JUSTICE LEGISLATION AMENDMENT (TRIAL BY JUDGE ALONE AND OTHER MATTERS) BILL 2022

Mr M O’BRIEN (Malvern) (11:18): It is a pleasure to rise to speak on the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022. This bill has a number of purposes, the primary one of which is to extend by 12 months or while a pandemic order is in place the capacity for an indictable offence to be tried by a judge alone and for special hearings relating to mental impairment to be heard by a judge alone.

Now, the decision to not have trial by jury when it comes to indictable offences—that is, serious offences—is obviously one which tends to go against the grain. We have always been a society in which serious criminal matters should be determined by a jury of one’s peers, not by a judge alone. It has only been in the most exceptional circumstances that we have contemplated the idea that we should dispense with a jury when it comes to a matter of a serious criminal trial. This is something that the Parliament decided was necessary due to the onset of the COVID-19 pandemic and the consequences of that for the jury system operating. We do know that it was difficult for juries to operate when you had many jurors potentially not being able to assemble in the one place, and it did interfere with the administration of justice. So this Parliament decided to provide on a temporary basis, while a pandemic order was in place, the option for an indictable offence to be heard by a judge alone without a jury. That is something which I think has operated to some effect. It has not dealt with the massive backlog that we have in our court system here in Victoria, and I will return to that in due course.

I think one of the very important safeguards that this trial contains is the fact that, number one, no defendant can be required to have a trial by judge alone. So this option is only available where the defendant either requests it or the defendant consents to it, and that is very important. We should not be trying anybody without a jury on a serious criminal matter if they do not want that to occur. That is an important safeguard, and I am pleased that that safeguard is continued in this bill.

Another very important safeguard is the fact that it is ultimately up to a judge to determine whether it is in the interests of justice for a serious criminal matter to be tried in the absence of a jury. It is always important, I believe, that judges have the discretion to ensure that actions that take place in their courtrooms are in the interests of justice, and that is maintained here.

In terms of the way in which this has operated in the past, we had a very useful briefing from the Attorney-General’s office. I am indebted to her office and to the Department of Justice and Community Safety staff who attended that. According to my notes from that briefing, under the trial of this judge-alone option so far we have seen I think 60 applications in the County Court for a judge-alone trial, of which 51 had been granted. So a simple process of deduction and mathematics would tell you that there were nine applications for a judge-alone trial which were not granted, and that was because of the objection of one of the parties or because of a decision by the judge that in fact it was not in the interests of justice for that matter to be tried without a jury. I do not have that information, but certainly it indicates that courts are being judicious, I suppose, as you would expect—pardon the pun—in deciding whether or not to grant an application for a judge-alone trial in these matters. Of the 51 applications which were granted in the County Court, 32 have concluded and two remain on foot.

In the Supreme Court of Victoria, where obviously the most serious charges are tried, notably charges such as murder and other similar charges like that, we have only seen six applications made. I believe we were informed at the briefing that four matters have been resolved prior to trial, so whether charges were withdrawn or there was some sort of plea agreement made which changed the plea from a not-guilty plea to a guilty plea—we are not privy to that information. But that does indicate that there have been very few uses of this judge-alone option in the Supreme Court.

We do not object, the Liberals and The Nationals, to the continuation of this trial for a further 12 months—but while a pandemic order is in place. I do note that while this legislation provides for and extends the option for a trial for a further 12 months, it is also tied to pandemic orders, a pandemic declaration, being in place. I think that is very important. I do not think we want to go down a path—I do not want to go down a path—where a judge-alone trial for serious criminal matters becomes the norm. This is an extraordinary circumstance that we have endured over the last two years. It has had a significant effect on our court system, it has had a significant effect on the jury system and it has had a significant effect on all of us, and this should be seen as a temporary measure in place to deal with the effects of this pandemic. This should not be seen as a green light by this Parliament for doing away with juries, because that would be a very retrograde step—and it is one that I and the Liberals and The Nationals would oppose. It is a foundational part of our criminal justice system that serious criminal matters should, in usual circumstances, be tried by a jury, and we would not want to see that principle whittled away over time. The fact is this is a 12-month extension and the fact is this is tied to the continuation of pandemic orders, and we all hope that those pandemic orders will end sooner rather than later. We all hope that we will not be dealing with a 12-month extension of this, because we do hope that we can see an end to those pandemic orders before the 12 months are up. But in terms of the principles of those matters in this legislation, the Liberals and The Nationals do not oppose it.

Can I say: there is a very good reason why we do need to get our criminal justice system moving again, and that is because Victoria has, on just about any measure you care to examine, the worst criminal case backlog in the nation—and not by a little but by a long, long way. I refer to the Report on Government Services 2022, produced by the Productivity Commission and released just a couple of months ago. If you look at which state has the worst Magistrates Court criminal case backlog in the nation for cases waiting more than six months, it is Victoria. If you extend that to cases waiting more than 12 months in the Magistrates Court, it is Victoria again. If you look at the backlog of cases waiting longer than six months in the Children’s Court, Victoria is the worst in the nation. If you extend that to cases waiting more than 12 months in the Children’s Court, Victoria is the worst in the nation. If you look at County Court criminal cases waiting longer than 12 months, Victoria is the worst in the nation, and if you extend that to 24 months, Victoria is the worst in the nation.

