Justice Legislation Amendment (Access to Justice) Bill 2018

Debate resumed from 9 May; motion of Ms TIERNEY (Minister for Training and Skills).

Mr RICH-PHILLIPS (South Eastern Metropolitan) (16:31:06) — I am pleased to rise this afternoon to speak on the omnibus Justice Legislation Amendment (Access to Justice) Bill 2018, which has been introduced as a consequence of the review of access to justice which has been undertaken by the government over the course of the last year. This is an example once again where we see a justice amendment bill brought into this place by the Attorney-General — as I indicated, this is an omnibus justice amendment bill — because we know that the issue of justice, particularly criminal justice in this state, continues to be one of considerable difficulty for this government.

It is an area of policy and an area of administration where the Victorian community know the government is failing, know the government has failed over an extended period of time and are concerned about the ramifications of this government's failings with respect to the justice system. We have seen this manifest itself in a number of ways. We have seen over the last three and a half years a number of criminal issues out of control in the Victorian community. We see Victorians afraid in their homes as a consequence of the explosion in home invasions which have occurred in Melbourne suburbs over the last three years, something which was unheard of in Victoria prior to the election of this government. We have seen the raft of carjackings which make members of the Victorian community concerned when they are on the roads. They are concerned in their homes; they are concerned on the roads.

We have seen this government fail to address those concerns and fail to put in place the measures which are required to ensure that the Victorian community can have confidence that criminal matters like this will be addressed by the justice system in its totality — be it through police being in a position to detect and apprehend the perpetrators or through the judicial system ensuring that when those perpetrators are apprehended and brought before the courts they are dealt with in a way which reflects community expectations.

This has now become a huge issue for the government because it is a huge concern for the Victorian community. Be it home invasions, be it carjackings or be it aggravated assaults or aggravated burglaries, we have seen an explosion in violent crimes against the person. We have seen it through the western suburbs in areas that Mr Finn represents. We have seen it through the south-east in areas that I represent. And we have consistently seen this government fail to respond to this developing crisis, fail to give Victoria Police the powers it needs to address it and fail to ensure that the judiciary is equally equipped to address these concerns. This is something that has been ongoing basically for the length and life of this government, and it is something that we have consistently seen the government fail to address.

Last week we saw the community outrage at the circumstances surrounding an attack on some Victorian ambulance officers — an attack on our paramedics — by two perpetrators who were subject to a slap on the wrist through the judicial system. That was the circumstance where the government was forced by community pressure to finally act. However, it announced it is going to act — it has not acted yet — with reluctance, because at its heart, with the Premier and the Attorney-General, this government does not stand up for victims of crime in this state and has not acted in the interests of victims of crime in this state. It was only through the widespread condemnation of that decision last week around the attack on the ambulance crew that we saw the government forced to make an announcement today. We have every expectation that, if and when legislation from that announcement reaches this Parliament, it will be in a much watered-down and ineffectual form.

We have seen time and time again that this government, the Labor government, has been forced to respond to policy initiatives announced by either my colleague in the other place the shadow Attorney-General, John Pesutto, or in this place the shadow Minister for Police, Ed O'Donohue, who have set the policy agenda and who have time and time again forced this government to act. We have seen time and time again that when private members bills have been introduced in the other place or this place the government has had to play catch-up to try to get its own legislation into Parliament. We saw today that Mr Pesutto in the other place sought to introduce a private members bill to address the issue of attacks on emergency service workers and to provide for a mandatory sentencing framework around that to ensure that the expectations of the community are met in relation to those types of offences, because the community is sick of seeing alleged perpetrators brought before the courts, quite often found guilty or convicted and then receiving sentences which do not reflect community expectations in any way.

It is becoming increasingly necessary for this Parliament to intervene to ensure that the expectations of the community are delivered through the judicial system by way of greater prescription in statute. What we saw today with the private members bill sought to be introduced by Mr Pesutto in the other place was exactly that: it was just the latest example of my colleagues in the opposition providing the leadership which has been sadly lacking in the government on repeated occasions.

What we see with the bill before the house, the Justice Legislation Amendment (Access to Justice) Bill, is an omnibus bill which is largely mechanical in the provisions it encompasses. It actually does not go to any of the issues which are of concern to the Victorian community. Having the term 'access to justice' in the title is somewhat ironic because when you reflect on the number of Victorian citizens who have been engaged in the criminal justice system in the last three years as victims and family members of victims, they would in many cases say they have been denied access to justice, that the system has delivered them anything but a just outcome. So there is some irony in the title of the bill, the Justice Legislation Amendment (Access to Justice) Bill, which arises from the government's review of access to justice, because the scope of the bill does not go to the issues that are of concern to the Victorian community.

There are a number of provisions in this omnibus bill, and I will run through them in passing. The first main provision is in part 2 of the bill with respect to the jurisdiction of VCAT, and it provides that the threshold for small claims in the Victorian Civil and Administrative Tribunal is increased from $10 000 to $15 000. I understand this is a provision where we may see an amendment looking at whether that is an appropriate threshold or not come forward as the bill is considered. That is something the committee can deal with in the committee stage.

