VCE Legal Studies

Unit 3 and 4 Summary

Nicole Flynn
 Table of Contents
Unit 3, Area 1 ........................................................................................................................................ 2
Area 2 ................................................................................................................................................. 31
Unit 4, Area 1 ...................................................................................................................................... 57
Area 2 ................................................................................................................................................. 71
Key Skills ............................................................................................................................................. 97

Key
Acts
Optional cases (not required in study design)
Necessary cases (must know this case or another relevant one, required by study design)
Key knowledge dot points from the study design

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 Unit 3, Area 1
3.2: the principles of justice: fairness, equality and access
There is no clear definition of justice, however, when considering whether justice has been achieved
in a case the principles of fairness, equality and access should be considered. These can be used to
determine whether the criminal justice system is achieving its purpose. The principles of justice are
the fundamental or basic ideas and values that try to promote just treatment and outcomes in our
legal system.

• Fairness – the dictionary definition is ‘impartial and just treatment or behaviour without
favouritism or discrimination’. However, fairness may require some people to be treated
differently for it to be fair. For instance, you would not give a first-time juvenile offender the
same punishment as a seasoned criminal. People should be able to:
o Have their cases heard in an impartial and objective manner and without fear or
favour
o Understand court processes
o Both sides have opportunity to present ‘their side of the story’
If laws are fairly applied, the rule of law will be upheld.
• Equality – one dictionary definition is ‘the state of being equal, especially in status, rights or
opportunities.’ In society, this means being treated equally regardless of different personal
characteristics or beliefs. In the criminal justice system, it means being treated equally
before the law. This helps uphold the rule of law. The Charter of Human Rights and
Responsibilities Act 2006 (Vic) is a Victorian statute aimed at protecting and promoting
human rights. It states that every Victorian is equal before the law and is entitled to the
law’s protection without discrimination.
• Access – the ability to approach or make use of something, specifically the criminal justice
system. This mightn’t mean individuals will get the outcome they want, however it does
mean they should have the opportunity to make use of processes and institutions within the
criminal justice system, regardless of financial, physical, mental or social disadvantages they
may face.

3.3: key concepts in the Victorian criminal justice system, including:

• the distinction between summary offences and indictable offences
Summary offences are minor criminal offences that are generally heard in the Magistrates’
Court (no jury). Some summary offences are contained in the Summary Offences Act 1966
(Vic), but many are in other Victorian statutes and regulations. You might also just get an
infringement notice (e.g. parking ticket).
Indictable offences are serious criminal offences that are heard by a judge in the County
Court or Supreme Court of Victoria. Generally, offences in the Crimes Act 1958 (Vic) are
indictable offences unless stated to be a summary offence.
Some indictable offences are heard and determined summarily. These are still indictable
offences, but they can be heard in the Magistrates’ Court as if they were summary offences,
if the accused agrees. The Criminal Procedure Act 2009 (Vic) states that indictable offences
punishable by imprisonment of 10 years or less can be heard summarily. The accused usually
agrees for their case to be heard summarily, because it is quicker, cheaper, and the
maximum penalty is less. The court must agree the offence is appropriate to be heard
summarily. E.g. robbery if the amount or value of the property alleged to have been stolen
does not in the judgement of the court exceed $100,000.

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 Summary Offences Indictable Offences
Nature of offence Minor criminal offences Serious criminal offences
Courts that will generally Magistrates’ Court County Court or Supreme
hear the case Court
Jury trial No Yes (if the accused has
pleaded not guilty)

Name of final hearing Hearing Trial

Main statute(s) in
which the offences are
contained
How it can be heard
Examples
Summary Offences
Act 1966 (Vic). and
other statues and
regulations
Can only be heard as
a summary offence
Disorderly conduct,
persons found drunk
and disorderly, minor
assaults, parking fines
Crimes Act 1958 (Vic).
Some indictable offences
can be heard summarily
Rape, homicide
offences, fraud, drug
trafficking

• the burden of proof

The burden of proof refers to the obligation of a party to prove a case – the accuser must
prove the other party is guilty. This lies with the party who initiates the action (e.g. the
plaintiff in a civil dispute and the prosecution in a criminal case). In some cases, the burden
of proof can be reversed (e.g. if someone is found with an illicit substance on their property,
the onus is on the accused to prove the drug wasn’t in their possession).
• the standard of proof
The standard of proof refers to the degree or extent to which a case must be proved in
court. In a criminal case, the prosecution must prove the case beyond reasonable doubt –
the prosecution must show there is no reasonable doubt that the accused committed the
offence. If the burden of proof is on the accused, then the standard of proof is on the
balance of probabilities. The balance of probabilities is the standard of proof in civil disputes.
It requires the plaintiff to establish that it is more likely their side of the story is right.
• the presumption of innocence
Presumption of innocence is the right of a person accused of a crime to be presumed not
guilty unless proven otherwise. The presumption of innocence is an old common law right. It
is now also guaranteed by the Charter of Human Rights and Responsibilities Act. One of the
ways the presumption of innocence is upheld is by imposing the burden of proof on the
prosecution and the high standard of proof. It is also upheld by the bail system. Unless there
is a good reason why a person should be held in custody (posing a threat to society), they
are entitled to be released from custody on the condition they will attend their court hearing
to answer their charges. Other features of the criminal justice system that uphold the
presumption of innocence:
o the right to silence – this can not be taken as a sign of guilt
o police must reasonably believe a person has committed a crime before they arrest

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 o for indictable offences, prosecution must prove there’s enough evidence to support
a conviction before the case can be taken to trial
o generally, a person’s prior convictions cannot be revealed until sentencing to
prevent the assumption of guilt based on past crimes
o an offender has the right to appeal a wrongful conviction

3.4: the rights of an accused, including the right to be tried without unreasonable delay, the right to a
fair hearing, and the right to trial by jury
The Charter of Human Rights and Responsibilities Act 2006 (Vic) is to protect and promote human
rights. Sections 23 to 27 of this contain rights available to accused in criminal proceedings – these
are only available to human beings, not to companies. There are rights contained in other statutes
that are also available to an accused.
• One of the rights of an accused is the presumption of innocence.
• The Human Rights Charter states that a person charged with a criminal offence is entitled
without discrimination to a guarantee that he or she will be tried without unreasonable delay.
This being ‘without discrimination’ means every accused is entitled to this right regardless of
prior history or personal attributes. For a child (individual under 18 years) a trial must take place
‘as quickly as possible’. What is a reasonable delay will depend on factors such as the nature of
the crime and the number of witnesses (and their locations).
• The Human Rights Charter entitles a person charged with a criminal offence to have the charge
decided by a competent, independent and impartial court after a fair and public hearing. This
means ensuring every person has the right to have their case heard by a qualified, experienced
judge/magistrate in an unbiased manner. Most court hearings are open to the public, so they
can see that laws are being applied correctly – an exception to this may include the Magistrates’
Court has the power to make an order that proceedings are closed to the public if they will cause
undue distress or embarrassment to a victim in a
sexual offence case. Things that can make a trial fair including the right to silence, to legal
representation and to know the evidence and charges against them.

Dietrich v The Queen (1992)

Olaf Dietrich was arrested after arriving from Thailand and charged with drug
trafficking offences. His application for legal aid was unsuccessful and he was found
guilty in the County Court. He appealed to the High Court because he was not provided
with legal representation and therefore didn’t receive a fair trial. The High Court
agreed, finding his right to a fair trial was deprived due to the trial going ahead prior to
him getting legal representation.

• Section 80 of the Australian Constitution states that any person who is charged with a
Commonwealth indictable offence is entitled to a trial by jury. This right is also protected by
statute law in Victoria. The jury system allows the opportunity for community participation and
the law to be applied according to community standards. There is no jury in the Magistrates
Court.

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 Right Description Main Source of Right
Right to be tried An accused is entitled to Sections 21 and 25(2)(c) of
without unreasonable have his or her charges the Human Rights Charter
delay heard in a timely manner.
Any delay should be
reasonable.
Right to a fair hearing A person charged is entitled Section 24(1) of the Human
to have that charge decided Rights Charter
by a competent, independent
and impartial court, and the
hearing must be both fair
and public.

Right to trial by jury A person charged with an Section 80 of the Australian

indictable offence is entitled Constitution and Victorian
to be tried by his or her statute law (including the
peers. Criminal Procedure Act)

3.5: the rights of victims, including the right to give evidence as a vulnerable witness, the right to be
informed about the proceedings, and the right to be informed of the likely release date of the
accused
The Victims’ Charter Act 2006 (Vic) recognises the impact of crime on victims and provides guidelines
for the provision of information to victims. A victim is someone who has suffered directly or
indirectly because of the crime. The charter sets down principles such as respectful treatment of
victims and respect for their privacy. There are rights/protections contained in other statutes that
are also available to victims.
• A vulnerable witness is a person who is required to give evidence in a criminal case and is
considered to be impressionable or at risk (e.g. a child or the alleged victim of a sexual offence).
A vulnerable witness may feel uncomfortable, potentially jeopardising the evidence they give
and adding to their trauma. Protections under the Criminal Procedure Act can be broken down
into the following:
o Alternative arrangements – the court can direct alternative arrangements to be
made for a witness to give evidence in criminal proceedings for sexual offences,
family violence offences and offences for obscene, indecent, threatening language
or behaviour in public. Alternative arrangements can include the witness giving
evidence from a place other than the courtroom (such as through closed-circuit
television), screens being used to block accused from witnesses’ vision or only
allowing certain people in court while the witness is giving evidence.
o Protected witnesses are people who are to give evidence in a sexual offence or
family violence offence case; they can be either the complainant, a family member
of the complainant or the accused, or any other witness the court declares to be a
protected witness. Being a protected witness means cross-examination cannot be
performed by the accused, but only by their legal representative. If they don’t have
legal representation, Victoria Legal Aid must provide some for this purpose.
o Special arrangements for persons under the age of 18 years or with a cognitive
impairment – these are available in criminal proceedings for a sexual offence, an

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 indictable offence involving injury or threat of injury to a person and offences
involving minor assaults where the assaults relate to one of the past two offences.
These witnesses will be able to give their examination-in-chief by way of audio or
audio-visual recording. In proceedings for a sexual offence, other protections may be
offered such as the accused not being in the same room as the complainant.

Protection under the Evidence Act gives the power to the court when a vulnerable witness is
being cross examined to disallow improper questions.

Types of Offences Available To Protections Available

• Sexual offences • All witnesses, if the Alternative arrangements to give
• Family violence court makes an order evidence, such as:
offences • The protections are • by way of closed-circuit television
• Offences for automatically available to • using screens
obscene, indecent, the complainant, unless • allowing a support person to
threatening he or she does not want be beside the witness
language or them • only allowing certain persons
behaviour in public to be present when evidence is
• Offences for sexual given
exposure in a public • removing formalities
place applicable to legal
practitioners.

• Sexual offences • All witnesses if the Declaration that a person is a

• Family violence court so declares protected witness, and therefore the
offences accused cannot cross-examine him or
her.
• Sexual offences • Witnesses under the Witnesses are able to give their
• Indictable offence age of 18 years examination-in- chief by way of
involving assault on or • Witnesses with a audio or audio-visual recording.
injury or threat of cognitive impairment
injury to a person
• Offences involving
minor assaults

• Sexual offences • Complainants under Witnesses can give their evidence

the age of 18 years at a special hearing, meaning:
• Complainants with a • the accused isn’t in the same
cognitive room as the witness and isn’t
impairment entitled to see/hear them
• no unauthorised person is to be
present
• the witness is not to be cross-
examined or re-examined
unless the court grants leave.

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 • All offences • A person under the age of Court can allow improper questions
18 years being put to a vulnerable witness in
• A person who has a cross-examination.
cognitive impairment
or intellectual
disability
• A person the court
considers to be vulnerable

• The Victims’ Charter recognises that persons adversely affected by crime have the right to be
informed about the proceedings. The Victims’ Charter requires investigatory agencies,
prosecuting agencies and victims’ services (e.g. police offices and the DPP) to provide clear,
timely and consistent information about support services, possible compensation entitlements,
and the legal assistance available to those adversely affected. If the victim chooses, they must be
provided with information about the progress of an investigation into a criminal offence at
‘reasonable intervals’, unless this information could jeopardise the investigation or the victim
wishes not to receive it. Once a prosecution has commenced, they must give a victim this
information:
o details of the offences charged against the person
o if no offence is charged, the reason why
o how the victim can find out the date, time and place of the hearing of the charges
o the outcome of the criminal proceeding, including any sentence imposed
o details of any appeal
The victim must be told they are entitled to attend any court hearings.
• A person who is a victim of a criminal act of violence (e.g. kidnapping, sexual offences, stalking)
may apply to be included on the Victims Register (this is maintained by the state of Victoria and
provides victims with relevant information about adult prisoners) if the accused has been found
guilty and sentenced. This means the victim can be told of the prisoner’s likely date of release,
and (if applicable) their release on parole. This right is from the Victims’ Charter.

4.1: the role of institutions available to assist an accused, including Victoria Legal Aid and Victorian
community legal centres

The High Court has ruled that if a person is charged with a serious indictable offence and, through no
fault of their own, is unrepresented, they should be given the opportunity to seek legal
representation. This is based on the principle that every accused has the right to receive a fair trial,
and legal representation is necessary for the fair trial of a serious criminal case. If an accused can’t
afford legal representation, government- funded institutions such as Victoria Legal Aid (VLA) and
Victorian community legal centres (CLCs) may be able to help them.

• Victoria Legal Aid – a government agency that provides free legal advice to the community, and
low to no cost representation for the people who can’t afford to pay for a lawyer. VLA helps
those with legal problems and focuses on people who need it the most and can’t get legal
assistance any other way. VLA’s vision is a fair and just society where rights and responsibilities
are upheld. Its purpose is to make a difference by resolving and preventing legal problems and
encouraging a fair and transparent justice system. Because of a lack of funding (VLA is mainly
funded by the Victorian and Commonwealth government and the Public Purpose Fund), a large

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 part of the community is ineligible for legal aid and people are forced to defend themselves in
criminal cases. Objectives of VLA are to:
o provide legal aid (this includes legal education and information, legal advice and
legal representation) in the most effective, economic and efficient manner
o manage its resources to make legal aid available at a reasonable cost to the
community and on an equitable basis throughout Victoria
o provide the community with improved access to justice and legal remedies
o pursue innovative means to provide legal aid to minimise the need for individual
legal services in the community.
The most critical role VLA plays is to provide legal aid to accused people. As well as providing
legal aid, VLA’s other roles are to:

o control and administer the Legal Aid Fund (which contains the money available to
VLA)
o in cooperation with government bodies and departments, meet the needs of the
community for legal aid
o make recommendations about law reform
o design and implement educational programs to promote understanding by the
public of their rights, powers, privileges and duties under laws
o research legal aid issues

Assistance Description Available to

Free legal VLA’s website has free publications and
information resources, information about criminal
cases, and a public law library that
includes case law and other legal
materials. Legal information is also
available over the phone.
Free legal Advice is provided in person, by video
advice conference or over the phone.
Free duty A duty lawyer is a person who is at court
lawyer services on a particular day and who can help
people who are at court for a hearing.
Duty lawyers can give fact sheets about
what happens in court, offer legal
advice, and represent an accused in
court on that day. Duty lawyers are only
available in the Magistrates’ Court and
the Children’s Court; they are not
available for indictable offence trials.
VLA has said its duty lawyer services are
stretched, and duty lawyers are often
limited in the time they can spend with a
client.
Everyone.
VLA’s focus for in-person advice is on people
who need legal advice the most, including
those who:
• can’t afford a private lawyer
• have a disability
• are homeless
• are children
• can’t speak, read or write English well
• are Indigenous Australians
• are at risk of family violence
• are in custody.
Fact sheets are available to everyone.
• Legal advice is for people who satisfy
the income test* and are facing a
straightforward charge. People in custody
are given priority and don’t need to satisfy
the income test.
• For legal representation at the hearing,
the accused must satisfy the income test,
and either be facing a significant charge or be
one of the people that VLA prioritises (which
includes those with a disability, brain injury
or mental illness, homeless people, people
who can’t speak, read or write English well,
and Indigenous Australians).

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 Grant of legal VLA may be able to grant legal
assistance assistance to people who can’t afford a
lawyer. This may include legal advice,
helping the accused resolve matters in
dispute, preparing legal documents and
representing the accused in court.
• VLA has strict guidelines about who can get
a grant of legal assistance so that money is
given to people who need it the most. All
grants are capped. Accused people must
meet the means test** to be eligible for a
grant.
• VLA also considers other matters, such as if
helping the accused can benefit him or her
and the public, and if the matter has merit.

*The income test to qualify for duty lawyers is satisfied if the accused can produce to the
duty lawyer a current Centrelink benefit card (to show they’re receiving welfare benefits) or
pensioner concession card. If they don’t have either, they may still meet the income test if
they sign a declaration which shows they have limited income.

** The means test (to qualify for a grant of legal assistance) considers the person’s income
and other assets. For instance, if the accused person receives more than $360 per week in
income, they’re illegible under the means test. If VLA has denied an accused person legal
assistance, they can apply to have the decision reviewed by an independent reviewer. A
decision made by the independent reviewer can then be appealed to the Supreme Court of
Victoria.

The Criminal Procedure Act 2009 (Vic) gives the courts the power to adjourn a trial until legal
representation from VLA has been provided. The courts must be satisfied the accused
person wouldn’t be able to receive a fair trial without legal representation and that the
accused cannot afford to pay for their own. The burden of proof is on the accused to
establish they can’t afford the full cost of obtaining legal representation. This upholds the
principle of fairness.

Bayley v Nixon and Victoria Legal Aid (2015)

th
On the 19 of June 2013, Adrian Bayley was sentence in the Supreme Court to life in
prison with a non-parole period of 35 years for the rape and murder of Gillian
Meagher. While serving that sentence, on the 28th of May 2015 he was sentenced for
several new offences in three trials – a new non-parole period of 43 years was imposed
on Bayley. Bayley applied to VLA for legal assistance to appeal to the Court of Appeal
against two of the three convictions and the sentences for all three trials. His
application was refused by VLA, so he asked for a review of the decision. The
independent reviewer confirmed the decisions to refuse legal assistance. Bayley
obtained pro bono legal assistance and appealed the reviewer’s decision to the
Supreme Court of Victoria. Justice Bell found that it was unlawful to reject an
application for legal assistance on the sole ground that the person is ‘a notorious and
unpopular individual who has already been convicted of and sentenced to heinous
crimes’. He concluded the reviewer was invalid and Bayley’s application should be
heard before another one. VLA declined Bayley’s second application and he was
represented by pro bono lawyers.

• Victorian community legal centres – community legal centres (CLCs) are one type of legal
assistance service provider in Australia. As independent organisations they provide free legal
services, including advice, information and representation to people who are unable to access
other legal services. There are two types of CLCs:

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 o Generalist CLCs – provide broad legal services to people in a particular geographical
area (e.g. Monash Oakleigh Legal Service)
o Specialist CLCs – focus on a particular group of people or area of law (e.g. YouthLaw
provides free legal services for people under 25)

There are approximately 50 CLCs in Victoria. The Federation of Community Legal Services
Inc. is the peak contact and referral body for people seeking legal advice and assistance from
CLCs. Many of the workers at CLCs are volunteers. CLCs provide people with:

o Information, legal advice and minor assistance

o Duty lawyer assistance
o Legal casework services including representation and assistance

CLCs focus on people who need legal assistance the most because of personal circumstances
such as people who have a disability, mental health issues, refugees, people in domestic
violence situations, homeless people, young people and those who cannot afford a lawyer.
CLCs also help victims of crime and their families.

Assistance Description
Basic legal CLCs provide basic legal information on a day-to-day basis. A lot of
information the information is online.
Initial legal advice • CLCs provide legal advice and information such as preliminary
assistance and help with writing short letters and completing
forms.
• CLCs offer a free legal advice service that allows people to visit
the CLC without an appointment and get legal information and
advice.
• Phone advice is also available.
Duty lawyer Duty lawyers provide advice or representation for urgent matters
assistance that will be completed in one day.
Legal casework Very rarely, a CLC will take on a criminal matter. This involves legal
representation and assistance and will require ongoing legal
services. Each CLC has its own eligibility requirements, and many
will only take on a matter if the person is eligible for a grant of legal
assistance from VLA. Many CLCs do not offer representation and
assistance for indictable offences.

Each CLC has its own eligibility criteria for assisting an accused, and for how much assistance
they can provide. CLCs generally consider the following factors:

o the type of legal matter the person needs help with

o if other assistance is available (e.g. through VLA)
o if the person has a good chance of success
o if the accused is able to manage the case without help
o if the CLC is available to assist.

For accused persons who require legal representation and assistance, it is normally only
provided if they meet the VLA’s eligibility criteria for a grant of legal assistance (e.g. the
means test and other criteria). Many CLCs only help with minor criminal matters.
CLCs receive their funding from a range of sources such as the state, Commonwealth, local
governments and private donations. A lot of it’s funding comes from VLA.

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4.2: the purposes of committal proceedings
When a crime is committed, and someone has been charged with committing it, steps are taken on
the way to a trial – some of these steps are known as pre-trial procedures. One pre-trial procedure is
the committal proceeding. This takes place in the Magistrates’ Court when an accused has been
charged with one or more indictable offences and has plead not guilty. Committal proceedings are
only for indictable offences. The committal proceeding involves several stages and preliminary
hearings in the Magistrates’ Court – these act as a filtering process to test the strength of the
prosecution’s case against the accused. They also allow the accused an opportunity to understand
the case and to cross-examine prosecution witnesses before trial. The purposes of committal
proceedings are set out in section 97 of the Criminal Procedure Act 2009 (Vic). The purposes are:
• to decide if there is enough evidence to support a conviction for the offence charged
• to find out whether the accused plans to plead guilty or not guilty
• to make sure there is a fair trial. Committal proceedings do this by:
o making sure the prosecution’s case is disclosed to the accused
o giving the accused an opportunity to hear or read the evidence and cross- examine
(question) witnesses
o allowing the accused to put forward a case at an early stage if they choose to do so
o allowing the accused to properly prepare and present a case
o making sure the issues to be argued are properly defined.
The main and final stage of the committal proceeding is the committal hearing. At the committal
hearing, the accused can question the prosecution’s witnesses and make submissions about the
charges. After the evidence and submissions, the magistrate decides whether or not to commit the
accused (send the accused to trial). If the magistrates find there is evidence of a sufficient weight to
support a conviction at trial, the accused is committed to stand trial and released on bail or held in
remand. If the magistrate decides there isn’t enough evidence, the accused is discharged and
allowed to go free. If more evidence is found in the future, the accused may be brought before the
court again (as the committal proceeding isn’t a trial and the accused hasn’t been found guilty or not
guilty).

DPP v Bailey (2017)

In October 2015, Penny Bailey was murdered at her home. Her son, Stephen Bailey, was charged
with her murder. At the committal hearing in 2016, Penny’s daughters gave evidence about
Bailey’s history of poor mental health. Stephen Bailey pleaded not guilty due to mental
impairment, but the magistrate found there was sufficient evidence to support a conviction and
committed him to stand trial in the Supreme Court of Victoria. In April 2017, Stephen Bailey was
found not guilty due to mental impairment.

After the committal proceedings/once the accused has been committed for trial, the documents are
transferred to the DPP. The DPP files an indictment (written statement of the details of the charge
against the accused) in the Supreme or County Court. The filing of an indictment will commence
criminal proceedings in the higher court and leads to a trail before a judge and jury to determine
guilt. If the accused pleads guilty at any time during the committal proceeding, the criminal case will
be listed for a plea hearing in the County Court or the Supreme Court.
Strengths Weaknesses
• Filter out weak cases (because of insuffi- • Complicates process and can be unfair on
cient prosecution evidence). unrepresented party. Without experience
with the processes, and without the aid of a
legal representative, the accused can find it

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 • Allows the accused to be informed of the
prosecutor’s case against them. May help
them decide how to plead and help them
to prepare their case without being
ambushed by unexpected witnesses.
• Onus is on prosecutor to establish enough
evidence to support conviction at trial.
Supports the principle that the accused is
innocent until proven guilty.
• May result in withdrawal or combination of
charges. This helps achieve a fairer trial and
save the time of the higher court.
• Gives the accused the opportunity to test
the strength of the prosecution’s case. This
includes the opportunity to examine
prosecution witnesses. This can lead to the
accused pleading guilty or agreeing on
some facts or issues with the prosecution,
and saves the time and resources of the
courts.
hard to understand, which could increase
the risk of an unfair outcome. It can also
result in inequality between a very
experienced prosecutor, and an
inexperienced accused person.
• Can be expensive. Adds cost for the
accused who mightn’t be working if they
are in remand – could increase risk of an
unfair outcome.
• Can add to delays. Can reduce access and
increase risk of an unfair outcome.
• Can contribute to stress, trauma and
inconvenience of an accused, victims and
families. For some the stress may make
them not want to give evidence, reducing
access to justice.
• May be considered unnecessary for
stronger cases.

4.3-4.4: the purposes and appropriateness of plea negotiations and sentence indications in
determining criminal cases
Criminal cases are only heard and determined in the courts – only the courts have the power to
determine if an accused is guilty and sentence an offender. There are, however, two means that
encourage an early determination of a criminal case without the need to go to trial/hearing:

• Plea negotiations – also known as plea bargaining or charge negotiations, are discussions
between the prosecutor and the accused about the charges against the accused. They can
be regarding summary or indictable offences. They can result in an agreement being reached
about the charges that the accused will plead guilty to. Plea negotiations usually begin when
the accused indicates to the prosecution that they’re willing to discuss the charges.
Negotiations are conducted on a ‘without prejudice’ basis – this means any offer made by
either party during negotiations can’t be used against them if the negotiations are
unsuccessful. Therefore, accused can negotiate without fear that what they say will be used
against them at trial/hearing. The agreement reached may be:
o the accused pleads guilty to fewer charges, with the remaining charges not
proceeding
o the accused pleads guilty to a lesser charge (charge with an alternative offence with
a lower maximum penalty). E.g. accused pleads guilty to dangerous driving causing
death as opposed to their initial charge of culpable driving causing death, as
dangerous driving has a lower maximum penalty.
Plea negotiations don’t determine the sentence – accused still needs to be sentenced by a court.
Plea negotiations can happen at any stage, even before charges have been laid. Victims should
be consulted before plea negotiations, and victims’ views should be taken into account when
entering into an agreement with the accused, however, the victims’ views are not a deciding
factor for the prosecution to enter into the agreement. Plea negotiations have two main
purposes:

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 o to resolve a criminal case by ensuring a plea of guilty to a charge that adequately
reflects the crime that was committed. E.g. an accused charged of murder may
agree to plead guilty to manslaughter, if this charge still adequately reflects the
conduct of the offender so that the community and victims don’t think they’re being
let off easy.
o To achieve a prompt resolution to a criminal case without the cost, time, stress,
trauma and inconvenience of a criminal trial/hearing. This benefits the accused,
victims, witnesses and the community from the time and cost of going to trial. May
help victim move on quicker.

Appropriateness of plea negotiations – plea negotiations may only occur if it is in the public
interest. Some factors that are considered when deciding whether plea negotiations are
appropriate for a particular case:
o Whether the accused is willing to cooperate in the investigation or prosecution of
co-offenders or offenders of other crimes
o The strength of the prosecution’s case, including the evidence the prosecution has
the likelihood of conviction
o Whether the accused is ready and willing to plead guilty
o Whether the witnesses are reluctant or unable to give evidence, which would
jeopardise the prosecution’s ability to achieve a guilty verdict
o the possible adverse consequences of a full trial, including the stress and
inconvenience on victims and witnesses giving evidence
o The time and expense involved in a trial, particularly the prosecutor’s cost of running
the case
o The views of the victim (the prosecutor should consult the victims and take their
views into account when considering plea negotiations)
o The likelihood of a long trial

Strengths
• Saves the cost associated with a full trial
or hearing
• Ensures prompt determination of
criminal cases. Delays can lead to
unfairness, therefore this avoids that
• Victims and others are saved the
trauma, inconvenience and distress of
the trial process
• For the accused, the chance of a
reduced sentence
• The agreement can still reflect the
criminality of the offender helping to
achieve fairness
• Certainty of outcome
Weaknesses
• Victims and the community may feel
the accused is “let off” or will get a
lenient sentence
• The accused may feel pressured into
accepting a deal
• It avoids the need for the prosecutor to
prove the case beyond reasonable
doubt
• Negotiations are held privately and do
not need to be disclosed
• If the negotiations do not succeed,
either party may get an insight into the
other party’s case

• Sentence indications – the sentence indication regime was introduced in Victoria in 2008. A
sentence indication is a statement made by a judge to an accused about the sentence they

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 would likely face if they plead guilty to an offence. Sentence indications can be given for
either indictable or summary offences and are used to encourage an accused to plead guilty.
Unlike plea negotiations, sentence indications involve the court as they provide the
indication. Sentence indications are intended to provide the accused with some clarity about
the likely sentence that will be imposed, so they can alleviate fear they will receive a
custodial sentence and plead earlier. Providing the accused with a sentence indication can
also save the time, costs, resources, stress and inconvenience of having a contested
trial/hearing. Earlier guilty pleas are also desirable because they can help to bring an earlier
closure for the victims and their families, signify an accused’s willingness to accept
responsibility for their actions, reduce the need for lengthy trials and free up the resources
of the justice system for other matters.
o Sentence indications for indictable offences – the Criminal Procedure Act 2009 (Vic)
allows sentence indications to be given by the County Court and the Supreme Court
for indictable offences. Any time after the indictment is filed, the court may indicate
that if the accused pleads guilty to the charge, the court is (or is not) likely to impose
an immediate term of imprisonment. A sentence indication can only be given if the
accused applies for one and the prosecution agrees. It can only be given once during
the proceedings unless he prosecution otherwise consents. The court can refuse to
give a sentence indication – e.g. if it considers there is insufficient information about
any impact of the offence on victims.
The accused asking for a sentence indication cannot be used as evidence that they
are guilty. If the court indicates it isn’t likely to impose an immediate term of
imprisonment and the accused pleads guilty at the first opportunity, the court must
not impose a sentence of imprisonment. If the accused asks for a sentence
indication but does not plead guilty at the first available opportunity, a different
judge must preside over the trial. The sentence indication will not bind the trial
judge.

