Thursday, 10 March 2022
Bills
Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022
Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022
Introduction and first reading
The PRESIDENT (17:44): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Criminal Procedure Act 2009 to provide temporary arrangements for trial by judge alone on an order made or applied for while a pandemic declaration is in force and to amend the Children, Youth and Families Act 2005, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Evidence (Miscellaneous Provisions) Act 1958, the Justice Legislation Amendment (Criminal Appeals) Act 2019 and the Occupational Health and Safety Act 2004 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms TIERNEY: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:45): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
This Bill makes amendments to assist the justice system to manage the ongoing impacts of the pandemic. The Bill will:
• amend the Criminal Procedure Act 2009 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to allow courts to order judge-alone criminal trials and special hearings on a temporary basis;
• delay the commencement of the de novo reforms under the Justice Legislation Amendment (Criminal Appeals) Act 2019;
• extend the operation of Part 16 of the Occupational Health and Safety Act 2004 (OHS Act);
• extend the operation of section 42JA(2A) of the Evidence (Miscellaneous Provisions) Act 1958 (EMPA); and
• extend the operation of sections 600S and 600T of the Children, Youth and Families Act 2005.
For the following reasons, I am satisfied that the Bill is compatible with the Charter and, to the extent that any rights are limited, those limitations are reasonable and justified.
Human Rights Issues
Judge alone criminal trials
Part 2 of the Bill will temporarily reintroduce provisions allowing trials for Victorian indictable offences to be heard by judge alone in certain circumstances. The reforms will allow courts to order trials by judge alone when a pandemic declaration under the Public Health and Wellbeing Act 2008 (PHWA) is in effect. These reforms recognise the continued impacts of COVID-19 on the courts conducting jury trials and the resulting delays in the justice system, particularly for people on remand facing indictable charges. The reforms will be temporary and will be repealed 12 months after commencement
The reforms will allow the Supreme and County Courts to order that a trial be heard by judge alone if it is in the interests of justice to do so and if the accused consents. Jury trials will continue to be available, but these reforms will give parties another option in appropriate cases.
Human rights protected by the Charter that are relevant to these reforms are:
• the right to life (section 9)
• the right to a fair hearing (section 24), and
• the rights of accused persons in criminal proceedings (section 25)
Right to life (section 9)
This reform promotes the right to life (section 9 of the Charter). The government is obliged to use all means necessary to protect the health and life of all persons in Victoria, including those in closed environments, such as those who work in or use Victoria’s courts. Current public health advice includes maintaining physical distancing to reduce the risk of transmission of COVID-19, which is a potentially fatal virus, and to ensure that health services are not overwhelmed. Allowing trials to proceed without a jury, where appropriate, will reduce the number of people attending court buildings, consistent with this advice.
Right to a fair hearing (section 24) and rights in criminal proceedings (section 25)
The Bill will also engage the right to a fair hearing in section 24 of the Charter and rights in criminal proceedings in section 25 of the Charter. I consider that any limitations on these rights are reasonable and justified in the circumstances and given other procedures and protections are included in the Bill.
First, the Bill does not remove jury trials from the criminal justice system. Rather, it will give the Courts another option to hear indictable matters, while a pandemic declaration is in effect in Victoria, and while the temporary amendments are in place.
Second, the Bill will permit the courts to order a judge alone trial only if it is in the interests of justice to do so and if all the accused persons consent to their trial being heard by judge alone. This will ensure that accused persons retain their ability to have their case heard by jury, should they wish to do so. The interests of justice requirement also ensures that trials only proceed by judge alone in appropriate cases. As with any other trial, the court will have broad discretion to conduct the trial in a manner that is fair to the parties.
The Bill also includes key safeguards, such as rights of appeal against conviction, sentence, or a decision to order, or refuse to order, a judge alone trial, and requiring accused persons to obtain legal advice on whether to consent to a judge alone trial.
For these reasons, I consider that any limitations to the right to a fair hearing and rights in criminal proceedings occasioned by provisions allowing for judge alone trials are reasonable and justified.
