of Crime Statistics and Research (2002) found 8% of District Court trials (1998-2001) resulted in a hung jury (a jury unable to reach agreement)
- Over 90% of hung juries had votes of 7-5 or 8-4
Arguments for majority verdicts:
- Quicker and easier verdicts
- Less pressure on individual jurors
- Consistency with most other Australian jurisdictions
Arguments against (for retaining unanimity):
- Accords with 'beyond reasonable doubt' principle
- If one or two jurors doubt guilt, this constitutes reasonable doubt
- Allows greater deliberation of issues
- Juries may disagree for valid reasons
- Promotes community confidence in justice
- Consistent with Commonwealth offence requirements
- Number of hung juries is relatively small
Commission's recommendation: The Commission advised against introducing majority verdicts, stating more research was needed into how juries deliberate and why they reach certain decisions.
Government response: Despite this advice, the NSW Government passed the Jury Amendment (Verdicts) Act 2006, amending the Jury Act 1977 (NSW) to allow majority verdicts of 11-1 or 10-1 after at least 8 hours of deliberation when unanimity appears unlikely.
Political context: The change appeared politically motivated, appealing to 'law and order' concerns rather than addressing a malfunctioning system. The government cited protecting crime victims from retrial anguish, though this may compromise the accused's right to the highest standard of proof.
Implementation factors: The extent to which NSW adopts Law Reform Commission recommendations typically depends on:
- Economic considerations
- Political circumstances at the time
- Public pressure and electoral concerns
Parliamentary committees
Parliamentary committees are groups established by parliament houses to examine issues in greater detail than is possible during regular parliamentary sessions.
Purpose and functions
Parliamentary committees serve to:
- Scrutinise government activity and policy decisions
- Examine complex or flawed legislation requiring greater analysis
- Oversee expenditure of public money
- Investigate administrative decisions
- Review bills and departmental performance
Types of committees
Standing committees:
- Permanent committees that exist throughout the life of the parliament that appointed them
- Inquire into and report on matters referred by the Senate or House of Representatives
- Examine estimates of expenditure, bills, and departmental performance
- Example: Senate Standing Committee on Finance and Public Administration
Select committees:
- Small committees appointed for a specific purpose
- Temporary, created for a once-only task
- Disbanded after completing their inquiry
Joint committees:
- Include both Members of Parliament and Senators
- Allow collaboration between both houses of parliament
Committee inquiry process
When a committee undertakes an inquiry:
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Terms of reference are established to define the inquiry's scope
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Public consultation occurs:
- Members of the public can make submissions
- Experts in relevant fields are invited to present evidence
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Hearings are conducted:
- Committee hears witnesses
- Evidence is examined
- Conclusions are formulated
- Media typically attend and report on proceedings
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Recording: All submissions are recorded in Hansard (a full account of what is said in parliament or parliamentary inquiries, named after English printer T.C. Hansard, 1776-1833) and made available online
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Reporting: The committee writes and tables (places on the table for discussion) a report in parliament containing findings and recommendations
Transparency
Committee hearings are conducted in public, ensuring:
- Democratic accountability
- Public access to the inquiry process
- Transparency in government decision-making
- Ability for citizens to review submissions and evidence
The media
A free and independent media is essential for democracy and can be a powerful agent of law reform.
Characteristics of effective media in democracy
Freedom: The government cannot influence what is reported or how stories are presented, ensuring accurate accounts reach the public.
Diversity: Multiple media owners prevent any single individual or company from dominating public discourse with a particular ideological view.
Reach: Programs like ABC's 7.30 Report can interview key political figures (prime minister, premiers, Cabinet ministers) about contentious issues, reaching large audiences across wide geographical areas.
Role in law reform
The media influences law reform by:
Holding government accountable: Keeping citizens informed allows them to apply public pressure on governments to address:
- Injustice
- Incompetence
- Corruption
Reporting individual stories: Highlighting cases of people who suffer due to poorly framed laws, such as:
- Discrimination
- Persecution
- Financial loss
Raising awareness: Sustained media coverage can transform public understanding of issues and create momentum for reform.
Example: Sexual assault law reform
The plight of sexual assault victims received significant media attention across all platforms over recent years. This resulted in law reform recognising that:
- Sexual assault is a 'special crime'
- It cannot be treated like other crimes
- Additional legal responses are required
Limitations on media effectiveness
The effectiveness of media in influencing law reform depends on political factors:
- Issues affecting voters in hotly contested electorates receive more attention
- Issues in the government's key support base are prioritised
- Safe seat issues may be ignored in hopes they fade from public attention
- Electoral calculations can override merit-based policy considerations
Non-government organisations (NGOs)
Non-government organisations are independent bodies that work to improve people's circumstances within their mission scope.
