Thursday, 24 March 2022

Bills

Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022

Second reading

Debate resumed on motion of Ms TIERNEY:

That the bill be now read a second time.

Ms BURNETT-WAKE (Eastern Victoria) (10:48): I rise to speak on the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022. As indicated by its title, this bill has a number of purposes. The most significant change posed by this bill is the extension of trials by judges alone without juries. The bill proposes to allow indictable offences to be heard by judges alone for another 12 months provided a pandemic order is in place. Judge-alone trials were first introduced in Victoria in July 2020. The bill amending the Criminal Procedure Act 2009 was introduced as a temporary change to avoid unnecessary backlog in the courts while Victoria adjusted to the pandemic and restrictions on people gathering, yet here we are debating the extension of changes that were only ever intended to be temporary.

The right to trial by jury is one of the few things guaranteed by the Australian constitution. This is testament to the fundamental importance of having criminal charges decided by a jury of peers rather than a singular member of the judiciary. The right to trial by peers goes way back to before the days of Magna Carta. Juries uphold the notion of democracy by allowing the conscience of everyday citizens to be heard on issues at trial in a way that judges cannot always do. They allow for decisions that are representative of the community, and they go some way towards eliminating the unrecognised bias of judges.

The last few years have thrown up challenges to many aspects of life, including our justice system, that we of course need to adapt to. I fully understand the intention of introducing judge-alone trials temporarily to allow hearings to continue in the safest possible way and to address the issue of court backlogs. However, given the history and significance of juries, I do not think that any decision to extend judge-alone trials should be taken lightly. My concerns are somewhat mitigated given this extension is tied to pandemic orders. Under this bill judge-alone trials can only be ordered while a pandemic declaration is in place, and for me that is of significant importance. Given we are again extending something that was meant to be temporary, I do not want this to be the beginning of the end for juries. This extension should be seen as a temporary measure to deal with the ongoing impacts of this pandemic, and any permanent changes to jury trials are not something I would support. Juries are a foundational part of our justice system. They exist for good reason, and they should stay.

I am also pleased that this bill has kept a number of protections, including that the accused must consent to the trial being heard by a judge alone and must have obtained legal advice prior to giving that consent. Everyday Victorians have not had the privilege of studying law, like many of us in this place have; they are not well versed in the rule of law, the constitution or the benefits of a jury trial. This lack of knowledge could be used to their detriment if it were not for the requirement to obtain legal advice. Again, I am glad this has been included in this bill.

This bill also seeks to allow for special hearings to be heard by judges alone. The purpose of a special hearing is to determine whether an accused person is guilty or not guilty because of mental impairment. Typically the jury would hear evidence about the offending, review any medical evidence and come to a conclusion about the person’s mental state and guilt. These special hearings involve vulnerable individuals, and there is obvious benefit in these hearings continuing. For the same reasons that I do not oppose the extension of judge-alone trials, I do not oppose the extension of special hearings relating to mental impairment.

Another part of this bill that I wish to touch on is the delay of the de novo appeal reforms. The Andrews Labor government boasted back in 2019 about how these reforms would make Victoria’s appeal system more efficient and transparent while better supporting victims. As it stands, when a person is found guilty by the Magistrates Court or Children’s Court and appeals that decision, the County Court must hear all evidence again and reach a new decision. It is said to place a considerable burden on victims and witnesses, who are required to go and give evidence a second time, and it also consumes a large amount of the County Court’s time. Under these reforms the County Court would hear the appeal based on the material that was led in the initial court. The idea was that this would speed things up and create higher quality cases in the Magistrates Court and protect victims from reliving their trauma. We were told these reforms were about delivering more effective justice, so it is baffling that the government have now decided to put off the introduction until mid-2025, particularly at a time when courts need all the help they can get when it comes to efficiency. We were advised in the bill briefing that the government need more time to ensure that courts have the adequate resources to implement the change. It is astounding that three years is not long enough for the Andrews government to implement their own changes.

And finally, I wish to mention the amendments to the Occupational Health and Safety Act 2004. Under the Occupational Health and Safety Act any breach of a pandemic order or public health direction is taken to be an immediate risk to health and safety. Once something is classified as an immediate risk to health and safety, WorkSafe Victoria inspectors have the power to issue prohibition notices and shut down workplaces under section 112. This means, essentially, that if a worker were to be wearing their mask below their nose, as they so often do, their employer could be hit with prohibition notices. The bill before the house today seeks to extend this power by six months; it was originally due to end on 26 April. I do not support legislation that provides major penalties for minor breaches. Other areas of the law have penalties that depend on the type of offence; they are not lumped into a one-size-fits-all category where minor breaches attract the same penalties as major breaches—nor should they be. A blanket approach leads to disproportionate penalties for minor breaches.

Overall this bill feels a bit like a bandaid approach. Extending judge-alone trials will not fix the deep-rooted issues of criminal backlogs in our justice system. It may assist, but it will not fix it. Delaying reforms to de novo appeals means changes and efficiencies are even further away. If we are going to recover and rebuild, the government need to be doing more to address these issues for good.

Ms TERPSTRA (Eastern Metropolitan) (10:55): I rise to make a contribution on the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022. Effectively the bill will extend temporary measures that were designed to assist the justice system in continuing to respond to the challenges presented by the COVID-19 pandemic. The bill has effectively five aspects, so I will just quickly go through those five elements.