R v MacKinnon (2015)

On 13 December 2013, Paul McVeigh went to swim with dolphins. He boarded a vessel that
Torie MacKinnon was in charge of. When they arrived at the swimming area, McVeigh and the
other passengers entered the water. The vessel drifted from the swimmers and MacKinnon
went to reverse it. McVeigh was on the vessel at the time and wanted a crew member to take a
photo of him – he jumped into the water without warning. McVeigh was pushed underneath
the vessel and struck by a rotating propeller and suffered life-threatening injuries – he passed
away because of these. MacKinnon was initially charged with manslaughter and other offences
but was ultimately committed for trial on a charge of culpable driving causing death and
dangerous driving causing death. The Supreme Court justice indicated that he would be unlike
to impose a sentence of imprisonment that commenced immediately if MacKinnon pleaded to
a charge of dangerous driving causing death. MacKinnon pleaded guilty to this charge.
MacKinnon was charged to community correction order (CCO) of 18 months’ duration with
conditions, including that she perform 200 hours of unpaid community work.

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By Nicole Flynn
 o Sentence indications for summary offences – the Criminal Procedure Act 2009 (Vic)
states at any time during a proceeding, the Magistrates’ Court may indicate that, if
the accused pleads guilty to the charge for the offence at that time, the court would
be likely to impose an immediate term of imprisonment, or a sentence of a specific
type. If a sentence indication is given and the accused pleads to the charge for the
offence at the first available opportunity, then the court must not impose a more
severe type of sentence than the type of sentence indicated. The indication of
sentence will therefore cap the maximum sentence that could be imposed, if the
accused pleads guilty at the first available opportunity. If the accused asks for a
sentence indication but doesn’t plead guilty, then a different magistrate will
ordinarily hear and determine the charge and will not be bound by the sentence
indication.
Indictable offences Summary offences
Accused must apply for sentence Sentence indications can be given at any
indications time by the Magistrates’ Court
Prosecution must consent No need for prosecutions consent
Indication as to whether immediate Indication as to whether sentence of
sentence of imprisonment is likely to be imprisonment or sentence of another
imposed type is likely to be imposed

Appropriateness of sentence indications depends on factors such as:

o Whether the accused has applied for a sentence indication
o For indictable offences, whether a sentence indication has already been given. A
sentence indication may be given only once during a proceeding for an indictable
offence, unless the prosecution consents to another
o The type of offence and the court hearing the charges. Sentence indications are
more likely to be appropriate in the Magistrates’ Court and the County Court. Off-
ences heard in the Supreme Court are of such a severity that an accused who is
found guilty will usually receive a custodial sentence
o Whether there is sufficient information for the judge or magistrate to make an
indication, including information about the impact of the offence on the victim
o For indictable offences, whether the prosecution has consented to the sentence
indication
o The strength of the evidence against the accused, and whether the accused has
raised a legitimate defence
o The nature of the offence – e.g. may not be appropriate for sex offence cases

Strengths
• Allows for early determination of the case
• It can save money and resources
• It can be conducted in open court –
transparency which can’t be achieved in plea
negotiations
• The accused is not bound to accept the
sentence – providing fairness
• The indication is given be an experience and
impartial judge or magistrate
• There is certainty for the parties, the victims
and society about the outcome
Weaknesses
• For indictable offences, the
judge is not obliged to grant the
accused’s request
• In higher courts, prosecution
consent is required
• The sentence indication may be
conducted in a closed court,
leading to a lack of transparency
• For indictable offences, there is
no need for the judge to give an
indication about exactly what

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By Nicole Flynn
 • It can minimise the trauma, stress and
inconvenience of a trial
• Any victim impact can be considered as part of
the sentence indication
• The accused can’t receive a greater sentence
than indicated, or a term of imprisonment if
the judge indicated there would be no term
• If the accused asks for an indication but does
not plead guilty, a different judge or magistrate
will preside over the hearing or trial
• Sentence indication is not admissible in
evidence – it can’t be used against them at the
final hearing or trial
sentence will be imposed. They
only need to say whether a
sentence of imprisonment is
likely
• The sentence indication is given
before all the facts have been
admitted or proved
• It may deny the right of a victim
to give a victim impact
statement
• It denies the victim their ‘day in
court’

4.5: the reasons for a Victorian court hierarchy in determining criminal cases, including specialisation
and appeals

Victorian courts are ranked based on the severity and complexity of the cases they can hear. Each
court has its own jurisdiction (powers) to hear criminal cases. This can be broken down into two
types:

• Original jurisdiction – the power of a court to hear cases for the first time
• Appellate jurisdiction – the ability of a court to hear a case in which a decision is being
reviewed or challenged on a particular ground (e.g. being appealed to a higher court)

One reason for the court hierarchy is the specialisation of courts – due to the hierarchy, courts have
been able to develop their own areas of expertise/specialisation. In relation to criminal cases:

• The Supreme Court (Court of Appeal) specialises in determining criminal appeals in

indictable offences, and has particular expertise in sentencing principles
• The Supreme Court (Trial Division) hears the most serious indictable offences (e.g. murder
and manslaughter) and will have developed its own specialisation in those areas of law
• The County Court and the Supreme Court have developed expertise in hearing more
complex cases involving indictable offences (e.g. rape and homicide cases)

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By Nicole Flynn
 • The Magistrates’ Court is familiar with cases involving summary offences that need to be
dealt with quickly and efficiently (e.g. drink-driving and traffic offences)
• Other specialist courts such as the Children’s Court and Coroners Court deal with specialised
cases, including when young people have been charged with a crime

Another reason for the court hierarchy is appeals. An appeal is an application for a higher court to
review a ruling. If there are grounds for appeal, a party who is dissatisfied with a decision can take
the matter to a higher court to challenge the decision. A party who appeals is known as an appellant
and the other party is the respondent. The system of appeals encourages fairness and allows
mistakes to be fixed. Without higher courts, there couldn’t be a system of appeals, creating
unfairness. Grounds for appeal a criminal case can include:

• Appealing on a question of law (where some law has not been followed, e.g. the court was
allowed to hear inadmissible evidence)
• Appealing a conviction
• Appealing because of the severity (or leniency) of a sanction imposed. The prosecution will
appeal on leniency, and the offender will appeal because
• of severity. An offender will usually appeal the sentence on the basis that it was ‘manifestly
excessive’.

Original jurisdiction Appellate jurisdiction

Magistrates’ Court
County Court
Supreme Court (Trial Division)
Supreme Court (Court of
Appeal)
All summary offences and No appellate jurisdiction.
indictable offences heard
summarily. Committal
proceedings, bail applications
and warrant applications.
Indictable offences except From the Magistrates’ Court
murder, attempted murder, on conviction or sentence.
certain conspiracies, corporate
offences.
Most serious indictable From the Magistrates’ Court
offences. on points of law.
No original jurisdiction. Appeals from the County Court
or the Supreme Court (Trial
Division)

4.6-4.7: the responsibilities of key personnel in a criminal trial, including the judge, jury, parties and
legal practitioners

• The judge – acts as an ‘umpire’ at a trial and makes sure that the court procedures are
carried out in accordance with the court’s rules and that each of the parties is treated fairly.
The judge must be impartial and have no connections with the prosecution or the accused.
Responsibilities:
o Manage the trial – make sure that correct court procedures are followed so both
parties have an equal opportunity to present their case. The judge has powers to
give directions/orders during the trial, including how evidence is to be given, what
documents the jury should see and whether there will be separate trials (if there’s
more than one accused). Judges don’t take an active part beyond clearing up
ambiguities in points that have already been made.

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By Nicole Flynn
 o Decide on admissibility of evidence – deciding whether evidence is to be permitted
or excluded from trial. Evidence must be relevant to the issues. Generally, hearsay
evidence and evidence of an opinion is not admissible.
o Attend to jury matters and give directions to the jury and sum up the case –
informing potential jurors with information about the trail and the accused to make
sure any person is excused from being a juror if something about the case will affect
their ability to act as a juror. May have to address the jury about any issue of law,
etc. The judge may have to tell the jury the accused isn’t required to give evidence
and this shouldn’t be seen as admission of guilt. Once trial has concluded, the judge
will need to summarise the case to the jury. They must explain the law involved,
identify the evidence that will assist the jury and refer to the way the parties have
put their cases.
o Hand down a sentence – The judge must follow the sentencing guidelines
established in the Sentencing Act 1991 (Vic) and comply with legislation about the
sentence that should be imposed
• The jury – the jury system is a trial by peers. The criminal jury is the decider of the facts.
Responsibilities:
o Be objective – must bring an open mind to the task. They must have no connection
with any of the parties.
o Listen to and remember the evidence.
o Understanding directions and summing it up – jury must listen to judge’s directions
and summing up and may ask for explanation about any legal points they don’t
understand.
o Deliver a verdict.
• The parties – aka the prosecution and the accused. Responsibilities:
o Give an opening address – prosecution must give a statement to the jury on the
prosecution case before any evidence is given in the trial. If the accused is legally
represented, their lawyer must present to the jury a response to the prosecution’s
opening address.
o Assist the judge in jury matters – assist in empanelling the jury. During the trial,
either party can request the trail judge give directions to the jury.
o Present the party’s case - The prosecution is required to present to a jury all the
credible evidence that it considers relevant to the case. This responsibility applies
even if the evidence is not beneficial to the prosecution’s case. The accused has no
obligation to give evidence.
o Give a closing address – entitled to address the jury to sum up the evidence after the
close of all evidence and before closing address of accused (if they do one).
o Make submissions about sentencing – usually occurs at plea hearing once accused is
found guilty.
• The legal practitioners – legal practitioners undertake the role of preparing and conducting a
case on behalf of the parties. There are two types of legal practitioners that an accused is
usually represented by at trial: the solicitor and the barrister. Part of the role of the solicitor
before trial is to draft documents, communicate with the other party and the court, prepare
the case, research the law and develop the evidence, and instruct the barrister (including at
trial). The main role of the barrister at trial is to present the defence evidence and argue the
accused’s case on their behalf. Responsibilities:
o Be prepared.

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 o Comply with their duty to the court – act ethically and in accordance with the law,
even if they’re going against their client’s instructions.
o Present the case in the best light possible – present the case in a manner that is in
the best interest of their client.

4.8: the purposes of sanctions: rehabilitation, punishment, deterrence, denunciation and protection
A sanction is a penalty imposed by courts on a person who is guilty of an offence. The Sentencing Act
1991 sets out the court’s power to impose sanctions and establishes various types of sanctions. Two
purposes of the Sentencing Act are:

• To promote consistency of approach in sentencing

• To provide fair procedures for imposing sanctions

The purposes of sanctions set out in the Sentencing Act 1991:

• Rehabilitation – this is the treatment of the offender to address the underlying reasons for
the crime. This aims to assist offenders in changing their attitude and behaviour and prevent
them from reoffending in the future. This can be achieved through giving a CCO instead of
an imprisonment sentence. Sometimes, if prison is still necessary, they may undergo
rehabilitation programs in prison.
• Punishment – this gives the community some revenge against the offender. Helps to achieve
justice in the eyes of the victim and community. Also prevents the victim feeling need to
take punishment into their own hand.
• Deterrence – general deterrence is a sanction aimed at discouraging other people/the
community from committing similar crimes as they see the consequence of committing it.
• Denunciation – this is the disapproval of the court. A sanction may be given to show the
community the court disapproves of the offender’s conduct. For instance, the judge may
give a harsher sentence for a particularly violent rape and make comment about how the
court is showing disapproval of this type of behaviour.
• Protection – an aim that seeks to safeguard the community from the offender. Sometimes
this means putting the offender in prison as this physically prevents the offender from
reoffending. Sentences such as CCOs can also protect the community from offenders as they
keep them busy – however, some offenders abuse CCOs and offend while carrying out
community work. Under section 6D of the Sentencing Act, a court can give a serious
offender (e.g. sexual or violent offender) a longer sentence that is more appropriate.

A judge most take these purposes into consideration when imposing a sentence but mustn’t impose
a sentence that is more severe than necessary to achieve the purposes of the sentences imposed
(called the principle of parsimony).

4.9-4.11: fines, community corrections orders and imprisonment, and their specific purposes

The sanctions available to courts are set out in the Sentencing Act.

• Fines – an amount of money ordered to be paid by the offender to the state of Victoria. A
fine can be imposed as the only sanction or it can be imposed with any other sanction. The
amount of the fine will often depend on the maximum penalty that may be imposed for a
certain offence, which is normally prescribed in the statute setting out that offence. The
Sentencing Act expresses fines in levels (1-12). Level 2 is the highest level and level 12 is the
lowest. Each level refers to a number of penalty units – e.g. level 2 attracts a fine of 3000
penalty units. The court cannot order a fine at level 1 (very serious offences such as murder).

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By Nicole Flynn
 The use of ‘penalty units’ instead of fixed monetary fines allows the government to increase
all fines by increasing the value of a penalty unit each year without changing all statutes. E.g.
for a bomb hoax offence, setting the fine to a maximum of 600 penalty units will mean that
the maximum fine that can be imposed will increase annually. Under the Sentencing Act,
when fixing a fine a court must consider the financial circumstances of the offender and the
nature of the burden that payment will impose. If a fine is not paid, the offender can be
imprisoned or ordered to undertake community work.
Fines act to punish offenders. The financial circumstances of the offender is relevant as the
fine needs to be high enough to act as punishment. Fines can act as a specific deterrence to
discourage an offender from reoffending, but they can also act as a general deterrence to
other members of the public who know they will have to pay a fine if they are caught
committing a similar act. Finally, fines can also act as a form of denunciation. Some factors
to consider when determining whether a fine can achieve its purposes include:
o the wealth of the offender – For example, if the offender has significant wealth, then
the fine may not punish them or act as a specific deterrent
o the ability to denounce the crime – For example, a level 2 fine (the highest level) is
just over $460000, which may not send a strong enough message to some of the
community about the court’s disapproval
o whether a fine is sufficient to act as a general deterrent for the whole community –
For example, a fine that is too small may only deter people without much money
o whether there is a more appropriate sanction – For example, a sanction that
protects the community or rehabilitates the offender might be more useful to the
community.
• Community correction orders – a CCO is a supervised sentence served in the community that
includes special conditions, such as treatment of the offender and unpaid community work
for a number of hours. A CCO is a non-custodial sentence. CCOs give offenders the
opportunity to stop their criminal behaviour and undergo treatment or take part in
educational, vocational or personal development programs. This is known as ‘tailor- made’
sentencing. A court can only impose a CCO if the offender has been convicted or found guilty
of an offence punishable by more than 5 penalty units, the court has received a pre-
sentence report, and the offender consents to the order. The court must also be satisfied
that the CCO is appropriate for the particular offender. If the offender doesn’t comply with
the order it can be cancelled, and the offender will be resentenced. A CCO can be imposed
for up to two years in the Magistrates’ Court for a single offence, and no more than five
years in any of the Victorian courts. A CCO can be combined with a fine or up to one year in
prison – if it is combined with a prison term, the CCO will commence when the offender’s
released. a CCO cannot be a sanction for ‘category 1 offences’. Category 1 offences include
murder, causing serious injury intentionally or recklessly, rape, incest and some drug
offences a CCO cannot be a sanction for ‘category 2 offences’ unless in certain circumstances
(e.g. where the offender is over the age of 18, but under 21 at the time of the offence, or
where the offender has a mental impairment). Category 2 offences include manslaughter,
child homicide, kidnapping, arson causing death and some drug offences. Every CCO made in
the court includes core conditions. The offender:
o Must not commit another offence punishable by imprisonment during the term of
the order
o Must report to a specified community corrections centre within two working days of
the order coming into force
o Must report to and receive visits from a community corrections officer

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By Nicole Flynn
 o Must notify an officer of a change of address
o Must not leave Victoria without permission
o Must comply with any directions of community corrections officers

The court is also required to attach at least one special condition. These are listed in the
Sentencing Act:

o Unpaid community work

o Treatment and rehabilitation
o Supervision
o Non-association (not allowed to contact certain person/people)
o Alcohol exclusion
o Curfew
o Bond

Sentencing purposes of CCOs include to punish the offender. Conditions such as alcohol
exclusion aim to rehabilitate the offender. CCOs help offender’s self-esteem, assisting in the
reduction of recidivism. A CCO can also act as a specific deterrence. Some factors to consider
when determining whether a CCO is able to achieve its purposes include:

o whether there is a condition that will achieve the right purpose for the particular
type of offending
o the most appropriate condition to be imposed, and whether the court imposes that
condition
o whether the offender will comply with the conditions
o whether a CCO properly protects the community where protection is a relevant
purpose
o whether there is another or better sanction that will achieve the necessary purposes

• Imprisonment – this means they will be removed from society and they will lose their
freedom and liberty. Prison terms are expressed in levels from one to nine, one being the
most serious (life imprisonment) and nine being for six months. If a court sentences an
offender to imprisonment for two years or more, it must also state a minimum, non- parole
period. If the sentence is between one and two years, then the court can choose to state a
non-parole period. After this minimum period, the Adult Parole Board reviews the prisoner’s
suitability for parole. Parole is the conditional release of a prisoner after the minimum
period has been served. The Magistrates’ Court is limited in the length of imprisonment it
may impose. The maximum term of imprisonment for a single offence is two years and five
years for two or more offences. The maximum term of imprisonment (life) can only be
imposed by the Supreme Court. A term of life imprisonment means the term of the
prisoner’s natural life; however, a court can set a minimum non- parole period. If an
offender has been held in custody (e.g. on remand) before sentencing, any time spent in
prison may be considered as part of the sentence to be served.
Concurrent sentences run at the same time as another sentence. A cumulative sentence is
served straight after another sentence – these must be given for certain serious offenders
(e.g. sexual and serious violence offences) or someone who committed a crime on parole or
bail.
If an offender has been convicted of multiple, related offences, the court has the option of
imposing an aggregate sentence that applies to more than one offence, rather than

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By Nicole Flynn
 separate sentences for each offence. For example, a judge may hand down a sentence of
three years in prison for all of the offences and may not specify how much of that sentence
is with respect to each individual offence.
Indefinite sentences can be given by the court to those who are convicted by the Supreme
or County Court for a serious indictable offence. The court can only impose an indefinite
sentence on an offender if it is satisfied, to a high degree of probability, that the offender is
a serious danger to the community because of their character, past history, health, age or
mental condition, the nature and gravity of the serious offence, and any special
circumstances. The court will review the indefinite sentence periodically. Unless the court is
satisfied, to a high degree of probability, that the offender is still a danger to the community,
the indefinite sentence must be discharged, and the offender must undertake a five-year
reintegration program administered by the Adult Parole Board. The offender or the OPP may
appeal against a decision to discharge or not discharge an indefinite sentence.
The ability of imprisonment to achieve its purposes:
o The rate of recidivism and whether imprisonment is effective
o The availability of drugs in prisons (Corrections Victoria has acknowledged that
nearly 10 per cent of prisoners selected for urine tests in a six- month period in 2016
returned a positive result)
o The exposure of offenders to negative influences
o Whether the offender will be offered appropriate opportunities to rehabilitate, and
whether they will take advantage of those opportunities
o Whether there are other sentences, like CCOs, which are better focused on
rehabilitation
o The extent to which the community is protected if short prison terms are given

4.12: factors considered in sentencing, including aggravating factors, mitigating factors, guilty pleas
and victim impact statements
When deciding the appropriate sanction to be imposed on an offender, the Sentencing Act 1991
(Vic) requires a court to take several factors into account, including:

• Aggravating factors – circumstances about the offender or the offence that can increase the
seriousness of the offence, or the offender’s culpability. If they are present, a higher
sentence should be imposed. An example could be the use of violence, explosives or a
weapon when committing the offence, or the offence taking place in front of children.
• Mitigating factors – circumstances that a court should consider when determining the
appropriate sentence. They can be circumstances relevant to the offender, the victim or the
crime itself. They reduce the seriousness of the offence or the offender’s culpability. An
example could be the offender was provoked by the victim or the offender has no record of
previous convictions.
• Guilty pleas – whether the offender pleaded guilty to the offence and how far into the case.
A guilty plea at an early stage before trial (or hearing) or at the start of the trial can result in
a less- severe sentence. The Sentencing Act 1991 (Vic) allows guilty pleas to be taken into
account as it may encourage offenders to take an early guilty plea knowing it could lesser
their sentence. Can also save the time, expense and stress of a trial. Also acts as a reward for
admittance of guilt.
• Victim impact statement – contains particulars of any injury, loss or damage suffered by the
victim as a direct result of the offence

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By Nicole Flynn
5.1-5.3: factors that affect the ability of the criminal justice system to achieve the principles of justice
including in relation to costs, time and cultural differences

Time factors
Delays in having a trial heard and determined can affect the ability of the criminal justice system to
achieve justice. Factors:

• Delays in preparing a case for hearing or trial – most criminal cases involve a range of tasks
such as gathering evidence, location and interviewing witnesses, determining what
happened, and determining what charges should be laid against an accused. The time it

Bourke Street tragedy

On the 20th of January 2017, six people were killed and at least 30 injured after a car
drove through pedestrians in Bourke Street. Dimitrious Gargasoulas was charged with six
counts of murder and 28 attempted murder charges and was remanded in custody. In
February 2017, Justice Lex Lasry of the Supreme Court asked the prosecutors to provide
an update on the progress of the case. Usually Supreme Court won’t involve themselves
until committal proceedings conclude and an indictment is filed. The prosecutors
indicated that the complexity of the case (thousands of witnesses expected to be
interviewed and over 420 witness statements had been taken) meant there would be a
delay in having the matter heard until 2018. Justice Lasry expressed concern that this was
a long time.

takes to complete these -ill differ by case. The more complex a case, the more resources the
OPP needs to invest in preparing the matter for trial. Many see the delays as a result of the
nature of our justice system which relies on the prosecution gathering evidence and the
need for committal proceedings in what could be a straightforward case.

Principle Delays in preparing a case for trial

Fairness • Can result in emotional strain from the accused and their family, the
stigma of being charged with a crime, the possible loss of a job, and
disruption of family life.
• Emotional strain for the victim and their family – may not be able to
move on until it’s over.
• If the accused is being held in remand, there are the physical and
mental effects of spending time in prison, and it may be difficult to
prepare a case adequately. This can reduce likelihood of a fair
outcome.
• Delays could also mean witnesses may be unavailable, or their
memories may become unclear. This can reduce likelihood of a fair
outcome.
Equality • Delays can impact on those who are most vulnerable, putting them at
risk of not being treated equally before the law. E.g. delays can be
particularly distressing for people with mental illness or disability,
those who or aged, or victims who’ve suffered significant trauma.
Delays can therefore place someone in a more disadvantaged
position than they otherwise would’ve been.

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By Nicole Flynn
 Access • The greater the wait in having a case heard and determined, the less
the courts are accessible to the parties. The delays can be particularly
difficult for victims of trauma or sexual offences.
• A timely determination of a criminal case can ensure that the courts
remain accessible to people, and that people have confidence in the
criminal justice system.

• Court delays – parties often have to wait for a hearing date in court. The courts have put in
efforts to reduce delays in finalising criminal matters. However, courts have had to deal with
an increasing number of self-represented parties, more complex cases and some parts of
society demanding a more tough on crime approach which can lead to more cases being
brought before the courts. Waiting times for a trial is most often over 8 months.

Principle Court delays

Fairness • Includes right to be tried without unreasonable delay. Court delays can
be considered unfair given the strain it has on the accused, victims,
families and society.
• Long delays can also impact on evidence. E.g. witnesses lose their
memory over time and victims may find it traumatic having to wait so
long for justice.
Equality • Delays can impact on those who are most vulnerable, putting them at
risk of not being treated equally before the law. Delays can therefore
place someone in a more disadvantaged position than they otherwise
would’ve been.
Access • The greater the wait in having a case heard and determined, the less
accessible the courts are to the parties. This can cause parties to
compromise to finalise the case early.
• The delays can be particularly difficult for victims of trauma or sexual
offences.

• Plea negotiations and sentence indications – these have helped in addressing the delays faced by
the courts and the prosecution in criminal matters. Plea negotiations reduce delays by achieving
an early guilty plea in a case, causing quick determination of the case and allowing the use of
resources elsewhere. Sentence indications also reduce delays by providing an accused with an
opportunity to plead guilty once they know the likely sentence.

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 Principle Plea negotiations and sentence indications
Fairness • An accused person is given the opportunity to negotiate a plea/seek a
sentence indication. The accused does not have to accept these and can
decide whether to plead guilty.
• Plea negotiations are meant to ensure charges reflect the accused’s
criminality, ensuring fairness in what’s being negotiated.
• These avoid the burden of trial for victims and witnesses.
• Victims and members may see these methods as unfair and that the
accused is being let off.
Equality • These options are available for everyone giving them an equal
opportunity.
• Victims may feel they’re disadvantaged because an accused doesn’t
have to face trial.
Access • Guilty pleas avoid the trauma/stress/inconvenience of trial, enabling
better access to parties and victims of the criminal justice system.
• In plea negotiations, victims are often consulted about their views,
ensuring they are considered (but these don’t determine the plea
negotiation).

• Expedition of appeals in the court of appeal – since 2011, criminal appeals in the Court of Appeal
have been conducted under reforms known as the Ashley-Venne reforms. These reforms include
the filing of grounds of appeal and supporting arguments early in the process of applying for
leave and having more detail and uniform paperwork. These reforms have assisted in reducing
backlogs in courts and delays in having criminal appeals finally determined.
Principle Expedition of appeals in the court of appeal
Fairness • Appeals can add to the trauma of victims and other parties involved, as
they add more steps to the end of a case. Having the appeal heard
quickly can reduce the trauma.
• Hearings should be heard without unreasonable delay, so the reforms
assist in ensuring a fair hearing.
Equality • The reduction in time can reduce the stress/trauma/inconvenience
involved, ensuring equality before the law especially for those who are
more vulnerable to delays.
Access • Reducing time it takes for a matter to be determined can increase access
to justice – if appeals took years and an accused was wrongly found to
be guilty it would decrease access to a final determination and the
chance to establish an accused’s innocence/have a sentence reviewed.

Cost Factors
Costs associated with the criminal justice system can be significant, especially for an accused who
cannot afford legal representation. They can also be significant for a victim of a criminal case who
needs legal assistance and advice. Factors:

• The cost of legal representation – the main cost a person is likely to incur in a criminal case are
the costs of getting a lawyer. The greatest impact tends to be on the accused, who is likely to
need legal representation. Victims are also impacted as they may require representation to
assert their rights, etc. Not everyone can afford legal representation – this can be particularly
damaging for an accused person, as our criminal trial system relies on the parties presenting

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 their own case before the decider of facts. To receive a fair trial, legal representation is
necessary.
Principle Cost of legal representation
Fairness • If an accused can’t properly partake in a hearing, it may lead to an unfair
result. The following especially can impact:
o Lack of familiarity with the language of criminal trials
o Lack of objectivity/emotional distance from what is
happening in the case
o Lack of knowledge of courtroom facilities
Equality • If parties can’t afford representation, they’re at risk of not being treated
as equal before the law. E.g. they may come up against a skilled
prosecutor who’s familiar with the law, making it hard to compete.
Access • An accused who can’t pay for legal representation may have trouble
accessing the courts and the mechanisms that are used to determine the
criminal charges. This might result in an accused having to plead guilty to
a crime they mightn’t have committed as they don’t have the means or
ability to defend the case.

• The availability of legal aid – due to a lack of funding, a large part of the community isn’t eligible
for legal aid through VLA and CLCs are stretched in their ability to offer legal aid to people
affected by crime. Therefore, some people can be denied legal service. This is likely to impact
vulnerable and disadvantaged people who rely on legal aid for help, such as those with a
disability and those who are homeless or domestic violence victims.

