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Legislative Assembly

28 February 2012
Statement of Compatibility


                           Statement of compatibility
Mr  CLARK  (Attorney-General)  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  act),  I  make  this  statement   of
  compatibility  with  respect  to  the   Evidence  (Miscellaneous   Provisions)
  Amendment (Affidavits) Bill 2012.
  In my opinion, the Evidence (Miscellaneous Provisions) Amendment  (Affidavits)
  Bill 2012, as  introduced to the Legislative  Assembly, is compatible with the
  human rights 

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protected by the charter act. I base my opinion on the reasons outlined in this statement. Overview of bill The purposes of the bill are to: amend the Evidence (Miscellaneous Provisions) Act 1958 (the act) to deem effective any affidavit made before 12 November 2011 for which certain procedural requirements were not complied with; deem valid any warrant, summons or other process issued, or order made, in reliance on affidavits deemed to be effective pursuant to the bill; and create a new offence of making a false or misleading statement as to the circumstances in which an affidavit was sworn or affirmed, in relation to affidavits made after commencement of the bill. Human rights issues The effect of the bill is to validate affidavits made before 12 November 2011 that are tainted by certain procedural defects, and any warrant, summons or other process issued, or order made, in reliance on those affidavits. This validation in and of itself does not limit human rights. It does, however, have the result that interferences with human rights that may have otherwise been unlawful (due to being based on affidavits not made lawfully) are now lawful in retrospect. For example, the execution of a search warrant may engage the rights to privacy and property, and the execution of an arrest warrant will engage the right to liberty. However, interferences with these rights only require justification in circumstances where the relevant interference is 'unlawful' or 'other than in accordance with law'. The rights are not prescriptive as to the content of the laws governing the form of affidavits, or even whether an affidavit, statutory declaration or other document is required. It may be said that the execution of a warrant that was based on a defective affidavit is unlawful or other than in accordance with law. The effect of the bill is to remedy this situation by deeming the affidavit effective and the resultant instruments valid so that no unlawfulness arises. It should be emphasised that in rendering procedurally defective affidavits and consequential instruments valid, it is not the intention of the bill to validate any corrupt conduct or any affidavit the contents of which are false. Where deponents have given false evidence purportedly on oath or affirmation, those deponents should be subject to the offence of perjury. It should also be emphasised that such validation is suitably confined to apply only to affidavits made before 12 November 2011. Further, a new offence will attach to the making of false or misleading statement made after the commencement of the bill, which will apply even if the statement concerns an affidavit purportedly made before commencement of the bill. This is to ensure that deponents adhere to procedural requirements in the future. Conclusion For the reasons given in this statement, I consider that the bill is compatible with the Charter of Human Rights and Responsibilities Act 2006.
  Robert Clark, MP

Second reading

Mr CLARK (Attorney-General) -- I move: That this bill be now read a second time. The Evidence (Miscellaneous Provisions) Amendment (Affidavits) Bill 2012 will amend the Evidence (Miscellaneous Provisions) Act 1958 to remedy issues identified in recent County Court proceedings in relation to the failure of members of Victoria Police to properly swear or affirm affidavits in support of search warrants in that case. The defects in the relevant affidavits resulted in the evidence obtained being excluded from the proceedings under section 138 of the Evidence Act 2008. Affidavit evidence is crucial to the functioning of many parts of the criminal justice system. The potential consequences of the failure of Victoria Police to properly swear or affirm affidavits would be far-reaching if the situation were not rectified. The Chief Commissioner of Victoria Police has now taken specific action to ensure that in future Victoria Police members follow the correct procedure for the preparation of affidavits. This action seeks to ensure that henceforth all appropriate processes are followed so that courts will be able to rely on the proper swearing or affirming of affidavit evidence prepared by Victoria Police members in the issuing of warrants, orders, summons or processes, in accordance with all applicable procedural requirements. This bill does not purport to excuse nor endorse the failure of many Victoria Police members to follow proper procedural requirements for the making of affidavits. However, the government considers the potential consequences for the legal system of procedurally defective affidavits remaining unremedied to be so grave that legislation is required. The bill applies where the affidavit states that the maker made the affidavit on oath or affirmation but where certain formalities associated with the making of an oath or affirmation were not performed. The bill will ensure that these procedural defects in an affidavit to which the bill applies supporting an application for a warrant, order, summons or process do not result in the exclusion of evidence from a proceeding. The requirements for the making of affidavits are provided for in the Evidence (Miscellaneous Provisions) Act 1958 and at common law. The bill will amend the Evidence (Miscellaneous Provisions) Act 1958 in a number of ways. First, the bill will amend the Evidence (Miscellaneous Provisions) Act 1958 to retrospectively validate otherwise procedurally defective affidavits by deeming
Page 491
them to be properly sworn or affirmed where the affidavit has been signed by the deponent and signed by a person authorised to witness affidavits under section 123C of the Evidence (Miscellaneous Provisions) Act 1958. The bill makes it clear that these affidavits will be deemed to be validly sworn or affirmed despite any failure to comply with procedures for the making of affidavits such as, but not limited to: a failure to make an oral oath or affirmation; a failure to complete the jurat in accordance with section 126 of the Evidence (Miscellaneous Provisions) Act 1958; or a failure to properly witness the signing of the affidavit. This will place it beyond doubt that the Parliament intends to cure these procedural defects. The bill will not, however, excuse fraud or forgery. Nothing in this bill will validate corruption or perjury in the making of an affidavit. Secondly, the bill will provide that where an affidavit or other instrument has been relied on by a court or other person for the issue of a warrant, order, summons or process, that warrant, order, summons or process is not invalid due to a procedural defect in the original affidavit. Finally, the bill provides that a procedural defect in the preparation of an affidavit is to be disregarded for the purpose of determining whether or not to admit that evidence in a criminal proceeding where the evidence was obtained in reliance, either directly or indirectly, on the procedurally defective affidavit. Subject to that provision, the judicial discretion to exclude evidence or to stay a criminal proceeding in the interests of justice will not be affected. The bill will apply to all affidavits made before 12 November 2011 and accordingly any subsequent actions undertaken in reliance on those affidavits. The bill will also create a new offence of making a false or misleading statement as to the circumstances in which an affidavit was sworn or affirmed. This offence will apply to any false or misleading statement made from the day after the bill receives royal assent, even if the statement concerns an affidavit purportedly made before commencement of the bill. This will ensure that anyone who falsely signs or witnesses that an affidavit has been sworn, affirmed or witnessed when it has not been is liable to a penalty of up to 10 penalty units. The government will also give consideration to the desirability of further legislation that would codify the formal and procedural requirements for the making of an affidavit. The government considers that retrospective legislation is a measure of last resort and brings this bill before the house only after close consideration of the potential consequences of failing to act for victims of crime and the justice system more broadly. If this legislation is not enacted, there would be an immense potential toll upon victims of crime, community safety and our court system associated with the disruption or abandonment of criminal proceedings as a result of procedural defects in affidavits. I commend the bill to the house.

