Scrutiny of Acts and Regulations Committee

Alert Digest No 9 of 2008

Tuesday, 29 July 2008

[Table of Contents]

Building Amendment Bill 2008

Introduced: 25 June 2008
Second Reading Speech: 26 June 2008
House: Legislative Assembly
Member introducing Bill: Hon. Peter Batchelor MLA
Minister responsible: Hon. Justin Madden MLC
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Building Act 1993 (the ‘Act’) to enhance consumer protection and building practitioner and plumber standards by providing a range of improvements to the disciplinary powers of the Building Practitioners Board (BPB) and the Plumbing Industry Commission to enable the system to deal more effectively with builders and plumbers who do not comply with the requirements of the Act.

The Bill provides a mechanism to reinforce the responsibility of a registered builder who is a director of a building company for work carried out by the company.

The amendments deem the director to be responsible for the conduct of the company. The Bill clarifies the roles of municipal and private building surveyors and provides for 2 classes of building surveyor as part of national reforms.

The Bill provides amendments to improve the operation of regulatory schemes established under the Act.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 September 2009.

Inappropriate delegation of legislative powers – delayed commencement

The Committee notes the delayed commencement and observes that no reasons are given in any of the explanatory material for the reasons for such a delay.

The Committee will seek further advice from the Minister for the need to delay commencement by more than one year.

The Committee once again draws attention to Practice Note No.1 of 2005 concerning indefinite or delayed commencement of Acts.

[5]. Good character evidence - Inserts a new section 169(2)(ca) in the Act to require an applicant for registration as a building practitioner to provide information relevant to their good character to the Building Practitioners Board (the ‘BPB’). The information will be prescribed in regulations, and will include such matters as solvency, convictions under an indictable offences against the person, registration or licensing by a body or jurisdiction outside Victoria and any disciplinary actions taken by that body or under that jurisdiction against the applicant, any insurance claim history and conditions imposed by an insurer.

[6]. Duty to advise change of circumstances impinging on good character - Inserts a new section 172A to require a registered building practitioner to notify the BPB without delay of any change to the prescribed information relevant to their good character, which was provided at the time of application under new section 169(2)(ca). Breach of section 172A is an offence, carrying a penalty of 10 penalty units.

[8]. Suspension of registration when in the public interest - Extends the BPB’s discretion under section 178(3) of the Act to suspend a building practitioner's registration pending the holding and determination of an inquiry if the Board considers it is in the interests of the public to do so. Currently the Board may exercise this discretion if it considers it is in the interests of the safety of the public to do so.

A person whose registration has been suspended must give notice of the suspension as soon as possible to any person who has a contract with them, arising out of their work as a building practitioner.

[9]. Amends section 179 to provide additional grounds for the BPB to inquire into the conduct of registered building practitioners and allows the PBP to require a practitioner to undertake a specified course of training. The clause allows the BPB to disqualify a practitioner from being registered for a period of up to 3 years.

[10]. Inserts a new section 179B to provide that where a company or partnership fails to comply with the Act or regulations in carrying out building work, the failure is taken to be the conduct (and failure to comply) of the registered building practitioner who is a director or partner of the company or partnership for the purposes of inquiries by the BPB under sections 178, 179 and 179A.

Extract from the Statement of Compatibility –

Section 25(1)* – Right to be presumed innocent

Clause 10 (section 179B -- conduct of company or partnership to be conduct of building practitioner director or partner)

This proposal deems the director of a company to be responsible for the professional conduct of the company for the purposes of inquiry by the BPB, where they are a registered building practitioner, nominated as the registered building practitioner on the building permit. The BPB is a professional disciplinary body.

The right to be presumed innocent is not engaged because the measure relates only to inquiry by the BPB, and does not involve any criminal offence or infringement or hearing by a court.

*Charter section 25(1)

[11]. Inserts a new section 182(4) into the Act to require a person whose registration has been cancelled or suspended under sections 179 or 180 of the Act to give notice, as soon as possible after the decision to cancel or suspend takes effect or is confirmed on appeal, to any person who has a contract with the practitioner, arising out of their work as a building practitioner. They must also give a copy of this notice to the BPB.

[19]. Amends section 221T and 221ZB of the Act to allow the Commission to use photographs of plumbers for identification purposes and inclusion on their licence or registration documents.

The Committee makes no further comment.

Return to the Table of Contents

Evidence Bill 2008

Introduced: 24 June 2008
Second Reading Speech: 26 June 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility:Attorney-General

Purpose

The proposed new principal Act makes provision for the law of evidence that is uniform with Commonwealth and New South Wales law (the Uniform Evidence Acts (the ‘UEAs’) ). The Act sets out the rules of evidence that apply to all proceedings in courts.

Extract from the Second Reading Speech –

Overview of Bill

The purpose of the Bill is to promote and maintain uniformity and harmonisation of evidence laws across Australian jurisdictions. The Bill clarifies evidence laws by 'codifying' complex common law rules, rewriting current statutory rules of evidence in a clear and concise manner and organising these rules in a logical order.

The policy behind the Bill is that all relevant and reliable evidence that is of an appropriate probative value should be admissible in court proceedings, unless such evidence would cause unfair prejudice to a party to those proceedings.

The Bill contains overarching provisions giving broad judicial discretions to exclude evidence or limit its use in certain circumstances.

These judicial discretions operate as safeguards that protect and balance the rights of parties to proceedings (civil and criminal), the rights of witnesses and the importance of the court hearing all relevant, reliable and probative evidence. They are consistent with and give effect to the rights under the charter, particularly the right to a fair hearing under section 24(1). The overarching judicial discretions and safeguards operate together with other specific safeguards in the Bill.

The primary purpose of the Bill is to set out the rules of evidence that apply to all proceedings in a relevant court with the aim of ensuring a fair hearing for persons appearing before the courts.

Notes:

(1) The introductory note explains that the UEAs and this Act are drafted in identical terms except for minor drafting variations that are required to accord with the drafting style of each jurisdiction. Major differences in content are identified by annotations in the text referencing the UEAs.

(2) This Act is the first of two Acts to introduce model uniform evidence law into Victoria. A further Act will be introduced at a later date to repeal relevant parts of the Evidence Act 1958 (Vic) the subject matter of which is addressed in this Act, and to make other relevant amendments and transitional arrangements across the Victorian statute book.

Content and Committee comment

[Clauses]

[2]. Clauses 1 to 3 and the Dictionary are to commence on the day after Royal Assent. The remaining provisions are to commence on proclamation but not later than by 1 January 2010.

Inappropriate delegation of legislative powers – delayed commencement

The Committee notes the delayed commencement and observes that no reasons are given in any of the explanatory material for the reasons for such a delay.

The Committee will seek further advice from the Attorney-General for the need to delay commencement by more than one year.

The Committee once again draws attention to Practice Note No.1 of 2005 concerning indefinite or delayed commencement of Acts.

[4]. The Act is to apply to all proceedings in a Victorian court. [8]. The Act will however not override special existing evidentiary provisions in other Acts.

[10]. Preserves the operation of laws relating to the privileges of any Australian Parliament.

Chapter 2 – Adducing evidence

[12]. Declares that (except as provided otherwise by the Act) every person is a competent and compellable witness.

[13]. Sets out the test for determining a witness's competence to give evidence. The test focuses on the lack of capacity to understand or answer a question. A person is presumed to be competent to give evidence unless it is proven that he or she is incompetent.

[15 to 16]. Makes specific provision in respect to the compellability of a Head of State, Member of Parliament, Judges and jurors.

[17]. Defendants competence and compellability – Provides for rules of competence and compellability for defendants in criminal proceedings and for any associated defendant(s) (a defined term). A defendant is not competent to give evidence as a witness for the prosecution.

An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.

[18]. Compellability of spouses, partners, parent or child of a defendant – Provides that in a criminal proceeding generally, a person who is the spouse, de facto partner, parent or child of a defendant may object to being required to give evidence or to give evidence about a particular communication.