Principle Availability of legal aid

Fairness • Having legal aid assists in a person understanding the system and
obtaining legal advice/representation, ensuring an accused receives a
fair trial/hearing.
• Limits on access to free legal services may impact an accused’s ability to
present their case in the best possible light and receive a fair hearing.
• Lack of legal aid can impact on victims/their families who want to assert
their rights, understand criminal processes and need information about
matters such as giving evidence. Can particularly impact on people such
as domestic violence victims and Aboriginal people.
Equality • Legal aid aims to ensure an accused isn’t disadvantage because of their
lack of legal representation.
• An accused who isn’t eligible for legal aid is at risk of not being treated
the same as the prosecution. It is usually the most vulnerable who need
legal aid and therefore the ones most likely to be denied.
• A victim/their family who cannot afford legal representation may also be
at a disadvantage by not being able to assert or understand their legal
rights at the same level as someone with private representation.
Access • VLA and CLCs aim to ensure there is access to justice.
• A party who can’t get any form of legal aid through these institutions is
at risk of not being able to access information, legal
help/advice/assistance/representation and may not be able to
understand the processes involved.

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• Assistance to self-represented parties – some people choose to self-represent while others have
no choice. This can be challenging as self-represented parties often find law unfamiliar and lack
understanding of the law. Court personnel, judges and magistrates can provide assistance to
self-represented accused persons in a criminal trial, enhancing their ability to achieve justice. For
instance, in the Magistrates’ Court the accused may be able to see VLA’s duty lawyer for that
day. In the County and Supreme Court, court personnel can provide advice to self-represented
parties on procedural matters and provide referral to legal service providers and pro bone
schemes.
Principle Assistance to self-represented parties
Fairness • Court personnel aiding parties may decrease some problems – while
limited to procedural matters, such assistance can reduce the possibility
of an accused being denied the right to a fair hearing.
• A judge can stay a trial until an accused obtains legal representation if
there is a risk that there will not be a fair trial.
Equality • Where a party is self-represented, the judge or magistrate must ensure
the hearing is conducted so that equality before the law is promoted.
• If there’s something about the self-represented party that means they
could be discriminated against (e.g. disability, mental illness) it is the
judge/magistrates responsibility to make necessary accommodations to
ensure those people can participate in proceedings.
Access • The fulfilment of the responsibility of the judge/magistrate to ensure a
self-represent accused receives assistance goes towards helping the
accused understand legal jargon, procedures and their rights.
• The assistance can’t extend to the judge acting for the accused or giving
legal advice. This means the accused must navigate their way through
complex procedures and make decisions about how to conduct the trial.
Cultural Factors
Cultural groups in society, such as those for whom English is not their first language and Aboriginal
and Torres Strait Islander peoples, sometimes do not have the same access/equality/fairness before
the justice system. Culturally based difficulties include lack of knowledge of the legal system, lack of
understanding of English, legal system failures to account for differences and cultural
misunderstandings. Factors:

• Problems during questioning and giving evidence – Aboriginal and Torres Strait Islander
people have a complex system of law and customs. Those from areas that are not familiar
with contemporary Australian society are likely to experience difficulties in giving evidence
in courts. They may experience problems such as not clearly understanding the English
language or complicated evidence presented in court. These difficulties may be made worse
by cultural or language barriers, embarrassment and fear. Difficulties faced by Aboriginal
and Torres Strait Islander people:
o Language barriers
o Body language – e.g. direct eye contact can be seen as rude to some Aboriginal and
Torres Strait Islander peoples.
o Cultural taboos – e.g. within some Indigenous cultures it is forbidden to speak of the
names of dead people or someone the community holds in disgrace.
o Lack of understanding of court procedures

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 Principle Problems during questioning and giving evidence
Fairness • The ways questions are asked and answered may risk the accused
person making confessions they may not otherwise make.
• An Indigenous person’s different customs and lack of understanding of
court processes can leave them at risk of procedural unfairness as they
may not present their case as required by the justice system.
Equality • Cultural differences can impact on a party’s ability to be seen equal
before the law. Aboriginal and Torres Strait Islander people may have to
adapt to a system different to their own.
• Unfamiliarity with the justice system and cultural differences can impact
on a person being able to equally present their case.
Access • Inability to understand legal processes and terminology, rights and the
court system can impact a person’s ability to access the system easily.

• Over-representation of Aboriginal and Torres Strait Islander peoples – according to the ABS as of
June 2016, the total Aboriginal and Torres Strait Islander population aged 18 years and over was
approximately 2% of the Australian population, but 27% of the total Australian prisoner
population. They are also more likely to be the victims of certain types of crimes.
Principle Over-representation of Aboriginal and Torres Strait Islander peoples
Fairness • Language and other issues may lead to misunderstandings between
Aboriginal and Torres Strait Islander people and their lawyers and court
personnel, resulting in unfair processes/trials/hearings.
Equality • The over-representation of Aboriginal and Torres Strait Islander people
demands greater attention by the justice system to the complexity of
their legal needs. If the court doesn’t meet these, they may be denying
equality.
Access • The lack of legal aid/resources for some Aboriginal and Torres Strait
Islander people faced with the justice system can result in poorer access.
• The Koori Court – this is a division of the Magistrates’ Court, the County Court and the Children’s
Court (criminal division). It was established to provide fair, equitable and culturally relevant
justice services to the Indigenous community, as well as greater protection and participation in
the sentencing process for criminal offences. To access this court for sentencing, the accused
must be Aboriginal, their offence must be within the court’s jurisdiction (e.g. cannot be a sexual
offence) and the accused
must consent to going
through the Koori Court. It
is not a trial court, but only
used for sentencing. The Court ensures the proceedings are informal and conducted in a way
that can be understood by the accused and any member of the Aboriginal community present in
court. Koori elders or respected persons can advise the Court on Aboriginal cultural issues.

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 Principle The Koori Court
Fairness • The Koori Court can help limit the chance of an unfair trial by ensuring
people can communicate in a way familiar to them.
• The informality and layout of the courtroom will enable the accused to
more actively partake in the hearing with elder’s present.
Equality • The Koori Courts assist in overcoming some of the problems arising from
cultural differences of the Indigenous community. The
differences/values of the community are recognised in sentencing.
• The Koori Court is limited to sentencing, and so does not address
equality issues that may exist in a hearing or trial to determine guilt.
Access • The informality of the Court, the requirement the offender and
Indigenous community can understand the proceedings and the
involvement of an Indigenous elder/respected person, assists the court
to address some of the inequities faced by Indigenous people.
• The Koori Court provides access only to guilty offenders, and not to
those who wish to defend the charges.
• The use of interpreters – many members of the community were born overseas or have a
language other than English as their first language. Under the Human Rights Charter, a person
charged with a criminal offence has the right to have the assistance of an interpreter at not cost
if they cannot understand/speak English. Interpreters can help accused to speak with their
lawyer and court personnel. The Magistrates’ Court will arrange and pay for an interpreter for an
accused, or, for an indictable offence, the OPP solicitor will arrange and pay for an interpreter.
Principle The use of interpreters
Fairness • Those who don’t speak English find it hard to present their case well,
legal processes/language is unfamiliar. May lead to an unfair outcome.
• Interpreter can ensure what the person wants to say is communicated.
Equality • A person who can’t communicate well may risk being treated different,
may not be able to perform as well as an experienced prosecutor and
therefore jeopardises the right to equality before the law.
• Interpreter can help people communicate with lawyers and court, and to
present their case in a way that ensures they’re not discriminated
against, making them more equal in the process.
Access • Without an interpreter, people of a different background may find it
difficult to understand processes/their legal rights.
• Interpreters can help people access legal advice/information in a way
they understand.

5.4-5.5: recent reforms and recommended reforms to enhance the ability of the criminal justice
system to achieve the principles of justice
The criminal justice system is always in a state of reform. Recent reforms are those that have
occurred in the past 4 years. Recent reforms:

• Removal of time limit for jury deliberation – previously, it was mandatory for jurors to take
six hours in a criminal trial to get a unanimous verdict before a majority verdict would be
accepted. The Juries Act 2000 (Vic) was amended in 2017 so that the mandatory six-hour
time frame was removed, and a majority verdict could be accepted earlier. This ensures
fairness by not locking into having to reach a unanimous verdict, allows speed of verdict,
may reduce verdict by only a short time, does not apply where unanimous verdict must be
accepted.

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 • Changes to bail laws – in 2016 and 2017 the Victorian Parliament made changes to the Bail
Act 1977 (Vic) so that people charged with certain offences, including murder and
aggravated home invasion, can only be granted bail in exceptional circumstances. The
changes reverse the presumption of bail for people charged with certain offences.

Many reforms have been recommended by various people, bodies and institutions that haven’t been
made. Recommended reforms:

• Abolition of committal proceedings – in 2012, it was reported that the Victorian Government
was considering abolishing committal proceedings, as they were causing backlog due to
unnecessary examination of cases. Committal hearings were abolished in New Zealand in
2011 and there remains some support for their abolition, but it is not currently a
government priority. Committal proceedings add to stress and cost of parties and victims.
Abolishing them will deny the accused the right to test the evidence. It may result in backlog
in higher courts, may risk rule of law and presumption of innocence not being upheld.
• Improving the availability of pro bono services – the Victorian Access to Justice Review
Report recommends that the Victorian Government, Justice Connect and the legal
profession work together to improve pro bono services. This includes developing an online
tool where CLCs or other organisations that require pro bono assistance can advertise their
needs and be matched with lawyers to assist. The Victorian Government in May 2017 agreed
to implement this recommendation. This requires lawyers willing to act free of charge.

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 Area 2
6.2: the principles of justice: fairness, equality and access
• Fairness – this means fair processes and a fair hearing (or trial). This means:
o Both parties should know the case against them and be given the opportunity to
present their case.
o The dispute resolution processes should operate so neither party is disadvantaged,
and that people are treated impartially without fear or favour.
o The parties should be able to understand court processes and be able to participate
in the hearing or trial.
Fairness doesn’t mean every plaintiff should have the same outcome/remedy for every
dispute of the same nature. Like the criminal justice system, ‘one size fits all’ can lead to an
unfair outcome. For example, if a famous young concert violinist loses a finger, the impact
on their career will be much worse than the impact on a retired postal worker with the same
injury. Therefore, it is possible that the remedy awarded for the violinist will be greater than
that given to the postal worker. To ensure fairness, people should be treated impartially.
• Equality – this means that all people should be treated equally before the law, with an equal
opportunity to present their case. Processes should be free from bias or prejudice, and
people must be treated impartially. The Charter of Human Rights and Responsibilities Act
2006 (Vic) states that every Victorian has the right to be equal before the law and the right
to equal protection of the law without discrimination.
• Access – this means that’s people should be able to understand their legal rights and should
be able to pursue their claims. People should be able to get information and use the
procedures, methods and institutions that resolve a civil dispute. They should also be able to
get information about their rights, when those rights have been infringed, and what
remedies may be available to them. A growing problem in the civil justice system is the
number of people without a lawyer.

6.3: key concepts in the Victorian civil justice system, including:

• the burden of proof – the refers to the onus or responsibility that one party has to prove the
facts of the case. The burden of proof lies with the person/party who is bringing the case
(plaintiff). When a plaintiff sues a defendant, it is the plaintiff who must show that the
defendant was in the wrong. There are times when the defendant has the burden of proof in
a civil dispute. This is normally when the defendant makes a counterclaim (a separate claim
made by the defendant in response to the
plaintiff’s claim – it is heard at the same time
by the court) against the plaintiff. Further, if a
defendant raises a particular defence (e.g.
the defence of contributory negligence in a
negligence claim, claiming that the plaintiff
contributed to the harm suffered), then the
defendant will also be responsible for proving
that defence.
• the standard of proof – this is the level of certainty the judge, magistrate or jury must have
in deciding the dispute. In a civil dispute, the plaintiff (or the defendant must prove the
counterclaim or a certain defence) must prove the case on the balance of probabilities. This
means the parties must prove they are most probably or more likely in the right/that the
other party is most probably wrong.

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 • representative proceedings (aka class actions) – if a group of people all have claims against
the same party, they may be able to join to commence a civil action known as a class action.
A class action is the main type of representative proceeding, which is brought in the name of
one person on behalf of someone else. It can be commenced if:
o seven or more people have claims against the same person
o those claims relate to the same, similar or related circumstances, and
o the same issues need to be decided (e.g. whether the defendant owed a duty of care
to those plaintiffs).
If these three things apply, a person in the group may commence a representative
proceeding. This person will ‘represent’ the group in the proceeding and are known as the
lead plaintiff. The persons who are part of the group are known as group members. The lead
plaintiff doesn’t need the consent of the group members and doesn’t even need to know
who they are. Once the group is described, every person in the group is assumed to be part
of the representative proceeding unless they ‘opt out’ by filing a notice with the court.
However, the group may be described in a way that requires people to ‘opt in’ rather than
‘opt out’. If a person ‘opts out’, then they will not be bound by the decision or settlement,
and they may be able to pursue the defendants in separate legal proceedings.
Types of representative proceedings include:
o shareholder class actions – where shareholders make a claim about being
misrepresented about the state of the company’s affairs.
o Product liability class actions – where consumers who’ve purchased a good or
service have all suffered the same loss or damage.
o Natural disaster class actions – where group members have suffered loss or damage
because of a natural disaster.
Benefits of representative proceedings:
o The group members can share the cost – this provides access to those who couldn’t
otherwise afford it.
o It is a more efficient way of dealing with several claims, saving the courts and court
personnel time.
o Sometimes a litigation funder (a third party that agrees to pay the legal costs
associated with the action) may fund the class action. They do this in return for a
percentage of any settlement or damages awarded. This again provides access to
those who couldn’t otherwise afford it.
There has been recent pressure for the class action regime to be reformed, as they’re seen
to be a risk for businesses and the costs can be significant. Sometimes a significant
percentage of any damages awarded/settlement amount will be paid out in legal
fees/expenses before the group members receive any funds.

6.4-6.5: factors to consider when initiating a civil claim, including negotiation options, costs,
limitation of actions, the scope of liability and enforcement issues
The main reason a party initiates a civil claim (also known as ‘suing’, ‘issuing proceedings’ or
‘bringing a civil action’) is that they wish to be compensated for the wrong they have suffered. Other
reasons include:

• Wanting to stop defendant from engaging in certain conduct – e.g. trespassing on their land
• Wanting to force another party to act in a certain way, such as perform their obligations
under a contract

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 • The plaintiff wants to send a message to the defendant or society about protection of
individuals’ rights.

Initiating a civil claim is risky. A person/group who initiates the claim might not win the case, and the
legal fees may be expensive. It can also be time-consuming, stressful, and may lead to negative
publicity. Therefore, someone deciding to initiate a civil claim may consider the following five factors
before doing so:

• Negotiation options – one consideration for a plaintiff is whether the dispute can be
resolved out of court or tribunal. Sometimes, it may be available for the plaintiff to try and
negotiate a resolution of the dispute directly with the defendant without making a claim.
Negotiation normally involves the parties interacting directly with each other to try and
resolve the dispute, with or without legal representation. It normally involves informal
discussion between themselves about the issues, what the plaintiff is seeking and what the
other party is prepared to do to resolve it. Other negotiation options may include:
o An independent third party (e.g. a mediator) to help solve the dispute. They are
neutral and impartial and will help the parties come to their own agreement. This is
also known as a ‘facilitated negotiation’.
o Arranging a negotiation or other dispute resolution service through a body such as
the Dispute Settlement Centre of Victoria.
Negotiation may not be an option is some cases, such as:
o When one or both parties don’t want to resolve the dispute/isn’t interested in
negotiating
o There have already been attempts to negotiate the dispute, and they’ve failed
o It is unlikely negotiation will result in a successful outcome
o There is an urgency in having the matter resolved through the court
o There is a significant power imbalance between the parties

The benefits of negotiating:

o The costs, time and stress of a civil action may be avoided.
o The parties have control over the outcome, as opposed to it being decided for them
by a 3rd party.
o The parties may be more prepared to accept an outcome that they’ve helped come
to, rather than a decision that has been imposed formally.
• Costs – a party involved in a civil dispute may incur costs in resolving a civil dispute, and they
should consider whether they can afford these. Costs include:
o Fees for legal representation – engaging a solicitor and a barrister is costly, and
often in court cases, a party will engage both. The cost of legal representation
depends on the complexity and size of the case, the court the matter will be held in,
the length of legal proceedings and the expertise of lawyers. The high costs can be a
barrier to many people and should be considered. Also should consider whether the
cost is more than the amount the plaintiff is seeking.
o Disbursement – issuing a claim in court/tribunal will incur a number of
disbursements (‘out of pocket’ expenses). These include:
▪ Court fees – these include court filing frees, court hearing or trial fees (the
plaintiff needs to pay for every day of the hearing), and jury costs.
▪ Mediation fees – the court will often order parties to attend mediation to try
and resolve the case before trial.
▪ Expert witness fees

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 o Adverse costs orders – this is a court order that a party pay the other party’s costs. If
a plaintiff initiates a claim in court and is unsuccessful, they may be ordered to pay
for some of the defendant’s costs. The general rule in civil disputes is a successful
party should receive an order from the court that their costs are paid by the losing
party.
o The availability of legal aid – VLA provides some assistance to people seeking legal
advice and representation for some civil disputes. VLA does, however, focus on the
people who need help the most – it mainly helps with criminal and family matters. It
doesn’t help with many types of disputes, such as employment disputes and wills.
Furthermore, the strict tests applied by VLA means any people aren’t eligible to
receive legal aid.
• Limitation of actions – plaintiffs must bring their cases to court within a time limit (called a
limitation period). Limitation of actions refers to the restriction placed on the time within
which a civil action can be commenced. The limitations are imposed so that the defendant
doesn’t have to face an action after a significant amount of time, evidence is not lost,
witnesses can remember what happened and so disputes can be solved quickly to promote
social cohesion. the main statute that imposes limitations on actions is the Limitation of
Actions Act 1958 (Vic). For instance, a defamation claim has a limitation period of 1 year, and
a breach of contract has a period of 6 years. Victoria has no limitation periods for persons
who suffered physical or sexual abuse as a minor, or psychological abuse that arose out of
that abuse. The expiry of any limitation period means that the plaintiff will be barred from
obtaining any remedy, however, the defendant will be required to raise it as a defence.
• The scope of liability – before initiating a claim a plaintiff needs to determine who are the
possible defendants and to what extent the defendant may be liable.
Possible defendants – generally, the defendant is the person who is alleged to have infringed
the plaintiff’s rights or who has directly caused harm to the plaintiff (e.g. in a contract claim,
this will be the other party to the contract, or in a negligence claim, the defendant will be
the person who breached the duty of care). However, there may be a party other than the
person who directly infringed the plaintiff’s rights who the plaintiff may sue, such as:

o An employer – the principle of vicarious liability means an employer may become

liable for the actions of its employee. For an employer to be liable, the plaintiff must
prove the employee was an employee, and they were acting during employment
when the event leading to the claim occurred. There must be a connection between
the act and the employment. If the employee was acting in an unauthorised way,
then the employer may not be found liable.
o An insurer – an insurance policy is an arrangement by which an insurer agrees to
provide compensation to the insured if the insured suffers some form or loss (e.g.
workers’ compensation – someone who suffers injury during employment). When a
plaintiff sues a defendant, that defendant is often insured. While the plaintiff can’t
make a direct claim against the defendant’s insurer, if the plaintiff is successful, the
defendant will claim on the insured for the loss.
o Persons involved in wrongdoing – a person who’s involved in the wrongdoing may
also be sued. They may be involved if the aided, abetted, urged or were a party to
the wrongdoing. This is known as accessorial liability. A plaintiff may decide to sue
somebody else who was involved in the wrongdoing.
Before bringing an issue, the plaintiff should consider the extent to which the defendant is
liable, as the defendant may argue they’re only partially liable for the plaintiff’s loss or

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 damage. E.g. contributory negligence, as the defendant may try to prove the plaintiff is
partially to blame for the harm done.
• Enforcement issues – normally, a plaintiff will obtain a settlement (settling with the
defendant before the court/tribunal hands down a decision) or a remedy to settle a case.
But, the plaintiff will need to consider whether the remedy can be enforced. For instance,
would the defendant be able to pay a remedy and whether they will. Some issues the
plaintiff will need to consider are:
o The defendant may be bankrupt – won’t have any assets or money to pay anything.
o Even if they’re not bankrupt, they may still be unable to pay.
o The defendant could be in jail (e.g. if the civil dispute arose from a crime) making it
harder to enforce the remedy.
o If the defendant’s a company, they mightn’t have any assets.
o Defendant may be overseas or uncontactable making it hard to force them to pay
any money.
Even if the defendant is able to pay, the plaintiff may have to issue enforcement proceedings
to force a defendant to comply with a remedy. E.g. obtaining a warrant from the court to
direct the court sheriff to seize the defendant’s goods and sell them.

7.1-7.3: the purposes and appropriateness of Consumer Affairs Victoria (CAV) and the Victorian Civil
and Administrative Tribunal (VCAT) in resolving civil disputes
Consumer Affairs Victoria (CAV)
CAV is a complaints body (an organisation established by parliament to resolve formal grievances
made by an individual about the conduct of another party).
CAV is Victoria’s consumer affairs regulator. It advises the Victorian Government on consumer
legislation, provides information and guidance to educate people about consumer laws, and
enforces compliance with consumer laws. It also provides consumers and traders, and landlords and
tenants, with a dispute resolution process. People may use CAV to exercise their consumer rights
when they may have been infringed. CAV helps people settle their disputes efficiently and
constructively, without any cost, and assists them in agreeing on the resolution without imposing a
decision. Its role is to resolve disputes efficiently and effectively, ensure inappropriate conduct is
stopped, and help any party that’s been wronged seek compensation for any loss suffered. CAV can
initiate a civil action on behalf of a person in relation to a consumer dispute in certain circumstance,
such as if they have evidence the business acted contrary to their legal obligations.

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CAV primarily uses conciliation to resolve disputes. This involves the assistance on an independent
or neutral third party (the conciliator) who helps the parties reach a mutually acceptable decision
between them. The conciliator doesn’t make the decision, but listens to the facts, and may makes
suggestions and explores possible solutions with the parties. The conciliator usually has specialist
knowledge of the nature of the dispute. If parties come to a decision, they may sign terms of
settlement which sets out the terms on which the parties agree to resolve the dispute. This may
then be enforceable through a court if one party doesn’t follow the agreement. CAV primarily offers
dispute services over the phone or sometimes in-person.
As not all civil disputes can be resolved by CAV, they use certain criteria to determine whether it’s an
appropriate dispute resolution body for a particular dispute. Three of those criteria are:

• Whether the dispute is within CAV’s jurisdiction – CAV can assist with disputes about:
o The supply of goods and services
o Residential tenancies
o Retirement villages
o Owners’ corporations

• Whether the dispute is likely to settle – if there is a reasonable likelihood the dispute will
settle, CAV will help. To determine whether the dispute will settle, CAV may consider factors
such as:
o There’s been no delay in the person complaining to CAV
o CAV’s database doesn’t say that the other party has previously refused conciliation
o The person complaining hasn’t contributed to the dispute through inappropriate
behaviour
o The dispute isn’t overly subjective (e.g. whether a haircut is ‘good’)
o The trader hasn’t already made a sensible offer that was rejected by the consumer
• Whether there are other or better ways to resolve the dispute – parties need to consider:
o Whether they can resolve the dispute themselves (e.g. negotiation)
o Whether the dispute is best resolved by a court or tribunal making a binding order
o Whether the other party is unlikely to take conciliation seriously
o Whether the matter is too complex for CAV or resolution is urgent
In addition to those criteria, CAV won’t conciliate disputes that the courts or VCAT have already
made a decision on, or disputes where there’s a case pending in the courts or VCAT. They’ll only
accept complaints if the person complaining has first tried to resolve the dispute themselves, and if
the complaint warrants CAV’s involvement.

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 Strengths
• Its conciliation service is free
• The process is informal (can be done over
phone) – can reduce anxiety some people
have about the formalities of a court room
• It aims to ensure procedural fairness –
allowing both sides to present their case
and rebut the other side
• Assesses disputes on a case by case basis –
reduces time wasted on disputes that
aren’t likely to resolve through conciliation
• Aims to resolve disputes in a timely
manner – don’t have to wait months for
more formal bodies
• Parties reach a resolution themselves, and
it’s not imposed on them – parties are
therefore more likely to accept an outcome
Weaknesses
• CAV’s jurisdiction is limited – will also
normally refer a matter only partly in its
area and partly in another body’s area, to
the other body
• CAV has no powers to compel parties to
undergo conciliation
• CAV has no powers to enforce any decision
made by the parties
• Not all cases are accepted by CAV
• Parties may not take the matter seriously
because of the process (informal nature
and lack of a binding decision)
• It may not be appropriate for large and
complex civil claims

The Victorian Civil and Administrative Tribunal (VCAT)

VCAT is a tribunal. A tribunal is a dispute resolution body which deals with a limited area of law and
gains expertise in it. It was established in 1998, when the Victorian Parliament passed the Victorian
Civil and Administrative Tribunal Act 1998 (Vic) (under this act, VCAT has to act fairly when resolving
disputes). VCAT’s governing body, who manage and administrated VCAT, consists of a President,
vice-presidents, deputy presidents and senior and ordinary members. VCAT is divided into four
divisions, each containing one or more lists, which hear certain types of disputes (and have expertise
in that area).
VCAT’s purpose is to provide Victorians with low-cost, accessible, efficient and independent
tribunal delivering high-quality dispute resolution processes. If a matter doesn’t settle, there will be
a formal hearing at which a member of VCAT will make a binding decision on the parties.
• Low cost methods of resolving disputes – VCAT provides this in a number of ways:
o Generally, parties only need to pay a small amount to file their claim.
o They have three tiers of fees – corporate, standard and health care card holders. So
those who are less able to pay only pay small/no fee.
o There are no hearing fees for some claims, such as small civil claims.
o In many lists, parties don’t have to go through pre-trial procedures.
o Parties can represent themselves.
• Accessibility of VCAT – VCAT conducts hearings in various locations around Victoria. They
also improve accessibility through using telephone and video conferences. They’re also
aiming to encourage Koori participation through raising awareness. Less formal nature also
encourages people to use VCAT.
• Efficiency of VCAT – VCAT constantly aim to reduce waiting times. In 2015-16, the
Residential Tenancies List had a median wait time of 2 weeks. VCAT has also upgraded its
computer systems and focused more on technology to ensure greater efficiency.
• Independence of VCAT – VCAT’s members are independent and will act as unbiased
adjudicators. Is independent of parliament and government.
VCAT uses three main types of dispute resolution methods:
• Mediation – uses an independent third party (mediator) who doesn’t interfere/persuade the
parties but helps ensure the parties are both being heard and aids discussion. The mediator
doesn’t offer legal advice or make decisions about a breach of law. Mediation isn’t legally
binding, but terms of the settlement are often drawn up at the conclusion. Sometimes, VCAT

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 may make an order which gives effect to the terms of settlement, so the terms will become
a formal order of the tribunal and be binding.
o Short mediation and hearing (SMAH) – disputes about goods and services in the Civil
Claim List valued at less than $3000 may be listed for a SMAH. A VCAT staff mediator
conducts the mediation. If the dispute doesn’t settle at mediation, the matter will go
straight to hearing on the same day before a different VCAT member.
• Compulsory conferences – confidential meetings during which the parties discuss way to
resolve their dispute in the presence of a VCAT member. Compulsory conferences use a
conciliation process. The VCAT conciliator may suggest forms of settlement and give a view
as to the possible decision that may be reached at hearing. The member who assists in the
compulsory conference generally won’t hear the case at the final hearing and won’t tell the
member presiding over the hearing what happened at the compulsory conference.
• A final hearing – if the matter isn’t settled at mediation/compulsory conference/any other
way, then it will be listed for a final hearing before a VCAT member. At the hearing, parties
will be able to present their case, including giving/hearing evidence, asking witness
questions and providing documents to support their case. A VCAT member will oversea the
hearing and make a binding decision on the parties. These hearings are less formal than
court – VCAT has an obligation to conduct each proceeding with as little formality and
technicality as possible. VCAT can make different types of order in hearings for different
lists. In general, VCAT can:
o Require a party to pay money
o Require a party to do something, such as perform work, carry out repairs or vacate
premises
o Require a party to refrain from doing something
o Review, vary or cancel a contract
o Dismiss a claim
These decisions of VCAT are binding and can be enforced if parties don’t comply.
Appeals from a decision made by VCAT can only be made on points of law. E.g. a party may argue a
law hasn’t been properly interpreted in the case. Leave (permission) is required to appeal a VCAT
decision. If the tribunal was presided over by the President or a vice-president, the appeal will be
heard in the Court of Appeal. All other appeals will be heard in the Trial Division of the Supreme
Court.
In determining whether VCAT is the most appropriate body to resolve a civil dispute, the following
points should be considered:
• Whether the dispute is within VCAT’s jurisdiction – VCAT obtains its power to hear cases through
statutes made by parliament. Often parties have no choice but to bring a dispute to VCAT, as it
has exclusive jurisdiction (meaning only VCAT has the power to hear/determine that type of
dispute, not a court) to hear certain claims. The types of claims VCAT can hear includes:

