Hansard debates

Ordered that second-reading speech, except for statement under section 85(5) of the Constitution Act 1975, be incorporated into Hansard on motion of Ms PULFORD (Minister for Agriculture).

Ms PULFORD (Minister for Agriculture) — I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017 will make a range of amendments to support the implementation of a new court security model and improve the operation of the criminal and civil justice system.

Court Security Act amendments

The government is committed to ensuring that all Victorians, whether in metropolitan or regional locations, have access to modern, safe and secure courts.

As was evident in the Royal Commission into Family Violence report, if courts are not safe, victims of family violence will not be willing to seek redress through the justice system.

The proper and efficient administration of justice depends on courts having effective security arrangements in place, so that security incidents can be responded to effectively and disruptions to proceedings can be minimised.

There are significant challenges in ensuring that our courts are safe. People attending court can be distressed, angry or vulnerable. We know that some perpetrators of family violence use their court attendance as an opportunity to further intimidate and threaten victims.

The government recognises the need for a modern, system-wide model of court security, and this is why we committed $58.1 million over four years in the 2016–17 state budget to deliver a new court security model and asset upgrades across Victoria's metropolitan and regional courts.

The new court security model will ensure that all Victoria's courts, including in our regional locations, have entry screening capability and an increased private court security officer presence. This year, Court Services Victoria will roll out a new integrated statewide contract to significantly increase the number of private court security officers, and will install entry screening equipment at a number of courts where it is not currently available.

This model will help keep all court users safe and increase public confidence in the justice system.

The bill makes amendments to the Court Security Act 1980 (Court Security Act) to support the increased use of private court security officers as part of the new court security model.

Court 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 the bill.

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

Under the Court Security Act, authorised officers already have a range of powers to ensure the safety of persons and the good order of legal proceedings at court premises. Authorised officers may require persons on court premises to undergo screening and frisk searches, provide personal identification information and surrender prohibited items.

The bill will provide new powers for authorised officers to give directions in particular circumstances, and clarify the permissible use of force that may be used by authorised officers.

Directions powers for safety and good order

Currently, where a person is creating a security risk on court premises, an authorised officer may respond by seeking to remove the person from the premises, but there is no express power to direct the person to stop engaging in particular behaviour.

The bill enables an authorised officer to give reasonable directions for the purpose of maintaining or restoring the security, good order or management of court premises.

This direction power, and the accompanying offence for non-compliance, will support the de-escalation of security incidents in a way that minimises disruption to court proceedings. The bill also enables an authorised officer to direct a person to do, or refrain from doing, a specified act when escorting another person to or from court premises. This will help ensure that a vulnerable person, such as a victim of family violence, can be safely escorted to and from transport and reduce the risk of the person being subjected to threats or physical harm from another person.

Directions powers in relation to unauthorised recordings, transmission and publications

The Court Security Act contains existing offences that prohibit the making of unauthorised recordings, transmissions and publications, and empowers authorised officers to seize a prohibited item, which includes an item that is likely to affect adversely the security, good order or management of the court premises.

These days many of us routinely carry recording and transmission devices in the form of our smart phones.

The bill provides authorised officers with an additional tool to respond to the making of unauthorised recordings, transmissions and publication that may be deployed when a reminder about the statutory offences has been ineffective.

The bill provides a power for an authorised officer to give particular directions where a court user is suspected of making an unauthorised recording, transmission or publication. For example, an authorised officer may direct a person to stop making a recording, or to delete a recording where it is suspected that the person has made, or is making, an unauthorised recording.

Consistent with the other new directions powers, it will be an offence for a person not to comply with a direction, if the person makes an unauthorised recording, transmission or publication.

Clarifying use of force

The Court Security Act expressly authorises the use of force in relation to the exercise of some powers, including in undertaking searches. However, there is no express authorisation for the use of force in relation to other powers, for example, in seizing a prohibited item from a person.

The bill clarifies that reasonable force may be used by an authorised officer in the exercise of the following powers:

undertaking searches;

enforcing directions of authorised officers;

preventing people entering, or removing people from, court premises;

seizing prohibited items; and

ensuring the safety of an escorted person or the authorised officer while the escorted person is being escorted to or from court premises.

