Thursday, 14 November 2019

 Mr O’DONOHUE (Eastern Victoria) (16:35): I am pleased to rise on behalf of the opposition and indicate the opposition will not be opposing the Justice Legislation Amendment (Criminal Appeals) Bill 2019. The de novo appeals section in this bill is virtually identical to the bill that was before the Parliament before it was prorogued last year. The government has split that bill and brought back the de novo appeals section of that bill in this Justice Legislation Amendment (Criminal Appeals) Bill.

The bill amends the Children, Youth and Families Act 2005, the Criminal Procedure Act 2009 and the Supreme Court Act 1986. It abolishes de novo appeals—that is, as-of-right appeals—against final orders made by the family division of the Children’s Court. It abolishes de novo appeals against convictions recorded in summary proceedings and provides instead for those to be by way of rehearing. It abolishes de novo appeals against sentences imposed in summary proceedings and provides instead for a different kind of appeal against those sentences and it abolishes appeals against sentences of imprisonment imposed on appeal from the Magistrates Court or the Children’s Court.

The notion of abolishing de novo appeals is on its face something which I think, from the consultation I have undertaken as Shadow Attorney-General, has been generally welcomed as something which will make the justice system work in a more efficient manner. And that is the principal reason that the Attorney-General, in her second-reading speech, cited for this move.

As I say, the abolition of de novo appeals is something that was before the Parliament last year, but I just want to record the view of the Law Institute of Victoria (LIV). As part of the consultation process on the bill I communicated with the law institute, and they write:

The LIV wishes to convey our members’ serious concerns regarding the Bill’s intention to abolish de novo appeals.

The LIV was disappointed that this Bill was tabled without any prior meaningful consultation with the LIV or to our knowledge, with the legal profession more broadly.

It goes on to say:

In 2006, when the Bracks Government considered abolishing de novo appeals, the Governor in Council requested the Law Reform Committee of Parliament … conduct an inquiry into, and report to Parliament on, de novo appeals to the County Court. The Committee received 13 written submissions which included the LIV …

and others. It says:

Following this consultation with legal experts and upon consideration of the evidence indicating that abolishing de novo appeals would severely impact on the efficiency and costs in the Magistrates’ Courts, the Committee recommended that de novo appeals be retained. The LIV is concerned that the Bill currently before Parliament was drafted without performing any such consultation and therefore fails to consider the reasoning behind the Committee recommending against their abolition in 2006; which remains as relevant in 2019 as it was then.

Now, as I say, one of the main reasons cited by the minister and the government in abolishing de novo appeals is it will make the court system more efficient because there will not be an as-of-right appeal for those in the Magistrates Court, and on its face that would appear to have some logic. But the LIV continue in their correspondence to me and say:

Presently, a matter can be heard efficiently in the Magistrates’ Court. The efficiency is a result of not all materials being introduced as de novo’s act as a safety net, where they can subsequently be introduced on appeal to the County Court. The scope of the matters in contention are then typically narrow on appeal as the non-contentious issues are resolved in the summary jurisdiction. De novo appeals therefore create a symbiotic relationship between the Magistrates’ Court and the County Court to deal with matters as efficiently as is practicable.

The LIV submits that the abolition of de novo appeals will void these efficiencies and place significant additional burdens upon the Magistrates’ Court. Whilst there are a number of factors that will contribute to this, the primary consideration is how counsel will need to adapt to the Magistrates’ Court rulings having considerably more weight. Our members advise that for matters they could currently have heard and completed in less than an hour at the Magistrates’ Court they would first seek to have the matter adjourned. This is because the Magistrates’ Court hearings will have the same weight as a County Court trial, practitioners will therefore require the same level of preparation for matters in the summary jurisdiction as they would for a County Court trial. An increase in adjournments results in further delays in the Court and an increase in the amount of time defendants will be held on remand, unsentenced.

Those concerns raised by the law institute need to be addressed by government speakers during second-reading debate because they are at odds with the assertions made by the minister.

Currently I am advised that there are around 3200 de novo appeals in which the County Court must hear all evidence again and reach a new decision, which can impose a burden on the County Court. I think the question for the Parliament is: how does that sit with the contention of the law institute that the Magistrates Court proceedings will be more complex and more fulsome because there will not be that de novo opportunity? I think that is something which government speakers need to address during the second-reading debate to give this place some comfort that those benefits will be achieved.

I think it is worth noting, however, that de novo appeals have been removed in many other jurisdictions and their origin dates back to a time when magistrates were laypeople, not legally trained, and therefore a de novo process was considered a safety net. We obviously have moved a long way since then and we have professional magistrates, legally trained, who are highly trained in the ways of the court. As I say, there is that conflicting perspective from the law institute which I call on the government speaker who follows me to clarify.

The second issue that is pointed to in favour of the abolition of de novo appeals is that it provides clarity for victims and removes the requirement to have evidence heard again. That is a point which the opposition accepts, although I again note the points made by the law institute to me in their correspondence that on many occasions and in many situations there are opportunities to avoid hearing evidence again from a victim or someone who is a vulnerable witness. But we accept the general premise that the abolition of de novo appeals will have some impact and some benefit for victims and others by avoiding them having to provide evidence a second time. That is a significant factor in the opposition’s determination not to oppose the bill.

The second main thing that this bill does is to codify the current processes for a second or subsequent appeal against a conviction in certain circumstances. Currently application needs to be made to the Attorney and there are what I would call oblique processes or uncertain processes that follow, not uncertain in a derogatory sense but simply they are out of the public view, whereby a petition for mercy must be drafted and made.

Soon after I was elected in 2006 I had engagement with a constituent who was seeking to lodge a petition for mercy for consideration. My correspondence with the then Attorney-General reinforced to me that it is a process that is not subject to the same scrutiny or the same processes in a public sense that a court hearing is. Therefore bringing that process before the courts as opposed to the Attorney-General I think is a good thing. It is something which will give greater transparency and greater clarity to what was the petition for mercy process.

Of course it is worth noting that this process unfortunately could be used with more regularity in the coming period given the revelations through the Royal Commission into the Management of Police Informants and the most recent successful petition for mercy, that of Mr Faruk Orman, which was referred to the Court of Appeal as a result of the Lawyer X royal commission. Without second-guessing the Attorney, I am sure the revelations in the royal commission and some of those issues that have been aired have been part of the government’s thinking in codifying this process and removing it from the purview of the Attorney and placing it before the courts. Having said that, we do support it.