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 VCAT also has a review jurisdiction to revisit decisions made by certain authorities. This
means it can affirm, vary or set aside the decision made. VCAT cannot hear disputes such as
representative proceedings, employer/employee and disputes between tenants.
• Whether there are other or better ways to resolve the dispute – the parties should consider:
o Whether the parties could solve the dispute themselves through
negotiation/mediation
o The nature of the fees (for some lists the fees are just as high/higher than courts)
o Whether one party is unlikely to take VCAT seriously, making courts preferable
o Whether one or more parties would prefer the formality of the court
o Whether the matters of a complexity/size not appropriate for VCAT
o Whether the party prefers the court because of the doctrine of precedent – there is
no certainty VCAT will decide their case in the same way as previous cases
o whether the parties wish to have greater avenues of appeal (appeals from VCAT
decisions are limited to appeals on a question of law)
Strengths Weaknesses
• It is normally cheaper than courts (lower • Costs have recently increased
fees and no cost of pre-trial procedures and • For large and complex civil claims, VCAT is
parties can self-represent) not an appropriate forum
• There is a quicker resolution of disputes • There is limited right to appeal VCAT
• An informal atmosphere may ease the decisions – they can only be appealed on
parties points of law and to the Supreme Court
• There is flexibility in the way that hearings • It may be too informal for some
are conducted - can help ensure an • VCAT members are normally non-judicial
unrepresented party has an equal officers, meaning they may have less
opportunity to understand processes and experience than judges
present their case • VCAT has suffered long delays in some lists
• Lists can develop expertise in a particular • The doctrine of precedent doesn’t operate
area of law in VCAT
• Parties are encouraged to reach a
resolution between themselves and often
VCAT will refer matters to mediation or
compulsory conference before a final
hearing (saving cost and time)
• A decision made in a final hearing is binding
(meaning it’s enforceable)

7.4: the purposes of civil pre-trial procedures

If a plaintiff decides to issue a proceeding in the County Court or Supreme Court, the parties must
complete various pre-trial procedures before the proceeding is ready for trial. Some pre-trial
procedures are mandatory, and some may be ordered by the judge. Pre-trial procedures are set out
in the relevant rules of the court:
• Supreme Court civil pre-trial procedures are specified in the Supreme Court (General Civil
Procedure) Rules 2015 (Vic).
• County Court civil pre-trial procedures are set out in the County Court Civil Procedure Rules
2008 (Vic).
These are referred to as the ‘court rules’ or ‘rules of the court’. Some types of pre-trial procedures:
• Pleadings – these are a series of documents filed and exchanged between the parties to a
court proceeding. They set out and clarify the claims/defences of the parties and help to
define the issues in dispute. The two main documents exchanged during the pleadings stage
are:

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 o A statement of claim – this is filed with the court by the plaintiff and served
(formally given) to the defendant. It lays out the claims made against the defendant
and the remedy sought. E.g. for a contract breach, the statement of claim will set
out what the contract was, how it was breached and what loss the plaintiff suffered
as a result.
o A defence – this is filed by the defendant. It sets out a response to each of the
plaintiff’s claims (from the statement of claim).
Generally, if claims and defences aren’t made in the pleadings, they can’t make new
claims/defences in court, except with the leave (permission) of the court or consent of the
other party. The purpose of pleadings are to:
o By requiring parties to state the main claims/defences of their case, they aim to
achieve procedural fairness by ensuring each side knows the claim/defence.
o By stating the material facts and details they’re relying on to prove their case, an
opponent can’t be taken by surprise.
o Gives the court a written record of the case.
o Sets the limits to the dispute, enabling other procedures such as discovery to be
confined to the issues in dispute.
o Assists in reaching an out-of-court settlement where appropriate e.g. if case is
compelling, may convince other party to settle before trial.
• Discovery of documents – this enables parties to get copies of documents relevant to the
issues in dispute. Documents relevant to the claims/defences are listed in a formal
document and the other side is entitled to inspect the documents. There is an obligation on
parties to disclose the existence of documents at the earliest reasonable time. E.g. if the
plaintiff claims to have suffered physical injuries, there should be medical records showing
the nature and extent of injuries. The purpose of the discovery stage is to:
o Ensure fairness in the process through the disclosure of all relevant documents.
o Reduce the element of surprise at trial and give parties time to prepare.
o Allow each party to determine the strength of the other side’s case and their
likelihood of success.
o Ensure the parties and courts have all relevant material to achieve a just outcome.
o Assist in reaching an out-of-court settlement where appropriate. Compelling
documents may force one party to reconsider their claim/defence.
• Exchange of evidence – evidence is generally needed to prove a case. There are generally
two types of evidence:
o Lay evidence -laypersons or ordinary people give lay evidence. They don’t give
evidence on opinion or expertise, but about what they know about the factual
circumstances. Depending on what the court’s ordered, laypersons might give
evidence as follows:
▪ As a witness outline – a brief description of the topics the witness will give
evidence on when they attend trial. Allows the other parties to know in
advance what the evidence will be about.
▪ By filing a witness statement – this is the written form of evidence that the
witness would’ve given orally. A witness who provides one of these may
only need to attend trial for cross-examination and re-examination.
▪ Orally – the witness will need to attend trial and will be asked questions
under oath or affirmation. They won’t have to provide a witness outline or
statement before giving that evidence.
There are three types of examination of witnesses. Examination-in-chief (a series of
questions put to the witness by the party that called them), cross-examination
(where the other party questions that witness) and re-examination (where the party

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 that called them tries to clarify anything put to the witness during cross-
examination).
o Expert evidence – experts are often called to give an opinion about an issue in a
case. They may have expertise in a particular field e.g. medicine. Expert evidence is
often submitted through a witness report by an independent expert. The expert
must only give an opinion within their area of expertise. Even though experts are
engaged by a party, they have a primary duty to the court, and mustn’t argue the
case for the party but instead be truthful.
Purposes of exchange of evidence are to:
o Reduce the element of surprise at trial.
o Allow each party to determine the strength of the other side’s case.
o Provide both parties the chance to rebut the other side’s expert evidence by
engaging their own expert.
o Allow the defendant to understand the amount of damages the plaintiff is seeking so
the defendant can consider whether the matter may be better settled outside of
court.
Purpose Relevant pre-trial procedure
Ensure procedural fairness by allowing the Pleadings
other side to know what the claim or defence is Discovery of documents
about, or requiring the parties to disclose all
relevant documents.
Avoid taking an opponent by surprise by Pleadings
disclosing material facts, particulars, Discovery of documents
documents or evidence. Exchange of evidence
Give the court a written record of the case. Pleadings
Set the limits to the dispute. Pleadings
Assist in reaching an out-of-court settlement. Pleadings
Discovery of documents
Exchange of evidence
Allow a party to determine the strength of the Discovery of documents
other side’s case. Exchange of evidence
Provide opportunity to another party to rebut Exchange of evidence
the other side’s evidence.

7.5: the reasons for a Victorian court hierarchy in determining civil cases, including administrative
convenience and appeals
The court hierarchy is ranked in order of the complexity and severity of the cases that they hear. The
High Court is a federal court – it can hear appeals from the Court of Appeal, but a party must first get
the High Court’s leave (consent) to appeal. Two of the main reasons for a court hierarchy are:
• Administrative convenience – using a hierarchy means cases can be distributed according to
their seriousness and complexity. Minor civil disputes (claims where the plaintiff’s seeking
less than $100 000) can be heard in the Magistrates’ Court. These can be heard quickly and
less expensively in the Magistrates’ Court – as there are lots of small disputes in Victoria,
there are a lot of Magistrates Courts. If small claims had to be heard in the higher courts
with the larger claims, they’d take longer to hear. More serious and complex disputes are
heard in the Count and Supreme Court, which have unlimited jurisdiction. Class actions are
only heard in the Supreme Court (as they take longer to hear and required judges with
expertise in complicated points of law). Due to the court hierarchy, the higher courts can
manage the allocation of time for longer, complex cases easier.
• Appeals – someone who is dissatisfied with a decision in a civil trial can, if there are grounds
for appeal, take the matter to a higher court. Grounds for appeal may include a point of law

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 (where some law has not been followed e.g. court heard inadmissible evidence), a question
of fact and the remedy awarded. If there wasn’t a court hierarchy, there’d be no higher
court to review a decision that a party believes has been made in error. Most civil disputes
require leave to appeal. Getting the court’s consent to hear an appeal usually requires the
party to show the court there’s a reasonable chance of success. The Court of Appeal and the
High Court can determine special leave applications ‘on the papers’, meaning no formal
hearing may be required. This streamlines processes and reduces time and cost of a formal
hearing.

Court Original jurisdiction Appellate jurisdiction

Supreme Court (Court of
Appeal)
Supreme Court (Trial Division)
County Court
Magistrates’ Court
No original jurisdiction
Unlimited in all civil claims
Unlimited in all civil claims
Claims of up to $100 000
With leave, on a question of
law, a question of fact or an
amount of damages, from a
single judge of the County
Court or Supreme Court. On a
question of law from VCAT
when the President or a vice-
president made the order.
On a question of law from the
Magistrates’ Court and from
VCAT.
No appeals, unless given
power under a special Act of
Parliament.
No appellate jurisdiction.

7.6-7.7: the responsibilities of key personnel in a civil trial, including the judge, jury, the parties and
legal practitioners
When a civil dispute goes to trial in the County Court or the Supreme Court, four key personnel are
involved. They are:
• The judge – having an independent and impartial judge increases fairness and equality. They
must preside over the courtroom and act as an umpire. Responsibilities include:
o Manage the trial – judge has powers of case management to ensure the trial is
conducted in a just, timely and efficient manner. The judge can change the
procedure a trial is usually conducted as, and may also give directions/orders in the
trial, aske a witness questions to clarify their evidence and hand down ruling where
necessary. E.g. a judge may need to decide mid-trial whether a witness can give
hearsay evidence – they are therefore making a ruling about whether this is allowed.
o Decide on the admissibility of evidence – deciding which evidence is permitted
under the rules.
o Attend to the jury (if there is one) – the judge may need to address them, give
directions and sum up the case to the jury at the end of trial.
o Determine liability and the remedy – if there is no jury, the judge must decide
whether the plaintiff’s established their claim against the defendant and what
remedy, if any, should be awarded. Judges will often reserve their decision and
deliver it later. They usually provide written reasons (known as judgement) for their
decision. These should be delivered in a timely manner.
o Make a decision on costs – after each hearing in a civil case, the judge will decide
which party should bear the costs. Generally, working out costs is left to the end,
and the successful party is entitled to costs.

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 • The jury (if there is one) – Juries may be used if the plaintiff or defendant specifies during
the pleadings stage that they wish to have one, although the can still decide a jury is not
required (the party who wants the jury must pay the applicable fee). The court may also
order a proceeding be tried with a jury. A civil jury decides which facts it believes to be true
and applies the facts of law as explained by the judge. The jury may also be required to
assess damages, but not in defamation cases. A civil jury only has 6 jurors. Responsibilities:
o Be objective – must be unbiased and bring an open mind to the task. The jurors
must have no connection with any of the parties.
o Listen to and remember evidence – jurors may take notes to help them, however
they must stay attentive. They must not undertake their own investigation or
conduct any research on the case.
o Understand directions and summing up – the judge will give directions about issues
or points of law and sum up the case at the end.
o Decide on liability and, in some cases, damages – the jury must decide who or what
to believe, and whether the plaintiff’s established their case on the balance of
probabilities. A civil jury must try and reach a unanimous verdict, but the court may
accept a majority verdict in all cases.
• The parties – the main parties are the plaintiff and defendant (sometimes there can be more
than one plaintiff and defendant, and in class actions, the lead plaintiff represents the group
members). Each party in a civil trial has control over the way the case will run – this is known
as party control. Responsibilities:
o Make opening and closing addresses – both parties give an opening and closing
address which outlines and summarises the case for the party. Generally, the
plaintiff will present their case first, then the defendant (unless the judge requires
otherwise).
o Present the case to the judge or jury – e.g. through witnesses.
o Comply with overarching obligations – there are 10 of these under the Civil
Procedure Act 2010 (Vic), including acting honestly and minimising delay.
• The legal practitioners – legal practitioners usually prepare and conduct a case on behalf of
the parties. These experts ensure parties present their case in the best possible light. They
also ensure the law is applied fairly. They also have less emotional attachment to the case,
making them more objective when presenting the case. One of the most important duties of
legal practitioners is the duty to the court and the administration of justice. They must put
the court and law before their client. Responsibilities:
o Make opening and closing addresses – the barrister will ordinarily present these
orally in court.
o Present the case to the judge or jury – if witnesses give evidence orally, the barrister
will usually ask the witnesses questions. Legal practitioners have the responsibility of
presenting their case in a manner that is in the best interest of their client, but with
a greater duty to the court.
o Comply with overarching obligations – there are 10 of these under the Civil
Procedure Act 2010 (Vic), including acting honestly and minimising delay.

7.8: judicial powers of case management, including the power to order mediation and give directions
The Victorian Parliament has passed laws that give powers to Victorian judges and magistrates to
manage civil disputes in Victoria courts. The overarching purpose of the Civil Procedure Act 2010
(Vic) is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in
dispute. One way the court aims to achieve this is through the judges actively managing cases.

The power to order mediation is given by the Civil Procedure Act 2010 (Vic) and it allows judges to
make an order referring a civil proceeding, or a part of a civil proceeding, to mediation. The court

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rules also enables a judge to refer the parties to mediation. The court can either order a court officer
to act as the mediator, or order the parties to arrange the mediation privately, in which case the
parties choose a private mediator. Parties can be referred to mediation at any time of the
proceeding. They may also attend more than one mediation if there’s a prospect further mediation
may help settle the dispute. The power to order parties to attend mediation can assist in the prompt
resolution of a dispute, and help parties realise it is cheaper and easier to settle the dispute before
trial.

The power to give directions is given by the Civil Procedure Act 2010 (Vic) and it states that court
may give any direction or make any order it considers appropriate at any stage of the proceeding.
The relevant rules of the court also give this power. This therefore allows judges to actively manage
civil proceedings. A direction is an instruction given by the court to one or more of the parties, which
imposes an obligation on a party to do something by a certain time to specifies how a civil
proceeding is to be conducted. Sanctions can be imposed on a party who fails to comply with a
direction of the court. Directions before trial - the judge has the power to give directions to the
parties about:
• The conduct of proceedings
• Timelines for any steps to be undertaken
• Participating in a method of dispute resolution, such as mediation
• Expert evidence, such as limited expert evidence to certain issues
• Discovery, such as relieving a party from the obligation to provide discovery, or limiting
discovery
Directions can be given at any time, but may be given at a direction hearing (a pre-trial hearing
before a judge or an associate judge).
Directions during a trial may include directions about:
• The order in which evidence is to be given, or who will address the court first
• Limiting the time to be taken by a trial
• Limiting examination of witnesses / not allowing cross-examination of a certain witness
• Limiting the number of witnesses a party may call
• Limiting the number of documents a party may tender into evidence
• Costs, including whether a certain party should bear the costs

NOT LISTED IN STUDY DESIGN

The Courts – In determining whether a court is an appropriate dispute resolution body for a
dispute, you should consider:
• Whether the dispute falls within the court’s jurisdiction
• Whether there are other or better ways to resolve the dispute
Both the County Court and Supreme Court have unlimited jurisdiction to hear civil disputes –
meaning it doesn’t matter what amount the plaintiff is seeking, these courts can hear it. The
Magistrates’ Court jurisdiction limit is $100 000 (meaning a plaintiff seeking damages of more
than $100 000 must file their claim in the County or Supreme Court). VCAT has exclusive
jurisdiction over some matters (e.g. domestic building disputes and retail and residential
tenancies disputes) so the courts cannot hear them.
The parties should also consider whether there are other or better ways to resolve the dispute, by
considering things such as:
• Whether they’re able to resolve the dispute themselves through negotiation or
mediation
• Costs of court, legal representation and potential of an adverse cost order
• Whether they’re comfortable with the formality

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 • The size and complexity of the matter
• The time it will take to hear the matter in court
Advantages
• The court hierarchy allows for
administrative convenience
• The court provides opportunities to the
parties to reach an out-of-court
settlement
• The court allows the parties to determine • Can be stressful procedure
the strengths and weakness of each
other’s cases
• The court seeks to achieve procedural
fairness
• Parties are given info along the way, so
they can assess the merits of the case
early
• Decision-makers are impartial and
independent
• Use of jury allows a reflection of
community values in decision-making
• Court process engages experts
• Outcome is certain
Disadvantages
• Often suffer delays in court system
• Costs in having a dispute can reduce
access
• Many procedures are complex and hard
to understand without a lawyer
• Judges can’t overly interfere or help a
party which may be unfair for some
parties
• Jurors aren’t experts in the law or
evidence
• Jurors don’t have to give reason for their
decision
• May be unconscious biases
• Outcome may be based on presentation
of case, not who’s actually liable.

7.10-7.11: the methods used to resolve civil disputes, including mediation, conciliation and
arbitration, and their appropriateness
Mediation, conciliation and arbitration are alternative dispute resolution methods, and can be used
without going to VCAT, CAV or the courts. However, these methods are also used by some or all of
these dispute resolution bodies to resolve disputes as alternatives to a final hearing or trial.

• Mediation – this involves an independent third party (a mediator) who facilitates discussion
between parties to assist them in coming to their own agreement. The resolution may be
enforceable of terms of settlement are entered. This is widely used by courts, tribunals and
other dispute resolution bodies. Courts and VCAT may order a proceeding to mediation, or
parties may ask the courts to refer them to a mediator. The cost of the mediator is usually split
between the parties and the mediator can be appointed by the court or agreed upon by the
parties. How mediation is used:
o By the courts – they may refer civil disputes to mediation.
o By VCAT – often refers claims to mediation prior to a final hearing. Also through the use
of SMAH, where parties attend a brief mediation by a VCAT mediator and go to final
hearing the same day if the matter doesn’t settle.
o By CAV – doesn’t used mediation.
o Private use – individuals may attempt mediation before initiating a claim.
Appropriateness of mediation is discussed under the conciliation dot point below.
• Conciliation – involves an independent third party (conciliator) who assists parties in coming to
an agreement, and offers suggestions and solutions, to assist parties in coming to their own
agreement. The resolution may be enforceable if terms of settlement are entered. Used by CAV
and VCAT, as courts don’t have power to refer disputes to conciliation. How conciliation is used:
o By the courts – don’t generally use conciliation, but can under the Civil Procedure Act
2010 (Vic).

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 o By VCAT – parties may be ordered to take part in a compulsory conference which is
conducted using a conciliation process.
o By CAV – CAV’s primary method of resolving disputes is conciliation.
o Private use – individuals may attempt conciliation before/after initiating a claim.
Points to consider when determining whether mediation and conciliation are appropriate
Suitable disputes Not suitable disputes
• Disputes in which a relationship between • Disputes in which overwhelming emotions
parties will continue (e.g. neighbours) may interfere with the negotiation process
• When both parties are prepared to • Disputes with a history of broken promises
compromise and stick to any agreement • Disputes with a history of violent behaviour
• Disputes where a defendant admits liability • Disputes where parties aren’t willing to
and the only issue is to determine the reach a mutual agreement
payment amount • Disputes with power imbalance
• When the parties want privacy • Disputes in which a debt is clearly owing by
• When the court refers the parties here one party
• When the parties expect the legal costs will • When the matter is urgent
be significant and the matter can be
resolved at an early stage

Advantages
• Less formal than courts and VCAT – less
intimidating
• May address parties’ needs better
• Conducted in a safe and supportive
environment, in a venue suited to both
parties
• They use an experience 3rd party
• They save time as opposed to waiting for a
final trial or hearing
• Generally cheaper
• They are private and confidential
• They are voluntary
• There is flexibility in the steps
Disadvantages
• Decision mightn’t be enforceable
• One party may compromise too much
• One party may be more manipulative
• One party may refuse to attend
• The matter may not resolve and may need
to go to court anyway, wasting time and
money
• The decision won’t form any precedent
• One party may feel compelled to reach a
resolution and therefore feel dissatisfied
• May be conducted too late or early in
proceeding to be effective

• Arbitration – involves an independent and impartial third party (arbitrator) hearing the evidence
and arguments from both parties and making a legally binding decision (known as arbitral
award) in favour of one of them. This is used in the Magistrates’ Court for claims less than $10
000, in private and commercial disputes, and if the court orders it (however, this requires the
consent of the parties). Generally, arbitrators aren’t bound by rules of evidence and may inform
themselves on any matter they see fit. They must ensure parties are treated equally and have
the opportunity to present their case, and they aren’t required to conduct proceedings in a
formal matter. How it’s used:
o By the courts – the courts have the power under the Civil Procedure Act 2010 (Vic) to
refer all disputes to arbitration prior to a final hearing or trial, as long as the parties
consent (with the exception of small claims in the Magistrates’ Court which don’t
require consent).
o By VCAT – VCAT doesn’t use arbitration however, under the Victorian Civil and
Administrative Tribunal Act 1998 (Vic), they may refer a matter to arbitration on the
basis it is a more appropriate forum.
o By CAV – CAV doesn’t use arbitration.
o Private use – parties can arrange their own private organisation.

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 Points to consider when determining whether arbitration is appropriate
Suitable disputes Not suitable disputes
• Disputes where parties have consented, or • Where parties haven’t agreed to arbitrate.
the claim is less than $10 000 and has been • Disputes where parties want greater
issued in the Magistrates’ Court. control over the dispute resolution process
• Disputes where the parties want a binding and outcome.
and enforceable award made by an • Disputes where parties wishes to have their
independent 3rd party. day in court and not be conducted
• Disputes where parties want evidence privately.
presented to a third party, and some rules • Disputes where parties are more
of evidence to apply. comfortable with formal rules of evidence
• Disputes in which the parties want to avoid and procedure.
the publicity of a courtroom and wish to
have their matter resolved confidentially
and in private.

Advantages
• The decision is binding and fully
enforceable through the courts.
• Normally held in private and will be
confidential.
• Parties have control over how arbitration is
conducted, by determining how evidence is
to be presented and when steps are to be
undertaken.
• Arbitrator is generally an expert on the
subject matter.
• Can be a more timely resolution of the
dispute, due to the flexibility in the
processes.
• Costs can often be less.
Disadvantages
• Arbitration can be formal if parties have
agreed to it, adding to stress, time and cost.
• Parties have no control over the outcome.
• Can be costly and take a long time
depending on the nature of the dispute and
the way the parties have agreed to resolve
it.
• Isn’t available if the parties haven’t agreed
or the claim isn’t a small claim in the
Magistrates’ Court.
• The right to appeal is limited.

7.12: the purposes of remedies and damages and injunctions, and their specific purposes
A remedy is any order made by a court designed to address a civil wrong or breach. A remedy should
provide a legal solution for the plaintiff for a breach of the civil law by the defendant and restore the
plaintiff to their original position prior to the breach of their rights. This is what the plaintiff seeks in
starting a civil dispute and what the court or tribunal may award, to legally end the dispute and
recognise the plaintiff’s rights. Generally, a plaintiff will set in the statement of claim the remedy
sought. Two of the most common remedies available in civil cases are:
• Damages – this is an amount of money awarded to the plaintiff, to be paid by the defendant.
The purpose of this is to compensate the plaintiff for losses suffered, so as to return them to the
position they were originally in. The types of losses they may have suffered include financial loss,
physical or mental loss, and reputation loss. Different types of damages can be sought, including:
o Compensatory – the aim of these is to restore the party whose rights have been
infringed as far as possible, by compensating them for the losses suffered. These are
the most common damages sought. Compensatory damages can be:
▪ Specific damages – can be given a precise monetary value. They are easily
quantifiable. E.g. medical expenses or loss of wages.
▪ General damages – these will be assessed by the court according to the
magnitude of the wrong done and the long-term consequences of the
wrong, taking into consideration matters such as future loss of wages, long-

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 term job prospects, and pain and suffering. They’re a general estimate and
not readily quantifiable.
▪ Aggravated damages - can be awarded to compensate the plaintiff further if
the court believes that the defendant’s conduct injured the plaintiff’s
feelings by causing humiliation and insult.
o Nominal – a small amount of money is paid by way of damages. A plaintiff may be
seeking to make a point about being legally in the right and to show their rights have
been infringed but aren’t seeking a large sum of money in compensation. It is to
uphold the plaintiff’s rights without awarding any substantial amount of damages.
o Contemptuous – a court or tribunal may feel the plaintiff has a legal right to
damages, but not a moral one. Therefore, a small damage might be awarded to
show contempt for the claim, but still admitting the plaintiff’s right to make the
claim.
o Exemplary – These are the consequence of a civil action that in some way seeks to
punish the defendant for an extreme infringement of rights and deter others from
undertaking the same type of actions. The purpose of these is to punish and deter
the defendant where the conduct is in malicious or cruel disregard of the plaintiff’s
right.
Certain types of claims and loss have restrictions imposed on damages. E.g. in defamation
claims, damages for non-economic loss are limited to $250 000 (although in some
circumstances this may be increase).

• Injunctions – this is a court order directing someone to stop doing a certain act or to do a certain
act. The purpose of this is to rectify a situation caused by the person who was found to be in the
wrong. It can be either:
o Restrictive/prohibitive – ordering a person to refrain from undertaking an action
(e.g. an ex-spouse visiting a child at school).
o Mandatory – ordering a person to do a particular act e.g. performing their part of a
contract they’ve breached.
An injunction can be interlocutory, meaning it is a temporary injunction that’s award quickly
in situations where an injunction is needed as soon as possible, and, at the final
hearing/trial, it can become a permanent injunction, or it may be dismissed. An injunction
may also just be final.

Remedy Purpose
Most remedies • To restore the plaintiff to the position he or she was in before the harm
occurred.
• May be to not only compensate for losses but prevent future losses – could
need two remedies.
Damages • To compensate the plaintiff for losses they’ve suffered (compensatory
damages).
• For the plaintiff to make a point about being legally right and their rights
having been infringed (nominal damages).
• To show contempt for the claim made, while admitting the plaintiff’s right
to make the claim (contemptuous damages).

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 • To punish the defendant for an extreme infringement of rights (exemplary
damages).
Injunctions • To rectify a situation caused by the person found to be in the wrong.
• To stop a person from undertaking an action that is or will cause a
wrongdoing (restrictive injunction).
• To order someone to undertake a particular act to stop the breach or
potential breach of a right (mandatory injunction).
• To preserve the position of the parties until the final determination of the
matter (interlocutory injunction).

8.1-8.3: factors that affect the ability of the civil justice system to achieve the principles of justice,
including in relation to costs, time and accessibility

Cost Factors
Civil disputes can have high costs associated with them. These can sometimes discourage or prevent
people from pursuing civil claims or defences. The first factor can reduce the ability to achieve
justice, the third can increase the ability, and the second may do both. Factors:
• Legal costs – one cost incurred by parties resolving a civil dispute is the cost of legal
representation. The nature of the court system relies on both parties having good legal
representation – if one party is poorly represented/not represented at all, this will reduce
the ability to receive a fair outcome. While using bodies such as CAV are often free, more
complex claims issued in the Supreme Court will result in high costs incurred by both parties
– it was estimated that the amount spent in legal costs by an average plaintiff in the
Supreme Court was around $60 000. Furthermore, most civil parties are unable to access
legal aid, as most legal aid is spent on aid for criminal and family law cases rather than civil
disputes. Therefore, many pursuing civil disputes are forced to settle or withdraw their
claims and some aren’t eve able to initiate a claim. In addition to the cost of legal fees, there
are also court costs and disbursements associated with:
o Engaging expert witnesses and mediators
o Filing and hearing fees
o Using a jury (if a party request’s one)

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 o Adverse cost orders
While parties may self-represent, their cases usually won’t be presented in the most
effective manner possible.
Principle Legal costs
Fairness • If people don’t have money to pay for legal costs, they may be forced to
settle or withdraw their claim, or self-represent, leading to unfair
outcomes.
• A court’s duty to ensure a fair trial and a judge’s responsibility to assist a
self-represented party can help ensure fairness, but self-represented
parties may still struggle to understand legal issues and procedures.
• Self-represented parties don’t have the same objectivity as a party
represented by an experienced legal practitioner, and might not be able to
make the right decisions because of their emotional investment.
Equality • Self-represented parties or parties with less skilled legal representation
can often have an unequal footing in court, especially given the skills
necessary to argue the case in front of a judge and jury. This can impact on
more vulnerable people.
Access • Costs may prohibit a person’s access to the legal system, especially courts.

• Victorian Civil and Administrative Tribunal (VCAT) costs – tribunals are intended to be low-
cost, informal and quick in resolving disputes. VCAT’s fees are generally more favourable
than court fees. VCAT also ensures lower costs by requiring parties to be self-represented in
most cases. Resolving disputes through VCAT also ensures lower costs by skipping the pre-
trial procedures and formality of a hearing. VCAT fees have, however, been increasing since
2013. These increases were introduced as a part of the Victorian Civil and Administrative
Tribunal (Fees) Regulations 2016 (Vic) which introduced:
o Hearing fees for some hearings – previously, no hearing fee was payable for most
matters for the first day.
o Three tiers of fees – corporate, health care card holders, and standard.
o A substantial increase in fees for corporate users.
o A substantial reduction in fees for health care card users.
The new fees also broaden the fee relief provisions (i.e. waiving the fee for certain people)
for people in financial hardship, holders of a health care card and victims of family violence,
thus increasing accessibility to VCAT. Despite the increase in fees, VCAT is still a cheaper
avenue then the courts.