There must be a likelihood that harm would or might be caused to the person or to the relationship between the defendant and the person if the person gives the evidence and the nature and extent of any harm outweighs the desirability of the evidence being given. If the court finds that the nature and extent of the harm outweighs the desirability of the witness giving evidence, the witness must not be required to give the particular evidence in question, or to give evidence at all.

Note: In respect to Aboriginal persons the Committee notes the following extract from the Statement of Compatibility –

Kinship ties play an important role in Aboriginal communities…

The judicial discretion to excuse a person from giving evidence does not extend to all persons who have a relationship with the defendant, for example, siblings, aunts or uncles.

Where a person has kinship ties with the defendant, other than as a spouse, de facto partner, parent or child, they may be compelled to give evidence against the defendant. While this will not necessarily result in a severance of the kinship ties it has the potential to cause harm to the kinship relationship, and the right in section 19(2)* may therefore limited….

It would be undesirable to extend the operation of clause 18 to all persons who share kinship ties with a defendant, as this is potentially a very broad class of people and would undermine the ability to ensure that important evidence can be obtained.

*Charter 19(2) – Cultural rights

[20]. Applies only to criminal proceedings for indictable offences and permits certain comment by the judge or any party (other than the prosecutor) on a failure by a defendant, his or her spouse or de facto partner or child, to give evidence. Such comment must not suggest that the failure to give evidence was because the defendant was, or believed that he or she was, guilty of the offence concerned.

Note: The Committee’s inquiry into the Right to Silence (Final Report, March 1999) made the following recommendation –

Recommendation 4

The Committee recommends that s 399(3) of the Crimes Act 1958 (Vic) be repealed, and replaced with a provision based on s 20(2) of the Evidence Act 1995 (Cwth) and Evidence Act 1995 (NSW). This would allow the trial judge to comment on an accused person's failure to testify, and so direct the jury in accordance with the common law as it would otherwise apply in Victoria.

[21 to 25]. Provides for oaths and affirmations for sworn evidence. There is no provision for a right to make an unsworn statement.

[30]. A witness can use an interpreter unless he or she can speak and understand English sufficiently to understand questions and give adequate replies.

[31]. Provides that witnesses who cannot speak or hear adequately can be questioned, and give evidence, in any appropriate way.

[36]. Enables a court to order a person who is present at proceedings to give evidence or produce documents if the person could be compelled by way of subpoena, summons or other order to testify and produce the documents.

[38]. Hostile witnesses – Allows a party, with the leave of the court, to cross-examine its own witness in certain circumstances.

[41]. Improper questions may be disallowed – Enables the court to disallow improper questions put to any witness during cross-examination. The clause imposes an obligation on the court to disallow improper questions being put to a vulnerable witness (or inform the witness that the question need not be answered).

Note: An improper question includes questions that are misleading or confusing, unduly annoying, harassing, intimidating, offensive or repetitive, put in a belittling, insulting or inappropriate manner or if the only basis of the question is a stereotype. The court has discretion to disallow these questions in relation to any witness, but must disallow them in relation to vulnerable witnesses (defined by the section).

Chapter 3 – Admissibility of evidence

[55]. Provides that evidence is relevant if it could rationally affect (whether directly or indirectly) the assessment of the probability of the existence of a fact in issue.

[56]. Declares that relevant evidence is admissible except as otherwise provided by the Act. Irrelevant evidence is not admissible.

Hearsay evidence

[59 to 75]. Sets out the general exclusionary rule against the admissibility of hearsay evidence ("the hearsay rule") and sets out a number of exceptions to the rule.

Note: The hearsay rule prevents the admission of evidence of a previous representation of a person (what someone else was heard to say) for the purposes of proving the existence of the fact asserted by that person in the representation.

Opinions

[76 to 80]. States the general exclusionary rule that opinion evidence is not admissible to prove a fact asserted by the opinion ("the opinion rule") and provides where that general rule of exclusion does not apply such as specialist knowledge (expert evidence).

Admissions

[81 to 90]. Sets out exceptions to the hearsay and opinion rules relating to admissions.

[84]. If the party against whom evidence of an admission is being led raises an issue in the proceeding about whether the admission was influenced by violent, oppressive, inhuman or degrading conduct, or by a threat of such conduct, evidence of the admission is not admissible unless the court is satisfied that the admission was not influenced by that conduct or by a threat of that conduct.

[85]. Relates to the reliability of admissions by defendants in a criminal proceeding.

[86]. Makes inadmissible in a criminal proceeding any document (other than a sound or video recording, or transcript of such a recording) purporting to be a record of interview by an investigating official with a defendant unless the defendant acknowledged the document as a true record by signing or otherwise marking it.

[89]. Prohibits unfavourable inferences (including an inference of consciousness of guilt or an inference relevant to a party's credibility) being drawn in a criminal proceeding from a failure by a person to answer a question, or respond to a representation, from an investigating official performing functions in connection with the investigation of the commission, or possible commission, of an offence.

[90]. Provides that, if in a criminal proceeding, having regard to the circumstances in which an admission was made, it would be unfair to an accused to use evidence of the admission in the prosecution case, the court may refuse to admit the admission at all, or admit the admission, but limit its use.

Tendency and coincidence

[94 to 101]. This Part provides for the admissibility of evidence relating to conduct, reputation, character and tendency of parties and witnesses, that is relevant to a fact in issue in the proceedings but does not apply to evidence that relates only to the credibility of a witness, evidence in a proceeding so far as it relates to bail or sentencing or to evidence of character, reputation, conduct or tendency of a person that is a fact in issue in the proceeding.

[97]. Sets out the exclusionary rule for tendency evidence. However tendency evidence can be admitted if appropriate notice is given (or the court dispenses with the notice requirement) and the court finds that the evidence has significant probative value.

[98]. Sets out the exclusionary rule for coincidence evidence. The rule ("the coincidence rule") prevents the admission of evidence of the occurrence of two or more events that is being tendered to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind.

However coincidence evidence can be admitted under this clause if appropriate notice is given and the court finds that the evidence of the two or more events has significant probative value.

[101]. Provides a further consideration in relation to the admissibility of both tendency and coincidence evidence adduced in a criminal proceeding. In such a proceeding, where tendency or coincidence evidence is not ruled out by clauses 97 or 98, the court must then consider whether the probative value of such evidence substantially outweighs any prejudicial effect that it may have on the defendant.

Credibility evidence

[101A to 108C]. The Division deals with the "credibility rule" and additional protections and exceptions to that rule and provides that in general, credibility evidence about a witness is not admissible and sets out exceptions to the rule.

[106]. The credibility rule does not apply to rebutting a witness's denials by other evidence.

Character evidence

[110 to 112]. The Part sets out rules relating to evidence of the character of a defendant in a criminal proceeding.

[110]. Provides exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule for evidence adduced by a defendant about his or her own good character and evidence adduced to rebut such evidence.

Identification evidence

[113 to 116]. The Part sets out exclusionary rules for visual identification evidence in a criminal proceeding and provides for the giving of warnings to juries about identification evidence.

Privileges

[117 to 134]. The Part sets out evidence that is protected from disclosure on grounds of privilege or for public policy considerations.

[118 to 120]. Clarify the circumstances under which “client legal privilege" can arise.

[120]. Deals with client legal privilege of unrepresented parties.

[121 to 126]. Provides for the circumstances where the loss of client legal privilege may apply.

[127]. Religious confessions – Entitles members of the clergy to refuse to divulge both the contents of religious confessions made to them in their professional capacity and the fact that they have been made.

[128]. Self-incrimination – sets out the process which the court is to undertake when a witness objects to giving particular evidence, or evidence on a particular matter, on the grounds that the evidence may tend to prove he or she has committed an offence or is liable to a civil penalty.

The court must determine whether there are reasonable grounds for the objection and if it finds that there are, the court is to advise the witness that they do not need to give the evidence unless required to do so by the court. In such circumstances, where the witness gives the evidence, whether required to by the court or otherwise, the court is to give the witness a certificate.