But noting the role of the royal commission in that point, I just want to make a few comments about the royal commission. The Royal Commission into the Management of Police Informants has been hampered by problems and lack of resources from day one, with one of the original two commissioners having to stand down and subsequently not having been replaced; the scope and timelines of the investigatory period blowing out after revelations that Lawyer X, Nicola Gobbo, had been acting as a police informant for twice as long as originally thought; and the commission being grossly under-resourced, with the initial budget of only $7.5 million being far too low for the level of inquiry needed.

The bottom line is the government has nobbled the royal commission from the very start, placing serious doubts on the ability of the commission to be any more than a Clayton’s commission—the commission you have when you do not have a commission. Commissioner McMurdo is to be admired for her dedication and preparedness to hold accountable those who seek to stymie the commission’s processes. The revelations of the continuous stonewalling by Victoria Police in supplying in a timely manner documents requested by the Royal Commission into the Management of Police Informants is totally unacceptable.

This is particularly so given the royal commission was created to inquire into the practices and processes of Victoria Police with regard to their handling of police informants. Her Honour Commissioner McMurdo has on multiple occasions during the course of the hearings to date lambasted Victoria Police for its failure to comply with the directions of the royal commission. Earlier this year she stated that ‘moving this commission forward in public’ is:

… akin to a boxer in a fighting match with one hand tied behind his back and the other bruised and bleeding.

She further stated:

Delays in the provision of this material in a form that can be made public have hampered the Commission’s progress, a concern I have raised expressly with Victoria Police in public hearings.

Only this week it has been revealed that many priority witness statements requested to be filed in March, with some having been requested more than a dozen times, still have not been lodged with the commission. It is reported that there are 11 priority statements as well as 35 other statements critical to the royal commission which are still outstanding, leading Commissioner McMurdo to again rebuke the Victoria Police barrister by saying:

Even you and your great advocacy can’t turn a sow’s ear into a silk purse.

This commission is different to most in that Victoria Police is the holder of almost all the relevant information. Therefore their failure to comply with the commission’s directions is clearly having a significant impact on its ability to get to the bottom of this murky saga that goes to the very heart of our justice system. It is untenable for this behaviour to continue, for to do so shows flagrant disrespect for the commission and everything it represents and stands for. Further, this behaviour raises the obvious question of what is motivating Victoria Police to act so slowly in providing the necessary documentation requested. Some are questioning whether some individuals are more concerned about protecting the reputation of Victoria Police and some members.

If this is true, what these people do not appreciate is that the reputation of Victoria Police is being damaged by this failure to comply with the directions of the commission. I noted with interest the reported submission from Victoria Police’s counsel, who stated that:

… police had prepared 100 statements in 12 months, some more than 50 pages long.

To which Commissioner McMurdo replied:

It doesn’t seem to me a lot of statements to be prepared in the course of 12 months.

Whilst I appreciate that every advocate has to act on their instructions, it is nothing short of pathetic and laughable as an argument for an organisation with a budget of $3 billion per annum, over 17 000 members and other employees whose core function includes producing thousands of statements per annum. It is a farce, and the Chief Commissioner of Police needs to show some leadership on this issue and urgently fix this mess in the interests of justice and the long-term reputation of Victoria Police.

Daniel Andrews also has a role to play in fixing this fiasco. As the interim report of Commissioner McMurdo notes, a protocol between the commission, Victoria Police and the state of Victoria to deal with ongoing public interest immunity claims and the timely production of documents has been developed. So the question for Daniel Andrews is: why isn’t this protocol working, and what will he do to ensure that the truth is revealed?

Finally, it is alarming that there is a prospect that Nicola Gobbo, a key and integral player in the circumstances that led to the establishment of the royal commission, may not provide a witness statement nor appear before the commission. For the commission to have credibility, what she knew and when must be revealed. With those words, the opposition will not be opposing the bill.

 Mr ELASMAR (Northern Metropolitan) (16:52): I rise to speak to the Justice Legislation Amendment (Criminal Appeals) Bill 2019. The purpose of this bill is to make changes that will modernise and enhance Victoria’s appeals processes. It proposes a number of important changes.

The abolition of de novo appeals is central to this legislation. A de novo appeal means literally a new trial. In Victoria it is an appeal from the Magistrates Court to the County Court where the County Court looks at the matter afresh as if there was never a previous decision. This practice, over the years, has been found to be ineffective, time-consuming and costly to the taxpayers of our community. More importantly, witnesses and victims have had to suffer through another trial, literally starting from scratch, and their trauma and distress cannot be valued in dollars.

In the past a de novo appeal has been considered an automatic right which has not required the County Court to find that there was an error in the summary proceeding for the appeal to take place. It effectively allowed an accused another chance to dispute their charges, regardless of whether there were any mistakes made during the original hearing, and it could occur even when the appellant pleaded guilty in the summary court. The proposed reforms protect the innocent, and in most cases they will not require victims and witnesses to give evidence again.

This legislation replaces de novo appeals with a rehearing process that requires the County Court to have regard to the magistrate’s reasons for a decision, which is currently not required. In effect it would provide magistrates with far more guidance than they currently receive, leading to better outcomes that are more consistent. In most cases both conviction and sentence appeals would also be dealt with by the County Court on the papers instead of a full rehearing of the matter. Appeal judges will be able to utilise court transcripts and evidence provided at the original trial.

The bill proposes to abolish de novo appeals from criminal matters in the summary jurisdiction and replace them with new appeal processes. It also abolishes de novo appeals against final orders made by the family division of the Children’s Court and introduces a new second appeal right in indictable matters in narrow and rare circumstances where the Court of Appeal is satisfied that fresh and compelling evidence exists and that there was a substantial miscarriage of justice.

Finally, the bill empowers the Court of Appeal to refer an issue or a matter in an appeal to a trial court for determination. These are fundamentally important changes to the appeals process in Victoria. I am delighted the opposition are supporting this bill, because the reforms will modernise the appeals process—

Mr Finn: We’re not supporting it, are we?

Mr ELASMAR: You’re not opposing it. It will make for a much better appeals process and will protect the most vulnerable within our legal system, particularly children, witnesses and victims, who need not go through the ordeal of having to give evidence again in a higher court. I commend the bill to the house.