Judge alone special hearings under the CMIA
The Bill will make changes to the CMIA to allow a special hearing to be heard by a judge alone if it is in the interests of justice to do so. These amendments are necessary to ensure CMIA proceedings can be conducted with greater flexibility throughout the COVID-19 pandemic, and in a timely way. A special hearing is a modified form of trial, and it is important to avoid unreasonable delay to these hearings for the same reasons as trials. Further, accused persons who are dealt with under the CMIA will be either severely mentally impaired or mentally ill and are therefore particularly vulnerable.
As with amendments to allow judge alone criminal trials, these amendments engage the right to a fair hearing in section 24 of the Charter and rights in criminal proceedings in section 25 of the Charter.
The Bill will allow a judge alone special hearing only if the court considers that it is in the interests of justice to do so. The Bill will also allow the court to consider the views of both the prosecution and the accused when the court is determining whether to order that a special hearing be conducted by judge alone. In alignment with the judge alone trial model, these changes will be time limited, and will be repealed 12 months after they commence. In addition, an order for a judge alone special hearing may only be made when a pandemic declaration is in force. This is appropriate given these reforms are aimed at responding to the COVID-19 crisis and its continuing effect on the court system.
In addition, the Bill will also make amendments to address concerns raised by stakeholders that the three-month timeframe in section 12(5) of the CMIA is presenting considerable challenges as the pandemic continues.
This reform promotes the right to life under section 9 of the Charter, by reducing the risk that those who work in and attend Victoria’s courts will contract the potentially fatal COVID-19 virus. The amendments to the three-month timeframe will enable the judiciary to consider the individual facts of each case thoroughly, and fully consider the interests of justice in deciding whether a jury or judge alone special hearing would be the most appropriate in the circumstances of the case. This will promote the right to a fair hearing under section 24 of the Charter.
For these reasons, I consider that any limitations on these rights are reasonable and justified in the circumstances given the procedures and protections included in the Bill.
Extension of COVID-19 temporary measures in the OHS Act
Part 3 of the Bill extends Part 16 of the OHS Act, introduced through the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 and further extended in the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021. Part 16 was also further extended and amended by the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021.
These reforms engage the right not to be tried or punished more than once (section 26).
Part 16 explicitly states that a breach of a pandemic order or public health direction relating to the COVID-19 Pandemic under the PHWA is presumed to be an immediate risk to health and safety under that Act, and is currently due to expire on 26 April 2022.
To ensure that WorkSafe inspectors can continue taking decisive enforcement action under the OHS Act in response to non-compliance with COVID-19 directions under the PHWA, the Bill will extend Part 16 of the OHS Act to apply until 26 October 2022.
This will mean that a breach of a pandemic order or public health direction will continue to be taken to be an immediate risk to the health or safety of a person for the purposes of s 112 (Prohibition Notices) and s 120 (Directions) of the OHS Act. Section 112 allows an inspector to issue a person who has control over an activity in a workplace with a notice prohibiting the carrying on of that activity, if it involves an ‘immediate risk to the health or safety of a person’. Section 120 allows an inspector to give a direction to a person at a workplace if necessary, because of an ‘immediate risk to the health or safety of a person’.
The extension of these provisions means that WorkSafe inspectors can continue to take expedited enforcement action to prevent, reduce or mitigate workplace exposure to COVID-19, on the basis that the direction under the PHWA (which can only be made where the officer making the direction has determined under the PHWA that there is a risk to public health) is a sufficient basis for making a direction or issuing a notice under these provisions. This allows for WorkSafe inspectors to rely on the assessment made under the PHWA without having to undertake that consideration again (which may be a consideration they are less qualified to undertake than the person issuing the direction under the PHWA, given it will be based on public health considerations).
The amendment is necessary to ensure that WorkSafe Inspectors are able to take action to support compliance with the PHWA directions in workplaces, under the OHS Act (because the OHS Act is tailored to the legal obligations arising in that environment) rather than utilising the offence provisions aimed at individuals in ss 193 and 203 of the PHWA.
Given that ss 112 and 120 create indictable offences for failures within workplaces in relation to conduct that is also likely to be a breach of ss 193 or 203 of the PHWA, it is possible that a person could be charged with two different offences relating to the same wrongful act. This does not mean that a person will be tried or punished more than once for the same offence contrary to s 26 of the Charter.
