Scrutiny of Acts and Regulations Committee
Alert Digest No 12 of 2008
The Bill was introduced into the Legislative Assembly on 30 July 2008 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 18 August 2008 and made the following comments in Alert Digest No. 10 of 2008 tabled in the Parliament on 19 August 2008..
Parliamentary Committees Act 2003, s. 17(a)(iv) – Unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000 (the ‘IPA’) – Registration at VCAT of conciliation agreements concerning complaints of breach of privacy
The Committee notes the submission made by the Office of the Victorian Privacy Commissioner concerning the possible effect of the operation of new section 104S in respect to the conciliation provisions in section 35 of the IPA.
In respect to a breach of privacy complaint section 35 of the IPA allows parties to register a certified record of conciliation (an agreement) with the VCAT. The tenure of the submission is that new section 104S (as currently drafted) excludes the conciliation mechanism provided in section 35 of the IPA and therefore may have an adverse impact on personal privacy.
The Committee resolved to forward the Commissioner’s submission to the Minister for further advice from the Minister.
Privacy – Name of prisoner and fact of award of damages must be published in newspapers – Whether arbitrary – Whether reasonable limit
The Committee will write to the Minister seeking further information as to whether or not section 104Y will override contrary court orders or laws.
Pending the Minister’s response, the Committee refers to Parliament for its consideration the following questions:
1. Whether or not new section 104Y, by making it mandatory for the Secretary to publish the fact that a named prisoner has been successful in a significant compensation claim against the state, regardless of the circumstances of the prisoner’s crime and the likelihood of any claims by victims, limits the prisoner's Charter right not to have his or her privacy arbitrarily interfered with.
2. If so, whether or not new section 104Y is a reasonable limit on the right to privacy according to the test set out in Charter s. 7(2) and, in particular, whether giving the Secretary a discretion to advertise in newspapers would be a less intrusive way of achieving the purpose of the section.
Thank you for your letter of 19 August 2008. I note your concerns and will address each of those matters in turn.
Office of the Victorian Privacy Commissioner Submission
In the submission of the Office of the Victorian Privacy Commissioner (OVPC), the primary concern was the impact of clause 104S and whether it excludes prisoners from the complaints mechanism under the Information Privacy Act 2000 (IPA) and therefore has an adverse impact on personal privacy.
Clause 104S provides that 'An agreement between the State and a prisoner for the payment of damages for a civil wrong is of no effect until it has been approved by a court'. A court includes a tribunal. Under section 35 of the IPA, a party to an agreement reached by conciliation may lodge that agreement with the Victorian Civil and Administrative Tribunal (VCAT) for registration.
The OVPC contends that the approval process is significantly different from the registration process currently provided for under the IPA and that before 'approving an agreement' the Tribunal (VCAT) will seek to assure itself of the validity of the basis upon which the agreement was reached. Therefore the Tribunal would need to adduce evidence to satisfy itself to the validity of the settlement.
The requirement to obtain court approval under the Bill does not interfere with the ability to register an agreement. Instead, it is intended that in registering an agreement, the Tribunal will, in addition to its obligations under section 35 of the IPA, have regard to the relevant clauses of the Bill which require it to approve the agreement insofar as it includes the payment of monetary damages. The approval process is intended to ensure that funds available for a prisoner compensation quarantine fund are appropriate in the circumstances.
The clause is not intended to alter the ability of parties to reach a settlement under other legislation. The intention is to ensure the proportions of specific components within a settlement are appropriate. Approval by a court or tribunal will prevent a settlement agreement from understating the amount to be made available for the purposes of the Bill.
Furthermore, the Bill sets a threshold amount of $10,000 and therefore only conciliation agreements in excess of this amount will require the approval of VCAT.
As the Bill does not affect the operation of the IPA, other than to require settlement agreements that include the payment of monetary damages to be approved, it does not adversely impact on personal privacy.
Operation of Clause l04Y
This clause provides for the Secretary to the Department of Justice (the Secretary) to publish a notice advising of an award of damages to a prisoner as soon as practicable after the amount of damages is paid to the Secretary to be placed in the fund. The clause outlines the specific details to be placed in the notice including:
Clause 104Y is intended to allow the publication of limited matters despite a pre-existing prohibition arising from an award of damages made under a settlement agreement, court order or a legislative provision.
