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Victorian law reform: From minor to major

Victorian law reform: From minor to major

By VLRC

Legislation Practice & Procedure 

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Snapshot
  • Anyone can make a proposal for a community law reform project.
  • The law regarding funeral instructions was developed through the common law in 19th century England.
  • The VLRC will deliver its report on funeral and burial instructions in September 2016.

A community law reform proposal can lead to inquiries that attract widespread public interest.

One of the functions of the Victorian Law Reform Commission (VLRC) is “to examine, report and make recommendations to the Attorney-General on any matter that the Commission considers raises relatively minor legal issues that are of general community concern” (Victorian Law Reform Commission Act 2000 s5(i)(b)).

Minor means of limited size and scope. Any community member can make a proposal for a community law reform project. Sometimes these proposals lead to inquiries that relate to many aspects of our complex society.

In 2015, the VLRC was contacted by a woman who was upset that her mother-in-law had not been buried according to the wishes she expressed before her death. Instead of having her ashes returned to her birthplace in England after cremation, the ashes were buried elsewhere, contrary to her wishes. This led to a dispute among the surviving family members that caused considerable distress. The VLRC was asked, why is it possible for a person’s wishes about their own disposal to be ignored?

The VLRC decided to undertake funeral and burial instructions as a community law reform project. The wishes of a person regarding their own funeral and burial are not legally binding, a fact that is surprising to many people. Instead, it is the executor (if there is a will) or the likely administrator (if there is no will) who has the power to decide what happens to the body. This involves matters such as whether the body is buried or cremated, whether there is a religious or non-religious service, and what happens to the ashes after cremation.

As the VLRC explored further, many problematic aspects of the issue came to light. The law regarding funeral and burial instructions was developed through the common law in 19th century England, at a time when it was assumed that everyone would receive a Christian burial. Such an approach is not appropriate for 21st century Australia, a multicultural society including people of many faiths and none, with a rich variety of customs and practices. These days, people have a much stronger sense of individual autonomy, and are more likely to want a burial and funeral that appropriately reflects their lifestyle.

The VLRC consulted widely, with groups and individuals representing many cultures and faiths, Indigenous people, and members of the LGBTIQ community. It also received more than 300 responses to an online survey and the project received considerable media attention, reflecting the widespread public interest in this topic.

The VLRC will deliver its report on funeral and burial instructions by the end of September 2016. The project is evidence of the fact that important matters, which we would otherwise be unaware of, emerge from concerns raised by members of the public.

In 2013 the VLRC undertook a community law reform project on birth certificates and birth registration. This had been referred to us by the Castan Centre for Human Rights Law, which was concerned that a substantial number of Indigenous people did not have birth certificates and some had not had their births registered. This led to many problems later on in life, as a birth certificate is a foundational identity document. In one case, a leader of a youth group who wanted to take her group overseas on a leadership program discovered that she could not get a passport because her own birth had never been registered, a fact of which she was unaware.

The VLRC found that the issue was not limited to any one cultural group, but affected various groups throughout Victoria, including the children of family violence and sexual assault victims who were afraid or unable to place the father’s name on the birth certificate and so did not register their child’s birth. The VLRC accordingly made recommendations to make it easier and cheaper for people to register the birth of their babies, or to obtain a birth certificate later in life if necessary.

The VLRC highly values its community law reform program, which is one way community members can raise specific legal problems they believe need to be addressed. Although the VLRC can only take on a small number of proposals, it welcomes proposals for law reform projects of general community concern, which can be submitted through its website at http://lawreform.vic.gov.au/suggest-clr-project. Those with suggestions are encouraged to call the VLRC ph 03 8608 7800 to discuss their idea before making a formal proposal.

This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.


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