Characteristics of NGOs
NGOs share these common features:
Voluntary formation: Individuals come together voluntarily to create the organisation
Independence: They are independent of government and not obliged to conform to government policy
Not-for-profit: Money generated supports the organisation's goals, not private gain. Funds may be used for:
- Information production
- Utilities and publications
- Employee expenses
Social purpose: Their aim is to improve people's circumstances and prospects within their mission scope
Objective information: Because of their independence, NGOs can provide objective information, particularly valuable in countries with repressive governments that restrict freedom of speech
NGOs and law reform
Collaboration: NGOs can work with governments where shared goals exist
Variable effectiveness: The influence of NGOs on law reform varies considerably:
Examples of NGO Effectiveness:
Highly effective NGOs:
- Amnesty International: Formidable reputation in pursuing human rights goals, with resources and tactics developed over many years to pressure nations
- Greenpeace: Established organisation combating environmental threats with significant international influence
Limited effectiveness examples:
- Royal Society for the Prevention of Cruelty to Animals (RSPCA): Despite campaigning to end live animal exports, the Australian Government continues this profitable trade, demonstrating that governments can ignore NGO pressure when economic interests conflict with NGO goals
Independence as limitation: Because NGOs are independent, governments and institutions can choose to ignore them and continue practices contrary to NGO objectives without consequence.
Lobby groups
A lobby group is an organised collection of people who attempt to influence government ministers or Members of Parliament to advance a social or political agenda.
Goals of lobby groups
Lobby groups work to:
- Change existing laws
- Preserve particular laws already in place
- Introduce new legislation
- Influence policy decisions
Methods and targets
Lobby groups target multiple channels:
Direct government contact:
- Members of Parliament
- Parliamentary committees
- Government inquiries
Public channels:
- Media engagement
- Public opinion campaigns
Specific tactics:
- Writing letters to MPs and Senators
- Requesting meetings with parliamentary representatives
- Making policy submissions to inquiries
- Writing letters to newspaper editors
- Calling talkback radio programs
Overlap with other categories: A lobby group may also be an NGO, industry group, or other interest group.
Examples of lobby group activity
Example: Lone Fathers Association of Australia
Lobbying activity:
- Advocated strongly for 'shared equal parenting'
- Influenced amendments to Family Law Act 1975 (Cth) in 2006
- Amendments aimed to encourage non-court-based services for relationship difficulties and ensure children maintain meaningful relationships with both parents after separation
Counter-lobbying: Several organisations made submissions to a state inquiry expressing concerns about the 2006 amendments:
- Women's Refuge Resource Centre
- Family Law Director of NSW Legal Aid
- Women's Legal Services NSW
These groups argued the amendments:
- Subordinated children's best interests to parental interests
- Offered reduced protections for family violence victims
Expert criticism: Former Family Court Chief Justice Alistair Nicholson commented the amendments were 'ill-researched, unduly influenced by fathers' groups and did little to reform family law'.
Further reform: Subsequent amendments to the Family Law Act 1975 (Cth) came into effect in June 2012 to address adverse consequences of the previous reforms.
Effectiveness and limitations
Importance: Lobby groups can be important law reform agents when they:
- Raise awareness of legitimate issues
- Mobilise public support
- Present evidence-based arguments
Limitations: Effectiveness is reduced when:
- Better-organised groups dominate over others
- Groups with superior resources can more effectively articulate views
- Some interests are favoured simply due to lobbying capacity rather than merit
- Political considerations override evidence and balanced consultation
Balance requirement: For lobby groups to function effectively as reform agents, the process must ensure no group's interests are favoured simply because they are better organised or more vocal, rather than because their position has greater merit.
Exam guidance
When answering questions about agencies of law reform:
Analyse questions: Consider the effectiveness of different agencies by examining:
- Their level of independence
- Their resources and expertise
- Their success rate in achieving reforms
- Political factors affecting their influence
Evaluate questions: Compare agencies by discussing:
- Strengths and limitations of each
- Circumstances where each is most effective
- Barriers to effectiveness
- Real examples of successful and unsuccessful reform attempts
Assess questions: Make judgements about:
- Which agencies are most influential overall
- How agencies could be made more effective
- Whether current arrangements adequately support law reform
- The balance between political considerations and evidence-based reform
Use examples: Always support arguments with:
- Specific legislation (Jury Amendment (Verdicts) Act 2006, Family Law Act 1975)
- Named organisations (ALRC, NSWLRC, RSPCA, Amnesty International)
- Statistical evidence (ALRC's 80% implementation rate, 8% hung jury rate)
- Real cases and inquiries (majority verdicts inquiry, shared parenting amendments)
Key Points to Remember:
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Law reform commissions (ALRC established 1975, NSWLRC established 1967) are independent statutory bodies that investigate legal issues and make recommendations to government. Over 80% of ALRC recommendations are implemented.
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Parliamentary committees (standing and select) scrutinise government activity and legislation through public inquiries, with proceedings recorded in Hansard and reports tabled in parliament.
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The media acts as a democratic watchdog, holding governments accountable and raising public awareness of injustices, though effectiveness depends on political circumstances.
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NGOs are independent, not-for-profit organisations working to improve circumstances within their mission. Effectiveness varies - established NGOs like Amnesty International have significant influence, while others may be ignored by governments.
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Lobby groups organise to influence MPs and policy through letters, meetings, submissions and public campaigns. Success depends on organisation, resources, and political will, with risks that better-organised groups dominate regardless of merit.