QCAA Legal Studies Law reform within a dynamic society

One strength of a royal commission is that it is an effective way to gauge community opinions and measure the views and values of the people. This is evident through the royal commission on family violence initiated by Alex Chernov as it received 1000 submissions from individuals who were interested in the matter and organisations with expertise on family violence such as the Australian Law Research Centre. As a result royal commissions and their suggestions regarding possible law reform are informed, credible and knowledgeable as a wide range of perspectives have been taken into account and those who have expertise in the field have been consulted as royal commissions have coercive powers and can force individuals to give their opinion.

However one weakness of a royal commission is that parliament is under no compulsion or obligation to accept suggestions or the verdict regarding law reform and can easily ignore it if they don’t agree wasting the time and costs of this research body. But parliaments request the use of royal commissions which means that they are more likely to accept their propositions. This is demonstrated in the royal commission on family violence where the parliament accepted all 227 recommendations including increased establishment of family violence courts and increased support hubs in the community for victims – establishing the 2016 Family Violence Implementation Monitor to ensure that the parliament continue to implement the suggestions.

One role of the VLRC in this case is to conduct thorough investigation into the issue of access for deaf, blind or vision or hearing impaired people. The VLRC would likely receive public submissions relating to this area of law, as well as consulting with experts, such as judges or experts on juries. This investigation would inform the VLRC of the impact of the law should law reform allow more inclusive juries.

Another role of the VLRC would be to make recommendations to the Victorian Parliament following their investigation. These recommendations would include how the law would best be reformed in relation to ‘Inclusive Juries’ to increase access to jury trials for hearing or vision impaired people.

The VLRC has many strengths and weaknesses in its ability to influence a change in the law, as seen by the VLRC’s investigation into the committals system.

One strength is that the VLRC holds consultations and receives submissions from the community during their investigations. As Parliament must represent the people, if the VLRC report suggests that the majority of the community believes there is a need for the reform, it is likely to implement changes such as a more inclusive jury that is representative of the community.

However, a weakness is that VLRC’s recommendations do not need to be implemented by the Parliament. Parliament is under no obligation to implement law reform, and the ability of VLRC to change the law for jurors who are hard of hearing, deaf or blind may be limited. Though the VLRC had 51 recommendations to make committals more efficient and reduce trauma on victims and witnesses, the Parliament has not implemented law reform yet. The test for committals to be abolished and replaced with a discharge application, one of the recommendations, may not be implemented as a result.

Another strength of VLRC is that it receives a term of reference from the Attorney-General in order to begin its investigations. This is a strength as Parliament is likely to implement the change as they already believe there is a need for law reform.

However, this can also be seen as a weakness as the VLRC is reliant on Parliament in order to begin its investigations, though it is able to investigate small community based projects.

Overall, there are a number of strengths and weaknesses of the VLRC in its ability to influence a change in the law.

THIS IS AN INTRO OF A HIGH-SCORING RESPONSE:

This statement is true to a moderate extent. Whilst factors such as costs may inhibit the principles of equality and access, pre-trial procedures are aimed to promote the principle of fairness, and reforms to the system may assist in achieving the principles of justice. Furthermore, alternative methods of dispute resolution offer means other than the courts which may improve these principles.

The costs that must be considered when initiating a civil claim are highly significant, and as such, may be viewed as inhibiting the principle of access. Whilst the courts offer a means by which parties may resolve disputes, plaintiffs are often dissuaded from pursuing their rights by the exorbitant costs of legal representation, filing fees and hearing fees, as well as potential jury or expert witness fees. This inhibits these parties’ ability to access justice, and is exacerbated by the potential for an adverse costs order if their claim is unsuccessful.

Royal Commissions like the Yoorok Justice Commission are more able in influencing legislative reform because of their community inquiry function. Members of the Yoorok Justice Commission can meet with members across Australia and various stakeholders gain an insight into the systemic injustices faced by First Nations people. This can be done by meeting with Elders in the community and seeking information via group yarning circles that can help them create a report with all of their recommendations. One recommendation the Yoorok has made is improving the criminal justice system for Aboriginal and First Nations children as they are facing such injustices in the system. By gathering such first hand data, it can make Parliament more likely to change the law to address these concerns to gain electoral support.

The role of VLA and Victorian CLCs is to provide free legal information and advice. VLA provides free legal information and advice and can assist those facing charges for not paying their toll fines over the phone, on their website or in person and assist individuals by providing information on the procedures and steps required.