Let me just give you a couple of comparative figures. These are all referenced in the Report on Government Services published by the Productivity Commission. In County Court criminal cases waiting longer than 24 months Victoria has a backlog of 11.3 per cent. New South Wales is at 5 per cent—11.3 per cent in Victoria, 5 per cent in New South Wales. The second-worst state in the country is Queensland at 5.5 per cent. We are more than twice as bad as the second-worst state in the country when it comes to criminal case backlogs in the County Court or District Court of more than 24 months. When it comes to 12-month criminal case backlogs in the Magistrates Court, Victoria is at 28.3 per cent. Think about that: nearly three in 10 defendants in a criminal case matter in Victoria’s Magistrates Court cannot get on and have their matter heard within a year. To have a year of a criminal charge hanging over your head is not justice. There is a well-known saying—and it is well known for a reason, because it is true—that justice delayed is justice denied. Well, Victoria is a state in which justice is denied because justice is continuously delayed. The comparison on those figures is just extraordinary. In Victoria, as I say, the Magistrates Court criminal case backlog of longer than 12 months is 28.3 per cent; New South Wales, 4.7 per cent. I look forward to government members explaining to the Parliament and explaining to the people of Victoria why the criminal case backlog in the Magistrates Court is 4.7 per cent in New South Wales for cases longer than 12 months and 28.3 per cent in Victoria.

Then you have got the Children’s Court. Now, we are talking about some of our most vulnerable citizens. Matters generally do not get to the Children’s Court unless a serious offence is alleged because, appropriately, there are a whole lot of other diversionary avenues that are available for dealing with young offenders. So by the time we get to the stage where a young Victorian has been charged and is awaiting a trial in the Children’s Court we are talking about a serious matter and we are talking about, because of their age, very vulnerable people. In Victoria the criminal case backlog in the Children’s Court for cases waiting longer than 12 months is 19.6 per cent, so one in five kids have got a criminal charge hanging over their heads for a year or more in Victoria. In New South Wales the comparative figure is 4.5 per cent. 19.6 per cent in Victoria, 4.5 per cent in New South Wales—it is inexcusable. It is inexcusable to have a clogged-up, delayed justice system that is putting victims through hell not being able to have their matters finalised, that is putting defendants through hell not being able to have their day in court—and of course we do act under the presumption of innocence, so we have to presume that these people are innocent unless and until they are proven guilty. They have all this emotional anguish, and people who have been charged with serious offences sometimes lose jobs and sometimes find it hard to find new jobs. To think that those people are now in positions where they are waiting not just days and weeks but months and years to have their day in court tells us that this government has dropped the ball badly when it comes to courts, particularly on the criminal side, and the administration of justice is something which is paid lip-service to in this state rather than an actuality.

As I say, those are very troubling reports coming from the Productivity Commission. Nobody doubts their authenticity. It is based on information provided by the courts and state governments themselves. So what is the government’s plan to actually fix this? Well, of this bill they would say, ‘Well, we’re extending by 12 months the options for judge-alone criminal trials’. That is not the fix. It may be a very, very small part of the puzzle, but it is not the fix. We are yet to hear from this government any sort of agenda, any sort of policy initiatives, that actual deal with the backlog.

I have not even got onto VCAT yet. I am sure that members here would have had contact from people in their electorates—I know I have—whether they be small business people trying to deal with landlord issues, renters trying to deal with landlord issues, landlords trying to deal with tenants. To get into VCAT and have your matter heard is very difficult—almost impossible. And of course we are not talking about rich corporations that can afford to carry losses for days, weeks, months and years; often we are talking about little people, self-funded retirees for whom maybe their only source of income apart from the pension is, you know, one small investment property and they have got a tenant who maybe does not pay rent but will not leave. They need an order from VCAT to have this resolved, and they cannot get into VCAT. They simply cannot have their day in court or in the tribunal, and this government does not have a proposal, a policy, an approach to deal with this.

VCAT is still using fax technology. It is like the old contact tracing. You know, we sort of laughed, horrified, at the fact that fax machines were being used for contact tracing. Well, they are still using handwritten notes and folders with spikes in them in VCAT. We have got to get it fixed. We have got to free up the system, because people are being denied justice in this state because the government has not run the courts and tribunal system the way they should. This government can find a lot of money for cost blowouts on big projects, but when it comes to actually delivering justice to Victorians, Victorians seem to be left behind.

There are other aspects of this bill which I will turn to. In addition to the extension of the 12 months for the capacity for judge-alone trials, there is also a 12-month extension for special hearings relating to mental impairments to be heard by a judge alone. For the same reasons that the opposition does not oppose those aspects of the bill in relation to trials, it takes the same approach when it comes to special hearings relating to mental impairment. I am indebted to a number of peak legal bodies, including the Victorian Bar, the Law Institute of Victoria, the Criminal Bar Association of Victoria and others who I have consulted with in my new role as Shadow Attorney-General, and in relation to these matters at least those peak bodies were supportive of the measures contained in the bill.