  Ms HENNESSY (Altona) -- It is  with great pleasure that I have the opportunity
to  rise  and make a  contribution  on the  Evidence  (Miscellaneous Provisions)
Amendment  (Affidavits)  Bill 2012. I say at the outset that the opposition will
not be opposing this  bill, which is not to say that  the  opposition in any way
endorses the processes that have been  used to  bring this bill before the house
We are  not persuaded  by the assertions of government members that  this is  an
urgent  matter  that they have not had the opportunity to deal with  previously.
The  opposition was  only provided with  a briefing  and access  to the  bill at
approximately 9.30  a.m. today  -- this is not an acceptable way to make  public
policy  -- and this has significantly impaired our ability to make a  reasonable
and rational contribution to the debate on the bill. Therefore we will be making
reasonably brief contributions to the debate on the bill.

As I said, the  opposition does not intend  to oppose the bill as  we understand
the  consequences  of  failing  to  address  this  issue  and   we  support  the
government's endeavours to  mitigate the risks that we understand are  currently
before the courts. We understand the challenges around opening and  shutting the
gate on this issue, and we support the  government's  endeavours in that regard.
However,  what  we do not  support  is the failure of  the  government to act in
respect of this matter when they have been on notice for a significant period of
This issue  became apparent in late  September-October last year, and the shadow
Attorney-General  raised the matter  with the government and  indicated that the
opposition would  be  more than happy to  work with it to address  the issue and
mitigate any  existing risks. The  response we received from  the government was

