Thursday, 9 September 2021

 Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (15:22): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Firearms and Other Acts Amendment Bill 2021.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Firearms and Other Acts Amendment Bill 2021 (Bill).

In my opinion, the Bill, as introduced in the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill makes amendment to a range of Acts, including to the:

1. Control of Weapons Act 1990

2. Criminal Procedure Act 2009

3. Evidence (Miscellaneous Provisions) Act 1958

4. Firearms Act 1996

5. Sex Offenders Registration Act

6. Victoria Police Act 2013

Human rights issues

Human rights protected by the Charter that are relevant to the Bill

In my opinion, the human rights protected by the Charter that are relevant to the Bill are—

a. the right to recognition and equality before the law (section 8);

b. the right to freedom of movement (section 12);

c. the right to privacy and reputation (section 13);

d. protection of families and children (section 17);

e. protection of property rights (section 20)

f. the rights of children in the criminal process (section 23);

g. the right to a fair hearing (section 24);

h. minimum guarantees in criminal proceedings (section 25(2));

i. the right not to be tried or punished more than once (section 26); and

j. protection from retrospective criminal laws (section 27(1)).

For the reasons outlined below, I am of the view that the Bill is compatible with each of these human rights.

Recognition and equality before the law

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. Discrimination in relation to a person means discrimination within the meaning of the Equal Opportunity Act 2010 on the basis of an attribute protected by that Act.

Under section 8 of that Equal Opportunity Act 2010, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Section 9 of the Equal Opportunity Act 2010 provides that indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging a person on the basis of a protected attribute, and that is not reasonable.

Enabling the court to order appearance by audio visual link at first remand hearings

Part 4 of the Bill enables the Magistrates’ Court to direct an adult accused to appear at a first remand hearing in the Magistrates’ Court by audio visual link, where the court is satisfied that appearance is in the interests of justice, and either the accused consents or the court is satisfied that exceptional circumstances exist.

The ‘interests of justice’ safeguard promotes the right to equal and effective protection against discrimination in section 8(3) of the Charter. The court will consider the personal circumstances and characteristics of the accused person in deciding whether it is in the interests of justice. This would include considering whether vulnerable accused persons, including those with disabilities, may have difficulty following the proceedings by audio visual link and should therefore appear ‘in person’.

In my opinion these amendments are consistent with the right to recognition and equality before the law.

The right to freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria.

Person subject to Firearms Prohibition Order—duty to notify Chief Commissioner of change of address

Clause 21 of the Bill inserts in the Firearms Act 1996 a new duty on a person who is subject to a Firearms Prohibition Order (FPO). This duty requires the person to notify the Chief Commissioner of a change of residential address within 24 hours after the change.

Victorian courts have regarded measures that place a restriction on a person’s place of residence as engaging the right to freedom of movement. This amendment does not have the effect of limiting a person’s place of residence, instead, the amendment requires a person to notify the Chief Commissioner after a change in residential address.

In my opinion this amendment is consistent with the right to freedom of movement.

Registrable offender to report their return to Victoria after interstate travel

Part 7 of the Bill will make amendments to the Sex Offenders Registration Act 2004 to require a registrable offender to report their return to Victoria after interstate travel within seven consecutive days of remaining in Victoria. The Sex Offenders Registration Act 2004 currently requires registrable offenders to report their return to Victoria after interstate travel within 14 consecutive days of remaining in Victoria—it does not limit that travel.

In my opinion these amendments are consistent with the right to freedom of movement.

The right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked.

An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Extension of expanded phased trial of Digitally Recorded Evidence in Chief

Part 3 of the Bill amends Division 7B of Chapter 8 of the Criminal Procedure Act 2009 (CP Act) to extend the expanded phased trial of Digitally Recorded Evidence in Chief (DREC) statements across Victoria for a further two years. The enabling provisions currently sunset on 3 October 2022.