Principle VCAT costs

Fairness • Many people who can’t afford to pay VCAT fees may be at risk of having to
abandon their claim which can be unfair if their rights have been infringed.
• VCAT costs remain low for most claims, and health care card holders pay
even lower fees. VCAT tries to ensure a fair system where those with a
greater ability to pay are charged more.
Equality • The three-tier system tries to create equal outcomes by charging higher
fees to large businesses and lower fees to health care card holders.
• Fees can result in inequality if the low fees are unaffordable for parties.
Access • Low costs of applying to VCAT/most hearing fees ensures greater access to
VCAT than the courts, as does the three-tier system.

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 • People have criticised VCAT’s user-pays system, claiming it restricts access
to justice. This especially applies to claims where VCAT has exclusive
jurisdiction and the person with a claim cannot pay the fees.

• Increased use of alternative dispute resolution methods – e.g. mediation and conciliation.
These can avoid a final hearing or trial in courts or at VCAT. The availability of a range of
dispute resolution methods has helped with the costs involved in a civil dispute through
helping to achieve quick resolutions, saving more money for parties through not only
avoiding the costs of trial but also adverse cost orders. It also saves money for the courts
and VCAT, and time. However, if parties attempt alternative dispute resolution processes
and fail, this can be a greater waste of time and money.

Principle Increased use of dispute resolution methods

Fairness • Dispute resolution methods using a skilled third party who can monitor
processes ensures equal opportunity for the parties to present their case.
• Informality allows parties unfamiliar with the courtroom to actively engage
and have an opportunity to speak.
• Parties take ownership of the processes and the outcome, thus avoiding an
unwanted outcome being imposed on them.
Equality • The third party is an impartial referee who doesn’t advocate for either side
• Methods such as mediation avoid a third party who may have biases
deciding for the parties.
• Whether there’s equality in an ADR method will depend on the skills of the
parties and their legal representation, and any factors making them
unequal (e.g. disability).
Access • The cost saving may enable a party to access a wider range of methods to
resolve their dispute.
• Parties can hire private mediators/conciliators, avoiding the costs of
issuing a claim.
• ADR methods should be used at an appropriate time, as organising it too
early or late can incur significant wasted cost.

Time factors
Quick and efficient hearings are often the fairest. If a dispute takes a long time to be heard or the
hearing is long, it can become unfair. Factors:
• Court delays – the time it takes for the courts to resolve disputes may vary greatly
depending on the complexity of the case, number of parties involved and the court in which
the claim was issued. Court delays may be due to:
o Court backlogs
o Pre-trial procedures – as these may be complex and lengthy, especially discovery,
which may take months. Courts using case management processes often make
orders to streamline the process.
o Evidence gathering and preparation

Principle Court delays

Fairness • The delay can impact on the reliability of evidence, jeopardising a fair outcome.
• Delays deny the parties fair and due process.
Equality • Delays may have a serious impact on some parties (e.g. injured person).
• Delays can also impact on more vulnerable parties, who generally aren’t familiar
with the processes and may be stressed by the delay.

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 Access • Delays may force parties to settle or withdraw their claim, frustrated by the loss
of time or unable to continue without settlement.
• Reality of possible delays may deter parties from pursuing their claim.
• VCAT waiting times – the waiting times at VCAT are generally lower than the courts,
however, they are still significant in some lists. E.g. for human rights the median waiting time
is 14 weeks, for residential tenancies it is 2 and civil claims is 10 (as of 2015-16).
Principle VCAT waiting times
Fairness • The short waiting times can result in a fairer outcome.
• Long waiting times can produce unfair results, especially for large businesses and
development which risk losing costs and time with waiting for a resolution.
Equality • Short waiting times can reduce any risk that a person needing a quick resolution
has to wait.
• Long waiting times may impact on more vulnerable people who are stressed or
inconvenienced due to the delay.
Access • Short waiting times improve access. People also aren’t deterred from issuing a
claim.
• Long waiting times reduce access and may deter people, or cause people to
withdraw/settle their claim/defence.

• Appeal processes – reforms in the way appeals are handled in the Court of Appeal and the
High Court have aimed to reduce delays associated with appeals. Two reforms include:
o Changes to the way appeals are heard and determined in the Court of Appeal – in
2014 the Supreme Court Act 1986 (Vic) was amended so leave to appeal is required
for almost all civil appeals. The Court of Appeal can only grant leave to appeal if it is
satisfied that the appeal has a real prospect of success. The appellant must show
there are grounds to substantiate the need for an appeal to be heard. In addition to
requiring leave, amendments were made to the appeal process – e.g. there are
standard timeframes for certain steps to be taken, and applications may be decided
on the papers (without the need for a hearing). These were implemented to ensure
the timeliness of hearing civil appeals.
o Changes to the process used by the High Court to hear special leave applications –
civil appeals to the High Court of Australia require the leave of the High Court for the
appeal to be heard. In 2016, however, the High Court announced that in
represented applications, a Panel of Justices would determine in the first place
whether an oral hearing was required and, if it isn’t required, the application would
be determined on the papers.
Principle Appeal processes
Fairness • An appeal must have real grounds for it to be granted leave to be heard in the
Court of Appeal, meaning parties don’t put time and money into weak appeals.
• Both parties remain entitled to present their arguments to the courts in written
submissions and documents, ensuring they can be considered.
• The appeal will be determined on its merit by experienced judges.
• The changes are designed to allow appeals to be heard more quickly and with
greater cost saving to the parties.
Equality • A reduction in delays can reduce the impact on the parties, particularly those
who are significantly disadvantage because of delays.
Access • Parties have greater access to the appeal processes without long delays. Parties
may feel more inclined to appeal if they know they have good prospects and the
appeal will be heard swiftly.

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 • Use of case management powers – case management involves the transfer of some of the
control and initiative of case preparation from the parties to the court. Tribunals such as
VCAT also have powers of case management to ensure disputes are resolved efficiently.
Case management procedures are used widely across the courts and tribunals, and may
result in significant modification of procedure rules, as well as modification or rules relating
to pre-trial procedures. Giving the courts greater control over cases ensures that disputes
are resolved in a more timely and cost-effective manner. A pro-active judge should
undertake only the necessary steps to resolve the dispute.

Principle Use of case management powers

Fairness • Courts and tribunals can adapt processes to adapt to the needs of the parties.
This can ensure the parties are focused on resolving the issues in dispute.
Equality • Courts and tribunals can ensure flexibility without any favour or discrimination.
• Orders or directions can apply equally to both parties.
Access • Case management enables greater access to the courts and tribunals, as there
can be flexibility in formalities.
• The Supreme Court’s approach to case management can also help parties access
the system without being burdened by the time and costs involved in
undertaking pre-trial procedures.

Accessibility factors
Having good access to dispute resolution bodies is an important part of achieving justice. Lack of
access can lead to valid civil claims being abandoned, withdrawn or settled for much less than what
a party may be entitled to. The first two factors reduce the ability to achieve justice, but the third
enhances it. Factors:
• Barriers to communication – this includes anything that prevents a person from receiving
and understanding information from other people or organisations. In a legal context, these
barriers may prevent someone from understanding their legal rights, reduce a person’s
understanding of the methods and bodies used to resolve disputes and reduce a person’s
understanding of the processes involved in pursuing their rights. The most common barrier
is language based. Availability of interpreters varies depending on the court.
Principle Barriers to communication
Fairness • People who cannot communication well in English mightn’t understand their
legal rights or the dispute resolution methods and bodies that can help them.
This reduces their ability to access procedures and engage in a trial or hearing.
Equality • People who experience communication barriers can struggle to tell their side of
the story. This may make them unequal before the law/deny them an equal
opportunity.
Access • A person with little understanding of their legal rights or dispute resolution
bodies or methods may abandon their claim or defence, or not even know they
have a claim or defence, or abandon the claim/defence because they feel
uncertain about what needs to happen to pursue their case.

• Services in rural and remote areas – people living rurally and remotely in Victoria often find it
more difficult to access legal and dispute resolution services than those living in large cities and
towns, as those services may be insufficient in those areas. For instance, there may be no courts
nearby and few people to provide legal services. The courts and VCAT have tried to ensure they
sit in locations accessible to most Australians. The courts don’t usually sit every day in each of
those places, but instead use the ‘circuit court system’ where a calendar is used to determine
when the court will sit a particular location.

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 Principle Lack of services in rural and remote areas

Fairness • The decline/lack of legal services rurally and remotely in Victoria impacts on
people’s ability to seek legal advice and assistance, and access resources and
information about their case. It can inhibit a person’s ability to use legal
processes to ensure they put their case forward properly.
Equality • Rural and remote Victorians mightn’t be equal before the law if they have
unequal access to legal services/resources, as well as unequal access to the
courts and tribunals.
Access • An inability to access legal services, courts and tribunals can impact on the ability
of a person to pursue their legal rights and seek compensation for any wrong
they’ve suffered.
• The use of representative proceedings – since representative proceedings were first introduced
in Australia in 1992, the amount of class actions has substantially increased. These increase
peoples access to dispute resolution. People with claims against a big business may have been
deterred from pursuing the claim, if it weren’t for representative proceedings. However,
representative proceedings can allow unmerited claims to be more easily pursued, and that the
risk of class actions can be detrimental to businesses.
Principle The use of representative proceedings
Fairness • People with claims can join a class and not be subjected to personally having to
pay costs (especially with a litigation funder involved).
• The way a class action is conducted removes a party from court processes and
having to give instructions, which can be difficult for someone without
experience in legal processes.
• Fairness of the outcome depends not only on the settlement reached but the
payment to be made by any litigation funder or legal practitioner.
Equality • Class actions are often conducted by experienced legal practitioners and law
firms, who can present the case in the best light possible and equally to the
defendant’s law firm.
Access • People who cannot afford to initiate their own claim are able to access justice.
• The costs of litigation funding and legal fees may restrict the size of the final
payment, reducing the value of having access to justice through class action.

8.4-8.5: recent and recommended reforms to enhance the ability of the civil justice system to achieve
the principles of justice.
Reforms to our justice system involve changing and updating the way disputes are resolved. Recent
reforms are those that have occurred in the past 4 years. Recent reforms:

• Introduction of three-tier system in VCAT - as of the 1st of July 2016, VCAT has three tiers of
fees: corporate, standard and health care card holder. The health care card holder’s fees are
available to people who hold Commonwealth health care cards, and are capped at just over
$150 regardless of the type of fee or the nature of the dispute. The fees are intended to
ensure that VCAT remains accessible for the most vulnerable in society. Companies,
government agencies, and businesses with annual turnover of $200 000 or more pay higher
fees. This addresses cost factors.
• Changes to High Court appeal processes – in 2016, the High Court changed the way it hears
special leave applications for appeals. Rather than every special leave application having an
oral hearing, the High Court first determines, through a panel of Justices (High Court judges),

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 whether it is necessary – if it isn’t the application is heard on the papers. Addresses time
factors.
• Removal of wigs – in May 2016, the Supreme Court of Victoria announced judges will stop
wearing wigs in all civil matters. This was believed to make the courtroom feel more
accessible to modern-day Australians, who may find the formality of wigs intimidating.
Addresses accessibility.
Consider whether each of these reforms are short-term or long-term solutions, and whether other
things need to be done to overcome the issue it’s aiming to solve.

Many reforms have been recommended by various people, bodies and institutions that haven’t been
made. Recommended reforms:

• Online system for the resolution of small civil claims – The Victorian Access to Justice Review
recommended that the Victorian Government establishes a panel to oversee the
introduction of an online dispute resolution system for small civil claims. This was
considered a more accessible and cost-effective way of resolving claims.
• Expansion of information from VLA - The Victorian Access to Justice Review recommended
that Victoria Legal Aid expand its website to include a web-chat service and information in a
wide range of languages and in accessible formats, and also expand its telephone line
services. This may, however, require a lot of funding. This addresses accessibility factors.

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 Unit 4, Area 1
NOT LISTED IN STUDY DESIGN – PRIOR KNOWLEDGE
The Magna Carta, signed around 1215 by the current king of England King John, was a charter that
essentially meant the English monarch was subject to the will of others and not just God. The
nobles became part of the King’s Great Council and advised him on matters – this council soon
became known as parliament. Eventually, around 1350, two separate groups formed from
parliament and began meeting separately – these groups were the House of Lords (upper house)
and the House of Commons (lower house).
The British parliamentary system eventually became known as the Westminster system and this is
what Australia’s parliamentary system is modelled on. Under this system there are two houses
meaning it is a bicameral parliament. This system also includes the monarch as head of state.

The Federation of Australia was the union of the six British colonies (each colony was one of our
present states) who inhabited Australia. They worked together to create a draft federal
constitution bill which was voted on by the Australian people, receiving a majority yes in each
colony. Then, with the approval of Britain, the colonies became states with their own parliaments
and the central body, Commonwealth Parliament, was formed. The Commonwealth of Australia
Constitution Act 1900 (UK) is the formal document by which the process of federation was
achieved. It is an Act of the British Parliament and came into force on January 1 st, 1901.

As Westminster-style parliaments, the Commonwealth Parliament and all Australian state

parliaments (except Queensland) have two houses. Australia is a constitutional monarchy,
meaning it has a monarch as the head of state and a parliaments makes the laws under the terms
of a constitution. Australia’s also a representative democracy, meaning the people vote to elect
representatives to the parliament to make the law and govern on their behalf. There are nine
parliaments in Australia – 6 state, 2 territory and the Commonwealth Parliament.
Parliament is an elected, legislative body which purposes to make laws, represent the interests of
the Australian people and oversee the actions of government. Government is the party that forms
the majority in the lower house.

The rule of law is the principle that everyone in society is bound by law and must obey the law.
The rule of law also states that laws should be fair and clear, so people are willing and able to
obey them.
THE CONSTITUTION
A constitution is a set of rules that establishes the nature, functions and limits of government. It
determines the powers and duties of government. Australia has a formal written constitution
passed by the British Parliament, called the Commonwealth of Australia Constitution Act 1900
(UK), which came into force in 1901. Some of the main features of the Australian Constitution are:
• It establishes the Commonwealth parliament and outlines its structure, include how its
two houses, the House of Representatives and the Senate, are to be composed.
• It establishes the High Court of Australia and gives it powers to interpret the Constitution.
• Sets out matters relating to the states (e.g. state laws will continue in force in the state
which made them unless they are altered or repealed).
• It facilitates the division of law-making powers by setting out what law-making powers
are held by the Commonwealth Parliament.
• It provides a way by which the Australian Constitution can be changed – i.e. a referendum
The Australian Constitution doesn’t provide a bill of rights, but does provide protection for a
limited number of rights (e.g. freedom of religion).

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10.2-10.3: the roles of the Crown and the Houses of Parliament (Victorian and Commonwealth) in
law-making
The Commonwealth Parliament consists of:
• The Queen – represented by the Governor-General of Australia, currently Peter Cosgrove.
• The House of Representatives (the lower house) – this house reflects the opinion of the
people at an election, as it determines which party/coalition forms government. It is also
known as ‘the people’s house’ and ‘the house of government’. This house has 150 members
and each member represents an electoral division. The term of office for members of the
House of Representatives is three years. The political party that achieves the majority of
elected members becomes the government and the leader of this party becomes prime
minister, who appoints government ministers (members of parliament and the party in
government who are in charge of a certain government department). The party with the
next highest number of elected members is the opposition. The opposition leader appoints
shadow ministers (usually one per government minister) to keep a check on the activities
and responsibilities of the corresponding government minister and make sure they’re
accountable to the parliament.
The main role of the parliament is to make laws. A bill is a proposed law, which must go
through certain stages to become a statute (aka an Act of Parliament or legislation). A bill
must pass the first house before it goes to the other house, where it goes through the same
process before it receives royal assent (the signing and approval of the proposed law by the
Crown’s representative) and becomes law. Therefore, a majority vote in the House of
Representatives is always required for a bill to pass. The House of Representatives has
several roles in law-making:
o Initiate and make laws – bills are usually initiated by government, but any member
may introduce a bill. A bill that’s introduced without the authority of the Cabinet
(the policy-making body made up of the Prime Minister [premier at a state level] and
a range of senior government ministers in charge of a range of government
departments. They decide which laws should be introduced into parliament) is
known as a private member’s bill.
o Determine the government – after an election, the party or coalition with the most
members in the House of Representatives forms government. The government
having the majority allows it to generate the majority of law reform entering
parliament.
o Provide responsible government – ministers are responsible to parliament and
therefore the people. They’re examined by opposition members about their ideas
for law reform during question time, where deficiencies in legislation can be
exposed.
o Represent the people – the House of Representatives plays a role in forming a
representative government. Members are representing and acting on behalf of the
people.
o Publicise and scrutinise government administration – it is the role of the House of
Representatives to publicise the policies of government, make sure legislation is
debated and matters of public importance are discussed, and members of
parliament can ask the government and ministers questions relating to their work
and responsibilities. Committees may also investigate proposed laws.
o Act as a house of review – the House of Representatives will act as a house of review
in the law-making process when a bill has been initiated and agreed upon in the
Senate.
o Control government expenditure – a bill must be passed through both houses before
a government is able to collect taxes or spend money, but only the lower house may
introduce money bills (aka an appropriation bill, this is a bill that imposes taxes and

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 collects revenue). Expenditure is also examined by parliamentary committees. This is
important as governments most navigate the country through changing global
economy, while meeting the expectations of the public.
• The Senate (the upper house) – the Senate consists of 76 elected members. Each state elects
12 representatives, regardless of the population of the state. Each territory has two
representatives. The Senate is elected by proportional representation, where candidates are
elected by obtaining a predetermined proportion, or quota, of the total votes. Once a
candidate has obtained the required quota, any excess votes they receive are transferred to
another candidate in the voters’ order of preference. Each senator is elected for six years.
Half of them are elected every three years, and the changeover takes place on 1 July. The
Senate cannot initiate money bills, nor amend them (but may request the House of
Representatives to make amendments). Senate has a large and active committee system,
enabling senators to inquire into policy issues in depth and to scrutinise bills before they
become law. The role of the Senate in law-making:
o Act as a house of review – as most bills are initiated in the lower house, the Senate
has the task of reviewing the bills already passed through the lower house.
o Act as a states’ house – when federation occurred, the states were afraid of giving
up too much power, especially the smaller colonies who didn’t want more populated
colonies holding all the power in the Commonwealth Parliament. To overcome this,
Section 7 of the Constitution provides that the Senate should have equal
representation from each state, regardless of size or population. Therefore, the
Senate represents the interests of the states.
o Scrutinise bills through the committee process – the Senate has a number of
committees, such as the Senate Standing Committee for the Scrutiny of Bills. The
committee is made up of various senators whose roles is to assess legislative
proposals to determine the effect proposes would have on individual rights,
freedoms and obligations, as well as the rule of law. Since 2017, the committee has
published its scrutiny comments on recently introduced bills.
o Initiate and pass bills – the Senate is able to initiate bills or pass bills that have
previously been passed through the House of Representatives. The Senate may pass
a bill with or without amendment (or for a money bill, request an amendment
before passing it) or reject it. The Senate may insist on changes o proposed laws
before they’re passed into law.

The Victorian Parliament consists of:

• The Queen – represented by the Governor of Victoria, currently Linda Dessau.
• The Legislative Assembly (lower house) – there are 88 members – one from each of
Victoria’s 88 districts. The term of office is four years. The political party or coalition that
wins the majority of seats in the Legislative Assembly forms government. The leader of
government is known as the premier. The party with the next highest number of elected
members becomes the opposition. The opposition leader appoints shadow ministers, to
check on the activities and responsibilities of the corresponding government minister. The
role of the Legislative Assembly in law-making:
o Initiate and pass bill – the main function of the Legislative Assembly is to initiate new
laws. These are usually introduced by the government but can be by any member.
o Form government – the political party that has the most members in the Legislative
Assembly forms government.
o Provide representative government – members of the Legislative Assembly are
elected to represent the interests of the people. Their actions in law-making should
reflect the values of the people, or the risk being voted out of government next
election.

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 o Act as a house of review – when the bill has been initiated in and passed by the
Legislative Council.
o Control government expenditure – for taxes to be collected or money to be spent,
the government must introduce a bill in the Legislative Assembly. Only the
government can initiate money bills, making the Legislative Assembly in control of
government expenditure.
• The Legislative Council (upper house) – this comprises of 40 members of parliament. Victoria
is divided into 8 regions (each made up of 11 districts), and five members of the Legislative
Council are elected for each region. They serve a fixed term of 4 years. Candidates are
elected by obtaining a predetermined proportion of the total votes (a proportional
representation system). Once a candidate has received the required quote, the excess votes
go to another candidate in the voters’ order of preference. The role of the Legislative Council
in law-making:
o Act as a house of review – reviews legislation that’s been passed by the Legislative
Assembly. This is done by scrutinising, debating and amending or rejecting
legislation that’s been initiated by the government.
o Examine bills through its committees – the Legislative Council has a number of
committees that debate the proposed laws at length and recommend the House
whether bills should be supported as part of the legislative process.
o Initiate and pass bills – Bills can be initiated here but it’s less common than in the
Legislative Assembly. If the government holds a majority in both the lower and
upper house, this increases the government’s ability to get the parliament to pass
legislation. This may, however, lead to less scrutiny of government programs and
less debate in parliament.

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 THE PARLIAMENT OF VICTORIA
THE PARLIAMENT OF AUSTRALIA (FEDERAL)
(STATE)
Lower house The House of Representatives The Legislative Assembly
(the lower house) (the lower house)
150 seats 88 seats
One member for each of the 150 electorates One member for each of the 88 districts across
across Australia Victoria
Term of office is usually three years Term of office is fixed at four years

Upper house The Senate The Legislative Council

(the upper house)
Each state is an electorate
12 senators elected from each state
two senators elected from each of the Australian
Capital Territory and the Northern Territory
76 senators
Term of office is usually six years (half
elected every three years)
(the upper house)
State is divided into eight regions
Five members elected from each region
40 members
Term of office is fixed at four years

The role of the crown:

The Crown (i.e. the British Monarch) is part of the system of government in Australia through its
representatives:
• One Governor-General (at a federal level) – currently Peter Cosgrove
• Six Governors (at a state level) – currently Linda Dessau
The Governor-General is appointed by the queen on the advice of the Prime Minister of Australia.
The governor of each state is appointed by the Queen on the advice of the premier of each of the six
states. The main responsibility of the Crown’s representatives in Australia is to ensure that the
democratic system operates effectively. This requires an effective electoral system, parliament,
government and courts, as well as the people being confident their community functions as a
democracy. The roles of the Crown in law-making:
• Granting royal assent – the Crown’s representatives at a state and Commonwealth level are
required to approve bills before they can become law. This is known as royal assent. It is
normally given as a matter of course on the advice of the prime minister or ministers (at a
Commonwealth level) or the Premier or state ministers (at a state level).
• Withholding royal assent – the Crown’s representative may also withhold royal assent
(therefore refusing to approve a bill and make it an Act of Parliament). This rarely occurs. At
a federal level, the Australia Constitution specifies the circumstances in which the Governor-
General can withhold royal assent.
• Appointing Executive Council – the Governor-General (Governor at state level) has the
responsibility of appointing (essentially, signing off on it) the Executive Council. This
comprises the leader of the government as well as senior ministers. The role of the Executive
Council is to give advice on government matters and approve secondary legislation
(delegated/subordinate legislation – rules and regulations made by government bodies such
as government departments or statutory authorities).

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10.4: the division of constitutional law-making powers of the state and Commonwealth parliaments,
including exclusive, concurrent and residual powers

Law-making powers are powers or authority given to parliament to make laws in certain areas.
Those powers are exercisable by parliament, which is the supreme law-making body in Australia
(meaning it has ultimate authority to make laws and can change laws whenever it wants, as long as
it’s acting within its powers).
The creation of the Commonwealth Parliament required the Australian Constitution to specify the
way law-making powers were to be shared. The Constitution divides the law-making powers into:
• Residual – those law-making powers left with the states at the time of federation, the
Commonwealth Parliament has no authority over to make laws in these areas. These are any
area of law not mentioned in the Constitution. S106, 107 and 108 protect these powers.
Examples of residual powers include road laws, education and public transport.
• Exclusive – law making powers that are held only by the Commonwealth Parliament. These
are the specific powers listed in the constitution. The powers may be exclusive by nature
(e.g. S51 naturalisation – becoming an Australian citizen) or because the Constitution
restricts the states from doing so (e.g. S115 the States shall not coin money). Examples of
these powers include defence, currency and customs and border protection. Section 52
contains exclusive powers, and Section 51 contains exclusive and concurrent powers.
• Concurrent – those law-making powers that are shared by the Commonwealth and the state
parliaments. Examples of concurrent powers include tax and marriage.
If an area isn’t listed in the Constitution, the commonwealth isn’t permitted to make laws on it – if it
does, the High Court can declare the law Ultra Vires.

10.5: the significance of section 109 of the Australian Constitution

Section 109 is designed to help resolve conflicts and inconsistencies between state and
Commonwealth laws. These inconsistencies arise when concurrent powers are exercised by the
Commonwealth Parliament and one of the state parliaments. Section 109 states ‘when a law of a

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State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall,
to the extent of the inconsistency, be invalid.’

Section 109 is significant as it can act as a restriction on state parliaments, ensure state parliaments
recognise the limitation on the powers in areas where Commonwealth law already exist. States can
still pass a law which is inconsistent with the Commonwealth law, as a state law needs to be
challenged before it’s declared invalid. Section 109 ensures a consistent approach to the way
inconsistencies are dealt with.

McBain v Victoria (2000)

The Infertility Treatment Act 1995 (Vic) stated that, to receive treatment, a woman must be
married and living with her husband on a genuine domestic basis or living with a man in a de facto
relationship. Section 22 of the Sex Discrimination Act 1984 makes it unlawful for a person to refuse
to provide a service to another on the ground of their marital status. The provision of IVF services
is a service under the Sex Discrimination Act. Therefore, it is unlawful to deny this service on the
grounds of not being married or living in a de facto relationship.

Dr John McBain, a specialist IVF doctor, was affected by the inconsistency in legislation. He had
previously been fined under the Commonwealth Sex Discrimination Act. To establish the
inconsistency, McBain was required to show a specific patient was being denied the service –
Leesa Meldrum. The Federal Court upheld McBain’s argument and, based on Section 109 of the
Australian Constitution, the Commonwealth law should prevail. The discriminatory section of the
Victorian law was therefore invalid. Now, single and lesbian patients could access the service.

10.6-10.10: the means by which the Australian Constitution acts as a check on parliament in law-
making, including:
The writers of the Constitution wanted to ensure good government, so they created a system of
structures to ensure this. These checks and balances were designed to prevent governmental power
being concentrated in the hands of a small number of people.

– the bicameral structure of the Commonwealth parliament

The Commonwealth parliament is a bicameral parliament, meaning it has a lower and an upper
house. Section 1 of the Constitution states there must be two houses.
Section 7 requires the Senate to be composed of senators for each state, which are directly chosen
by the people for a term of 6 years. Section 24 requires the House of Representative to be composed
of members directly chosen by the people and section 28 states every House of Representatives
shall continue for 3 years (but may be dissolved sooner by the Governor-General).
The bicameral structure of the Commonwealth parliament is designed to act as a check on
parliament in its law-making role. As most bills are introduced in the lower houses, the Senate acts
as a house of review and a state’s house. This means the Senate will review bills already passed in
the House of Representatives and, when reviewing bills, senators should vote according to the wish
of not only the political party but also their states. This is meant to ensure a range of views is
considered before a bill is passed. However, some senators vote in accordance with their party’s
interests over their states, which is called a ‘rubber stamp’ (when government holds the majority in
both houses and automatically approve their decisions made on the other house). When the
government does have a majority in the upper house, it can pass legislation that mightn’t be popular
with sections of the general public, which can lead to voter backlash.

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 Amendment to Section 18C rejected
In March 2017, Senator Brandis, the Attorney-General for the Commonwealth Liberal-National
Government, introduced the Human Rights Legislation Amendment Bill 2017 into the Senate. One
purpose of the Bill was to amend Section 18C of the Racial Discrimination Act 1975, which made it
unlawful for a person to do an act that is reasonably likely to offend, insult, humiliate or intimidate
a person or group because of race, colour or national ethnic origin. The Commonwealth
Government tried to replace the words ‘offend, insult, humiliate’ with the word ‘harass’. Senator
Brandis said Section 18C has a ‘chilling effect on freedom of speech’. This amendment was struck
down by the Senate. This is an example of a situation where the government controls the lower
house, but the upper house still has significant power to reject or amend legislation.