1. Whether or not new section 104Y, by making it mandatory for the Secretary to publish the fact that a named prisoner has been successful in a significant compensation claim against the state, regardless of the circumstances of the prisoner's crime and the likelihood of any claims by victims, limits the prisoner's Charter right not to have his or her privacy arbitrarily interfered with.
The purpose of the Bill is to provide victims and others with an opportunity to seek and enforce civil remedies. The public notice requirement in the Bill is important as it is not always possible to identify all of the victims of a prisoner. Some victims might never report matters to the authorities, other victims might move between jurisdictions. It is therefore important to advertise the availability of funds in an attempt to ensure that all victims who might consider civil action have an opportunity to do so. The public notice will only include information of a general nature and victims will have to satisfy further requirements under clause 104ZA before more detailed information is provided by the Secretary. Further information is provided by the Secretary for the purpose of or in connection with the taking of legal proceedings by the victim against the prisoner concerned.
The definition of victim is purposely very broad and is not linked to a specific incident or offence. It is important to note for the purposes of bringing a civil claim, the existence or absence of a criminal conviction is not necessarily determinative. In light of this it is difficult to understand how the Secretary could be satisfied that all possible victims of a prisoner are aware of the information that will be published publicly. The public notice procedure ensures a fairer method of notifying those victims who might act on the information as well as provide a greater degree of certainty when the Secretary considers payments out of a fund.
The Bill prohibits unauthorised and inappropriate disclosures of a prisoner's information. As outlined in the Statement of Compatibility, clause 104ZD creates offences where a person to whom information is disclosed under the provisions discloses the information to any other person except for the purposes, or in connection, with the taking and determining of legal proceedings by the person against the prisoner concerned; and where a person who becomes aware of information disclosed to a person under the Bill uses that information or discloses it to any person. The creation of these offences is sufficient to protect the disclosure of information from being used inappropriately.
Section 13 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) provides that a person has the right not to have his or her privacy, family, home, or correspondence unlawfully or arbitrarily interfered with. This right is relevant in situations involving the disclosure of private information. The right only proscribes interference where that interference is unlawful or arbitrary.
An interference with privacy will not be unlawful provided it is permitted by law, is certain, and is appropriately circumscribed. Furthermore, interference will not be arbitrary provided that the restrictions on privacy are reasonable in the particular circumstances. The public notification amendments meet the requirements as proscribed under the Charter and when considered in this light, the Bill does not unlawfully of arbitrarily interfere with a prisoner's privacy.
2. If so, whether or not new section l04Y is a reasonable limit on the right to privacy according to the test set out in Charter s.7(2) and, in particular, whether giving the Secretary a discretion to advertise in newspapers would be a less intrusive way of achieving the purpose of the section.
As outlined above, the Bill does not unlawfully or arbitrarily interfere with a prisoner's privacy. The Bill seeks to rebalance the rights between prisoners and their victims. It does so in a way that is appropriate having regard to the matters in section 7(2) of the Charter. In balancing rights, the Bill does so in the least restrictive manner to achieve its purpose of giving victims and others the opportunity to seek and enforce civil remedies.
Bob Cameron MP
10 September 2008
The Committee thanks the Minister for this response.
The Bill was introduced into the Legislative Assembly on 30 July 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 18 August 2008 and made the following comments in Alert Digest No. 10 of 2008 tabled in the Parliament on 19 August 2008.
Errors in second reading speech
The Committee notes that Second Reading Speech remarks:
The Committee observes that clause 6, inserting a new s. 4E(b)(ii) into the County Court Act 1958, also excludes offences of breaching a family violence intervention order and other offences arising out of such breaches from the Koori Court division’s jurisdiction.
The Committee also notes that the Second Reading Speech remarks:
The Committee observes that clause 6, inserting a new s. 4E(c), requires that ‘the defendant pleads guilty to the offence’ and therefore does not extend the jurisdiction of the Koori Court division to offenders who are ‘found guilty’.
The Committee will write to the Minister concerning these errors in the Second Reading Speech.
