Justice Legislation Amendment (Victims) Bill 2017


Debate resumed from 8 February; motion of Ms MIKAKOS (Minister for Families and Children).

Mr RICH-PHILLIPS (South Eastern Metropolitan) (17:14:55) — I am pleased to make some remarks on the Justice Legislation Amendment (Victims) Bill 2017. This is something of an omnibus bill which reflects a number of changes to a suite of legislation related to the way in which our justice system addresses matters relating to victims of crime, which of course is something of considerable and growing importance in the Victorian community. We have seen in recent years, and the last two years in particular, increased community concern about the level of crime in the general community. We have seen unprecedented increases in violent crimes against the person, crimes which involve near-unprecedented acts such as home invasions and carjackings — things which were never a feature of the Victorian community until very recently.

It has been interesting to reflect on some of the commentary from some members of the community who have come to Victoria from other countries, who have come to Victoria and to Melbourne to escape societies and communities which are subjected to widespread violent crime. People who have come from South Africa or from Zimbabwe have moved to Australia to escape not just in many cases persecution but also an environment where violent crime is a significant concern only to experience similar types of crime here in Melbourne. A number of times people who have come to Victoria — moved to Victoria and to Melbourne — go on to remark that the types of violent crime we have been seeing in Melbourne in recent years are akin to what they might have seen in Johannesburg and cities like that. I think it is to Melbourne's and Victoria's great detriment that there are those comparisons being made — that a city which has been long regarded as one of the most livable cities in the world is now subject to the type of crime which has not been seen in this state and this country before and is now being compared to a city like Johannesburg because of the nature of violent crimes against the person, home invasions, carjackings and crimes of that nature.

It is important, therefore, that this Parliament responds to those concerns in the Victorian community, that we are responsive to the concerns and experiences of victims and that we are responsive to the concerns of the community more generally. This side of the house, the Liberal and National parties, have been very strong in promoting a number of measures which support victims of crime, work to minimise and deter crime and particularly violent crime in our community and work to address the broad concerns of the community.

Interestingly one of the bills we expected to debate today which we are now not debating in the circus that is the government's legislative program — once again — is the bail bill. The so-called Bail Amendment (Stage Two) Bill 2017 was to be part of the government's agenda today, yet it is not, and in fact the indication from the government is it may not be part of the agenda this week at all. This is a piece of legislation which we saw as particularly important. It is something which flowed from the events which took place in Bourke Street, Melbourne, in February last year following which changes were promised by the government. It has taken 12 months to get to Parliament, despite the promise from the government that they would act quickly, and now we are seeing those changes delayed. We think it is a matter of regret that those bail reforms, which were recognised by the community and recognised by the coalition as being urgent and were delayed by the government in their introduction, are still being delayed this week in their passage through this house.

So instead of debating the bail bill, as we expected to be doing today, the government — in the way in which it is running the house — has adjourned the bail bill off and we have moved on to the Justice Legislation Amendment (Victims) Bill 2017, which is also an important piece of legislation and does make some significant changes with respect to the way in which victims are treated in our justice system, but of course it reflects the chaotic nature of the government's legislative program that we have jumped to this bill from what was scheduled to be the bail bill.

Turning to the specifics of the bill before the house this afternoon, this bill amends the Crimes Act 1958, the Sentencing Act 1991, the Criminal Procedure Act 2009 and the Victims of Crime Assistance Act 1996 in respect of a number of individual provisions. To run through the main provisions of the bill, when determining the effect of intoxication on reasonable belief clause 4 provides that intoxication is self-induced, unless it came about from a patient's use of a medicinal cannabis product in accordance with medicinal cannabis access authorisation.

This goes to the circumstances of intoxication, and while this provision is not one that the coalition opposes we are concerned, as the shadow Attorney-General in the other place articulated, by the different definition which seems to pertain in this bill versus that which relates to medicinal cannabis in the principal act which establishes the framework for medicinal cannabis. Obviously we are keen to ensure that the legal use of medicinal cannabis in this bill and subsequent act applies in the same way as is intended in the act that allows for the use of medicinal cannabis. The apparent difference in the language between these provisions is something that we believe needs clarification.

