Scrutiny of Acts and Regulations Committee

Alert Digest No 1 of 2008

Ministerial Correspondence

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Criminal Procedure Legislation Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 20 November 2007 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 3 December 2007 and made the following comments in Alert Digest No. 16 of 2007 tabled in the Parliament on 4 December 2007.

Committee’s Comment

Charter Report

[B]

The Committee will seek further advice from the Minister as to the following matters:

1. What mechanisms are in place to ensure that victims are adequately consulted prior to a sentence indication hearing?

2. Given that s.50A(5) of the Magistrates’ Court Act 1989 and s.23A(9) of the Crimes (Criminal Trials) Act 1999 provide that a decision to give or not give a sentence indication is final and conclusive, what protections exist to ensure that defendants will receive a fair hearing on the question of whether or not to give a sentence indication?

3. Will judges making a sentence indication be required to indicate whether or not a more severe type of sentence would be imposed if a guilty plea was not made at that time? Is there a reason why a transparent statement of the benefit provided by the discount should not also be available to defendants contemplating whether or not to plead guilty following a sentence indication?

4. If a defendant pleads guilty following a sentence indication but the court is reconstituted prior to the sentencing, will the new judge be bound by the sentence indication? Is there a reason why the new judge should not be bound by the sentence indication in this circumstance?

5. If, due to a reconstitution of the court or a successful Crown appeal against sentence, a defendant who pled guilty after a sentence indication receives a higher sentence than the one indicated, will the defendant be automatically entitled to withdraw the guilty plea? If not, will defendants be warned of this possibility at the sentence indication hearing?

6. Will clauses 5 and 7 potentially result in trials being unreasonably delayed?

7. Should the new s.50A(7) of the Magistrates’ Court Act 1989 and s.23A(11) of the Crimes (Criminal Trials) Act 1999 preserve rights to appeal against conviction, as well as sentence?

Pending the Attorney-General’s response, the Committee draws attention to clauses 5 and 7.

[C]

The Committee will seek further advice from the Minister as to the following matters in respect of clause 12.

1. Given s.5(2)(a) of the Sentencing Act 1991, will clause 12 lead to increased sentences for some people who commit the offence of wilful exposure?

2. What transitional arrangements will apply to the amended section 320 of the Crimes Act 1958?

3. Given the possibly mixed effect of clause 12 on actual sentences for wilful exposure, would it be appropriate to provide that, for defendants who committed the offence of wilful exposure prior to the commencement of clause 12, courts should determine two sentences – one under clause 12 and one under the previous law – and impose whichever is the lesser?

Pending the Attorney-General’s response, the Committee draws attention to clause 12.

[D]

The Committee will seek further advice from the Minister as to the following matters:

1. Will clause 13 potentially lengthen the period between the commencement of proceedings and the defendant’s access to the court’s copy of the charge-sheet?

2. Will clause 13 potentially lengthen the period between the commencement of proceedings and the service of a summons on the defendant?

3. Will clause 13 potentially lengthen the period between the commencement of proceedings and the trial?

Pending the Attorney-General’s response, the Committee draws attention to clause 13.

[E]

The Committee will seek further advice from the Minister as to the following matters:

1. Is clause 15 reasonably necessary to respect others’ rights or to protect national security, public order, public health or public morality?

2. Is clause 15 a demonstrably justified reasonable limit on defendants’ right not to speak according to the test in Charter s.7(2)?

Pending the Attorney-General’s response, the Committee draws attention to this provision.

[F]

The Committee will seek further advice from the Minister as follows:

1. Will people who wilfully damaged property to a value between $500 and $5000 before the commencement of clause 16 be eligible for the reduced penalty available to people who damage such property after its commencement?

2. Given its beneficial effect, should provision be made to apply clause 16 to offences of wilful damage committed prior to its commencement where the offender has not yet been sentenced?

Pending the Attorney-General’s response, the Committee draws attention to clause 16.

[G]

The Committee notes that the Bill contains a number of complex provisions that engage various Charter rights. The Committee also notes that the Statement of Compatibility largely consists of descriptions of the Bill and its beneficial purpose.

The Committee refers to its Practice Note No. 2, which states that ‘the Committee considers that the provision to Parliament of reasonable explanatory material is critical to the Parliament’s exercise of legislative power in an informed manner.’ The Committee considers that the brief and perfunctory discussion in the Statement of Compatibility may render it incapable of informed consideration by members of Parliament.

The Committee resolves to raise this concern with the Attorney-General.

Minister’s Response

I refer to your letter dated 4 December 2007 regarding your Committee's consideration of the Criminal Procedure Legislation Amendment Bill 2007.

The Committee has raised a number of issues concerning Parts [B] - [F] of the Charter Report and Part [G] concerning the sufficiency of the Statement of Compatibility.

Because of the detailed commentary and issues provided by the Committee, I have included a detailed response in attachment A. By way of overview, I wish to make a number of comments about the issues raised by the Committee.

The Criminal Procedure Legislation Amendment Bill 2007 is an amending Bill that amends 8 Acts, despite being only 17 pages long. The provisions usually amend one aspect of a larger process. As a result, to understand the full nature of an amendment made by this Bill, it is necessary to consider one or more other Acts and sometimes the manner in which criminal proceedings operate in practice, which is not always evident from the main Acts themselves.

Criminal procedure laws are complex and can be difficult to understand based purely on the provisions in key Acts. The Government has indicated that it is overhauling criminal procedure legislation to make processes and the law simpler, clearer and more accessible.

The Committee has raised some issues concerning how this Bill will affect victims. This Government respects and promotes victims rights. This Bill will not remove or reduce the rights of victims. The Bill will assist some victims in recovering from the effects of crime more quickly where the new processes encourage accused to plead guilty at an earlier stage of proceedings.

An accused may plead guilty at different stages in proceedings. While many accused currently plead guilty at an early stage of proceedings, a significant number of accused plead guilty at a later stage in proceedings. One of the objectives of sentencing indications and discounts reforms is to encourage more accused to plead guilty at an earlier stage, rather than a later stage of proceedings. The provisions have been carefully constructed to ensure that this encouragement only applies to those who are guilty and who will ultimately plead guilty, to do so at an earlier stage of proceedings.

The new procedures do not enable a person to be sentenced at an earlier stage than is currently possible. Therefore, a victim can continue to make a victim impact statement as either part of the sentencing indication process or as part of the plea hearing.

The Sentencing Advisory Council (the Council) in its Report on Sentence Indication and Specialised Sentence Discounts recommended that the Government should consider whether existing provisions concerning the involvement of victims in criminal proceedings are adequate to ensure that victims will be consulted where an accused requests a sentence indication.

The Government has reviewed those provisions. Section 9 of the Victims’ Charter Act 2006 requires the prosecution to give the victim a range of information about the trial as soon as is reasonably practicable, including any decisions about changing charges or accepting a plea to a lesser charge, details about the hearing of the charges and the outcomes of criminal proceedings and appeals.

The general obligation on the prosecution to consult with the victim and give consideration to the concerns of victims, combined with the requirement to keep victims informed of developments, creates a statutory obligation on the prosecution to confer with the victim and a corresponding right of victims to be consulted as part of the sentence indication process.

The prosecution is already required to discuss with the victim any plea negotiations being conducted with the accused. Existing provisions properly protect the rights and interests of the victim under a sentence indication scheme. Therefore, the Government considers that no further legislative change is required to ensure that the prosecution properly consults victims.

The sentence discount and indications scheme will provide greater transparency in the sentencing process and more information to an accused to assist them in making a decision about whether to plead guilty. The reforms are not about, and will not have the effect of, inducing accused persons who are in fact not guilty to plead guilty.