Firstly, it will reintroduce judge-alone criminal trials and special hearings on a temporary basis, which will ensure more criminal trials and special hearings can proceed. This will assist the courts in responding to the challenges presented by the COVID-19 pandemic and minimise further disruptions and backlogs in the court system. Secondly, it will defer the commencement date for de novo summary appeal reforms, which will allow the courts and other justice stakeholders adequate implementation time to ensure these reforms achieve their intended benefits while not diverting resources from backlog reductions at this critical time. Thirdly, it will extend part 16 of the Occupational Health and Safety Act 2004, which will provide certainty both for inspectors when considering issuing directions or prohibition notices under those provisions and for duty holders. I will go to a bit more detail about that later in response to Ms Burnett-Wake’s contribution, just on that bit on masks, because clearly that is not accurate. Inspectors will have discretion in regard to those matters, but I will go into that later in my contribution in a bit more detail. Fourthly, it will extend the provisions requiring adult accused in custody to attend a summary contested hearing or a committal hearing by audiovisual link by default to reduce the need to transfer an accused person to court and for them to then complete transfer quarantine upon their return to prison. Lastly, it will extend provisions under the Children, Youth and Families Act 2005 to continue allowing attendance at a youth justice unit or reporting to occur by audiovisual link or audio link.

In regard to the reintroduction of judge-only trials, the previous scheme was that in April 2020 the Andrews Labor government introduced reforms aimed at ensuring that the justice system could respond effectively, as I said earlier, to challenges that the COVID-19 pandemic posed, and this included the introduction of judge-alone criminal trials. These reforms also applied to special hearings. A special hearing is similar to a criminal jury trial, but it is for people who have been determined to be unfit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 due to serious mental health issues or cognitive impairment.

The introduction of judge-alone trials was aimed at assisting the courts to continue to hear criminal trials and special hearings while there were significant constraints on conducting in-person jury trials due to the pandemic. These measures operated effectively for 12 months, from April 2020 to April 2021. During this period there were 60 applications for judge-alone trials in the County Court, of which 51 were granted, and six applications were made in the Supreme Court. After the expiration of the scheme it was not considered necessary at that time to further extend the provisions as a return to in-person jury trials was expected to eliminate the need. However, the continued effect of public health restrictions caused this decision to be re-evaluated.

The courts are working hard to ensure that criminal jury trials can continue to operate in a COVID-safe manner. Even right now we know there is another variant that is coming and we are seeing some cases that are popping up again, so it is obviously a good measure to make sure that we have these options to allow the effective operation of our criminal justice system. Jury trials resumed in the Supreme Court in October 2021 and in the County Court in November 2021, and both courts resumed jury trials for 2022 in January. Both courts have protocols in place to hold jury trials safely, including social-distancing arrangements and rapid antigen testing requirements. Substantial work was completed in 2021 to accommodate physically distanced juries as well.

Late last year the government made legislative changes to provide the juries commissioner with the discretion to defer jury service on health and wellbeing grounds, including vaccination status, to help ensure that the courts can run jury trials safely. Despite these measures, however, there remains a risk that criminal jury trials will continue to be disrupted due to the pandemic as COVID cases remain prevalent in the Victorian community. Some criminal juries have been discharged for COVID-19 reasons, and some have been adjourned.

In addition, potential jurors are seeking exemption from jury duty due to the pandemic. The courts are also facing a large backlog of criminal jury trials because of the challenges they have faced over the last two years in running them during the pandemic. This has been challenging not only for our court system but for other areas as well. It is appropriate to reintroduce judge-alone trials as a temporary measure to give the courts an additional option to continue to hear criminal trials alongside jury trials and to help them drive down the backlog that has arisen from restrictions as a result of the COVID pandemic. 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 reduce delays in the court system and benefit parties as well.

The judge-alone scheme will be substantially the same as the judge-alone scheme that was adopted in early 2020. The provisions operated effectively and the courts and the professions are now familiar with their operation, and there is now case law which gives guidance on the provisions, including the test that it can be in the interests of justice that a judge-alone trial proceed. The court can order a trial by judge alone for any indictable Victorian offence if the following criteria are satisfied: the accused person consents to be tried by judge alone, the court is satisfied the accused has sought and received legal advice on whether to consent to a judge-alone trial and the court is satisfied it is in the interests of justice to order a judge-alone trial. The courts can order a judge-alone trial either on their own motion or on application by the prosecution or the accused. The prosecution does not need to consent to the judge-alone trial, but the judge is required to take into account the prosecution’s view in deciding whether to order a judge-alone trial.

As was the case with the previous model, parties will be able to appeal verdicts made by judges 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. The scheme is a temporary response to the COVID-19 pandemic, as I said earlier, and the provisions will sunset after 12 months and an application for a judge-alone trial will only be able to be made if a pandemic declaration is in force. This new requirement is an additional safeguard and reinforces the temporary nature of these reforms. Criminal jury trials will also remain the cornerstone of our criminal justice system, and the government remains committed to undertaking consultation with stakeholders and the broader community before considering any permanent judge-alone trial scheme. 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.

In terms of de novo appeals, I will just move to this aspect and I will explain what de novo means for those who might be playing along at home as well.

Ms Stitt: There is nobody playing.

Ms TERPSTRA: No, there is nobody. Maybe people in the chamber might like to know. Currently, if a person is found guilty by the Magistrates Court or the Children’s Court and then appeals, the court must hear all of the evidence again and reach a new decision. Essentially appeals are new, or de novo—so it means from the start, new. A de novo hearing is new or from the start. This system places significant stress on victims and witnesses who are required to repeat their evidence during the appeal proceedings. It also places significant cost and resource pressure on the County Court. Reforms introduced by the Justice Legislation Amendment (Criminal Appeals) Act 2019 replaced de novo appeals with new processes for conviction and sentence appeals, streamlining the appeals process. These reforms were originally scheduled to commence in July 2021 but have already been delayed to 1 January 2023. These delays are due to the ongoing effects of the COVID-19 pandemic on the court system and the significant time and resources required to implement these significant reforms.