The court can only require the witness to give the evidence if the evidence does not tend to prove the witness has committed an offence or may be liable to a civil penalty under the law of a foreign country and the interests of justice require that the witness give the evidence. A certificate makes the evidence (and evidence obtained as a consequence of its being given) inadmissible in any Australian proceeding, except a criminal proceeding in respect of the falsity of the evidence.

[128A]. Provides a process to deal with objections on the grounds of self-incrimination when complying with a search order (Anton Piller order) or a freezing order (Mareva injunction) in civil proceedings other than under the proceeds of crime legislation.

It provides that the privilege against self-incrimination under the Act applies to disclosure orders. The principal provisions are outlined below.

Evidence excluded in the public interest

[129]. Judicial reasons – Evidence excluded in the public interest prohibits (subject to some exceptions) evidence of the reasons for a decision, or of the deliberations of a judge or an arbitrator being given by the judge or arbitrator, or by a person under his or her direction or control, or by tendering a document prepared by any of these persons.

The section does not apply to published reasons for decisions. The section also prohibits evidence of the reasons for a decision or the deliberations of a member of a jury in a proceeding being adduced by any jury member in another proceeding. The prohibition does not apply to certain types of cases such an offence for attempting to pervert the course of justice.

[130]. Public interest privilege – Requires a court to prevent evidence of matters of state (for example, matters affecting international relations or law enforcement) being adduced if the public interest in admitting the evidence is outweighed by the public interest in preserving its secrecy or confidentiality.

[131]. Settlement negotiations – Provides that evidence is not to be adduced of communications made between, or documents prepared by, parties in dispute in connection with attempts to settle the dispute (this does not include attempts to settle criminal proceedings).

[132]. A court must satisfy itself that a witness or party is aware of his or her rights to claim a privilege under this Part if it appears that the witness or party may have a ground for making an application or objection under it.

[133]. A court can call for and examine any document in respect of which a claim for privilege under this Part is made so that it may determine the claim.

Discretionary and mandatory exclusions

[135]. The court has a general discretion to exclude evidence if its probative value is substantially outweighed by the danger of it being unfairly prejudicial to a party, misleading or confusing or possibly causing or resulting in undue waste of time.

[137]. The court must exclude prosecution evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the accused.

[138]. Discretion to exclude improperly or illegally obtained evidence – Enables the court to exclude evidence obtained improperly, unlawfully or in consequence of an impropriety or a contravention of the law. Such evidence is excluded unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in the particular way it was obtained. The clause is intended to reflect, with some modifications, the exclusionary discretion at common law that is known as the rule in Bunning v Cross (1978) 141 CLR 54.

[139]. Sets out the circumstances in which evidence of a statement made or act done by a person during questioning by investigating officials is to be taken to have been improperly obtained for the purpose of clause 138.

Chapter 4 – Proof

[140 and 141]. Standard of proof in civil and criminal proceedings – Provides that the standard of proof in civil and criminal proceedings is respectively, proof on the balance of probabilities and proof beyond reasonable doubt. In a case where the defendant is required to prove some evidentiary fact for example, a reverse onus requirement to prove ‘reasonable excuse or an exception or proviso, the standard of proof is on the balance of probabilities.

[142]. Standard of proof concerning admissibility of evidence or other matter – The standard of proof for a finding of fact necessary for deciding a question whether evidence should or should not be admitted in a proceeding, or any other question arising under the Act (if the Act does not otherwise provide) is proof on the balance of probabilities.

Judicial notice

[143 to 145]. Makes it unnecessary to adduce evidence about matters of law, including the provisions and coming into operation of Acts and statutory rules, about knowledge that is not reasonably open to question and that is either common knowledge in the locality where the proceeding is being heard or can be verified by consulting authoritative sources.

Warnings and information

[165]. Unreliable evidence – Allows any party in a jury trial to ask the judge to give a warning to the jury about the unreliability of evidence to which the clause applies and the need for care in determining the weight to attach to the evidence and sets out the types of evidence that may be unreliable and includes hearsay evidence, evidence of admissions and evidence affected by the age or ill-health of the witness.

[165A]. Evidence of children – Deals with warnings in relation to children's evidence.

[165B]. Prejudicial effect of delay – Deals with warnings to juries in criminal proceedings where a delay as been found by the court to have resulted in a significant forensic disadvantage to the defendant.

Chapter 5 – Miscellaneous

[184]. Defendant may admit matters or give consents – Enables a defendant in or before a criminal proceeding, to make any admissions and give any consent that a party to a civil proceeding can make. A defendant's consent will not be effective in criminal proceedings unless he or she has been advised to consent by his or her lawyer, or if the court is satisfied that the defendant appreciates the consequences of doing so.

[187]. Declares that, for the purposes of a law of the State, a body corporate does not have a privilege against self-incrimination.

[188]. Empowers a court to impound documents tendered or produced before the court.

[189]. Sets out the circumstances in which a voir dire (the determination of a preliminary question in the absence of a jury) is to be held.

[190]. Waiver of rules of evidence – Allows the court, with the consent of the parties, to waive the rules relating to the manner of giving evidence, the exclusionary rules and the rules relating to the method of proof of documents. A defendant's consent will not be effective in a criminal proceeding unless he or she has been advised to consent by his or her lawyer, or the court is satisfied that the defendant understands the consequences of the consent.

[194]. Court may issue warrant to attend – Provides powers for the court to issue a warrant to bring a witness before the court who has failed to attend court, including circumstances where the court is satisfied that the witness is avoiding service or is unlikely to attend.

[195]. Prohibited question not to be published – Makes it an offence to print or publish (without express court permission) an improper question, or any question disallowed by the court because the answer would contravene the credibility rule or any question in respect of which leave has been refused.

Schedule 1

Schedule 1 provides for the form of the oaths and affirmations that may be taken or made by witnesses and interpreters.

Dictionary

The dictionary defines various words and expressions used in the Act.

Charter Report

Protection of families – Cultural rights – Extended families of and people with kinship ties to defendants must give evidence even if it harms their relationship with the defendant – Whether reasonable limit

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’. Charter s. 17(1) provides that ‘[f]amilies are the fundamental group unit of society and are entitled to be protected by… the State’. Charter s. 19(2)(c) provides that ‘Aboriginal persons… must not be denied the right… to maintain their kinship ties.’

The Committee notes that clause 12(b) provides that all competent persons can be compelled to testify in a court. The Committee also notes that clause 18 provides that spouses, de facto partners, children and parents of a criminal defendant who object to giving evidence can only be made to give evidence if there is no likely harm to be caused in their relationship with the defendant or the desirability of them giving the evidence outweighs the extent of that harm. The Committee observes that clause 18 does not extend to the extended family of a defendant, including people with kinship ties to an Aboriginal defendant. The Committee considers that clauses 12(b) and 18 may limit the Charter rights of criminal defendants to protection of their family relationship and, in the case of Aboriginal defendants, to maintain their kinship ties.

The Statement of Compatibility remarks:

It would be undesirable to extend the operation of clause 18 to all persons who share kinship ties with a defendant, as this is potentially a very broad class of people and would undermine the ability to ensure that important evidence can be obtained. The definition of spouse, de facto partner, parent or child will include a broad class of persons who share kinship ties with the defendant, and the provision provides an appropriate balance between the preservation and maintenance of close relationships and the need to maximise the ability to adduce relevant, probative evidence.

The Committee observes that if clause 18 were extended to a wider range of relationships, those people would still be required to testify if the desirability of doing so outweighs the extent of any harm that would be caused to their relationship with the defendant.

The Committee refers to Parliament for its consideration the questions of:

  • whether or not the restriction of clause 18, providing discretionary protection from compelled testimony, to the immediate family of criminal defendants is a limitation on the Charter right of the extended families of criminal defendants to protection by the State and of Aboriginal persons to maintain their kinship ties with criminal defendants

  • if so, whether or not clauses 12(b) and 18, by requiring that non-immediate family of criminal defendants testify even when the desirability of them doing so is outweighed by the harm that would be caused to their family relationships, are a reasonable limit on the right of families and Aboriginal persons according to the test set out in Charter s. 7(2)

Fair hearing for criminal defendants – Admission of hearsay, opinion and admission evidence against criminal defendants – Exclusion of certain defence evidence – Whether reasonable limits

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’. Charter s. 24(1) provides that all criminal charges must be determined ‘after a fair… hearing’.