CLCs also provide free legal information over the phone, in one of their centres or through their published works, such as the Fitzroy Legal handbook, which can inform those facing charges in the Magistrates’ Court on the steps and procedures of court.

One reason why the toll road debt recovery system may not achieve fairness is because it may introduce delays in the wider courts system. By hearing lots of minor claims with individuals charged with not paying road tolls in the Magistrates' Court, this prevents the Magistrates' Court from hearing more pressing criminal claims. It takes up a great deal of time, which limits fairness by preventing accused persons from having access to the right to trial without unreasonable delay. This is a right enshrined in the Charter of Human Rights and Responsibilities Act. This limitation is particularly salient given there is a proposed change to alter road tolls to become a civil matter, enabling individuals to resolve their matter directly with Citylink or Eastlink rather than through the courts, which may allow for fairer outcomes and free up court resources and time.

One reason why the toll road debt system may be limited in achieving equality is because the current system disproportionately affects those living in the outer suburbs. Because individuals living in the outer suburbs are more likely to need to use the tollways on a daily basis to travel long distances to get to work, they are disproportionately punished by the current toll road debt system. By recording criminal convictions and potentially sentencing offenders to jail time for failing to pay these road debts, their disadvantage can be perpetuated. As expressed by the VLRC and CLCs, a change to this system could prevent the unequal outcomes for people that is a challenge with the current regime by penalising individuals who are already disadvantaged by their physical location, allowing for equality. This is because these groups are more likely to be financially unable to pay their debts, rather than simply choosing not to.

Damages are more appropriate in the recovery of road toll debt than fines are, and certainly more appropriate than imprisonment.

Firstly, as the debt collector is a privately owned company, it is more appropriate that they utilise the civil system- as other privately owned companies must, and therefore receive damages, rather than the penalty of a fine being imposed. Damages still allow the debt to be recovered, and thus ensures tolls are being paid.

However, in the civil system, if the defendant cannot afford damages, it is difficult for the debt collector to enforce them, and thus may limit the ability of the road toll company to recover the debt. Additionally, if the defendant is overseas or unreachable, the damages also may not be paid. Therefore, this may limit the appropriateness of damages, and mean another option- such as a fine, where a long-term payment plan could be installed, and the payment is more enforceable, may be more appropriate.

Imprisonment may be effective at deterring others from not paying, and deterring the offender from avoiding tolls again, thus minimising the need for the company to avoid debt, it is not as appropriate as damages. This is because imprisonment is the 'sanction of last resort', and used to punish the offender for serious crimes. Given this is against a privately owned company, and there is no damage to property or person, it is not an extremely serious crime, therefore meaning imprisonment is less appropriate than damages.

Thus overall, damages are the most appropriate method of road toll debt recovery given this should be a civil issue, because it involves a privately owned company, although there are some limitations to damages enforceability.

The current toll road debt recovery system has a negative impact on the already overburdened criminal system, thus reducing access.

Currently, the criminal justice system is overburdened, causing delays in hearings and trials. Cases may be delayed by anywhere from a few weeks, to many months. These delays impact negatively on the accused, given they must retain legal representation for an extended period of time, and there is a long period of limbo for both the accused and the victim where they are unaware of the outcome of the case. This severely reduces access to a timely trial, and may mean an accused cannot afford legal representation. Moreover, delays decrease the reliability of evidence, and first hand witness accounts, which can subsequently reduce access to a fair trial. The current road toll debt recovery system substantially contributes to this issue given the fines matters are heard in courts, even though they ‘do not involve risks to public safety’, and instead just ‘[fill] up the courts’. Therefore, the current system reduces access by increasing delays.

However, there are a number of other issues also contributing to delays and the overburdening of courts, such as lengthy committal proceedings which many experts believe to be unnecessary, meaning that toll road debt recovery is not the only factor that contributes to time in the courts.

The reforms by some CLC's and VLA's recommended only using the criminal justice system for the specific purpose of ‘punishing … and deterring the most serious offenders’, which would significantly reduce the burden of cases on the criminal justice system. Subsequently, this would increase access by reducing the delays in cases being heard, allowing more access to a timely trial and allowing for greater access to being able to afford legal representation.

Thus, the reform proposed would increase access by reducing the burden on the courts system.