I did want to deal with the issue that was raised by Ms Burnett-Wake, so I might just skip to that in terms of health and safety aspects. I am sure that others may want to comment on these aspects as well. In terms of part 16 of the Occupational Health and Safety Act 2004, this bill will be extending the operation of part 16 of the OH&S act until October 2022. This part was introduced as a temporary measure and is currently due to lapse in April 2022. These provisions have been a vital part of the Victorian government’s COVID-19 response and are necessary to ensure WorkSafe Victoria inspectors can continue taking decisive enforcement actions in response to duty holder non-compliance with pandemic orders and related COVID-19 directions.

This extension makes no change to the provisions but will assist WorkSafe to ensure that employers and other duty holders under the OH&S act are providing a safe place of work and mitigating exposure to COVID-19 in the workplace. It is important to note that, as always, WorkSafe inspectors have discretion when they take appropriate enforcement action, and I want to thank them for their dedication and hard work in ensuring workplaces are as safe as they can be. WorkSafe also provides duty holders with guidance on how to achieve compliance with obligations imposed by the OH&S act, and the Department of Health also provides guidance regarding compliance with pandemic orders and related COVID-19 directions, so there is plenty of support available for employers and duty holders in this space.

This extension is vital to ensuring that WorkSafe has the tools it needs to keep our workplaces safe as we continue to move through the COVID-19 pandemic. WorkSafe inspectors have always had discretion in this space regardless, and again there is lots of guidance and there are measures available to assist duty holders to make sure that they are clear on their obligations. As I said earlier, there are plenty of options for discussion around these matters. We are well into the pandemic now; we have had plenty of experience, and I think duty holders are well across their obligations.

Ms Stitt interjected.

Ms TERPSTRA: I might just note—thank you, Minister Stitt—a mask under the nose is not an example of something that might present a concern in terms of fines and provisional improvement notices and the like; that is not an appropriate example. WorkSafe inspectors would be looking for something much more than that. What I would expect certainly is that if somebody in the workplace was not complying with the directive to wear their mask, their employer would actually point that out in the first instance. It would not be something where a PIN would be issued immediately as a consequence of that, and I can say that as someone who worked in industrial relations for quite a significant number of years—WorkSafe inspectors do not operate like that. So I just want to dispel that myth.

I might also just state that in the last state budget we announced a $210 million funding boost to help drive down the COVID-19 backlog and bolster resources in the courts across the state. This package incorporated $34.8 million for extra resources in our courts, including bringing forward the appointments of two County Court judges; $40.9 million for the online Magistrates Court, including two magistrates and additional hearing rooms; $56.7 million for VCAT to move more of its hearings online; and $55.3 million for Victoria Legal Aid, Victoria Police, the Office of Public Prosecutions, Corrections Victoria and victim services to ensure that they have the resources they need to play their part in reducing the backlogs. That funding, which I just laid out there, in the last state budget also comes on top of over $80 million previously invested to help the courts cope with COVID-19 and address the backlog.

I might also in the 2 minutes that I have left quickly just touch on some reforms in regard to the Children, Youth and Families Act 2005. This bill will extend the temporary COVID-19-related provisions under the Children, Youth and Families Act 2005 to continue allowing attendance at a youth justice unit or for reporting to occur by audiovisual or audio links. I touched on this earlier. Currently these measures are due to expire in April 2022, so it is important that we make sure we have important supports to allow these things to continue.

Just briefly, there has been a significant transformation of services—which was done rapidly and effectively—and some of the changes I might just quickly note in the minute that I have left. At the commencement of the pandemic youth justice rapidly scaled up its technology capability in custody and the availability of audiovisual links to the courts. Twenty-eight funded community service organisations, including Aboriginal-led organisations, were provided with an extra $11 000 per organisation to support young people. This funding has helped families purchase technology to help children and young people participate in virtual education as well as to address other practical needs for children during the periods of restrictions. Active work occurred at the start of the pandemic with the Department of Education and Training to supply laptops to children under community-based supervision, and youth justice also supported people to participate in home learning and supervision using brokerage funding.

There is lots more that I could say on this—there is a load of work that the government has been doing in this space—but the clock is against me right now. I will conclude my contribution there, and I commend this bill to the house.

Dr BACH (Eastern Metropolitan) (11:10): I also commend most elements of this bill to the house. It is good to rise to follow my friend Ms Terpstra. I only wish to make some brief comments about this bill, because Ms Burnett-Wake’s contribution really hit upon both the elements of the bill that I do not find objectionable and one or two elements of the bill that on this side of the house we do oppose, in particular the extension of the Occupational Health and Safety Act 2004 deeming provisions.

Ms Terpstra spoke about some proposed changes through this legislation to the Children, Youth and Families Act 2005, and those are elements of the bill that on this side of the house we do not oppose. We also did not oppose the Children, Youth and Families (Child Protection) Bill 2021 when it came to this house months and months and months ago. That bill seeks to make important changes such as putting in place the legislative framework for Home Stretch, a really important program with bipartisan support seeking to give better care to care leavers. That bill also seeks to give more power to Indigenous-led organisations—Indigenous-led organisations need even more authority and autonomy. The provisions in that bill—still listed at number 5 on the notice paper—are important. Also that bill goes some small way to seeking to enshrine early intervention and preventative practices in our practice framework here in Victoria.