The Committee notes that Chapter 3 of the bill sets out when evidence can and cannot be used in legal proceedings. The Committee observes that the bill generally widens the categories of evidence that can be received in a court or tribunal, including the following categories of evidence of prosecution evidence that are currently automatically inadmissible under Victorian law:

  • hearsay evidence consisting of unintentional assertions of fact (clause 59(1))

  • hearsay evidence admitted for a non-hearsay purpose (clause 60)

  • first-hand hearsay if certain conditions are satisfied (clauses 65(2) and 66(2))

  • opinions about the ultimate issue in the trial or matters of common knowledge (clause 80)

  • admissions that were prompted by threats or promises by a person in authority (although such evidence must satisfy a test of reliability in some circumstances) (clause 85)

The Committee also observes that the bill includes provisions that potentially exclude evidence of a criminal defendant’s innocence, including the following categories of evidence:

  • second-hand hearsay evidence that falls outside defined exceptions (clause 65(8))

  • tendency or coincidence evidence that lacks significant probative value (clauses 97 and 98)

  • evidence rebutting witnesses’ answers about their credibility that falls outside defined exceptions (clause 106)

  • religious confessions (clause 127)

  • evidence relating to matters of state where the public interest favours exclusion (clause 130)

  • evidence whose probative value is substantially outweighed by the danger of unfair prejudice, confusion or time-wasting (clause 135)

The Committee considers that these clauses engage the Charter right of criminal defendants to a fair hearing.

The Statement of Compatibility remarks:

[W]hat amounts to a ‘fair’ hearing takes account of all relevant interests including those of the accused, the victim, witnesses and society. For example, it may be in the interests of the accused to know the name of a police informant. However, the right to a fair hearing is not breached by the privilege in respect of public interest immunity in clause 130, which enables that information to be withheld from the accused where those interests are outweighed by the public interest in preserving secrecy or confidentiality.

The balancing of rights required by the charter has essentially been undertaken by both the Australian Law Reform Commission and the Victorian Law Reform Commission on whose reports this bill is based. In addition, in most cases the courts are given a broad discretion, which will ensure that the provisions are applied to ensure a fair hearing in the individual circumstances of the case. Further, clause 11 of the bill expressly preserves the powers of a court with respect to abuse of process.

The Committee observes that the clauses discussed above are all drawn from model legislation developed in other Australian jurisdictions in the early 1990s and that recent law reform commission reports preceded the adoption of the Charter. The Committee also observes that the bill’s purpose of achieving uniformity with other jurisdictions that presently lack a Charter-like statute (clause 1) and the exemption of courts and tribunals in their non-administrative functions from the Charter’s obligation to act compatibly with human rights (Charter s. 4(1)(j)) may mean that the Charter has little impact on the operation of the bill. The Committee further observes that the High Court has held that neither the remedy of abuse of process nor the discretions contained in the bill can be used in a way that undermines statutory rules of evidence and exceptions to them: PJE v R S154/95 (9/9/96); Papakosmas v R [1999] HCA 37, [39], [97].

The Committee therefore refers to Parliament for its consideration the questions of:

  • whether or not clauses 59(1), 60, 65(2), 65(8), 66(2), 80, 85, 97, 98, 106, 127, 130 & 135 limit the Charter right of criminal defendants to a fair hearing

  • if so, whether or not they are reasonable limits the rights of criminal defendants according to the test set out in Charter s. 7(2)

Fair hearing – Discretion to admit evidence obtained in breach of Charter rights – Admission favoured in trials of serious offences – Whether reasonable limit

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’. Charter s. 24(1) provides that all criminal charges must be determined ‘after a fair… hearing’.

The Committee notes that clause 138(1), while providing for the exclusion of evidence obtained illegally or improperly, also provides for the admission of the evidence if a court finds that the desirability of admitting it outweighs the undesirability of admitting it. The Committee observes that the effect of clause 138(1) is that courts may admit evidence obtained in breach of Charter rights. The Committee also observes that this provision has been held in New South Wales to favour admission when the offence being tried is a serious one: R v Dalley (2002) 132 A Crim R 169, 171. The Committee therefore considers that clause 138(1) may engage the Charter rights of persons being investigated in relation to serious criminal offences, including their right to a fair hearing before those charges are determined by a court

The Statement of Compatibility remarks:

[T]he right to a fair hearing involves the balancing of all relevant interests. The balancing approach undertaken pursuant to clause 138 is similar to that developed by the New Zealand courts in respect of the right to a fair trial under the New Zealand Bill of Rights Act. As the New Zealand courts have recognised, a prima facie exclusionary rule does not give sufficient weight to the interests of the community or the victim; namely, that persons who are guilty of serious offences should not go unpunished: R v. Shaheed [2002] 2 NZLR 377.

The Committee observes that the Charter already incorporates a provision (Charter s. 7(2)) for the balancing of rights against other interests; a further balancing may double-count those competing interests. The Committee also observes that, whereas the New Zealand courts requires that a breach of human rights be given ‘considerable weight’ in the balancing exercise, clause 138(3)(f) only requires that a breach of a right in the International Covenant on Civil and Political Rights (which lacks some of the rights protected by the Charter) be taken ‘into account’. The Committee further observes that United States courts have long required the mandatory exclusion of evidence obtained in breach of its bill of rights in order to deter future breaches and that Canadian courts require the exclusion of all evidence (including real evidence) compelled from the defendant’s body.

The Committee refers to Parliament for its consideration the questions of:

  • whether or not clause 138(1), by permitting the use in criminal prosecutions of evidence obtained through a breach of Charter rights, especially in trials of serious offences, limits the Charter rights of people investigated and charged with serious offences

  • if so, whether or not clause 138(1) is a reasonable limit on the Charter rights of people investigated and charged with serious offences according to the test set out in Charter s. 7(2)

The Committee makes no further comment.

Return to the Table of Contents

Family Violence Protection Bill 2008

Introduced: 24 June 2008
Second Reading Speech: 26 June 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility:Attorney-General

Purpose

The Bill establishes a system of civil intervention and protection orders for persons who have experienced violence from a member of their family. The new Act will replace the system originally established by the Crimes (Family Violence) Act 1987.

The Act provides for –

  • Police powers of preventative detention prior to an intervention order being sought or made allowing police to hold a person while protective measures are being put in place and issue a family violence safety notice prior to the court considering an application for a family violence intervention order.

  • Police powers of entry and search and seizure of firearms, certain weapons, firearms authorities and ammunition.

  • Registration of civil protection orders made to protect family members in other States and Territories and in New Zealand.

  • A regime for those who abuse the court system and harass family members by vexatiously making applications under the Act, to be declared vexatious litigants and have restrictions placed upon their access to the court system under the Act.

Content and Committee comment

[Clauses]

Part 1 – Preliminary

[1 and 2]. Provide for the purposes of the Act and how they are to be achieved.

[3]. Sections 1 (purpose) and section 224 (relating to certain interstate orders under the Crimes (Family Violence) Act 1987) commence on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 October 2009.

Inappropriate delegation of legislative powers – delayed commencement

The Committee notes the delayed commencement and observes that no reasons are given in any of the explanatory material for the necessity or desirability of a delay in commencement of greater than one year.

The Committee will seek further advice from the Attorney-General for the need to delay commencement by more than one year.

The Committee again draws attention to Practice Note No. 1 of 2005 issued by the Committee in October 2005 concerning indefinite or delayed commencement of Acts.

Part 2 – Interpretation

[5 to 7]. Defines the meaning of family violence and includes the economic abuse of a family member; a definition of economic abuse, a term that is used in the definition of family violence; and a definition of emotional or psychological abuse, a term that is used in the definition of family violence.

