Justice Legislation Amendment (Victims) Bill 2017

06 February 2018
Second Reading
Mr PESUTTO (Hawthorn) (16:18:18) — I am pleased to be able to rise and speak this afternoon on the Justice Legislation Amendment (Victims) Bill 2017. It is of course a bill which covers a range of different matters and brings them all together in the one bill. I can say at the outset that we will not be opposing the bill. For the most part, the bill reflects recommendations which are largely non-contentious out of work that the Victorian Law Reform Commission has undertaken, that the Betrayal of Trust inquiry undertook and that also the Royal Commission into Institutional Responses to Child Sexual Abuse undertook in its work, which it concluded last year.

The bill is aimed predominantly at victims and their experience in particularly the trial process, but it also touches upon some other matters which I will address in general terms during the course of my remarks. I will address the issues that I wish to talk about in the order in which they appear in the bill.

The first matter that I want to talk about comes under part 2 of the bill, which deals with sexual offences and forensic information, in particular clause 4 of the bill, which is headed ‘Effect of intoxication on reasonable belief’.

The purpose of this clause is to insert a provision that provides some cover to eligible defendants where medicinal cannabis has had an effect on reasonable belief. I make these comments not as a signal of any opposition to what is proposed because, as I have said, we are not opposing this bill at all. I just wanted to flag for the government the need to ensure that this provision does not operate more widely than, say, drugs that are prescribed by a registered medical practitioner. We know that under section 36B of the Crimes Act 1958 there are a range of circumstances which relate to the effect of intoxication where it is self-induced. It provides that a self-induced state will not disqualify somebody from the defence, as it were, if a person has consumed a prescribed drug in accordance with a prescription from a registered medical practitioner. That language in relation to prescribed medication is very tight.

I just wish to flag a cautionary note for the government in relation to medicinal cannabis, because the operation of the proposed subclause (ca), which clause 4 will insert into section 36B(2) of the Crimes Act, appears to be looser language than that which applies to prescribed substances. We know that in relation to section 36B(2)(c), it will apply to somebody who has used a form of medication in accordance with the direction of a person who prescribed it. So it is very tight. The language that is proposed in clause 4 is not as tight, although its purpose may be identical. I can foresee some circumstances where there might be a dispute in a trial over whether somebody’s use of medicinal cannabis was in accordance with the purposes for which a patient medicinal cannabis access authorisation was executed. I just urge the government, in relation to this, to keep an eye out for whether there are any cases, or even likely cases, where the absence of that precise language may have a dispositive effect in a trial. But as I said, we do not oppose it and we think it serves a desirable purpose to clarify that section 36B of the Crimes Act will apply to somebody who consumes medicinal cannabis in circumstances where that affects reasonable belief for the purposes of any offences under that section.

The next section I want to address relates to juvenile records in relation to fingerprints and other samples such as DNA samples. I just wish to flag that we do support this. We think that it is important in some circumstances to retain more information than is currently retained in relation to serious forms of juvenile offending, in that it may be important to retain for any later contingencies. I note that clauses 8 and 9 of the bill, for example, which deal with juvenile records and forensic information from juveniles are, in our view, tight in language, which we find acceptable. But it does point to the need more broadly to start looking at the interaction between serious juvenile offending and the adult jurisdiction. We generally are looking at opportunities to ensure that what we see as a particular crisis in youth offending is being greeted with reasonable measures to ensure that that serious level of offending — for example, here we are talking about a level-four offence which carries a 15-year maximum, a very serious offence — does involve some more serious consequences for those who might engage in that very serious and violent behaviour.

Moving through the bill, next I just wanted to address the issue of publications. As we know, under the Children, Youth and Families Act 2005 there are very strict obligations in relation to the publication of details. We saw last year some cases which were profiled in the media, where victims of crimes committed by juveniles were unable to talk about their searing experiences. It is their call, of course, if the victim decides whether they wish to discuss their personal circumstances in the media, but currently the law does not allow that when the crime has been committed by a juvenile. We think that is unfair, and I said that on behalf of the coalition at the time.

We are pleased to see that although in our view it does not match what we have committed to do in terms of relaxing a number of the publication provisions — I will say a bit about that in a moment — it does allow for the publication of a report of a proceeding in the criminal division of the court, which is the Children’s Court, that contains particulars likely to lead to the identification of a witness in the proceeding if the witness is a victim or alleged victim and is or above the age of 18 years at the time of publication. It has in there some safeguards that will not identify a particular venue of the Children’s Court and that will not identify a child or other party to the proceeding or a witness in the proceeding, other than a witness who is wanting to disclose their own particulars. So it cannot be invoked by a juvenile; it can only be invoked by an adult. We think that is appropriate at this stage. And it has some other safeguards, which I have mentioned.

We are concerned that the government is not moving more broadly on relaxing some of the publication provisions when you have circumstances arising under the Children, Youth and Families Act. We announced in late 2016 and further in 2017 that if we are elected later this year, we will change the Children, Youth and Families Act to allow publication of details, for example, that would identify a serial violent offender who is a juvenile. Let us say, for a 17-year-old who is committing serious violent crimes, we think the public has a right to know. Now, that will not be an unencumbered right to publish material, but the act would be amended, if we were to be elected, to ensure that although the court has and retains overall oversight of the provisions, the tenor of the legislation would be geared more favourably towards publication in those circumstances.

We have also announced that we will amend the act so that where an adult goes on to commit serious crimes, in circumstances where that person has committed serious offences as a juvenile, that prior history will be available for publication again in certain and regulated circumstances, but as with the other provisions we will not oppose those sections.