When we had the debate, members might recall—I recall; I spoke on that bill—we got to the committee stage and then the government pulled it, and that was months and months and months ago. I spent some time yesterday with Minister Carbines, the Governor—I do not hang out with her often, but I was with her yesterday—and numerous other senior leaders in the child protection sector, and they have no idea why the government has pulled this important bill, and nor do I. Given that Ms Terpstra wanted to talk about the Children, Youth and Families Act 2005, I would ask through you, Acting President Melhem—and I do like your shirt and tie today—why is it that the government has pulled this very important bill?

As Ms Burnett-Wake said, whilst numerous elements of this bill are not opposed on this side of the house, it does not go anywhere near far enough to deal with our quite appalling court backlogs. I would refer the house to the excellent contribution of Mr Michael O’Brien in the other place, in which he went through in encyclopedic detail the extent of our court backlogs—the worst in the country. Of course, as with all things, according to the government the reason for these backlogs is COVID-19. We have heard from the government today, I do not know, at least 50 times that COVID-19 is a global pandemic. Thus I am sure the government would concede that there have been COVID cases in New South Wales, in the ACT, in South Australia and indeed in every Australian jurisdiction, and yet our court backlogs and our backlogs at VCAT are easily the worst in the nation. We had huge backlogs before COVID hit. I concede to Ms Terpstra that in the last budget the government finally made some funding announcements. However, far more needs to be done. For so many Victorians justice is being delayed, oftentimes for years. Justice delayed is justice denied, so whilst there are elements of this bill that the government says first and foremost seek to make inroads into our court backlogs—and therefore we do not oppose those elements of the bill—the government needs to do far more to even make a start. There are shocking backlogs at VCAT and huge backlogs in all our courts.

Ms Terpstra spoke about the deeming provisions. I want to be as clear as Ms Burnett-Wake was clear. We object on this side of the house to the six-month extension to the OH&S act deeming provisions for two simple reasons: firstly, they place businesses at risk of double jeopardy; and, secondly, there is no proportionality. Any breach, no matter how minor or temporary, is automatically deemed to be ‘an immediate risk to health and safety’ with all the consequences that flow from that. We are not convinced by the government, in this instance through Ms Terpstra, telling us that WorkSafe Victoria officers will surely conduct themselves in an appropriate way. To hand over such significant powers for another six months is not appropriate, and therefore on this side of the house we will not support that provision. More broadly we do not oppose this legislation.

Ms SHING (Eastern Victoria) (11:15): Welcome to the chamber of contradictions for a Thursday afternoon. We have heard from Dr Bach. We have heard from Ms Burnett-Wake. We heard—in excruciating detail, was it?—that Dr Bach referred to Mr O’Brien’s contribution in the other place—

Dr Bach: Encyclopedic.

Ms SHING: Encyclopedic. My apologies. I misheard you and thought you had said ‘excruciating’ for a moment there, Dr Bach. Never would I seek to verbal you in that regard or indeed the contribution in very granular detail from Mr O’Brien in the other place.

What I want to do in the time that I have available today is to talk to the nature of the circumstances in which we find ourselves and to understand the basis upon which the opposition have indicated that they do not oppose this particular bill whilst also decrying the circumstances that have given rise to it. I have somewhat of an issue with this mix, this mess of contributions from those opposite, whereby they say on the one hand that other jurisdictions have had to deal with the pandemic, have had to make necessary adjustments to the way in which the court processes operate, and it is time for us effectively and essentially to open up, and then they say on the other that we cannot afford to actually compromise the judicial process whereby justice delayed is indeed justice denied, to quote Dr Bach right back at him.

What we see is an appreciable risk of court proceedings being delayed or indeed grinding to a halt because of challenges presented by the public health consequences of the pandemic. What we see here is a reality which those opposite are quick to ignore or indeed to downplay as it relates to the ongoing work that we are doing to reduce court lists, reduce wait times and improve the administration of justice—as recognised by Dr Bach in his contribution around the budgetary commitments and investments that were made in last year’s budget.

We seem to have this glorious alternate universe concocted by the opposition to say that everything should be operating in a much smoother way, in a much more efficient way and without the hindrances presented by the public health issues that relate to the pandemic—a pandemic not of our making, a pandemic of global consequence and a pandemic which, despite the efforts of anybody in this community to deny its existence, continues to cut a swathe through various economies and jurisdictions around the world. We are not going to apologise for or indeed ignore the consequences of the pandemic as they relate to the administration of justice. We are not going to ignore the cold, hard reality faced by courts and tribunals that in fact dexterity is needed to accommodate these changes and these challenges and indeed to meet the obligations around the effective and efficient administration of justice without undermining any of the rights associated with those very duties, obligations and considerations which exist within the Charter of Human Rights and Responsibilities.

I am always a bit flabbergasted when it is that those opposite take a sudden interest in the Charter of Human Rights and Responsibilities. We have seen it time and time again as it relates to the pandemic. We see this time and time again as it relates to the Pandemic Declaration Accountability and Oversight Committee, of which I am delighted to say that I am a member, and we see it time and time again where there is a cheap political point to be scored by those opposite as it relates to the arguments of proportionality or of impact upon individuals in the making and creation of law. Unfortunately for those opposite, however, the human rights consequences—the arguments of justice delayed being justice denied, as Dr Bach put earlier in his contribution on this bill—are flexibly ignored when it comes to other considerations around the making of law. We see that in the conduct of those opposite the Charter of Human Rights and Responsibilities is not, to paraphrase the various positions that they have taken over the years, worth the paper it is written on—that in fact it warrants review, that in fact it warrants the consideration of irrelevance or obsolescence within the legislative framework or the regulatory framework here in Victoria and that in fact it has no purposeful work to do. This is a matter of particular consequence when we are talking about the impact of these laws, which will sunset after 12 months, which are directly tied to the response to the pandemic and which are directly tied to the impositions, disadvantages and indeed propensity or indeed possibility of perverse outcomes as a consequence of interference in judicial and legal processes by pandemic-related matters.