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there was not a significant problem. The reason we did not accept the government's response at that particular time is that it was clear to all and sundry that there were serious problems. I accept that the government may not have been able to accurately quantify the scale of the problem at that point in time, but the government was put on notice and it was warned. I note that at that time there were a range of commentators in the media -- all very significant stakeholders from the Victorian Criminal Bar Association, Victoria Police, the Police Association Victoria and the Law Institute of Victoria -- who warned the government and the Victorian public that the scale of the issue may be much larger than was necessarily revealed in the criminal proceedings that led to the initial revelation. On 6 October last year 'ABC news' reported the secretary of the Police Association Victoria, Greg Davies, as saying that most officers do not take an oath when signing an affidavit. He said: It's an issue of training and it's an issue of reinforcing the standards that perhaps we were all imbued with several decades ago, but appear to have fallen by the wayside... The ABC further quoted Mr Davies as saying that the oversight was going to be problematic at best. He stated: Clearly on the evidence that has been provided, there's a suggestion that it will be a problem in many more than one instance. That is certainly true. According to another source, Victoria Police has identified that three-quarters of its officers -- potentially around 9000 or so, including those up to the rank of deputy commissioner -- have conceded to illegally preparing affidavits used to gain search warrants and the like. When I say 'illegally' I do not necessarily impute a deep, dark, criminal desire to their intention; I merely take up the point that Mr Davies made that a cultural practice has evolved and a degree of professional socialisation appears to have occurred whereby the practice of swearing or affirming affidavits lawfully and correctly has fallen by the wayside. Almost 3000 pending criminal cases in the Magistrates Court and another 300 in the Supreme Court and the County Court are likely to be affected by this fiasco, and I say 'fiasco' because the government was on notice and had a significant period of time in which to take action. It had been pointed out by the most significant of stakeholders within the law enforcement and judiciary spheres, and it chose to do nothing. We support this bill, and we support the government's attempt to make sure that the gates are opened and closed very quickly. We accept that it is a legitimate issue to address because we know that the consequences of failing to do so would mean that thousands of criminals would seek to have their convictions overturned by arguing that the evidence used or obtained to attempt to convict them was obtained illegally. That is a matter that the Court of Appeal has upheld. We also saw last year -- and again this goes to the government's failure to take action -- the then Acting Chief Commissioner of Police, Ken Lay, institute an amnesty across the force to flush out the true nature and extent of the problem. He promised not to take action against officers who confessed to failing to properly swear or affirm affidavits. This process indicated that the practice of failing to swear or affirm affidavits had commenced approximately 15 years ago and was a problem across the majority of suburban, regional and country police stations. Again, I accept and understand that what appears to have occurred can be attributed to a professional socialisation or cultural issue, and a change of practice needs to occur. However, the point is that the government was put on notice from October last year, on the most positive reading, when it became aware of this being a significant problem. The deputy commissioner who was in charge of the investigation revealed that some long-serving members of squads involved in major drug and organised crime cases had admitted to never having correctly sworn an affidavit. If there is any basis for the government's urgency on this legislation, it must also be accepted that this issue has the capacity to be a fiasco of epic proportions. Whilst there are certain high-profile criminal prosecutions that have attracted media comment on this issue, those that do not necessarily attract a media profile also warrant serious consideration. As I mentioned at the outset, I am concerned that the government failed to take swift and responsive action on this matter. I am also concerned that it has taken the government four to five months to acknowledge that such action is required to remedy the issue. I am concerned that the government has now rushed in this legislation. We have not had an opportunity to consider it in any great detail, although I acknowledge and thank representatives of the Attorney-General's office and the department for providing a briefing at 9.30 a.m. to me and to the shadow Attorney-General. However, the fact is that the benefit of having legitimate parliamentary scrutiny of this matter and having significant external stakeholders scrutinise it is that it identifies potential
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deficiencies, loopholes and weaknesses in the bill, enabling the government to remedy those deficiencies. If the government and the opposition agree on one thing, it is that the consequences of getting this wrong and failing to act would result in a complete and utter disaster which would undermine confidence not only in Victoria Police and the processes it has used to obtain evidence but in the criminal justice system more generally. I note that the bill applies to organisations wider than Victoria Police. We should reflect on whether or not it is appropriate that, for example, members of the legal profession should be given an amnesty. People from the legal profession should perhaps know better in relation to such matters. The response we were given from the department and from the Attorney-General's representatives this morning was that it was difficult to draft a bill that was specific to Victoria Police. That may be a legitimate response; it may be a legitimate framework in which to talk about this bill being a public policy-making exercise, but the fact is that members of the opposition and many others who work in the legal system have not had the opportunity to test those assertions. We think the bill may potentially be the poorer for that. If there is a problem with this bill, it will be on the government's head, not on the opposition's head. The government must accept responsibility for this rushed legislation and for a failure to scrutinise the matter adequately. We are also concerned that the government may also not have the benefit of referring this matter to the Scrutiny of Acts and Regulations Committee. We were advised by the Attorney-General's representatives this morning that it was intended that this bill would be considered in the Council on Thursday, providing the government with a chance to give SARC the opportunity of scrutinising the bill tomorrow. More importantly, confidence in the bill would be better for the government adopting that process, and we would be interested to hear what the government's response is to that proposal. Finally, we are deeply sincere in our commitment to assist the government to fix this problem. That is why we are not opposing the bill and why we have not opposed the expeditious proceedings the government has sought cooperation for in order to get this bill through both chambers as soon as possible. However, we are concerned about this practice. We do not accept it as a legitimate modus operandi, and we put the government on notice that our cooperation on such matters will not be extended in all circumstances. We remain deeply concerned that this bill has not been adequately scrutinised, and we say that, to the extent that there are any deficiencies and weaknesses in this bill, they will be on the government's head. Having said that, we support the government in its endeavours to address this problem, and we wish the bill a speedy passage through this chamber.
  Mr  RYAN  (Minister  for Police and Emergency Services)  --  It  is  my  great
pleasure and an honour to  rise to speak in support  of this legislation. It  is
vitally important legislation. All  parties  across  this  Parliament agree that
such is the  case, and it is imperative therefore that the bill  pass as quickly
as  can  be done.  I  want  to  go to  some  of  the principles  underlying  the
legislation.  As a  matter  of  general  course,  retrospective  legislation  is
repugnant -- it is regarded at law as being repugnant.  It is something in which
the  Parliament as a matter of general course does  not indulge. That is so as a
matter of general principle  because when laws are  passed, citizens cast  their
activities  according to those laws;  they shape their lives  in accordance with
what those laws dictate.