New part 8.2A, ‘Ground rules hearings and intermediaries’, deals with perhaps a more significant part of what the bill is looking to do. It proposes the introduction of ground rules hearings which are about the court convening hearings of the parties to organise beforehand matters around the giving of evidence and the way the trial will be conducted, particularly where you are likely to have witnesses who are under the age of 18 or who are suffering from a cognitive impairment of one form or another. Those measures couple with the use of intermediaries. They arise out of recommendations of the Victorian Law Reform Commission, and I accept that there is broad support for these, and we support them. But as with the issue around intoxication where medicinal cannabis is concerned, I just want to flag that I can foresee some logistical difficulties where the use of ground rules hearings and intermediaries could cross over boundaries that might potentially interfere with the conduct of a party’s case, and that needs to be observed very closely.

Again, I am saying this not in opposition to the bill, because we support it, but it could operate in a way which could adversely affect one party, whoever that might be. For example, in the case of intermediaries, as the government’s supporting materials to the bill note, they are not an advocate and they are not the interpreter; they are there to assist the giving of evidence. That is highly desirable, but it comes with the risk that in doing that there is potential tension between the formally retained advocates for parties in proceedings and how an intermediary interacts with the witness, either at the police interview stage or in the giving of formal evidence during trial. It is readily foreseeable that there could be disputes and probably will be disputes between legal counsel for either party or parties and how those intermediaries act and also with the ground rules hearings.

So, as with the matters I addressed earlier, it is going to be really important to watch how these operate in practice. We all want to achieve the same thing: we all want victims and in particular witnesses who are under the age of 18 or suffering from a cognitive impairment to be able to participate meaningfully in the trial process, but that then comes with, I think, a real determination to ensure that it does not adversely prejudice the interests of any party in those proceedings. That is going to be a not insignificant objective in these provisions, but we support them and we support their purpose.

I should note as part of this that the ground rules changes do affect the rule in Browne v. Dunn,and not everyone will be happy with this. As I said we do support this measure. The rule in Browne v. Dunn in very simplistic terms is about requiring a party who intends to call a witness or to raise at some point during the trial, through evidence, an adverse matter to take the opportunity to put that to the party that would be adversely affected by that tendering of evidence. That has been a longstanding rule and very much a part of our justice system forever, and this will change that. So it is going to be very important to note that this could come — if it is not managed well — at the risk of some prejudice. It is not about whether the change should be introduced; it is more about how we are going to manage the introduction of this change given that everybody is familiar with this rule and it is going to mean a fairly significant change to the way we conduct trials.

One matter I did want to note in relation to intermediaries is that I think it is really important that the people who are appointed as intermediaries have the appropriate mix of credentials and skills — that they understand the very delicate interaction and relationship between assisting a witness and not interfering with the trial process itself. I note that proposed section 389H provides for a panel of intermediaries. It provides that:

(1)   The Secretary of the Department of Justice and Regulation must establish a panel of persons who the Secretary is satisfied are suitable persons to be appointed as intermediaries.

(2)   A person must not be on the panel unless the person —

(a)    has a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or

(b)   has other prescribed qualifications, training experience or skills.

The qualifications and skills referred to in paragraph (a) do not trouble me so much. In terms of ‘other prescribed qualifications’ in paragraph (b), they are anything that the government may wish to prescribe, and that does carry with it some risk that we could add to that list people whose skills do not quite achieve what we want to achieve through these changes. So I think the nature and skill of intermediaries will be tested in this process, and it is just really important to have the right mix of skills on that panel. I have already mentioned that it should be very clear to intermediaries that they are not there to be advocates in a cause.

I now wish to move to amendments proposed to the Sentencing Act in relation to previous good character. We strongly support this measure, so we are at one with the government on this too. This arose out of the royal commission into child abuse, and none of us, I think, would ever countenance anyone who was in a position to exploit their status in the community or in an institution for the purposes of abusing children, sexually or otherwise, and then to rely on that supposed good character in mitigation of sentence.

We think it is wholly appropriate that courts should not be able to consider previous good character where that good character has enabled the commission of such heinous crimes in our community. We strongly support that one too.

Turning now and finally to the government’s proposal to amend the Victims of Crime Assistance Act 1996. Out of the Betrayal of Trust inquiry came a recommendation that the limitations which beset victims on the path towards compensation should be removed as far as possible. I think we all share that objective. No-one should have to live with what was done to them without having access to a scheme of compensation that can at least alleviate some of the financial and other burdens that they suffer and continue to suffer from. The government is proposing that the two-year time limit for victims who suffered at the hands of an abuser when under the age of 18 should be removed, and we think that is entirely appropriate and we strongly support it.

I should say that you may be aware, Acting Speaker, that the opposition has made a series of announcements in relation to victim support and we propose to dismantle as far as possible a range of time limitations that confront victims. We know that victims are often not in a position to turn their minds to the opportunities to obtain compensation. For many victims that is the last thing that will come to their mind. They are trying to deal with the fallout from a brutal, traumatic experience and often they only come to the realisation of the opportunities for this through the intervention of others who might advise and alert them to these opportunities. But they take a good deal of time to even turn their minds to seeking assistance. Many victims do find themselves on the wrong side of limitation periods, so we have announced a range of measures which will make it easier for victims to seek compensation, even if they are out of time, by extending the time periods. We will not limit our commitments to victims as much as this bill from the government does, but that said, this change will make it easier for many victims. It is consistent with a Betrayal of Trust inquiry recommendation and we think it is wholly appropriate that it be supported.

That concludes my remarks on the bill. As I said, we are not opposing it and we think that these measures will certainly assist victims in the criminal trial process.

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