Standalone judicial consideration of matters in a way which seeks to substitute the lack of availability of a jury trial is not a matter which this government takes lightly. It is not a matter which any government should take lightly, precisely because the tenets of an effective, efficient and fair judicial system rest upon the right to a fair trial. Now, those opposite and indeed a few others in this chamber and a few others in this Parliament are quick to say that judges are not in a position to reflect community attitudes or indeed to administer justice in a way which acquits their obligation as a member of the judiciary and that that is at odds with what the Parliament expects and is at odds with what the community expects. That is where we see the great rub in the opposition’s argument here—that in fact the positions, the protestations, which are outlined in their various contributions relate as much to a lack of confidence in the judiciary as to anything else. That is the basis upon which there have been strident comments and indeed arguments of opposition from those opposite, which ignores the reality of the way in which judicial processes operate with a judge-only trial; ignores the reality of what occurs in the administration of justice where judge-only trials are made available; and ignores the reality which has been put in the course of a lot of research from the Victorian Law Reform Commission, trials and indeed considerations and research in New South Wales and volumes of analysis around the way in which trial outcomes are achieved and the distinction between jury consideration, judicial consideration and community views around anticipated or expected outcomes, particularly as they might relate to sentencing.

Reforms that are in fact introduced by this bill are intended to make it clear that wherever possible the administration of justice will occur in a speedy time frame; that it will, without compromising the quality of assessment, analysis or the right to a fair trial, be executed with the greatest degree of efficiency possible. That comes of course with the caveat of the operation of a pandemic and the fact that too many people—so many people—within our workforces, within our communities, have been furloughed as close contacts, have had to isolate due to experiencing COVID themselves and have had the consequences of a diminished capacity to participate in paid work following a recovery from at least the initial stages of COVID and indeed the adjustments associated with a different way of living and of connecting and of accessing services and outcomes.

This is something which is easy to ignore, which is easy to downplay, which is all too easy to use for the purposes of a pretty predictable narrative from those opposite. And yet the opposition is not opposing the changes proposed by this bill. The opposition has indicated that it thinks that these reforms, begrudgingly, are necessary. We have an issue being taken by the opposition as it relates to OH&S provisions in the bill, and I am looking forward to the way in which those matters might be further considered. But the upshot of the changes that are proposed, the guts of what is in this bill, is not a matter of contention for those opposite, save for the confected outrage that we might hear from across the way.

In a perfect world we would not have any changes to the administration of justice, if you are talking about it from a conservative political perspective, until and unless those in government, those from the conservative side of politics, wanted there to be change. It would ignore the reality of a pandemic. It would ignore the constant changes that have been necessary even in a system as large a machine and as complex as the judicial system here in Victoria and indeed in any other jurisdiction around Australia and indeed in any other jurisdiction around the world. It is the head-in-the-sand approach to lawmaking throughout this pandemic that has been nothing short of an embarrassment for those opposite.

We have seen a capacity within governments and with oppositions to embrace a collaborative approach to the running of government and to the functions of all three arms which exist within the separation of powers and which exist as part of a proper and well-functioning society. It is a great shame that those opposite have not seen fit to engage in a collaborative way and continue to this point in time to either embrace at the last minute the progressive and responsible reforms and changes such as those set out in this bill and make cheap political hay out of such reforms or indeed leap upon the back of them to say that this indeed, in a rewriting of history, is the sort of thing that they have always sought and indeed supported. It will be a curious rewriting of history if we indeed see the opposition continue its claims that progressive reforms have always been their idea and that practical accommodation of pandemic response in various facets of our regulatory and legal framework have not been an overreach but have in fact been necessary and proportionate.

It will in fact be a curious rewriting of history to hear those opposite and indeed those in the other place, with all of their granular detail and all of their legal expertise, suddenly come to the party to make that political hay as we head towards the second half of the year in pursuit of a narrative that this government has not been responsive, that this government has not been in touch and that this government has not sufficiently allocated resources to the administration of justice. Yet Dr Bach, when he got to his feet earlier, conceded Ms Terpstra’s contribution and the point that she made about budgetary allocations—budgetary allocations which are not standalone in the way in which they operate to address the worst impacts of the pandemic and which are reflected across the entire budget, across the entire allocation. You would have to be wilfully ignorant to ignore the allocation of funding which has been dedicated toward pandemic response and the allocation of resources which has been directed toward minimising the impact of the pandemic and the outcomes which are impacted and affected by it. Those opposite are all too quick to say in fact that it is not good enough, it is not near enough, it is not soon enough and it is not enough. Then they go ahead and support what it is that we are trying to do.

You cannot have it both ways, and yet those opposite would continue to protest at the inelegant approaches that we have taken to such reforms and would continue to protest at the quality of the bills which we put before this house, and when it comes down to it we see that it is on very few occasions that the opposition will oppose measures like this which are intended to alleviate the waiting lists and which are intended to provide the requisite level of support for our court system to do its job.

The Attorney-General has been very clear about the ongoing resources that are needed by and are being provided to our courts and tribunals to enable them to do their valuable work. She has been unapologetic about the need to have these conversations, these uncomfortable discussions, about what is needed so that indeed she can advocate for such improvements and resources to be allocated throughout budgets, and she has succeeded. On that basis this bill is an important reform that reflects the reality of the world in which we live, and I commend it to the house.

