Tuesday, 13 May 2025

Bills

Justice Legislation Amendment (Miscellaneous) Bill 2025

Second reading

Debate resumed on motion of Sonya Kilkenny:

That this bill be now read a second time.

Michael O’BRIEN (Malvern) (13:26): I am happy to lead off the batting on government business today and speak on the Justice Legislation Amendment (Miscellaneous) Bill 2025. There are no real surprises, given the name of the bill; this is a hotchpotch of amendments to various different acts in the justice space, most of them fairly uncontroversial.

The bill will repeal an outdated regulation-making power in the Magistrates’ Court Act 1989. It did provide for the ability to prescribe municipal areas where police are not required to serve civil process. I am no longer a practising lawyer, but I was a practising lawyer for many years. I cannot remember a time when police ever served civil process. That was always the job of process servers. Police were very much involved in the criminal side of the justice system and not the civil side, so I am not quite sure when police used to do that work of serving civil process. Clearly it has been lost in the mists of time, apart from an outdated reference in the Magistrates’ Court Act to a power to prescribe certain areas where police did not have to do this. That is certainly a change in the bill which I do not think many people in this house or indeed the community would have even known was required, let alone object to, and we do not object to it.

The bill also amends the Social Services Regulation Act 2021, and in doing so the bill rectifies an unintentional deemed exclusion for out-of-home-care workers in the Social Services Regulation Act 2021 during the three-year transitional period for the suitability panel. It provides that a person can only be excluded from working in the out-of-home-care sector where the panel finds that the person both engaged in conduct and poses an unacceptable risk to children. We have not had any negative feedback about this proposed amendment, and on that basis we do not object to it.

The bill also seeks to amend the Worker Screening Act 2020, and in doing so the bill corrects errors in cross-references in the Worker Screening Act 2020 relating to NDIS checks and working with children checks. It is very important that we get technical details right, particularly anything that has to do with working with children checks. Working with children checks are very important for the safety of minors. I know that when the system was brought in it did cause a change in practice for many organisations, but it is an important one. I know that working with children checks are not without some issues, and I have adverted to those in other cases. I think that the government has not maintained the system of working with children checks as well as it could or should have. No system is going to be perfect, but I think we have to make every effort to seek perfection when it comes to protecting children. Certainly this error in cross-referencing does not seem to be one which has exposed children to particular risks, but I would urge the government to be very, very vigilant on anything to do with working with children, because we must get the detail right. We cannot afford to create loopholes which could be either intentionally or inadvertently exploited by those people who want to do harm to children.

The bill seeks to improve the operation of the case management system in the Magistrates’ Court. It does so by seeking to make technical amendments to the Criminal Procedure Act 2009 and the Sentencing Act 1991 to allow the Magistrates’ Court of Victoria to extend the use of its case management system in the criminal jurisdiction. The CMS is another one of these great projects under Labor which take years and years and years beyond when they were supposed to be introduced, many, many millions of dollars more than was budgeted and still do not seem to be working particularly well. If members were to speak to magistrates who are known to them – I am very fortunate in knowing a lot of magistrates, some of whom I knew before I took on this role and some of whom have become known to me since I have been in this role – they would find that the CMS continues to be a massive bugbear for magistrates, so anything which can aid the rollout of it and its proper bedding down, the opposition would be supportive of.

This does seem to be an IT system which has taken on a life of its own and caused a great deal of grief. There have been lots of briefing sessions with magistrates and then changed dates as to when it is going to be rolled out. It is the never-ending story of IT. If I recall correctly, Deputy Speaker, you might have had some involvement in IT professionally before your election to this place, so I am sure I do not have to tell you how tricky IT systems can be. But the onus is on governments to get them right, and that applies to the Magistrates’ Court of Victoria no less than it does to any other publicly funded entity. But certainly those amendments themselves do not seem to be anything which raise a concern for those on this side.