Therefore,  when  legislation  of  a  retrospective  nature  is  passed  by  the
Parliament which in some manner impacts upon those pre-existing laws in a manner
that changes the operation of those laws in a way that means that the people who
have acted  in  accord with them are  in some way disadvantaged, as  a matter of
general course that is utterly repugnant. It is the  fundamental  reason  why  I
think it reasonable to say  that governments of all political persuasions across
all jurisdictions  in  the political spectrum  of our nation  have  historically
baulked at passing retrospective laws.
That having  been said,  there are cases, rare though  they may  be, where  that
general principle  must  be obviated. Sometimes  it is necessary  in  particular
circumstances, more often  than not unique, that  laws of a retrospective nature
do  have to be passed. I might say that has been the case throughout the history
of the parliaments of this state.

I well remember as a member of the  third party in this Parliament prior to  the
coalition being formed in 2008 that over a period spanning many years the former
Labor government on occasion saw the need to pass legislation of a retrospective
nature. I stand to be corrected,  but  as I recall The Nationals as a  party and
then  we  as  a party within the coalition structure in opposition supported the
government of the day for the purposes of being able to deal with those items of
legislation as they came before the house. In this case we therefore welcome the
support  of the Labor opposition in relation to the passage of the  bill through
the chamber, and indeed  we look forward to  that support continuing  throughout
the course  of the  week to enable the final passage of the legislation  through
the  upper  house  and  then  to  its  concluding stages in this chamber  before
enabling it to  become  the law of our  state  as soon as  those  processes  are

Page 494
In all of that, with the greatest respect, the member for Altona is trying to have a bob each way in relation to this important debate. It is said on the one hand that it is imperative that this legislation be passed for all the reasons that have been talked about, that the issues surrounding these procedural deficiencies be addressed and that the matter be regularised so we can therefore achieve the outcomes that are set out in the erudite second-reading speech by the Attorney-General. On the other hand we are subjected to criticism by the member for Altona because we have not done it fast enough. It is an interesting juxtaposition when you actually have regard to the facts. The first fact is that back on 6 October Mr Pakula, a member for Western Metropolitan Region in the other place, made some observations as reported in the Australian newspaper with regard to the matters that are now under discussion. In the course of a rather discursive commentary that he provided to the paper he had a number of things to say, but the take-out from his commentary was that he made the observation, which I think was accurate, that both the police and the government were in what he termed 'a wait-and-see predicament'. That was the expression he used. It was a very sensible thing, if I may say so, for him to have said because the issues around this imbroglio were emerging and no-one knew where this was going to go. Certainly the police were unsure and most assuredly the government was unsure, and not surprisingly the Labor opposition, with due respect, did not have a clue. Mr Pakula made the very reasonable observation that there was a wait-and-see predicament among the parties. Subsequent to that, as we know, a number of things occurred. I am not seeking to track through the totality of the history of this matter for the purposes of this contribution, but not the least of that was that as it continued to emerge that this problem was of a scale and a degree of gravity that had not previously been appreciated or indeed had occurred in the state of Victoria, steps needed to be taken to get to the bottom of just how substantial the problem was, let alone how you would go about then fixing the problem, having regard to whatever materialised once that problem had been properly diagnosed. In all of that a process was undertaken by the Chief Commissioner of Police in close consultation, as I understand it, with the Office of Police Integrity. That process in essence established a system whereby police were able with impunity to confess to the fact that they had not conducted themselves in accordance with proper protocols and legislative requirements for the purposes of either swearing or affirming affidavits. The amnesty that was offered under that arrangement was the precursor to what we now know to be the substantive facts, which in turn have given rise to the legislation before this house. It was as a result of that process that police fessed up, as it were, that something of the order of 9000 of them may have been involved in a style of conduct which was in breach of the law or those protocols and which in any event rendered at risk the affidavits that had been sworn, in turn creating the terrible uncertainty which would otherwise apply in the justice system if this issue were not addressed. By definition, no-one knew the gravity or the depth of the problem until such time as that process had the opportunity to take its course. I might also say that it was probably not until recent comments of even further clarification were made by Deputy Commissioner Tim Cartwright that the fuller detail of all of this came to light. So it is that the government and the police came to understand the depth of the problem and the prospect of the extent of it, and then minds were able to be turned to how these issues would need to be addressed. It was as a result of that protracted, in a sense, but reasonable and responsible approach to this issue that the government came to the conclusion that legislation of this nature would need to be introduced to the Parliament and passed in the manner now intended. This has been a very careful and considered approach to an issue of fundamental principle and significance to the laws of the state of Victoria and our justice system. This is not something that you rush into. This is not something that you just tear into by way of seeking to apply solutions without having a proper investigation of the matters underpinning the necessity for such action to be taken. With that position having been made clear, it then became imperative for the government to act as soon as was reasonably possible to address the areas that are impacted by this legislation. That in turn is necessary because there are a number of trials before the courts that may potentially be affected by the matters that are going to be addressed through the passage of these laws. In conclusion, I congratulate the Attorney-General for the enormous amount of work that has been undertaken to bring this legislation before the house today. I wish the bill a speedy passage.
  Mr  MERLINO  (Monbulk) --  I am  pleased to  rise to  speak  on  the  Evidence
(Miscellaneous Provisions) Amendment (Affidavits)  Bill 2012. The Deputy Premier
is   right  when  he  refers  to  this  legislation  as  being  fundamental  and
significant. This is indeed legislation that requires deep thought.  Having said
that, the opposition was briefed at around 9.30 to 9.40 this 