[8 to 10]. Provides key definitions for family member, domestic partner and relative.

Part 3 – Police protection before court orders – Holding powers and family violence safety notice

Part 3 provides police officers with protective powers prior to an intervention order being made. It includes a power for police to hold a person while protective measures are being put in place and issue a family violence safety notice prior to the court considering an application for a family violence intervention order.

Holding powers

[14]. A police officer may direct a person to, remain at the place where the person is when the direction is given; or go to, and remain at, a place stated by the officer; or remain in the company of the police officer; or another police officer stated in the direction; or another person stated by the police officer. The direction may be given orally or in writing.

A direction to remain in the company of another person who is not a police officer may only be given with that person's consent.

At the time of giving the direction, the police officer must inform the directed person that refusing or failing to comply with the direction may result in their apprehension and detention (c.15) and that, if apprehended and detained under that clause, it is an offence to escape or attempt to escape.

[15]. Provides a detention power where a person refuses or fails to comply with a direction under clause 14. Police may use such force as is reasonably necessary to apprehend and detain a person directed under clause 14 where that person refuses or fails to comply with that direction.

A person may be detained at a police station or other place. A person may only be detained at a police gaol (within the meaning of the Corrections Act 1986) where the police officer considers this location is necessary for the protection of any person or property or to prevent the person escaping from detention.

Rights or freedoms – Detention without judicial involvement – Whether detention is punitive or preventative and remedial in character

The Committee draws attention to the provisions that allow for preventative detention in a police gaol of a person who refuses to comply with a direction where the police officer considers that such detention is necessary for the protection of any person or property or to prevent the person escaping from detention.

The Committee observes that it has previously reported on Acts that included provisions for preventative detention at the direction or order of non-judicial officers. The Committee accepts that limited short term detention, in this case for up to 6 hours, may be justified where there is a reasonable nexus with a legitimate preventative and non-punitive purpose.

The question whether the detention provisions in the Act are to be characterised as preventative or remedial and if they are whether they are reasonable and necessary in the circumstances is a matter for the consideration of the Parliament.

[16]. Police may search a person if the person has been apprehended and detained under the holding powers.

[17]. Provides some procedural requirements for persons who are under a clause 14 direction at a police station and persons under a clause 15 detention.

[18]. Limits the duration of the direction power, inclusive of the detention power to 6 hours from the time the initial direction is given, or for a further period if ordered by the court. [19]. Allows a police officer to apply to the court for an extension of the period of the direction or detention beyond 6 hours up to a total of 10 hours.

[22]. Prohibits a police officer from interviewing or questioning a person under the direction or detention in relation to any offence or alleged offence.

Family violence safety notices – After hours protection

[24 and 25]. After hours (outside of court hours) protection – Provides for the circumstances in which a police officer may apply to another police officer of the rank of Sergeant or above for a family violence safety notice (‘safety notice’) to be issued until an application for a family violence intervention order can be decided by the court. The application may only be made outside normal hours (i.e. before 9 am and after 5 pm) and on weekends and public holidays. The application may be made in person or by telephone or other electronic communication.

[29]. The conditions that may be included in a safety notice are the same as those that may be included on a family violence intervention order under section 81, except for conditions that cancel or suspend a firearms authority or weapons approval.

Note: If the respondent has a firearms authority or weapons approval, it is intended that the responding police officer will use powers under section 163 to seize any firearms or weapons.

[31]. A safety notice is taken to be an application for a family violence intervention order by the police officer who applied for the notice and a summons for the respondent to appear at the first mention date which must be within 72 hours of the service of the safety notice.

[37 and 38]. It is an offence to contravene a safety notice. Police may arrest a person without a warrant if the officer believes on reasonable grounds that the person has contravened a safety notice. The Bail Act 1977 will apply to those arrested under this power.

[41]. The Division concerning safety notices expires 2 years after commencement.

Part 4 – Family Violence Intervention Orders

The Part sets out how an application for a family violence intervention order (an order) is made, how proceedings are conducted, the power of the court to make interim and final orders, the conditions that may be included in an order and how long an order will last. The Part also provides how an order can be varied, revoked or extended and how a decision can be appealed.

[45]. A police officer or an affected family member can apply for an order in person or any other person can apply on their behalf with the affected family member's consent.

[49]. A registrar may issue a summons requiring the respondent to attend court once an application has been made.

[50]. In certain circumstances a Magistrate or registrar may issue a warrant to arrest the respondent once an application for a family violence intervention order has been made.

[52]. The Bail Act 1977 applies if a warrant has been issued under clause 50.

Interim orders

[53]. The court may make an interim order, if there is an application for a family violence intervention order and the court is satisfied that an interim order is necessary for the safety of a family member, to protect a child or preserve property of a family member; or the parties consent to or do not oppose the making of an interim order; or a family violence safety notice has been issued and the court is satisfied there are no circumstances that would justify discontinuing protection.

[54]. Right to a fair trial – right to be heard – An interim order may be made if the respondent has not been served with the application or is not present in court.

Note: From the Second Reading Speech – Interim orders can be made without the respondent present but are only effective once they are served on the respondent.

Family violence intervention orders (Final orders)

[62]. The court must decide on its own initiative whether to allow a child (who is not an applicant or respondent) to be legally represented.

[65]. Fair hearing – Rules of evidence may not apply – The court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary, except in criminal matters where an order has been contravened. However certain provisions of the Evidence Act 1958 which provide protection for witnesses apply.

[66]. Evidence may be admitted via affidavit or sworn statement but the court, by leave, may require a person giving such evidence to attend in person as a witness and be cross-examined.

[67]. Fair hearing – Witnesses for a party – A child, other than an applicant or respondent for an order, may not give evidence without the leave of the court

[68]. Fair hearing – Public hearing – The Magistrates' Court has a discretion to close court proceedings, or limit those who may attend, to protect a witness, affected family member or protected person from undue distress or embarrassment.

[69]. Provides alternative arrangements for conducting proceedings including the use of closed circuit television, permitting support persons while a person gives evidence and requiring legal representatives to remain seated.

[70]. Fair hearing – Right to cross-examine – Restricts personal cross-examination by the respondent of protected witnesses (defined by the section). A person may be declared a protected witness if the person has a cognitive impairment or otherwise needs the protection of the court.

A protected witness must not be personally cross-examined by the respondent unless the protected person is an adult who has consented to being cross-examined and the court decides it would not have a harmful impact. If the protected witness is an adult with a cognitive impairment, the court must also be satisfied that the protected witness is able to give valid consent and would be competent to give evidence. The court must be reasonably satisfied that the respondent has had an opportunity to seek legal representation to cross-examine a protected witness.

[74]. The court may make a final order if the court has found that the respondent has on the balance of probabilities committed family violence, in accordance with the definition of family violence in clause 5, and is likely to do so again.

[75]. The court may make a final order if there is a police application that the affected family member has not consented to.

A final order can be made without the protected person's consent on a police application with any conditions, if the protected person is a child, has a guardian and the guardian has consented to the application or the person is cognitively impaired.

[76]. The court can make final orders in respect to persons associated with the respondent (an additional respondent) or affected family member (an additional applicant).

[77]. The court may make a final order to protect a child if the parties have not made an application on behalf of the child.

[78]. The court may make a final order by consent. If the respondent is a child the court must be satisfied that there are grounds to make the order.

The court may however conduct a hearing if it believes it is in the interests of justice to do so.

Conditions of family violence intervention orders

[79 to 95]. Provides for the conditions that may be included in an order.

[81]. Exclusion from the home – home privacy – The conditions that may be included in a family violence intervention include the exclusion of the respondent from the protected person’s residence.

[82 and 83]. The court must consider whether the respondent should be excluded from the residence as a condition of the family violence intervention order.

[86 to 88]. The court may make conditions related to personal property that may be made as part of an order (subject to contrary orders made by relevant courts in respect to property).