There are perhaps two more substantive amendments in this bill, which I will now turn my attention to. The first is to amend section 180 of the Crimes Act 1958 in relation to offences for the replacement of trustees. Section 180 of the Crimes Act deals with providing a secret commission to a trustee in return for a substituted appointment. The bill seeks to amend section 180, which currently makes it an indictable offence for a person to offer or give to another, or for that other person to solicit or receive, any valuable consideration as an inducement or reward for appointing or otherwise authorising a person to be appointed as a trustee or to act in their place as a trustee without the assent of the persons beneficially entitled to the estate or the Supreme Court of Victoria. That is the current offence constituted by section 180 of the Crimes Act. This bill seeks to narrow that offence by requiring the relevant conduct to have been done with ‘a dishonest or otherwise corrupt purpose’.

I will pause at that point to note that the current offence does not have a requirement that the impugned conduct be done with a dishonest or corrupt purpose. Effectively, if the conduct meets the test in current section 180, even if it is done in good faith, people may still fall foul of it and be liable to being charged. That is the first change: to put in place a requirement that the relevant conduct has been done with a dishonest or otherwise corrupt purpose. The second aspect of this narrowing is to remove the requirement for the consent of beneficiaries or the Supreme Court.

The bill also seeks to insert a new section 640 of the Crimes Act, which will make the amendments retrospective to 1 April 1959. Usually we are very cautious about retrospective legislation in this place and certainly legislation retrospective to much more than half a century ago – in fact about 84 years ago based on my maths, which are not unimpeachable – so to make retrospective these changes to 1 April 1959 is quite extraordinary. I did ask the Attorney-General’s office in the bill briefing why that date has been selected, and I am very grateful to the Attorney-General’s office for their assistance and bill briefing. This is one of the less controversial justice bills I think we will have before the house this year, so it was all done in a very friendly manner, as you would expect.

I was advised that the reason for the retrospectivity to that particular date in 1959 is because that was when the section 180 offence which is being amended was first created. The idea is to make sure that any conduct which has occurred since 1 April 1959 which may have fallen foul of the old section 180 but would not fall foul of the newly constituted section 180 would effectively get a leave pass. While I am normally very, very concerned about retrospective legislation, on this occasion I think that the argument for it can be maintained, particularly since conduct which is corrupt or conduct which is otherwise dishonest will still be caught by the new offence. The government advice is that recent Supreme Court decisions have confirmed that a corrupt purpose is not an element of the offence, and therefore there is a risk that certain non-corrupt and good-faith conduct could contravene the current provision.

I think it was the explanatory memorandum or possibly the second-reading speech that referred to the genesis of the offence which is being amended by this bill. The original offence was introduced following the 1905 Royal Commission on the Butter Industry, which found widespread evidence of bribery and secret commission by agents. I must admit, though I would like to think of myself as being a little bit of a student of legal and political history in this country, I was not aware that we had a Royal Commission on the Butter Industry in 1905. That one did pass my radar. I am sure members will be very interested in some background on that royal commission.

Can I at this point just give a shout-out to my electorate office staff, who, whenever they walk into my office, never know what they are going to get from their boss in terms of requests for research. I suspect none of them thought that a very quick precis of the 1905 Royal Commission on the Butter Industry was going to be on their batting list for today, but that is what they got and that is what they have delivered. Thank you very much to Mia and Lucy, who are superstars.

On that basis, Deputy Speaker, I am sure you will be fascinated, as will other members of the house. In early 1904 concerns arose among some butter exporters over reports that the P & O and Orient steam navigation companies had granted freight concessions – essentially secret rebates or commissions – to select shippers while excluding others. This unequal treatment caused significant unrest within the industry and led to public allegations of corruption. In response a royal commission was established to investigate these secret commissions, which were found to total £13,130 over a 10-‍year period. I did not ask my office to work out what the modern-day equivalent of £13,130 would be compared to the early 1900s, but I imagine it would be a significant amount of money. The chairman of the royal commission was Mr GC Morrison. The members were Mr George Graham and Mr H Gyles Turner. The issues to be determined were (a) were payments made from time to time by the mail companies to certain shippers of butter (b) were these payments in the form of a rebate on freight or a brokerage or a commission and (c) were these payments made on the understanding that they were to be kept secret?

