Tuesday, 29 August 2023

Bills

Justice Legislation Amendment Bill 2023

Second reading

Debate resumed on motion of Anthony Carbines:

That this bill be now read a second time.

Michael O’BRIEN (Malvern) (13:29): I rise to speak on the Justice Legislation Amendment Bill 2023, and I can advise at the outset that the Liberal and National parties do not intend to oppose this bill. This is an omnibus bill – an almost everything but the kitchen sink bill in terms of the number of acts it seeks to amend, so in the time available to me I will try and touch on each of the areas of amendment contained in it and just flag some thoughts that the opposition has.

One of the first purposes of the bill is to clarify and confirm temporary changes to the Open Courts Act 2013 and the Court Security Act 1980, which were made during the pandemic. Obviously, the pandemic wrought a lot of changes, most of them pretty horrific in terms of the effect on the population of this state, and of course we are still seeing ongoing effects on cohorts of people who were locked away from family, from friends and from jobs over that time – and I am particularly thinking of some of our children, who are still going through some of the mental health issues that were created or exacerbated by those lockdowns.

Out of the changes that were wrought on us by the pandemic there were some changes to the way in which we did business through government, and that included the courts. In this regard one of the things that we did see occur was the greater use of video court hearings. Of course there is a conundrum given the principle that the courts should always be open, barring exceptional circumstances. Courts should always be open so that not only may justice be done but it be seen to be done. So the question is: does a video broadcast of a court hearing suffice in terms of it being an open court?

The statement of compatibility for this bill goes into some of those issues. It acknowledges that, for example, if somebody does not have access to a computer or does not have access to the facilities required to access an online hearing, then a move to online hearings is exclusionary. A move to online hearings does not promote open justice for that particular cohort of people. On the other hand you could argue that having court hearings online, if they are available to the general public, expands the range of people who may be able to observe them, because obviously courtrooms are physically constrained in terms of the number of participants or people in the gallery who can physically be there. Having them online opens them up to a wider range of people.

I do not come to the debate on this legislation with any fixed view. I do think it is important, to the extent that courts are going to continue to use video broadcast for proceedings, that it should be in the context of the commitment of this Parliament to open courts, as expressed through the Open Courts Act 2013. Obviously courts retain the ability to determine when a broadcast may be appropriate, as opposed to physically opening a court, and that determination should be made in the interests of justice. That is always the appropriate test, and it is appropriate that this Parliament leave the application of that test to the courts. We do not want to be looking over judges’ shoulders in relation to those sorts of decisions, because there will be individual factors involving particular cases and particular litigants that we cannot possibly foresee. So I think it is important to establish what the test is and that it is in the interests of justice, but the application of that test is one that is more appropriately left to judges, magistrates, tribunals and other judicial members.

The bill also seeks to update some of the measures in relation to court security, in particular in relation to seizing particular items that should not be in court. Every year or so we see a story about the number of offensive weapons which are seized here at Parliament House from members of the public seeking to undertake tours, presumably not with any intention of seeking to do harm to any of the people who work in this building. These are members of the public who perhaps do not even think twice about the idea that they are carrying something which is an offensive weapon. I know from my own past experience as a barrister that the same thing happens in courts. We have security screenings at courts and we have security screenings at Parliament for a reason – because there is a need to protect the people who work in these places. There are often heightened sensitivities and heightened emotions from time to time, both in courts and in Parliament, and it is appropriate that people who are visiting any of those institutions be screened. I think the measures in this bill do clarify the exercise of the power of court security, staff or authorised officers to seize prohibited items. It requires authorised officers to form the view that there are reasonable grounds to believe an item is prohibited before seizing or retaining it. I do think that that is appropriate.

Part 3 of the bill makes amendments relating to coronial investigators. The bill will implement recommendation 2 of the findings of the coronial inquest into the death of Tanya Day. It will do so by providing clarity around the role of police coronial investigators into reportable deaths. It will give effect to recommendation 29 of the Royal Commission into Aboriginal Deaths in Custody and recommendation 42 of the Victorian parliamentary Law Reform Committee’s review of the Coroners Act 1985. In particular the bill inserts new section 15A into the Coroners Act 2008, which gives explicit power to a coroner to direct a coronial investigator at all stages of an investigation. Subsection 15A(2) then imposes a duty on a coronial investigator to comply with a reasonable and lawful direction of the coroner. Again, the opposition believes that these reforms are unobjectionable in themselves.

There is I think an important safeguard, and that is contained in section 15A(3), which sets out two circumstances in which a coronial investigator is not required to comply with a direction from the coroner. One is where the Chief Commissioner of Police considers a direction to be unreasonable, and the second is where the chief commissioner considers that complying with the direction would likely compromise a criminal investigation. Given we do know that coronial proceedings and criminal investigations can often operate in parallel time frames, I think it is important that we have those safeguards contained in the bill to provide the chief commissioner with the discretion to have a police coronial investigator not comply with a direction if that would compromise a criminal investigation.