The Council carefully considered these issues, researching and analysing other schemes in a number of other jurisdictions. I refer you to their Report, which was released in September 2007. For instance, in Scotland, which has a very similar approach to the one contained in this Bill, their scheme has not led to more pleas of guilty, but has led to pleas of guilty being identified at an earlier stage.

There are a number of other matters raised by the Committee, which depend upon the manner in which the criminal procedure operates. In a number of instances, I have outlined in detail in the Attachment how these reforms will operate in conjunction with existing law and practice. As a result, in a number of instances I consider that the human rights issues raised by the Committee will not arise because the factual circumstance will not arise.

I trust that the very detailed explanation of the manner in which the provisions in the Bill will operate in the context of criminal procedure generally, in Attachment A, addresses the Committee's concerns regarding the Bill's compliance with the Charter.

If you would be assisted by a briefing from officers from my Department on the details of the issues you have raised, please contact Mr Stan Winford from my office (9651 1146) to arrange a suitable time.

ROB HULLS MP
Attorney-General

30 January 2007

ATTACHMENT A

[A] Sentence discounts and indications: whether compulsion to plead guilty

The Committee refers to Parliament for its consideration the question of whether or not the procedures provided for by clauses 3, 4, 5, 7 and 15 may be incompatible with defendants' Charter rights not to be compelled to plead guilty

Summary of response

The Committee raise the issue of whether sentence discounts and indications will compel an accused to plead guilty. The Sentencing Advisory Council considered this issue and tailored its sentencing indications and discounts recommendations to operate in a way that would not result in any compulsion or improper inducement. Under the Bill, a sentencing indication may only be given where the accused has sought an indication and the accused is free to choose whether to seek an indication. The Council recommended an approach to sentencing discounts, based on existing Victorian law, which is very similar to the approach used in NSW and Scotland. Analysis of NSW and Scottish systems indicate that this approach to sentence discounts has not resulted in accused being compelled to plead guilty (or improperly induced to plead guilty). The Bill implements the Council's recommendations. The Bill is not incompatible with the accused’s charter right not to be compelled to plead guilty.

Details of response

The Committee asks whether sentencing indications and discounts may be incompatible with the accused’s Charter right not to be compelled to plead guilty (section 25(2)(k) of the Charter).

This issue involves considering whether if the accused either knows what sentence is, or is likely, to be imposed (or not imposed) or that the sentence may be reduced if they plead guilty, this amounts to an accused being compelled to plead guilty.

Sentencing indications and discounts: evidence of their impact

The Sentencing Advisory Council specifically considered this issue: "Specifying the reduction in sentence available or given for a guilty plea is intended to encourage defendants who are intending to plead guilty to do so as early as possible without inducing or coercing defendants to change their plea decision on that account." (Report, p.134, emphasis added)

The Council refer to studies in NSW and Scotland which demonstrate that such a result can be achieved. Specifically, the Report said: "The [Scottish] study found that the proportion of pleas entered at an early stage rose dramatically while the proportion of matters concluded by a guilty plea nevertheless remained relatively stable." (Report, p.27)

The Council concluded that this empirical evidence supports the conclusion that it is possible to have sentence indications and discounts without inducing guilty pleas:

The research conducted in New South Wales and Scotland suggests that it is possible to make reforms to law and procedure that will encourage defendants to advance the stage at which they enter a guilty plea without improperly inducing defendants to change their plea from not guilty to guilty. (Report, p.29)

Why discretion in fixing the amount of any discount is preferable

The Committee suggest that not limiting the amount of a discount that the court may give could place pressure on the accused to plead guilty. I note that this issue was considered by the Sentencing Advisory Council and it was their view that set quantity discounts would have a greater risk of improperly inducing a plea of guilty. The Sentencing Advisory Council concluded and recommended that the courts retain fill1 discretion as to the amount of any discount that may be given due to a plea of guilty.

The amount of any discount provided for a guilty plea is not unlimited. Section 5(2) of the Sentencing Act 1991 provides that in sentencing an offender, the court must have regard to a range of factors including the maximum penalty for an offence, the nature and gravity of the offence and the offender's degree of culpability. In practice, this limits the amount of any discount that may be given in any matter.

Furthermore, the amendments contained in this Bill do not change basic sentencing principles. Since 1991, in fixing a sentence, courts have been required to take into account "whether the offender pleaded guilty and, if so, the stage at which the offender did so or indicated an intention to do so" (section 5(2)(e) of the Sentencing Act 1991). This provision does not require a court to provide a discount; that remains a matter for the sentencing court to determine on a case-by-case basis. The amendments contained in this Bill do not change this basic sentencing principle. The only change this Bill makes is to require that the amount of a discount, where one is provided, to be stated as part of the sentencing comments made by the magistrate or judge.

The Bill does not amend the requirement to give a discount, nor the weight that can be given to a guilty plea. Appropriate sentences, proportionate to the crime committed, must still be imposed by the courts.

More information will help some accused

The processes established by the Bill for sentencing indications will enable an accused to obtain more information about the likely sentence that may be imposed. Knowledge that a sentence may be reduced because of an early plea of guilty does not amount to an improper inducement to plead guilty.

However, if the information that can be gained from a sentencing indication is not going to assist the accused, the accused can decide not to get this information. A sentence indication must be applied for by the accused. Neither the prosecution nor the court may initiate this process. The prosecution must consent to a sentencing indication being provided.

The prosecution will only consent where it considers that the imposition of a sentence not involving an immediately servable term of imprisonment is reasonably available (and does not involve appellable error), otherwise it will consider that it is wasting its resources on a court hearing that will be of no value. Further, the court may decline to provide a sentencing indication for any reason.

Sentencing indications are therefore only likely to be given where there is a genuine issue concerning whether an immediately servable term of imprisonment is likely to be imposed. Further, having obtained this information, the accused may still choose to plead not guilty. As the Sentencing Advisory Council noted:

The process preserves the accused's right to put the prosecution case to the test, by giving the accused the option of seeking sentence indication. The defence can weigh up the likely benefits and risks of sentence indication before making a request for it. While the request for an indicative sentence implies that the accused is willing to plead guilty as charged, the request for sentence indication does not commit the accused to pleading guilty or compromise a not guilty plea; the accused may 'reject' an indicative sentence and elect to contest the matter without prejudice. (Report, p.74)

In my view, improving the information available to an accused person prior to the person deciding whether to plead guilty or not guilty does not involve any improper inducement. Accordingly, in my view sentencing indications and discounts do not infringe or limit the right of an accused to not be compelled to plead guilty.

[B] Sentence indications

I note at the outset that at the conclusion of section A, the Committee indicates that "courts, when sentencing defendants or indicating sentences, are not required to act compatibly with defendant's Charter rights under Charter s.38(1)." However, in the first paragraph of section B the Committee, in discussing the right to a fair hearing, states that this "includes all aspects of the post-charge procedure, including sentencing and appeals." It is not clear what distinction the Committee was seeking to make in section A but my response proceeds on the basis that the Charter is relevant to sentencing.

1. What mechanisms are in place to ensure that victims are adequately consulted prior to a sentence indication hearing?

Summary of response

The Committee seeks further information about mechanisms to ensure victims are adequately consulted before a sentence indication hearing. The Victims Charter requires the prosecution to inform the victim about sentence indication hearings. A victim can continue to make a victim impact statement as either part of the sentencing indication process or as part of the plea hearing. No further legislative change is required.

Details of response

This Government is committed to ensuring that victims' rights are respected and promoted. This Bill does not remove or reduce the rights of victims.