The royal commission investigated these matters and did in fact find that there was dodgy conduct going on in relation to the shipping of butter. Who would have thought it? The payments were made in the form of a rebate on freight – as I said, over £13,000 pounds worth – not for services legitimately rendered as brokers. The rebate was not given to all shippers, which was apparently a violation of certain contractual clauses. Nine New South Wales shippers discovered in 1902 and 1903 that rebates on freight had been made to certain Victorian shippers. Thereupon the said New South Wales shippers demanded a similar concession, which was granted, and payments were made to them by the mail companies for the period of the expired portion of their existing contracts. Apparently the closest secrecy was required and observed as to the payments made to the shippers and others in Victoria. This is a quote from the royal commission itself:

We have not discerned during the investigation an instance where gifts were bestowed or bribes given with a philanthropic motive.

In other words, this was not bribery for any philanthropic purpose; this appears to be just very poor, unethical, sharp practice. The royal commission goes on:

It has been clearly demonstrated that the object of these payments was to gain the favour of the director or official as against the interests of their principals, or to perpetuate a practice followed by competitors and insisted upon by the employees.

This shook things up, as you would expect. It led to the Secret Commissions Prohibition Act 1905 of this Parliament, which comprised a suite of different offences addressing forms of bribery and corruption. The member introducing the bill into the Assembly, Mr Mackey, observed that the bill was almost exclusively one of the consequences of the butter royal commission. Deputy Speaker, you are far better at puns than I am. I am sure you would be able to come up with some excellent wordplay about a butter royal commission and something about spreading bribery, so I will leave that to you. But that is the genesis of the current section 180 of the Crimes Act 1958, which is to be amended by the Justice Legislation Amendment (Miscellaneous) Bill currently before the house. On this particular matter the opposition does not have any particular problem with the narrowing of the offence, given that it does require that ‘dishonest or otherwise corrupt purpose’ be an element of the offence. The removal of the requirement for trustee beneficiaries or the Supreme Court to approve such matters does seem to be something that is not unreasonable in the circumstances.

Let me turn to perhaps the most controversial aspect of the bill, which is the further delaying of the commencement of the abolition of de novo criminal appeals from the Magistrates’ Court to the County Court. First, a brief history lesson for the house. It was back in 2019 that the government first proposed to abolish the current system of de novo criminal appeals from the Magistrates’ Court. At present an appeal from a criminal conviction in the Magistrates’ Court is by way of a completely new hearing – what lawyers would call a de novo hearing, because we love using Latin – so that when that appeal is heard in the County Court it is as if the Magistrates’ Court hearing never occurred. All evidence is led again, as if for the first time. All legal submissions are led again, as if for the first time, and a completely new decision is made. The government proposed to abolish that system of appeals on the basis that it would be far more efficient and far more expeditious. It would be something which would place less of a burden on the justice system. It would also place less of a burden on witnesses. For example, at the moment if a witness has to give evidence in a criminal matter in the Magistrates’ Court and that matter is then appealed, the witness has to give the evidence all over again in the County Court.

What the government proposed through this change was to say that effectively the evidence that is led in the Magistrates’ Court would be the evidence considered in the County Court on appeal, so there would be no need for that evidence to be led again or repeated. Obviously lawyers for the appellant would be able to make legal submissions as to what that evidence meant and the legal consequences of it, as would the respondent. But the idea is that you would not have to have that effective double handling of evidence. The government thought this was an excellent idea. I note that the Law Institute of Victoria opposed it at the time and continues to oppose it. I note that the Victorian Bar opposed it at the time and continues to oppose it. Their concern is that to change the system, as the government proposes, would lead to potentially miscarriages of justice. Given the volume of matters that Magistrates’ Courts have to deal with, it could require much greater evidence to be led at the Magistrates’ Court, because you do not get a second chance. At the moment, effectively, if evidence is led at the Magistrates’ Court and there might be something missing, you can get another chance. If you are acting for the defendant, you can lead further evidence on the appeal. You do not get that opportunity under the government’s proposed de novo system, unless there are some exceptional circumstances. Both the law institute and the bar have been opposed to this change.

They need not have necessarily worried, because this change was supposed to have come into force no later than 3 July 2021. However, it did not come into effect on 3 July 2021, because the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 extended the default commencement date until 1 January 2023, so we had an 18-month extension for these changes to kick in. Then a further bill, the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022, delayed the commencement date of these criminal reforms until 5 July 2025, which members would be aware is just around the corner, less than two months away. But the government is not ready to introduce these amendments yet. The government still has not got its act together. The government in this bill proposes that the default commencement date for these reforms, which the government said were important justice reforms, is now being kicked down the road until 1 July 2028. Important reforms that were supposed to take effect by no later than 3 July 2021 are now being extended until 1 July 2028. That is a seven-year delay. Goodness me, you would think this government would be able to get its act together, support the courts and implement what it says are important justice reforms a bit sooner than seven years after they were supposed to come into effect. But the government is not in a position to do that.

