Hansard debates

Ms PULFORD (Minister for Agriculture) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (charter), I make this statement of compatibility with respect to the Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017 (bill).

In my opinion, the bill, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

The bill will make a range of amendments to support the implementation of a new security model for Victoria's courts and tribunals, improve the operation of the criminal and civil justice system, and make various other minor amendments.

Court security amendments

The bill amends the Court Security Act 1980 (Court Security Act) to support the implementation of a new security model for Victoria's courts and tribunals. The security model will deliver an increased and more highly trained private security officer presence across Victoria's court network.

It is proposed that these private security officers will be appointed as authorised officers under the Court Security Act and will hold existing powers as well as proposed new powers of authorised officers under that framework.

The bill clarifies and expands the powers of authorised officers to ensure they can prevent and respond to security incidents adequately and appropriately.

Right to life (section 9), protection from torture and cruel, inhuman or degrading treatment (section 10), freedom of movement (section 12), bodily privacy (section 13) and liberty and security of person (section 21)

Amendments to the Court Security Act that clarify and expand the circumstances where authorised officers may use force potentially engage the right to life (section 9), the right to protection from torture and cruel, inhuman or degrading treatment (section 10), the right of freedom of movement (section 12), the right to bodily privacy (section 13), and the right to liberty and security of person (section 21).

The Court Security Act expressly authorises the use of force in relation to the exercise of some powers of authorised officers, including:

in undertaking searches; and

in preventing a person entering, or removing a person from, court premises, where a person does not comply with certain requests of an authorised officer under the Court Security Act.

However, there is no express authorisation for authorised officers to use force in relation to other powers, for example, in exercising the power to seize a prohibited item or in exercising the power to prevent a person entering court premises, where the person is likely to adversely affect the security, good order or management of court premises. The bill makes amendments to enable the use of reasonable force in these circumstances.

The bill also enables the use of reasonable force to ensure the safety of an escorted person or an authorised person when the escorted person is being escorted to or from court premises, and to enforce a direction of an authorised officer.

The proposed use of force powers in the bill place reasonable limits on these human rights, as they are circumscribed by a legislative framework and are necessary to uphold the security, safety and good order of Victoria's courts. Authorised officers require clarity about when they can use force in the exercise of their powers to enable them to respond in the most appropriate way to security incidents that threaten the safety of court users.

There are adequate safeguards and strong policy grounds for enabling the proposed use of force by authorised officers.

The amendments to clarify and enable the use of force by authorised officers help ensure that the use of force will only occur when it is reasonable to enable the exercise of a power of an authorised officer. The effective exercise of these powers is critical to ensuring the safety of people on court premises and to minimise disruptions to the administration of justice by the courts. The bill provides that force, which is exercised by the authorised officer must be reasonable. The proposed powers align with human rights principles by permitting the use of force for specific purposes which are aimed at ensuring the safety and security of people on court premises.

The training provided to private security officers, as part of the new court security model, will ensure they exercise their powers in an appropriate and proportionate way, with a focus on de-escalation strategies, human rights and the use of force as a last resort. Private court security officers appointed as authorised officers will undertake training that will ensure that they are supported to use their authorised officer powers, and manage their equipment, such as batons and handcuffs, lawfully and appropriately. Police, protective services officers and police custody officers are also subject to comprehensive and ongoing training in relation to their powers.

In exercising all powers under the Court Security Act, an authorised officer, as a public authority for the purpose of the Charter of Human Rights and Responsibilities Act 2006, will be subject to the obligations in section 38 of the act to act compatibly with human rights.

Under the new court security model, the private security company engaged under the Court Security Act will also be subject, through the contractual arrangements, to performance monitoring and reporting and be required to have a complaints management system. Further, the Ombudsman may investigate the administrative actions of a contractor that has entered an agreement to provide court security services under the Court Security Act.

The complaints and disciplinary framework under the Private Security Act 2004 will also apply, as private court security officers, appointed as authorised officers, will be required to be licensed security guards under that act. Police and protective services officers are subject to the complaints and investigation process under the Victoria Police Act 2013.

Freedom of movement and right to fair hearing (sections 12 and 24)

The powers of authorised officers to direct persons and respond to a contravention of a direction, may limit a person's right of freedom of movement (section 12).

These powers might also engage the right of a person charged with a criminal offence or a party to a civil proceeding to have the charge or proceeding decided after a fair and public hearing (section 24), for example, if members of the public were prevented from being present at hearing. To the extent that the fair and public hearing might be impacted by an authorised officer preventing members of the public being present in a proceeding, the bill does not provide for closed hearings and only enables an authorised officer to prevent a member of the public being present at a hearing where this is for the purpose of maintaining the security, good order or management of court premises.