 Mr GRIMLEY (Western Victoria) (16:57): I rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019, which is being debated today, and I applaud the government for bringing this to the house as this is something that our party and party leader Derryn Hinch have always argued for. A justice system should not simply be a legal system. We must always prioritise the rights of victims. This bill will improve Victoria’s criminal appeals in summary cases so that in most situations victims and witnesses are relieved of the trauma of a second trial or being made to give evidence again when they do not need to. Our party believes this is common sense and supports the right of the victim over the right of the offender. Further, it is efficient; courts will not need to call on the same witnesses and assemble the same supportive evidence but rather it will be available from the original trial. Hopefully this will relieve the enormous pressures put on our court systems.

I know in places in my electorate such as Geelong and Colac there is a feeling of delay, delay, delay. This can often have profound effects on victims of crime. We are looking at years before some criminal trials are able to even take place. I hope our courts will become more efficient as a result of this legislation passing.

This bill abolishes de novo appeals from criminal matters in the summary jurisdiction and replaces them with a new appeals process that in most cases will not require victims and witnesses to give evidence again. As we know, a de novo appeal is one where the entire case is heard afresh as a new trial. Currently within the appeals process witnesses are called again to give evidence for a second time, and this allows for cross-examination, intimidation and harassment of the victim who is already required to recount their personal story multiple times, sometimes in front of a packed court, where the perpetrator and their lawyers rely on cumulative trauma to cause the victim to delay and at times abort proceedings. Where is the justice for these victims?

Victims of crime have a critical role to play within our justice system, and without their willingness to report crime, to cooperate with investigators and prosecutors and to testify in court, it is likely that society would be far worse off. We need to provide them with protection to minimise pain and suffering, and this legislation makes positive steps towards that.

Parts of western Victoria are unfortunately renowned for their history of covering up abuse, particularly sexual abuse. If this bill helps one person to not have to relive their traumatic story again and again in the courts, then it is worth supporting. Considering 3200 de novo cases go through our system each year, I think the benefits of the bill will be much farther felt.

Recently I was contacted by a constituent from Ballarat. With her permission, I have her consent to raise this in the chamber. When she was 13 years of age, she was sexually assaulted by an adult. Three decades later she won the case against her perpetrator; however, on appeal her case lost. She believes that this was due to her having to repeat her assault statement, detailing the harrowing and emotionally traumatic events in front of her perpetrator in a courtroom once again, all this whilst trying to manage her culminating complex post-traumatic stress injury. This example demonstrates how this legislation would have significantly helped and may have also resulted in a more positive outcome for this victim. Although it is being addressed now after many of these victims have felt unnecessary trauma, I have to say, ‘Better late than never’, and I am sure they would say the same too.

In particular I would like to draw attention to the importance of dissolving de novo appeals from final orders of the family division of the Children’s Court. Children’s safety and stability should be in the forefront of all of our minds and should be prioritised wholeheartedly. I echo the importance of creating transparency around wrongful convictions. If successfully introduced, this bill will allow a second or subsequent right of appeal if compelling evidence emerges and identifies a failure of justice. It is imperative that we get the balance right between protecting the rights of the wrongly accused whilst minimising negative impacts on the victim. In summary, I support this bill and I support the work this government is doing to assist victims of crime, especially victims of sexual offences.

 Ms GARRETT (Eastern Victoria) (17:01): I am really pleased to make a contribution on this piece of legislation. This is a really important piece of legislation, and I am pleased to follow on from Mr Grimley highlighting just how significant these changes are going to be, particularly for victims of crime and people who are forced to be witnesses in trial matters. It will be about making those trials as streamlined and timely as possible, because we know the stressful impact that this can have on those involved.

The first aspect of the legislation abolishes de novo appeals. This was legislation that passed the Assembly but lapsed before passing the Council last year. As has been highlighted by previous speakers, the current situation in Victoria is that any outcome of a Magistrates Court hearing can be appealed to the County Court as of right, without needing particular grounds to do so. Then those appeals must be heard de novo, which means that they are basically run again with all of the evidence heard afresh and with sentencing afresh and not taking into account decisions of the lower court with respect to criminal matters.

There have been a number of unfortunate by-products of this situation in Victoria. It is highly inefficient, and we know that the costs of the justice system are significant. It is an essential cost to the state, of course, but it is significant. Where we can streamline them and put those costs into victim services, the efficient running of courts, not wasting witnesses’ time and not putting them through ordeals, then of course that should be the case. There are in excess of 3000 such appeals run every year.

I think a really important point in this respect is that at present defence counsel can treat the Magistrates Court hearing as a bit of a dry run, a bit of a trial run, to see how it goes and to then kick it upstairs without any particular hurdles to be cleared. Of course this adds a huge amount of delays and costs to the parties involved. In particular, and as highlighted by previous speakers, it requires victims and witnesses to give evidence in court and, crucially, to be cross-examined all over again. We know from study after study, discussion paper after discussion paper and oral evidence after oral evidence that the process of going through cross-examination for victims of crime, particularly for sexual assault offences and child victims, to name but a few, is hard. For any victim of crime to go through that whole process, where there is intimidation and they are suffering the effects of the crime—you then have the whole intimidatory process of the court system, which is at the best of times overwhelming but particularly hard when you are suffering the scars of crime—and to then go through what is an inherently adversarial process in which they are being cross-examined by defence counsel can be a highly traumatic and stressful experience. To get up and then have to do all of that again in an even bigger and more intimidating court environment is not something that in modern Victoria we want to be putting our victims through.

We know that de novo appeals date back to the 17th century. We are well past the time of them needing to be addressed. Quite notably, Victoria is the last jurisdiction in Australia to still have them. This is a very significant piece of legislation, because it will modernise our court system, allowing for its more efficient operation and, crucially, protecting the interests and the court experience of those people who have been the victims of crime.

The bill before the house naturally recognises, though, that we do need appeal processes and we do need a robust appeals process to protect and safeguard the rights of all participants in the justice system. So very sensibly the bill states that these de novo appeals will now be replaced by appeals which are conducted, essentially, on the papers, which is a common manner in which appeals are run in jurisdictions throughout the land. The County Court reviews the transcripts of the original hearing and will only admit—this is very significant—further evidence in very narrow circumstances under an interests of justice test. Rather than the whole appeal commencing and kicking off as if the trial in the lower court never occurred, this will now be a system in which the County Court powers will be very much narrowed regarding how it assesses the evidence before it. It will not be obtaining new evidence, except in very limited circumstances.