Part 4 of the bill deals with amending the Spent Convictions Act 2021, and the provisions seek to remove unintended eligibility barriers to having convictions spent. This act has been in the news recently. There have been some concerning reports about a number of people who have used opportunities created by this act, people convicted of quite serious offences – sexual offences, sexual assault offences and worse – who have nonetheless managed to have those convictions determined to be spent. This has caused great distress to some of the victims of those people, and this was something that was flagged by the opposition at the time that act originally went through the Parliament. We did express real concern that those measures in the bill could be used, could be abused, by people convicted of very serious sexual offences to effectively hide from the broader world the fact of their crimes. Those recent reports indicate that is exactly what is happening.

That is a matter that I do believe the government needs to seriously reconsider. I do not think anybody demurs from the idea that people who make mistakes in their lives should have the opportunity to repent and should have the opportunity for a fresh start, but we also acknowledge that when somebody commits a crime that causes grievous injury to others – grievous physical injury, grievous psychological injury, the sort of injury that lives with people for a lifetime – the idea that they could avail themselves of what I would say are loopholes created by this government’s Spent Convictions Act to effectively hide their crimes from the wider world is I think a retrograde step. But in terms of the measures in this bill, while the measures contained in this bill would expand eligibility for accessing the Spent Convictions Act, I do not believe on the face of it that they would suffer from the same problems that I have just referred to in the substantive act.

What this bill does is outline exclusions from a custodial term. That would include drug rehabilitation, home imprisonment, intensive correction, a residential treatment order and any part of a term that was suspended or elapsed without being served. That is all relevant because to be eligible to have a conviction spent, obviously a custodial term is directly relevant to one’s eligibility to apply. So by clarifying that it only refers to actual time served or the time to which one was sentenced for imprisonment, this would have the effect of widening eligibility.

As I said, while I have some grave concerns about the way in which the act is currently being used and abused by certain people convicted of sexual offences and while the government was warned about this at the time of the passage of the principal act, these changes in themselves do not seem to create any particular concern for that being repeated.

In terms of young offenders, the bill also removes the requirement that children and young offenders must be sentenced under specific legislation in order to be eligible to have convictions spent under sections 9(1)(a) and 11(1)(a) of the Spent Convictions Act 2021. Again that does appear to be a sensible measure and one that was probably a bit of an oversight in the debate around the principal act, but that is now being resolved through this bill, and that change is not one to which we object.

The bill also includes further exemptions to the disclosure of spent convictions information. There has been some concern raised by people within the court system that their ability to share information about particular individuals or even share research and statistical analysis has been compromised by the provisions of the Spent Convictions Act. That clearly does not appear to be the intention of either the government or the Parliament more broadly in the principal act, but nonetheless concerns have been raised that the operation of that act may strictly limit people in the court system and their ability to do their jobs, so the bill seeks to address those concerns. For specific disclosures, authority is given to disclose spent convictions to prescribed persons or bodies, and the bill provides safeguards to ensure that identified data is not made publicly available. Clause 23 states it is not an offence to publish de-identified information. So again, while noting that the Liberal and National parties have expressed concern about the extent to which the Spent Convictions Act is being used – and in some circumstances, we say, abused – by some, these changes do not raise any particular red flags for us. In terms of the consultation that we have undertaken with various stakeholders in the community, no concerns have been particularly raised there either.

We go from spent convictions to firefighters presumptive rights compensation legislation. This is quite the omnibus bill, and we go around the world in many ways. Clause 26 of the bill adds an additional three cancers to schedule 1 of the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019, while clause 27 adds a further three cancers to the third schedule of the Forests Act 1958. Those three cancers are ones which particularly affect and impact female firefighters: cervical, ovarian and uterine cancers. During the bill briefing – and I am grateful to the Attorney-General and her office and to the Department of Justice and Community Safety for the bill briefing and the opportunity to have matters raised and questions answered – I did ask the question about whether there was much of an evidential base for the addition of these three cancers. Do we know the extent to which female firefighters have greater exposure to these three forms of cancer compared to women working in other occupations? I admire the candour, and I think the answer was to the effect that there is not a large evidence base at this point in time. But I understand and support the government’s willingness and endeavours to try and ensure that our firefighting services are open to all. We would not want to see women discouraged from seeking to join or remain as firefighters if they were concerned about the impact that that career could have on their physical health. So to that extent the opposition party certainly supports the addition of those three cancers to the presumptive rights compensation legislation list. I understand that other political parties have introduced bills in other places dealing with further questions or further initiatives on this particular issue. I will leave that to my colleague the Shadow Minister for Emergency Services in the other place to deal with those matters. This is a discrete issue to be dealt with today and it is one that the opposition parties support in terms of those additions.