Equal protection against discrimination – Compelled guilty plea – Sentencing process to assist a group disadvantaged by discrimination – Exclusion of sexual and family violence offenders – Requirement of guilty plea – Whether reasonable limit
Charter s. 8(3) provides that everyone is entitled to ‘equal and effective protection against discrimination’. Charter s. 8(4) provides that measures to assist ‘groups of persons disadvantaged because of discrimination’ are not discrimination for the purposes of the Charter. Charter s. 25(2)(k) provides that all criminal defendants are entitled ‘to not be compelled to confess guilt’. Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.
The Committee notes that clause 6, inserting a new s. 4E(a) into the County Court Act 1958, restricts access to the Koori Court division of the County Court to criminal defendants who are Aboriginal.
The Statement of Compatibility remarks:
Whilst the Committee considers that new s. 4E(a) falls within the exception contained in Charter s. 8(4), the Committee observes that because the Koori Court division of the County Court is measure to redress discrimination against Aboriginal persons, Charter s. 8(3) requires that all Aboriginal persons must be given ‘equal and effective protection’ from this discrimination.
The Committee also notes that clause 6, inserting new ss. 4E(b) and 4E(c), excludes sexual offenders, certain family violence offenders and people who plead not guilty from the jurisdiction of the Koori Court division. The Committee considers that clause 6 may engage the Charter right of such offenders to ‘equal’ protection against discrimination. The Committee observes that the Statement of Compatibility does not address the compatibility of new ss. 4E(b) and 4E(c) with Charter s. 8(3).
The Committee also considers that new s. 4E(c), by barring defendants who plead not guilty from accessing the Koori Court division, may engage Aboriginal County Court defendants’ Charter right to not be compelled to confess guilt.
The Statement of Compatibility remarks:
While the Committee accepts that new s. 4E(c) is compatible with the Charter right to be presumed innocent, the Committee is concerned that requiring Aboriginal County Court defendants to choose between contesting their charge and utilising a sentencing system designed to assist them against discrimination may place pressure on them to plead guilty, potentially limiting their Charter right to not be compelled to plead guilty.
The Committee considers that the compatibility of new ss. 4E(b) and 4E(c) with the Charter may depend on their satisfaction of the test for limiting Charter rights in Charter s. 7(2) Whilst the Committee accepts that it is appropriate to limit the availability of the Koori Court process to offenders who can be suitably dealt with under that process, the Committee is concerned that an automatic exclusion of entire categories of offenders may not be a ‘reasonable limit’ that is ‘demonstrably justified’. For example, some pleas of ‘not guilty’ may co-exist with remorse and acknowledgement of responsibility, such as where the offender only contests an element of aggravation (e.g. whether his or her admitted conduct caused ‘serious injury’, rather than mere ‘injury’.) For a holding by a Canadian Court that an indigenous sentencing procedure can, in rare cases, be successfully applied to an offender who pled not guilty to a sexual offence against his spouse, see R v Taylor (1997) 122 CCC (3d) 376.
The Committee notes that new s. 4E(e) provides that the Koori Court division can only hear matters where it ‘considers that it is appropriate in all the circumstances that the proceeding be dealt with.’ The Committee observes that this section may allow the Koori Court division to appropriately limit its jurisdiction to suitable candidates without the need for blanket rules excluding entire categories of offenders.
I write in reference to the Scrutiny of Acts and Regulations Committee (the Committee) in Alert Digest No. 10 of 2008 regarding the County Court Amendment (Koori Court) Bill 2008 (the Bill).
The Alert Digest report makes a number of observations on the Bill, which I have endeavoured to address in the attached paper.
If the Committee requires clarification of any of the matters raised in the paper, please do not hesitate to contact me or Ruth Andrew of the Courts and Tribunals Unit, Department of Justice (9603 9219).
ROB HULLS MP
COUNTY COURT AMENDMENT (KOORI COURT) BILL 2008
ATTORNEY-GENERAL'S RESPONSE TO ISSUES RAISED BY THE SCRUTINY OF ACTS AND REGULATIONS COMMITTEE
The County Court Amendment (Koori Court) Bill 2008 (the Bill) was introduced into Parliament on 30 July 2008 to:
The issues raised by the Scrutiny of Acts and Regulations Committee (the Committee) in the extract from Alert Digest No. 10 of 2008 (the Digest) are directed at perceived errors in the Second Reading Speech and whether the Bill limits the right of Aboriginal offenders to equal protection against discrimination as contained in the Charter of Human Rights and Responsibilities Act 2006. A detailed response to the issues raised by the Digest is provided below.