Dr CUMMING (Western Metropolitan) (11:30): I stand to speak on the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022. This bill is to provide temporary arrangements for trials or special hearings by judge alone while a pandemic declaration is in force and to delay changes to some acts. While our justice system has operated on the basis of jury trials to ensure that the rights of the accused are safeguarded, this has not always been possible during COVID. I am glad to see that the option of having a trial by a judge alone can only be done at the request or with the consent of the accused. This is a very important safeguard, but it is still a path that I hope we do not keep any longer than is required. However, I have to question the delay of the changes to the other acts by two years. These reforms were meant to make the process faster and to ensure that all parties put their best case forward rather than relying on the appeals process, so why are they being left for two years?

I will just go back to the main intent of the bill, which is really to try and clear the backlog. The Productivity Commission released their Report on Government Services in January, and it provided statistics of the backlogs in the courts around Australia. These were alarming, particularly when you compare us to New South Wales. The criminal case backlog of longer than 12 months in the District Court, or County Court, is 14.4 per cent in New South Wales. It is 30.7 per cent in Victoria, which is more than double. In the same courts the backlog of longer than 24 months—two years—is 5 per cent in New South Wales. It is 11.3 per cent in Victoria, again more than double. The civil case backlog of more than 12 months in the District or County court is 19.5 per cent in New South Wales. It is 36.8 per cent here in Victoria. In the same courts the backlog of longer than 24 months—two years—is 4.2 per cent in New South Wales. It is 13 per cent in Victoria, more than three times that of New South Wales. The criminal case backlog of longer than six months in the Magistrates Court is 21.8 per cent in New South Wales. It is 56.5 per cent in Victoria, more than double again. In the same courts the backlog of longer than 12 months is 4.7 per cent in New South Wales. It is 28.3 per cent in Victoria, six times the amount of New South Wales. The civil case backlog of longer than six months in the Magistrates Court is 20.1 per cent in New South Wales. It is a whopping 49.5 per cent in Victoria, more than double again. In the same courts the backlog of longer than 12 months is 3.7 per cent in New South Wales. It is 30.5 per cent in Victoria, over eight times that of New South Wales. I could go on. Figures in the Children’s Court, the court dealing with our most vulnerable, are equally as appalling. This government needs more than this bill to fix the backlog of the courts. They need to develop a solid plan.

I will make one more comment on the bill. Clause 10 is very sneakily sliding an amendment to the Occupational Health and Safety Act 2004 into this bill. This clause extends the operation of COVID-related fines. Rather than part of the act being repealed in April, it extends it for another 12 months.

I am concerned about notices being given for very minor breaches of COVID-related rules that have happened in the past two years. While I would prefer that this clause was removed entirely, it should at least be amended to specify certain serious breaches. This government could drop all COVID-related fines that are blocking up our courts currently: the minor fines for masks; the fines that they created, fanciful ones, for small business; the ones they created for churches; and so-called COVID breaches during the lockdowns that we did not need. Is this government going to drop all of the COVID-related fines, the very minor ones around masks, to stop this backlog?

We can now see that the virus is spreading through the vaccinated. Why does this government still have this on their books and continue to threaten people if they do not wear a mask on public transport, or fine children $20? This government should, if they want to improve our court system and the backlog, drop all the COVID-related fines now.

Mr GRIMLEY (Western Victoria) (11:36): I rise to speak to the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022. I do not intend to take too long with my contribution. In fact I only intend to speak about the amendment, which I would like to circulate now.

Derryn Hinch’s Justice Party amendments circulated by Mr GRIMLEY pursuant to standing orders.

Mr GRIMLEY: Regarding the majority of this bill, we are generally pretty happy with it. Whilst I have sent extensive information on this amendment to all members, I will briefly speak to it here for Hansard and also for any victims or other supporters who may be watching.

This amendment, like others I have put forward in this place before, acquits a recommendation from the 2016 Victorian Law Reform Commission (VLRC) report The Role of Victims of Crime in the Criminal Trial Process, specifically recommendation 25. It recommends that:

Division 2A of Part 2 of the Evidence (Miscellaneous Provisions) Act 1958 … should be amended by:

(a) requiring the prosecution to notify the victim of their right to appear and the availability of legal assistance in relation to an application to subpoena, access and use their confidential communications …

(b) requiring the court to be satisfied that the victim is aware of the application and has had an opportunity to obtain legal advice

(c) prohibiting the court from waiving the notice requirements except where the victim cannot be located after reasonable attempts or the victim has provided informed consent to the waiver

(d) providing victims with standing to appear—

and removing the requirement that victims seek the court’s leave to appear, which is on page 145—

(e) permitting victims to provide a confidential sworn or affirmed statement to the court specifying the harm the victim is likely to suffer if the application is granted.

These recommendations were reiterated in the VLRC’s 2021 report Improving the Justice System Response to Sexual Offences. In that they state:

The issues identified in our Victims of Crime report are still with us today. The protection of confidential communications is undermined by the challenges complainants face in participating in the decisions made about their records.

We reaffirm the recommendations in our previous inquiry.

There were two inquiries there—many, many years apart—and the issue is still the same.

I can say this with clarity because the government did implement a suite of changes in 2018 in response to the first report but this recommendation was not one of them. Five years later the same commission made the same recommendation, with a focus on the need for legal representation for these applications.

I cannot be much clearer about what these amendments do than pointing towards these recommendations specifically. My office has worked closely with the Office of the Chief Parliamentary Counsel to ensure that we get the implementation of this right, as well as putting in protections to ensure that this does not amount to any considerable time delays on individual cases or the court backlog generally.

For further background on why this is needed I will take you to some of the practices that are still exhibited in some Victorian courts. I say this knowing that the attitudes are shifting and courtrooms are getting better at dealing with sexual offences, but they are certainly not perfect. Derryn Hinch’s Justice Party have heard from victims over our tenure in this place about awful cross-examinations and perceived breaches of privacy. When a case is brought against an alleged perpetrator for sexual offences, the victim’s confidential records can be subpoenaed or requested by the perpetrator and/or defence. These are often used to discredit or bring into question the victim’s state of mind or cross-examine their statement, for example. This contrasts with the various protections offered to an offender, such as the inadmissibility of prior convictions.

Some examples of how victim information can be exploited or questioned in court can be: use of antidepressant medication being a reason for a victim to be unreliable; a history of mental health issues being the reason why sexual assault was alleged; or requesting medical records that date back decades before a rape allegation. This can be humiliating, embarrassing, hurtful and unjustified, and it can certainly be retraumatising. Whilst this is to some extent a necessary part of the adversarial legal system that we have, there should be additional protections in place for victims’ confidentiality, which can be and often is exploited in court, as well as the ability for victims to participate in the legal system.

The VLRC’s inquiries were very fruitful, but in a bad way. The report exposed many things regarding confidential communications, including that victims are not notified about their communications being accessed or even being sought, that victims are not told that they have a right to appear before the court, that the court still has discretion over hearing the victims’ pleas as to why, that there is a clear lack of legal help for victims who choose to pursue defending access to their personal records and that the courts still have the ability to say no when a victim or their lawyer wants to defend access to that victim’s records. This does not mean records must not be used. The judge still has the ability to make that decision independently, but it allows the victim to make a submission to be heard.

We can fix all of these things. We can fix them without making a victim a party to proceedings, without causing undue delays to the legal system, without removing complete discretion from the courts where victims choose not to participate and have communicated with their prosecutor or cannot be found. We have also retained in our amendments the 14-day notification time frame that currently exists under the law, for instance, if hearings are already scheduled within this time frame—all of this just by creating a system of checks and balances for victims.

Currently victims can appear before a court to explain why they object to certain records being obtained or used; however, many do not know about this right to appear, and further, they cannot access publicly funded legal help to represent their best interests, as the police and the Office of Public Prosecutions are unable to undertake this role. I could therefore talk all day about why we need to expand the victims legal service, but I will leave that for another time. So the solution to this issue is to include a process in the act whereby victims are notified about their rights to appear and to make a submission about requests for their confidential communications, as well as requiring the court to check that such inquiries have been made.

The VLRC report came to some important conclusions about how Victoria’s current laws are lacking in terms of confidential communications. Firstly, Victoria Police suggested in its submission to the commission that there is no obligation to serve the notice on the victim or for the victim to be informed that the application has been made. I will just reiterate: Victoria Police suggested in their submission to the commission that there is no obligation to serve the notice on the victim.

In response to this section 7.67 of the VLRC report states:

Victoria Police, the Centre for Rural Regional Law and Justice, the DPP and Victoria Legal Aid and some support workers agreed that measures should be taken to ensure that victims are effectively notified about applications to use their confidential communications.

Requiring victims to seek leave of the court to make a submission is at odds with recognising the victim’s interests in the proceedings and specifically their interest in protecting their privacy from unjust interference. The Supreme Court of Victoria agreed with this in their submission to the commission. One could certainly argue that the Magistrates Court and the Supreme Court are very different and hold very different roles, but why should a victim of rape experience the court process differently from a victim of another serious sexual assault just because it is the court’s jurisdiction? The commission states on page 144 of its report that:

… the current statutory obligation alone has not served to ensure that the victim has been notified.

This means that victims’ entitlements need to be strengthened and a system of checks and balances needs to be implemented, and this is what these amendments do. Should these amendments pass, victims will still be able to allow the prosecution to convey their views on behalf of them. These amendments do not interfere with this process. They only strengthen the mandate to advise victims of such applications and offer the right to appear, including without seeking leave of the court.

I will mention that the sky will not fall in if these amendments pass. I know this because what we are seeking is virtually replicated in New South Wales. Their notification system is more aligned with the rights of victims. There is an obligation in New South Wales for the court to oversee notifications about confidential communication applications. In New South Wales the judge must be satisfied that the victim has been notified about the application and has had the opportunity to obtain legal advice should they wish.

Lastly, I can imagine that the government will seek to vote against these amendments, and one reason may be that it is an attitudinal shift that needs to take place instead of a legislative change. I will respond that the courts, as has been seen over successive amendments in this place, have needed some encouragement to ensure that no victim slips through the cracks. We have seen this with many of the other recommendations the government has acquitted from the same 2016 report in regard to victim impact statements, intermediary programs, witness protection screens and the like. This system of checks and balances ensures that victims are notified and that the courts are aware of the impact of sharing victims’ confidential communications.

These amendments are about mandating the notification process, because the current statutory obligations are simply not working. If you are serious about supporting and protecting victims of crime from additional harm and trauma, then your support of these amendments will achieve that.

Ms TAYLOR (Southern Metropolitan) (11:48): I am glad that the opposition are broadly supporting the bill and are going to ensure its passing. I am a little bit disappointed, however, that they are not supporting, I believe, a certain OH&S element. I thought I would speak to that a little bit, and then I will go to some other elements of the bill.

I think the concern that they have raised—and I believe it has already been discussed to some extent here—is that the relevant provision increases uncertainty for small business as it allows WorkSafe Victoria to close down businesses for a minor breach of a pandemic order. Can I just make it absolutely clear that this is incorrect. The opposition are concerned about the use of prohibition notices, but perhaps there is a misunderstanding on their part that prohibition notices are only issued in relation to a particular activity. I can also relate to what Ms Terpstra was saying earlier about having represented workers and knowing what it takes in order to bring about the issuing of a provisional improvement notice et cetera. It would be good in this debate to be able to allay the concerns that have been raised, having been in that role and witnessed where PINs et cetera have been issued. They do not act to shut down an entire workplace where the risk is only confined to a particular activity. In limited circumstances where a single activity comprises the entire business a prohibition notice may require all activity at that workplace to cease, such as a manufacturer with only one machine, but this is extremely rare, so I do not think it is helpful in this debate to inflate the probability, in a way, or for want of a better word embellish it when in fact that just is not the reality.

It appears that the opposition seems to be suggesting that WorkSafe inspectors do not know how to do their jobs—something that we absolutely reject as well. I want to thank every one of them for their tireless work over the last two years, because we know they are well trained and they are zoning in on issues and matters which need to be addressed in an appropriate manner. This is also a point from Ms Terpstra that I will reiterate: the WorkSafe inspectors still retain discretion as to whether they use these powers. After an inspector establishes that there has been a breach of the pandemic order, they can make further inquiries with a duty holder and form a view as to which enforcement tool is appropriate, so maybe cut them some slack; that would be good. They are professionals in their jobs, and certainly they are implementing the various mechanisms that they have to ensure that workplaces are conducted appropriately and safely, and that means that they do have to take reasonable steps to ensure that safety standards et cetera are maintained, but it is not about the pedantry that perhaps is being put on the table here.

With this bill we are merely extending the provision of this vital tool for WorkSafe inspectors to continue taking decisive enforcement actions in response to non-compliance with pandemic orders and related COVID-19 directions made pursuant to the Public Health and Wellbeing Act 2008. This will assist WorkSafe to ensure that employers and other duty holders under the Occupational Health and Safety Act 2004 are providing a safe place of work and mitigating exposure to COVID-19 in the workplace. I think if we see the reality of this provision and what it actually means, then I think that is the most reasonable step to take in this debate. I hope that does not come across in a pejorative manner per se—I am not meaning it to—but I am, I suppose, seeking a reasonable approach to the measures that are inherent in this legislation.

It is also important to note that when WorkSafe inspectors visit any Victorian business, whether it is small, medium or large, they will always focus on working collaboratively and educating where necessary. That is the premise upon which they are required to operate. So, yes, maybe let us cut them some slack. Let them do their jobs well and trust that the legislation is appropriately drafted for maintaining safe workplaces as part of the professional roles that they undertake. Whenever one uses the word ‘trust’ there are always caveats, and of course there is an understanding that legislation is built very carefully and prudently, along with the associated regulations, such that the relevant caveats are put in and the fundamental responsibility that underpins the role of a WorkSafe inspector is anchored.

How will this judge-only scheme work? The scheme will be substantially the same as the judge-alone scheme that was adopted in early 2020. The provisions operated effectively. The courts and the profession are now familiar with their operation, and there is now case law which gives guidance on the provisions, including the test that it be in the interests of justice that a judge-alone trial proceed. I think that is a very important statement, not lip-service. It is one to be taken very seriously when we reflect on the importance of having fair and just outcomes in judicial proceedings.

The court can order a judge-alone trial for any indictable Victorian offence if the following criteria are satisfied: the accused person consents to be tried by judge alone, so that is an important consideration; the court is satisfied the accused has sought and received legal advice on whether to consent to a judge-alone trial; and the court is satisfied it is in the interests of justice—notice that I have emphasised that point—to order a judge-alone trial.

The courts can order a judge-alone trial either on their own motion or on an application by the prosecution or the accused. The prosecution does not need to consent to the judge-alone trial, but the judge is required to take into account the prosecution’s view in deciding whether to order a judge-alone trial. That is another important element when looking at the process of the judge-alone trial measure. As was the case with the previous model, parties will be able to appeal verdicts made by a judge sitting alone in the same way as with 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.

I think another point that is very important to emphasise is that the scheme is a temporary response to the COVID-19 pandemic. The provisions will sunset after 12 months, and an application for a judge-alone trial will only be able to be made if a pandemic declaration is in force. These are important caveats and also a reflection of the seriousness of the circumstances which underpin the temporary nature of this scheme. The new requirement is an additional safeguard and reinforces the temporary nature of these reforms. I reiterate that point to offer some assurance regarding the overall objective with the scheme that is in place.

Criminal jury trials will always remain the cornerstone of our criminal justice system. The government remains committed to undertaking consultation with stakeholders and the broader community before considering any permanent judge-alone trial scheme. 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.

We can wish that COVID-19 were not here, but the fact of the matter is that the pandemic is still circulating as disease states do, and this is not certainly something that our government has created. Obviously the pandemic is like any other disease state. Human beings are vulnerable to different illnesses, and so therefore we have to adapt. We have to be realistic about the circumstances under which we are operating, and we cannot just pretend it is not there. We have to have these appropriate measures in place, factoring in the circumstances which we are all having to operate under right now.

I think another very relevant element is consultation with stakeholders. The reintroduction of the judge-alone trials responds to feedback from legal stakeholders—I think that is a very, very important element—including the Law Institute of Victoria, the Criminal Bar Association and Victoria Legal Aid. In a media release the LIV president, Tania Wolff, said:

… the LIV supports this decision to extend the option of judge-alone trials for a further 12 months.

Therefore you can see that our government has undertaken appropriate consultation with those eminent organisations who would be at liberty to express otherwise if they thought to do so, but as we can see, they have actually backed these measures. Therefore we are confident in bringing forth this legislation.

If we look at data on acquittals and other features of judge-alone trials, we know that all of these elements have been taken into consideration with this legislation.

Business interrupted pursuant to sessional orders.