The enabling provisions in Division 7B of the CP Act came into operation on 1 September 2018 and provide for the use of DREC in certain matters. The enabling provisions provided for an initial 12-month trial of DREC at two trial sites by Victoria Police, and were supported by safeguards codified in the legislation. The relevant matters are a criminal proceeding for family violence offences, a proceeding for a Family Violence Intervention Order (FVIO), or by order of a court or tribunal.

DREC was trialled as part of the Government’s response to recommendation 58 of the Royal Commission into Family Violence. Recommendation 58 was acquitted by the Government in September 2020 with the tabling of an independent evaluation report of the DREC trial in the Parliament.

Extending the period of operation of the CP Act enabling provisions will enable an expanded phased trial of DREC. These amendments will not limit a complainant’s right to privacy because the use of DREC is voluntary and made available to a complainant after giving informed consent as an alternative to a traditional written statement.

When obtaining informed consent, section 387G(3)(a) of the CP Act requires a trained police officer to inform the complainant that the recorded statement may be used in evidence in a criminal proceeding, a proceeding for a FVIO or, if a court or tribunal orders, another proceeding, that they may be required to give further evidence in the proceeding, including further evidence-in-chief and evidence on cross-examination and re‑examination and that they may refuse consent to the making of the recorded statement.

Additionally, consistent with procedural requirements in criminal matters, the decision to use or not use a DREC in a proceeding is a matter of prosecutorial discretion. The CP Act also requires that this prosecutorial decision be informed by the views of the complainant. Another layer of safeguard to protect against privacy concerns, is the prescribed offences in section 387L of the CP Act for unlawful possession, publication, copying or supply of a recorded statement.

In my opinion these amendments are consistent with the right to privacy and reputation.

Person subject to Firearms Prohibition Order—duty to notify Chief Commissioner of change of address

Clause 21 of the Bill has the effect of requiring a person subject to a Firearms Prohibition Order (FPO) to notify the Chief Commissioner of a change of residential address within 24 hours after the change.

This amendment will increase the operational effectiveness of the FPO scheme by enabling law enforcement to more easily locate FPO subjects. Whilst this amendment imposes additional reporting obligations on a person subject to an FPO, these obligations do not arbitrarily or unlawfully limit the right to privacy protected by the Charter.

In my opinion these amendments are consistent with the right to privacy and reputation.

Registrable offender to report their return to Victoria after interstate travel

Part 7 of the Bill amends the Sex Offenders Registration Act 2004 to require a registrable offender to report their return to Victoria after interstate travel within 7 consecutive days of remaining in Victoria. The SORA currently requires registrable offenders to report their return to Victoria after interstate travel within 14 consecutive days of remaining in Victoria.

Under the Sex Offenders Registration Act 2004, failing to comply with a reporting obligation without reasonable excuse is an offence punishable by imprisonment. A discrepancy in reporting periods has led to cases where registrable offenders have breached their obligations by accident or out of a misunderstanding of their obligations. The amendment will promote consistency, compliance, and advance the protective purposes of the Sex Offenders Registration scheme by setting reporting obligations at a uniform seven-day period.

In my opinion this amendment is consistent with the right to privacy and reputation as it imposes lawful and consistent reporting obligations.

Protection of families and children and rights of children in the criminal process

Section 17(1) of the Charter recognises that families are the fundamental group unit of society and are entitled to be protected by society and by the state. Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. Section 23(3) provides that a child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.

Extension of expanded phased trial of Digitally Recorded Evidence in Chief

Part 3 of the Bill extends the operation of the expanded phased trial of DREC. Complainants who are children or who are cognitively impaired are excluded from the DREC phased trial by operational direction by Victoria Police as an existing evidentiary scheme already applies to children and cognitively impaired persons in proceedings for family violence offences.

As child complainants are excluded from the expanded phased DREC trial, the extension of the enabling provisions do not affect children’s rights in criminal proceedings.

In my opinion these amendments are consistent with the duty to protect families and children and the rights of children in the criminal process set out in the Charter.

Property rights

Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law.