Advantages
• Allows for review of legislation by second
house.
• There can be debate in the lower house if
government holds a slim majority or there’s
a hung parliament.
• A Senate not controlled by government, or a
significant number of minor parties and
independents in the Senate can ensure
careful review of bills.
• Requirement is specifically stated in the
Constitution, meaning the houses cannot be
abolished through legislation.
Disadvantages
• Debate is unlikely to occur in lower house if
government holds strong majority.
• If government controls the upper house, it
tends to be a ‘rubber stamp’.
• An increase in the number of minor parties
and independents in the Senate may mean
law-making is stalled or ineffective.
• The bicameral requirement only applies to
the Commonwealth parliament.
• Laws will generally only pass if the Federal
Government supports them.

– the separation of the legislative, executive and judicial powers

The Australian Constitution establishes three separate types of powers in our parliamentary system.
At a federal level, it requires all three powers to operate independently of each other. This is known
as the separation of powers. This is to ensure no one body has absolute power or control over the
functions of the political and legal systems, as this could cause corruption. These powers include:
• Executive power – this is the power to administer the laws and mange the business of
government. This power is vested in the Queen and is exercisable by the Governor-General
under Section 61 of the Constitution. In practice, the executive power is carried out by the
prime minister, senior ministers and government departments.
• Legislation power – this is the power to make laws. Section 1 of the constitution states that
the legislative power of the
Commonwealth shall be
vested in the Federal
Parliament. In Australia, the
legislative and executive
powers are combined at a
federal level as, in practise,
the executive power is
placed in the hands of the
Cabinet (which consists of
the prime minister and
senior ministers). The head
of the executive, in practice,
is the prime minister, not the

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 monarch. The executive power and the legislative power are also linked by the fact that
laws passed by parliament must receive royal assent from the Governor-General to become
law. Many acts of parliament also give the Executive Council (governor-general and senior
ministers) the right to make regulations, but parliament retains the right to disallow or
reject these.
• Judicial power – this is the power given to courts and tribunals to enforce the law and settle
disputes. Section 71 of the Commonwealth states that the judicial power of the
Commonwealth shall be vested in the courts. The courts have the power to interpret the
law and decide how it applies to individual cases. The courts are independent of political
influence, and therefore independent from legislative and executive function. This helps
safeguard citizens, as political corruption can’t impact the resolution of disputes. The
impartiality of judges is protected as they’re appointed until age 70 and can’t be removed
unless there is proven bad conduct and parliaments approves the removal.
The separation of powers ensures no one body can make law, administer law and rule on its legality.
The government and the parliament must work together to pass laws, and the independence of the
judiciary must be preserved.
There is a balance of power between the three arms of government, as if one arm was too powerful,
checks on that arm wouldn’t be effective. Checks are mechanisms which allow each arm of
Government to review or override the actions of the other two arms.

Ministers apologise for comments made

In June 2017, three federal ministers were forced to apologise for comments they made about
sentencing in the Supreme Court of Victoria in the cases of Besim and ‘M H K’. The comments
were seen by some to threaten the separation of powers. Each offender pleaded guilty and were
sentenced to terms of imprisonment, but the Commonwealth Director of Public Prosecutions
appealed both sentences, arguing they were too lenient. In the Victorian Court of Appeal, the
court reserved its judgement (decision would be handed down on a later date). A newspaper
article was soon published with multiple ministers criticising the Victorian judiciary for being too
light on terrorism. The Court of Appeal released a statement saying the comments improperly
made an attempt to influence the court and they hadn’t respected the separation of power. The
ministers apologised.

Advantages
• Allows for executive to be scrutinised by the
legislature.
• Judiciary is independent.
• Members are subject to scrutiny in
parliament during question time.
• At times the upper house is not controlled
by the government, providing for greater
scrutiny.
• The principle is entrenched in the Australian
Constitution, so it can only be changed by
referendum.
Disadvantages
• The legislative and executive powers are
realistically combined, decreasing the check
on powers.
• Where government controls the Senate,
there is far less scrutiny.
• Judges are appointed by the executive.
• The separation of powers in the
Constitution only applies at a federal level.
• When the opposition controls the Senate,
they may obstruct bills for political gain
rather than authentic scrutiny.

– the express protection of rights

Express rights (or explicit rights) are rights that are stated in the Australian Constitution. Express
rights are entrenched, meaning they can only be changed at a referendum. These rights are
limitations on the Commonwealth in law-making – parliament can’t pass legislation infringing on
these rights. Australia has 5 expressed rights entrenched into the Constitution:

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 • The right to exercise religion (S116) – this section expressly protects freedom of religion by
stopping Commonwealth parliament from establishing a State religion, imposing any form of
religious ceremony or worship, prohibiting the exercise of any religion, and requiring a
religious test as a qualification for public office. It also protects the right to have no religion
as interpreted in the High Court.
• Trade within the Commonwealth to be free (S92) – this right prevents parliament treating
interstate trade different from trade within a state. It provides freedom of movement
between states, such as preventing a tax on goods moving from one state to another from
being imposed. This right mainly refers to trade and commerce, but it can also refer to
movement of people between states.
• Acquisition of property on just terms (S51) – under this the Commonwealth must provide
just terms when acquiring property (they must pay fair and reasonable compensation for
property that is compulsorily acquired). The Commonwealth is only able to acquire property
• for an area for which it has the power to make laws; for example, airports and national
parks.
• Trial by jury (S80) – there must be a jury trial for indictable Commonwealth offences under
the criminal law. However, most indictable offences are crimes under state law, and this
section only applies to Commonwealth offences. The High Court has ruled that indictable
means crimes tried on indictment, so the government can avoid S80 and thus a jury trial by
declaring the offence is a summary offence.
• Discrimination on basis of state (S117) – it is unlawful for state and Commonwealth
governments to discriminate against someone on the basis of the state in which the person
resides. R v Louie is an example where a man was denied bail because he lives outside of the
state, which contravened S117.

Advantages
• They impose limits on parliament in law
making.
• They can only be removed by referendum
process.
• The High Court can act swiftly if a case is
brought before it.
• Any person whose rights are infringed can
take the matter to the High Court.
• Express rights are clearly stated in the
Australia Constitution and have remained
unchanged since federation.
Disadvantages
• There is limited ability to add further rights.
• The cost of initiating a court action is high,
so people mightn’t challenge the
infringement of these rights.
• Many of the rights are limited in scope.
• The protection of rights doesn’t prevent the
Commonwealth Parliament from passing
the law.
• Express rights are relatively few in number
compared to other countries.

– the role of the High Court in interpreting the Australian Constitution

The High Court was established under S71 of the Australian Constitution. S76 gives the
Commonwealth Parliament the power to provide the High Court with jurisdiction to hear disputes
arising under the Constitution or involving its interpretation. The High Court can’t change the
wording of the Constitution, but they can change the way words in the Constitution are interpreted.
The role of the High Court in interpreting the Australian Constitution includes:
• It acts as a guardian of the Australian Constitution – it does this by explaining what the
Constitution means and deciding how it should be interpreted. By interpreting the words of
the Constitution, the High Court can influence the day-to-day application of the Constitution,
ensuring it remains relevant to Australians.
• It acts as a check on any abuse of power – if someone believes any Australian parliament has
made a law beyond its power, this matter can be brought to the High Court to receive a
ruling on whether a law is constitutional. This may only be done by a party with standing (a

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 person/group directly affected by the law being challenged). If legislation is found invalid
(ultra vires), the parliament may amend the legislation to remove the unconstitutional
provisions or amend the Constitution in accordance with S128, which would require a
referendum.
• It gives meaning to the words – when a case is brought to the High Court, they must give
meaning to the words in the Constitution and apply the words to the case. In the past, the
High Court has:
o Interpreted the Constitution to determine whether a law’s been made within the
parliament’s law-making power – this can shift the division of law making powers.
o Interpreted the Constitution and has implied rights. Implied rights are rights not
expressly stated in the Australian Constitution but are considered to exist through
interpretation.

Australian Capital Television Pty Ltd v Commonwealth (1992)

In a series of cases 1992, the High Court interpreted the Constitution and held there was an
implied freedom of political communication, which exists through the interpretation of the
Australian Constitution. One of these cases was Australian Capital Television Pty Ltd v
Commonwealth (1992). This case dealt with Commonwealth legislation that banned all political
advertising on radio and tv during election periods, being the Political Broadcasts and Political
Disclosures Act 1991. The legislation allowed some free advertising to political parties already in
parliament but didn’t allow any advertising to anyone else who had a political comment they
wanted publicised. The High Court held the legislation invalid as it overrode an implied freedom of
political communication. This generally came down to the notion of representative government,
and that this may only operate properly if there’s freedom for people to communicate about
political issues, or people wouldn’t be informed when making choices about who to elect to
government.

Advantages
• Judges are independent of parliament and
free from political pressure. Therefore,
decisions are based on principles of law and
justice.
• The High Court allows individuals who have
legal standing in a case to challenge
legislation, encouraging public confidence
that scrutiny occurs.
• The judges of the High Court are
experience.
Disadvantages
• Judges can only rule on the facts of the case
brought before them so their power to
create legal principles is limited in this way.
• For the High Court to adjudicate on a matter
involving the validity of legislation, the
matter must be brought before the court. In
this regard, the court is reactive.
• The role of the High Court interpreting the
Constitution is limited by the fact that
taking matters to court is expensive, which
limits the involvement of some people.
• The High Court cannot change the wording
of the Constitution.

– the requirement for a double majority in a referendum

When the Constitution was written, it was recognised that times would change, and the Constitution
would need to change to keep up with changing attitudes. The only way the Constitution may
change is through a successful referendum (a compulsory ‘yes or no’ vote on a proposed change), as
set out in S128. This acts as a check on the power of parliament, because parliament can’t change
the Constitution outside of this process. There are three stages to a referendum – the parliament,
the people and the Governor-General. A referendum is put to the people not less than 2 months,
and not more than 6 months, after its been passed by both houses of the Commonwealth

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Parliament, or one house twice. Before the vote, the Australian Electoral Commission sends
information to every household that explains the proposed change, and arguments for and against
it.
A double majority is required for a referendum to be successful. This means a majority of voters in
the whole of Australia (including territories) must vote yes, and a majority of states must vote yes. A
referendum, therefore, must be approved by a majority of voters in at least 4/6 states to be
accepted. The territories aren’t counted in this. This provision protects smaller states being
dominated by larger, more populated states. Under the Section 128 processes, each of the states
has an equal voice regardless of their size or population.

1967 referendum on Aboriginal issues

11.2: the significance of one referendum in which the Australian people have protected or changed
the Australian Constitution
The 1967 referendum removed S127 from the Constitution which stated “In reckoning the
numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth,
aboriginal natives shall not be counted” and also removed some words from S51, known as the
‘races power’; “The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to: The people of any
race, other than the aboriginal race in any State, for whom it is deemed necessary to make special
laws”.
This is an example of a change to the balance of power between states and the Commonwealth as,
following the referendum, the Commonwealth now had the power to make laws about Aboriginal
people. Across the whole of Australia, 90.77% of voters were in favour of the change.

Advantages
• It allows the public control over the change.
• The requirement is strict.
• The double majority requirement protects
smaller states.
• The vote is compulsory.
• The process is lengthy and provides voters
with information about the change.
Disadvantages
• Voters mightn’t understand complex details
of the referendum – this may lead to ‘no’
votes due to a lack of understanding.
• The double majority requirement is difficult
to achieve.
• It is a timely and costly process.
• The states can only lobby against the
referendum.
• The result may appear undemocratic if the
majority of Australians vote in favour of it,
but the majority of voters in the majority of
states don’t/

11.1: the significance of one High Court case interpreting sections 7 and 24 of the Australian
Constitution
S7 of the Constitution sets out matters related to the Senate and S24 sets out matters related to the
House of Representatives. Both sections require the Commonwealth Houses of Parliament to be
directly chosen by the people. This enshrines a system of representative government. In some cases,
the words have been interpreted to form the basis of an implied freedom of political
communication, while some cases have considered them to relate to voting in general elections.

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 Roach v Electoral Commissioner (2007)
In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment
(Electoral Integrity and Other Measures) Act 2006 which banned all convicts and sentenced
prisoners from voting in elections. Under the previous Act made in 2004, prisoners who were
serving longer than 3 years were banned from voting – the 2006 Act extended this ban, so no
sentenced prisoner could vote. Vickie Lee Roach, who was serving a 6-year term of imprisonment,
challenged the constitutional validity of both Acts in the High Court. The High Court held that the
2006 Act was inconsistent with the system of representative democracy established in the
Constitution which require that parliament be chosen ‘directly by the people’. This principle gives
people the right to vote for those who govern the country. Parliament should only be able to
restrict this right if it is necessary to preserve representative government. Good enough reasons
may include unsoundness of mind, conviction of treason or committing serious criminal
misconduct. In the High Court ruling Chief Justice Gleeson stated that the right to vote could be
removed for serious criminal misconduct (e.g. for prisoners serving a sentence of more than three
years) but could not be removed for prisoners who had been sentenced for less serious criminal
offences. The High Court ruled while the 2004 legislation was valid, that it was unconstitutional for
all sentenced prisoners to be denied the right to vote. The relevant section of the Act was declared
invalid.
The Roach Case is significant as it upholds the fundamental requirement that members of the
Commonwealth Parliament must be directly chosen by the people. Some have interpreted this
decision as implying a ‘right to vote’ in the Constitution, and that this right can only be limited for a
‘substantial reason’. The High Court has held that S7 and S24 don’t allow for unreasonable
restrictions on the ability of the people to choose the members of parliament.

11.3: the significance of one High Court case which has had an impact on the division of constitutional
law-making powers
The High Court has jurisdiction under S75 of the Constitution to hear and determine cases involving
disputes in which the Commonwealth, or a person suing/being sued on behalf of the
Commonwealth, is a party and between states, or between residents of different states, or between
a state and a resident of another state.

R v Brislan (1935)
S51 of the Constitution provides the Commonwealth power to legislate on postal, telegraphic,
telephonic and other like services. The Commonwealth Parliament had passed the Wireless
Telegraphy Act 1905 requiring all owners of wireless sets (radios) to hold a license. Brislan was
charged with not holding a license. She challenged the validity of the Act in the High Court, stating
that broadcasting to a wireless set is not a service in the sense of the term in S51, and isn’t
explicitly mentioned in S51. The High Court interpreted the term ‘other like services’ in Section 51
to include broadcasting to wireless set. This case changed the division of law-making powers by
extending the Commonwealth Parliament’s power to legislate regarding postal, telegraphic,
telephonic and other like services to include broadcasting to wireless sets.

This case is significant as it caused a shift in the division of law making powers from the state to the
Commonwealth, as the Commonwealth could now make laws with respect to broadcasting to
wireless sets. The Commonwealth has assumed control of electronic means of communication, with
the term ‘other like services’ being read broadly. Since the 1920s, the changing balance between
state and federal law-making power has generally been in favour of the Commonwealth. This has
weakened the states’ right to make laws in some areas that were once considered residual powers.

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11.4: the impact of international declarations and treaties on the interpretation of the external affairs
power
The external affairs power – under S51 of the Australian Constitution, the Commonwealth
Parliament has the power to create laws in relation to ‘external affairs’. This has been relied on by
the Commonwealth Parliament to pass legislation that reflects international agreements that
Australia’s entered. The High Court has decided in various cases, that the external affairs power
includes authority to legislate to give effect to an international agreement such as a treaty. This
means the Commonwealth can make laws on treaty topics not listed as powers in the Constitution.
An international treaty is a binding agreement between countries and is governed by international
law. These may be between two or more countries. The power to enter intro treaties is considered
an executive power under S61 of the Constitution. Therefore, it is the responsibility of the executive
to negotiate treaties, but the Parliament must table the treaty in both houses 15 sitting days prior to
ratifying the treaty. An international treaty is not Australian law. It can only apply in Australia if the
parliament passes a statute that includes the provisions set out in the treaty.
In contrast to a treaty, an international declaration is a non-binding agreement between countries
which sets out certain ‘aspirations’ or ‘intentions’ of the parties to the agreement. They may
influence government policy and prompt the creation of treaties.
In a series of cases, the High Court has interpreted the term ‘external affairs’ as giving power to the
Commonwealth Parliament to pass legislation to give effect to obligations or rights under
international law.

The Tasmanian Dam case

The Tasmanian government intended to dam the Franklin River to create a source of
hydroelectricity for the state’s power needs. This was a residual power, therefore within their law-
making power. The Tasmanian Parliament passed the Gordon River Hydro-Electric Power
Development Act 1982 (Tas) to set up the hydroelectric power scheme and the Franklin River dam.
The Commonwealth Parliament maintained that it had a duty to stop work likely to
damage/destroy Australia’s national heritage. The area covered by the proposed dam was
nominated by the Fraser Government in 1981 as an area to be placed on the World Heritage List.
The World Heritage Properties Conservation Act 1983 was passed to prohibit construction of the
proposed dam. The legislation was based on protecting fragile wilderness regions. In response, the
Tasmanian Government argued that the Commonwealth Parliament had passed law in an area of
state responsibility and the Commonwealth law was unconstitutional. The Commonwealth
responded it had the power to intervene as ‘external affairs’ power gave it authority to make laws
relating to an issue covered by World Heritage Listing (an international treaty).
The High Court decided that as all aspects of Australia’s relationships with other countries are
included under the external affairs power, and because the Franklin River area was covered by an
international treaty, it too came under the external affairs power. This decision interpreted the
words ‘external affairs’ to include any area covered by an international treaty. Under Section 109,
the Commonwealth Act prevailed, and the Gordon River Hydro-Electric Power Development Act
was made inoperable.

Through the High Court’s interpretation of S51 of the Constitution, the Commonwealth Parliament
was able to move into a law-making area previously left with the states.

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 Area 2
factors that affect the ability of parliament to make law, including:
– 12.2: the roles of the houses of parliament
• The effectiveness of the lower house:
o Majority government – the lower house (the House of Representatives/Legislative
Assembly) forms government, as the political party or coalition that holds the
majority of seats forms government. If the government holds a majority in the lower
house, its legislative program or policies will generally be accepted and passed, then
progress to the upper house. This allows the government to fulfil election promises.
If the government has a majority in both houses, it has the power to introduce
whatever bills it likes. Only public pressure and the risk of not being re-elected can
prevent it from doing so. Having a majority in both houses can mean bills and issues
aren’t adequately debated in the upper house. It also gives the government the
ability to reject bills without debate when they’ve been introduced by a private
member.
o Minority government – a hung parliament is where neither major political party wins
a majority of seats in the lower house at an election, so they seek the support of
members of minor political parties and independents, so they can form a minority
government. A minority government must constantly negotiate with minor parties
and independents to ensure its legislative program is supported and passed. This
may result in the government being forced to water down its original policies. A
minority government does ensure that government bills are thoroughly discussed
and debated in the lower house.
• The effectiveness of the upper house:
o Rubber stamp – since all bills must pass both houses, the make-up of the houses is
an important factor affecting the ability of the parliament to make law. When there
is a majority government in both houses, the government in one house will generally
automatically approve the decisions made by the other house (known as being a
rubber stamp). While this allows government to introduce law reforms and
campaign promises, it may prevent the upper house from adequately performing its
role as a ‘house of review’ or representing the interests of states/regions.
o Hostile upper house – if the government doesn’t hold a majority of seats in the
upper house and relies on the support of the opposition or crossbench to pass bills,
this is known as a hostile upper house. The upper house will be able to reject the
government’s bills or negotiate amendments to them. A hostile upper house may be
more inclined to debate and scrutinise laws, but this may prevent/obstruct the
ability of the government to implement law reform.
▪ The balance of power – a hostile upper house can result in a small group of
independents or members of a minor/micro party holding a
disproportionately high level of power compared to their voter base,
especially when they can vote with the opposition to block government bills
(this is known as the crossbench holding the balance of powers). This means
the government will need to win the support of the minor parties and
independents to have bills passed through the upper house. Minor parties
and independents often don’t represent the views and values of the
majority of the community as they often focus on a relatively narrow range
of policy issues, without having detailed plans on a broad range of issues.
Alternatively, a diverse upper house may be seen as an opportunity for a
more effective parliament, as the government may be forced to account for
a wider range of views.

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 • The law-making process – bills must pass both houses before it may become law, and they
must progress through several stages in each house before they receive royal assent. These
stages include debating the bill in broad or general terms and examining it in great depth,
clause by clause.
Advantages Disadvantages
• The requirement for a bill to pass both • The need to pass legislation through
houses ensures there is opportunity to two houses can slow the progress of
check the bill and suggest amendments. legislative reform.
• Both houses debate the bill, ensuring • Parliament only sits for a limited
members can point out any flaws or number of days each year and laws
good parts in the bill, meaning a wide must be made during these days. This
range of views on the bill may be can slow the legislative process and
considered. limit the number of new laws that may
• Parliament is able to change the law be created.
quickly if needed, especially if the • Parliament as a whole is restricted in its
government controls both houses. law-making ability as it can only pass
• At the Victorian level, a compatibility the laws presented to it, usually by the
statement is tabled to ensure the bill is government of the day. The
compatible with human rights protected government, therefore has a
by the Charter of Human Rights and responsibility to ensure the laws
Responsibilities Act 2006 (Vic). presented to parliament respond to the
needs of the people. Private member
bills are rarely introduced as they don’t
normally pass.

• The committee system – a strength of parliament is that each house, at both a federal and
state level, have an extensive committee system. This allows members of both houses to
examine and evaluate the need for law reform, and allows community members to have
input. For instance, the Victorian Legislative Council has three permanent (standing)
committees that examine the need for law reform and propose legislative reform in relation
to economy and infrastructure, environment, and planning, legal and social issues.

– 12.3 the representative nature of parliament

Australian parliament is based on the principle of representative government. This means that, at all
levels, parliament and government consist of members elected by the people to make laws on their
behalf. If these members don’t make laws reflecting the views of the people/needs of the
community, they jeopardise their chance of being re-elected. This principle helps to ensure members
of the parliament engage with and listen to the views and concerns of the electorate. It also ensure
that the government and opposition remain accountable to the people, ensure they explain their
legislative programs so the public can make informed decisions about which party they support.

The views of the majority – the representative nature of parliament encourages members of
parliament to listen to the community and make laws in accordance with these views. However, this
may result in laws being made that will result in the re-election of members, as opposed to making
controversial laws that may be necessary. Members of parliament may also be reluctant to initiate
law reform in areas where there is a highly vocal group of people who don’t support the change in
the law, even if they’re a minority. It can also be difficult to assess the view of the majority if it is a
conflicting area. Parliament may also struggle to predict the views of the future.

Regular elections – to achieve representative government, regular elections must be held so the
people can vote for politicians to represent them in parliament. Voting is compulsory – some think

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this doesn’t uphold representative government as many people may make ill-informed votes to tick
off a legal requirement. However, others argue that it ensures parliament has the support of the
majority and not just those who bothered to vote. It also means political parties must considers the
needs of everyone when formulating policies. Elections for the Commonwealth Parliament are held
every three years, while the Victorian parliament is every four years on the last Saturday of
November. Federal elections aren’t held on a fixed date, so governments may call an early election
when it best suits them (such as when they predict a slowdown in the economy).

– 12.4: political pressures

Parliament consists of members elected by the people to make laws on their behalf, and if they
don’t represent these people, members risk not being re-elected. This may mean the feel they need
to remain popular with voters, and therefore choose to support law reform based off public
approval rather than merit. It may also allow certain individuals and groups/organisations, especially
those with financial power or ability to influence community perceptions, to place pressure on
politicians and political parties that is in their best interest rather than the nations. They may also
feel pressure to vote in accord with their own political party. Types of political pressure facing
parliament:
• Domestic political pressures – members of parliament are expected to respond to the needs
of the people and make laws that reflect their views and values. This enables members of
the community, business groups, organisations and pressure groups to have a sense they
can influence members of parliament. This may be done through petitions, demonstrations,
etc, and are more likely to be effective when they gain media attention. However,
sometimes minority groups and businesses may put pressure on politicians and impede
important law reform.
o Business groups and organisations – may place pressure on parliament to make laws
in their best interests. For instance, trade unions may pressure the government to
make wages better.
o Financial donations – individuals, business groups and organisations may place
indirect pressure on political parties by contributing financial donations. While this
may not directly impact the decisions made by said parties, it may ensure that
parties which best represent donators views get re-elected.
o Independents – influential individuals sometimes run as independent candidates, or
form their own parties, in an attempt to win a seat in parliament and directly
influence law reform.
• Internal political pressures – members of parliament who belong to parties are generally
expected to vote on party lines. However, sometimes individual members of parliament
disagree with their party’s view on an issue, yet still feel compelled to vote in accordance
with it. This can lead them to disregard the views of their own electorate or local
community. If a member votes against their party, they are crossing the floor. Minority
governments can be subject to even more pressure, as they may need to negotiate with the
minor parties/independent members of parliament, or change their bills, to ensure bills
pass. Hostile upper house also leads to political pressures.
• International political pressures – politicians may be influenced by political pressures from
international forces such as other countries, international organisations (e.g. the United
Nations) and multinational corporations. Australia is a part of many international treaties,
which can pressure the Australian Government to make laws that uphold the principles they
contain. Political pressures may also come from major international trading partners and
defence allies and must consider our economic partnership and trade and defence
agreements when developing laws. Finally, change in international circumstances and global
events may place pressure on government to make and change laws – e.g. the increased
threat of global terrorist attacks.

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– restrictions on the law-making powers of parliament
Restrictions on law-making powers result from:
• Jurisdictional limitations – parliament may only make laws within its constitutional power or
jurisdiction. Any areas of law-making powers not listed in the Constitution are residual
powers, and therefore can’t be legislated on by the Commonwealth unless they’re given the
power to do so through a High Court interpretation of the Constitution, the states handing
over or referring their powers to the Commonwealth, or through a change to the
Constitution by way of a referendum. However, the Commonwealth may make a tied grant
to the states (funding on the condition its spent in a specified way), allowing them to
influence state law. Similarly, states can’t make laws in areas of exclusive powers, as these
are powers held solely by the commonwealth parliament. If anyone believes that Parliament
has made a law outside its law-making powers, they can challenge the validity of the law in
court. Doing so can clarify the extent of the law-making powers of parliament and whether a
law is valid. If the High Court rules that the Commonwealth Parliament has passed legislation
beyond its law-making powers (ultra vires – beyond the powers), it may declare this
legislation invalid and the decision can’t be overruled by parliament.
• Specific prohibitions – the Australian Constitution also restricts the law-making powers of
the state and Commonwealth Parliaments by expressly banning parliaments from making
laws in certain areas. E.g. S117 restricts the Commonwealth Parliament from making laws
that discriminate against the residents of a state. The Constitution also prohibits the
Commonwealth Parliament from making laws in residual areas of power.
• The law-making process

NOT LISTED IN STUDY DESIGN – PRIOR KNOWLEDGE

The Australian legal system consists of a whole body of law that regulates society. This body of
law includes laws made by the parliaments, called statute law, and laws made by judges or the
courts, called common law (or caselaw).
The main role of the parliament (AKA legislature) is to make and change law on behalf of the
people. The main role of the courts (AKA judiciary) is to apply existing laws made by parliament to
resolve disputes.

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13.2-13.3: the roles of the Victorian courts and the High Court in law-making
The main role of the courts is to resolve disputes and hear cases. Judges in superior courts (High
Court and Supreme Court), however, are sometimes able to make law when deciding cases (this is
known as common law or case law). Specifically, superior courts may make laws if the court is
resolving a dispute in which there is no existing law (e.g. if a judge has to make a decision on a totally
new issue), or if the court resolves a dispute in which there is an existing statute but it requires
interpretation so it can be applied to the case – through interpreting the words in an existing act of
parliament, judges can broaden or narrow its meaning, therefore establishing law (statutory
interpretation). When judges make a decision in one of these circumstances, the reason for the
decision establishes a new legal principle known as precedent.

The doctrine of precedent is the common law principle by which the reasons for the decisions of
higher courts are binding on courts ranked lower in the same hierarchy in cases where the material
facts are similar. The doctrine of precedent creates consistency and predictability and requires lower
courts to follow precedents set in superior courts. Precedent therefore requires courts to be
organised in a hierarchy based on the seriousness and complexity of the cases they may resolve. Key
features of the doctrine of precedent:
• The principle of stare decisis – ‘to stand by what has been decided’. This is another way of
describing the process of lower courts following precedent.
• Ratio decidendi – ‘the reason for the decision’. It is the binding part of a judgement
(judgement – the statement by the judge at the end of a case that outlines the decision and
legal reasoning behind it). The ratio decidendi isn’t the decision itself, nor the
sanction/remedy – it is a statement of law to be followed in the future. The ratio decidendi
of a case may be found in various parts of the judgement, not always one sentence.
Sometimes, several judges are involved in reaching a decision. If they can’t reach a
unanimous decision, the precedent created is that of the majority – therefore the ratio
decidendi must be found by looking at judgements of the judges from the majority. Only the
material facts are relevant in the future when extracting a ratio decidendi.
L Shaddock & Associates Pty Ltd v Parramatta City Council (1981)
Shaddock was given incorrect advice by Parramatta City Council about a piece of land he wanted
to buy for redevelopment. Usually, a purchaser asks the local council for information about any
orders that may affect a piece of land. The Council completed the forms for the purchaser, and left
the section relating to road-widening blank, therefore it was assumed there was no road-widening
order affecting the land. Shaddock purchased the land relying on this advice, then found out the
advice was incorrect. There was a proposal for road-widening, making the land useless for the
reason it was purchased. Shaddock sued Parramatta City Council for giving negligent advice, also
referred to as negligent misstatement. The High Court decided the council had given negligent
advice as the owed a duty of care to Shaddock to provide accurate advice. The reason for the
decision (ratio decidendi) was that: a duty of care is owed when information or advice is sought,
and is relied upon, in the course of business and the supplier of information sets up as a centre
from which that advice may be sought (that is, as an expert).