With respect to sentencing—this is another significant reform—the County Court will only allow an appeal of a sentence, where a sentence is being appealed, if there is a substantial reason why a different sentence should be imposed. That is a large threshold to cross. The appellant, who has been given a sentence by the Magistrates Court, will have to show that the sentence was too severe before an appeal will be accepted. There is not just an automatic right to go back and try everything all over again.

As I mentioned before with respect to de novo appeals being used in ways that are less than desirable, including defence counsel maybe having a dry run at the Magistrates Court level, similarly these provisions will act as a deterrent to offenders who may seek to just have a go, have a crack, at getting some time shaved of their sentence, particularly if the sentence imposed is in the higher order of what is provided for by statute. That itself is a waste of the court’s time; it is a waste of the justice system’s time. Most importantly, as has been emphasised throughout the contributions to the debate, it is further anguish for the victims of crime, because we know from talking to victims and from hearing their stories that to go through those processes and see an offender be convicted of that crime and sentenced for that crime and to then have that offender appeal that just to see whether he or she can get a bit of a better roll of the dice, a bit of a better outcome, all of that trauma is then relived by the victim.

These things will add time to our justice system. They are delays to our justice system, so a victim can be stuck in the sausage machine of the justice system for far longer than they ever should be. This is going to make, I believe, very practical changes and differences to victims who have to tell their stories and pursue justice throughout our courts.

These reforms are absolutely anticipated to dramatically cut the number of appeals going from the Magistrates Court. From the current 3200 de novo appeals they are going to dramatically cut that number. The practical outcome of that is that victims and witnesses, including those who were not directly the victim but who saw the offences and have to live through that trauma, are spared the whole process of having to kickstart that again.

Similarly, this legislation not only abolishes de novo appeals from the summary criminal matters but also introduces the reform to establish de novo appeals from final orders made by the family division of the Children’s Court. These will again spare children months of uncertainty and instability waiting for a full rehearing of a case. We know just how important it is to protect our children through what can be highly stressful, highly adversarial processes. They can involve protection orders, treatment orders and permanent care orders. It is burnt in legislation that the child’s interest must always be paramount, but this legislation takes another very important step in making sure that that is an actual reality—that the kids’ interests are paramount and they are not forced to relive these matters over and over again. It has its own safeguards in the legislation. We always have to make sure that that balance is kept so miscarriages of justice do not occur. With respect to the family division of the Children’s Court, appeals to the Supreme Court on questions of law will still be possible, and the bill does not interfere with appeals from interim orders of the family division. It also continues that important capacity for the Secretary of the Department of Health and Human Services to be able to apply to vary orders at any time.

Finally, the next part of the legislation is the second or subsequent right of appeal. This again is about modernising Victoria’s legal system and strengthening safeguards against wrongful conviction. We know that these cases are incredibly rare, but on occasion, as we know all too painfully, sometimes new evidence is discovered that shows people have been wrongfully convicted. These cases are currently dealt with behind closed doors through a very antiquated petition for mercy process which involves the affected individual having to write to the Attorney-General and present evidence, and Department of Justice and Community Safety advice is sought. We are wanting to take that antiquated process and bring it into modern Victoria, making the process much more transparent and allowing, where there is fresh and compelling evidence which shows a substantial miscarriage of justice, for that to be considered by the court. Again, this is another way in which this legislation is really modernising Victoria’s justice system, as it should.

This test will be a rigorous one. It does not mean that the offender can simply try again where they have failed. Fresh and compelling evidence absolutely would have to be discovered. That does not include mere technicalities. It has to demonstrate that there has been a substantial miscarriage of justice shown. With those comments, I know that there are other people who wish to speak on this legislation, so I do commend this bill to the house.

 Ms PATTEN (Northern Metropolitan) (17:14): I rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. As other speakers have said, this bill abolishes de novo appeals from the Magistrates Court of Victoria and the family division of the Children’s Court, amongst other things. As many of the speakers have said, this is said to modernise Victoria’s criminal appeals so that victims and witnesses are not put through the trauma of a second trial or made to give evidence again when they do not need to. This has been reiterated by a number of the speakers. I do not think there would be anyone who would not agree that if we can minimise the harm to victims, then that is a very fair objective. But I think it is also an objective that could be achieved through more judicious ways.

Unfortunately I feel that this legislation actually has the potential to create a bigger problem than it seeks to resolve. To give some context to that and to some of the comments made by previous speakers, the Magistrates Court of Victoria deals with 90 per cent of criminal matters in this state. It is also the place where all criminal matters, even those destined for County or Supreme courts, commence. The volume of matters dealt with in the Magistrates Court is massive—around 713 000 total hearings per year. Victoria has about 106 magistrates, meaning they actually hear about 6272 hearings per magistrate per year, which means they are listening to and hearing 125 matters every week. The court finalises around 197 000 cases each year.

In relation to appeals, which is where this legislation goes to, of those 197 000 cases that are finalised, as other speakers have said, 3200 or so are appealed to the County Court. That is 1.6 per cent. Of those 1.6 per cent that are appealed, only 18 per cent are conviction appeals where witnesses or victims would be involved. So that is around 540 per year on average to March 2018. The vast majority of the cases are sentence appeals. Far fewer actually proceed to hearing where witnesses are required to give evidence. In percentage terms that is 0.0029 per cent of Magistrates Court cases that result in an appeal against conviction. So this legislation is to capture 0.0029 per cent of convictions that do go to appeal, or in other words this is a policy designed to address an issue with, as I say, 0.0029 per cent of matters. But, unfortunately, it will bear very heavily on the 99.9971 per cent of cases before the court, because these changes affect not only conviction appeals but also appeals against sentencing.

The Magistrates Court, as I said, is a high-volume environment that relies on rapid turnover to function. We are talking about over 700 000 cases each year in the Magistrates Court. Decisions are often made without detailed materials being presented to the court, but it has to function in that way to accommodate the sheer volume that it is required to deal with. Speed and brevity are necessary by-products that carry with them a big trade-off in terms of the risk of an unfair or unjust outcome. Decisions are made quickly and with a degree of informality, in contrast to the higher courts. Decisions are often made without comprehensive materials or even sworn evidence. De novo appeals against sentence represent the fundamental safety net that offsets this risk. As the Law Institute of Victoria explains, the abolition of de novo appeals will void these efficiencies and place significant additional burdens on the Magistrates Court.

