The Victorian Law Reform Commission (VLRC) (VCE SSCE Legal Studies): Revision Notes
The Victorian Law Reform Commission (VLRC)
What is the VLRC?
The Victorian Law Reform Commission (VLRC) is Victoria's leading independent law reform organisation. It reviews, researches and makes recommendations to the Victorian Parliament about possible changes to Victoria's laws.
Members of parliament often lack the time and resources to thoroughly investigate complex legal issues. When this happens, parliaments may refer investigations to independent law reform bodies like the VLRC. These bodies can conduct their own investigations and make recommendations for changes to the law.
Law reform bodies are organisations established by state and Commonwealth parliaments to investigate the need for change in the law and make recommendations for reform. They aim to provide impartial advice and make practical recommendations that can be implemented. Parliament is not bound to follow these recommendations, although governments are often influenced by them when considering changes to the law.
Establishment and independence
The Victorian Parliament established the VLRC in 2001 by passing the Victorian Law Reform Commission Act 2000 (Vic). The VLRC was therefore created by statute (a law made by parliament; a bill that has passed through parliament and received royal assent).
The VLRC's primary aim is to assist the Victorian Government in maintaining a fair, inclusive and accessible legal system. It does this by investigating the need for change in Victorian laws and providing the government with impartial advice and recommendations.
While the VLRC is created and funded by the Victorian Government, it operates independently. This means it is not involved in the political process or influenced by government policies or political parties. This independence is crucial for maintaining objectivity in its investigations and recommendations.
The VLRC monitors and coordinates law reform activity in Victoria and investigates ways to update and improve Victorian law. When conducting investigations, the VLRC engages in community-wide consultation and debate to ensure its recommendations meet the needs and desires of the Victorian community. For example, it responds to issues raised by individuals and pressure groups, and considers newly emerging rights and responsibilities.
Functions of the VLRC
Section 5 of the Victorian Law Reform Commission Act sets out four specific roles of the VLRC:
1. Major inquiry
The VLRC examines and reports on any proposal or matter referred to it by the Victorian Attorney-General and makes recommendations for law reform. This includes conducting research, consulting with the community and reporting on law reform projects. These are significant investigations into major legal issues that the Attorney-General believes require comprehensive review.
2. Community inquiry
The VLRC can investigate relatively minor legal issues that it believes are of general concern within the community and report back to the Attorney-General with suggestions for law reform. This means that beyond its main role of examining issues referred by the Attorney-General, the VLRC can also examine minor matters without a reference, provided the review will not consume too many resources. These investigations are called community law reform projects.
3. Monitoring
The VLRC monitors and coordinates law reform activity in Victoria. It can make suggestions to the Attorney-General that they refer a legal issue to it for investigation. 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.
4. Education
The VLRC undertakes educational programmes and informs the community on any area of law relevant to its investigations or references. It delivers programmes 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 extensive information about its investigations and references on its website.
Processes used by the VLRC in law reform
The VLRC follows a structured process when conducting law reform investigations:
Terms of reference
Before conducting an inquiry, the VLRC first needs terms of reference. These are instructions given to the VLRC to investigate an important matter. Terms of reference set out:
- The matters that the VLRC is to inquire about
- The precise scope and purpose of the inquiry
- The date by which the VLRC must complete its inquiry
Terms of reference are either received from the Attorney-General or drafted by the VLRC about a matter it identifies as a relatively minor legal issue of general community concern.
Investigation process
In assessing the need for change in the law, the VLRC consults with expert bodies in the area under review and the general community. The processes it uses depend on the nature of the inquiry, but may include:
Initial research and expert consultation:
- Undertake initial research to identify the most important issues
- Consult experts in the law under review
- Establish an expert panel or committee to provide advice about the subject matter of the inquiry
Community consultation:
- Publish a consultation paper (or issues paper) which explains the key issues in the area under review and poses questions about what aspects of the law should be changed and how
- Hold consultations and discussions with parties affected by the area under review
- Invite submissions from members of the Victorian community (written, online or by speaking to Commission staff)
- Seek views from marginalised groups such as those from non-English-speaking backgrounds, people with disabilities, First Nations people and people living in remote communities
The VLRC's consultation process ensures diverse community perspectives are included in its recommendations. This includes actively seeking input from marginalised groups who may be disproportionately affected by the laws under review.