These clarifications will ensure that authorised officers have clear authority to use reasonable force to ensure the safety and security of persons at court premises.

As outlined in the statement of compatibility, there are a range of legislative, contractual and operational safeguards that will apply in relation to the exercise of powers by authorised officers under the new court security model. These include the application of the Charter of Human Rights and Responsibilities Act 2006 and the Ombudsman Act 1973, to the actions of authorised officers engaged under the Court Security Act. In addition, contractual requirements will apply to private court security officers, such as reporting and complaints management, and qualification and training.

The Court Security Act provides for courts to appoint authorised officers and enter into arrangements for the provision of security services to courts. The bill will also enable the chief executive officer (CEO) of Court Services Victoria (CSV) to appoint authorised officers under section 2A of the Court Security Act, and it will enable CSV to enter into agreements for the provision of court security services for the Supreme, County, Magistrates, Children's and Coroners courts, the Victorian Civil and Administrative Tribunal (VCAT) and the Victims of Crime Assistance Tribunal. These amendments recognise CSV's responsibility for administrative support for the courts and VCAT, and will provide administrative efficiencies, particularly as there will be an integrated contract for private court security officers for the courts and VCAT.

These amendments will support the new court security model, and help ensure that our courts are safer for all Victorians.

Juries reforms

The bill will also amend the Juries Act 2000 to implement a number of key recommendations made by the Victorian Law Reform Commission in its Jury Empanelment report (2014).

The Victorian Law Reform Commission identified issues of potential discrimination in the jury empanelment process, and recommended reducing the number of peremptory challenges available to parties in criminal and civil trials. A peremptory challenge is a challenge made by a party to exclude a prospective juror from a jury, where that party does not need to provide a reason for making the challenge. Peremptory challenges can serve to improve parties' confidence in juries by providing a mechanism by which biased or unwilling potential jurors are excluded. However, peremptory challenges can also be used to reduce the representativeness of juries, and facilitate discriminatory, stereotype-based judgements. In particular, peremptory challenges are disproportionately used against potential female jurors, compared to potential male jurors, in criminal trials. Adopting the commission's recommendation, the bill will reduce the number of peremptory challenges available to parties in criminal and civil trials, and the number of stand asides available to the Crown will be reduced in an equivalent manner. The bill will also make a minor amendment to provide that an accused can voice their challenge personally or through their legal representative in criminal proceedings.

The bill will create a presumption for jury empanelment to occur by number, to establish a consistent empanelment practice and further reduce the potential for discrimination during the empanelment process. Courts will retain a discretion to empanel using jurors' names, if it is in the interests of justice to do so.

Additionally, the bill will insert some statutory criteria to guide a court's discretion to empanel additional jurors, so as to improve courts', practitioners' and jurors' understanding of the possible need for additional jurors and the subsequent balloting off process.

The bill will also make some minor machinery changes.

Appeal Costs Act amendments

The bill will make a number of changes to improve the efficient operation of the appeal costs scheme. The Appeal Costs Board administers the scheme, which partially compensates litigants who suffer loss and incur legal costs arising from judicial error or other specific circumstances.

The bill will make it easier for an appellant to request direct payment from the Appeal Costs Board, after the applicant has taken reasonable steps to try to obtain payment from the other party. The bill will remove the requirement for the applicant to provide information regarding the financial capacity of the other party.

The bill will also allow courts to grant an indemnity certificate with a more limited ambit in certain circumstances. An indemnity certificate with a more limited ambit would be expressed as applying to limited or specific costs of an appeal, allowing the courts to take account of relevant circumstances, such as the parties' conduct in trial, when granting an indemnity certificate.

The bill will also enhance the clarity of the scheme by replacing outdated references, clarifying tests, and making minor amendments to improve the ability of the Appeal Costs Board to make decisions and conduct meetings.

Land Acquisition and Compensation Act 1986 amendments

The Land Acquisition and Compensation Act 1986 establishes procedures for the compulsory acquisition of interests in land and for the determination of how much compensation is payable for those interests. The bill will make minor amendments to the provisions in the act regarding the correct forum for determining relevant disputes over the amount of compensation payable. The bill will not alter a person's entitlement to, or the calculation of, compensation.