We would probably take no issue with this if the government was just seeking to change conviction appeals, but by affecting sentencing appeals as part of this reform the fundamental safety net that underpins the efficient operation of the Magistrates Court is lost. Taking away that safety net means that every single Magistrates Court matter must be prepared with the degree of thoroughness of a County Court appeal, not just the 1.6 per cent of matters that are actually appealed.

This is because up until now new evidence in mitigation could be admitted on appeal, but in contrast will be heavily constrained under this bill. In lay terms, you no longer have a chance to do a better job the second time. I note Ms Garrett said, ‘Have another crack at it’. This is not it. This is 700 000 cases. The Magistrates Court must act with speed and does act with brevity. It is not about having another crack. The consequences could easily mean that we will see far more adjournments, more delays, more medical and psychological reports, more plea materials, longer submissions, longer hearings, greater legal costs, greater burdens on legal aid, a bigger public purse for legal aid matters, lengthier reasons for sentence and more time on remand. Given the remand populations of our prisons, both men and women, that is the last thing I think the state should be enabling.

The Law Institute of Victoria estimates that these changes will move a Magistrates Court case from 1 hour to 6 or 7 hours, and this obviously adds up to increased costs. The greater risk is that a Magistrates Court, already operating close to capacity, could literally have its operation strangled and with it the criminal justice system as a whole. I share the concerns of the Law Institute of Victoria, who were disappointed that the bill was tabled without any meaningful consultation with them or the legal profession more broadly.

In 2006 the Bracks government considered abolishing de novo appeals. That was 13 years ago. A Law Reform Committee inquiry was established into the issue. Categorically that inquiry recommended against abolishing de novo appeals, which if anything is more relevant now than it even was then. That inquiry found that hearing appeals de novo maximises both the fairness and the efficiency of the Victorian criminal justice system as a holistic system of justice. In examining alternatives to the Victorian approach, the Law Reform Committee gave particular consideration to the system of appeals that operates in New South Wales and upon which this proposal before us is based. I quote from the report:

On balance, the Committee was persuaded by this evidence that the 1999 changes in NSW have detracted from the accessibility, and therefore the fairness, of the right to appeal against conviction in that state.

And further that:

… Victoria’s system of de novo appeal achieves a remarkable synthesis of justice and value for money.

It is a shame that an evidence-based inquiry such as this was not undertaken by the government before moving away from that recommendation, and against well-considered recommendations from organisations that many members would have received from Liberty Victoria.

My office and I raised this issue with the Attorney-General back in February, well before this legislation was reintroduced, and we suggested a series of compromise positions. The easiest fix in our view would be to reform conviction appeals but not sentence appeals, so that the object of the bill, which is to protect victims and witnesses, is achieved, and the safety net for sentence appeals are retained. Alternately the bill could be amended to permit new material in mitigation to be more easily admitted on an appeal against sentence. At a minimum we have suggested that the government could send a clear message today that the courts should apply a broad interpretation of new section 256B(3)(a). That section looks at what evidence the appellate court can consider. We would certainly argue that that consideration should be a very broad view of that section. I thank the minister for agreeing to address this issue in her summing up.

My suggestion is that a psychological report, neuropsychological report, psychiatric report, medical report or compelling evidence in mitigation that came into existence after the Magistrates Court sentenced the appellant, and which may pertain to the circumstances of the appellant including those precedent to that sentence, will be considered to relate to matters that occurred after the Magistrates Court sentenced the appellant for the purposes of subsection (3)(a)(i), with an equivalent amendment in the Children’s Court.

That would mean there is still some sort of net, so the efficient operation of the Magistrates Court is not affected. I thank in advance the minister for her preparedness to open this type of door and to address this for me. It simply makes no sense that in trying to fix one problem, you would knowingly cause a larger one. I really hope today, and the Reason Party hopes today, that reason and common sense will prevail. I certainly think that while there is well-meaning behind this legislation, as we so often say in this house, there are unintended consequences from it. Again, I am talking about a tiny, small number of appeal cases: 0.0029 per cent. For justice and fairness I look forward to hearing the minister’s summing up on enabling a broad range and broad interpretation of the evidence that an appellate court may also consider.

 Mr QUILTY (Northern Victoria) (17:27): I think Ms Patten may have been operating with the same source material as I was, so you might get some repetition here. The Liberal Democrats will not support this bill. We will not support this bill for three reasons. First, it seriously undermines the right of appeal. Second, it will make the court system less efficient and increase the caseload of the County Court. Third, all existing evidence tells us that de novo appeals are not even part of the reason the court system is struggling and that they are not causing harm to victims, so these reforms are not addressing the real cause of the problems in the legal system. Finally, once I have talked about those three things, I will explain what the real problem is and how it can be easily fixed.

Firstly, this bill undermines the right of appeal by eliminating full retrials for appeals made from summary courts. The right of appeal is important because courts make mistakes of fact and mistakes of law. Summary courts and magistrates make these at a higher rate than other courts because they deal with more cases and so move more quickly, with more reliance on fast individual judgements on the spot by magistrates. Removing de novo appeals exposes innocent people to the risk of mistakes of fact not being detected during retrial and re-examination of witnesses. This is a bad thing because our legal system is based on ensuring that an innocent person is never punished. In this case it is not even morally hard since we are just weighing the costs of running a proper appeals system against the harm of punishing innocent people. Every single informed Victorian you could care to ask would strongly agree that any reasonable costs of running a proper appeals system are far lower than the harm of the state punishing the innocent. Removing de novo appeals exposes people to the risk of a mistake in their defence or by the judiciary leading to a wrongful judgement on matters of fact and having no way to appeal it.

Secondly, this bill is going to do the opposite of what it is meant to do and make the court system less efficient. A quick history lesson on why we have summary courts and why they work: when many new statutory offences were added in 17th-century England, it was not possible to keep up with the ballooning numbers of cases before the courts using slow and deliberate trials by jury. As a result, summary courts were added to the legal system so they could hear these less serious cases more quickly. But it was known that people would not give up their right to a fair trial by their peers and elect to have their cases heard in a summary jurisdiction unless they knew they could appeal for a proper trial by jury if they felt their case was unjustly heard. To ensure sufficient faith in the legal system necessary for summary jurisdictions to work, de novo appeals were added.