morning after a  phone call last night saying, 'It is going  to be in the papers
tomorrow. We are happy to provide you with a briefing in the morning, and by the
way can you agree to rush it through the Assembly and the Council this week?'.
Given that this  significant  and fundamental  bill  has  been provided  to  the
opposition  today  with  a  briefing  only  this  morning  --  and I  thank  the
departmental  officials for  briefing  the  member  for  Altona  and the  shadow
Attorney-General  -- the contributions  to  this debate from  our  side will  be
brief. It  is impossible  to provide, and  we have  not had  the opportunity  to
prepare,  an analysis  of  and  full  response to  this bill.  It is  simply not
something we can do.
As  we  have  heard,  this  bill addresses  procedural  defects  in relation  to
affidavits, and the scale in which it does that is something we heard about this

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However, as the manager of opposition business pointed out, the scale of this matter was flagged some four months ago. It has only become urgent because of this government's dithering over that four-month period. The shadow Attorney-General offered assistance from the Victorian parliamentary Labor Party to fix this problem, which, as we have heard, is a problem that goes back some 15 years. It is a longstanding practice within Victoria Police of not going through the correct procedures as they provide affidavits. Four months ago the shadow Attorney-General offered to provide assistance, and there was the debate on the government business program earlier. The urgency of this bill is, in part, manufactured. The government business program that was provided to the opposition last Thursday contained four bills. There is no doubt that the government has always planned, and planned for quite some time, to introduce this bill. You do not just provide a government business program of four relatively simple bills that can speedily get through this Parliament; we always thought that there would be something the government intended to introduce during the course of today. I also make the point that when we offered to provide the assistance of the Labor Party to address this issue of affidavits, the advice from members of the office of the Attorney-General was that they did not think that this was a problem, and indeed they thought it was pretty confined. Furthermore, the Premier also made a number of statements to that effect: that this issue was pretty confined, that it was not a big issue and that Victoria Police and the courts would sort it out. That is not what the Criminal Bar Association of Victoria was saying; it was not what Victoria Police was saying; it was not what the Police Association was saying; and it was not what the Law Institute of Victoria was saying. I will read again the quote referred to by the manager of opposition business in which it is stated that the secretary of the Police Association, Greg Davies, had said that most officers do not take an oath when signing an affidavit, and further: It's an issue of training and it's an issue of reinforcing the standards that perhaps we were all imbued with several decades ago, but appear to have fallen by the wayside. In the eyes of anyone associated with the legal profession in Victoria this was always identified as a significant issue. As we have pointed out, we do not oppose this bill, we will assist in its speedy passage through the Assembly today and it will be debated in the Council on Thursday. Therefore there is no time for members in this chamber to scrutinise and analyse this legislation, but the government can make a minimal effort in terms of openness and transparency. The Council cannot debate this legislation tomorrow, but it will do so on Thursday. Between the conclusion of the debate in the Assembly and the commencement of the debate in the Council, the minimum the government can do -- it is what the opposition is requesting the government to do -- is to ensure that the Scrutiny of Acts and Regulations Committee has the opportunity tonight and through the course of tomorrow as an absolute minimum to give the bill some scrutiny. If there is a defect or a loophole in the drafting of this legislation, it will be on the heads of the Attorney-General and the Premier, because there has been time to get this legislation scrutinised, to go through the proper processes, to allow the opposition to analyse the bill and to allow for full consultation with stakeholders. What I have proposed is the minimum the government can do. The opposition will expedite this bill through Parliament this week, but the minimum the government can do is provide for the bill to be given some analysis by the Scrutiny of Acts and Regulations Committee. The manager of opposition business raised the issue of the date of 12 November, and I think we can make the point that if anyone failed to correctly go through the proper procedures in the provision of an affidavit after this issue became public, then that should be on their own head, it should be their responsibility. I am unsure why this date was picked and not the date on which this became a very public issue within the Victorian community. This legislation also applies across the board. The provision does not cover only police officers who have incorrectly provided affidavits but also applies across the board. Every lawyer should have
Page 496
known better. Is it the responsibility of this Parliament to provide coverage for lawyers who should have known better? I understand the issue in regard to Victoria Police, but that is a question we ask. As I said, we do not oppose this bill. We will ensure that it gets through this chamber today, and we will ensure that it is debated in the Council on Thursday, but we request that the Attorney-General provide some scope for the Scrutiny of Acts and Regulations Committee to examine this bill and provide some advice to the members in the other place.
  Mr McINTOSH (Minister for Corrections)  --  I will address a couple of matters
that the previous speaker raised in his contribution in relation to the Scrutiny
of Acts and Regulations Committee.