The rule against double jeopardy does not prevent more than one penal consequence flowing from the same act, where that act constitutes more than one offence. The double jeopardy principle generally applies where a person is charged with exactly the same offence for which they have been previously acquitted or convicted, or an offence that is substantially and practically the same (Carroll v The Queen (2002) 213 CLR 635). A court may choose to stay a proceeding as an abuse of process if it involves re-litigation of a previously decided factual issue and in particular will not allow the prosecution to question or call into question a previous acquittal. In addition, the prosecution is generally required to include all related offences on the one indictment and the use of subsequent indictments for related offences may be found to be vexatious (Carroll v R (2002) 213 CLR 635).
A court is likely to expect all related charges under the OHS Act and the PHWA to be included on the one indictment and the common law prohibition on double jeopardy will continue to operate to protect people from a breach of s 26 of the Charter. I therefore conclude that these amendments do not limit s 26 of the Charter and are not likely to give rise to such limits in the courts.
Extension of COVID-19 temporary measures in the EMPA
Part 3 of the Bill will extend the operation of section 24JA(2A) of the EMPA, so that adult accused who are in custody will continue to be required to attend a summary contested hearing or a committal hearing by AVL by default. This extension is necessary to protect the safety of prisoners, staff and visitors in a prison environment where COVID-19 can quickly spread.
Human rights protected by the Charter that are relevant to these reforms in this Bill are:
• the right to a fair hearing (section 24), and
• the rights of accused persons in criminal proceedings (section 25).
Rights to a fair hearing and equality before the law (section 24)
Section 24(1) of the Charter provides that a person charged with a criminal offence 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 Bill upholds this right by ensuring that a court may order physical attendance for these hearings if it is in the interests of justice to do so. A fair hearing will always be in the interests of justice. Further, in making this assessment, the court must consider the ability of an accused to comprehend proceedings and to communicate with, and give instructions or express wishes to, their legal representative. In addition to upholding the right to a fair hearing, this safeguard ensures that the right to equal and effective protection against discrimination in section 8(3) of the Charter is not limited, by supporting vulnerable accused persons who may have difficulty following the proceedings by AVL, including those with disabilities.
In addition, the legislation contains minimum requirements for an AVL or audio link to ensure that the transmission quality is fit for purpose. These minimum requirements mean that if a hearing proceeds by AVL or audio link, an accused person can fully participate in the proceedings, be heard by the court and give necessary instructions to their legal representative.
For these reasons, I consider that the reform is compatible with the rights in section 24 of the Charter.
Rights in criminal proceedings (section 25)
Section 25(2)(d) of the Charter provides that an accused has the right to be ‘tried in person’ and to defend himself or herself personally or through legal assistance. The purpose of this provision is to ensure an accused is not tried in their absence and has the right to fully participate in their trial and defence.
An accused still participates in their hearing ‘in person’ when they attend by AVL. The accused is not being tried in absentia. It will remain possible for courts to order physical attendance for such hearings when the interests of justice require it. The court will be able to consider the accused’s capacity to participate in the trial via AVL, as well as other relevant matters, when applying the interests of justice test.
For these reasons, I consider that the reform is compatible with the right in section 25 of the Charter.
Jaclyn Symes MP
Attorney General
Minister for Emergency Services
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms TIERNEY: I move:
That the bill be now read a second time.
Incorporated speech as follows:
In April 2020, the Government introduced reforms aimed at ensuring the justice system could respond effectively to the challenges that COVID-19 posed, including the introduction of judge alone trials and special hearings. These reforms were time-limited and operated effectively until April 2021.
We all hoped that specific COVID-19 related provisions would no longer be required in 2022. However, the continued impacts of COVID-19, including the significantly increased prevalence of COVID-19 in the Victorian community compared with earlier stages of the pandemic, have changed the public health context. Even with high levels of vaccination and continuing public health measures, it is very likely that disruptions to jury trials and hearings caused by COVID-19 will continue for some time.
To provide the courts with an additional tool to respond to these potential disruptions and allow more criminal cases to proceed, the Bill will reintroduce these judge alone provisions on a temporary basis. The Bill will also make other reforms to ensure the justice system can manage the ongoing impacts of the pandemic, including extending temporary provisions due to expire in April 2022.