• Binding precedents – these are precedents that have been established by superior courts
and must be followed by lower counts in the same hierarchy when resolving disputes with
similar material facts. It must be followed, regardless of whether the judge agrees with it.

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 • Persuasive precedents – precedents that aren’t binding on a court but may still be
considered by a judge and used to influence their decision. Persuasive precedent may be set
in lower courts in the same hierarchy, courts in a different hierarchy, set by courts of the
same standing in the same hierarchy, and obiter dicta from any court.

Donoghue v Stevenson (1932)

This was a British case, also known as the ‘snail in the bottle’ case. David Stevenson was a soft
drink manufacturer who made bottles of ginger beer. May Donoghue’s friend brought her a
bottle of this ginger beer. After she’d drunk half of the bottle, a decomposed snail poured out.
She became ill. She didn’t have a contract with the café or manufacturer as she didn’t buy the
bottle. She sued for negligence, claiming the manufacturer had been negligent in washing the
bottles. As the bottle was opaque Donoghue couldn’t have checked the contents herself. The
House of Lords found the manufacturer was negligent. Before this case, the legal concept of
negligence didn’t exist. The ratio decidendi in this case is that a person owes a duty of care to
those they can reasonably foresee will be affected by their actions.

This case was then persuasive on Grant v. Australian Knitting Mills Ltd.

Grant v Australian Knitting Mills Ltd (1936)

This case used the ruling of Donoghue v. Stevenson as a guide. A man (Grant) purchased a pair of
underpants and found when he wore them that he got a rash. He had the underwear tested and
discovered chemical residue from the manufacturing process was still in the garment. At the
time, ‘buyer beware’ principle applied to the purchase of all goods, meaning it was the
purchaser’s responsibility to look for defects before buying them. However, Grant couldn’t have
detected this fault from inspection. The court followed the precedent set in Donoghue v.
Stevenson and ruled the manufacturer directly caused Grant an injury and that they owed him a
duty of care.

Therefore, the law of negligence was established in Australia.

• Obiter dicta – obiter dictum means ‘a thing said by the way’. When handing down a
judgement, the judge sometimes makes a statement that isn’t part of the ratio decidendi –
meaning the statement wasn’t necessary to the decision but was still a considered opinion.
The comments made in obiter may be relevant and influential on future decisions and can
act as persuasive precedent.

Hedley Byrne & Co v Heller and Partners Ltd (1963)

This case was decided by the Appellate Committee of the English House of Lords. An advertising
agency approached a merchant bank to ask whether a client of the bank was creditworthy. The
bank gave a favourable reference but stated that the reference was given without responsibility.
On this advice, the agency did business with the client, resulting in the loss of £17 000. The
advertising agency sued the bank for giving negligent advice, the courts decide that the bank didn’t
owe a duty of care to the person who sought advice. The ratio decidendi was that the bank had
disclaimed responsibility when giving the advice. The Court, however, went further, and by way of
obiter dictum said:
if in the ordinary course of business or professional affairs a person seeks information or advice from another,
and the person relies on the advice, then a duty of care ought to be owed unless the person giving the advice
disclaims responsibility.

This obiter dictum was persuasive on L Shaddock & Associates Pty Ltd v Parramatta City Council
(1981).

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Developing and avoiding precedent
when deciding cases, judges will consider precedents developed in earlier cases. If they aren’t bound
to follow earlier precedents, they may choose to adopt the precedent (follow it), affirm it (agree
with it) or avoid it. In some cases, judges may be able to create new precedents, allowing some
flexibility in the common law – that is, allowing precedent and common law to change and develop
over time. Apart from following a binding precedent, there are four other ways that judges can treat
previous precedents:
• Distinguishing – a judge may avoid following an existing binding precedent if they can find a
difference in the material facts of the cases. This allows them to avoid precedent, as it is
only binding on lower courts in cases where the material facts are similar.

Davies v Waldron (1989)

The accused was found guilty of being in charge of a motor vehicle while more than the
prescribed concentration of alcohol was present in his blood. The accused was said to be
sitting in the driver’s seat with the keys in his possession, and the counsel argued that
the accused was starting the car for his friend who would drive. In Gillard v Wenborn, an
intoxicated driver was found not to be ‘in charge of a motor vehicle’ while in an
intoxicated condition – he turned on the car engine for warmth then fell asleep. The
judge in the Davies v Waldron case distinguished the case from Gillard v Wenborn. He
said that the accused was found attempting to the start the car and at risk of driving in
Davies v Waldron, whilst the accused was found asleep in Gillard v Wenborn, therefore
not at risk of driving. It was necessary to link the intoxicated person in charge of the car
with a risk that he will drive the car when in an unfit state, which was found in Davies v
Waldron.
• Reversing – when a case is taken on appeal to a higher court, the superior court may change
the decision of the lower court, therefore reversing the precedent and creating a new one.
This may only be done in the same on appeal.
R v Klamo (2008)
Tomas Klamo was convicted of manslaughter of his four-week-old son in the Supreme
Court. The child died of a brain haemorrhage. Klamo admitted to shaking the baby a
week or two before it died but hadn’t done it again. The medical expert called by the
prosecution was unable to say what called the fatal haemorrhage. This case was
appealed, and the Court of Appeal maintained that the jury’s verdict was unreasonable,
as it was incapable of being supported having regard to the evidence presented in the
original trial. The Court of Appeal decided to uphold the appeal against the conviction
and ordered that Klamo be acquitted. This therefore reversed the decision of the
Supreme Court.

• Overruling – when a superior court decides to not follow a previously established

precedent, set by a lower court in a different and earlier case, it can choose to overrule the
existing precedent. By the doing this, the superior court creates a new precedent that
makes the earlier precedent inapplicable. This is similar to reversing a precedent, except
that reversing applies when a judge changes an existing precedent set in a lower court in
the same case on appeal, whereas overruling applies to changing a precedent in a different
and later case.
• Disapproving – when a lower court disagrees with an existing binding precedent set by a
higher court in the same hierarchy, it may express dissatisfaction with the previous
precedent. This statement of discontent doesn’t allow the lower court to avoid following
the precedent, it may encourage parliaments to change the law or encourage a party to

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 consider lodging an appeal against the decision in a higher court. A statement of
disapproval, made as obiter dicta, may also be used to indicate to a higher court that a
judge in a previous case believes the precedent needs to be reconsidered. In cases where
judges are not strictly bound by precedents previously set by their own court they may still
choose to follow it, while expressing their disapproval – this may encourage parliament to
override or change the law, or one of the parties to appeal the verdict. Sometimes even the
High Court of Australia will express their disapproval of an existing precedent rather than
overruling it, in an effort to convince the parliament to change the law.
The Trigwell case
In State Government Insurance Commission v Trigwell (1979), Mr and Mrs Trigwell were
injured when a vehicle collided with their car after hitting two sheep. They sued the
driver of the other car and the owner of the sheep for damages. The High Court decided
to follow the common law principle that the landowner did not owe a duty of care for
their stock straying from their land onto the highway. Justice Mason implied that
parliament should change the laws on this matter. The Victorian Parliament decided to
follow this suggestion and passed the Wrongs (Animals Straying on Highways) Act 1984
(Vic), abolishing the common law immunity.

When applying earlier precedents, even without distinguishing, overruling, reversing or disapproving
of past decision, courts may still refine the law and make it clearer as they apply a precedent to a
new case. This allows law to expand and develop over time. Applying precedent may require the
courts to interpret the meaning of words and phrases, which may lead to their meaning being
broadened or narrowed by future courts – this is one reason it is said that a precedent set in never a
final statement of the law, as circumstances always change. Some areas of law have almost entirely
been developed through the courts, such as negligence.

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13.4: the reasons for, and effects of, statutory interpretation
As well as establishing precedents when resolving cases in which there’s no existing law, judges may
also make law when called upon to interpret the meaning of a statute (or Act of parliament) to
resolve a case. Situations like this arise when there’s a dispute over the meaning of the words and
phrases contained in an Act of Parliament and the case is brought before the court to be resolved.
By giving meaning to the unclear words and phrases, judges can clarify legislation, so it can be
applied to resolve the dispute before them. Similarly, when interpreting legislation, judges can
broaden or narrow its meaning, therefore establishing a legal principle to be followed in future
similar cases which, together with the Act of Parliament, will form part of the law. Judges can only
interpret a statute if a case is brought before the court for resolution. Depending on the superiority
of the court, the legal reasoning behind the judge’s interpretation may set a precedent for other
judges. The judge’s interpretation of a statute only provides meaning and application, it doesn’t
change the words. Reasons for statutory interpretation:
• Problems as a result of the drafting process – bills are generally drafted to ensure they cover
a wide range of situations and possibilities, meaning they should be careful with the
language they use. Bills need to use general terms sometimes to ensure the bill covers a
wide range of future circumstances, but also precise terms that clearly define the law, so it
can’t be misinterpreted. Problems that occur because of the drafting process:
o Mistakes can occur during the drafting of a bill – e.g. in 2016, the Victorian
Parliament passed legislation to amend the Crimes Act 1958 (Vic) in relation to
sexual offences, as the law previously excluded sexual offences by means of
technology.
o The act might not have taken future circumstances into account – e.g. the
Constitution gives the Commonwealth Parliament the power under Section 51 to
legislate over the naval and military defence of the Commonwealth and of the
several States, however makes no reference to air forces as they didn’t exist at the
time.
o The intention of the act might not be clearly expressed.
o There might be inconsistent use of the same word in the act (giving it different
meanings).
o An act may not cover new types of technology – e.g. an act referring to CDs mightn’t
include MP4 players.
• Problems applying the act to a particular court case:
o Most legislation is drafted in general terms – this is so it can cover a wide range of
circumstances, however, sometimes they’re so broad they need to be interpreted to
applied to specific circumstances. E.g. Deing v Tarola (1993).
o The act may have become out of date – may need to be revised to keep up with
changes in society.
o The meaning of the words may be ambiguous – due to the words and phrases
attempting to cover a wide range of issues, the meaning of some words may be
ambiguous. E.g. in the case of Davies v Waldron, the court was asked to interpret
the phrase ‘start to drive’ found in the Road Safety Act 1986.
o The act might be silent on an issue and the courts may need to fill gaps in the
legislation – a statute may miss some situations that could arise in relation to the
issues in the statute, therefore making the act silent on some issues.
o The meaning of words can change overtime – e.g. meaning of the term ‘de facto
relationship’ was a man and a woman living in a domestic relationship. The
definition of a de facto relationship is now a couple living in a domestic relationship,
regardless of gender.

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 The studded belt case
In Deing v Tarola (1993), Chanta Deig was wearing a black leather belt with raised silver studs on it
which he’d just purchased earlier at a market stall. Deig was apprehended and charged with an
offence under the Control of Weapons Act, which was carrying a regulated weapon due to his
studded belt. The Magistrates’ Court had to interpret the words ‘regulated weapon’ and decided
that a studded belt fit this description. The young man appealed this decision to the Supreme
Court, where they decided that the studded belt wasn’t a regulated weapon. Justice Beach decided
that under the Control of Weapons Act, a regulated weapon should be defined as ‘anything that is
not in common use for any other purpose but that of a weapon’.

Mansfield v Kelly
Under the Summary Offences Act 1966 (Vic) it is an offence to be drunk in a public place. In this
case, the accused was found drunk in his car, which was parked in the street. As the street was a
public place, the prosecution maintained he was drunk in a public place. The accused argued he
was in a private car. The courts were required to interpret the words ‘public place’, and the court
decided these words included being in a private car in a public place.

The effects of statutory interpretation:

• Words or phrases contained in disputed acts are given meaning
• The decision reached is binding on the parties (unless they successfully appeal)
• Precedents are set for future cases to follow – if the interpretation of words occurs in a
superior court, the reasons for the decision form a precedent.
• The meaning of the legislation (law) can be restricted or expanded – e.g. the decision in
Deing v Tarola restricted the definition of a regulated weapon to items likely to be used for
an offensive or aggressive purpose only. Alternatively, the Tasmanian Dam case extended
the interpretation and meaning of the phrase ‘external affairs’ in the Constitution to include
areas covered by international treaties, allowing the Commonwealth Parliament to legislate
in any area covered by an international treaty.

When a law is made through the courts, it applies to parties to the case and any person who may
bring a similar case in the future. A decision made by a court is a final statement of law unless it is
reversed by a higher court on appeal, overruled by a higher court in a different and later case, or
abrogated (cancelled) by an Act of Parliament.

factors that affect the ability of courts to make law, including:

While courts are able to make law, their ability to do so is sometimes limited.
– 13.5: the doctrine of precedent
Doctrine of precedent essentially means the reasons for the decisions of higher courts are binding
on courts ranked lower in the same hierarchy in cases where the material facts are similar. The
doctrine of precedent both enables and restricts the ability of courts to make laws. The doctrine of
precedent helps ensure common law is consistent and predictable, therefore upholding the rule of
law. Precedent ensures like cases are decided in a like manner, that legal representatives are able to
give advice on the likely outcome of cases, that judges have some protection and guidance, and that
the same points aren’t being decided over and over again. However, the doctrine of precedent has
limitations:
• Identifying relevant precedents – it can be hard to locate precedents relevant to a particular
case, due to the large number of cases that may previously have been decided in the
particular area of law involved in this case. It also means finding a relevant precedent can be

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 time-consuming and costly. Identifying the ratio decidendi can also be difficult when the
precedent has been made in a court of appeal with three or more judges. Sometimes there
will be conflicting precedents and the judge will have to choose the most appropriate one.
• Binding precedents – this restricts the ability of the courts to change the law in cases where
there’s already binding precent. This may lead to an unjust outcome if courts are bound to
follow an ‘outdated precedent’ and the affected party can’t afford to appeal to a higher
court. Courts may express their disapproval of precedent which could encourage a
dissatisfied party to pursue an appeal and indicate to the higher court that the lower court
believes the precedent should be reconsidered.
• Flexibility – the doctrine of precedent is flexible and allows courts to avoid following, or even
to change, existing precedents. For instance, higher courts can reverse or overrule previous
precedents, and judges may avoid following an existing precedent by distinguishing between
the material facts of the two cases before the court. However, judges may be reluctant to
reverse/overrule precedents, instead preferring to leave law-making to parliament. They
must also wait for cases to come to them – this means the courts are reliant on parties being
aware of their rights to pursue a case.
• Judges make law ex post facto (out of the aftermath) – as courts can only make law when a
dispute is brought before them, courts make and clarify the law retrospectively, after the
event. If a court is interpreting a statute or case law precedent, they can only clarify the
meaning after the dispute has come before the court. Extending the law allows the court to
achieve fair results for the successful party, but means the other party was acting within the
law at the time of the incident, only to find later that they acted unlawfully.
• Parliament can override judge-made law – while judges can make law through the
establishment of precedents, with the exception of High Court decisions in constitutional
matters, parliament can always legislate to override common law, as parliament is the
supreme law-making body.
Advantages Disadvantages
• Stare decisis ensures consistency and • Lower courts must follow precedent
predictability in common law even though it may be outdated or
• Common law is flexible as judges in inappropriate
superior courts can overrule and • Identifying precedents relevant to a
reverse precedent and lower courts can case can be time consuming and costly
avoid them through distinguishing • Judges may be reluctant to change
material facts existing precedent, preferring
• Statutory interpretation allows judges parliament to abrogate it.
to clarify unclear legislation, and expand • Judges may only interpret legislation
or limit its meaning when an appropriate case is brought
• By setting precedent, judges can make before the court
law to complement legislation • Judges cannot change the wording of
• Judges are independent and impartial legislation, only give them meaning
adjudicators who don’t have political • Courts can only clarify the meaning of
bias or feel compelled to satisfy voters legislation after a dispute over its
when making decisions meaning has arise (ex post facto)
• Courts can determine if parliament has • Judges mightn’t represent views of the
made law beyond their powers and people
declare these invalid, acting as a check • Judges may be conservative, and
on parliament exercise restrain when resolving
• Judges can be an informal source of disputes that could lead to controversial
legislative change change in legislation
• Parliament can pass legislation to
override common law

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– 13.6: judicial conservatism
Judicial conservatism refers to the idea that the courts should show restrain or caution when making
decisions and rulings that could lead to significant changes in the law. This can influence the ability
of the courts to make law, as judges who take a conservative approach to their interpretation of
statutes will not go very far beyond the established law. As parliament is the supreme law-making
body and represents the people, it is generally accepted they have more authority for implementing
major law reform than judges, as judges should interpret law, not rewrite it. Not only this, but
parliament has committees and specialist bodies (e.g. VLRC) that can help them investigate the
views of the public, which the courts do not have. Judicial conservatism features the belief that
judges shouldn’t make decisions on their own views or political opinions, or what they perceive to be
the community’s. Decisions should be based on legal consideration. This traditional view is opposite
to the concept of judicial activism.

– 13.7: judicial activism

This refers to the willingness of judges to consider a range of social and political factors, including
community views and values and the rights of the people, when interpreting the law and making
decisions. Some feel, this allows judges to make decisions outside their legislative or constitutional
power. The extent to which judges should be progressive (or activist) when making decisions and
establishing precedents is controversial and largely depends on the circumstances of the case before
the court.

– 13.8: costs and time in bringing a case to court

Costs of taking a case to court include:
• The cost of legal representation – this gives a party a better chance of winning their case and
having it presented in the best possible manner.
• Court fees – filing fees, hearing fees and jury costs.
These fees can deter people from pursuing cases in the courts or on appeal, especially if they don’t
qualify for legal aid. If cases aren’t taken to court, parliament can’t make law on them. These costs
can, however, prevent trivial claims and encourage parties to use alternative dispute resolution
methods.

Time involved in bringing a case to court – the courts can make laws relatively quickly once a dispute
has been brought before them. Judges aren’t required to follow lengthy procedures like those for
drafting bills, saving time. Judges in appeal courts, may take months, however, to determine more
complex cases. When an urgent injunction is needed or there is a pressing need at a high level of
community importance, courts can move quickly because judges have discretionary power and can
make rulings quickly (on the spot if necessary, as seen in the below case). Complex pre-trial
procedures, a lack of court resources, and an increasing number of cases being heard by the courts
can also cause delays.

The Marriage Equality case

In the case Commonwealth v Australian Capital Territory (2013), the High Court determined the
Marriage Equality (Same Sex) Act 2013 (ACT), act was inconsistent with the Marriage Act. The High
Court ruled these acts couldn’t operate concurrently, and subsequently declared the ACT
legislation invalid. Within five days of being passed the ACT act allowing marriage equality was
declared void and about 27 marriages that had taken place during that period were cancelled.

– 13.9: the requirement for standing

Courts must wait until a party decides to pursue a case before they can create precedent. a party
may only take a case to court if the court has jurisdiction. The party initiating the case must have

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standing (known as locus standi ‘standing in a case’), meaning they must be directly affected by the
issues, to commence the legal proceeding. They must have special interest in the case, meaning
they’re more explicitly affected by the law or issues in dispute than a member of the general public.
They must gain a greater material advantage from winning the case.

Bishops against IVF

In 2002, a group of catholic bishops wished to challenge a ruling made in McBain v Victoria (2000)
which gave single women in Victoria the right to access IVF. The bishops brought the action on the
basis the ruling was against their religious beliefs. The High Court ruled the bishops did not have
standing in the case because they had no legal, financial (economic) or special interest in the case.
Winning/losing would cause them no result other than satisfaction/dissatisfaction.

13.10: features of the relationship between courts and parliament in law-making, including:
Courts and parliament have an interconnected role in law-making, and they must work together to
ensure the law is flexible and can be applied to any situation that may arise. Parliament is the
supreme law-making body, but the courts have a complementary role. The main five features of the
relationship between courts and parliament in law-making are:

– the supremacy of parliament

Parliament is the supreme law-making body with the ability to make and change any law within its
constitutional power. It therefore can pass legislation to either confirm (codify) or override
(abrogate) decisions made through the courts (excluding High Court decisions on constitutional
matters). Parliament is responsible for passing legislation that establishes the courts and states the
power they have to her cases – e.g. the Supreme Court Act 1986 (Vic). Parliament can also pass
legislation to change the jurisdiction of courts so that the types and severity of cases heard by the
court can be changed. For instance, the Magistrates’ Court Act has been amended to create its
divisions like the Koori Court. parliament can also pass Acts to restrict the ability of the courts to
make decisions with respect to certain matters. However, in accordance with the separation of
powers, parliament must ensure that it allows the courts to remain independent and retain the
power to determine if the parliament has passed laws beyond its law-making authority.

– the ability of courts to influence parliament

Courts can indirectly influence parliament to make and change the law. Judges may make comments
(in their obiter dictum or ratio decidendi) that encourage parliament to initiate law reform.
Parliament may also be influence to change the law if a court is bound by previous precedent and
makes a choice that creates an injustice, or if they act in accord with judicial conservatism and won’t
change a previous precedent. This can be seen in the Trigwell case. A court’s decision may also
highlight a problem or even cause public uproar that can lead to the parliament changing the law.

– the interpretation of statutes by courts

For legislation to be effective, the courts must apply the statutes to the cases brought before them.
This sometimes requires courts to interpret or give meaning to the words or phrases in an Act, which
can not only clarify legislation to solve disputes, but may narrow or broaden the Acts meaning. This
establishes a precedent and forms a part of the law, along with the Act of parliament. The High
Court is the only court that can interpret the words and phrases of the Constitution, therefore
allowing the High Court to alter the division of power between the parliaments. For the courts to be
able to interpret the meaning of the words or phrases in an Act of Parliament, however, a case must
be brought before the court.

– the codification of common law

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Being the supreme law-making body, the parliament can make law that confirms a precedent set by
the courts. This is referred to as codification of common law and involves the parliament passing
legislation that reinforces or endorses the principles established by the court in their ruling.

– the abrogation of common law

Parliament has the power to pass legislation which overrides (abrogates or cancels) decisions made
through the courts (or common law), with the exception of High Court decisions made on
constitutional matters. This may be necessary when parliament believes the courts have interpreted
the meaning of the words in a way that wasn’t intended by parliament or doesn’t reflect the current
meaning of the act. Courts may also interpret common law in a way that is no longer considered
appropriate.

14.1: reasons for law reform (with examples)

The main aim of law is to protect our society and keep it functioning. To be effective, laws need to
be known by the community, be easily understood, be able to be changed, be acceptable to
individuals within society and society as a whole. If a law is missing one of these characteristics, it
probably will not be effective. It is also essential that laws can be altered to keep up with the
changing views and values of society. Reasons for law reform:
• Changes in beliefs, values and attitudes – in any society, values and attitudes change over
time. For the law to remain relevant and acceptable to the majority of people, it must keep
up with these changes. Alternatively, rapid changes to the law, which impose change before
a community is ready, may be met with resistance. People will be reluctant to obey laws
which don’t reflect their beliefs. Beliefs may change as knowledge increases.

Oscar’s Law
Public awareness of animal welfare has increased. Since 2010, a number of laws have been
changed/introduced help prevent cruelty to dogs and cats in Victoria. Particularly, laws regulating
the activities of ‘puppy factories’ have received much media attention. Puppy factories are
businesses that mass-produce puppies, often in poor conditions, to sell. The laws regulating puppy
factories are known as Oscar’s Law, after a dog called ‘Oscar” who was rescued after poor
treatment in a puppy factory.

• Changes in social, economic and political conditions:

o Social conditions – as population grows and changes, laws will need to change to
maintain social cohesion. Things that have prompted law reform include increases in
reported domestic violence, binge drinking, gang-related crime, online gambling and
the obesity epidemic.
o Economic conditions – particularly, technology and globalisation create issues that
need to be addressed by the law. Laws that regulate buying, selling and production
of goods and services must be monitored. E.g. the Food Amendment (Kilojoule
Labelling Scheme and Other Matters) Act2016 (Vic) changed the law to require fast
food outlets to state the kilojoule (i.e. energy) content of each item on their menu at
the point of sale.
o Changing political conditions – these changes may be domestic, international or
global. For instance, terrorism, and the number of international conflicts (this may
result in a rise in refugee levels). E.g. Australia’s Migration Act 1958 was amended so
that the Minister for Immigration may cancel the visa of a non-citizen who is
considered a ‘risk’ – this amendment occurred in 2017.
• Advances in technology – as technology improves, our laws need to be altered and updated.
Some laws may control and regulate new inventions, whilst others will reduce the likelihood

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 of people being harmed or exploited. Scientific and medical advancements also create the
need for law reform.
Ownership of breast cancer gene codes
In 2015, the High Court of Australia ruled in favour of Ms Yvonne D’Arcy, a breast cancer survivor
who took legal action against US biotechnology company Myriad Genetics. Myriad claimed it could
take out a patent to own BRCA1 gene mutation that increases a woman’s risk of developing ovarian
and breast cancer. D’Arcy argued that the company could not own it, as the genetic material
already existed in nature, despite the research they undertook to identify it. As the gene already
existed in nature, the information it contained could only be discovered (to get a patent you need
more than a discovery or an idea). The High Court agreed with D’Arcy and ruled that Myriad
Genetics could not patent and own the BRCA1 gene.
• Greater need for protection of the community – law reform must continually occur to
ensure individuals and different groups within our community feel safe. One of the major
roles of the law is to protect individuals from harm (physical, emotional, economic). Laws
are needed to protect people (especially those at risk of discrimination, powerless workers,
children and consumers), animals and the environment. For example, in 2016 the Crimes
Amendment (Carjacking and Home Invasion) Act 2016 (Vic) introduced new carjacking and
home invasion laws, including more severe penalties for offenders (after an increase in these
crimes).
• Greater awareness of the need to protect rights – protecting individuals from discrimination.
Laws make it unlawful to discriminate on the basis of age, gender, impairment, pregnancy or
race. For example, in 2016 the Victorian Government’s attempt to change the Equal
Opportunity Act 2010 (Vic) to remove the exemption that allows for religious organisations
(e.g. schools) to discriminate against prospective employees on the grounds of their religious
beliefs, sexual orientation or gender identity was defeated in the Victorian Parliament.
• Greater need to provide improved access to the law – as people are better educated about
the law and their rights, they’re more likely to want to seek justice if they believe these have
been infringed. Taking a matter to court can be expensive and intimidating. To assist people
in seeking a just resolution to disputes, the law has been changed. E.g. the Courts and
Sentencing Legislation Amendment Act 2012 (Vic) created a Melbourne County Koori Court,
improving their access to fair and culturally relevant justice. In 2016, one was established in
Mildura.
• Encouraging changes in values in society – e.g. the Sentencing Amendment (Historical
Homosexual Convictions Expungement) Act 2014 (Vic) made it unlawful to discriminate
against a person on the grounds that they were once convicted under the old laws banning
homosexuality. They also have been many laws trying to discourage domestic violence.
• Greater need to clarify, simplify or expand unclear laws – for a law to be effective it must be
easily understood – overly complex ‘legal jargon’ or specific terminology makes this difficult.
These laws may need to be simplified or rewritten to be more accessible to those without
legal training. May also undertake law reform to provide greater detail/clarity and ensure
consistency. E.g. in 2015 a new law, the Legal Profession Uniform Law Application Act 2014,
was adopted in Victoria and NSW to have more consistency within the legal profession
between the two states. This law required lawyers o make sure certain clients reasonably
understand any legal action they suggest, and the estimated cost of the action.

14.2: the ability and means by which individuals can influence law reform including through petitions,
demonstrations and the use of the courts (with examples)
People in the community may influence law reform in many ways, including:

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 • Petitions – a petition is a formal, written request to the parliament to take action or
implement law reform. It usually has a collection of signatures, gathered from supporters,
but even a single individual can petition the parliament. There isn’t a minimum number of
signatures – once the organiser is satisfied they can forward the petition to a local member
of parliament to table at the next sitting of parliament. This is the only way for an
individual/pressure group to directly put their concerns or complaints before the parliament.
There are two formats of petition:
o Print petitions – traditional paper petitions collected in person. Every page of a
paper petition must contain the same information – what is being sought and the
circumstances. Victoria’s Legislative Assembly only accept paper petitions.
o Digital petitions – e-petitions collected online and signed using email addresses or
digital signatures. The Senate recommends people place the petition online and
inviting people to sign by submitting their names and email addresses.
A petition will appear more representative of the community if it’s signed by as many people
as possible, as this shows a high level of support. This helps to uphold representative
government.

Petition to ban plastic bags

In 2016, a group of environmental campaigners called Plastic Bag Free Victoria presented a petition
with over 11 000 signatures to Greens Member of the Legislative Council, Nina Springle. They
demanded the law be changed to ban single-use plastic shopping bags. In 2018, it was announced
that single-use plastic bags would be banned in Victoria in 2019.