Reporting:
- Publish a final report with recommendations for changes in the law
- May also publish an interim report during the inquiry which focuses on one particular aspect of the inquiry
- Present the final report to the Attorney-General, who tables 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.
Recent VLRC projects
Since its creation in 2001, the VLRC has conducted numerous investigations and made hundreds of recommendations to help ensure Victoria's laws remain relevant and fair. The VLRC has completed more than 38 inquiries referred from the Victorian Attorney-General and undertaken at least another nine minor community law reform projects. The government has adopted all or most of the VLRC's recommendations in approximately 75% of completed inquiries.
Some completed projects include examinations of:
- 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 Victorian criminal law (2023)
Case study 1: Investigating Victoria's stalking laws
In 2022, the VLRC completed an inquiry into Victoria's laws on stalking, harassment and similar conduct. This was a major inquiry undertaken after receiving terms of reference from the Attorney-General.
What is stalking?
Stalking is following or monitoring an individual in a way that is intrusive or creates distress, anxiety or fear of harm. It can involve a range of behaviours including:
- Maintaining close physical proximity to the victim
- Contacting the victim by post, telephone, texts, emails or other information and communication technology (referred to as online stalking or cyber-stalking)
- Keeping the victim or another under surveillance
- Giving offensive material to the victim or leaving it where it can be found
Stalking is a criminal offence in Victoria. Under section 21A of the Crimes Act 1958 (Vic), offenders can be sentenced to a maximum of 10 years' imprisonment.
'Family violence' stalking refers to stalking by a family member such as a spouse or partner (or ex-spouse/partner). The VLRC's inquiry mainly focused on non-family violence stalking laws.
Reasons for the inquiry
The Attorney-General asked the VLRC to consider:
- How laws could be strengthened to promote and enhance victim safety and wellbeing
- Barriers to reporting for victims of stalking
- Sentencing practices and sentencing options
The establishment of the inquiry was prompted by several factors:
- The prevalence of non-family violence stalking within the community (stalking is estimated to affect one in six women and one in fifteen men)
- The intimidating and frightening nature of stalking, which makes it difficult to identify and escape
- The lack of community awareness surrounding stalking as a crime
- The difficulty associated with seeking assistance through the criminal justice system, which can be a time-consuming, frustrating and extremely stressful process
The inquiry process
Demonstrating comprehensive community consultation:
During the inquiry, the VLRC:
- Received 115 submissions from interested individuals (many of whom chose to remain anonymous), groups and organisations including Victoria Police, the Law Institute of Victoria, the Victims of Crime Commissioner, the Federation of Community Legal Centres and the Victorian Pride Lobby
- Held 36 consultations with organisations that have expertise in dealing with stalking, including the Victorian Children's, Magistrates' and County Courts, the Sexual Assault Service Network and the Judicial College of Victoria
- Held several small group meetings and 'round-table' discussions to gain input from specific groups affected by stalking, including young people, people with disabilities, and multicultural and multifaith community organisations
- Received 254 responses to its online survey, which allowed members of the public to convey their experiences of stalking
Views expressed within the consultations and submissions highlighted the mental harm and trauma that can be caused by stalking, and the need for victims to be able to get practical, timely and ongoing support.
Recommendations
The stalking terms of reference required the VLRC to prepare:
- An interim report by 31 December 2021
- A final report by 30 July 2022
Interim report recommendations:
The interim report focused on improving the response to stalking after it has occurred. It recommended:
- Making it easier for victims to report stalking to Victoria Police at the earliest opportunity
- Improving the way Victoria Police records incidents and reports of stalking (e.g. by recording all reports on a central information management system)
- Requiring Victoria Police to refer complex stalking cases to specialist police in criminal investigation units, and victims of stalking to appropriate external services for support and assistance
Final report recommendations:
The final report focused on ways to prevent stalking before it occurs, including addressing the conduct of those who undertake stalking. The Attorney-General tabled it in the Victorian Parliament in September 2022. It made 45 recommendations including:
- Victims should be able to more easily obtain financial and practical support to improve their ability to report stalking and access support services (including being provided with technology to prevent cyber-stalking and independent expert advocates to support them through the criminal process)
- The Victorian Government should fund and support ongoing public education about non-family stalking and cyber-stalking, so the community is more informed about how to identify stalking, the different forms it can take, the harm it can cause and ways for victims and offenders to seek help and support
- The Crimes Act 1958 should be amended to clarify the stalking offence so it is easier for people to understand and apply (e.g. modernise and simplify the language used in the Act)
- The Government should fund the training of magistrates, judges and other court personnel so they are better able to respond in stalking cases
The final report also reaffirmed recommendations from the interim report that the Victorian Government ensure Victoria Police is given adequate training to improve the way it identifies, investigates and responds to non-family violence stalking.