Clauses 8 and 9 of the bill amend the exception provisions for the destruction of fingerprints and forensic information of juveniles. This destruction requirement will not apply where the child has been found guilty of any relevant offence punishable by a maximum penalty of at least 15 years imprisonment. Obviously one of the issues that confronts the community today is the seemingly increased prevalence of serious crime being undertaken by juveniles. We have seen across the state and particularly across Melbourne in the south-eastern suburbs, which I represent, and the western suburbs an increase in the prevalence of crime involving young people. Gang crime? We have had the Minister for Youth Affairs say there are no gangs. She has referred to them as, I think, 'an association of young people' or 'gatherings of young people', but not gangs. She has denied their existence. In fact the acting Chief Commissioner of Victoria Police in a similar vein was talking about the fact that there are no gangs.

Mr Somyurek — The minister nailed it.

Mr RICH-PHILLIPS — That is absolutely not the view or the experience of the Victorian community. It is absolutely not the view —

Mr Somyurek — She came out and nailed it.

Mr RICH-PHILLIPS — I take up the interjection from Mr Somyurek, who in his usual vein is doing his best to help his government and help his colleagues.

Mr Ondarchie — Well, they help him, don't they?

Mr RICH-PHILLIPS — Mr Ondarchie says they have helped him in the past, and he is looking forward to helping them in the same way in the future.

Mr Somyurek — Not that way, though.

Mr RICH-PHILLIPS — Mr Somyurek's interjections are —

Mr Ondarchie interjected.

Mr RICH-PHILLIPS — They are very valued, Mr Ondarchie, and I think of increasing interest to all in the chamber as we progress through the course of this year. To digress slightly, I was fascinated to watch Mr Somyurek's most recent members statement where he talked about one of the government's latest debacles in Frankston, although he did not put it in quite those terms, with the Young Street redevelopment. He had every single member of the government benches absolutely captivated by what he was going to say next in his members statement about Young Street in Frankston — for the whole 90 seconds. You could have heard a pin drop as they waited with great anticipation for what would next come from Mr Somyurek's contribution. Mr Somyurek's reflection on the minister's activities around youth crime and youth justice, I think, is very apposite to this debate.

We have heard Minister Mikakos talk about the lack of gangs — that there is not a gang problem, it is just an association of young people — and we have obviously seen her inability to manage her portfolio in regard to young people in detention, which is also a matter of great concern to the community. It reflects a growing concern about youth crime, and violent youth crime, which our community is increasingly called upon to face the consequences of.

The amendment in clause 24 of the bill allows adult victims, or alleged victims, of crimes committed by children to share their stories and removes the current restriction on the publication of a report likely to identify a victim of crime. Restrictions on identifying details of accused children will be maintained. This provision is a very important one. It is very much the view of this side of the house that we need to prioritise support and concern for the victims of crime ahead of the perpetrators of crime.

One of the difficulties, given the vast increase in crime associated with juvenile offenders, has been the constraints which exist around identifying juvenile offenders. I think the general provisions around identifying juvenile offenders may increasingly come in for more criticism in the community as time goes on and we see more violent crime committed by juvenile offenders. But one of the constraints that has existed for victims of crime and one of their frustrations has been their inability to talk about their experience as a victim of crime because of the legal impediment to identifying the juvenile perpetrator of the crimes of which they have been the victim. We believe it is completely inappropriate that victims of crime are gagged simply because the perpetrators of the crimes are juveniles, and this provision will allow greater scope for victims of crime to actually be able to recount their experiences.

When you think of the context of many of these crimes — there are home invasions and carjackings — they are horrendous experiences for many of the victims. They should be able to talk about what they have experienced and they should not be constrained from talking about their experiences by a provision which seeks to protect the perpetrators simply because they are juveniles. While this provision certainly does not provide a blanket lifting of the framework which suppresses the identity of juvenile criminals, it does provide more flexibility for the people who are victims of those juvenile criminals to be able to talk about their experiences.