The bill will amend the outdated jurisdictional threshold, which was inserted in 1986 and has not been increased since that time. Presently, the Victorian Civil and Administrative Tribunal generally hears disputed claims with an amount in dispute not exceeding $50 000, while parties can choose between the tribunal and the Supreme Court for claims above that amount. The bill will increase the $50 000 jurisdictional threshold to $400 000, to reflect the change in property values since 1986.

At the same time, the bill will insert a case transfer mechanism to enable proceedings to be transferred from one jurisdiction to another.

Statutory fee reimbursement presumption

In 2014, the Victorian Civil and Administrative Tribunal Act 1998 was amended to introduce a presumption in certain civil proceedings that a party who has substantially succeeded against another party is entitled to be reimbursed by the unsuccessful party for any fee paid in the proceeding, unless the Victorian Civil and Administrative Tribunal orders otherwise.

Presently, that presumption does not apply to planning enforcement proceedings, thereby discouraging local councils from taking action to enforce contraventions of planning laws. The bill will remove this disincentive and extend the statutory fee reimbursement presumption to enforcement proceedings under the Planning and Environment Act 1987.

Regulation of approved barristers' clerks

The bill will provide the Victorian Legal Services Board ('board') with greater power to safeguard clients' trust money that is handled by barristers' clerks. It will grant the board power to approve a clerk to receive trust money on behalf of a barrister in advance of legal services being provided. This power currently resides with the Victorian Bar. The board will need to be satisfied that the clerk is a 'fit and proper' person to receive trust money. The board will also be empowered to revoke or suspend its approval of a clerk, or to appoint a trust account supervisor to an approved clerk. A clerk who is refused approval, whose approved status is revoked or suspended, or to whom a trust account supervisor is appointed, will have a right to seek merits review of the decision of the board in the Victorian Civil and Administrative Tribunal. A barrister or any other person whose interests might be adversely affected by a decision to appoint a trust account supervisor will also be able to seek merits review.

Technical amendments as a consequence of traditional owner settlement amendments

The bill makes technical amendments to the Forests Act 1958, the Wildlife Act 1975 and the Fisheries Act 1995 to achieve the intended effect of the recent Traditional Owner Settlement Amendment Act 2016 (amendment act). The amendment act intended to provide that certain offences under these three acts did not apply to a subset of 'agreed activities', but inadvertently 'switched off' all offences concerning 'agreed activities' set out in regulations under these three acts.

These technical amendments will ensure that the amendment act operates as intended.

Miscellaneous amendments

The bill will also make a range of minor amendments to court and tribunal statutes, and associated statutes, to:

harmonise some provisions in court statutes governing the leave to appeal and appeals process, as a consequence of the new civil appeals regime introduced into the Court of Appeal;

amend certain statutory time frames to accommodate Australia Post's revised delivery times;

enable judicial registrars to undertake certain case transfer functions in the Supreme, County and Magistrates courts;

empower both the Magistrates Court and the Children's Court to make rules to improve the process for the return of warrants;

add certain heads of jurisdiction to the board of the Judicial College of Victoria; and

provide clear authority for the Chief Magistrate to be paid out accrued sabbatical and long service leave entitlements, consistent with other judicial officers who are eligible to receive a judicial pension.

Statute law revisions

The bill will also make various statute law revisions to correct a number of ambiguities, minor omissions and errors found in statutes.

Section 85(5) of the Constitution Act 1975

Ms PULFORD — I wish to make a statement under section 85(5) of the Constitution Act 1975.

Appeal Costs Act 1998

It is the intention of clause 28(2) of this bill to alter or vary section 85 of the Constitution Act 1975. I therefore wish to make a statement under section 85(5) of the Constitution Act 1975 setting out the reasons for altering or varying that section. Clause 29 of this bill is included to satisfy the requirements of section 85 of the Constitution Act 1975 in respect of changes effected by clause 28(2).