Exam tip: When discussing the stalking inquiry, remember it was a major inquiry (referred by the Attorney-General) that produced both interim and final reports, demonstrating the comprehensive nature of VLRC investigations.
Case study 2: Investigating more inclusive juries
In March 2020, the VLRC commenced a community law reform project to investigate the need to change the law to make juries more inclusive and accessible for people who are deaf, hard of hearing, blind or have low vision and wish to undertake jury service.
Reasons for the inquiry
Under the Juries Act 2000 (Vic), all jurors need to be capable of 'performing the duties of jury service', which includes:
- Being able to understand and communicate
- Pay attention to the evidence
- Follow the judge's instructions
People who are deaf, hard of hearing, blind or have low vision are technically not prevented from being on a jury. However, restrictions on allowing interpreters and other support persons to assist people with hearing and vision impairments mean that, in practice, some of these people are actually prevented from serving on a jury.
The 13th person rule:
A common law rule (referred to as the '13th person rule') states that no more than 12 jurors (in a criminal trial) can be present during jury deliberations. This prevents a support person from being present in the jury room. In practical terms, this limits the ability of people who are deaf, hard of hearing, blind or have low vision to serve on a criminal or civil jury because they are not allowed to have an interpreter or guide with them, and may therefore not be able to fully participate in the jury processes.
Why this matters:
The VLRC initiated this project itself as a community law reform project. The terms of reference provided that the VLRC would consider:
- What changes to legislation and practices should be made to enhance access for people who are deaf, hard of hearing, blind or have low vision who wish to serve as jurors in Victoria
- Whether there are specific circumstances in which jury service should be limited
Other reasons for the inquiry included:
- Ensuring the laws relating to jury service reflect contemporary community standards and do not discriminate against potential jurors on the basis of their personal characteristics
- Recognising that having legal structures and laws that limit the ability of people with hearing or vision impairments to serve on a jury discriminates against this group by denying them the ability to fulfil their civic responsibilities
- Ensuring the law reflects modern community values about the need for society to be inclusive
- Ensuring juries can be a representative cross-section of the community
The inquiry process
As part of its inquiry, the VLRC:
- Undertook extensive research and investigation
- Received 14 submissions from a range of interested individuals, groups and organisations including legal bodies (such as the Law Institute of Victoria, Victoria Legal Aid, the Supreme Court of Victoria and Juries Victoria) and various support providers and services (such as Vision Australia and Youth Disability Advocacy Service)
- Held 29 consultations with interested parties
- Prepared an online survey to enable interested individuals to share their experiences and views
Recommendations
The VLRC's final report was tabled in Victorian Parliament and published in May 2023. The final report included 51 recommendations to improve the inclusiveness of juries including:
Reasonable adjustments:
- Requiring judges to direct reasonable adjustments to be provided in cases where they consider these adjustments would enable a person who is deaf, hard of hearing, blind or has low vision to serve as a juror
- Possible adjustments should include the provision of Auslan interpreters, support persons, an assistance animal and disability and technical aids (such as speech-to-text software and screen reading programmes)
Changing the 13th person rule:
- Altering the '13th person rule' so that interpreters or support persons are allowed into the jury room, as directed by the court
The VLRC did not make any recommendations on whether people who are currently ineligible to serve on a jury because they 'cannot understand or communicate English' should be able to serve on juries because this issue was not included in the 'Inclusive juries' terms of reference. This demonstrates how the VLRC is limited to the scope set out in its terms of reference.
Exam tip: When discussing the inclusive juries inquiry, remember it was a community inquiry (initiated by the VLRC itself) rather than a major inquiry, demonstrating the VLRC's ability to investigate issues it identifies as important.