The last time de novo appeals were reviewed in Victoria, by the Law Reform Committee of the Parliament of Victoria in 2006, the committee found that nothing had changed to make this trade-off any less practically or morally important and that it should be retained. If you remove de novo appeals it will ultimately cause legislative reform to have more cases heard in the County Court or to give more options for accused to elect to be heard in the County Court. At the moment indictable offences triable by summary authority require the consent of the accused to be heard in the Magistrates Court. Many of these people will simply withdraw consent and the cases will be heard in the County Court. If this bill passes, many more people will ultimately elect to do this than currently elect to appeal to the County Court, because rates of appeal tend to be low. People generally accept the judgement of the Magistrates Court once their case is heard and rulings are made.

Magistrates and lawyers in summary courts are also able to deal with the cases that they have as quickly as they do because they know that if they make a mistake there is a robust safety net to fix it. If the safety net is shredded, as this bill proposes, then they will work more slowly and deliberately and so will address their cases less efficiently. We know this because this is what they told the 2006 review. We also know this because this is what happened in South Australia when they passed similar reforms. According to the same review, South Australia has more than one and a half times the percentage of cases backlogged for more than six months in the Magistrates Courts and more than three times the percentage of cases backlogged for more than 12 months. All evidence screams that this bill will have exactly the opposite of the desired effect of making the court system efficient. This bill will make courts slower and more expensive.

This brings me to my third point. We know that de novo appeals are not causing problems in the legal system and are not even making much of a contribution to the problems of the court system because, according to the annual reports of the Magistrates Court for the last few decades, only between 1 per cent and 1.5 per cent of cases are appealed. The rate of appeals against conviction is only 0.3 per cent, and 51 per cent of de novo appeals are upheld. These numbers are all important and they tell us different important things.

The first number, 1 per cent, tells us that an absolutely tiny fraction of cases are appealed, so even if eliminating de novo appeals would reduce the total caseload, which it will not, it would reduce it by an absolutely tiny amount. The first number is also important because it has not changed much in decades, so this is not a growing problem, while the issue of magistrates hearing 80 to 100 cases a day is a new and growing problem. We also know from County Court reports that only 6 per cent of County Court work is hearing appeals.

The second number, 0.3 per cent, is important because these are the cases that require witnesses to give evidence again, so it tells us the number of appeals where witnesses need to give their evidence again is really, really low. We have been told that reducing de novo appeals is important to reduce the harm that victims and witnesses might incur from being dragged back into court, but there is no evidence to support this—certainly none put forward by the Attorney-General. The number of appeals where victims and witnesses are dragged back into court is absolutely tiny, at less than one in 300 cases.

The third number, 51 per cent, is important because it tells us that de novo appeals actually really are important for preventing miscarriages of justice. A little bit more than half of the cases that are appealed are upheld. This is not a tiny number, like 1 per cent or 0.3 per cent—it is a big number. If you are in the 51 per cent of people who think they were dealt with unjustly, who were dealt with unjustly or would be found to have been dealt with unjustly today, that is a bigger deal than any number could express.

Finally, we can talk about why the court system is struggling with the caseload. In the 17th century we had to downgrade our legal system from one where everyone was guaranteed a trial by jury because we created lots of new statutory offences that just made more people guilty of more things, and the courts were overwhelmed. In the 21st century we have had a renaissance of new statutory offences and policing, so now we want to downgrade our legal system again—this time to eliminate a robust appeals system.

Put simply, we in this place are just making too many things illegal, and the obvious result of this is that more people end up in court. Don’t believe me? In the last 10 years alone the Victorian general offence rate has grown from 6.95 per cent to 7.8 per cent, while the population has also grown, from 5.5 million to 6.5 million. We have more people, and we are sending a higher proportion of these people to court under stricter laws that cover more things. Policing many of these things is just a waste of police and court time, and it all adds to clogging the legal system with pointless cases.

In 2010, 9600 people were convicted of drug possession, and it was the 10th most numerous crime, but in 2019 it is now the sixth most numerous crime, with 25 000 convictions. Even accounting for population growth, that is more than twice the percentage of Victorians being convicted for a victimless crime. In 2019 we made 72 000 more people guilty than we did in 2010. At the current rate of population and law growth, we will make about 90 000 more Victorians guilty each year by 2029 than we did in 2019. That is 160 000 more guilty people each year by 2029 than in 2010—160 000 more cases for police to process and courts to hear. Laws have become stricter, laws are more strictly enforced and laws have expanded to cover more things. The story is repeated across the board with almost every category of non-serious offence gaining new laws over time and the laws becoming stricter, resulting in a steady but inexorable growth in the number of cases courts need to hear. That is the real problem.

I suspect that many of those on the government benches who are lawyers by trade know that these laws are bad for justice and bad for the court system, and I cannot begin to fathom why they are supporting these reforms. I do not think that anyone should support this bill, no matter what you generally think of appeals, because it is going to make the problems it is trying to address worse, while exclusively disadvantaging people who are unjustly heard by the courts. Nobody benefits from these changes, but a lot of people suffer.

Laws are like trees and in this place we are the gardeners. With only a few plants, you can establish and maintain a beautiful garden with fruits and flowers, that you can move through and enjoy. These are the few laws that serve valid and useful purposes and there are few enough of them that they can be policed and legislated properly. But if you sow too many plants too close to each other, each one will be ill formed and sickly and they will combine to form a thicket. Worse still, the really important trees will not produce flowers or fruits, because they are starved for water and light by the many weeds and pointless plants. These are the many pointless laws that we have permitted to accumulate over the years—a thorny thicket that impedes progress and traps people in our court system. We in this place have let this thicket grow beyond our ability to adequately maintain it or to police it without excessive coercion. It reminds me of our national parks, and like our parks, one day it is going to catch fire and burn, with great loss to all Victorians. What we need to do to address the problem of overworked courts is not to trash our appeals system. We need to take a chainsaw to the existing thicket of laws and stop sowing new weeds.

 Dr RATNAM (Northern Metropolitan) (17:38): The Justice Legislation Amendment (Criminal Appeals) Bill 2019 seeks to make two changes to the criminal justice system: the abolition of de novo appeals in criminal matters in the summary jurisdiction and the introduction of a second appeal right to the Court of Appeal in the rare circumstances where convicted persons can demonstrate that there has been a substantial miscarriage of justice.