The bill also seeks to make amendments in relation to the legal profession in part 6. It amends the legislative framework for the register of disciplinary action for Victorian lawyers. The idea is to increase consumer protections and better align with the frameworks in other participating jurisdictions of the uniform law scheme. Clause 29 of the bill amends section 150E of the Legal Profession Uniform Law Application Act 2014 to create a 28-day time limit for appeal or review of disciplinary action. This means that the Victorian Legal Services Board will be able to publish any details of a determination or unsatisfactory professional conduct finding on the register of disciplinary action after this time has elapsed.

The Law Institute of Victoria (LIV), whom I obviously consult on these sorts of matters, did raise some concerns about this. I should just say I am very grateful to the law institute, to the Victorian Bar and other legal organisations who actually take the time to respond to my requests for feedback on these bills. They are often quite lengthy, quite technical bills. I know that these are membership-based organisations. They do not have the resources of a government with public service departments. They rely often on a very small professional staff or in fact the input of their own members. So just let me take the opportunity to place on the record my great thanks to the Law Institute of Victoria and the Victorian Bar for the real effort they put into analysing bills in these areas and providing responses and feedback. I will quote from the letter I have received from the chief executive of the Law Institute of Victoria, Adam Awty, on this matter. He says:

Section 105E currently provides that disciplinary action must not be recorded on the register or provided to a member of the public until the time limit for an appeal or review has expired, or the outcome of an appeal or review has been determined. As such, new section 150E will have the effect of permitting disciplinary action to be recorded on the register immediately.

It goes on to say that the LIV opposes this proposal. He says:

The LIV recognises that publicly available disciplinary registers fulfil the important function of promoting consumer protection by providing public access to information about professional service providers. The LIV further recognises that the value of such registers is grounded in their capacity to convey accurate and timely information.

He then goes on to say:

Whilst acknowledging the consumer protection imperative underpinning the desire to ensure the RODA is as accurate and up-to-date as possible, the LIV emphasises the reputational damage and potential injustice caused to practitioners whose details are published on the RODA in circumstances where the relevant decision is later quashed.

I understand where the law institute is coming from on this particular matter. They are obviously advocating strongly in the interest of their members, as you would expect any good professional organisation to do. Their view is that whilst a disciplinary finding against one of their members can be appealed, even if it is appealed a lot of damage could be done in the meantime if that person’s name is put on a register for the whole world to see. It might be that that finding is subsequently overturned on appeal, but the LIV’s view is the damage has been done. I think that that is a consequence which is very hard to avoid when we are talking about a justice system in which people can face criminal conviction without any bar on that being reported, even though that conviction may be subject to a subsequent appeal and quashing. Obviously there have been a number of very high profile matters in this state in recent years where a person has been found guilty on one or two occasions and yet ultimately that person’s conviction was quashed, notwithstanding the fact they spent a very long time in prison.

That is the way our legal system operates – it is not necessarily fair; it can be extremely unfair to individuals who have findings made against them which are subsequently overturned on appeal. But the alternative would be to try and put some sort of gag order on courts or tribunals announcing what their rulings are or people being able to publish what their rulings are until an appeal process has concluded or until the time for lodging an appeal has expired.

In terms of trying to balance the rights – the right to free speech, the principle of open courts, which I referred to earlier, the right for individuals to not have their reputations unnecessarily damaged and also the right for consumers to be informed at the earliest possible time about findings about professional services providers – I do think that on this occasion the government has got the balance right. I say that knowing that this will undoubtedly lead to some harsh individual cases. It will undoubtedly lead to situations where somebody has a finding made against them for professional misconduct which is subsequently overturned, and that is very unfortunate. In politics we see this all the time. I think of people such as former New South Wales Premier Nick Greiner, who had a finding against him made by their Independent Commission against Corruption. It was subsequently quashed by the Supreme Court of New South Wales, but the damage had been done in the meantime. Far be it for me to compare lawyers and politicians, but we are all –

Gabrielle Williams: Many of us are one and the same.

Michael O’BRIEN: Some of us are both. Some of us, Minister, have the disadvantage of wearing both hats. But that is the challenge we face and I think it is the burden we have to bear, because the greater public interest in having timely information about disciplinary findings against lawyers does outweigh the fact that from time to time there will be individual cases of injustice caused by the publication of a finding which is subsequently overturned or quashed. I acknowledge the concerns of the Law Institute of Victoria – I hope I have faithfully reported them – but I do think that in this particular instance the overall community benefit and public interest do support this particular proposal in the bill.