Many accused currently plead guilty at early stages of proceedings. An early plea can often benefit a victim by assisting them in recovering from the effects of crime. One of the objectives of sentencing indications and discounts reforms is to encourage those who are guilty and will ultimately plead guilty, to do so at an earlier stage of proceedings.

The Sentencing Advisory Council recommended that the Government should consider whether existing provisions concerning the involvement of victims in criminal proceedings are adequate to ensure that victims will be consulted if an accused requests a sentence indication.

The Government has reviewed those provisions. Section 9 of the Victims' Charter requires the prosecution to give the victim a range of information about the trial soon as reasonably practicable, including any charge decisions, sentences, outcomes of criminal proceedings and appeals.

The general obligation on the prosecution to consult with the victim and give consideration to the concerns of victim, combined with the requirement to keep victims informed of developments, creates a statutory obligation on the prosecution to confer with the victim and a corresponding right of victims to be consulted as part of the sentence indication process.

The prosecution is already required to discuss with the victim any plea negotiations being conducted with the accused.

These processes are consistent with providing victims with an opportunity to participate in proceedings through the use of a victim impact statement. A victim can continue to make a victim impact statement as either part of the sentencing indication process or as part of the plea hearing.

Accordingly, no change is required to existing legislation to properly protect the rights and interests of the victim under a sentence indication scheme.

2. Given that s.50A(5) of the Magistrates' Court Act 1989 and s.23A(9) of the Crimes (Criminal Trials) Act 1999 provide that a decision to give or not give a sentence indication is final and conclusive, what protections exist to ensure that defendants will receive a fair hearing on the question of whether or not to give a sentence indication?

Summary of response

The Committee raise the issue of ensuring a fair hearing on the question of whether or not to give a sentence indication. The Sentencing Advisory Council considered this issue and recommended that the decision to give or not to give a sentence indication be completely discretionary, and final and conclusive. Sentence indications do not involve any determination of guilt and cannot operate to the detriment of the accused. The accused will receive the same procedural fairness considerations that arise in relation to many applications regularly heard in the courts. Giving the court complete discretion to refuse to give an indication balances the requirement that the sentence indication be binding. If it were not discretionary, it would defeat the aims of the scheme.

Details of response

The Sentencing Advisory Council recommended that the decision to give or not to give a sentence indication be completely discretionary, and be final and conclusive. Points 5 and 9 of Recommendation 6 from the Council (which outlines the sentence indication framework):

5. The judge should have the discretion to refuse to provide an indication. The judge should not provide an indicative sentence unless he or she is satisfied that the material available is sufficient to provide a binding indication.

9. A refusal by a judge to give an indication should not be reviewable.

The second reading speech to this Bill indicated that the reason for restricting the review of a decision to give or not to give a sentence indication is to ensure that this decision is final and so that the substantive proceedings, whether a trial or a plea hearing, can proceed without delay.

The right for proceedings to be heard without delay is protected under section 25 of the Charter of Rights and Responsibilities.

Furthermore, if review and appeal rights were not restricted, they could defeat one of the purposes behind the introduction of this reform, which is to reduce delay.

Sentence indications do not involve any determination of guilt and cannot operate to the detriment of the accused. For example, if the accused does not get a sentence indication, or does get an indication of an immediately servable term of imprisonment, the accused can still contest the charges - and if the accused is found guilty or pleads guilty, there is no restriction on the sentence that can be imposed by the court. An accused can still get a non-custodial sentence.

Giving the court complete discretion to refuse to give an indication balances the requirement that the sentence indication be binding. The Sentencing Advisory Council explicitly recommended that the court must have sufficient materials on which to provide a binding sentence indication.

If a sentence indication is not granted, the accused may still plead guilty at that time, irrespective of whether or not an indication has been granted, and benefit from a greater discount being given for their earlier plea of guilty.

There is no limit on how many times the accused may apply for a sentence indication.

Within this context, an accused may apply for a sentence indication and a court decides whether to provide a sentence indication. Within the hearing of the application itself, courts will provide the applicant with an opportunity to persuade the court to provide an indication. It is not necessary to spell out such fundamental processes of procedural fairness that arise in relation to many applications regularly heard in the courts. Courts operate on the basis that procedural fairness applies unless it is clearly excluded by Parliament.

3. Will judges making a sentence indication be required to indicate whether or not a more severe type of sentence would be imposed if a guilty plea was not made at that time? Is there a reason why a transparent statement of the benefit provided by the discount should not also be available to defendants contemplating whether or not to plead guilty following a sentence indication?

Summary of response

The Committee raise the issue of whether a sentence indication should also include an indicative sentence discount for a plea of guilty. The Sentencing Advisory Council considered this issue and recommended that the requirement to provide an indicative sentence discount as apart of a sentence indication should be implemented by way of a practice note or direction. Courts can develop practice notes and directions after the Bill has been passed by parliament.

Details of response

The Sentencing Advisory Council recommended that the requirement to include an indication of a discount when providing a sentence indication not be implemented legislatively.
0n page 90 of the final Report, the Council states:

We therefore recommend that the requirement to state the credit, if any, given for a guilty plea in an indicative sentence be achieved by the Chief Magistrate making provision for this in a practice note or direction, rather than by including such a recommendation in the legislation.

This approach reflects the Council's objective to ensure that the Court's discretion when determining the scope of an indication is not confined.

Recommendations 3 and 8 explicitly give effect to the Council's approach:

Recommendation 3: The Chief Magistrate should issue a note or direction to require a magistrate, when providing an indication of the sentence likely to be imposed on a guilty plea entered at that stage of the proceedings, to state whether, but for such a guilty plea, a more severe sentence would be indicated.

Recommendations 8: The Chief Judge should issue a note or direction to require a judicial officer, when providing a sentence indication, to state whether, but for a guilty plea being entered at that stage of the proceedings, a more severe sentence (an immediate term of imprisonment) would be indicated.

The courts can introduce practice notes and directions after the Bill has been passed by parliament.

4. If a defendant pleads guilty following a sentence indication but the court is reconstituted prior to the sentencing, will the new judge be bound by the sentence indication? Is there a reason why the new judge should not be bound by the sentence indication in this circumstance?

Summary of response

The Committee ask whether any new judge should be bound by a sentence indication in the case where an accused person has accepted an indication (ie, pleaded guilty). If an accused has pleaded guilty, a court will consider itself to be part heard in the sentencing process. A new judge would only be appointed in the very unlikely circumstance that the magistrate or judge dies or becomes incapacitated between the plea hearing and the sentence being imposed. Court practices adequately addresses this situation.

Details of response

If an accused person pleads guilty following a sentence indication, that court is bound by the indication.

The only situation in which a court might be reconstituted after an accused person has pleaded guilty in response to a sentence indication, is in the very unlikely circumstance that a magistrate or judge dies or becomes incapacitated between the entry of the plea of guilty and sentencing. In the Magistrates' Court, the entry of the plea and sentencing usually occur on the same day.

However, if this factual situation did arise, in accordance with court practices generally, a new judge or magistrate could:

    • consider themselves bound by the sentencing indication or simply reach the same conclusion as their predecessor; or

    • commence proceedings again and effectively vacate the sentence indication and either conduct a fresh sentence indication or the accused may choose to plead not guilty.

In either of these situations, there would be no disadvantage to the accused.

5. If, due to a reconstitution of the court or a successful Crown appeal against sentence, a defendant who pled guilty after a sentence indication receives a higher sentence than the one indicated, will the defendant be automatically entitled to withdraw the guilty plea? If not, will defendants be warned of this possibility at the sentence indication hearing?