This government has kicked the can of these criminal appeal reforms seven years down the road, and you have to ask yourself why. The initial delays the government attributed to COVID, and I am prepared to give the government half a tick on that. We appreciate that COVID did cause a lot of disruption to many aspects of society, including the courts. But what is the reason for the continual delays now? We are advised that there is a resourcing issue for the courts, that the courts need the right equipment to be able to deal with transcripts and consideration of evidence in such a way that evidence led at the Magistrates’ Court can be easily transmitted to the County Court in the event of a criminal appeal. Why would there be a problem with the courts having the resources and the infrastructure they need to implement these reforms? Maybe it has something to do with the fact that this financial year the government has cut the budget of Court Services Victoria by $19.1 million. Maybe, just maybe – stick with me on this – it is really hard to implement reforms that require additional resourcing when you are cutting resourcing from the courts. You cannot cut $19.1 million out of Victoria’s courts at the same time as you are asking the courts to implement new reforms which take additional resourcing. It does not work. It does not add up.

But it gets worse, because as bad as the $19.1 million cut to Court Services Victoria in this financial year is, this government has got an even nastier surprise planned for the 2027–28 year. Do you know how much extra the government is going to be cutting from the Court Services Victoria budget in 2027–28? An extra $58 million will be cut out of our courts. Does the government not realise we have got a crime crisis in this state? Has the government not realised we have got a bail crisis in this state? Does the government not understand that magistrates are giving people bail because the delays in getting them to trial are such that they believe they cannot justify keeping somebody on remand for months and months and months waiting for their day in court if at trial they may only get a month in jail?

When the government cut funding to the courts, they make it harder for magistrates to keep people on remand who should be kept on remand for the purposes of community safety. This government’s budget cuts are putting the safety of Victorians at risk, and the government has cut $19.1 million this year and has baked in a $58 million cut in 2027–28. They are not the actions of a government serious about the justice system, they are not the actions of a government serious about protecting Victorians and they are not the actions of a government supposedly tough on crime or tough on bail. Nothing like it at all – a $58 million cut.

A member interjected.

Michael O’BRIEN: I think I heard somebody say ‘fake news’. Unless the government backbench believe that the government’s own budget papers are fake news, I would be very careful throwing that around. So the government wants to defer –

Colin Brooks: On a point of order, Deputy Speaker, I think the member is debating a budget bill, not the bill in front of the house. He might have just been coming back to the bill then, but I ask you to refer him back to the bill in front of the house.

The DEPUTY SPEAKER: On the point of order, the member had strayed a little bit from what is in front of the house, but as the lead speaker you get some latitude. I would ask you to come back to the bill.

Michael O’BRIEN: I appreciate the latitude. I would not want to ever abuse the latitude, but it is directly on point that these important criminal justice reforms are being delayed because of a lack of resourcing, and the reason for the lack of resourcing is this Labor government’s budget cuts. They have cut the court’s budget by $19.1 million this year, they have baked in a $58 million cut in 2027–‍28, and goodness knows what this government is going to announce next Tuesday on budget day. Unless the government is serious about putting money back into the courts, giving the courts additional resources, not cutting them, this government cannot claim to be serious about this criminal justice reform and this government cannot claim to be serious about any criminal justice reform or bail reform at all.

Next Tuesday is going to be a very big test of whether this government is prepared to put its money where its mouth is. This government talks a big game about justice, talks a big game about bail, but the reality is cuts, cuts, cuts. This government thinks building a train tunnel between Box Hill and Cheltenham is more important than resourcing our courts and our justice system. It tells you about the resources available to the courts, but it tells you a lot more about the priorities of this Allan Labor government. We are very concerned that these criminal justice reforms – which the government trumpeted as being so important for justice, so important for the efficiency and effectiveness of the courts, and so important, they were saying, to try and stop witnesses having the burden of having to give evidence twice in the same matter – apparently all do not matter anymore, because they have kicked them down the road by not one or two or three or four or five or six but seven years. There is something biblical about seven years, but that is how long this government has delayed what it claimed were very important reforms, so we are very concerned about this government’s continual cuts to Victorian courts.