These are significant reforms. In the case of the former, the abolition of de novo appeals, it will be a fundamental change in the functioning of criminal law in our courts. Such reforms should not be made lightly and without strong evidence. An example of strong evidence is the report of the incredibly comprehensive non-partisan parliamentary inquiry examining de novo appeals tabled in the Victorian Parliament in 2006. This inquiry strongly recommended the retention of the de novo system. Compared to the level of analysis back then, this time around the government has presented only superficial assertions, essentially some dot points containing no new evidence or reasons as to why suddenly now we need to take the opposite approach and abolish de novo appeals. De novo appeals are no less an important part of the justice system now than they were in 2006. In fact there are good arguments that they are even more important.

Not for the first time in the justice portfolio, the government’s proposed reforms appear to be an affront to evidence-based policy. The Greens are therefore obliged to oppose this bill. Currently the weight of evidence is in favour of retaining de novo appeals. Along with the parliamentary inquiry I mentioned, the Law Institute of Victoria, Liberty Victoria and the Criminal Bar Association are all in support of de novo appeals. The Greens do acknowledge that there are informed counterarguments and opinions on the issue, and therefore we would support a review of de novo appeals by the Victorian Law Reform Commission, as has been the case with areas of equal legal significance—a recent example being the current review of the committal and pre-trial hearings for indictable offences.

The Greens do not hide from contested issues or from progress when presented with compelling reasons, but at the very least we demand that these reasons be presented. Because these reforms have been proposed without any evidence, we are concerned that once again the government is looking for political quick fixes to problems in the justice system that are largely of their own making. Toxic law and order politics has meant that for over a decade we have been lacking any credible leadership on justice policy in Victoria. As a result we have parts of the justice system, particularly criminal justice, where ill-thought-out ideas and legislated knee-jerk reactions are being piled layer upon layer on top of political quick fixes. It is an endless death spiral, where deteriorating performance in the sector is promoting ever-worsening policy initiatives.

So I am going to talk today about why evidence-based policy is important. Five hundred years after the Magna Carta, it is truly embarrassing that the level of the justice debate in Victoria has regressed to a series of macho partisan fights over who is the toughest on crime. How, in this age, can we justify investing multiple billions of dollars in policies that have been shown again and again to make a problem worse? Would a health minister propose building a new multibillion-dollar project—and I should point out here that the actual spending growth on prisons in Victoria is around twice that of public hospitals—if there was no evidence that it would improve community health and if in fact there was very strong evidence that it would actually increase the rate of death and disease in the long term? Imagine further still, if confronted with these facts from doctors and health professionals, experts from overseas, a visiting Republican or Democrat or our own Indigenous community, that the minister said that they would make no apologies for their actions. Only in the area of justice policy are Victorians asked to accept this reality.

How many more times are Victorians going to have to hear expressions such as ‘We make no apologies for having the toughest bail. We make no apologies for tougher sentencing. We make no apologies for imprisoning more people’. We should see these statements for what they really are: they are excuses for failure. Ministers may consider not apologising for failure as tough, but it does not improve public safety, social outcomes or the budget bottom line.

We do not gauge the government’s performance in these areas by measures of its toughness. What is measured in the annual reports of our justice agencies and courts and in the budget papers are things like criminal offending rates, court case loads and finalisations, and the level of imprisonment and recidivism. We measure these things because they actually affect the quality of life of Victorians. And the government is failing Victorians based on these measures.

Consider that while the rate of incarceration has almost doubled in the last 10 years, according to the Crime Statistics Agency the rate of victims reports and offending per 100 000 of the population remains higher than when Labor took office and well above what it was a decade ago. Recidivism rates for prisoners have not significantly moved from around 43 per cent, and for some cohorts, like children, they are rapidly increasing. Given the massive increases in prisoner numbers and churn, this equates to a much higher overall level of reoffending. Examining this data, the absolute best you could argue is that the current tough-on-crime approach has had no observable relationship to criminal behaviour, the level of offending or public safety. This is not surprising. It replicates data from jurisdictions around the world and the opinion of our own Sentencing Advisory Council.

On the other hand, the major reforms, including more arbitrary remand and less non-custodial sentencing options, have had a major effect on the lives of the most vulnerable Victorians. To quote Victoria Legal Aid:

More often we are seeing children, women, people experiencing homelessness, and people with mental health issues remanded in custody.

The public advocate also raised concerns this year that more people with severe cognitive disabilities are being held in custody on remand. Shocking examples of this continue to emerge.

Shamefully, this government also now boasts the record for imprisoning more Aboriginals and Torres Strait Islanders as a proportion of all prisoners than at any time since accurate data started to be kept. This government is also breaking records in the incarceration of women. The Crime Statistics Agency recently reported that the number of women entering prisons in Victoria in 2018 is more than double the number in 2012. More of these vulnerable people are being criminalised because the real effect of law and order politics has been to penalise minor offenders experiencing issues such as homelessness, family violence, mental health issues, disability, drug and alcohol misuse, isolation, poverty, trauma, abuse and crime, low education attainment and poor employment prospects.

The legal fraternity uses the euphemism ‘complex cases’ to describe these groups, and it is a term being used with increasing frequency every year because of a deterioration in the underlying social factors that influence criminal behaviour. In large part this is because the billions that should be spent on preventing social problems are instead being used to temporarily house the symptomatic in very expensive and ineffective prisons. Suffice to say, holding vulnerable people for days, weeks or months does not make the community any safer in the long term.

And because people on remand have very limited, if any, access to the targeted programs and services that they need to address their problems, imprisonment actually entrenches criminal behaviours and reoffending. Contrary to the government’s logic, it is not a sign of toughness to punish the most vulnerable in our society. In fact it is a sign of weakness and insecurity.

The effect on the courts of this tough-on-crime, low-on-evidence justice policy has been disastrous, particularly for the criminal division of the Magistrates Court, which is facing unprecedented demand pressures and having difficulty finalising cases involving these extremely complex cases. I have already spoken in this Parliament on the Magistrates Court of Victoria’s annual report for 2016–17. It is a report that is so bad that the government decided not to table it for almost two years. Equal pressure has flowed on to the criminal justice division of legal aid, particularly in the summary jurisdiction where, like in the courts, court advocacy services are overburdened by the increase in the number of cases as well as their complexity.

I recognise the government has made some increases to funding for legal services, but these increases have not kept up with the demand pressures. Victoria Legal Aid last financial year again recorded what was effectively an operating deficit and it is forecasting yet more deficits in the future. As a result of this, and contrary to their fundamental rights, more and more Victorians do not have access to justice and are appearing in court without adequate legal representation.