Summary of response

The Committee ask whether an accused person who has accepted a sentence indication can withdraw that plea following a successful crown appeal that leads to a higher sentence. The Sentencing Advisory Council considered this issue and recommended that both parties retain their right to appeal final sentence. The scheme does not change current criminal procedure. Currently, both parties can appeal final sentence whether or not the accused pleaded guilty or proceeded to trial; there is no automatic right to withdraw a plea of guilty just because a higher sentence is imposed.

Details of response

Currently, both parties can appeal a final sentence whether or not the accused pleaded guilty or proceeded to trial. There is no automatic right to withdraw a plea of guilty just because a higher sentence is imposed by the Court of Appeal in current criminal procedure. When a defendant pleads guilty, there has always been a chance that the sentence will be appealed by the prosecution and a higher sentence imposed on appeal. This is the case even where the prosecution indicates that it will not be asking, for instance, the court to impose a sentence involving an immediately servable sentence of imprisonment as part of plea negotiations. This is not changed by the new scheme.

The Sentencing Advisory Council recommended that the parties retain their right to appeal a final sentence. This is consistent with section 25(4) of the Charter concerning rights of appeal.

6. Will clauses 5 and 7 potentially result in trials being unreasonably delayed?

Summary of response

The Committee ask whether the clauses which allow the court to be reconstituted following an indication that is not accepted, will potentially result in trials being unreasonably delayed. The scheme has been devised as far as possible to avoid unreasonable delays and ensure expediency in the new processes. This measure safeguards the accused person’s right to a fair trial if they choose not to accept an indication, which is protected by section 24 of the Charter. Furthermore, the right to be tried without unreasonable delay is not engaged where the delay is attributed to the actions of the accused person.

Details of response

Allowing the court to be reconstituted before a different magistrate or judge protects the accused person's right to a fair trial where the accused decides not to accept an indication, and allays any concerns the accused may have about receiving a fair trial. The right to a fair trial is protected by section 24 of the Charter.

The scheme will assist some accused persons to make their plea decisions. However, the accused decides whether or not to request an indication, and if the accused does so but does not accept the indication or get the indication they were hoping for, the accused can insist on a different trial judge. This preserves the accused's right to a fair trial.

Clause 5 reflects existing practice in the Magistrates' Court and has not, and is unlikely to, result in unreasonable delay in the Magistrates' Court.

In the County Court, it is only if a sentencing indication is made late in proceedings that this may delay the commencement of the trial. If the accused makes application for a sentence indication early in proceedings, this risk can be avoided. Following improvements made to the committal system introduced by this Government in the Courts Legislation (Jurisdiction) Act 2006, the accused should receive legal advice at an early stage in proceedings, enabling the accused to decide at an early stage whether to apply for a sentence indication.

Whether a delay is 'unreasonable' will depend on the nature of the case and a range of factors, including whether the delay is attributable to the accused. Therefore, where the delay is attributable to or caused by the conduct of the accused in requesting a sentencing indication late in proceedings, it is unlikely that a court would find that the right to be tried without unreasonable delay in section 25(2)(c) of the Charter had been infringed.

7. Should the new s.50A(7) of the Magistrates' Court Act 1989 and s.23A(11) of the Crimes (Criminal Trials) Act 1999 preserve rights to appeal against conviction, as well as sentence?

Summary of response

The Committee asks whether the new provisions should preserve the right to appeal against conviction. It is not necessary to clarify that the right to appeal against conviction is not affected by the reforms, as the reforms do not relate to convictions.

Details of response

The Bill does not change any rights of appeal against conviction or sentence, only against the sentence indication proceeding itself.

The Bill simply clarifies that the right to appeal against sentence is not affected by the reforms.
It is not necessary to also clarify that the right to appeal against conviction is not affected by the reforms, as the reforms do not relate to convictions.

[C] Wilful exposure

The Committee has raised a number of issues about the introduction of a maximum penalty of 5 years imprisonment for the indictable offence of wilful exposure.

As the Committee notes, the introduction of this maximum penalty reduces the maximum penalty.

1. Given s.5(2)(a) of the Sentencing Act 1991, will clause 12 lead to increased sentences for some people who commit the offence of wilful exposure?

Summary of response

The Committee asks whether the introduction of a maximum penalty for the indictable offence of wilful exposure will lead to increased sentences for some offenders. As the Committee notes, the new penalty in the Bill reduces the maximum penalty, for this offence. The actual sentence imposed in a particular case will depend upon the particular circumstances of the case before the court. The reduction in the maximum penalty should not lead to higher sentences being imposed.

Details of response

Section 5(2)(a) of the Sentencing Act I991 indicates that in sentencing an offender the court must have regard to the maximum penalty prescribed for the offence. The offence of wilful exposure is an indictable offence and the maximum penalty is currently at large (ie not limited).

The Bill provides that the maximum penalty for this offence be 5 years imprisonment. Very few indictable offences in the Crimes Act have lower penalties.

Section 5(2)(a) of the Sentencing Act indicates that in sentencing an offender the court must have regard to the maximum penalty prescribed for the offence. The court must also have regard to other factors, including current sentencing practices. As Fox and Frieberg in Sentencing: State and Federal Law in Victoria (2nd ed, 1999) indicate, when a common law penalty is at large, the courts will have regard to cognate or similar offences. The court will also have regard to the seriousness of the offence by virtue of its classification, namely, indictable offences are more serious than summary offences.

The actual sentence imposed in any case will depend upon the particular circumstances of the case before the court. Sentencing in each case depends upon a range of factors including the circumstances of the offence and the personal circumstances of the offender. Because of this range of factors, and that this offence is not commonly prosecuted, it would be very difficult to draw any conclusions about whether the 'actual' sentences imposed are different because of the fixing of a maximum penalty.

The question asked by the Committee also suggests that the Committee is seeking a response to what is likely to be considered by a judicial officer when sentencing. As I understand it, the Committee is asking whether the maximum penalty for this offence has been increased in practice, while accepting that the maximum penalty has been reduced to 5 years imprisonment as a matter of law. The Committee suggests that the de facto maximum penalty currently applied may be less than 5 years because of similarities with other offences.

As a matter of logic, the maximum penalty cannot be both increased and reduced by the fixing of one maximum penalty. This could only be the result in practice if there was an error in the sentencing process.

The Committee draws attention to the offence of obscene exposure, which is a summary offence in Victoria and to similar offences in other jurisdictions. The offence of obscene exposure is similar, but not the same as wilful exposure. These offences contain some different elements and are classified differently. The common law offence of wilful exposure can apply even if exposure does not occur within view of a public place. Accordingly, the offence can apply where a person wilfully and frequently exposes themselves to one particular victim. The common law indictable offence caters for this kind of aggravating circumstance in a way in which the summary offence does not.

Differences in both the elements of the offence and the classification of the offence mean that courts will have more regard to other indictable offences than the summary offences which the Committee raise as cognate offences. For instance, comparison could be made with indictable offences such as those involving indecent acts with or in the presence of a child under 16 or indecent assaults. These offences carry maximum penalties of 10 years imprisonment under the Crimes Act.

Accordingly, the reduction in the maximum penalty for the offence of wilful exposure should not lead to higher sentences being imposed.

2. What transitional arrangements will apply to the amended section 320 of the Crimes Act 1958?

Summary of response

The Committee raise the issue of transitional arrangements for the new maximum penalty, for wilful exposure. It was not necessary to include a transitional provision in the Bill because it is covered by section 114(2) of the Sentencing Act.

Details of response

Section 114(2) of the Sentencing Act provides that if an Act reduces the maximum penalty for the offence, 'the reduction extends to the offences committed before the commencement of the provision' where a person has not been sentenced for the offence.