Validation of the use etc. of oleoresin capsicum spray by protective services officers engaged in official duties

Part 2 of the Bill will validate the conduct of protective services officers (PSO) engaged in official duties with a specified prohibited weapon on or after 17 September 1995 and before 22 September 2020. During this period PSOs were not covered by a valid exemption issued under the Control of Weapons Act 1990 in relation to a prohibited weapon that is used to discharge oleoresin capsicum spray (OC Spray).

The Bill provides that a PSO engaged in official duties does not commit certain offences against the Control of Weapons Act 1990 simply for doing their job with the safety equipment issued to them.

The retrospective validation of a PSO using or discharging OC Spray could potentially abrogate a plaintiff’s ability to pursue a civil legal claim against the State for injury occasioned by the discharge of OC Spray without an exemption or approval. As an accrued cause of action may constitute a proprietary interest, the amendment may have the effect of depriving a plaintiff of their property.

However, section 20 only protects against the deprivation of property where that deprivation is not in accordance with law. Accordingly, to the extent that this Bill may deprive a person of their property, that deprivation would be authorised by, and in accordance with, the amended legislation. The provisions of the Bill which amend the Control of Weapons Act 1990 therefore do not limit the property right protected by section 20 of the Charter.

The right to a fair hearing

Section 24 of the charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent, and impartial court or tribunal after a fair and public hearing. The right to a fair hearing is concerned with the procedural fairness of a decision, which broadly ensures a party has a reasonable opportunity to present their case in conditions that do not place them at a substantial disadvantage compared to their opponent.

Validation of the use etc. of oleoresin capsicum spray by protective services officers engaged in official duties

The provisions of the Bill which amend the Control of Weapons Act 1990 do not affect the right to a fair hearing protected by the Charter. The Bill rather has the effect that a PSO cannot be subject to criminal prosecution for the discharge of OC Spray in the course of their official duties.

Enabling the court to order appearance by audio visual link at first remand hearings

Part 4 of the Bill enables the Magistrates’ Court to direct an adult accused to appear at a first remand hearing in the Magistrates’ Court by audio visual link, where the court is satisfied that audio visual link appearance is in the interests of justice, and either the accused consents or the court is satisfied that exceptional circumstances exist.

In my opinion these amendments engage but do not limit the right to a fair hearing. The rights and ability of an accused person to participate in a hearing are not diminished when appearing by audio visual link at a first remand hearing because the person can present their case and will not be disadvantaged compared to the other side.

Part 4 of the Bill will promote the fairness of the hearing by ensuring that a court may only order appearance by audio visual link in a first remand hearing if it is in the interests of justice to do so. In making this assessment, the court will consider the ability of an accused to comprehend proceedings and to communicate with, and give instructions or express wishes to, their legal representative.

In my opinion, these amendments are consistent with the right to a fair hearing.

Expansion of FPO delegation list to who can approve an FPO

Clause 22 of the Bill expands the list of individuals to whom the Chief Commissioner may delegate the discretion to approve a Firearms Prohibition Order (FPO) under section 112E of the Firearms Act 1996.

The right to a fair hearing extends to civil proceedings. While the meaning of civil proceeding is broadly interpreted, it does not extend to include administrative decision-making of the type performed under section 112E of the Firearms Act 1996.

The decision to approve an FPO is an administrative decision and is therefore governed by the duty in section 38 of the Charter to act compatibly with human rights.

In my opinion these amendments are consistent with the right to a fair hearing.

Minimum guarantees in criminal proceedings

Section 25(2) of the Charter provides that a person charged with a criminal offence is entitled to:

a. be informed promptly and in detail of the nature and reason for the charge;

b. have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her;

c. be tried without unreasonable delay;

d. be ‘tried in person’ and to defend themselves personally or through legal assistance;

e. to examine, or have examined, witnesses against him or her, unless otherwise provided for by law.