Notwithstanding the fact that the bill passes through both  houses  and may even
be enacted into law, SARC has  the capacity to review it,  and I anticipate that
it  will be reviewed in some degree of detail and that the committee will report
back to the chamber on it. The second matter I address is the reason 12 November
was selected as the  deadline.  It was because that  was  the day the  Court  of
Appeal handed  down its decision  essentially  upholding a  decision  to exclude
affidavit material in relation to a  criminal proceeding.  I do  not want  to go
into the details of that particular case, but it was for that reason 12 November
was selected.
I remind the house that this is retrospective legislation. Traditionally, and as
a matter of practice,  people  are entitled to rely  on the law at a  particular
date to have a court define their rights and liberties.

This  may have  been highlighted  by a  number of commentators, but it  was that
Court  of Appeal  decision  which upheld a  lower  court's decision  to  exclude
affidavit material in  the course of a trial. In that  case  it led to a serious
consequence. The point about this is  that it is retrospective  legislation and,
as the  Leader of  The Nationals  has indicated,  you do  not take  these things
lightly. The  Attorney-General  had every  right  to  ensure that  there  was an
understanding of the magnitude of the problem, its impacts and how it would play
across a number of different players in the scheme.
The magnitude of the problem  has  been  the  subject  of media speculation, but
certainly the Attorney-General is acting on the advice of the Chief Commissioner
of Police,  and as he  has indicated,  there appear  to be  over 9000  voluntary
disclosures  by  members of  Victoria  Police that they  may  have inadvertently
adopted a practice that may have led to this significant problem.

On top of that clear evidence, which the Attorney-General has acted upon, is the
significant  impact  that  may have on a number of matters  that  are  currently
before the court. It  potentially  could  also impact upon those cases that have
gone before the court where this material has already been relied upon. It  is a
significant  problem just in relation to these matters.  On  top  of  that,  the
Attorney-General has taken advice  about the significant impact  it may have  on
victims  of crime.  That would  mean not only victims of  crime who  are looking
towards a particular proceeding or court trial coming up that could be abandoned
because of these technical deficiencies, but also the potential that cases could
be reopened. Cases that have been  proceeded on  and then determined by a court,
perhaps  on  appeal, could be subject  to  review on that basis.  As  I said, in
addition there is the trauma for  victims  who  may  have those matters reopened
because of these deficiencies.

The Attorney-General has taken advice from a number of players  in  relation  to
costs. Not only are there a number of costs applying to prosecution services but
there  is also the physical cost of potential litigants in those proceedings and
an enormous  amount of court time that  may be taken up just  in resolving these
technical matters. If there  are 9000 voluntary  disclosures by Victoria Police,
there  is the potential for a huge number  of cases to be extended and for these
issues to be  debated  at  trial level or  otherwise.  All of this  will  be  an
enormously expensive process, not just  for  the  Crown but also for those other
people who are involved in  that sort of litigation and in particular, of course
legal aid, which would be funding many of the defendants in these proceedings.
It provides a significant problem in relation to the delay in our courts because
of these other proceedings being mounted. Therefore those cases that are able to
proceed  may not do so  in the appropriate time because  of the delays that this
particular matter creates.

On top of that there  is the potential -- and  all of this is beginning to  come
clear --  that  there may be proceedings  that  may have to be  reopened.  As an
example,  the state  could  be exposed for  unlawful imprisonment of  particular
parties if they were to avail themselves of this opportunity to make that claim.
There is also the issue of proceeds of crime, and there may have to be reversals
in those matters.
All of  these things are matters  of practical effect,  but the Attorney-General
has taken a measured and  reasonable  response.  Everybody  is now taken to have
known what the law was from 12  November, which has been declared effectively by
the  Court  of Appeal. That  is  why the date of  12  November was selected. The
Attorney-General  has  operated  effectively  and  appropriately  to get all the
material  marshalled from a variety  of different sources to  enable and support
this legislation going through the Parliament. I remind the 