Given all of this, I was amazed that some government MPs’ contributions on this bill referenced the criminal caseload of the Magistrates Court as a good reason for the abolition of de novo appeals. Nearly every submission I have read said, and the parliamentary Law Reform Committee’s report found, that abolition of de novo appeals would:

… almost certainly reduce the efficiency of, and increase costs for, the Magistrates’ Court—

and would make hearings in the Magistrates Court ‘longer and more complex’, therefore imposing an additional burden on legal advocates.

As I indicated earlier, I am not going to outline all of the well-documented arguments with regard to de novo appeals, but I think it is important to raise this one as an example of the need for greater examination of the true impacts of these significant reforms rather than taking on face value the speaking points that have been presented to us in this debate. I say this despite the fact that most MPs did little more than repeat the point that de novo appeals originate from 17th-century England and are old-fashioned and, as such, it is high time we modernised the system. We should all be very wary when the best adjective to describe legislation, as judged by its repetition, is ‘modernising’. It is up there with ‘promoting innovation’ and is usually only uttered when the government plans to sell off an asset.

In this case especially, and in the absence of actual evidence, can we really accept an ‘old equals bad, modernised equals good’ argument? We are not deciding whether to upgrade to the new iPhone, we are deciding about changes to a complex system of criminal justice that has been carefully refined over many centuries. What we decide to support will have very serious impacts on real people’s lives and in some cases may mean the loss of their liberty. In other words, we need to do the work, the hard work, and get these reforms right.

I will conclude by pointing out that while there is much talk around about the declining standards of politics, very rarely does a tangible example of such a decline emerge. I put forward that this bill is such a time. It is because of the failures of successive governments that the Greens want to see a return to evidence-based justice policy. This means we want to see real evidence on the impacts of the abolition of de novo appeals on the operation and efficiency of the courts. This includes data on the likely effects in terms of access to justice, the effects on victims of crime and, perhaps most importantly, whether abolishing de novo appeals will impact the delivery of fair and just sentencing outcomes in Victoria.

This was the standard of evidence that was required by MPs from all sides of politics in this house when the issue was last considered by the Parliament. It was the minimum standard required by government ministers that currently sit in this chamber. The Greens are committed to upholding this standard and, given the failures of justice policy over the last decade, now more than ever we should not be lowering them. For this reason, we oppose this bill.

 Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:50): I will try to be fairly quick with this, in responding to comments that have been made. In addressing this matter, firstly, I wish to indicate that I do have some answers to a number of questions that have been raised.

There were four questions raised by Mr O’Donohue. The first related to the reason the government has made the decision to abolish de novo appeals. Essentially appeals play an important role in the justice system, offering an important safeguard to correct errors and, in rare cases, avoid a miscarriage of justice. However, appeals can have a significant impact on the justice system and those involved, particularly victims and witnesses. It is therefore important that our appeals processes are modern and fit for purpose to ensure appeals are not considered needlessly or in a manner that is unduly burdensome on the system or vulnerable individuals. Victoria is the only Australian jurisdiction that continues to have ‘as of right’ de novo appeals for all appeals from decisions of magistrates in criminal matters, including against conviction and sentence. De novo hearings have considerable impacts on the criminal justice system, including on the wellbeing of victims and witnesses who may be required to give evidence twice—first in the original hearing and then again on appeal. A de novo hearing has no regard to the work completed by magistrates, undermines the finality of their decisions and creates inefficiencies through the duplication of proceedings in the higher courts.

The second matter was around the number of de novo appeals, their respective outcomes and the sentencing impacts of those. With respect to those points, I will undertake to come back to the member with as much information as possible. In trying to assist with that, Mr O’Donohue, I have been advised that the courts have some concerns with respect to the release of some of these numbers. As such, the government can commit, though, to seek information and provide as much information as possible to you.

In respect to the third question—it related to the extent to which victims will have a reduced exposure to trauma as a result of these changes—I would say that while it is true that sentence appeals have less impact on victims and witnesses than appeals against conviction, victims are still required to resubmit victim impact statements and victims or witnesses may also be required to give evidence again if the facts are disputed.

The final point related to public confidence in the administration of justice as it relates to de novo appeals. To that I say the issue of undermining the Magistrates Court is not one of volume but rather one of process. Because a de novo appeal is run afresh, it is as if the magistrate’s hearing never happened. No acknowledgement is given to the decisions made by that court and no reasons need to be given for a new decision which is different. The new system will give recognition to the original decisions and explain why they are being changed at appeal. This will make them much more understandable for victims and all involved, I would argue.

Ms Patten had a number of points. She questioned whether offenders will be able to submit new material at sentence appeal. That, I can say, will depend on whether the material could have been presented at the original hearing. An appellant will be able to present, as of right, new material which relates to matters that occurred after the sentence was imposed and which concerns the circumstances of the appellant. That might include, for example, a new report showing a new diagnosis or that the offender has just entered treatment. The court will also be able to consider submissions made during the appeal hearing, which may be broad. They could address any matter that the court considers relevant and necessary to determining the appeal—for example, if the appellant did not provide the original court with information about their circumstances, such as, for example, a longstanding illness in respect of which reports had not been previously provided.

Of course submissions could also be made by the prosecution—for example, evidence that the offender had not complied with bail conditions when waiting on an appeal or regarding victim impact. The court will take all information into account when considering whether there are substantial reasons to impose a different sentence.

I also note that some members have referenced the 2006 parliamentary Law Reform Committee report on this issue and its conclusion that on balance de novo appeals should be retained. It is important to recognise that the 2006 report placed less emphasis on the impact of de novo appeals on victims and witnesses than other considerations. Things have changed since 2006. There is now significantly better recognition of victims rights across our justice system and a recognition that the system ought to avoid retraumatising victims.

The Magistrates Court now routinely hears serious matters involving victims, including family violence, burglaries, recklessly causing serious injury and carjacking. The number of de novo appeals has grown by 45 per cent since 2006. For these reasons we think that the new appeals process outlined in the bill strikes a more appropriate balance by maintaining appeal rights, which is important, and will continue to be accessible without retraumatising victims. We believe the appropriate balance has been struck in this bill. I trust these comments have been of assistance. I commend the bill to the house.

House divided on motion:

 Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (18:04): I move, by leave:

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.