Validation of the use etc. of oleoresin capsicum spray by protective services officers engaged in official duties

The provisions of the Bill which amend the Control of Weapons Act 1990 do not affect the rights of a person charged with a criminal offence. The Bill rather provides that a PSO will not be taken to have committed an offence by engaging in official duties with the safety equipment issued to them.

Extension of expanded phased trial of Digitally Recorded Evidence in Chief

Part 3 of the Bill extends the operational period of the relevant provisions in Division 7B of the CP Act. In my opinion Part 3 does not limit the rights of an accused in criminal proceedings because the existing safeguards in Division 7B of the CP Act, which preserve these rights, will also continue to operate.

Enabling the court to order appearance by audio visual link at first remand hearings

Part 4 of the Bill makes amendments to enable the Magistrates’ Court to direct an adult accused to appear at a first remand hearing in the Magistrates’ Court by audio visual link, where the court is satisfied that audio visual link appearance is in the interests of justice, and either the accused consents or the court is satisfied that exceptional circumstances exist.

The purpose of section 25(2)(d) of the Charter is to ensure an accused is ‘present’ at their trial and has the right to fully participate in that trial and their defence and is not tried in their absence. It should be noted that these reforms apply to first remand hearings, and not to the trial of an accused person. Regardless of this distinction, in my opinion, this aspect of the rights in criminal proceedings is engaged, but not limited, by the reforms. An accused person still participates in their hearing ‘in person’ when they attend by AVL, so although they are not physically present, the hearing is not being held in absentia. In addition, a court may only direct that the accused appear at a first remand hearing by audio visual link if satisfied that attendance by audio visual link is consistent with the interests of justice and, if the accused does not consent, that exceptional circumstances exist.

‘Exceptional circumstances’ under Part IIA of the EMP Act includes a state of emergency declared under section 198 of the Public Health and Wellbeing Act 2008 or a state of disaster declared under section 23 of the Emergency Management Act 1986 in an area where an accused is required to appear before a court or to transit through to appear before a court. These reforms will enable courts to continue to use audio visual links for first remand hearings while an emergency declaration is in place and where there is concern about the spread of infectious disease. By facilitating an accused’s trial without unreasonable delay these amendments also promote the rights in criminal proceedings protected by section 25(2)(c) of the Charter.

These amendments provide for first remand hearings to safely continue during the ongoing pandemic or another emergency event. In my opinion, these amendments are consistent with the right to minimum guarantees in criminal proceedings protected by the Charter.

Right not to be tried or punished more than once

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.

Validation of the use etc. of oleoresin capsicum spray by protective services officers engaged in official duties

The provisions of the Bill which amend the Control of Weapons Act 1990 do not affect the right not to be tried or punished more than once. The Bill rather exempts a PSO from potential criminal liability for certain conduct that may have constituted an offence against the Control of Weapons Act 2006.

In my opinion, these amendments do not limit the right not to be tried or punished more than once.

Protection from retrospective criminal laws

Section 27(1) of the Charter requires the criminal law to be sufficiently accessible and precise to enable a person to know in advance whether his or her conduct is criminal.

Validation of the use etc. of oleoresin capsicum spray by protective services officers engaged in official duties

Part 2 of the Bill will validate the conduct of PSOs engaged in official duties with a specified prohibited weapon (oleoresin capsicum spray) on or after 17 September 1995 and before 22 September 2020. During this period PSOs were not covered by a valid exemption issued under the Control of Weapons Act 1990 in relation to a prohibited weapon that is used to discharge OC Spray.

The Bill provides that a PSO engaged in official duties does not commit certain offences against the Control of Weapons Act 1990 simply for doing their job with the safety equipment issued to them.

In my opinion, these amendments do not limit the protection from retrospective criminal laws in the Charter.

Conclusion

I consider that the Bill is compatible with the Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.

The Hon Lisa Neville, MP

Minister for Police

 Ms NEVILLE (Bellarine—Minister for Water, Minister for Police) (15:23): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian Government is unwavering in its commitment to ensuring the firearms industry operates safely and only those who are licensed and have a legitimate reason can access a firearm. The Firearms and Other Acts Amendment Bill 2021 (the Bill) continues this focus on improving firearm safety, whilst at the same time balancing the interests of legitimate firearms users including our recreational hunters, sports shooters and primary producers.

