Member for Western Victoria
Derryn Hinch’s Justice Party

Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021

I rise to speak on the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021, and I have to say, my interest is always piqued when I see a justice bill pop up in the Legislative Assembly. This bill acquits recommendations from the police informants inquiry, but there are also a few changes to acts such as the Magistrates’ Court  Act 1989,  the  County  Court  Act 1958  and  the  Supreme  Courts  Act 1986,  as  well  as  the Constitution Act 1975 and, pleasingly, the Victims’ Charter Act 2006, which I will speak about later on.  The  bill  makes  the  following  changes  to  acquit  recommendations  from  the  inquiry  into  the management  of  police  informants:  requiring  informants  in  certain  proceedings  to  identify  relevant information,  documents  or  things  that  are  not  contained  in  the  full  brief  or  hand-up  brief  and  an explanation  for  why  they  have  been  excluded;  dealing  with  procedural  aspects  of  applications  for orders  concerning  non-disclosure;  and  clarifying  that  evidence  that  relates  to  the  credibility  of  a prosecution  witness in a  criminal proceeding  is relevant to  that proceeding  and  must  be  disclosed. These  changes  will  make  the  management  of  informants  more  transparent  and  help  us  to  avoid situations like the Nicola Gobbo saga in future. For our party, and I am sure for all of us, watching these offenders appeal their sentencing is frustrating when we know that there was evidence to support their involvement to some extent in these crimes.

In relation to the Chief Magistrate, dual-commission holders and pensions, I have spoken about judges receiving pensions in the past. Like the old politicians pensions, I do not agree with them. I think it is a waste of money and in our opinion does not entice talent, as is its intention. If it were the private sector, then maybe it would, but fortunately in Victoria we have a plethora of experienced lawyers who would fight tooth and nail to become a judicial officer sans pension. It is strange that we still give some jobs great pensions and others do not get one at all, especially when judges salaries are already quite healthy. I recognise that there is a long period of study and legal practice that is undertaken before someone is appointed to such an important position. However, many people do not realise that judges pensions do not just relate to the judge; they also relate to the partner and children of the judge or magistrate. For anyone who does not know this, take a look for yourself at each of the acts. It is frankly an insult to victims of crime who have to fight so hard to get a cent through the courts or through the Victims of Crime Assistance Tribunal (VOCAT).

However, I will say that the Magistrates Court is a big job. There is still a massive backlog of cases that we are only starting to chip away at, although I note that some cases have been adjourned for many, many years; justice delayed is justice denied. And of no surprise is that many of those are family violence cases. If we need to keep the Chief Magistrate around by giving a pay rise, then I guess that is what we need to do, but I certainly caution against this culture of ‘Let’s give judges and their families pay rises and pensions’. It is simply not right, and I do not think it passes the old pub test.

In relation to the limitation of the Supreme Court’s jurisdiction, we have had assurances from the Minister for Police’s office that appeal rights will not be reduced in various proceedings but accept they will be altered. When quizzed about if an accused person or their legal representation would be able to choose if their case was heard before the Chief Magistrate in order to decide what appeal rights they  would  have,  the  answer  was  no.  Whilst  this  response  is  a  bit  concerning  as  it  could  change someone’s appeals process, it was made clear that the Chief Magistrate’s role does not allow them to preside  over  many  cases  at  all  and  that  it  would  be  very  rarely  used,  if  ever.  Their  role  is  more administrative. This change also recognises the superiority of the dual commissioner position where the Chief Magistrate has already presided in higher courts. Our party is comfortable with this policy change, but again we reiterate our opposition to pensions for judges, magistrates and their families.

In relation  to  the  Royal Commission  into Family  Violence  recommendations,  it is  great to see  the government  continuing  to  acquit  recommendations  of  this  commission.  You  will  hear  our  party constantly  talking  about  the  fact  that  despite  200-plus  recommendations  and  around  $3.5 billion invested we are only seeing family violence grow. Our preference is for the fact that the more you give the ability for victim-survivors to come forward, the more family violence is likely to be reported—and this goes the same for the specialist police task force. However, towards the end of last year I met with a community legal service that has seen family violence cases increase year on year, and they have not received any relative funding. In fact whilst their wage growth has been 4 to 5 per cent year on year, their own government funding has only grown by 1 to 2 per cent. They are also risking funding cuts  for  their  early  intervention  and  collaborative  programs  with  health  services,  and  this  is  just inexplicable. Whilst we are spending billions on who knows what, we need to ensure that the funding that  allows  lawyers  to  help  victim-survivors  and  their  children  is  maintained.  This  is  all  the  more important when they are early intervention strategies that help victim-survivors flee safely. We also need  to  make  sure  there  are  effective  evaluations  to  make  sure  that  we  continue  to  fund  the  right programs and initiatives in Victoria.

