Hansard debates

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (16:35:10): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Justice Legislation Miscellaneous Amendments Bill 2019. Opening paragraphs In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Miscellaneous Amendments Bill 2019. In my opinion, the Justice Legislation Miscellaneous Amendments Bill 2019 (Bill), as introduced to the Legislative Assembly, 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: • amend the Supreme Court Act 1986 to provide the Supreme Court of Victoria with the power to make a group costs order, which would improve access to justice for plaintiffs bringing class actions in the Supreme Court; • amend the Local Government Act 1989 and the Magistrates’ Court Act 1989 to ensure the validity and enforceability of actions and decisions by improperly established Municipal Electoral Tribunals (METs) and affected reserve magistrates; and • make a number of minor and technical amendments to justice Acts to correct errors and clarify the operation of various provisions. New group costs orders Clause 5 will insert new section 33ZDA into the Supreme Court Act 1986, to allow the Supreme Court of Victoria to make a 'group costs order’ in a class action (an order that the legal costs payable to the law practice representing the lead plaintiff and group members be calculated as a percentage of any amount recovered in the proceedings, and that these costs be shared by the lead plaintiff and group members). Right to a fair hearing Section 24(1) of the Charter provides that a party to a civil proceeding has the right to have a proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right generally encompasses the established common law right of each individual to unimpeded access to the courts of the state, and may be limited if a person faces a procedural barrier to bringing his or her case before a court. The amendments made by Part 2 of the Bill will promote the right to a fair hearing, as they seek to improve access to justice by reducing barriers to commencing class actions in the Supreme Court. Currently, unless a law practice is willing to act on a 'no win, no fee’ basis or appropriate insurance can be obtained, if a class action is unsuccessful, the lead plaintiff risks being personally liable for meeting the defendant’s costs. The Victorian Law Reform Commission (VLRC) found that Victoria’s class action regime has been an effective means of providing access to justice, but that the regime is underutilised. The VLRC was of the view that allowing lawyers to receive a percentage of the settlement or award, in return for indemnifying the lead plaintiff for any adverse costs orders, and orders for security of costs, would improve access to justice by lowering the risk for a potential lead plaintiff. The new group costs order will allow plaintiff lawyers in class actions to receive a percentage (as set by the Court) of any amount recovered in the proceedings as payment for legal costs, and require them to indemnify the lead plaintiff for any adverse costs orders, or orders to give security for costs. The group costs order will also require all class members to share liability for the payment of legal costs if the litigation is successful. The amendments give the Court power to vary the percentage amount set at any stage in the proceedings, thereby ensuring fairness to class members. With the introduction of the group costs order, the Bill seeks to improve all group members’ right to a fair hearing and access to justice by removing the costs risk for the lead plaintiff. The group costs order regime also has potential to reduce the overall costs to group members in class actions, as a single fee will be payable to the plaintiff lawyers rather than a funding fee plus legal costs (as is payable to a litigation funder). MET and reserve magistrate amendments Clause 6 of the Bill will insert new section 252 into the Local Government Act 1989 to validate the decisions of Municipal Electoral Tribunals (METs) that were improperly established, and to provide affected persons with appropriate individual immunity. Clause 7 of the Bill will insert new sections 141 to 144 into the Magistrates’ Court Act 1989 to validate the decisions and acts of affected magistrates who continued sitting after their appointments expired, and to provide them with appropriate individual immunity. Right to a fair hearing Section 24(1) of the Charter provides the right to a fair hearing. Clauses 6 and 7 of the Bill do not engage the right to fair hearing because the METs and reserve magistrates would have been lawfully exercising their powers, functions or duties, but for the administrative errors that caused the irregularities in the METs’ establishment and reserve magistrates’ appointments. Members of the METs and reserve magistrates were appropriately qualified (as per their respective legislative requirements), and the METs and reserve magistrates were validly established and appointed (respectively) in the first instance. Further, the METs and affected reserve magistrates did not exercise their powers, functions or duties knowing that there were defects associated with their establishment or appointments. It should also be emphasised that the validation provisions are confined so as to apply only to acts and decisions that were made by METs and affected reserve magistrates during the period that their establishment or appointments were in question, and not for any other reason. For these reasons, I consider that clauses 6 and 7 do not engage the right to fair hearing. Amendments to the Criminal Procedure Act 2009 The Bill will amend the Criminal Procedure Act 2009 to: • clarify the intermediaries provisions on when a witness is considered to be cognitively impaired for the purpose of having an intermediary appointed; • clarify that certain forms of burglary are triable summarily; and • allow evidence of alleged offending committed during or solely in relation to a summary case conference or committal case conference to be admissible when prosecuting a person for that alleged offending. The Bill will also amend provisions that relate to sexual offence proceedings involving a complainant who is a child or cognitively impaired person, to: • clarify that a committal hearing cannot be held in any proceeding in which a child or person with a cognitive impairment is a complainant for a sexual offence charge; • allow the court in such cases to order the cross-examination of an adult complainant before trial; and • clarify that an accused may apply for leave to have an adult complainant cross-examined before trial about their sexual activities, other than those to which the charge in dispute relates. Right to recognition and equality before the law Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. 