Sports shooting and recreational hunting have many positive economic and social benefits, particularly for our regional communities. As seen at the recent Tokyo Olympics 2021, our sports shooters are amongst the best in the world and fine ambassadors on the world stage. A firearms industry which is well regulated and keeps firearms out of the hands of unlicensed individuals and criminals, protects the image and reputation of all firearms users and keeps our community safe. This is why the Bill makes targeted amendments to improve firearms safety and to enhance regulatory practice across the firearms industry.

There are also a number of other reforms in this Bill to continue improvements across our justice system and to deal with the ongoing pressures of the COVID-19 global pandemic. This requires amendments to a range of Acts, including the Sex Offenders Registration Act 2004 (SORA), Victoria Police Act 2013 (VP Act), Control of Weapons Act 1990 (CW Act), Evidence (Miscellaneous Provisions) Act 1958 (EMP Act), and Criminal Procedure Act 2009 (CP Act). I will outline each of these amendments progressively.

Amendments to the Firearms Act 1996

Amendments to improve firearm safety in the community

Firearm theft has adverse social and community impacts as firearms leave the regulated market and fall into the possession of organised crime groups where they may potentially be used in violent offences.

A major factor in firearm theft is inadequate storage of firearms. Victoria Police advises that firearms licence holders are not always adequately securing their firearms and that some are using inappropriate firearms storage receptacles such as clothing lockers or toolboxes.

Category A longarm firearms and Category B longarm firearms (Category A and B firearms) are the most reported stolen firearms. This can be attributed to their prevalence, and their current storage requirements which are insufficiently stringent. The Bill will make critical amendments to the Firearms Act 1996 to improve the storage requirements for Category A and B firearms. This includes prohibiting Category A and B firearms from being stored in hard wood receptacles. Furthermore, Category A and B firearms will be required to be stored in a steel safe which is of a thickness of at least 1.6 mm and where the steel safe weighs less than 150 kilograms when empty, it must be bolted to the structure of the premises where the firearm is authorised to be kept. These amendments will enhance firearms storage requirements for Category A and B firearms and align them with the current storage requirements prescribed for the higher classified Category C and D firearms.

I recognise that this amendment will have direct costs for existing Category A and Category A&B licence holders who may need to upgrade their storage receptacles. However, I believe the initial outlay to upgrade storage receptacles will be offset by a reduction in firearm thefts and this will have direct financial savings for licensees and indirect savings for the entire community through fewer firearms circulating in the unregulated market and potentially being used in serious and violent crimes. The Bill provides a transition period of 12 months for the introduction of the new storage requirements to ensure licence holders have adequate time to upgrade their storage receptacles. I congratulate my firearms advisory body, the Victorian Firearms Consultative Committee (VFCC), for developing this proposal and their ongoing commitment to firearm safety.

The Bill makes further practical and targeted amendments to improve firearm safety in the community, including strengthening how licensed firearms dealers send firearms and firearm parts through the postal service to other licensed dealers. The Bill creates a new section requiring licensed firearms dealers to comply with minimum packaging and service requirements when sending firearms and parts by post. Relevant parcels must not be labelled to indicate their contents, must be electronically tracked, and must be personally received by the licensed firearms dealer.

Conditions will also be imposed on the hire and loan of firearms by licensed dealers to limit the hire and loan of firearms for a period of no greater than 30 days, with the opportunity to apply in writing to renew the hire or loan agreement for one additional 30-day period. This will prevent the hire and loan of firearms for indefinite periods, and ensure licensed firearms dealers maintain oversight of firearms they hire or loan. To ensure an important security check occurs before a firearm is disposed, the Bill will also require licensed dealers to sight a valid firearms licence before they can dispose of a firearm.