The bill amends the Court Security Act and enables authorised officers:

to give directions for the safety, security and order of courts, including to direct that a person cease harassing another court user or behaving violently;

to give directions, when escorting a person to and from court premises, for the purpose of ensuring the safety of the escorted person or the authorised officer; and

to give directions to a person where the authorised officer reasonably suspects that an unauthorised recording, transmission or publication is being made.

The bill enables an authorised officer to prevent a person from entering the court premises, or remove the person from the court premises, if the person has not complied with a lawful, reasonable direction of an authorised officer.

The bill also enables an authorised officer to use reasonable force to prevent a person contravening a direction.

A direction may only be made by an authorised officer for specific purposes that aim to uphold the safety of court users and the security and order of court premises. It is also appropriate and justified that a person be able to be removed from, or prevented from entering, court premises, where the person has not complied with such a direction. This power is critical to ensuring that order and safety can be maintained in a court. As discussed above, the bill provides that any force that is used in preventing the contravention of a direction or preventing a person entering, or removing a person from, court premises will be reasonable force. Authorised officers will have training in managing conflict, problem solving, human rights and de-escalation, which will ensure that any limits on a person's freedom of movement will only occur when lawful, necessary and appropriate. Further, the restriction on a person's freedom of movement is appropriately circumscribed, as it only applies when a reasonable direction is given for a specific purpose in relation to persons on, or being escorted to or from, court premises. The oversight mechanisms I discussed in relation to the use of force also apply.

Freedom of expression (section 15)

Section 15(2) of the charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

There are existing offences in the Court Security Act that make it an offence for a person to make an unauthorised recording, transmission or publication of court proceeding. There are several exemptions in the Court Security Act that enable a recording, transmission or publication to be made, for example, where it is permitted by a judicial officer. There are also standing exemptions for representatives of news media and legal representatives to make recordings for certain purposes, which are subject to any direction of a judicial officer.

The right to freedom of expression is relevant to these existing offences, and to the power in the bill for an authorised officer to give a direction for a person to stop making a recording, transmission or publication or to delete an unauthorised recording, where the authorised officer reasonably suspects that an unauthorised recording, transmission or publication of a proceeding is being, or has been, made. While it will be an offence under the bill for a person not to comply with such direction, it will not be an offence if the recording, transmission or publication is authorised.

Section 15(3) of the charter provides that the right of freedom of expression may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health and public morality. Further, in Magee v. Delaney [2012] VSC 407, the Supreme Court held that what constitutes a protected form of expression under section 15 of the charter is limited by public policy considerations inherent in the nature of a free and democratic society.

It is appropriate that judicial officers have powers to restrict the recording, transmission or publication of proceedings, consistent with their powers to make suppression orders under the Open Courts Act 2013. Restrictions on recordings, transmission or publications are justified in certain circumstances, for example, to prevent prejudice to the proper administration of justice, including a person's right to a fair trial, or to protect the safety of a person. The proposed directions power for authorised officers, and the accompanying offence for non-compliance, will help ensure the enforcement of such restrictions on recordings, transmissions or publications.

Right to privacy (section 13)

Under the bill, where an authorised officer reasonably suspects that an unauthorised recording, transmission or publications of a proceeding is being, or has been, made, the officer may direct a person to permit the officer to view the recording, transmission or publication on the device. Such a direction engages the right to privacy as it requires a person to show an authorised officer particular content on a device. However, any interference with the right to privacy as a result of this power is lawful and not arbitrary. This power is only exercisable where the authorised officer reasonably suspects that a person is making or has made an unauthorised recording, transmission or publication, and supports the enforcement on the existing restrictions on the making of unauthorised recordings, transmission and publications.

Consequential amendments to natural resources legislation

Distinct cultural rights of Aboriginal people (section 19(2))

Section 19(2) of the charter provides that Aboriginal people hold the distinct cultural rights and must not be denied the right to enjoy their identity and culture, and to maintain their language and kinship ties. Section 19(2) also recognises that Aboriginal people in Victoria have a distinctive, material and economic relationship with the lands and waters, and a right to maintain that relationship.