'Discrimination’ means different treatment on the basis of one or more of the attributes set out in section 6 of the Equal Opportunity Act 2010. Clause 8 amends section 389F(1) of the Criminal Procedure Act 2009, which provides that Division 2 of Part 8.2A applies to a witness who has a cognitive impairment at the time at which the proceeding commences. Clause 8 promotes the right to recognition and equality before the law under section 8 of the Charter by addressing an inconsistency and clarifying that where a witness is assessed to have a cognitive impairment at the relevant time, they should be able to benefit from the use of an intermediary (regardless of whether this assessment was made at the time at which the proceeding commenced). These amendments recognise the particular vulnerability of persons with a cognitive impairment by clarifying that intermediaries can be appointed in appropriate circumstances. The vulnerability of witnesses with a cognitive impairment is further recognised by Clause 13 regarding the abolition of committal hearings in sexual offence cases involving cognitively impaired complainants and child complainants. By clarifying that no committal hearing can be held and no witnesses may be cross-examined in any proceeding in which a child or person with a cognitive impairment is a complainant for a sexual offence charge, the Bill expedites the finalisation of these proceedings and reduces the exposure of vulnerable complainants to uncertainty and distress. The Bill also promotes equality before the law by allowing all accused persons to apply to have adult complainants in sexual offence proceedings cross-examined before trial. This addresses a current inconsistency whereby an accused’s ability to have an adult complainant cross-examined depends on whether or not the sexual offence proceeding also involves a child or cognitively impaired complainant. Right to protection of families and children Section 17(2) of the Charter provides that all children have the right, without discrimination, to be afforded protection that is in their best interest and needed by reason of them being a child. Clause 13 of the Bill promotes this right by clarifying that the abolition of committal hearings in sexual offence proceedings involving child complainants applies broadly. The amendment will protect children by expediting the finalisation of these proceedings and reducing the exposure of children to uncertainty and distress. This will allow a child complainant to move on from the legal process sooner. Right to a fair hearing Section 24(1) of the Charter provides the right to a fair hearing. Clause 8 of the Bill will promote the right to a fair hearing, as it seeks to ensure that the most reliable evidence is adduced from vulnerable witnesses, which in turn will result in a fairer hearing. Clause 13 clarifies that there can be no committal hearing in any proceeding in which a child or person with a cognitive impairment is a complainant for a sexual offence charge, including proceedings that also involve an adult complainant. This does not limit the right to a fair hearing, as cross-examination of adult complainants that would have occurred in a committal hearing is simply moved to the trial court to occur pre-trial pursuant to section 198A of the Criminal Procedure Act 2009. Rights in criminal proceedings Section 25(2) of the Charter prescribes a range of minimum guarantees for accused persons in a criminal proceeding, including that they be provided information in relation to their charge, access to legal representation and be tried without unreasonable delay. Allowing evidence of offending allegedly committed during, or solely in relation to, a case conference to be admissible in proceedings relating to that offending will not limit these rights. While the Bill will permit such evidence to be admitted against an accused in a proceeding, the usual laws of evidence will continue to apply to the proceeding. Evidence found by a court to be irrelevant, misleading or confusing, or unfairly prejudicial to the accused may be ruled inadmissible. In addition, the Bill will not affect an accused’s ability to prepare their defence, obtain legal representation or examine witnesses at a hearing for an offence they are alleged to have committed at a case conference. Finally, allowing such evidence to be admitted will not abrogate an accused’s privilege against self-incrimination. The Bill will advance an accused’s right to be tried without unreasonable delay in sexual offence proceedings involving a child or cognitively impaired complainant by clarifying that abolition of committal hearings applies broadly. This will expedite proceedings by ensuring that the case is listed earlier for trial and that pre-trial cross-examination, which now occurs in the trial court, is better confined to those facts that are in issue in the trial. Clauses 15 and 16 of the Bill promote the right of an accused to have witnesses examined, by allowing a court to order the cross-examination of adult complainants in sexual proceedings before trial, including in relation to their sexual activities. This will ensure that accused persons are given sufficient information to understand what the adult complainant will say at the trial and adequately prepare their defence. Right against retrospective criminal laws Section 27(2) of the Charter protects a person from being found guilty of a criminal offence because of conduct that was not an offence at the time it was engaged in. The Bill does not undermine this right by allowing evidence of alleged offending committed during or in connection with a summary case conference or committal case conference to be admissible in a prosecution for that offending. The effect of Clauses 12 and 14 is not to create a new criminal offence but to allow the admission of evidence that relates to the commission of an offence alleged to have occurred under existing law. Under the transitional provision in Clause 17, evidence will only be admissible in criminal proceedings relating to an offence that was allegedly committed on or after the date of commencement of clauses 12 and 14. Amendments to the Evidence Act 2008 The Bill amends the Evidence Act 2008 to provide that a postal article sent by prepaid post to an Australian address is taken to have been received on the seventh working day. This amendment reflects the same time period for the presumption of service by postal delivery in other jurisdictions. I am of the view that this minor amendment does not raise any Charter issues. Amendments to the Evidence (Miscellaneous Provisions) Act 1958 The Bill amends the Evidence (Miscellaneous Provisions) Act 1958 to provide that the County Court may make orders for evidence on commission in its own proceedings. Currently, parties must apply to the Supreme Court for an order to allow evidence to be taken on oath or affirmation outside of court, which is an unnecessary and burdensome step. I am of the view that this minor amendment does not raise any Charter issues. Amendments to the Oaths and Affirmations Act 2018 The Bill makes minor amendments to the Oaths and Affirmations Act 2018 to clarify that certain offences in the Act are indictable offences. I am of the view that these minor amendments do not raise any Charter issues. Amendments to the Professional Standards Act 2003 The Bill amends the Professional Standards Act 2003 to allow the Victorian Professional Standards Council to delegate functions to any person employed pursuant to Part 3 of the Public Administration Act 2004. I am of the view that this minor amendment does not raise any Charter issues. Minor statute law revision in the Sentencing Act 1991 The Bill makes minor statute law revision amendments to the Sentencing Act 1991. I am of the view that these minor technical amendments do not raise any Charter issues. The Hon Jill Hennessy MP Attorney-General