2. ERRORS IN THE SECOND READING SPEECH
2.1 Matters referred to Parliament for its consideration
The Committee correctly identifies that the Koori Court Division will hear all criminal offences in the County Court with two exceptions – sexual offences and breaches of intervention and interim intervention orders. However, the Second Reading Speech only makes reference to one of those exceptions - sexual offences.
The decision not to refer to the second exception – breach of intervention and interim intervention orders, was made for brevity and recognises that these exceptions continue the current policy and practice in the Koori Court division of the Magistrates' Court.
The exception is very clearly stated in section 4E(b)(ii) and accompanying Explanatory Memorandum and thus is not open to any ambiguity that would require reference in the Second Reading Speech for assistance with statutory interpretation.
The reference to section 4E(c) relates to defendants being heard at first instance. The particular reference in the Second Reading Speech relating to 'found guilty' applies to the appellate aspect of the Koori Court division. This is a reference to the possibility that an appellant may have been found guilty and is appealing a sentencing order made by the Magistrates' Court sitting other than the Koori Court division of that court (section 4D(1)(b)). Sections 4D and 4E relating to appeals are read together.
3. EQUAL PROTECTION AGAINST DISCRIMINATION
The Committee refers to Parliament for its consideration the following questions:
1. Whether of not clause 6, inserting new ss. 4E(b) and 4E(c) that exclude sexual offenders, family violence offenders and offenders who pled not guilty from the Koori Court's division's jurisdiction, limits the Charter right of Aboriginal offenders to equal protection against discrimination?
Section 8(3) of the Charter provides that' every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination'. Discrimination is defined in section 3 of the Charter by reference to the Equal Opportunity Act 1995. Direct discrimination occurs where a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances. The relevant attributes are listed in the Equal Opportunity Act 1995.
The Bill does not limit the Charter right of Aboriginal offenders to equal protection against discrimination.
As you have noted, the Koori Court model is targeted only at Indigenous offenders, and the Court's jurisdiction will exclude people who do not plead guilty, and those charged with sexual offences and breaches of intervention or interim intervention orders. This limited jurisdiction does not draw distinctions between groups of Aboriginal offenders based on attributes set out in the Equal Opportunity Act 1995.
Differential treatment of persons within a group of people with a particular attribute depending upon whether they have pleaded guilty or the nature of their offence might raise a question as to whether the differential treatment of non-eligible defendants amounts to treating this group less favourably in the same or similar circumstances so as to amount to discrimination ('intra-attribute discrimination'). However, these defendants are not in the same or similar circumstances as those offenders who plead guilty to non-sexual or non-family violence offences.
A guilty plea is a fundamental aspect of the Koori Court model, based on the Magistrates' Koori Court model already in operation. For the Aboriginal Elder or Respected Person to have a significant participatory role in the plea discussion in the Koori Court division, the defendant must be willing to acknowledge their guilty plea and address their offending behaviour with the support of appropriate court ordered services.
The defendant (or appellant) must be receptive to the cultural knowledge and influence that an Aboriginal Elder brings to the County Court during the plea discussion. This cultural knowledge and understanding of a defendant's behaviour reinforces how the behaviour impacts on the Koori community and ultimately contributes to the lower recidivism rates demonstrated by Koori defendants who have participated in the Koori Court Division of the Magistrates' Court.
The influential cultural role that Aboriginal Elders and Respected Persons play within the Koori Court model is essential to its success. Sexual offences and offences for breaches of an intervention or interim-intervention order contain sensitive, highly emotional and complex elements and are therefore considered inappropriate for Aboriginal Elders or Respected Persons to participate in. It would be difficult for Aboriginal Elders or Respected Persons to be exposed to the sensitive details of sexual offence or family violence cases, within a court setting, and then have to participate in their respective communities where defendants and their families are well-known to them. It is for these reasons that a clear policy distinction is drawn between those Indigenous defendants who plead guilty and those who plead guilty to a sexual offence or a breach of an intervention or interim intervention order.