The Bill also makes amendments to the Firearms Prohibition Order (FPO) scheme to enhance its functioning. This includes requiring a person, subject to an FPO, to provide notification of their change of address to the Chief Commissioner of Police within 24 hours and creating an offence for the failure to notify. This acquits a recommendation from the Legislative Council Legal and Social Issues Committee of the Victorian Parliament Inquiry into Firearms Prohibition Legislation which identified that the ability of the FPO scheme to fulfil its intent is undermined if law enforcement is unable to locate an FPO subject.

To address a backlog in processing FPOs and workload pressures, the Bill expands the class of individuals to whom the Chief Commissioner may delegate the power to make an FPO. The Bill broadens the power of the Chief Commissioner to delegate the making of a FPO to include all Superintendents, and certain Inspectors with operational responsibility over specified portfolios. Including all Superintendents, as well as certain Inspectors, will reduce the pressure on existing delegates and enable the processing of FPO applications to be shared across a broader delegate cohort. This supports the efficient use of police resources and provides the Chief Commissioner with the flexibility to ensure an appropriate level of agility in administering the FPO scheme.

I am confident that the high standard set by Victoria Police in the administration of the FPO scheme will be maintained with the inclusion of additional delegates. Victoria Police has robust training and guidelines in place to ensure all FPO delegates are aware of their responsibilities. Furthermore, I do not expect there to be a dramatic increase in the number of FPOs issued following this amendment as all FPOs must still only be made if it is in the public interest to do so.

The Bill also makes administrative amendments to the Firearms Act 1996 to improve firearms licensing processes and Victoria Police’s oversight of approved handgun clubs. The Bill removes references to the Financial Transactions Report Act 1988 (Cth) in the Firearms Act 1996 and instead, where proof of identity is required, includes a requirement that documents to prove identity be provided in the form approved by the Chief Commissioner. The Bill will also enable the Chief Commissioner to require annual reports from handgun clubs on the participation of their members to be submitted in a format which corresponds with the Licensing and Regulation Division’s data management and review processes.

Finally, the Bill inserts a ‘grandfathering’ provision to provide for existing licence holders to retain and renew a reclassified firearm on their current licence, following any declaration of a temporary or permanent firearms reclassification. Currently, an existing licence holder of a firearm which is reclassified to a higher category is required to obtain a higher category firearms licence or dispose of the reclassified firearm to a licensed dealer or Victoria Police. Firearms licensees have long expressed dissatisfaction with the inability of the Chief Commissioner to grandfather firearms following a reclassification and the Bill addresses this concern.

Amendments to the SORA

The Bill will make amendments to create consistency between the SORA and recently amended Commonwealth legislation. The SORA sets out the offences which make a person eligible for a SORA registration, and certain classes of offences dictate the length of time for which the person will remain on the Register. The offences are referenced from various legislative instruments, including Commonwealth legislation. The recently commenced Commonwealth legislation requiring this SORA update are: Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) and the Crimes Legislation Amendment (Sexual Crimes Against Children and Other Measures) Act 2020 (Cth) (Commonwealth Amendments). The Bill amends the SORA to refer to new Commonwealth child sex offences mainly focussed on possession and control of child abuse material obtained using a carriage service and grooming offences to facilitate offences against a child outside Australia. This will ensure that persons convicted of the new Commonwealth child sex offences in Victoria will be added to the Victorian Register of Sex Offenders.

The Bill also makes miscellaneous amendments to the SORA to reclassify two offences from the Commonwealth Criminal Code to bring them into line with other jurisdictions. This is important because they are Commonwealth, rather than Victorian offences, and consistency promotes fairness. For example, the Bill provides that if a person is convicted of ‘grooming a child to engage in sexual activity outside Australia’ they will be subject to a Class 2 registration rather than class one. This means that a person convicted of exactly the same Commonwealth offence will be guilty of a class two offence regardless of which State or Territory they were convicted, bringing the provision into line with New South Wales, Tasmania, Western Australia, the Australian Capital Territory and the Northern Territory.