Part 3 of the bill amends the Births, Deaths And Marriages Registration Act 1985 with respect to removing the requirement that a person be unmarried in order to alter their recorded sex. I understand that this is a consequence of the commonwealth changes with respect to marriage made at the end of last year. Previously the intersection of the Victorian Births, Deaths and Marriages Registration Act and the commonwealth marriage legislation worked in such a way that under commonwealth law two people of the same sex could not be married. Therefore a married person in Victoria was unable to change their recorded sex, because if they changed their sex as recorded in the Victorian births, deaths and marriages register they would then be in a same-sex marriage, which was not provided for under commonwealth law. So the commonwealth changes to the commonwealth Marriage Act 1961 to permit same-sex marriage mean that the provision which prevents a married person from changing their recorded sex is no longer relevant as it relates to the commonwealth Marriage Act. Therefore part 3 of this bill removes that requirement that a person be unmarried in order to alter their recorded sex.

Part 4 of the bill amends the Civil Procedure Act 2010 to set out matters that a court may have regard to when making a protective costs order, prospectively capping a party's liability to pay another party's costs if they are unsuccessful. Part 5 and part 8 of the bill amend the County Court Act 1958 and the Magistrates' Court Act 1989 to enable the making of regulations with greater flexibility, including prescribing fees for different court users and different classes of court users, where fees are payable and by which party. This was previously something set down in statute. Part 6 of the bill amends the Legal Aid Act 1978 to increase Victoria Legal Aid's (VLA) role in coordinating the provision of legal aid and legal aid assistance information, to introduce new planning and reporting requirements and to require at least one VLA director to have public management experience and at least two directors to have experience in VLA's areas of legal practice. Part 7 amends the Legal Profession Uniform Law Application Act 2014 to increase funding available for legal assistance services and to allow the Victorian Legal Admissions Board to make payments for the Public Purpose Fund for innovative improvements in access to justice.

Part 9 of the bill amends the Victoria Law Foundation Act 2009 to alter the functions of the Victoria Law Foundation to focus on data analysis, research and evaluation of access to justice, legal assistance and civil justice issues. Part 10 amends the Victorian Civil and Administrative Tribunal Act 1998 to enable mediators to conduct compulsory conferences across all VCAT lists, to simplify the process of enforcing VCAT orders, to allow parties to small claims civil matters to request written reasons and to recognise the role of a support person at VCAT.

The coalition is not going to oppose this bill. As I said, it is an omnibus bill that picks up a number of recommendations from the 2016 Access to Justice Review. It spans a very wide scope of legislative matters within the justice area around the operation of our courts and tribunals as well as the births, deaths and marriages matter I touched upon. With respect to the legal aid provisions — the amendments to the Legal Aid Act 1978 — the bill will provide some more prescription around who qualifies to be a director of Victoria Legal Aid, requiring someone with public management experience and requiring two directors to have experience in the VLA's areas of practice. We believe these are reasonable changes to the structure of the VLA board.

One of the interesting things with respect to the VLA is the way in which it provides support to people who otherwise would be unsupported in the justice system and of course, with that, the way in which it makes decisions as to which matters merit support from the VLA and which do not. An extension of that is the way in which VLA from time to time seeks to insert itself in matters of public debate and matters of political debate which may have a legal aspect to them — be they matters which are brought before the court to test a matter of contentious policy or a government decision. Where VLA may seek to provide representation or withhold representation is something that is of interest to this Parliament and, I think, of interest to the entire Victorian community because legal aid is provided by the Parliament and, by extension, by the Victorian community for a very specific purpose in providing access to the justice system for those who would not otherwise be able to have legal representation.

When the VLA seeks to exercise its brief in a broader way which has a political overtone to its activities, that is something which does raise concerns and does jeopardise community support for the VLA. The more prescriptive structure that the bill will require with respect to public management experience as well as directors with experience in the areas of VLA's areas of legal practice is a positive step.

Likewise, in part 9 of the bill the changes to VCAT around simplifying the processes for the enforcement of VCAT orders and allowing parties to small civil claims to request written reasons are also useful enhancements of VCAT's structure.

Obviously VCAT was established in the mid-1990s as a replacement for the Administrative Appeals Tribunal as a way of establishing a simple, low-cost jurisdiction for small claims to be determined in Victoria. Since the original founding and establishment of VCAT its scope has been expanded through successive statutes which have sought to use VCAT as an appeal body or as a review body in a plethora of ways. There would be probably now hundreds of statutes which vest the review function or the appeal function in VCAT, so it plays a very important role in our justice system as a quasi-judicial body, and any enhancements which allow it to act more efficiently and more effectively and provide, in the case of disputes, easier remedies for parties seeking relief through VCAT and seeking the enforcement of orders through VCAT are a welcome step.

As I said, the coalition does not oppose this bill. It is an omnibus bill. It covers a broad range of matters which arise from the government's review of access to justice. But of course it does not address the issues which are of concern to the community — that is, the community's concerns as to their day-to-day safety and the lack of police resources which have been provided by this government over the last three years and the fact that people do not feel safe on the streets, do not feel safe in their cars due to the carjackings we are seeing and of course do not even feel safe in their homes, as we have seen with the plethora of home invasions over the last three years.

So while this bill makes some useful administrative improvements across the sweep of the justice system, it does not address the community's key concerns around justice, it does not address police resources, it does not address the level of crime in the community and it does not address the frustration that the community feels at the way in which the judiciary undertakes its role and the way in which the judiciary consistently does not reflect the expectations of the Victorian community. The only way in which those expectations can be met and the only way in which the expectations of policing in the community can be met is with a change of government in November and a change of policy in those key areas.
  • SHARE:
  • Email
  • Permalink