In  terms  of  this  bill,  it  acquits  two  more  recommendations.  It  provides  for  victims  to  give  remote evidence for family violence matters in some circumstances, and it enables the Children’s Court to make its own rules for family law  matters so it can exercise parenting roles under the Family Law Act 1975,  which  the  Magistrates  Court  can  currently  do.  These  are  sensible  changes.  The  first recommendation continues what has been able to occur through COVID, and for all the pain, suffering and  damage  caused  by  the  pandemic  this  is  one  silver  lining—that  flexibility  has  been  offered  to victim-survivors during criminal proceedings. We welcome this change.

In relation to the Victims’ Charter Act sentencing indications, the bill also allows for a broadening of the allowance for higher courts to provide sentencing indications. They will be able to provide more information about the type of sentence they receive and the maximum total effective sentence, should they plead guilty—and on multiple occasions, not just once. Of concern is the removal of the need to get approval from the prosecution for subsequent sentencing indications. We found it quite difficult to establish a clear position on this as on the one hand anything we can do to clear the backlog of court cases should be welcomed, but this absolutely needs to be balanced with victims’ rights. We understand the victims of crime commissioner has subsequently been consulted on the bill after issuing a statement about her dissatisfaction with the lack of victim support.  We  thank  the  government  for  this  further  engagement  with  the  commissioner  and  for speaking to my office about this element of the bill also. It is imperative that we make clear that we want to reduce the  court backlog and  the lengthiness of  the  court cases,  and  we  maintain  that  this should not be done by making concessions on victim rights.

Derryn Hinch’s Justice Party amendments circulated by Mr GRIMLEY pursuant to standing orders.

Mr  GRIMLEY:  I  will  speak  briefly  on  these  amendments  now  and  in  more  detail  during  the committee of the whole. As members have been briefed by my office, these two amendments to this bill are both recommendations from the 2016 Victorian Law Reform Commission report on the role of victims in the criminal trial process. Whilst the government has done a good job on acting on a number of these, there are unfortunately several recommendations that have not been implemented. Specifically on my reading there are more than half a dozen that have not been implemented in relation to  victim  rights  alone.  I  am  seeking  to  acquit  two,  and  Ms Maxwell  will  seek  to  acquit  a  further recommendation which she will speak to you about later on. I am using the word ‘victim’ and not other terms as this is how it is defined under the act.

My first amendment is a mandate on the Director of Public Prosecutions to advise victims of their right to provide a victim impact statement. The second amendment will mandate the DPP to advise victims of their right to make a compensation or restitution order under divisions 1 and 2 of part 4 of the Sentencing Act 1991. With both these amendments the simple fact is that whatever is in the current regulations,  policies  and  legislation  dealing  with  victim  impact  statements  and  restitution  is  not working. These amendments are simple and straightforward and will further strengthen the rights of victims within the judicial process. You must remember: victims do not choose to be victims. That decision is made for them by offenders. These amendments give more control back to victims, which is so often cruelly taken away by perpetrators. I should mention as well that we know this happens at summary offence level with police as well, not just the Office of Public Prosecutions. However, given the Victims’ Charter Act relates to compliance by this agency only, I have restricted my amendments to the OPP, as otherwise they may not have been in the scope of this bill. I would, however, like to see both of these amendments considered for the police manual to ensure that all police notify victims of their rights as well. Despite these two amendments providing further progress for victims, we will still have the issue of the Victims’ Charter Act being a toothless tiger, as you have heard me say over and  over  again. I maintain this. There are no penalties or sanctions for any organisation that does not comply with the charter. In the OPP’s 2019–20 annual report, appendix 14, it states that there was only 80 per cent internal compliance with organisational policies relating to victim consultation. In real terms that is one in every five victims who is not being dealt with in accordance with the office’s own policies. In good news, though, their 2020–21 annual report shows signs of improvement in victim consultation. They had a compliance rate of 89.64 per cent. This is great, and I welcome the effort of the OPP to assist victims. However, we know that unless there is an explicit legislative requirement stating the demands on the OPP, they will be unlikely to enforce such requirements.

Thank you, and I commend this bill to the house.


Keep up with the latest
Western Victoria News.

Subscribe to my newsletter…

Enter your details to keep up to date with what I am doing in Parliament and in the community.