The Bill will classify the offence of ‘using a carriage service for child abuse material’ as a specified offence (Schedule 5) in the SORA as the offence may occur in the context of a consenting relationship between a young adult and a child under 16 or may capture ‘sexting’ type conduct. The offence contained in section 474.22 of the Criminal Code aligns with the type of conduct that was envisaged would be captured under the Registration Exemption Order Scheme. The proposed amendment will enable an eligible offender to apply to the court for a Registration Exemption Order. It will still be a decision for the Court, and those who should be registered still will be registered, however, it allows for those cases of ‘sexting’, which were not intended to place a young person on the Register, to be considered for exemption.

The SORA requires a registrable offender who intends to travel interstate for two or more consecutive days to inform Victoria Police either in person or by telephone about the dates and destinations of the travel, where they will be living, and the approximate date of their return to Victoria (if applicable). A travel report must be provided by the registrable offender at least 7 days before leaving Victoria and any subsequent changes to the details must be reported as soon as practicable.

To provide greater oversight of the movement of registrable offenders, the Bill will reduce the current timeframe provided in section 20(2), which requires registrable offenders to report their return from interstate travel into Victoria within 14 days (that is, 7 days after entering and remaining in Victoria for 7 or more consecutive days) to within 7 consecutive days. This will reduce the opportunity for reportable offenders to travel outside of Victoria for short periods of time undetected. This is about risk minimisation and ensuring Reportable Offenders keep police informed of their whereabouts to reduce the likelihood of re-offending.

It is an indictable offence punishable up to a period of five years imprisonment for a registrable offender to fail to comply with any of their reporting obligations unless they have a ‘reasonable excuse.’ In determining whether a person has a ‘reasonable excuse’ for failing to comply with their reporting obligations, a court will consider: the person’s age, whether they have a disability affecting their ability to understand or comply with their obligations, whether the form of the notification the person received was adequate to inform them of their obligations, having regard to their circumstances, and any other matter the court considers appropriate.

Finally, the Bill also makes several other smaller and technical amendments to the SORA to reflect machinery of government changes and to remove transitional provisions that are no longer operational.

This suite of reforms to the SORA reflects the government’s commitment to taking a robust approach to the management of those who need to continue to be monitored by Police, with checks and balances to ensure that young people charged with sexting offences have the option to argue their case for not being placed on the register in Court.

Amendments to the VP Act

To implement commitments arising from the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (EBA) which came into operation on 1 April 2020, the Bill amends the Victoria Police Act 2013 to validate in situ promotions of Protective Services Officers (PSO) to the rank of PSO Senior. This ensures full implementation of the commitments in the EBA and that all promotions are adequately recognised.

Amendments to the CW Act

Part 2 of the Bill will amend the Control of Weapons Act 1990 (CW Act) to validate certain conduct of PSOs engaged in official duties with the prohibited weapon that is used to discharge oleoresin capsicum spray (OC Spray).

It is an offence against the CW Act to engage in certain conduct with a prohibited weapon without a Governor in Council exemption or a Chief Commissioner approval under the CW Act.

There has been a long-standing and careful rollout of OC Spray to PSOs in Victoria having regard to the effectiveness and necessity of this prohibited weapon for law enforcement purposes. Records indicate that the prohibited weapon that is used to discharge OC Spray may have been first made available to PSOs as far back as 17 September 1995. Today, all State and Territory police forces and the Australian Federal Police are equipped with OC Spray.

On 18 September 2020, the Chief Commissioner of Police advised the then Minister for Police and Emergency Services that PSOs were not covered by an exemption or an approval under the CW Act for the prohibited weapon that is used to discharge OC Spray. The Government took swift action to rectify this oversight and on 22 September 2020, an exemption order covering PSOs equipped with OC Spray was made by the Governor in Council.

The deployment of OC Spray is subject to extensive training and guidelines with the intention of officers’ deploying OC Spray in good faith when discharging their official duties.