The ability of the VLRC to influence law reform
The VLRC has an important role in reviewing Victorian law and providing independent advice and recommendations for law change to the Victorian Parliament. However, it has limitations in its ability to influence law reform.
Strengths of the VLRC in influencing law reform
Government support:
- Because the Victorian Government asks the VLRC to investigate the need for law change in specific areas, the government may be more likely or willing to act on the VLRC's report and recommendations
Community inquiry power:
- The VLRC has the power to investigate and make recommendations on minor matters or areas of law reform without a reference from the Attorney-General, which can lead to important law reform
Community consultation:
- The VLRC can measure community views on areas of investigation by holding consultations and receiving public submissions, and then reflect them in its recommendations
- This should increase the likelihood of the government implementing its recommendations because, to maintain and increase voter support, governments generally implement law reforms that reflect the views of the people
Comprehensive investigations:
- The VLRC can investigate an area comprehensively so the government can initiate new legislation that covers a whole issue
Independence:
- As the VLRC is independent of parliament and political parties, it can remain objective and unbiased in making its recommendations
- This independence enhances the credibility of its recommendations
Track record:
- Statistics suggest that the VLRC can be highly influential on the Victorian Parliament
- All or most of its recommendations have been adopted in approximately 75% of completed inquiries
Weaknesses of the VLRC in influencing law reform
Parliamentary process:
- While the Government may support the VLRC's recommendations, it may need the support of the crossbench to pass law reform through Parliament, particularly if the government does not have a majority in the upper house
- The law-making process is not always quick, so recommendations may not be immediately implemented
Resource limitations:
- The VLRC is limited by how many projects it can undertake at a time
- It can only initiate investigations without a reference if it will not consume too many resources (e.g. money, staff and time)
- Therefore, its ability to investigate issues without a reference from the Attorney-General is limited
Time-consuming process:
- The VLRC's investigations can be time-consuming
- Inquiries may take 12 to 24 months to complete
Limited by terms of reference:
- While investigations can be comprehensive, they are limited to the terms of the reference
- The VLRC can only investigate and make recommendations for law reform on areas included in the reference, even if it considers there are other areas of reform required in that particular matter
No binding power:
- The Victorian Parliament is not obliged (or compelled) to support or adopt any of the VLRC's recommendations for law reform
- There is no timeline for the government to respond to recommendations
Jurisdictional limits:
- The VLRC can only recommend changes to Victorian law, not Commonwealth law
- If certain areas of its investigations are governed by a Commonwealth law, the VLRC cannot directly recommend that the Victorian Parliament change this law as that Parliament has no ability to do so
Exam tip: When evaluating the VLRC's ability to influence law reform, you need to assess both its strengths and weaknesses, and provide a concluding statement about the Commission's overall value in influencing law reform. Consider using specific examples from recent inquiries to support your evaluation.
Remember!
Key points to remember:
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The VLRC is Victoria's leading independent law reform organisation, established in 2001 by statute to review, research and make recommendations to the Victorian Parliament about possible changes to Victoria's laws
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The VLRC has four main functions: major inquiries (referred by Attorney-General), community inquiries (self-initiated), monitoring law reform activity, and education
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The VLRC follows a structured process involving terms of reference, research, community consultation, and producing reports with recommendations for law reform
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The stalking inquiry (2022) was a major inquiry that investigated non-family violence stalking laws, producing interim and final reports with 45+ recommendations to improve victim safety, reporting barriers, and sentencing practices
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The inclusive juries inquiry (2020-2023) was a community inquiry that investigated barriers preventing people with hearing and vision impairments from serving on juries, recommending changes to the 13th person rule and provision of reasonable adjustments
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Strengths of the VLRC include its independence, comprehensive investigations, community consultation processes, and track record (75% of recommendations adopted)
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Weaknesses include limited resources, time-consuming processes, no binding power over Parliament, and being restricted by terms of reference
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A recent inquiry is one that has occurred within the last four years – ensure you can discuss one recent VLRC inquiry in detail for the exam
Highlighted key terms:
- Law reform bodies
- Victorian Law Reform Commission (VLRC)
- Statute
- Terms of reference
- Major inquiry vs community inquiry
- Stalking
- 13th person rule
- Attorney-General