As the Committee accepts, this new maximum penalty reduces the maximum penalty for the offence.

3. Given the possibly mixed effect of clause 12 on actual sentences for wilful exposure, would it be appropriate to provide that, for defendants who committed the offence of wilful exposure prior to the commencement of clause 12, courts should determine two sentences - one under clause 12 and one under the previous law - and impose whichever is the lesser?

Summary of response

The Committee ask whether the courts should be able to consider the sentence it would impose under both the common law and the new provision, and to impose the lesser of the two penalties. This scenario will not arise because as the Committee has indicated, the new penalty reduces the maximum penalty for this offence. Even if this were not the case, such an approach would be very complex.

Details of response

This is a hypothetical question, which depends upon whether there is any difference between the de facto maximum penalty for this offence and the proposed new lower statutory maximum penalty. As I have indicated, I do not agree with this approach to applying sentencing laws for this offence.

Even if I did accept that such an outcome were possible, it is essential that the law provides greater certainty for its citizens than such an approach presents. Sentencing is a complex, difficult and important task. Introducing this approach would add a further layer of complexity to the sentencing task, increasing the risk of errors. The Government's Justice Statement aims to reduce complexity in the criminal law and build community confidence by making the law clear and understandable.

[D] Amendments to the power of the court to strike out a charge-sheet

1. Will clause 13 potentially lengthen the period between the commencement of proceedings and the defendant's access to the court's copy of the charge-sheet?

Summary of response

The Committee ask whether the amendments to the power of the court to strike out a charge-sheet could delay the accused's access to the court's copy of the charge-sheet. This amendment will not lengthen proceedings. The accused will already have their own copy of the charge-sheet and summons; there is usually no need for the accused to access the court's copy. Furthermore, actual access to the court's copy of the charge-sheet would not be affected by this amendment, because the bill does not affect the requirement on the informant to file a copy of a charge in the court within 7 days of issuing a charge and summons.

Details of response

A police officer or a public official may issue a charge-sheet and summons under section 30(1) of the Magistrates' Court Act 1989 (the MCA). Where this occurs, both the signed charge-sheet and the summons must be filed with the registrar within 7 days after signing the charge-sheet.

The onus is on the issuing police officer or public official to prove that he or she has complied with this filing requirement. Section 30(3) of the MCA requires the court to strike out the charge if it appears to the court that the charge-sheet and summons have not been filed within 7 days. The court does not have any discretion to take into consideration other factors and circumstances.

Clause 13 of the Bill provides the Magistrates' Court with discretion to strike out a charge where the prosecution cannot prove that it filed a copy of a charge in the court within 7 days of issuing a charge and summons.

As indicated in the Statement of Compatibility, this amendment does not include any change to the requirement to serve a copy of the charge-sheet on the accused. It does not delay the proceedings. The issue of whether the informant has complied with the 7 day requirement will only arise if the accused is present at court to raise this issue. This means that the accused has notice of the proceeding. Accordingly, this amendment should not lengthen proceedings.

2. Will clause 13 potentially lengthen the period between the commencement of proceedings and the service of a summons on the defendant?

Summary of response

The Committee ask whether the amendments could delay service of a summons on the accused. This amendment does not change the requirement to serve a copy of the charge-sheet on the accused, so the there will be no change to the timing of the service of a summons on an accused.

Details of response

This amendment does not change the requirements imposed on the informant to file the charge-sheet within 7 days after signing the charge-sheet.

This amendment will not change in any way whether the charge-sheet is in fact filed. The accused will already have their own copy of the charge-sheet and summons. This reform relates to the court's copy of the summons, not the summons served on the accused.

Furthermore, if the accused has suffered any prejudice, the accused may seek to have the charge struck out by the court. As the note to this amendment indicates, the Court may award costs if a proceeding is struck out.

3. Will clause 13 potentially lengthen the period between the commencement of proceedings and the trial?

Summary of response

The Committee ask whether the amendments could lengthen the period between the commencement of proceedings and the trial. This period is not affected in any way by the filing requirements, because there is no separate step involved in the court listing a matter and a summons being issued. When a summons is issued, it includes a date indicating when the matter will be listed for a hearing, irrespective of whether the filing requirements are correctly complied with.

Details of response

The Committee indicates that a charge-sheet must be filed in court to enable the court to take control of a proceeding, list a matter and after the matter is listed the informant must serve a summons within specified time periods.

Section 30 of the MCA provides that at the time of signing a charge-sheet, the informant must issue a summons. Section 33 requires that the summons must direct the accused to attend the proper venue on a certain date and at a certain time.

Accordingly, when a summons is issued, the summons will have a return date indicating when the matter will be listed for hearing in court. Upon being served with the summons the accused will know that he or she must attend court on a specified day. This means that there is no separate step involved in the court listing a matter and then a summons being issued.

Further, the summons that is served on the accused contains a copy of the charge, thereby ensuring that the accused has notice at the first available opportunity of the charge.

[E] Amendments to the committal proceedings

1. Is clause 15 reasonably necessary to respect others' rights or to protect national security, public order, public health or public morality?

2. Is clause 15 a demonstrably justified reasonable limit on defendants' right not to speak according to the test in Charter s. 7(2)?

Summary of response

The Committee raise the issue of whether the amendment abolishing reversed pleas engages the right to remain silent and if so whether it is reasonably necessary and is demonstrably justified. The amendment does not in any way affect the accused's right not to speak, and does not engage the right to remain silent. The accused is not compelled to speak by the court; if an accused person does not speak, their plea is taken to be not guilty. This Bill does not limit the right to freedom of expression.

Details of response

The Committee raise these two issues on the assumption that the abolition of asking an accused whether he or she reserves their plea 'engages the Charter rights of defendants not to speak.' The Committee operates on the assumption that a person who reserves their plea, does not speak. In fact, an accused almost always reserves their plea by speaking and stating that they reserve their plea.

Currently, at the conclusion of committal proceedings, if the court has decided to commit the accused for trial, the magistrate must ask the accused whether he or she pleads guilty or not guilty to the charge, or whether the accused wished to reserve their plea. The court must also inform the accused that the sentencing court may take into account a plea of guilty and the stage in the proceeding at which the plea or an intention to plead guilty is indicated.

The amendment in clause 15 of the Bill changes this by indicating that the magistrate should no longer indicate that the accused may reserve their plea. The magistrate must continue to ask whether the accused pleads guilty or not guilty to the charge.

The Committee indicates that the 'existing law does not contain this requirement'. In this regard, I refer the Committee to clause 12 and Form 12A of the Magistrates' Court (Committals) Rules 1999 which set out these requirements.

The current law and clause 15 of the Bill indicate what the magistrate must ask a person to do at the conclusion of the proceedings. The defendant may then answer or not answer. There is no mechanism which compels the defendant to speak in answer to the question asked by the court. As the Committee notes, if a person does not answer, this in effect will be treated as a plea of not guilty. As indicated in the Statement of Compatibility, this is consistent with the Charter right to a fair trial and the presumption of innocence.

Accordingly, to the extent that it can be said that the Charter right to freedom of expression is engaged by clause 15 of this Bill, it is not limited by that clause.

[F] Wilful damage

1. Will people who wilfully damaged property to a value between $500 and $5000 before the commencement of clause 16 be eligible for the reduced penalty available to people who damage such property after its commencement?

2. Given its beneficial effect, should provision be made to apply clause 16 to offences of wilful damage committed prior to its commencement where the offender has not yet been sentenced?