The bill makes technical amendments to the Forests Act 1958, Wildlife Act 1975 and Fisheries Act 1995, in order to achieve the intended effect of the Traditional Owner Settlement Amendment Act 2016 (amendment act). The amendment act provided that certain offences under the Forests Act 1958, Wildlife Act 1975 and Fisheries Act 1995 did not apply to the carrying out of 'agreed activities' by a member of a traditional owner group in accordance with a 'natural resource agreement' under part 6 of the Traditional Owner Settlement Act 2010 (TOS act).

However, the amendment act inadvertently 'switched off' all offences in regulations made under the Forests Act, Wildlife Act and Fisheries Act, in relation to 'agreed activities', including public safety offences. The bill provides a mechanism for certain offences, such as public safety offences, to continue to apply to the carrying out of 'agreed activities' by a member of a traditional owner group in accordance with a 'natural resource agreement' under part 6 of the TOS act.

The amendment act enhanced the distinct cultural rights of Aboriginal persons in Victoria by increasing the access and use of natural resources across different public land categories, by increasing the number of exemptions to offences that may prevent the exercise of natural resource rights and by permitting members of traditional owner groups to access and use natural resources on land owned by them or their traditional owner group entity. The proposed amendments to the Forests Act, Wildlife Act and Fisheries Act do not diminish these enhancements.

Juries amendments

The right to a fair hearing, as outlined in section 24 of the charter, is relevant to the juries amendments. Section 24(1) provides for the right to a fair hearing from a 'competent, independent and impartial court or tribunal'.

Fair hearing (section 24)

The bill amends the Juries Act 2000 to reduce the number of peremptory challenges to prospective jurors in criminal and civil trials, although that reduction will not limit the right to a fair hearing.

In its Jury Empanelment report (2014), the Victorian Law Reform Commission identified concerns that the existing number of peremptory challenges can be used to distort the representativeness of juries, and noted that overseas jurisdictions such as the United Kingdom had progressively abolished these challenges.

In criminal proceedings, peremptory challenges provide an opportunity for the accused to participate in the jury empanelment process.

While the bill reduces the number of challenges available to the accused in criminal trials and to parties in civil trials, challenges tend to be based on characteristics and appearance of the potential juror, facilitating stereotype-based judgements which distort the jury composition.

Additionally peremptory challenges, in both criminal and civil trials, will not be abolished entirely. There will still be some provision to exclude jurors who are unwilling or unable to serve, or jurors perceived as biased based on the behaviour of the prospective juror during the empanelment process.

Appeal costs amendments

Property rights (section 20)

Section 20 of the charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public and are formulated precisely.

In relation to the Appeal Costs Board scheme, currently, a court must either refuse to grant an indemnity certificate, or grant an indemnity certificate without written limitations or specifications. The bill amends the Appeal Costs Act to provide a court with the power to grant an indemnity certificate of a more limited ambit in certain circumstances. An indemnity certificate creates an entitlement for an appellant in civil or criminal proceedings to be paid by the Appeal Costs Board for costs thrown away.

As this amendment affects the entitlement of parties to be paid by the Appeal Costs Board through an indemnity certificate, it may arguably be relevant to the property rights stated in section 20 of the charter.

If it is considered that this amendment limits property rights under section 20 of the charter, the limit is reasonable and demonstrably justified. Providing the courts with the power to grant an indemnity certificate of a more limited ambit can ensure that applicants who are deserving of a partial certificate are not completely deprived of an indemnity certificate. It enhances the fairness and clarity of the scheme in circumstances where it is not appropriate to provide the full benefit of an indemnity certificate to an applicant.

Fair hearing (section 24)

The bill amends the Appeal Costs Act 1998 to provide that, in certain circumstances, a court may grant an indemnity certificate of a more limited ambit. Parties will not be able to appeal a court's decision to grant or refuse a limited indemnity certificate. This restriction to appeal is relevant to the right to a fair hearing. While it does limit the options for a party to appeal, the decision to grant an indemnity certificate is made by the Supreme Court or the County Court (as the case requires), which are competent, independent and impartial bodies.

Moreover, the proposed restriction on appeals will not exclude the Supreme Court's supervisory jurisdiction to grant relief where a court's decision is infected by jurisdictional error.

Even if it is considered that this appeal restriction affects the right to a fair hearing, any resulting limitation is reasonable and demonstrably justified. The proposed restriction on appeals replicates the existing framework of the act, which already contains a restriction on appealing the grant of existing indemnity certificates, and helps to prevent the escalation of costs. This restriction will allow costs payments to be resolved expeditiously, and will alleviate unnecessary burdens on the courts. As recognised by Parliament during the original enactment of the principal act, it would be undesirable for the act to create an opportunity to bring further appeals and incur costs, when the objective of the act is to reduce the impact of the costs of appeals on litigants.