I now turn to specific aspects of the Bill.
Judge-alone criminal trials
Currently, criminal trials in Victoria must be heard by a jury, reflecting the longstanding and fundamental role of juries in the criminal justice system.
Jury trials are running in both the Supreme Court and the County Court, and the courts are implementing measures to ensure these trials run as safely as possible, for example by establishing testing facilities for jurors and other trial participants (including legal practitioners) in Melbourne, the use of rapid antigen tests on circuit and re-purposing trial and jury rooms to allow for appropriate social distancing. The courts are also conducting most non-jury work remotely, to reduce the number of users physically present at court.
Despite these efforts, the courts continue to face significant trial backlog and disruptions, which continue to be exacerbated by the ongoing impacts of the COVID-19 pandemic. Many jury trials have been adjourned due to COVID-19 since the pandemic started, and juries have been discharged due to COVID-19. Concerns about COVID-19 also appear to be affecting the available pool of jurors, with more potential jurors asking to be excused.
Delays in criminal proceedings can adversely impact complainants and victims, due to uncertainty about when matters will be heard, and lack of closure. Delays can also significantly impact accused persons, particularly those being held on remand while awaiting trial.
Accordingly, with the support of key stakeholders including the courts, this Bill will reintroduce the temporary judge alone trial model, which operated between April 2020 and April 2021 (the 2020 model). This scheme operated effectively and is already known to the courts and legal profession.
Like the 2020 model, these reforms will be time limited, and will be repealed 12 months after they commence. The key substantive difference from the 2020 model will be to provide that an order for a judge alone trial may only be made when a pandemic declaration under the Public Health and Wellbeing Act 2008 is in force. This reflects the new pandemic management legislative framework and is appropriate given these reforms are aimed at responding to the COVID-19 crisis and its continuing effect on the court system.
In addition, the Bill will allow applications for judge alone trials that have been lodged (but not yet considered by the court) while a pandemic declaration is in force or before the sunset date to continue and, if an order is made, will allow these trials to proceed by judge alone. The 2020 reforms required the order for trial by judge alone to be made before the sunset date. This change will give the courts appropriate flexibility in the event that numerous applications are filed close to the expiry date of a pandemic declaration or the sunset date.
These reforms will enable the Supreme and County Courts to order an accused person to be tried by a judge alone in certain circumstances. These trials will be available for any Victorian indictable offence, but only if the court considers it in the interests of justice to hear the trial by judge alone and the accused person consents and has obtained legal advice on whether to give consent. While the prosecution’s consent will not be required, the court must consider any prosecution submissions before deciding whether to order that a matter be heard by a judge alone.
Allowing the courts to order trials by judge alone will give the courts and parties an alternative to jury trials in appropriate cases and allow more criminal trials to run. This will minimise delays in the court system and benefit parties.
As with the 2020 model, parties will be able to appeal verdicts made by a judge sitting alone in the same way as a jury verdict. Parties will also be able to appeal a decision of a court to order, or not order, a trial by judge alone.
In 2020, the government committed to significant consultation with stakeholders and the broader community before considering any permanent judge alone trial scheme. The government stands by that commitment. These are temporary reforms that are being reintroduced only to assist the justice system to safely continue to determine more criminal trials while COVID-19 continues to affect jury trials. The new requirement for a pandemic declaration is an additional safeguard and reinforces the temporary nature of these reforms.
The government is hopeful that these provisions will no longer be required as the pandemic progresses, and we learn to live with COVID-19. In the interim, however, they will ensure the continued effective and efficient functioning of the justice system and assist its recovery from COVID-19, while protecting the health and safety of Victorians, including jurors, court users and court staff.
Judge alone special hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA)
The Bill will amend the CMIA to allow proceedings to be conducted with greater flexibility during the COVID-19 pandemic, by allowing a special hearing under the CMIA to be heard by a judge alone if it is in the interests of justice to do so. In determining whether to make an order that a special hearing be heard by judge alone, the Bill will require the court to take into account the views of the accused as well as the prosecution.