Summary of response

The Committee ask whether people who carry out conduct which does not currently fall under the amended offence of wilful damage, but would following the amendment, be prosecuted for the offence of wilful damage (in order to be subject to the penalty for that offence). Because the Bill amends an element of the offence it is not possible, for it to apply retrospectively, ie, to conduct which occurred before the commencement of the amendment.

Details of response

As the Committee notes, the amendments to this offence operate prospectively. A transitional provision was not necessary for clause 16 because section 14(2) of the Interpretation of Legislation Act 1984 applies. Section 14(2) also accords with the common law presumption against retrospectivity which is 'most strictly applied' in relation to offence provisions (see Pearce and Geddes, Statutory Interpretation in Australia, Chapters 9 and 10). Parliamentary Counsel also advised that no transitional provision was required in all of the circumstances.

The threshold of the value of the property under which a person can be charged with the summary offence of wilful damage is an element of that offence. It is currently limited to less than $500 worth of "injury" to the property. The amendment to the offence, by increasing the amount of injury to property from $500 to $5,000 alters a key element of the offence.

The rights against retrospective criminal liability in the common law and in section 27 of the Charter provide that where the substance of an offence is amended, that amendment must not apply retrospectively.

However, the Committee ask whether this provision can be made to operate retrospectively on the basis that it may be of benefit to people charged with a different offence, namely destroying or damaging property (section 197 of the Crimes Act). This is an indictable offence, triable by jury. Making the amendments apply retrospectively would remove a right to trial by jury that existed at the time the offence was alleged to have been committed.

Section 27 of the Charter provides that a person is eligible for a reduced penalty if the penalty for an offence is reduced, it does not extend to penalties for other offences. This is particularly the case where the amendments to an offence expand the operation of an offence and therefore operate prospectively.

Accordingly, these amendments do not operate retrospectively.

The Committee thanks the Minister for this response.

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Emergency Services Legislation Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 18 September 2007 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 8 October 2007 and made the following comments in Alert Digest No. 13 of 2007 tabled in the Parliament on 9 October 2007.

Committee’s Comment

[78]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependent on insufficiently defined administrative powers’.

The Committee notes that the delegation power will allow the Chief Officer to delegate to ‘any person by name’. The Committee had consistently pointed out that such wide delegation provisions should be accompanied by reasonable explanatory material. Once again the Committee refers to its Practice Note No. 1 of October 2005 concerning such provisions and the desirability of avoiding needless, repetitive Ministerial correspondence.

The Committee will seek further explanatory material from the Minister.

Pending further advice the Committee draws attention to the provisions.

[121]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependent on insufficiently defined administrative powers’.

The Committee draws attention to its Practice Note No. 1 of October 2005. Amongst other matters the Practice Note requests that explanatory material provided to Parliament include reasons why wide delegation provisions such as ‘to any person’ are considered necessary or desirable.

The Committee as a matter or routine will seek further advice from the Minister where the explanatory memorandum fails to adequately justify such provisions.

Pending the Minister’s response the Committee draws attention to the provision.

Minister’s Response

Thank you for your correspondence of 9 October 2007 which outlined the Scrutiny of Acts and Regulations Committee's comments in relation to the Emergency Services Legislation Amendment Bill 2007 ('The Bill').

You raise concerns that the delegation provisions in clauses 78 and 121 of the Bill may 'make rights, freedoms or obligations dependent on insufficiently defined administrative powers' within the meaning of section 17(a)(ii) of the Parliamentary Committees Act 2003. The Committee notes that the delegation power will allow the Chief Officer to delegate to 'any person by name' (cl 78) and the Chief Executive Officer to delegate to 'any other person by name' (cl 121).

I note the Committee's concerns that sufficiently explanatory material was not provided for these provisions in the explanatory memorandum that accompanied the Bill. In response I have provided further detail on the-changes to these provisions below.

Clause 78 – Metropolitan Fire Brigades Act 1958.

Clause 78 of the Bill amends section 31A of the Metropolitan Fire Brigades Act 1958 ('MFB Act') to provide for a more appropriate suite of powers which the Chief Officer may delegate. The proposed amendment enables the Chief Officer of the MFESB to delegate the power to form an opinion as to whether a fire prevention notice should be served on the owner or occupier of land to any other officer.

The power to delegate to 'any other officer' is not a wider power than the one currently given under the MFB Act. Currently section 31A allows for the Chief Officer '. . . to delegate to any person by name or to the holder of an office or position approved by the Board, either generally or otherwise ...'

The proposed amendment to section 3 1A does not broaden the class of person to whom the delegation can be made. Rather, it amends the scope of the matter that may be delegated. The proposed amendment will now allow a Chief Officer to delegate the power to 'form an opinion as to whether a fire prevention notice should be served' only. As such, the new delegation power is not unlimited.

I note that under the current provision it is administratively difficult to have the Chief Officer personally form the opinion as to whether a fire prevention notice should be served. This new power of delegation will facilitate a more effective, flexible and prompt mechanism to serve fire prevention notices. It will also ensure that the MFESB can promptly address safety risks.

Clause 121 – Victorian State Emergency Services Act 2005

Clause 121 of the Bill amends section 26 of the State Emergency Service Act 2005 ('VICSES Act') to allow for greater administrative flexibility. The amended delegation power includes, as you have pointed out, a power to delegate to 'any other person by name'.

The power to delegate to 'any other person by name' is already present in the current provision of the Act. Section 26 of the VICSES Act, currently states:

The Chief Executive Officer may, by instrument, delegate to any person by name or to the holder of an office or position approved by the Authority, any responsibility, power, authority, duty or function conferred on the Chief Executive Officer under this Act or the Regulation, except this power of delegation.

The proposed amendment seeks to clarify the Chief Executive Officer's authority to delegate certain matters to the Unit Controller. The amendment aims to restructure the existing provision to clarify the powers of delegation in favour of Unit Controllers. Unit Controllers are volunteers and are appointed by the Director of Operations as the Chief Officer of individual registered VICSES Units.

The amendment provides for greater administrative flexibility by enabling Unit Controllers to perform daily functions such as paying bills and entering into small service contracts. The delegation power is not unlimited. The matters which may be delegated are restricted to the powers and responsibilities specifically given to him/her in the VICSES Act.

I also note that there is a requirement for both of the clauses in question, that the delegation be made by instrument. This ensures that there is a record of the power being exercised providing transparency, accountability and certainty as to the powers that are delegated.

I trust that this satisfies your concerns.

Bob Cameron MP
Minister for Police & Emergency Services

The Committee thanks the Minister for this response.

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Liquor Control Reform Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 3 October 2007 by the Hon. Tony Robinson MLA. The Committee considered the Bill on 19 November 2007 and made the following comments in Alert Digest No. 15 of 2007 tabled in the Parliament on 20 November 2007.

Committee’s Comment

[2]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee refers to Scrutiny Committee Practice Note No. 1 of October 2005 concerning delayed commencement provisions of more than 1 year from the time a Bill is introduced in the Parliament.

The Committee will request the Minister to draw this matter to the attention of his Department’s legislation officers.

The Committee will seek further advice from the Minister concerning the necessity to include such a delayed commencement provision.

Charter Report

The Committee will seek further advice from the Minister as to the following matters:

1. Why is there no limit in new section 147(1) on the size of areas that may be designated by the Director of Liquor Licensing?

2. Why does new section 148(1) prevent courts from making interim orders suspending a designation except in exceptional circumstances?

3. Will new section 148(2) permit the prosecution of people who breach banning notices or exclusion orders despite a later finding by a court that the Director’s designation of the relevant area was invalid?