Clause 25 of the bill introduces a two-year pilot program for ground rules hearings and the use of intermediaries for persons under 18 or a person with a cognitive impairment, which is a recommendation of the Victorian Law Reform Commission (VLRC). The VLRC's report suggests the use of intermediaries for people under 16 or with a disability, rather than under the age of 18. The clause introduces ground rules for a pre-trial process looking at comprehension and communication needs of vulnerable witnesses. Again it is our view that this ground rules procedure will improve the operation of the pre-trial process in our courts. I note that, as do many of the provisions in this bill, it arises from the work of the VLRC, although some of the other provisions relate to the Royal Commission into Institutional Responses to Child Sexual Abuse and others to the Betrayal of Trust report, which was a product of this Parliament. So they are grounded in some third-party work, which I might say does not of itself guarantee robustness but does indicate that there has been some external consideration as to the merits of some of these provisions.

Clause 33 of the bill prohibits the court when sentencing an offender on current or historical child sex offences from having regard to previous good character or lack of previous convictions. This again is something which reflects community concern and certainly community perception about the way in which courts take into account factors which the community regard as extraneous to proceedings. Whether it involves juveniles or adult offenders, we see time and time again that where a court has considered an offence as well as the circumstances of the offender the net result as reflected in the sentence has not reflected the expectations of the community.

This provision in clause 33 to exclude previous good character or lack of previous convictions goes to reflect the expectations of the community that a serious sexual offence against a child is an offence of considerable gravity. It reflects the community's views, the community's expectations, that that cannot simply be weighed off against the fact that there has not been a prior conviction or that the person has previously been of good character, which in many instances the community takes to mean has not been previously caught. I think this is a provision which goes to reflect the community's increasing concern and increasing frustration and growing lack of tolerance for those types of factors being taken into account in the formulation of sentences by our courts.

Clause 35 of the bill introduces a historical offence of indecent assault upon a male which is to be subject to the serious offender provisions under the Sentencing Act. Again this is a provision which will be, I think, welcomed in the community, including the historical offence within the scope of serious offenders provisions under the Sentencing Act.

The other main provision is contained in clause 37, which provides that victims of physical or sexual abuse occurring when the victim was under the age of 18 years may make an application under the Victims of Crime Assistance Act 1996 any time after the occurrence of the act of violence. This removes the current two-year limitation period for the seeking of assistance under that act. The fact that it relates to offences committed where the victim was a child means it is reasonable to provide that such an application can be made as an adult.

We have seen so many times through the proceedings of the Betrayal of Trust inquiry and also the Royal Commission into Institutional Responses to Child Sexual Abuse that for a number of reasons people who have been victims as children have not been in a situation to report those offences or in circumstances where they could seek assistance in respect of those offences which occurred while they were children. In many cases it can be decades before a person who was a victim as a child feels able to come forward for those matters to be dealt with through the courts and subsequently for the person to seek assistance under the Victims of Crime Assistance Act. So we think the provision removing the two-year limitation period for those people who were victims whilst under the age of 18 is worthwhile.

Many of these provisions arise from the Victorian Law Reform Commission, the royal commission and our own Betrayal of Trust report, and we think they are generally positive steps. With the exception of the issue around the medicinal cannabis provision and the scope of the language used there, which may need clarification, we believe these provisions are a worthwhile step forward.

We note the government has been slow to act on the issue of victims of crime. We have seen that repeatedly over three years. We have seen that in the government's reluctance to bring forward its bail bill today, as was scheduled, having seen numerous delays over the last 12 months. But on the whole this bill is a step in the right direction. It does not go far enough, frankly. There are many other things the government could do to ensure that as a community and as a legal system we prioritise the rights of victims of crime over those of the perpetrators of crime. This is an area where the government continues to be blind to the needs of the community. We see it with the Attorney-General. We see it with the Minister for Families and Children, who is the minister for community services and who has responsibility for youth offenders through the various institutions. We see that time and time again, particularly in that portfolio. But the bill is a step in the right direction even if it is not enough, and we look forward to it passing the house today.

  • SHARE:
  • Email
  • Permalink