These amendments are necessary to ensure that certain CMIA proceedings can continue throughout the COVID-19 pandemic in a timely way. Avoiding unreasonable delay is important in CMIA matters, as proceedings generally involve vulnerable accused persons with severe mental impairments or mental illness. Allowing judge alone special hearings will avoid further disruptions and backlogs in the court system and will reduce the risk that those who work in and attend Victoria’s courts will contract the potentially fatal COVID-19 virus.
In addition, the Bill will make amendments to address concerns raised by key stakeholders that the three-month timeframe for special hearings is presenting considerable challenges as the pandemic continues. The CMIA provides that if the accused is found not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing within three months. The Bill will allow for one extension to the three-month period to be granted, if it is in the interests of justice. The court may extend the time for a period that is reasonable, taking into account all the circumstances of the case and submissions from the prosecution and defence. This will ensure the extension will only be for the minimum period necessary to allow for the matter to be prepared, considering the individual circumstances of the case.
In alignment with the judge alone trial model, these changes will be time limited, and will be repealed 12 months after they commence. In addition, the variations noted above in relation to the judge alone trial model will apply to these reforms.
Delaying the commencement of de novo appeals reforms
In 2019, Parliament passed laws to modernise Victoria’s summary criminal appeal system. The Justice Legislation Amendment (Criminal Appeals) Act 2019 will abolish de novo appeals of criminal cases to the County Court and replace them with new processes that will enhance efficiency and transparency and reduce the burden on witnesses and victims.
These are important objectives, but they can only be achieved if courts and the legal profession have sufficient time to prepare for this significant change in practice. The commencement date for these reforms was postponed to 1 January 2023 by the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (System Enhancements Act) to allow courts and the legal profession more to prepare, due to the COVID-19 pandemic. However, the ongoing effects of COVID-19 on the court system and the significant time and resources required to implement the reforms make it necessary to further delay the commencement of the de novo appeal reforms until July 2025. This delay will ensure that efforts can remain focused on managing the impacts of COVID-19 and addressing the backlog of cases in the court system.
Extension of COVID-19 temporary measures
The Bill will extend Part 16 of the Occupational Health and Safety Act 2004 (OHS Act), which is a temporary Part introduced by the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 and extended by the System Enhancements Act and the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021.
The extension of this Part for a further six months will maintain the ability of WorkSafe inspectors to take enforcement action in relation to the occupational health and safety risks posed by COVID-19. Importantly, the extension will also ensure that employers and other duty holders under the OHS Act are providing a safe place of work and continuing to mitigate COVID-19 exposure risks in the workplace.
The Bill also extends section 42JA(2A) of the Evidence (Miscellaneous Provisions) Act 1958, which requires adult accused in custody to attend a summary contested hearing or a committal hearing by AVL by default. This temporary provision was introduced by the System Enhancements Act to address risks posed to the accused and other court users and staff by COVID-19 and is currently due to lapse on 26 April 2022.
Due to the risks presented by the ongoing pandemic, the Bill will extend the operation of this provision for a further 12 months. This will support Corrections Victoria to manage infection risk in custodial settings and mean fewer accused are required to undertake quarantine processes after attending these court hearings. However, as is appropriate, the Magistrates’ Court will retain the ability to order an accused to physically attend court when the interests of justice require it.
The Bill also extends Part 8.5A, sections 600S and 600T of the Children, Youth and Families Act 2005 for a further 12 months. These powers allow for the use of AVL or audio-link to satisfy young people’s attendance and reporting requirements under the Act. This was introduced as part of the COVID-19 Omnibus (Emergency Measures) Act 2020 and further extended for 12 months by the Justice Legislation (System Enhancement and Other Matters) Act 2021 and is currently due to also lapse on 26 April 2022.
Due to the current number of COVID-19 transmissions in the community, the requirement to attend a youth justice unit or report may not be feasible in some locations where staff or young people are isolating due to suspected or confirmed COVID-19 transmissions or cases. These extensions will ensure that Youth Justice can flexibly and appropriately manage the safety and wellbeing of young people under youth justice community supervision by allowing young people a remote means to safely suffice the requirements of their community order.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:45): I move, on behalf of my colleague Dr Bach:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.