4. Given the availability of circumstantial evidence to disprove reasonable mistakes and reasonably unavoidable circumstances, the powers in new sections 148H &148L and the criminal offence in new section 148Q, why are the reverse burdens of proof in new sections 148F(3) & 148J(3) necessary to enforce compliance with banning notices and exclusion orders?

Pending the Minister’s response, the Committee refers to Parliament for its consideration the question of whether or not clause 5 is a reasonable limit on the Charter’s rights to movement, liberty and the presumption of innocence according to the test set out in Charter s.7(2).

Minister’s Response

Thank you for your letter regarding the Committee’s consideration of this Bill, and advising of the matters on which the Committee has requested further advice.

I will address each of those matters in turn.

Delayed Commencement

The Committee queries the necessity for the default commencement provisions in respect of clauses 4 to 7 of the Bill, noting this, as it is outside the recommended default commencement date of 12 months from the time that a Bill is introduced into Parliament.

Clauses 4 to 7 of the Bill provide for the implementation of the banning notice and exclusion order regime. The implementation of this scheme will require substantial changes to the operational procedures of Victoria Police, the Director of Liquor Licensing and the Courts. Whilst it is anticipated that clauses 4 to 7 of the Bill will commence before 1 July 2009, the extended commencement provisions are designed to ensure there is sufficient time to implement these new procedures, and appropriately advise the general community of the designated precinct areas to support the effective operation of the scheme.

Declaration of Designated Areas – no limitation on the size of areas that may be declared

Clause 5 of the Bill inserts new section 147 into the Act providing for the Director of Liquor Licensing to declare a designated area for the purposes of the banning notice/exclusion order scheme. To declare a designated area, the Director must believe that:-

• alcohol related violence or disorder has occurred in a public place that is in the immediate vicinity (i.e. within 100 metres) of licensed premises within the area; and

• the exercise of banning notice/exclusion order powers in relation to the area is likely to be an effective means of reducing or preventing the occurrence of alcohol related violence or disorder in the area.

The Director must also consult with the Chief Commissioner of Police in declaring an area.

The Committee has observed that “there are no constraints as to the size of the area designated by the Director, but rather, that the area must merely contain a public place affected by relevant violence near licensed premises”, and has questioned why there are no limits on the size of the area that must be declared.

It would not be appropriate to limit the size of a designated area in the legislation. The declaration of designated areas must be based on the Director of Liquor Licensing’s belief that alcohol related violence and disorder has occurred in a public place near licensed premises and that the banning notice/exclusion order scheme is reasonably likely to be an effective means of reducing or preventing such alcohol related violence and disorder. The imposition of an arbitrary size limit would limit the Director’s ability to declare an area having regard to the criteria in the Act.

However it should be noted that new section 148A(1)(a) allows the Director to revoke a declaration at any time, and new section 148A(1)(b) requires the Director to do so if he or she believes the grounds for making the declaration no longer exist.

Why does new section 148(1) prevent courts from making interim orders suspending a designation except in exceptional circumstances?

Will new section 148(2) permit the prosecution of people who breach banning notices or exclusion orders despite a later finding by a court that the Director’s designation of the relevant area was invalid?

New section 148(1) is intended to ensure that no stay may be ordered, in other than exceptional circumstances, with respect to the declaration of a designated area, pending a Court’s consideration of a challenge to the validity of the declaration. The intention of the Bill is to address alcohol related violence and disorder in designated entertainment precincts in a timely fashion. The implementation of the banning notice/exclusion order scheme depends on the declaration of a designated area. To ensure the effective operation of the scheme, it is essential that its operation is not restricted pending the outcome of possibly lengthy Court proceedings.

New section 148(2) is clearly intended to ensure the validity of any action taken under Part 2 of the Act in reliance on a banning notice or exclusion order including any criminal proceedings against a person in respect of a breach of a banning notice or exclusion order.

Given the availability of circumstantial evidence to disprove reasonable mistakes and reasonably unavoidable circumstances, the powers in new sections 148H and 148L and the criminal offence in new section 148Q, why are the reverse burdens of proof in new sections 148F(3) and 148J(3) necessary to enforce compliance with banning notices and exclusion orders?

As indicated in the Statement of Compatibility the purpose of the imposition of a burden of proof on the defendant is to provide the defendant with an opportunity to escape liability in circumstances of honest and reasonable mistakes or total absence of fault without undermining the ability to enforce compliance with banning notices and exclusion orders. The onus only relates to matters that are within the knowledge of the defendant. Requiring the prosecution to prove the absence of these matters as part of the case against the defendant would render the offences unworkable in practice. The capacity of police to remove persons subject to a banning notice or exclusion order from a designated area or licensed premises is intended as an alternative enforcement measure for police.

I trust this addresses the concerns of the Committee and thank you for drawing these matters to my attention.

TONY ROBINSON
Minister for Consumer Affairs

4 December 2007

The Committee thanks the Minister for this response.

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Police Regulation Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 31 October 2007 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 19 November 2007 and made the following comments in Alert Digest No. 15 of 2007 tabled in the Parliament on 20 November 2007.

Committee’s Comment

Charter Report

The Committee will seek further advice from the Minister as to the following matters:

1. Will new section 85E prevent criminal defendants from making legitimate lines of inquiry as discussed by the High Court of Australia in Wakeley & Bartling v R [1990] HCA 23?

2. Will the limitations on disclosure in new sections 85F, 85G and clause 11 prevent police or prosecutors from fulfilling their obligations to disclose relevant information to criminal defendants?

3. Given the existing rules of evidence restricting irrelevant ‘fishing expeditions’, why is new section 85E needed?

Pending the Minister’s response, the Committee draws attention to these provisions.

Minister’s Response

Thank you for your letter of 21 November 2007 in which you seek advice in relation to amendments to the Police Regulation Act 1958 contained in the Police Regulation Amendment Bill 2007.

The Police Regulation Amendment Bill 2007 amends the Police Regulation Act 1958 by:

• Introducing provisions to support an alcohol and other drug testing regime for police officers;

• Separates the office of the Director, Police Integrity from the Office of the Ombudsman;

• Retain the contempt of the Director provisions; and

• Set out provisions for the appointment of the Director, Police Integrity.

I note that the concerns set out in your letter relate only to proposed section 85E, 85F, 85G and the confidentiality provisions of clause 11 of the Bill.

Will new section 85E prevent criminal defendants from making legitimate lines of inquiry as discussed by the High Court of Australia in Wakeley & Bartling v R [1990] HCA 23?

The Victoria Police alcohol and other drugs policy, to which this Bill provides legislative support, is primarily a welfare-based policy directed at assisting in the rehabilitation of police officers with alcohol or other drug problems. In order to protect the integrity of the program and encourage police officers with a problem to participate in the program it is important that the name of the police officer and the result of a test taken under the legislation be suppressed in all but the circumstances outlined in section 85E(2).

The effect of the proposal is that the result of any test taken from a police officer is effectively treated as akin to a health record within the meaning of the Health Records Act 2001, except in the very limited circumstances set out in sections 85C or 85E of the Police Regulation Act 1958.

Your letter refers to the High Court decision in Wakeling and Bartling v R [1990] HCA 23, which involved the admissibility of evidence of consumption of a drug of dependence by a deceased police officer and complaints by the applicants that the trial judge refused to allow cross-examination into the cause of death of that police officer. In this case, the court faced a rather unique situation in that the person whose evidence was in question was dead and obviously unable to be called to give evidence and be cross-examined. The applicants sought to have evidence of the presence of a drug in the deceased police member’s blood admitted through the evidence of the person who performed the autopsy. The trial judge ruled that such evidence was not relevant, incorrectly as the High Court determined.