Clause 26 of the bill inserts new section 31A into the Appeal Costs Act 1998 to provide that a court may grant an indemnity certificate of a more limited ambit in certain circumstances. The new section 37(3), inserted by clause 28(2), provides that parties cannot appeal a decision to grant a limited ambit indemnity certificate. This restriction will limit the jurisdiction of the Supreme Court and engage section 85 of the Constitution Act 1975.

Restricting appeals against a court's decision to grant a limited ambit indemnity certificate is consistent with the existing framework of the act. Section 37(2) of the Appeal Costs Act 1998 already restricts parties from appealing the grant or refusal of indemnity certificates which are not limited; this restriction also engaged section 85 of the Constitution Act 1975. It is appropriate to similarly restrict appeals against these new limited ambit indemnity certificates to allow costs issues to be resolved expeditiously, and to avoid an unnecessary burden on the courts.

During the debates on the Appeal Costs Bill 1998, the Honourable Jan Wade, the then Attorney-General, explained that the restriction on bringing appeals would prevent the further escalation of costs. As part of the Attorney-General's section 85 statement, she advised that:

[a] major objective of the bill is to reduce the impact on litigants of the costs of appeals. It would be undesirable if, in carrying out this objective, the bill were to provide an opportunity to bring further appeals. (Hansard, Legislative Assembly, Thursday, 8 October 1998, pp 458–459).

Land Acquisition and Compensation Act 1986

It is the intention of clauses 34 and 36 of this bill to alter or vary section 85 of the Constitution Act 1975. I therefore wish to make a statement under section 85(5) of the Constitution Act 1975 setting out the reasons for altering or varying that section. Clause 39 of this bill is included to satisfy the requirements of section 85 of the Constitution Act 1975 in respect of changes effected by clauses 34 and 36.

Clauses 34 and 36 of the bill amend section 81 of the Land Acquisition and Compensation Act 1986, and insert a new section 84A into that act, to update the threshold amount and insert a flexible mechanism for transferring proceedings between the Victorian Civil and Administrative Tribunal and the Supreme Court.

The existing section 81 of the Land Acquisition and Compensation Act 1986 provides that the tribunal must determine disputed claims with an amount in dispute not exceeding $50 000, absent questions of general importance or unusual difficulty arising from the claim. For amounts in dispute exceeding $50 000, parties can elect for either the tribunal or the Supreme Court to determine the claim.

The bill will amend section 81 to update the amount in dispute from $50 000 to $400 000 so that claims with an amount in dispute not exceeding $400 000 will generally be determined by the tribunal, while parties will have a choice between the tribunal or the court for an amount in dispute exceeding $400 000.

While section 81, concerning the amount in dispute and a party's election, will often be a guide to the 'appropriate' jurisdiction, there might be other circumstances which make it appropriate for a disputed claim to be transferred between the two jurisdictions (for example, it might become evident there is an associated proceeding in the other jurisdiction). Consequently, the bill will further amend section 81 by replacing the 'general importance or unusual difficulty' test in section 81(1)(c) with a mechanism for the discretionary transfer of proceedings between the two jurisdictions.

The bill will insert a new section 84A, providing for the transfer of a proceeding, or part of a proceeding, between the two jurisdictions. As part of the transfer mechanism, the bill will provide that a party cannot appeal a case transfer decision made by the tribunal or the court, so as to avoid protracted litigation on interlocutory matters.

The reason for limiting the jurisdiction of the Supreme Court in the ways just described is to facilitate the resolution of disputed claims in a just and cost-effective manner. In relation to section 81(1), the amount in dispute of $50 000 was set in 1986 and has never been updated, notwithstanding the increase in property values since that time. Increasing the amount in dispute to reflect the increase in property values will ensure that disputed claims are dealt with in civil proceedings in a manner proportionate to the size and importance of the issues in dispute. It would thwart the dispute resolution process if, absent some special factor, a disputed claim of $50 000 could be taken to the Supreme Court. Additionally, for the new section 84A, in order to prevent an escalation of costs and reduce delays in resolving claims, it is appropriate that a case transfer decision should not be appealable.

I commend the bill to the house.

Debate adjourned on motion of Mr RICH-PHILLIPS (South Eastern Metropolitan).

Debate adjourned until Friday, 30 June.