The amendments proposed in the Bill will provide comfort and legal certainty to PSOs by affirming that the State has always intended PSOs to be lawfully equipped with OC Spray when engaged in official duties and protecting the Victorian community.

Amendments to the CP Act

The Bill will amend Division 7B of the Criminal Procedure Act 2009 (CP Act) to extend the operational period (for a further two years) of legislation enabling the Digitally Recorded Evidence in Chief (DREC) trial. Enabling provisions in Division 7B of the CP Act commenced on 1 September 2018 and currently provide for the use of a DREC in a criminal proceeding for family violence offences, a proceeding for a Family Violence Intervention Order or, if a court or tribunal orders.

Enabling legislation was trialled as part of the Government’s response to recommendation 58 of the Royal Commission into Family Violence. Recommendation 58 was acquitted by the Government in September 2020 with the tabling of an independent evaluation report of the DREC trial in the Parliament. These provisions enabled the delivery of an initial 12-month trial of DREC at two trial sites by Victoria Police supported by safeguards codified in the legislation.

Following the tabling of the evaluation report in September 2020, a commitment was made for a state-wide phased expansion of DREC to be supported by a developmental evaluation focused on capturing the experience of victim survivors and continuous improvement. A phased state-wide roll out of DREC will provide more victim survivors with an alternative option to written statements and potentially earlier resolution of matters. It is important for the voices of victim survivors to be heard so that decisions about the on-going availability of DREC can be informed by their views.

Amendments to the EMP Act

Victoria’s courts and police are working hard to support the justice system to recover from the impacts of the COVID-19 pandemic, while keeping those who must attend court safe. This continues to present challenges. This Bill will address one of those challenges by ensuring Audio Visual Links (AVL) are available in all appropriate cases.

Currently, the Evidence (Miscellaneous Provisions) Act 1958 (EMP Act) does not allow a court to direct an adult accused to appear at a first remand hearing by AVL, without the accused person’s consent. It is generally appropriate that an accused attend their first remand hearing in person, because this is the court’s first opportunity to engage with the accused. However, where an accused has, or is suspected of having, COVID-19 and refuses to appear by AVL, transporting them to court raises significant risks to police, court staff, and ultimately the Victorian community.

To address those risks, the Bill will allow the Magistrates’ Court to direct an adult accused person to appear by AVL at a first remand hearing without their consent, if the court is satisfied that the AVL appearance is in the interests of justice and that exceptional circumstances exist.

The EMP Act already confirms that ‘exceptional circumstances’ includes where a state of emergency or a state of disaster has been declared, in an area where an accused is required to appear before a court or required to transit through in order to appear before a court. This means ‘exceptional circumstances’ will be satisfied whenever such a public health declaration is in force in Victoria. Throughout the pandemic, Victorian courts have effectively and appropriately used AVL in hearings to manage the risk presented by COVID-19, in line with public health advice and public health orders from the Victorian Government.

The court may also be satisfied of ‘exceptional circumstances’ in situations where transporting an accused person to court would present a significant risk to public health or safety for other reasons. For example, where an accused has a different highly contagious illness or is very agitated and violent. This is consistent with the intent of the 1997 reforms which first introduced the use of AVL by an accused in criminal proceedings. These reforms envisaged that exceptional circumstances might include, for example, where it is considered that the physical appearance of the accused would be a threat to the safety of members of the public.

When making a direction for an accused person to appear by AVL, the court will need to consider whether it is in the interests of justice to so do. This significant safeguard reflects the importance of first remand hearings and the physical appearance of certain accused persons. For example, the court may find that appearance by AVL is not in the interests of justice if it considers physical appearance is necessary to ensure the accused person adequately understands and is engaged with the court process.

The reforms in the Bill improve firearm safety, promote the efficient and effective administration of justice, and continue to deal with the ongoing pressures caused by the COVID-19 global pandemic.

I commend the Bill to the house.

 Mr SOUTHWICK (Caulfield) (15:23): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 23 September.