The provision proposed in the Police Regulation Amendment Bill 2007 does not prevent a police officer being cross-examined as to whether or not he or she has consumed alcohol or a drug of dependence, if evidence of such consumption is relevant to the issue at trial. In the case of a deceased police officer, under the current proposal relevant evidence of consumption of alcohol or drug will be admissible if it has been introduced into evidence at a coronial proceeding as it will then be in the public arena.

Making test results generally available would also risk the privilege of police officers against self-incrimination, a privilege that extends to all members of the community. It is consistent for such potentially self-incriminatory evidence to be inadmissible before a court, as it is in other circumstances, such as, under sections 86PA (8) and 86Q of the Police Regulation Act 1958.

Will the limitations on disclosure in new sections 85F, 85G and clause 11 prevent police or prosecutors from fulfilling their obligations to disclose relevant information to criminal defendants?

The limitations on disclosure imposed by sections 85F, 85G and clause 11 will not remove the obligations of police and prosecutors to disclose relevant information as where evidence of the test result may be relevant, that is in legal proceedings following a critical incident, disclosure will still be required. In other cases where testing has been conducted unrelated to the incident that led to the charging of the defendant, the test result will be irrelevant to the charges against the defendant and the police officer will in any case be available for cross-examination.

Given the existing rules of evidence restricting irrelevant ‘fishing expeditions’, why is the new section 85E needed?

Section 85E is necessary to protect what is primarily akin to a health record from being adduced in evidence where it is irrelevant. Failure to protect such test results from production would place the underlying program at risk and discourage police officers who have an alcohol or drug of dependence problem from seeking treatment and rehabilitation.

The protections offered by the new provisions are important to protect what is primarily a welfare-based program, which provides appropriate punitive responses to police officers who behave inappropriately.

I thank you for the opportunity to respond to the Committee’s questions.

Bob Cameron MP
Minister for Police & Emergency Services

6 December 2007

The Committee thanks the Minister for this response.

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Victorian Energy Efficiency Target Bill 2007

The Bill was introduced into the Legislative Assembly on 31 October 2007 by the Hon. Peter Batchelor MLA. The Committee considered the Bill on 19 November 2007 and made the following comments in Alert Digest No. 15 of 2007 tabled in the Parliament on 20 November 2007.

Committee’s Comment

Charter Report

The Committee will seek further advice from the Minister concerning the following matters:

1. Why does clause 60 refer generally to any person who the Essential Services Commission has reason to believe has information or documents, rather than setting out specific people or classes of people that may be given a notice by the Commission?

2. Why does clause 60 refer generally to any information or documents that are ‘relevant to the operation of this Act’, rather than setting out specific matters that a person may be required to reveal to the Commission?

3. Why does clause 60 include the power to summon an individual to appear before the Commission?

4. Why is clause 60 directly enforced by criminal offence provisions, rather than by sanctions under the VEET scheme or a power for a court, on application, to order a person to comply with a particular request?

Pending the Minister’s response, the Committee refers to Parliament for its consideration of whether or not clause 60, in combination with the criminal offence provisions in clauses 61 and 68, is a reasonable limit on the rights to privacy and liberty according to the test set out in Charter s7(2).

Minister’s Response

I refer to your letter dated 21 November 2007.

Clause 60 of the above Bill enables the Essential Services Commission (the Commission) to require the production of information from a person when the Commission has reason to believe that the person has information or a document that is relevant to the operation of the Act. The purpose of this provision is to ensure that the Commission, as the regulator, has the power to investigate potential breaches of the Victorian Energy Efficiency Target (VEET) scheme established by the Bill. The Commission must be able to effectively regulate this certificate trading scheme so as to ensure that it operates with integrity; to do that it must have reasonable powers of investigation. Without such powers breaches may not be able to be investigated or prosecutions may be abandoned.

In your letter, clause 60 is compared to clause 50, which is a similar but more restricted provision. The limitations in clause 50 are appropriate given the powers there are exercisable by authorised officers rather than the Commission. Clause 60 itself is limited to circumstances where the Commission has reason to believe that a person has relevant information or a document. This limitation, coupled with the general obligation for a public authority to act in accordance with its statutory obligations, which includes acting compatibly with the Charter, appropriately constrains the Commission’s powers of inquiry.

Answers to the specific questions raised by your letter are provided in turn below.

Answers to Questions Raised by the Committee

1. Why does clause 60 refer generally to any person who the Essential Services Commission has reason to believe has information or documents, rather than setting out specific people or classes of people that may be given a notice by the Commission?

It is integral to the operation of the Act and the integrity of the VEET scheme that the Commission should have the ability to make inquiries when investigating matters under the Act. This is the primary purpose of clause 60. In particular, this clause will equip the Commission to investigate possible frauds.

Clause 60 imposes a prerequisite that the Commission have “reason to believe” a person has relevant information or documents to the operation of the Act.

It is important that the Commission should be able to issue clause 60 notices to persons who have relevant information or documents. Given the nature of the VEET scheme, with its particular focus on residential premises, such persons will not necessarily be persons otherwise subject to the Act (i.e. accredited persons or energy suppliers) but rather could be retailers of energy efficient appliances, trades people or administrators of prescribed greenhouse gas schemes.

Limiting the classes of persons to whom clause 60 notices could be issued would unduly restrict the Commission in investigating possible frauds.

2. Why does clause 60 refer generally to any information or documents that are ‘relevant to the operation of this Act’, rather than setting out specific matters that a person may be required to reveal to the Commission?

The written notice issued by the Commission under clause 60 will specify the information or documents that are to be given to the Commission. The information or documents must be relevant to the operation of the Act. Setting out in the Act specific matters that a person may be required to produce to the Commission in a given situation will unduly restrict the Commission’s ability to obtain information or documents and could hamper the Commission when investigating suspected fraud.

3. Why does clause 60 include the power to summon an individual to appear before the Commission?

Clause 60(2)(c) and (d) enables the Commission to require that a person appear before it at a time and place specified to provide certain information or produce a document either orally or in writing. Attendance may be considered necessary where information is not available in writing or, if in writing, requires explanation.

Accordingly, clause 60(2)(c) and (d) supports the Commission’s investigation powers for the proper administration of the VEET scheme.

4. Why is clause 60 directly enforced by criminal offence provisions, rather than by sanctions under the VEET scheme or a power for a court, on application, to order a person to comply with a particular request?

Sanctions under the VEET scheme may be an adequate deterrent and punishment for accredited persons or relevant entities participating in the scheme regulated by the Act, but would not be effective for parties that are not participants in the VEET scheme (including those whose accreditation is suspended).

Clause 60 only applies to a person that the Commission has reason to believe holds information or documentation that is relevant to the operation of the Act and is designed to detect and thereby prevent fraud.

The defence in clause 61 operates to protect people who have a reasonable excuse for not providing information or a document required by a clause 60 notice. Thus, the provision operates as a strict liability offence (not an absolute liability offence). A reasonable excuse includes refusal or failure to give information or evidence or produce a document if it would tend to incriminate the person (see clause 62). It would also be reasonable to refuse to provide information that was not relevant to the operation of the Act. In accordance with section 130 of the Magistrates’ Court Act 1989, a defendant wishing to rely on the reasonable excuse defence need only adduce or point to evidence that puts the matter in issue. The legal burden then lies with the prosecution to prove the matter beyond reasonable doubt. Accordingly, although failure to comply with clause 60 attracts criminal penalties, adequate defences are provided for under the Bill.

Peter Batchelor MP
Minister for Energy and Resources

4 December 2007

The Committee thanks the Minister for this response.

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Committee Room
4 February 2008

Scrutiny of Acts and Regulations Committee
Parliament of Victoria