[92]. If the court is satisfied that there are no Family Law Act orders on foot and the court is satisfied that the protected person's and the child's safety would not be jeopardised by the respondent having contact with the child, then the court must prescribe conditions making these negotiations between the protected person and the respondent on child contact as safe as possible for the protected person.

[93]. The court must prohibit a respondent from contact with a child under an order if the court decides such contact poses a risk to the protected person's or child's safety.

[97 and 98]. Duration of final order – The court may specify a period that a final order will remain in force. If the respondent is a child, the order should not last for longer than 12 months unless there are exceptional circumstances.

Appeals to County Court and Supreme Court

[114]. Provides for who may appeal against the making of a family violence intervention order or a refusal to make such an order. A vexatious litigant must be granted leave under section 96 before they can appeal a decision on an application.

[117]. An appeal against a decision does not operate as a stay of the Magistrates' Court or Children's Court decision, unless it is a counselling order. However the court may make an order staying the original decision pending the determination of the appeal. The court may impose bail conditions on an appellant to ensure the safety of a protected person or to ensure a party's attendance at the appeal.

[118]. If the applicant for a family violence intervention order was not the protected person and that applicant is appealing a decision, the appeal cannot proceed unless the protected person or those with responsibility for the protected person (such as a parent or guardian) consents to the appeal (also refer to the section 85 of the Constitution Act 1975 report below).

[119]. An appeal against a decision of the original court is by way of a rehearing and sets out the powers of an appeal court in relation to the original decision.

[120]. No appeal is permissible against a decision of the County or Supreme Court determining an appeal from a Magistrates' Court or Children's Court (also refer to the section 85 of the Constitution Act 1975 report below).

[122]. A person may seek a rehearing of an application if an order has been made and that person was not served with the application, nor made aware of it under an order for substituted service. An application for a rehearing does not operate as a stay on the final order or order declaring a person to be vexatious.

[123]. Contravening an order is a criminal offence.

[124]. A police officer may arrest a person without a warrant if the officer believes on reasonable grounds that the person has contravened a family violence intervention order. The Bail Act 1977 will apply in case of an arrest under this section.

Part 5 – Counselling orders

[126 to 144]. The Part provides for counselling orders and provides that, if the Family Violence Court Division makes a final order and the requirements for the application of the Part are satisfied, it must make an order requiring the respondent to be assessed as to their eligibility for counselling. The court may then order a respondent to a family violence intervention order to attend counselling if it receives a report and is satisfied that the respondent is eligible to attend counselling.

Presumption of innocence

[129(5) and 130(4)]. Provide that it is an offence to fail to attend an interview or for subsequent counselling without a reasonable excuse.

The Committee notes the reverse onus provision requiring the respondent to establish evidentiary facts of an exception or proviso such as ‘reasonable excuse’ and accepts that such reverse onus provisions may be acceptable where such facts are peculiarly within the knowledge of the respondent.

Note: From the Statement of Compatibility – Provisions that merely place an evidential burden on a defendant (that is, the burden of showing that there is sufficient evidence to raise an issue) with respect to any available exception or defence do not generally limit the right to be presumed innocent because the prosecution still bears the legal burden of disproving that matter beyond reasonable doubt.

[143]. The Act allows for the collection of health information within the bounds provided in the Health Records Act 2001.

Part 6 – Jurisdiction of courts and proceedings

[150]. Restricts the presence of children in proceedings under the Act.

[155]. A family violence intervention order can be made if there are also criminal proceedings for the same conduct.

Note: Concurrent proceedings may co-exist because a family violence intervention order is a civil remedy.

Part 7 – Enforcement powers

[157]. Search without warrant – Police officers may enter and search premises for a person in a number of circumstances without a warrant.

[158]. It is an offence to fail to surrender firearms or weapons when directed to do so by police. Surrender may be required immediately or directed to occur at a specified place and time within 48 hours.

It is an offence not to comply with such a direction without lawful excuse.

The Committee notes the reverse onus provision requiring the respondent to establish evidentiary facts of an exception or proviso such as ‘reasonable excuse’ and accepts that such reverse onus provisions may be acceptable where such facts are peculiarly within the knowledge of the respondent.

Note: From the Statement of Compatibility – Provisions that merely place an evidential burden on a defendant (that is, the burden of showing that there is sufficient evidence to raise an issue) with respect to any available exception or defence do not generally limit the right to be presumed innocent because the prosecution still bears the legal burden of disproving that matter beyond reasonable doubt.

[159]. Police may search certain premises or vehicles without a warrant if an officer is aware or has reasonable grounds to suspect firearms or weapons are in the respondent's possession.

[160]. Search of premises or vehicle with warrant – Police may apply to a magistrate for the issue of a search warrant in relation to particular premises or a vehicle. The provisions of the Magistrates’ Court Act 1989 apply to such warrants.

Part 8 – Restriction on publication of proceedings

[166 to 169]. Restricts the publication of proceedings (or pictures) in the Magistrates' Court.

Part 9 – Relationship with other Acts

[170 to 176]. Provides for the application and interaction of other Acts with this Act.

Part 10 – Interstate and New Zealand orders

[177 to 187]. Provides for registration of corresponding interstate and New Zealand orders in the court.

Part 11 – Vexatious litigants

[188 to 200]. Right to a fair hearing – Makes provision for prohibiting certain declared vexatious litigants from commencing proceedings under the Act.

A person who is declared a vexatious litigant cannot begin any proceedings under the Act against the person protected by the order or their children without the leave of the court. Leave of the court may be given by any magistrate.

With the leave of the relevant appeal court, a person may appeal against a vexatious litigant order made against them.

Part 12 – Service of documents

[201 to 207]. Deals with service of orders, manner of service, proof of service and like matters.

Part 13 – Miscellaneous

Section 85 – Report to the Parliament pursuant to section 17(b) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[208]. Declares that it is the intention of clauses 118 and 120 to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 118 provides that if the applicant for a family violence intervention order was not the protected person and that applicant is appealing a decision, then the appeal cannot proceed unless the protected person or those with responsibility for the protected person (such as a parent or guardian) consents to the appeal. The reason for varying the Supreme Court's jurisdiction in this manner is to ensure that a protected person or a person with the responsibility for a protected person can decide what matters are appealed on their behalf or on behalf of those for whom they have responsibility.

Clause 120 provides that there is no further appeal from an appeal decision of the Supreme Court. This is appropriate as the rights of the parties in such cases have been tested in a hearing by the President of the Children's Court and the Supreme Court and further appeals could result in a proliferation of proceedings. This may result in the attendance of those subject to family violence at numerous traumatic court hearings. If new facts and circumstances emerge, then the respondent for an order may seek a variation or revocation of the family violence intervention order from the Magistrates' Court.

The Committee having reviewed the section 85 statement above, the declaratory and enabling clauses and the explanatory memorandum is of the view that the proposed provision altering or varying section 85 of the Constitution Act 1975 is appropriate and desirable in all the circumstances.

[209 to 211]. Make provision for the making of rules of court and regulations.

Part 14 – Repeals, transitional and validation provisions

The Part repeals the Crimes (Family Violence) Act 1987 and makes provision for the continuance of existing orders and clarifies how applications for various orders that are not finalised at the time the Act comes into force are to be handled.

Part 15 – Repeal of counselling order provisions

[225 to 232]. Have the effect of repealing Part 5 (Counselling Orders) and those provisions in the Act and the Magistrates' Court Act 1989 which relate to the power of the courts to make counselling orders when final intervention orders are made in the Family Violence Court Division of the Magistrates' Court.

Note: Court ordered behaviour change counselling for those who have committed family violence is a trial program being conducted at Ballarat and Heidelberg Magistrates' Court. At the conclusion of the trial on 30 June 2009, the relevant provisions of the Act and Magistrates' Court Act 1989 will be repealed. Depending on the evaluation of the trial, amendments may be required at a later date to the Act to provide ongoing court powers to order behaviour change counselling. Clause 231 is a transitional provision that ensures that even when the counselling provisions are repealed they continue to apply to any counselling orders made under the Act before the repeal.