Land acquisition and compensation amendments

Fair hearing (section 24)

The bill amends the Land Acquisition and Compensation Act 1986 to update the jurisdictional threshold to reflect changes in property values and insert a case transfer mechanism. Generally, a disputed claim must be determined in the Victorian Civil and Administrative Tribunal if the matter falls within the jurisdictional threshold, while a party has a choice to be heard in either the tribunal or the Supreme Court if the claim is above the threshold. The jurisdictional threshold will be increased, as it has not changed since it was set in 1986. At the same time, the bill will insert a mechanism to enable the transfer of proceedings between the two jurisdictions, but with a restriction on appealing transfer decisions so as to avoid protracted litigation on interlocutory issues. The minor amendments will not limit the right to a fair hearing, as parties to disputed claims, which are civil proceedings, will continue to have their claims determined in a fair and public hearing. The amendments will not reduce the ability of parties to bring disputed claims for determination, but merely impact on the jurisdiction in which a disputed claim is heard.

Victorian Civil and Administrative Tribunal statutory fee reimbursement presumption

Fair hearing (section 24)

The bill amends a statutory fee reimbursement presumption in the Victorian Civil and Administrative Act 1998, which will enhance the right to a fair hearing by removing a disincentive for local councils to bring planning enforcement proceedings. This amendment extends the statutory presumption for fee reimbursement in certain Victorian Civil and Administrative Tribunal proceedings to also apply to planning enforcement proceedings.

Legal profession amendments

Section 6 of the Legal Profession Uniform Law Application Act 2014 overrides the charter in respect of the Legal Profession Uniform Law (uniform law), and bodies performing functions or exercising powers under the uniform law. However, statements of compatibility are still required for any bills that amend the uniform law.

Fair hearing (section 24)

The bill amends the Legal Profession Uniform Law Application Act to make changes to the regime of 'approved clerks', who receive trust money on behalf of Victorian barristers on account of legal costs in advance of the provision of legal services. The bill will provide that the Victorian Legal Services Board (instead of the Victorian Bar as is currently the case) may approve a person to be an approved clerk. The Victorian Legal Services Board will have the power to suspend or revoke an approval. The right to fair hearing will not be limited because the board must give notice of its intention to revoke or suspend an approval and give the approved clerk an opportunity to respond, and because an approved clerk whose licence is suspended or revoked will have the right to seek a review of the board's decision by the Victorian Civil and Administrative Tribunal.

Right to privacy (section 13) and property rights (section 20)

The bill will provide that the Victorian Legal Services Board may appoint a supervisor of trust money to supervise the handling of trust money by an approved clerk. A supervisor of trust money will have the powers of the approved clerk in relation to trust money, and will have a variety of related powers to ensure that it is capable of adequately protecting trust money.

Such powers may engage the property rights under section 20 and the right to privacy under section 13, because they will empower the supervisor to:

enter and remain on premises used by the approved clerk (and may, where refused consent or where the premises are unoccupied, use whatever appropriate force is necessary to enter the premises and may be accompanied by a member of the police force to assist entry);

take possession of any relevant material and retain it for as long as may be necessary; and

require the approved clerk to give the supervisor access to files, documents, and information.

However, the powers are subject to a number of important safeguards and limits:

if a supervisor takes anything from the premises, the supervisor must issue a receipt and must return any material as soon as it is no longer required;

the supervisor may only enter and remain on premises during normal business hours or otherwise with consent; and

the supervisor must not enter premises without having produced their notice of appointment and a form of identification.

In addition, the supervisor's role in managing the affairs of the approved clerk will be expressly limited to managing accounts and records that relate to trust money received by the approved clerk or that are otherwise required to be maintained by the approved clerk.

The right to privacy will not be limited, because the exercise of these powers by a supervisor will not be unlawful (as it will be authorised by legislation) and will not be arbitrary (as it will be for the purpose of protecting trust money held by approved clerks). Also, the supervisor will only be able to enter unoccupied premises or premises without consent where the supervisor considers that entry is necessary to prevent destruction of documents or for another urgent reason. Similarly, the property rights under section 20 will not be limited, because any removal of an approved clerk's property will be in accordance with the law, and will be suitably constrained to achieve the primary purpose of protecting clients' trust money.

The Hon. Gayle Tierney, MP
Minister for Corrections