Member for Western Victoria
Derryn Hinch’s Justice Party

Justice Legislation Amendment Bill 2022

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

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

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

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

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

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

(d) providing victims with standing to appear— and removing the requirement that victims seek the court’s leave to appear, which is on page 145

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

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

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

We reaffirm the recommendations in our previous inquiry.

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

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

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

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

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

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

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

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

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

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

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

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

The commission states on page 144 of its report that:

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

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

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

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

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


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