The bill also clarifies a number of matters where there have been some suggestions whether they are summary offences or indictable offences; this is contained in clauses 31 and 33 of the bill. These are professional misconduct matters, particularly in relation to defalcation matters in relation to trust accounts, which are obviously very serious matters. The bill seeks to clarify that these are indeed indictable offences and that, while they can be tried summarily, they will be regarded as indictable offences. Obviously that has the benefit for investigators of removing the 12-month limitation, because one cannot prosecute a summary matter after 12 months, whereas if it is an indictable matter triable summarily, that 12-month time limit does not apply. The opposition supports those matters as well.

The bill makes technical amendments to the Children, Youth and Families Act 2005 to support the introduction of electronic case management in the Children’s Court of Victoria, which will allow certain documents to be filed electronically. Again, that would seem to be a sensible modernisation of matters.

The bill amends the Jury Directions Act 2015, and it does so by seeking to clarify that certain jury directions are available in a sexual offence trial regardless of whether the prosecution is required to prove a lack of consent. There has been some concern within the judiciary, within the legal profession, where consent is not an element of the offence, whether certain jury directions are applicable. The government, through this bill, seeks to clarify that those jury directions which apply to a number of sexual offence matters are still applicable even if consent is not an element of the offence.

I do note that in seeking the feedback from the legal profession – and again I thank the Law Institute of Victoria for their efforts in that – the LIV said:

Noting the complex nature of the proposed reforms, as the LIV has not had the opportunity to review the amendments in detail or consult with its members, it is unable to comment on these amendments.

Obviously if the profession, whether it is the LIV or the bar or individual practitioners, raises concerns between here and the other place about whether there are any technical issues with these changes, I would hope that the Attorney would be mindful to give those a full hearing, but at the moment, given we have had no negative feedback on these particular matters and they do seem to be fairly unobjectionable on the face of them, the opposition will not oppose those matters either.

There are some minor technical amendments to the Criminal Procedure Act 2009 to allow authorised officers and inspectors under the Dairy Act 2000 and the Meat Industry Act 1993 – it is great to see the Leader of the Nationals here; he must have known I was going to talk about the Dairy Act and the Meat Industry Act as he came into the chamber – to witness statements that are used to prosecute matters in court under those acts, which currently falls to others such as police, so this is an expansion of who can actually witness those statements.

In the last couple of minutes I just want to briefly refer to VCAT-related amendments. VCAT has had some significant damage done to its jurisdiction in recent years by a number of court decisions, one of which effectively decided that VCAT is not able to consider matters that involve federal law. The jurisdiction of VCAT, it being a state-based tribunal, does not extend to federal law, so any proceeding brought in VCAT which seeks to raise federal law issues is ultra vires for VCAT – it is outside its jurisdiction. This bill seeks to amend that in a number of ways. It expands the class of VCAT members who can make orders to transfer federal jurisdiction matters to a court for determination. It provides courts with the power to extend the limitation period for federal jurisdiction matters that are referred to them by VCAT and to preserve the rights and liabilities of parties involved in previous VCAT decisions which are no longer valid due to the matters having an indirect connection to federal law.

These I think are all quite sensible, but there are other issues with VCAT which still need to be resolved. One of those has been brought to my attention by a constituent who also happens to be a member of legal counsel, and it involves the issue with water businesses and a VCAT decision that found that they are not subject to the Limitation of Actions Act 1958. As a consequence they sort of fall between two stools, and there is no limitation on people’s abilities to bring actions against water businesses on certain matters. The Attorney’s office has advised me they are aware of this issue and they do intend to address it in a subsequent bill, so I am pleased to have that assurance that (1) it is on the government’s radar and (2) that it is being actively worked on and will be the subject of legislation in the future. With those words I again confirm the opposition will not be opposing this particular bill, and we wish it a speedy passage.

Gabrielle WILLIAMS (Dandenong – Minister for Mental Health, Minister for Ambulance Services, Minister for Treaty and First Peoples) (13:59): In the short time available to me before we go to question time I am going to rise in support of the Justice Legislation Amendment Bill 2023 and of course thank my colleague the Attorney-General for bringing forward these important reforms. As we have just heard from our opposition lead speaker, this bill makes a really broad range of changes to the operation of the justice system across many pieces of legislation, and as the Minister for Treaty and First Peoples I wanted to use my time today and my remarks to focus on the elements of the bill that overlap with those portfolio responsibilities – and there are several aspects of this bill that intersect with those responsibilities. Whether it be through numerous coronial inquests or the powerful testimonies that we have recently heard at the Yoorrook Justice Commission, we know that our criminal justice system –

Business interrupted under sessional orders.