Part 16 – Consequential amendments

[233 to 272]. Make consequential amendments to a number of Acts.

The Committee notes this extract from the Second Reading Speech –

The Act makes a range of changes to the Residential Tenancies Act 1997 to ensure that there are mechanisms to align residential tenancies with the family violence intervention order system. These amendments may enable victims to remain in their home where they wish to and therefore reduce the risk of homelessness, poverty and social dislocation following family violence.

[272]. Provides for the repeal of Part 16 of the Act one year after that Part commences.

Charter Report

Right of detainees to be informed of reason for detention and proceedings to be brought – Direction to person to remain at or go to place other than police station – Person must only be told of the consequences of not complying with the direction

Charter s. 21(4) provides that a ‘person who is… detained must be informed at the time of… detention of the reason for the… detention… and must be promptly informed about any proceedings to be brought against him or her.’ The New Zealand Court of Appeal has held that a restriction on movement can be a detention for the purposes of a similar rights provision if it is not ‘a mere brief or otherwise insignificant impediment’ and is instead ‘a more substantial or significant deprivation of liberty: Police v Smith and Herewini [1994] 2 NZLR 306.

The Committee notes that clause 14 provides that a police officer may direct a person (in circumstances set out in clause 13) ‘to remain at the place where the person is when the direction is given’, ‘to go to, and remain at, a place stated by the officer’ or ‘to remain in the company of’ the officer or another person.’ The Committee observes that such a direction remains in effect for up to six hours (clause 19(1)) and that non-compliance empowers a police officer to use force to apprehend the person (clause 15(1)). The Committee therefore considers that a person given such a direction may be regarded as ‘detained’ for the purposes of the Charter.

The Committee notes that while clause 17(2)(b) requires the giving of a notice setting out rights and responsibilities under the bill, this requirement is limited to people directed to remain at or go to a police station (clause 17(1)(a)) and only applies once that person has arrived at a police station (clause 17(3)(a)). The Committee observes that a police officer who tells a person to remain at or go to another place is only required to tell the directed person the consequences of not complying (clause 14(4)). The Committee therefore considers that clauses 14 and 17 may limit the Charter right of such people to be told to the reasons for their detention and to be promptly informed about any proceedings to be brought against him or her.

The Committee draws attention to clauses 14 and 17 and the requirement in Charter s. 21(4) that detainees be immediately informed of the reason for their detention and promptly told about any proceedings to be brought.

Movement – Property – Fair hearing – Respondents to applications for family violence intervention orders barred from challenging evidence of protected witnesses unless they hire a private lawyer or consent to charges for the services of a legal aid lawyer – Whether reasonable limit

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’. Charter s. 12 gives everyone the ‘right to move freely within Victoria’. Charter s. 20 provides that a person ‘must not be deprived of his or her property other than in accordance with law.’ Charter s. 24(1) provides that all civil proceedings must be determined ‘after a fair… hearing’. The Committee observes that the UK House of Lords has held that injunctions to prevent anti-social behaviour are civil proceedings for the purposes of the right to a fair hearing: Clingham v Royal Borough of Kensington and Chelsea [2002] UKHL 39.

The Committee notes that clause 70(3) bars respondents to an application for a family violence intervention order from personally cross-examining protected witnesses (including the person allegedly affected by the family violence, any child, any family member of either the applicant or the respondent, any person with a cognitive impairment or anyone a court declares as needing protection.) The only exception is where an adult witness consents and the court finds that personal cross-examination will not harm the witness.

The Committee also notes that clause 71(1) provides that a court must order Victoria Legal Aid to provide legal representation to unrepresented respondents for the purposes of cross-examining a protected witness; however, clause 71(3) provides that Victoria Legal Aid may impose conditions set out in s. 27 of the Legal Aid Act 1978, including that the respondents:

  • pay a specified amount to the cost of the legal representation

  • make payments in respect of the lawyer’s out-of-court expenses

  • accept a charge over any property they have an interest in, including their home

  • pay interest at up to 70% of the penalty interest rate on these debts.

The Committee observes that the effect of clause 71(3) is that respondents can only cross-examine protected witnesses if they either obtain a lawyer of their own or agree to bear (at the discretion of Victoria Legal Aid) the financial cost of having a legal aid lawyer conduct the cross-examination. Whilst the Committee considers that it is appropriate for Victoria Legal Aid to recover costs from people who choose to have a publicly-funded legal representative, the Committee is concerned that such a choice may be considered not to exist when the law bars people from representing themselves.

The Committee further notes that clause 71(4) provides that a respondent who does not arrange for or accept arrangements for a lawyer to cross-examine the witness or ‘otherwise refuses to co-operate’ must be warned by the court that ‘neither the respondent nor the respondent’s witnesses may give evidence about’ the events relevant to the application that are within the witness’s knowledge. The explanatory memorandum remarks:

This subclause is intended to ensure that if the respondent does not avail themselves of legal representation to cross-examine protected witnesses about matters relevant to the application, the respondent and their witnesses will not be able to give evidence on those matters.

The Committee observes that clause 71(4) may prevent a respondent from calling evidence to contradict allegations made by a witness called by an applicant. The Committee also observes that clause 71(4) appears to mimic the rule of evidence known as the rule in Browne v Dunn (which has the purpose of ensuring that parties to litigation have timely notice of contrary factual claims by the other party); however, it is much stricter than that rule (which is ordinarily enforced through less drastic remedies, such as allowing witnesses to be recalled and drawing adverse inferences) and, moreover, the rules of evidence do not in any event apply in proceedings for family violence intervention orders (clause 65.)

In short, the combined effect of clauses 70(3), 71(3) and 71(4) is that a respondent to an application for a family violence intervention order must either accept the financial cost of having a lawyer conduct the cross-examination of protected witnesses (payable once they have the means to pay) or be barred from challenging the testimony of such witnesses (either through cross-examination or calling contradictory evidence.)

The Second Reading Speech remarks, in relation to clause 70(3):

This prohibition is designed to protect victims and other vulnerable persons, who can find direct questioning by the respondent both intimidating and traumatic.

Whilst the Committee considers that this purpose is a very important one that promotes the Charter rights of protected witnesses and their families, the Committee observes that respondents face serious consequences if a family violence intervention order is given, including significant limits on their movements and the possibility of being ordered to move out of their home. The Committee considers that if a final order is made in circumstances where a respondent has been prevented from challenging evidence put by the applicant, then such an order may be considered so arbitrary that it may limit a number of Charter rights, including the rights to freedom of movement and to property.

The Committee considers that the compatibility of clauses 70(3), 71(3) and 71(4) with human rights may depend on whether or not they satisfy the test for limits on human rights in Charter s. 7(2), including whether or not imposing a financial cost on respondents who wish to challenge the evidence of a protected witness who is giving evidence against them is a proportionate response to the problem of intimidation and trauma of witnesses and whether or not any less intrusive measures are available to achieve that purpose.

The Committee refers to Parliament for its consideration the questions of:

  • whether or not clauses 70(3), 71(3) & 71(4), by requiring respondents to an application for a family violence intervention order to either accept the financial cost of having a lawyer conduct the cross-examination of a protected witness (payable once they have the means) or be barred from challenging the testimony of such witnesses (either through cross-examination or calling contradictory evidence), limit the Charter rights of those respondents to movement, property and a fair hearing

  • if so, whether or not clauses 70(3), 71(3) & 71(4) satisfy the test for reasonable limits on rights in Charter s7(2) and, in particular, are a proportionate, minimally intrusive way of achieving the purpose of protecting witnesses from trauma and intimidation

Fair hearing – Criminal defendants who refuse to cooperate in their lawyer’s cross-examination of a witness barred from calling contradictory evidence

Charter s. 24(1) provides that all criminal charges must be determined ‘after a fair… hearing’. The Committee notes that clause 244, amending s. 37CA(1) of the Evidence Act 1958, expands existing provisions barring criminal defendants from personally cross-examining protected witnesses to include defendants charged with conduct amounting to family violence. The Committee observes that existing ss. 37CA(6) & (7) of the Evidence Act 1958 provide for the appointment of a Legal Aid lawyer for unrepresented defendants and, in contrast to clause 71(3), do not require that such defendants accept the financial cost of such a lawyer.