Page 497
house, as many other speakers have said: it is retrospective legislation. While this house is quite capable of passing retrospective legislation, it is not done lightly. The Attorney-General has acted reasonably and responsibly in garnering all that information that supports this retrospective legislation. Accordingly I am very pleased and proud to support the Attorney-General in this important piece of legislation. Again I thank the opposition for its support to facilitate the bill through both houses of Parliament. I will just raise one matter in relation to the upper house. Wednesday is opposition business day in the upper house and this bill cannot be dealt with, so Thursday will be the first practical time with which to deal with the bill.
  Mr CLARK (Attorney-General) -- I thank all members who have contributed to the
debate.  I  thank  opposition members for their wishes of speedy passage for the
bill and for their  support  of  its expeditious passage through this house. The
opposition has  raised a number of points during the course of the debate,  some
of which have  been responded to by  previous speakers and some of  which I will
respond to in closing the debate.
As  the  Deputy Premier indicated,  in essence opposition members  are trying to
have  a bob each way in relation to  this issue. Their argument seems to be that
the government should have brought in  legislation  more  quickly  but now it is
doing it too  quickly. Let us look at  both aspects of that  argument. There has
been a significant effort to reinvent history here.

There have  been  references to  conversations  indicative of  the  offering  of
opposition  support if  at  any  time the  government  chose to  legislate,  and
opposition  members  have  now  tried  to  morph  that into the claim  that  the
opposition,  in  retrospect,  was calling  for  this  and knew  all  along  that
something drastic  needed  to be done. The  trouble is that if  you  look at the
public record, there is nothing to support that proposition.
As the Deputy Premier  said, the  Australian of 6 October last year reported the
shadow Attorney-General,  Mr Pakula, as  saying that the  government  and police
found themselves in a  wait-and-see predicament. As all members will know, press
reports are not  always a  100 per cent accurate reflection of what members have
said,  but  that is  what is  on the  public record  attributed  to  the  shadow
Attorney-General. I have not  been  able  to  find  anything  else on the public
record from him in terms of publicly exhorting the government to legislate.

If I  have overlooked  anything, I  would be  most grateful  if  members of  the
opposition would draw it to my attention.
For all the attempts to reinvent history there is  no evidence of the opposition
at  the time  actually calling  for what  it is now saying the government should
have  done. It has been a situation in  which over time the scale and extent  of
the  problem has become  increasingly apparent, and there  has been reference in
debate to the 9000 police officers who have now made disclosures and the current
estimates  of cases  that are  at risk  as a  result of  affidavit issues  being
involved. The  government  has been closely monitoring the situation throughout,
and it has reached the conclusion,  as I  indicated in moving the second reading
and elsewhere, that legislation is necessary.

The second aspect of the concern raised  by the  opposition is  that despite its
previous arguments that the government should have acted more quickly we are now
acting too quickly -- again, notwithstanding the fact that  allegedly on its own
account it previously offered to expedite the passage of the legislation through
the  Parliament. There  are two reasons why the government is seeking to get the
legislation  through the Parliament quickly.  Of course, the  first is that with
the magnitude  of the  problem --  as police information and the result of their
disclosure process has  come to  hand and  their further  work and  the work  of
others in ascertaining the scope of the problem has come to hand  -- it is clear
that the  sooner this  legislation can  be on  the statute  book the  sooner the
problems can be averted going forward.

But there is a second important aspect to the timing issue -- that is,  the need
to  minimise  the time between when the intention to legislate is announced  and
when  the  legislation  is  actually  on  the  statute  book,  because  in  that
intervening period  issues  are  created  for the courts. The courts and all the
parties before the courts will have heard the government's announcement and will
be aware of the  legislation before  the Parliament, but until this bill ends up
on the statute book, assuming the Parliament supports  it,  the  courts  and the
parties have to operate under the existing law. We were concerned to ensure that
that interval of time was kept to a minimum and we were keen to ensure that when
the  intention to  legislate was  announced, it  became known at a time when the
courts were not sitting.
As has been indicated, I contacted  the shadow  minister in  the other  place, a
member for Western Metropolitan Region, Mr Pakula, late yesterday afternoon  and
I spoke to him in person.

I might say  as an aside that, to  the absolute best of  my  recollection, never
once in the four years that I was shadow Attorney-General was I contacted by the
former member  for  Niddrie  about  any  matter  when he  was  Attorney-General.
Nonetheless I phoned and had a very constructive discussion  with  Mr  Pakula. I
offered him a  briefing and invited him to  decide when he would like a briefing
and to  come  back and nominate a time. He came  back  and nominated a time this
morning, and the briefing proceeded.
The government has made every effort  to  ensure  that full information was made
available to the opposition.
  Mr Noonan interjected.