I was in some regional courts recently, including Wangaratta. We have got some great people on the ground working in our justice system, and they deserve to be properly supported. What I do not want to see are the sorts of budget cuts which are affecting these criminal justice reforms in this bill moving on to seeing more costs for people trying to access justice. We have already seen probate fees go up by millions and millions of dollars under this government because of its budget cuts to courts. I wonder how many of our regional courts will continue. Are they going to be shut down? Is the Labor government going to be shutting down our regional courts in order to try and impose these budget cuts on the court system? People need access to justice, and that includes people in regional Victoria. They are just as entitled to have local access to justice as anybody living in Melbourne. So the opposition will not be opposing the bill, but when the government –

A member: Yay!

Michael O’BRIEN: There is nothing to cheer about when this government is cutting $19.1 million out of Court Services Victoria this year. We are already seeing the impact that is having on access to justice. We are already seeing the consolidation of Children’s Court matters into just a handful of courts, requiring more people to have to travel longer distances in order to be able to access justice. But while the Labor Party backbench is cheering on a $19.1 million cut to courts this year and then cheering on $58 million in cuts to courts in 2027–28, the opposition will stand up for a properly resourced justice system. The opposition will stand up for courts that can do their job properly. The opposition will also stand up for victims of crime whose interests are not served by the continual delay to these reforms because of a government that cannot manage money and cannot manage the justice system.

Nina TAYLOR (Albert Park) (13:55): I am very pleased to hear that the opposition are not going to oppose this important legislation in light of the fact that it has time-critical reforms and reforms to achieve administrative efficiencies and correct technical errors in legislation. We did hear some creative allegations about purported cuts et cetera, and I would like to put some clarity on the table. First of all, the 2024–25 budget provided a total investment of $164.97 million to support the ongoing operation of therapeutic court programs, court holding cells and to improve court access and undertake repair and maintenance of court buildings. This investment builds on approximately $435 million in funding over the previous four budgets, which is helping to promote swifter resolution of court cases, with backlogs reducing by 14 per cent in 2023–24 and a decrease of 30 per cent since pending matters peaked in January 2022. I would strongly refute any allegations by the opposition regarding a certain reform being prioritised relative to cuts or otherwise. That is not at all, in any way, the basis for the decision-making in this process.

We have to respect also that the courts have to be brought on the journey out of respect. These are difficult jobs, and we all can share in the seriousness of reforms and their implementation and making sure they work as we intend them to work. It is also important for them to be seen within the context of where we sit now. I would note that the reforms do not impact court efficiency and the implementation of other recent significant reforms, including bail, youth justice and committal processes, which also promote victims’ interests.

I want to salute the tremendous advocacy more broadly of victims of crime. We know many people endure things that they should never have to endure. I do want to say more broadly, and I will nuance it further in a moment, that we are very grateful, because they, more often than not, are some of the greatest advocates for reform in our justice system, and I salute them wholeheartedly. I do want to point out, for instance, that a recent victim-centric reform includes strengthening the test for cross-examination in committal proceedings. This reform will significantly reduce the amount of pre-trial evidence given by victims and witnesses. We know that it can be traumatic for victims and witnesses, even in the first instance, to have to share and reshare traumatic incidents that they have been through. You can see that we do already have victim-centric reforms in place or being implemented.

I should mention the Youth Justice Act 2024. It is introducing more options for restorative justice. When I was the Parliamentary Secretary for Justice I did a deep dive into this matter to get a greater appreciation of the fact that victims, by having a choice and having different pathways, can be empowered to pursue what is best for them, as they determine it, to heal them from whatever trauma they have been experiencing. This allows – I should say, just for the clarity of the chamber – offenders to hear directly from victims about the harm they have caused to help victims heal and to give offenders insight into the impact of their offending.

The new bail laws will put community safety front and centre of every decision on bail. We are cracking down specifically on the crimes that are on an upward trend while people are out of bail.

Business interrupted under sessional orders.