Petitions may be in relation to an issue of general interest (e.g. euthanasia) or issues

relevant to a small group of people (e.g. need for supervised school crossings in a local area).
A petition presented in the Victorian Parliament must meet requirements including
addressing only one house of parliament, referring to a matter within the power of the
parliament, be legible and not contain any offensive language.
Advantages Disadvantages
• Petitions are a simple, easy and inexpensive • Some people are reluctant to give away
way for people to show their desire for law their name/address/email
reform • Good ideas may be overlooked if there isn’t
• Parliament is more likely to consider law community pressure beyond the petition
reform that has strong community support • Influence of the petition may depend upon
(more signatures the better) who tables it and their influence in
• Petitions can generate public awareness parliament
• Once a petition has been given to a member • Parliament receives hundreds of petitions
of parliament it must be presented in yearly and there is no guarantee the
parliament. suggested law reform will be adopted
• An e-petition enables members of the public • Many petitions don’t gain public and media
to submit and sign petitions online and track attention after being tabled
their progress. Can reach more people. • Some people may sign a paper petition
more than once, compromising the integrity
• Opposing petitions can lower the impact of
a petition

• Demonstrations – aka a protest or rally, is a gathering of a group of people to protest or

express their common concern or dissatisfaction with an existing law as a means of
influencing law reform. This can be an effective way for individuals and pressure groups to
alert the government to a need for change in the law. They can also raise awareness in the

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 community. To be effective, demonstrations need to attract large numbers of people and
positive media coverage, as this support makes members of parliament more likely to
implement law reform. They’re more likely to associate themselves with positive campaigns
that increase their popularity with voters, rather than ones that cause conflict.
Australia Day or Invasion Day?
Each year on January 26th, demonstrations take place to protest that Australia Day is held on the
anniversary of the arrival of the British, and the colonisation of Australia. Many consider this an
inappropriate and offensive day, as it commemorates a day of sorrow when Aboriginal Australians
lost their independence and sovereign right to control their land, culture and families. These
demonstrations raise community awareness for the suffering of Indigenous Australians since
colonisation, and to increase support for changing the date of Australia Day. They also seek to
influence law reform in relation to Indigenous Australians, such as creating a treaty which governs
the relationship with Indigenous Australians.

Advantages
• Demonstrations that attract large numbers
of participants can attract free positive
media attention. Members of parliament are
more likely to consider law reform with
strong community support.
• Demonstrations can gain the support of
members of parliament who want to ‘adopt
a cause’, especially one that may improve
their public image.
• Demonstrations can raise social awareness,
making members of the public think of
something for the first time. This can bring
change over time.
• An effective demonstration will focus on
something that can be directly changed.
Disadvantages
• Demonstrations can be less effective and
decrease support for law change if they
cause public inconvenience, are violent, or
breach the law. Negative media attention
may also decrease the credibility of a
demonstration and likelihood of members of
parliament supporting the cause.
• Demonstrations can be difficult and time-
consuming to organise, and attendance can
be affected by factors like location and
weather.
• Demonstrations are often single events that
mightn’t generate ongoing support.
• Demonstrations about something that can’t
be change in Australian law will be less
effective (e.g. demonstrating against Donald
Trump). However, they may still attract
attention.

• The use of the courts – individuals can influence a change in the law by taking a matter to
court. In doing this, they usually aim to prove their own claim rather than trying to change
the law, but if unclear law is clarified/established in the process, then their case has played a
part. If parliament has passed unfair/unclear law, the legislation may be challenged through
the court system in the hope a judge will interpret/clarify the meaning of the law in their
favour. However, excluding the High Court rulings in constitutional disputes, parliament may
always legislate to override court decisions. The role of the courts in influencing law reform
is also limited as they can only influence a change if a case is before them, and may only rule
on issues directly involved in that case.

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 Children in adult prisons
In 2016-17, the Supreme Court of Victoria ruled twice that detaining children in an adult prison was
a breach of human rights and unlawful. The Victorian Government transferred a group of teenagers
to Barwon prison (max security for adults) following riots at the Parkville Youth Detention Precinct.
The government claimed they were forced to temporarily house some young offenders there, in a
separate section, while it repaired the centre as other youth facilities were full. Lawyers from the
Human Rights Law Centre (HRLC) acted on behalf of the youth, claiming the government’s policy
was a gross breach of human rights and would cause physical and mental harm to the young
offenders. The Supreme Court found in favour of the youths in 2016, declaring the detainment of
children in an adult prison unlawful. However, the government avoided the ruling by reclassifying a
separate area of the prison, so it could operate as a youth justice and remand centre. The HLRC
launched another court challenge, and the Supreme Court of Victoria again ruled the detainment of
children was unlawful and the government was forced to remove the young offenders from
Barwon Prison.

Advantages
• Challenging an existing law in a higher court
can enable a vague or unclear law to be
clarified.
• Even if a court challenge is unsuccessful it
may gain media coverage, increasing
awareness of the possible need to change a
law.
• Judges are politically independent and
determine cases based on merit rather than
electoral consequences (e.g. voter support).
• Judges can rule that legislation made
outside the power of the parliament is
invalid.
• Judges’ decisions and comments made in
court can encourage parliament to change
the law.
Disadvantages
• Courts are limited in their ability to change
the law because they can only do so when a
case is brought before them/only in relation
to the issues in the case.
• Individuals can be reluctant to challenge a
case because it can be expensive and time-
consuming with no guarantee of success.
• With the exception of High Court disputes
involving the interpretation of the
Constitution, a judge-made law can be
overridden by parliament.
• Judges must wait for a party to challenge
the authority of parliament to legislate
before they can make a ruling and declare
legislation invalid.
• Judges aren’t elected so their decisions and
comments mightn’t represent the views of
the community.

14.5: the role of the media, including social media, in law reform (with examples)
The media (both traditional such as newspaper, TV and radio, and social) have an important role to
play in influencing changes in the law. The sharing allowed through web pages, blogs, videos and
more was unimaginable 25 years ago. Information can now be communicated by anyone to
potentially millions of people almost instantly with limited restrictions or censorship. This makes
social media an important way to influence law reform. Individuals and groups can use both
traditional and social media to help generate community interest in, awareness of and support for a
desired law change. The law reforms with the most community interest are the most likely to attract
the interest of parliamentarians. How the medias influence law reform:
• Social media – has the ability to create interest and raise awareness of legal issues on a
massive scale. People can share views and opinions with their whole community through
social media platforms, sites and blogs. This allows individuals, parliamentarians and groups
to communicate their opinions to a broader audience with greater speed. Images, videos
and live streaming of events can generate interest of political issues and the need for law

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 reform. Demonstrations can be captured on video to help gain support. Social media can
also be used to inform a global audience about legal issues and injustices. This can provoke
and inspire people to undertake action on global issues at a local level. Social media also
influences law reform as it allows individuals to directly access information about political
parties and politicians, gaining insight into their views and opinions on legal issues. This
ensures members of parliament are held accountable for their actions. Social media is also a
source for breaking news and announcements.

‘Chasing Asylum’
In 2016, Australian film maker, Eva Orner, produced a film called ‘Chasing Asylum’ to show and
raise awareness of the sad plight of people who’ve been forced to leave their home countries (due
to war/fear for their lives) and were seeking asylum in Australia. The film follows a group of asylum
seekers and shows the difficulties they face. It also contains footage, secretly filmed, of the poor
conditions in the Australian detention centres at Nauru and Manus Island. It was marketed as ‘The
film the Australian Government doesn’t want you to see’ and was meant to raise community
awareness of treatment of asylum seekers and pressure the Australia Government to change the
laws relating to detainment and treatment of asylum seekers. The film generated great interest in
traditional and social media. Clips circulated on social media platforms, and it was discussed on TV
and radio programs. People were encouraged on the movies website to undertake other action to
influence a change in asylum seeker laws, such as signing an online petition, writing to their local
parliamentarian and donating to a local refugee camp.
• Traditional media – generally refers to newspapers, television and radio. These were the
main ways people obtained news and information prior to the 21st century. Over half of
Australians still rely on traditional media, and a significant portion also rely on gaining news
online through apps and websites of traditional media mediums. Traditional media has an
important role in influencing law reform due to its ability to examine, discuss and inform
people of legal issues and potential changes to the law. TV programs especially provide a
forum for political parties and parliamentarians to outline their policy stance on law reform,
explain their actions and be held accountable for their views on law reform. Many programs
also investigate problems in our community to inform the public of injustices and the need
for changes in the law.
Traditional media can often present information in a biased manner, to reflect the political
interest of their owners. They may manipulate content to alter community perceptions and
discredit individuals and groups. For instance, producers can edit footage of a peaceful
demonstration to show the one negative occurrence. More broadcasting time may be given
to groups and individuals that the media company supports. The high concentration of
ownership in traditional media may also give the owners excess power and ability to
influence community views. Articles, including public opinion ones, can alert the public for
the need to change law.

Media influence in elections

Various media organisations have been accused of showing bias during federal election campaigns.
During the 2016 federal election, News Corp Australia was accused of biased anti-Australian Labor
Party reporting, aimed at ensuring the Liberal-National Coalition was re-elected. News Corp
Australia is mainly owned by News Limited, a media organisation who sell approximately 60% of
the nation’s daily newspapers. An instance of negative media coverage in News Corp publications
prior to the 2016 federal election was a front-page cover of the Daily Telegraph displaying a
cartoon of Bill Shorten (Australian Labor Party leader) being likened to Pinocchio for allegedly
telling deliberate lies to gain power.

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 Advantages
• Provide a way for individuals, organisations
and pressure groups to gain community
support for their desired law reform to
attract attention of parliament.
• Law-makers often monitor media to gauge
public opinion and public responses to
recent/proposed law reform.
• Most parliamentarians and political parties
have websites and social media accounts,
allowing them to communicate with the
public and influence change – able to inform
people.
Disadvantages
• With social media especially, information is
presented in a more visual manner,
portraying complex legal issues
simplistically. They can promote emotional
responses with little facts or knowledge.
• People placing information and opinions on
social media generally don’t follow codes of
ethics like reputable traditional media
organisations, therefore information may be
inaccurate.
• Excessive exposure to graphic images may
cause people to feel overwhelmed or be
desensitised to social and legal injustice.

14.6: the role of the Victorian Law Reform Commission and its ability to influence law reform (with
examples) and one recent example of the Victorian Law Reform Commission recommending law
reform
Members of parliament often lack the time and resources to undertake a thorough investigation of
an issues – in such situations, parliament may pass the investigation of the need for law reform to an
independent law reform body that can conduct its own investigation and make recommendations
for changes to the law. Formal law reform bodies are organisations established by the state and
Commonwealth Governments to inform them of changes in society that may require law reform.
They aim to give impartial advice and make recommendations that are practical and able to be
implemented. Parliament isn’t bound to follow such recommendations, although government is
often influenced by the reports of these committees when considering changes in the law.

The Victorian Law Reform Commission (VLRC) is Victoria’s leading independent law reform
organisation, which reviews, researches and makes recommendations to the Parliament of Victoria
about possible changes to Victoria’s law. The Victorian Parliament established the VLRC in 2001 by
passing the Victorian Law Reform Commission Act 2000 (Vic), therefore the VLRC was created by and
given power through statute. They aim to assist the Victorian Government in continuing to provide a
fair, inclusive and accessible legal system by investigating the need for change in Victorian laws and
provide impartial advice and recommendations for change. While the VLRC was created and is
funded by the Victorian Government, it’s an independent organisation that isn’t involved in the
political process or influenced by the policies of the government or political parties. The VLRC
monitors and coordinates law reform activity in Victoria. When conducting investigations, the VLRC
engages in community-wide consultations and debate to ensure their recommendations meet the
desires of the community. Section 5 of the Victorian Law Reform Commission Act 2000 (Vic) sets out
the specific roles of the VLRC:
• Inquiry – to examine and report on any proposal or matter referred to it by the Victorian
Attorney General and make recommendations to them for law reform. This includes
conducting research, consulting the community and reporting on law reform projects. Terms
of reference are the instructions given to a formal body to investigate an important matter –
they set out the precise scope and purpose of the inquiry, and the date by which it must be
completed.
• Investigation – to investigate any relatively minor legal issues that the VLRC believes is of
general concern within the community and report back to the Attorney General with
suggestions for law reform. This means that, as well as examining legal issues referred to

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 them by the Attorney General, the VLRC can also examine minor issues without a reference
if it isn’t too resource consuming. Any member of the public can suggest areas to
investigate.
• Monitoring – to monitor and coordinate law reform activity in Victoria, including making
suggestions to the Attorney-General that they refer a legal issue to VLRC for investigation.
• Education – to undertake educational programs and inform the community on any relevant
area of law relevant to its investigations or references. The VLRC has a responsibility to
deliver programs to help inform the community about its work. One way they do this is by
visiting schools throughout Victoria to talk to students about its role and past and current
projects. Also has information on its website about investigations.

In assessing the need for changes in the law, the VLRC consults with expert bodies in the area under
review, and with the general community. After receiving a reference, the general process that the
VLRC follows is:
• Staff begin to research and consult – a team is appointed (usually 2/3 staff members) who
research by looking at laws in Victoria, interstate and overseas, case studies, and talking to
those affected.
• An expert panel is formed – people with special knowledge on the relevant issues to provide
advice.
• Consultation paper and questions are published, and submissions are called for – the
consultation paper sets out the key issue and poses questions for the community.
• Consultations with affected parties and the community
• Submissions are received and considered – submissions are people’s ideas and opinions
about the law and how to improve it. Anyone can make one. All submissions are considered
by the Commission and published online.
• The commission writes a report – consider and analyse the research and input, then make
recommendations with reasoning.
• The report is delivered to the Victorian Attorney General
• The report is tabled in parliament by the Attorney General within 14 days of receiving it,
then the report is published
• The government decides on its response and whether to follow the recommendations
• Parliament decided on legislation

Medicinal cannabis
Medicinal cannabis is used only to cure or relieve symptoms of medical conditions. It comes from
the same plant that is used as a recreational drug, but certain chemicals in the plant are useful for
treating conditions such as childhood epilepsy and relieving pain from conditions such as cancer,
HIV/AIDS, and multiple sclerosis. In 2016, the Access to Medicinal Cannabis Bill 2015 (Vic) was
passed by the Victorian Parliament to allow for the lawful cultivation and manufacture of medicinal
cannabis. The VLRC undertook an investigation into medicinal cannabis after being referred by the
Attorney-General. The VLRC published an issues paper (providing background information, pros
and cons, experience of other countries, etc), held nine community-based consultations and
received 99 submissions from interested individuals, docs, health organisations and more. When
the report was tabled in parliament, they accepted 40 of the 42 recommendations made by the
VLRC to allow treatment with medicinal cannabis under exceptional circumstances. From 2017,
people would be able to be treated with medicinal cannabis.

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 Community law reform project on funeral and burial instructions
In 2016, the VLRC completely a community law reform project on Funeral and Burial Instructions in
response to a community concern. The VLRC examined during its inquiry whether the law needed
to be changed so the wishes of a deceased person regarding the rituals surrounding the disposal of
their body (e.g. funeral services) and the disposal their remains (e.g. burial or cremation) should be
legally binding. The final report made 25 recommendations, one of which being that a person
should be able to leave binding funeral and burial instructions. This is an example of an inquiry not
completed at the request of the Attorney-General.

Advantages Disadvantages
• As the government asks the VLRC to • The VLRC can only investigate issues
investigate certain areas, the government is referred to it by the government or minor
more likely to act on the VLRC’s report and community law reform issues.
recommendations. • There is no obligation for parliament to
• The VLRC can measure community views on adopt any recommendation made by the
areas of investigation by holding VLRC.
consultations and receiving public • The VLRC’s investigations can be time-
submissions. consuming and costly.
• The VLRC can investigate an area • The VLRC is limited by its resources and
comprehensively so the government can therefore can’t undertake investigations into
initiate a new law that covers the whole minor legal issues if it requires a significant
issue. deployment of resources.
• The VLRC can make recommendations on
minor legal issues without any reference
from the Attorney-General, which can lead
to important law reform.
• The VLRC is independent of parliament,
ensuring it remains unbiased.
• Statistics suggest that the VLRC is highly
influential on the Victorian Parliament. All or
some of its recommendations are adopted in
approx. 70% of cases.

14.7: the role of one parliamentary committee or one Royal Commission, and its ability to influence
law reform
The committee system is a key part of the Australian parliamentary system – it means that federal
and state parliaments have an extensive range of committees that can investigate a wide range of
legal, social and political issues and concerns and report back to parliament about the need for law
reform.
A parliamentary committee is a small group of members of parliament (government and non-
government) who consider and report on a single subject (specific issue, policy or proposed law) and
make recommendations in one or both houses. They are established under the Parliamentary
Committees Act 2003. They are often established so an issue can be examined more efficiently than
if all members of parliament were involved in the investigation. This allows members of parliament
to examine and evaluate the need for law reform, and allows a way for members of the community
to give input into issues investigated in parliament (as one of the main roles of a parliamentary
committee is to consider the views of the community, including experts, pressure groups and more).

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Parliamentary committees also allow parliamentarians to be informed before making important
decisions including whether they should support a bill. They also provide a check on government as
they can call people from government departments to give evidence and answer questions in
relation to specific areas under investigation.
There are many different types of parliamentary committees – for instance, committees can consist
of members from both houses of parliament, and may be an ongoing committee, or a temporary
one to investigate one specific issue. Despite there being different types of parliamentary
committees, they generally follow this process:
• When the parliament decides to have a committee investigate a particular issue, the
committee will be given terms of reference which specify the precise purpose of the inquiry,
the specific issues that must be investigated and the date the final report must be
completed by.
• Once terms of reference are established, the committee may use the media to publicise
their investigations and seek input via written submissions.
• Committees will usually hold formal public (or sometimes private) hearings. They will invite a
range of people (including experts in the matter and representatives from interest groups)
to provide input, give evidence and answer committee members questions. Most
committees can call certain individuals and experts (e.g. people in government departments)
to give evidence, answer questions and explain their actions. If a person refuse, they may
receive a formal reprimand or be prosecuted and receive a fine/term of imprisonment.
• Once all submissions have been received and considered, and hearings have concluded, the
committee will write a final report. This will contain recommendations for law reform or
actions and will be presented to the parliament. Generally, all submissions are made
available to the public.

The four main types of committees are:

• Standing committees – these are parliamentary committees appointed for the life of a
parliament (and are usually re-established in successive parliaments) to investigate a range
of specific issues and provide ongoing checks on government activities. They’re ongoing, not
temporary committees. For example, the Victorian Standing Committee on Legal and Social
Issues is an ongoing Victorian parliamentary committee concerned with community services,
education, gaming, health, and law and justice.
• Select committees – parliamentary committees appointed to investigate a specific issue as
the need arises. Once the inquiry is completed the committee ceases to exist. These are
made up of members from only one house of parliament. An example is the Penalty Rates
and Fair Pay committee.
• Joint investigatory committees – these are parliamentary committees appointed each
parliamentary term to examine a range of issues. They’re made up of members from both
houses of parliament. In Victoria several joint investigatory committees are appointed under
the Parliamentary Committees Act 1968 (Vic). Joint committees are usually longstanding
committee (i.e. standing committees) but can be select committees to investigate a
particular issue. An example is the Scrutiny of Acts and Regulations Committee.
• Domestic committees – parliamentary committees appointed to specifically examine issues
and matters that relate to the internal operations and practises of parliament, including
administrative and procedural matters. They’re made up of members of one house. For
example, the Legislative Assembly has a Privileges Committee who meet when they must
investigate a complaint relating to breaches of parliamentary privilege in the Legislative
Assembly.

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 Advantages
• Committees can investigate a wide range of
issues and report to parliament about the
need for law reform.
• Committees can examine issues more
efficiently (more quickly, economically and
in greater detail) than having the entire
parliament involved.
• They allow members of parliament to be
involved in investigations and gain expertise
in the area of suggested law reform.
• Committees allow members of parliament to
give input and have their views considered.
• The final reports prepared by committees
enable the parliament to be more informed
before deciding whether to support a bill.
Disadvantages
• Due to limited resources a committee can’t
be forced to examine all worthy issues and
concerns.
• Committees investigation can be timely and
costly.
• The large number of committees and the
time commitment involved may deter some
members of parliament from sitting on
committees.
• Members of the governing party may
dominate the composition and findings of a
committee or use them as a distraction to
avoid other controversial legislation or
parliamentary issues.
• There is no obligation on parliament to
support or introduce law reform suggested
by a committee, although this may be more
likely given a committee is made up of
parliamentarians.

14.7: one recent example of a recommendation for law reform by one parliamentary committee or
one Royal Commission

The Legal and Social Issues Committee inquiry into safe injection clinics
In 2017 the Drugs, Poisons and Controlled Substances Amendment (Pilot Medically Supervised
Injecting Centre) Bill 2017 (Vic) was introduced in the Legislative Council as a private members’ bill
by Fiona Patten (leader of the Australian Sex Party) and proposed the allowance of a medically
supervised drug injecting centre to be opened in Richmond on a trial basis for 18 months. This was
an attempt to control drug use and save lives. While this is a controversial suggestion, there is
evidence to suggest that a safe injection room saves lives, prevents the spread of diseases like HIV,
promotes safe disposal of needles and encourages rehabilitation. The bill was referred to the
Committee for investigation. They received 49 submissions, conducted 1 public hearing, visited the
supervised injecting centre in Kings Cross and visited North Richmond. The committee had 11
findings – finding 8 found that medically supervised injecting centres improve the health of
injecting drug users and reduce signs of drug use in surrounding streets. Martin Foley (Minister for
Mental Health) introduces the Drugs, Poisons and Controlled Substances Amendment (Medically
Supervised Injecting Centre) Bill 2017 on 31 October 2017, which was similar to the original bill.
This bill eventually passed.

14.9: the ability of parliament and the courts to respond to the need for law reform
Parliament, as the supreme law-making body, is able to make new laws and change existing laws in
response to changing needs and demands. Features of parliament that enable them to respond to
the need for law reform:
• It is an elected and supreme law-making authority – they can make and change any law
within their jurisdiction or area of law-making power. Parliament has overriding authority
when exercising the law-making powers given to them. Parliaments aren’t bound by

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 previous Acts of Parliament and can change or amend existing law. Furthermore, whole
courts can change the meaning of the law through their interpretation of the words and
phrases in an Act of Parliament, parliament may abrogate these laws (or codify them).
Parliament can’t change laws considered to be ultra vires or outside their law-making
powers. Parliament is elected to represent the people; however, this may make them
hesitant to change laws that are controversial. They can also be limited by finance.
• Parliament can investigate the need for law reform – it can thoroughly investigate the need
for law reform and measure public support. It can also investigate and change whole areas
of law. For instance, they can establish royal commissions and parliamentary committees to
investigate issues. These bodies can gain community input. Also, as committees are usually
made up of members of many parties, their findings usually have bipartisan support.
However, the committees and commissions can be time consuming and aren’t binding.
Parliament may also obtain recommendations from independent law reform bodies like the
VLRC.
• Parliament can respond quickly – they can respond to the need for law reform fairly quickly,
especially compared to courts, as they don’t need to wait for an issue to be brought before
them. Parliament can also change law in anticipation of future needs. Parliament can
delegate its law-making powers to subordinate authorities (e.g. local councils) to make rules
and regulations on their behalf (secondary/delegated legislation). Other than local councils,
subordinate authorities aren’t elected bodies and may not listen to the views of their
community as they don’t face the threat of not being re-elected. The process of changing a
law through parliament can be time consuming, as a proposal must pass several stages of
discussion and debate in both houses with limited sitting days. Hostile upper house and
minority government scenarios can also make passing bills tricky. Finally, sometimes the
need to change law can occur so rapidly that parliament can’t keep up – for instance, the
science/technology/medical advancements occur so quickly that the government can’t
investigate the need for change in the law and gather community opinion fast enough.
Advantages Disadvantages
• Parliament is an elected supreme law- • Parliament is not able to change law if it is
making body with the power to make and ultra vires or outside their law-making
change any law within their jurisdiction. powers.
• Parliament can make and change laws as the • Members of parliament may be reluctant to
need arises to ensure the law reflects the legislate in areas with conflicting community
changing needs, views and values of society. views.
• Parliament can ask the VLRC to establish • Reforming the law can be time-consuming
committees and royal commissions to (must pass multiple stages per house) and
thoroughly investigate the need for a change are expensive.
in the law. • Parliament may abrogate an independent
• Parliament can abrogate common law. and valid common law to gain political
• Parliament can respond quickly to the needs advantage and voter popularity.
for law reform as they don’t need to wait for • Legislative reform can be obstructed if the
an issue to be brought before them. government doesn’t have a majority in the
upper house or have a minority government
and doesn’t have the support of the
crossbench.

Features of the courts that enable them to respond to law reform:

• Courts can make law where none exists and interpret legislation – through statutory
interpretation (judges giving meaning to words or phrases in an Act of Parliament) or
establishing law in areas where none exists. However, parliament can always abrogate these
laws. Judges may be reluctant to change law, preferring to leave the law-making to

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 parliament (e.g. Trigwell). Courts ability to change the law is limited as they must wait for a
case to be brought before them. However, even if a court challenge is unsuccessful it may
gain media attention.
• Judges make decisions without fearing the loss of voter support – judges are politically
independent and may be more willing to make a controversial ruling that changes the law
then members of parliament who may fear electoral backlash. However, judges still need to
wait for a case to come before them to be able to make a ruling, and judges are restrained
by considering the legal issues in dispute.
• Judges can declare legislation invalid if it was made ultra vires – the courts can respond to
the need for law reform by declaring legislation invalid if it has been made ultra vires or
beyond the law-making powers of the parliament. However, the courts must wait for the
relevant legislation to be challenged in the courts.
• Courts can highlight a problem and raise community awareness about the need for change –
this can occur when a court makes a ruling that generate community controversy or
highlights a problem that requires parliaments intervention.
Advantages Disadvantages
• Courts can make law where none exists and • Judges may be reluctant to change the law,
give meaning to unclear legislation. preferring to leave it to parliament.
• Decisions and comments made by judges • Judges in superior courts can only make law
can indirectly influence the parliament to when a case is brought before them and in
change the law by enshrining court relation to the issues in the case.
decisions. • Judges aren’t elected by the people and may
• Judges are independent from the parliament make decisions that don’t reflect the views
and can make decisions without fearing the and values of the community.
loss of voter support. • Some judges can adopt a more conservative
• Judges can declare legislation invalid if it was approach and more narrowly interpret
made ultra vires. legislation in cases where their decision will
• Courts can make a ruling that highlights a lead to major or controversial law change.
problem and raise community awareness for • Parliament may abrogate common law.
the need for law reform.

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 Key Skills
AOS 1:

• define and use legal terminology

• discuss, interpret and analyse legal principles and information
• explain the rights of an accused and of victims in the criminal justice system
• explain the purposes of committal proceedings and the roles of institutions available to assist an
accused
• explain the reasons for the Victorian court hierarchy in determining criminal cases
• discuss and justify the appropriateness of the means used to determine a criminal case
• discuss the responsibilities of key personnel in a criminal trial
• discuss the ability of sanctions to achieve their purposes
• discuss recent reforms and recommended reforms to the criminal justice system
• evaluate the ability of the criminal justice system to achieve the principles of justice
• synthesise and apply legal principles and information to actual and/or hypothetical scenarios

AOS 2:

• define and use legal terminology

• discuss, interpret and analyse legal principles and information
• analyse factors to consider when initiating a civil claim
• explain the purposes of pre-trial procedures, using examples
• explain the reasons for the Victorian court hierarchy in determining civil cases
• discuss and justify the appropriateness of institutions and methods used to resolve a civil
dispute
• discuss the responsibilities of key personnel in a civil trial
• discuss the ability of remedies to achieve their purposes
• discuss recent reforms and recommended reforms to the civil justice system
• evaluate the ability of the civil justice system to achieve the principles of justice
• synthesise and apply legal principles and information to actual and/or hypothetical scenarios

AOS 1:

• define and use legal terminology

• discuss, interpret and analyse legal principles and information
• compare the constitutional law-making powers of the state and Commonwealth parliaments,
using examples
• discuss the significance of section 109 of the Australian Constitution
• evaluate the ways in which the Australian Constitution acts as a check on parliament in law-
making
• analyse the ability of the Australian people to protect or change the Australian Constitution
• discuss the significance of High Court cases involving the interpretation of the Australian
Constitution
• discuss the impact of international declarations and treaties on the interpretation of the external
affairs power
• synthesise and apply legal principles to actual scenarios

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AOS 2:

• define and use legal terminology

• discuss, interpret and analyse legal principles and information
• discuss the factors that affect the ability of parliament and courts to make laws
• analyse the features of the relationship between parliament and courts
• explain the reasons for law reform, using examples
• analyse the influence of the media, including social media, in law reform, using examples
• discuss the means by which individuals can influence law reform, using examples
• evaluate the ability of law reform bodies to influence a change in the law, using recent examples
• evaluate the ability of parliament and the courts to respond to the need for law reform
• synthesise and apply legal principles to actual scenarios

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