2. Whether or not clause 6, inserting a new s. 4E(c) that excludes offenders who plead not guilty from the Koori Court division's jurisdiction, limits the Charter right of Aboriginal defendants not to be compelled to confess guilt?
Section 25(2)(k) provides that a person charged with a criminal offence is entitled without discrimination to not be compelled to confess guilt. The focus of s. 25(2)(k) is on compelled confessions of guilt. This provision prohibits measures aimed at forcing an accused to confess guilt in the determination of the charge against him or her. The term 'to be compelled' refers to various forms of direct or indirect physical or psychological pressure, ranging from torture to methods of extortion. Voluntary confessions of guilt are not prohibited by s. 25(2)(k).
The Koori Court Model gives Aboriginal defendants who plead guilty an opportunity to have their cases heard in a way that is appropriate to their cultural needs by engaging with representatives of their community. If an Aboriginal defendant accesses the Koori Court Model, the defendant must plead guilty but that does not compel them to plead guilty, nor does it prevent them from having their case heard in the County Court's General Criminal Division. The Model has assisted defendants to acknowledge their actions, and begin to address ways of resolving their offending behaviour and its impact on the community.
Further, section 4E(e) of the County Court Amendment (Koori Court) Bill 2008 enables the Koori Court Division to decline to hear or to continue to hear a matter if it considers that it is not appropriate in all the circumstances that the proceeding be dealt with by it. This discretion will enable the County Court Koori Division to refer a case to the General Criminal Division of the County Court if a doubt arises as to the appropriateness of the defendant's plea of guilty. It is also noted that the Magistrates' Court Koori Court Division has been established for some time and there is no evidence that defendants have been compelled to plead guilty in that jurisdiction.
3. If so, whether or not clause 6's automatic exclusion of such offenders from the Koori Court division's jurisdiction is a demonstrably justified and reasonable limit of their Charter rights according to the test set out in Charter s. 7(2)?
As the answer to the above questions is no, a section 7(2) analysis is not required.
4. ADDITIONAL OBSERVATION
The Committee notes that in the case of R v Taylor (1997) 122 CCC (3d) 376 a Canadian Court held that an indigenous sentencing procedure can, in rare cases, be successfully applied to an offender who pled not guilty to a sexual offence against his spouse. This reference to the Canadian Sentencing Circle is unconvincing as it does not correlate with Victoria's statutory regime and sentencing dispositions available to the Victorian Koori Court Model. In this particular instance, the Indigenous offender was sentenced to a period of six months of banishment, to a remote island, where he was required to live in isolation, self-sufficiently under a series of court ordered conditions. These conditions include that the offender will be provided with a cabin at a remote location and be provided with amongst other things a wood stove, cooking utensils and sufficient material for snaring of animals for food and a first aid kit.
In this case the Court acknowledged that banishment is an "old aboriginal sanction". This remark reflects that the Canadian sentencing circle appears to pay more regard to customary law. In contrast, in Victoria, it is a fundamental policy position that the Koori Court model does not depart from the sentencing dispositions available under the Sentencing Act 1991. This is consistent with the policy that a single law applies to all Victorians as clearly discussed in the Second Reading Speech. Banishment, as a sentencing disposition is not, and never has been, under policy consideration in this state.
The Committee is reminded that sexual offences are excluded from the Koori Court division of the Magistrates' Court and this exclusion will continue to operate in the County Court. It is a clear and consistent policy decision that the determination of sexual offences contains sensitive, complex and emotional aspects making it inappropriate for Aboriginal Elders or Respected Persons to participate. This policy is strongly endorsed and supported by the Koori County Court Reference Group. It is also worth noting that in the case of R v Talyor, the majority judgment of Bayda CJA stated that the fact that the offence was a serious sexual assault did not automatically rule out a sentencing circle. However, the community was divided as to whether such a case was appropriate for a circle and a restorative approach.
The Committee thanks the Attorney-General for this response.
See A Butler and P Butler, The New Zealand Bill of Rights Act - A Commentary, (2005) [23.6.3] – [23.6.5].
See M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary (2005) at p. 344.