Victorian Law Reform Commission turns Five

Article published in the Law Institute Journal in May 2006 about the Commission's fifth birthday.

The reincarnated Victorian Law Reform Commission has now been operating for five years and has already had five Bills introduced into Parliament that take up some or all of its recommendations for change.

Permanent law reform bodies measure their success in various ways, with one of those being the number of recommendations that make it to law.

It can be difficult to definitively say how many of a report’s recommendations are adopted; some may be adopted in part or be adopted in a modified form. Can a law reform body claim its recommendations have been implemented if they have not been taken up in their original form? Or is recognition of the idea/s underpinning the recommendation a good enough mark of success?

Sometimes it is unhelpful to look at law reform through such a simplistic measurement tool; recommendations may have public and ministerial support but not be endorsed by cabinet, or legislation may be delayed because the issues it covers are not a government priority.

Nevertheless, looking at which recommendations do get adopted is an important component of any assessment of a law reform body’s work.

Most commissions expect a long lead time between when a report is tabled and when recommendations are implemented. Former Australian Law Reform Commission (ALRC) President Alan Rose has said 5–10 year timeframes are the norm for commissions to have their recommendations adopted.

Many of the Victorian Law Reform Commission’s legislative recommendations have already been translated into legislation, although as another former ALRC President, the Hon Elizabeth Evatt, has said, law reform happens in bits and pieces over many years.

Despite the quick turnaround on many of the Victorian Law Reform Commission reports, some MPs have criticised the time it has taken for the Commission’s recommendations to be implemented. In Parliament, Elizabeth Powell MP criticised the Property (Co-ownership) Bill for not taking up all of the Commission’s recommendations and the time it had taken between the Commission report being tabled in Parliament and the Bill’s introduction. Likewise, Shadow Attorney-General, Andrew McIntosh, criticised the time it had taken for the Crimes (Homicide) Bill to make it to Parliament following the government’s announcement in January 2005 that it would abolish provocation.

Legislation
The Commission’s first report, Disputes Between Co-owners, was the catalyst for the Property (Co-ownership) Bill, which amended Part IV of the Property Law Act 1958 and came into force in October last year.

The Bill took up the Commission’s recommendation to move disputes about co-ownership under Part IV of the Act from the Supreme and County Courts to the Victorian Civil and Administrative Tribunal for cheaper and easier resolution of complaints.

The Commission made 59 recommendations in its report but not all were implemented through this legislation. In debate about the Bill, the Parliamentary Secretary for Justice, Jenny Mikakos, said the report’s other recommendations would be “considered in more detail at a later stage”.

The next piece of legislation to adopt Commission recommendations had a quicker turnaround. The Defences to Homicide: Final Report was tabled in November 2004 and the Crimes (Homicide) Bill was introduced in October 2005 and passed just over a month later.

The Bill implemented almost all of the report’s recommendations with some modifications and omissions, most notably, the abolition of the provocation defence.

The Commission’s largest report to date, Sexual Offences Law and Procedure, resulted in the Crimes (Sexual Offences) Bill.

This picked up on many of the report’s recommendations about children and people with a cognitive impairment and evidence, but did not deal with recommendations about the definition of rape. It is understood that the government is considering the remaining recommendations with legislation proposed for later in 2006.

Amendments to the Crimes Act, Evidence Act, and Magistrates’ Court Act arising from the Bill were made in March this year.

The Family Violence Police Holding Powers: Interim Report had all of its legislative recommendations implemented quickly.

The Crimes (Family Violence) (Holding Powers) Bill was introduced just one month after the interim report was tabled in September 2005 and the new Act received its assent in March this year.

In February this year the Disability Bill was introduced into parliament and contains provisions about restrictive interventions and compulsory treatment that follow on from the recommendations made by the Commission in its People with Intellectual  Disabilities at Risk: Report.

Non-legislative Reform
Tracking the implementation of recommendations becomes more time-consuming when they are not about legislative change. It is fairly easy to compare bills and recommendations but more difficult to compare an organisation’s past and current processes.

The Sexual Offences: Final Report contained many recommendations for cultural change in the police force and courts, something which can be difficult to identify without qualitative research.

However, some of the non-legislative recommendations from that report which have already been implemented include the specialist sexual offences lists established by the Magistrates’ Court and County Court and the Judicial College’s specialised sexual offences training for judges.

The Commission continues to find that the process of law reform, of bringing together stakeholders to discuss problems and solutions, can bring about much-needed tangible change in procedure and organisational practice.

Date published: 
01 May 2006

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