  Mr CLARK  --  The member for  Williamstown  interjects about whether  that  is

I do not know if he was listening to the point I was making that there is a need
to minimise the period between the 

Page 499
announcement and the introduction of the legislation and putting it on the statute book, so necessarily times need to be compressed. On other occasions the government is perfectly willing to allow a normal and adequate time for scrutiny. Again, I might say in reference to the member for Williamstown that the former government tried to rush legislation through the Parliament, at times not because there was a genuine reason but just because it wanted to create mischief. I well recall one occasion when the former Attorney-General arranged for me to be briefed urgently on legislation for intensive correction management orders. The briefing took place at lunchtime, the second-reading speech was given by him that afternoon and at the conclusion he called upon the opposition to be willing to proceed to debate the bill forthwith having given zero notice. Knowing how the former Attorney-General thought, we realised he might be up to that, and in any event we were more than willing to proceed with the debate, but I make the point that the former government tried to bring on legislation urgently for no good reason whatsoever. We have only sought to bring on legislation urgently when there is a genuine reason for that urgency, as I have explained to the house. I will deal with two further issues that were raised in the course of debate. The first relates to why the legislation applies generally instead of only to police officers, as the opposition has asked by way of rhetorical question. The government's view is that there is evidence that practice has got out of line with what is appropriate and that appropriate formalities were not being observed in the police force. The situation was unclear as to whether others who were in the practice of swearing affidavits had got into similar poor practices, and rather than risk a repeat of the problems that have been experienced, we thought the clear point of logic was to say that now everybody is on notice by virtue of the issues that have arisen about the police force and about the need to properly comply with formalities. Everybody is now on notice going forward. People may not have been on notice given that bad practices had developed in other areas prior to this coming to light, and therefore it is better for the legislation to apply across the board. The issue was also raised about the Scrutiny of Acts and Regulations Committee. Needless to say, the procedures of a parliamentary committee are matters that are governed by that parliamentary committee, so it is a matter for SARC to determine what it does. From the government's point of view we would be more than happy if SARC were to find itself in a position to consider the bill and to report on it. That may be a question of logistics and timing and the availability of staff and whatever other considerations might need to be taken into account by SARC. But we are more than happy to have this legislation scrutinised. Indeed it was mentioned in debate that the opposition wished that it had more opportunity to scrutinise. Of course the opposition is very welcome to continue to scrutinise the legislation between now and when it is debated in the upper house, and if it wants to come back seeking any further clarification or raising any queries with the government, then it is very welcome to do so. A lot of effort has been put in on the part of the government and officers of the department and everybody else involved to get this legislation as right as possible, and we are more than happy to take on board any queries or suggestions that SARC or members of the opposition or anybody else might wish to raise in relation to the bill. In conclusion, this is an important bill to bring to an end these very serious difficulties that have arisen in the courts and in the justice system as a result of failures by police officers and, potentially, others to observe the appropriate formalities in the swearing or affirming of affidavits. This government is not prepared to accept, and the community cannot afford, to have a court system that is logjammed and which grinds to a halt as a result of the sheer weight of these matters. Nor can the community afford, potentially, to have offenders who have committed very serious offences walking free from court because their cases cannot be heard on the evidence that is available to be led against them because of these failures to observe procedural formalities. For all of those reasons I commend the bill to the house. Motion agreed to. Read second time; by leave, proceeded to third reading.
Third reading
Motion agreed to. Read third time.

                                 Second reading

Debate resumed  from 7 December 2011; motion of Mr RYAN (Minister for Police and
Emergency Services).

Opposition amendments  circulated  by  Mr MERLINO (Monbulk) pursuant to standing

Government amendments circulated by Mr  WELLS  (Treasurer)  pursuant to standing
  Mr MERLINO (Monbulk) --  It probably  does not  happen too often, but you will
notice that  the  amendments proposed by me and the amendments circulated in the
name of the Minister for Police and Emergency Services are exactly  the same. It
simply reiterates the point that  with  regard  to  the  Control  of Weapons and
Firearms Acts Amendment Bill 2011 we did our due diligence with stakeholders and
in doing so found there was a significant issue with this bill. We therefore had
these  amendments drafted some time ago. We then went through the  process  with
the clerks to get the amendments organised and have them circulated today. There
was a  briefing. For  the second bill we are  debating today  there was  another
briefing this morning. At the last minute, at the 11th hour, the government also
realised  there  was a  significant  problem  with this  bill  and proposed  the
appropriate amendments, so we are talking about the same amendments. However, it
was through our  efforts  with the sporting  shooting community that  this  very
significant problem was identified. I will talk more about that in a moment.
At the start  can  I say that the  opposition does not oppose this  bill. Indeed
there is  much in the bill that  is  quite fine. However, I will  spend a bit of
time on the participation requirements for licence-holders, as that is the issue
to which the amendments  of  both  the  opposition  and  the  government go. The
amendments prepared by the opposition  accurately  reflect the commitments given
by the government  to  stakeholders. These were  at negotiations held  primarily
between  the  Department of Justice,  the government and  the Victorian Firearms
Consultative  Committee.  Those  negotiations  were   around  the  participation
requirements for handgun licence-holders and go back some 18 months. Essentially
an agreement  was reached with  members  of the Victorian  Firearms Consultative
Committee and  the broader sporting shooting  fraternity that dates back to June
last year, but when the  bill was introduced into this house it did not  reflect
that agreement and the understanding that was reached back in June 2011.