However, the Committee also notes that existing s. 37CA(9) provides that defendants who refuse legal representation or do not cooperate must be warned that they cannot call evidence that contradicts the testimony of a protected witness. The Committee observes that existing s. 37CA(9) appears to mimic the rule of evidence known as the rule in Browne v Dunn; however, it is much stricter than that rule (which is ordinarily enforced through less drastic remedies, such as allowing witnesses to be recalled and drawing adverse inferences). The Committee also observes that the High Court of Australia has cast doubt on whether the rule in Browne v Dunn should be applied to criminal defendants at all, at least ‘without serious qualification’, given the prosecution’s burden of proof: MWJ v R [2005] HCA 74, [41]. The Committee therefore considers that clause 244 may limit the Charter rights of family violence defendants to a fair hearing.

The Committee draws attention to clause 244, existing s. 37CA(9) of the Evidence Act 1958 and the Charter right to a fair hearing.

The Committee makes no further comment.

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Heritage Amendment Bill 2008

Introduced: 24 June 2008
Second Reading Speech: 26 June 2008
House: Legislative Assembly
Member introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Community Development

Purpose

The Bill amends the Heritage Act 1995 (the ‘Act’) and provides for a number of changes to its operation. In particular –

  • the Heritage Council's heritage registration processes are being amended to ensure only a single hearing is required on whether or not a place should be included in the heritage register;

  • abolishes the Historic Shipwrecks Advisory Committee and removes references to that Committee in the Act;

  • a new infringeable offence of not complying with a heritage permit and its conditions is created;

  • a provision is amended to clarify that financial security can be used to ensure compliance with a condition on a heritage permit; and

  • the certificate section of the heritage register is amended to include reference to world heritage environs areas

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 December 2008.

[17]. Provides for the automatic repeal of this amending Act on 1 December 2009.

The Committee makes no further comment.

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Public Holidays Amendment Bill 2008

Introduced: 24 June 2008
Second Reading Speech: 26 June 2008
House: Legislative Assembly
Member introducing Bill: Hon. Joe Helper MLA
Portfolio responsibility: Minister for Small Business

Purpose

The Bill amends the Public Holidays Act 1993 to provide greater certainty as to public holiday arrangements in Victoria, repeal provisions relating to the appointment of additional and substituted public holidays by non-metropolitan Councils and to provide for a public holiday on Melbourne Cup Day or a substituted day to be observed in all parts of Victoria.

Major points from the Second Reading Speech –

  • The Bill provides the same number of public holidays (11) to all Victorians.

  • The Bill ensures that a public holiday will be held on Melbourne Cup Day or an alternate day in every metropolitan and municipal district throughout Victoria. Non-metropolitan regions that had not previously received a Melbourne Cup Day holiday will have a Melbourne Cup Day public holiday from this year onwards.

  • The Bill will formalise in legislation for substituted public holidays where a public holiday falls on a weekend.

  • Public holidays already gazetted for 2008 will stand.

Content and Committee comment

[Clauses]

[2]. Provides for the Act to come into operation on the day after the day on which it receives the Royal Assent.

[5]. Substitutes a new section 6 in the Act and provides for the official public holidays.

[9]. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.

Charter Report

Equal protection – Freedom of religion and belief – Western Christian holidays deemed public holidays for the purposes of employee holiday entitlements and statutory time limits – Whether unequal protection of the law – Whether reasonable limit

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’. Charter s. 8(3) provides that everyone is entitled to ‘equal protection of the law without discrimination’. Discrimination includes discrimination on the basis of having or not having a particular religious belief. Charter s. 14(2) provides that no-one can ‘be coerced or restrained in a way that limits his or her freedom to... adopt a religion or belief in… practice [or] observance’.

The Committee notes that clause 5, substituting existing s. 6 of the Public Holidays Act 1993, provides for public holidays on a number of Western Christian holidays: Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day. The Committee observes that the effect of clause 5 is to exempt those Christian holidays from the definition of working or business days in various Victorian statutes, to generally suspend the operation of statutory time limits on those days (see s. 44 of the Interpretation of Legislation Act 1984) and to trigger automatic holiday entitlements on those days in most employment contracts.

The Statement of Compatibility remarks:

While it could be argued that the appointment of these days as public holidays treats Christians and adherents to non-Christian religions differently, I do not consider that any benefit is conferred on or detriment suffered by either group. All persons are entitled the same number of days of holiday leave. The bill does not limit employers’ obligations, under the Equal Opportunity Act 1995, to make reasonable allowance for employees’ religious beliefs, including in relation to terms of requests for leave to enable employees to observe their religious holidays.

The Committee observes that clause 5 gives Western Christians automatic entitlements to observe their religious holidays, whereas members of other religions must rely on the operation of anti-discrimination law. The Committee also observes that, whereas Western Christians do not need to use their leave entitlements to observe Easter and Christmas, members of other religions must use their leave entitlements to observe their religious holidays. The Committee therefore considers that clause 5 may limit the right of members of other religions to equal protection of the law (including equal and effective protection against discrimination.)

The Statement of Compatibility remarks:

The 2006 Australian census states that 63.9 per cent of Australians identify as being of Christian religion. In declaring certain days based on Christian holidays as public holidays, the law goes no further than is required to achieve the objective of common, certain public holidays for all persons employed under Victorian law….

It would not achieve the purpose of certainty and consistency in public holiday legislation to prescribe the same number of public holidays per year but permit employees to select the days on which they observe their holidays.

The Committee observes that the 2006 census indicates that 55.9% of Victorians identify as Western Christians and 32.5% identify as having other religious beliefs or no religion (with a further 11.6% not stating.)

The Committee refers to Parliament for its consideration the questions of:

  • whether or not clause 5, by automatically facilitating only Western Christians’ observance of religious holidays, limits the Charter right of members of other religions to equal protection of the law and equal protection against discrimination;

  • if so, whether or not clause 5, given its purpose of achieving certainty and consistency in public holiday legislation, is a reasonable limit on the Charter rights of members of other religions

The Committee makes no further comment.

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Victorian Law Foundation Bill 2008

Introduced: 25 June 2008
Second Reading Speech: 26 June 2008
House: Legislative Assembly
Member introducing Bill: Hon. Peter Batchelor MLA
Minister responsible: Hon. Rob Hulls MLA
Portfolio responsibility:Attorney-General

Purpose

The Bill –

  • provides for the continuation of the Victoria Law Foundation (the Foundation).

  • re-enacts with amendments the laws relating to the governance of the Foundation.

  • modernises the governance provisions and focuses the Foundation’s objectives on providing community legal education and information on the law and access to the law to the people of Victoria.

  • repeals the Victoria Law Foundation Act 1978.

Note: From the Second Reading Speech – The Victoria Law Foundation (VLF) was established in 1967 to improve access to justice. …The VLF provides grants to community legal centres for community legal education programs, publishes plain English legal resources, coordinates events such as Law Week, provides resources for law libraries and conducts other activities to educate the community and the legal profession about the law.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on the day it is proclaimed but not later than by 1 July 2009.

[4 to 8]. Provides that there continues to be a body corporate called the Foundation which has perpetual succession and an official seal and may do and suffer all things a body corporate may do and suffer and sets out the functions and powers of the Foundation. The Foundation is to be constituted by not less than 6 and not more than 8 members appointed by the Minister after consultation with the Chief Justice of the Supreme Court, the Law Institute and the Victorian Bar. The Part also sets out the terms and conditions of the members of the Foundation and the requirements for meetings of the Foundation and other procedural and formal requirements.

[12]. Allows the Foundation to appoint an Executive Director and any other employees or consultants.

[14]. Repeals the Victoria Law Foundation Act 1978.

The Committee makes no further comment.

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria