Thursday, 24 March 2022

Bills

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

Second reading

Debate resumed.

Ms TAYLOR (Southern Metropolitan) (12:49): I know there were some concerns—and I understand them—regarding the court backlog. I do want to say that the government has, contrary to assertions that I believe were made by Mr Michael O’Brien in the LA and I know by Dr Bach as well—if I can allay their concerns—delivered significant investment in the courts to support them in driving down backlogs. In the last state budget we announced a $210 million funding boost to help drive down the COVID-19 court backlogs and bolster resources in 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 new 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 they have the resources they need to play their part in reducing backlog.

This funding comes on top of the over $80 million previously invested to help the courts cope with COVID-19 and address backlogs. We fully acknowledge that there are backlogs and challenges, but there is no lack of will or effort in terms of investment and in terms of undertaking specific and targeted actions to ensure that the backlogs are addressed. I hope that goes some way to allay some of the concerns that have been raised by the opposition, because I think there was an inference that maybe we were not somehow aware or that we were not taking specific action. But members can see that there has been a significant investment to ensure that we can really tackle those backlogs head-on, and that activity is very much underway.

Finally, just to round off the discussion, I should say, coming back to what I started with, that the bill is extending the operation of part 16 of the Occupational Health and Safety Act 2004 until 26 October 2022. Again I do not see the concern from those opposite. We can see the sky has not fallen in, and we really should have confidence in this legislation moving forward.

Sitting suspended 12.53 pm until 2.03 pm.

Mr MELHEM (Western Metropolitan) (14:03): I rise to speak on the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022. Basically the bill will reintroduce or extend temporary measures. It is designed to assist the justice system to continue their response to the challenges presented by the COVID-19 pandemic. The bill has five key points. The first is the reintroduction of judge-alone criminal trials and special hearings on a temporary basis, which has been in place for a while now. The second is the deferral of the commencement date for the de novo summary appeal reform. The third point will address the extension of part 16 of the Occupational Health and Safety Act 2004. The fourth is the extension of the provisions requiring an accused adult in custody to attend a summary contested hearing or a committal hearing by audiovisual link by default to reduce the need to transfer the accused person to court. The last point the bill deals with is the extension of 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.

If I can address some of these points in some detail, and I know previous speakers have gone through some of the aspects of the bill, really this bill is to deal with technical issues—issues we had to introduce as a result of COVID-19 and the pandemic. It is quite interesting hearing some of the speakers, particularly from the other side, criticising this bill and what we are doing and forgetting the purpose of this bill. When we faced the pandemic back in January 2020, two and a bit years ago, no-one predicted that we were going to be dealing with a massive pandemic, where the cases now go into the thousands—10 000 cases and still counting—and now we have got the son or the grandson of omicron and winter is coming. God knows what we can expect going forward in the coming winter. The good thing is that whilst we have a high level of cases, life is getting back to some normality in Victoria and the other states. A lot of the restrictions have been lifted. The number of cases presenting to hospital is around 200 or under 200, which is a good thing. Unfortunately a lot of people are still dying from that horrible disease, even though in the last few days I do not think we have lost any lives as a result of it. I have not checked or double-checked the figures for today, but it is great news if we have not lost any lives in the last few days. But unfortunately the anticipation is that that horrible virus is going to be with us for a while yet.

In order to deal with it we need to make sure we have got an efficient justice system operating in a very productive manner, make sure we are delivering justice to victims and giving a fair trial to people who are facing the justice system, and make sure that everyone is given a fair go. We also need to take some pressure off the court system and judges and all the people working in the legal system. In my view they have done a tremendous job, considering what we have been through in the last two years. The ability to move from face-to-face trials to online trials I think is a credit to the people working in the justice system, and I want to commend the Attorney-General for the good work she has done in that space and the huge investments she has made on behalf of the government to make sure we have got an efficient justice system in the state of Victoria, which is under strain because of COVID-19.

Judge-only trials, as I said, were introduced in April 2020, and they are going really well. They are basically not dissimilar to a lot of cases. There are a lot of civil cases and other cases that are tried by a judge alone instead of a jury. The current system requires consent from the parties to accept a trial by a judge only. There have been a number of precedents that can now guide the judiciary going forward in relation to how these criminal cases in particular can continue to occur or be done by a judge only. There is a lot of experience there.

My understanding is that there were about 60 applications for judge-alone trials in the County Court, of which 51 were granted, and six applications in the Supreme Court. So things are going reasonably well, and I want to commend the judges and the practitioners, whether they were representing defendants or the prosecution, who have been working cooperatively to make sure we continue operating an efficient and a fair trial system in Victoria.

The second point, which I have touched on, is in relation to the de novo appeals. Maybe I will go through that briefly. Currently if a person is found guilty by a Magistrates or Children’s court and then appeals that conviction, the court must hear all of the evidence again and reach a new decision. Essentially appeals are a new—or de novo—hearing, basically going through the whole thing again and again. This system places significant stress on victims and witnesses who are required to repeat their evidence during appeal proceedings. It also places significant cost and resources pressures on the County Court. The reforms that were introduced by the Justice Legislation Amendment (Criminal Appeals) Act 2019 replace de novo appeals with new processes for conviction and sentence appeals which streamlines the appeals process. These reforms were originally scheduled to commence in July 2021 but have already been delayed to 1 January 2023.

Again, the reason for the delay is because of COVID-19. We had no choice but to delay the changes. Getting feedback from the various stakeholders, there was a need to basically look at reviewing that decision again to make sure that when we implement these changes everyone is ready to actually operate under the new changes. A further delay until 5 July 2025 will allow the court and others in the justice system to maintain their focus on managing the impacts of COVID-19 and addressing the backlog of cases in the system, and this is a priority we want time and resources to remain focused on. I think everybody understands why that delay is taking place, and that is based on the feedback from the stakeholders in the justice system.

The opposition talked about how we should have put more resources into the justice system, which we have, so it is not about resources. It is about making sure we deal with the current cases in an efficient manner as people are getting used to a new system. Can I just say for the record: in the last budget alone the government invested $210 million. That is $210 million in addition to the current investment to actually deal with that. That comes on top of over $80 million previously invested to help the court cope with COVID-19 and address the backlog as well. So if you do the sums, 210 and 80, that is nearly $300 million that we have put into the system. Various other changes have been put in place as well to assist the courts to actually do their job. I will leave my contribution on that issue there.

The other one is the Occupational Health and Safety Act, and this bill also will extend the operation of part 16 until 26 October 2022. Again, that was introduced as a result of COVID-19 and was due to lapse in April 2022. Now, I have heard some comments from the opposition in relation to why we are doing that. First of all, the reason we actually introduced these changes was to allow WorkSafe Victoria inspectors to do their job in light of COVID-19 restrictions. A lot of the things cannot be done face to face, so they will be able to get things done online and to do things electronically to make their lives easier and to make sure there is full compliance with health and safety in workplaces, whether they are small, big or medium, and to protect not just the workers in industry and the operators but also protect consumers and the general population. That was the whole purpose of giving WorkSafe inspectors the additional powers—not powers as such, because they had these powers already, but really clarifying that inspectors can deal with issues relating to COVID-19 enforcement, similar to any other regulations or laws we have in place which relate to health and safety in the workplace.

That is what this bill, simply, is doing. It is clarifying that. The truth is that COVID-19 is still here, and it looks like it is going to be with us for the rest of this year at least and is not going to disappear anytime soon. That is the purpose of that, and I cannot believe that even the opposition is making noise about, ‘We don’t want to extend that’. Where they would like to see WorkSafe is basically having no powers whatsoever. Going back, it is almost this ideological argument, and it comes from the opposition, that is conservative in relation to self-compliance. If they get their way, we will not have WorkSafe. We will not have any people enforcing occupational health and safety laws. They would say, ‘Oh, okay. Well, all employers are good people’—which they are; most of them are good people—‘and they can do self-compliance and we don’t need anyone to enforce’. Well, I have got news for you: that does not work in real life. We need to have enforcement, and it is the WorkSafe inspector’s job to do that, and we have to make sure that they have the right tools to be able to do their job and make sure that all the obligations imposed by the Occupational Health and Safety Act are complied with. The Department of Health provides guidance regarding compliance with pandemic orders and related COVID-19 directions that everyone in the state, whether you are a small business, a medium-sized business or a large business, must actually comply with, because you have got that obligation to comply with the health department’s direction.

Some comments were made about, ‘Oh, they’re going to issue fines; they’re going to send them broke’. Well, I have dealt with a lot of health and safety inspectors over the years. Safety inspectors, their first line if there is a problem is, ‘How can we fix it? How can we put things in place to make sure that place is safe?’. Even if they find that something is unsafe, the first discussion with the employer is, ‘Can we fix this and make it safe?’. There is cooperation and then a process put in place to fix the problem. They do not just simply put a notice there and say, ‘Okay, we’re going to shut you down because you’ve got a particular part of your business that’s not safe. We’re going to shut you down and issue you a fine’. Issuing a fine is the last resort. It has been used by WorkSafe since its inception, so trying to scaremonger that it is going to give WorkSafe more tools to basically send businesses to the wall is absolute rubbish.

The other two points, in my last 10 seconds, I will not go through as they have been covered by previous speakers, but with these comments I commend the bill to the house. I hope the bill will pass, because it is important that we continue these arrangements while we are still under COVID-19 conditions.

Motion agreed to.

Read second time.

Committed.

Committee

Clause 1 (14:20)

Mr GRIMLEY: I do not have any questions, but I want to talk about the amendments that we circulated previously. I want to say a few words about them before we get into anything else so we can be clear as to where our intentions are coming from. Currently under the Evidence (Miscellaneous Provisions) Act 1958 police are required to notify a victim of an application to access their confidential communications. As I have said before, the Victorian Law Reform Commission’s 2016 inquiry into the role of victims of crime in the criminal trial process and the 2021 inquiry into improving the way the justice system responds to sexual offences were told by victim support groups and Victoria Police that this was simply not happening. The VLRC report says that no—as in zero—victims consulted by the commission were actually aware of their entitlement at all.

How this looks in the real world can be highlighted in an article that was written by Benita Kolovos in the Guardian today. The article talks about a woman named Tabitha, who told the 2021 VLRC inquiry that her mental health history was subpoenaed and ‘used against’ her. During the inquiry, Tabitha went on to say:

I had disclosed a previous sexual assault to my psychologist for the first time just two days before the assault which was the subject of the trial.

She continued:

The defence lawyer kept questioning me about this as if it was no coincidence but rather, an attempt to get more attention/sympathy. It felt like I was going through the assault all over again, but this time I was being mocked.

She continued:

There was no one standing up for me and asking about the relevance of my mental health history. Surely, given the prevalence of mental health issues in our society, many people with these issues are assaulted … I felt like I was the criminal and I was the one on trial.

The amendments that we put forward today sought to go some way to addressing this issue in real life, and that was through mandating victim notification of the application as well as notifying victims of their right to appear at the application hearing and make a submission should they wish to do so, removing the ability for courts to waive notice to the victim in most circumstances and also creating a system of checks and balances whereby the court must check that the prosecution has fulfilled its duty in notifying the victim of their rights.

Since speaking with the Attorney-General about this amendment an assurance has been made that it will be implemented within the stealthing legislation coming before this place hopefully in August. As this commitment has been made by the Attorney-General, we seek to withdraw these amendments.

Ms SYMES: I will just say a few remarks in relation to the collegial dealings I have had with Mr Grimley in recent days about his well-intended amendment. At the outset this is a bill, as we know—we have had several speakers—that is around judge-alone trials and issues dealing with the courts to support the courts to deal with pandemic-related backlogs, and I do appreciate that there appears to be unanimous support for those measures and support for the courts to do their good work.

Mr Grimley sought to bring in an amendment that was out of scope. I had a few concerns about the process of that, because it does not really fit with the bill and meant that we had to try and work out whether it could be implemented, and we did not really have the time to do that. But through conversations with Mr Grimley I have indicated that this is work that we have already been looking at and we can work together to come up with a suitable outcome, because of course we do recognise that there is more to be done to improve how victims experience the criminal justice system, particularly victims of sexual offences. That is the very reason that we had the VLRC review on the justice system response to sexual offences, and we are currently considering those recommendations. I have pre-announced legislation that it will be our intention to pass later this year to adopt an affirmative consent model and make it explicit that stealthing is a crime.

To formalise, or put in Hansard, the agreement that I have reached with Mr Grimley, I do intend to include in that bill provisions to deal with the concerns around applications for victims’ confidential information and the distress that can cause, with appropriate consideration of the detail as well as the broader system impacts and after proper consultation with the courts, the Office of Public Prosecutions and other stakeholders. I do certainly appreciate the support and intent of Mr Grimley’s amendments, but it is important that they are progressed in a considered and coordinated way alongside other victim-related reforms, including those that I have discussed in response to the VLRC’s report on the justice system’s response to sexual offending.

Conveniently I think Mr Grimley and I have got a scheduled meeting to go through some of these issues, and I guess it would be good to go through this and some of the other issues that he wants to see progressed through legislation, because, as he has previously recognised, he is limited in his ability to draft amendments and draft bills et cetera—he has limited spots and time. As the government it is our role to introduce legislation to this place, and where I can pick up, as I said, well-intended good policy outcomes that are well considered, they are going to deliver better outcomes.

I think Mr Grimley and I working together on this particular amendment will produce a better outcome and meet the intention that he is seeking to meet down the track. With that I do want to thank Mr Grimley. I do acknowledge his continued advocacy for victims of crime, and I do appreciate his considered approach to withdrawing his amendment at this time with the full commitment that it is my intention to deliver the same outcome in this term of Parliament.

Dr BACH: On this side of the house we wish this bill an expeditious passage, notwithstanding our opposition to just one element of it. And for that reason I only had one question that I was keen to ask the Attorney. As you have outlined, there is bipartisan concern—and you have been very clear on your part regarding this matter, Attorney—to seek to reduce the amount of cases that currently are backlogged in our courts and in VCAT, hence one of the key reasons for this bill. Would it be possible, Attorney, to have some updated information regarding the scale of those backlogs in VCAT and across our courts? I would fully understand if you did not have that information currently to hand. If that is the case, if that could be provided on notice, then that would be much appreciated.

Ms SYMES: Thank you for your question, Dr Bach. These are issues that should be well canvassed publicly—I agree with that. The backlogs are a direct consequence of the pandemic, and courts and tribunals have certainly responded with innovative approaches to justice delivery with a focus on enabling people to engage with the courts in new ways. But of course it is no secret that the pandemic has caused significant challenges for the operations of the courts, and there is a lot of work to do to get on top of pending caseloads.

The courts are working hard and continue to focus on working to return the pending caseloads to prepandemic levels through a range of initiatives to address case clearance rates and continue to adjust their operations, including an increase in in-person hearings in light of eased public health restrictions. That is happening, which is great to see. The courts have made real progress already in relation to the backlog. Data over the past year has shown that with the investment that we have been making the system is starting to recover and pending cases are stabilising or decreasing across most courts. In relation to your request for data, I might see what I have currently got, and I am certainly happy to follow up on notice as well.

I do not have to take it on notice. As of February 2022 there were 5503 cases pending in the Supreme Court and 10 484 cases pending in the County Court. I do not have on hand the Magistrates Court data, but I am more than happy to provide that as well. There has been investment and concerted effort between government and the courts, and as I said, this is a real joint focus on ensuring that we can get through these cases, because of course we all understand that these cases involve people. You want to make sure that victims are given that opportunity to access justice and that perpetrators are held to account and indeed matters can be resolved.

Clause agreed to; clauses 2 to 9 agreed to.

Committee divided on clause 10:

Clause agreed to.

Clause 11 agreed to.

Reported to house without amendment.

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (14:38): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (14:38): I move:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.