The government is also proposing to delay the commencement of its de novo appeal reforms from 1 January 2023 to 5 July 2025. This was trumpeted by the government when they brought them in as being something to ensure that there would be better justice in Victoria. For those who are not aware of what those reforms entailed, essentially when a criminal matter was determined in the Magistrates Court, if the defendant was convicted or sentenced and wanted to appeal it, when it went to the County Court on appeal it would be effectively a whole new ball game. So what had gone on in the Magistrates Court, the evidence that had been given and heard in the Magistrates Court and the witness statements, would effectively be put to one side and it would be an entirely new hearing. The government decided to change that and to say, ‘Well, if you want to appeal a conviction or sentence in the Magistrates Court and you want to take that appeal to the County Court, we’re actually going to do it on the basis of the material that was led, the evidence that was given, in the Magistrates Court’. The idea was that this would help speed up the process, it may lead to fewer appeals and it would put all parties on notice that they needed to lead their best case in the Magistrates Court, because there was no guarantee you would be able to adduce any new evidence on an appeal under these reforms. The government said these reforms were about delivering better justice, delivering quicker justice and better use of resources in the court system. So the government has decided to then kick this can down the road until the middle of 2025.

So the question is: if this reform is about delivering better justice, faster justice, a better use of resources, why is the government putting it off by a further 18 months? There does not seem to be a lot of logic in that. I asked in the briefing why this was the case, and the answer that I was given was, ‘Well, the courts need more resources to be able to gear up for these reforms’. My question is: why haven’t the courts had these resources? The government introduced these reforms a number of years ago. The government has known exactly what was required to make these reforms happen. Why has the government been so slack? I cannot think of another word for it. Why has the government been so slack that it has not provided the Magistrates Court and the County Court with the resources that they need to implement this reform? If the goal of this reform is to speed up justice—better justice, faster justice and better use of the precious resources in our justice system—why have the courts not been resourced to make that happen? I will wait to hear the answer from the government on that.

The bill also extends by 12 months powers that allow for the use of audio and audiovisual links to satisfy attendance and reporting requirements for young people under the Children, Youth and Families Act 2005. Again, this would seem to be something that does make some sense. There are still issues with young people being required to attend in person, whether it is for parole matters or other forms of reporting. The ability to do this through audio or AV at the discretion of the Secretary of the Department of Families, Fairness and Housing is something which does seem to make some sense, and we do support that extension for a further 12 months.

Similarly, this bill extends by 12 months the default requirement that an adult—I do specify adult—in custody will attend a Magistrates Court contested hearing or a committal by audiovisual link rather than in person. This is perhaps a little bit more contentious, because particularly a committal hearing is a very serious part of the criminal justice process. Committal hearings take place—not in every case, but in many instances—prior to a decision to elevate a charge to the Supreme Court. For something such as murder or other serious matters, parties go through committal hearings. Generally a committal proceeding is heard in person, and if you are charged with an offence and it has been sent for a committal hearing you turn up in person in the Magistrates Court and you have your day. You may or may not give evidence, but you can certainly witness everyone who does. Again, part of our criminal justice system is that you are entitled to be there in person for your own matters. This does take that away. It does say that the default is that if you are currently in custody then you have to do it by AV, audiovisual link.

Now, the idea is that will save time in terms of transporting prisoners from prison to the Magistrates Court for criminal proceedings and for contested hearings. We will not oppose this aspect of the bill but it is one that we have to be careful of, because I think it is a fundamental principle of justice that you should be allowed to be present in the courtroom when your future—your liberty, potentially—is being determined. Now, obviously Parliament has made exemptions to that principle in a number of cases. For example, in relation to certain sex offence matters, and particularly sex offence matters involving young people, we do have vulnerable witnesses, we do have vulnerable complainants, and there are provisions for those people to be able to be give evidence outside courtrooms. But we are not talking about those situations here. Here we are talking about somebody who is currently in prison. They have been charged with presumably a serious offence, serious enough to warrant a committal hearing, and they are not allowed to be present physically for that hearing. They can do it by AV. AV is better than nothing, but it is not perfect. It is not the same as being there in person. I do think this is one we have to be very careful of, and we do need to look at whether this is something which does derogate from an individual’s rights more than is warranted. But as I say, given it is for 12 months, given it is only while the pandemic orders are in place, the opposition is not opposing this part of the bill.

This brings me to the final aspect of the bill. It is not a justice matter. It has sort of been thrown in there almost as an afterthought, but this is a real concern. I will give notice now that the opposition will be seeking to remove this aspect of the bill in the other place, because we do not think that it is right. What this aspect of the bill does is extend by six months the provision in the Occupational Health and Safety Act 2004 which deems a breach—any breach—of a pandemic order or a COVID-related public health direction to be an immediate risk to health and safety. Now, what that means is that the most minor breach of a COVID-related public health direction—the most minor breach of a pandemic order—is automatically deemed to be an immediate risk to health and safety. Why do those words matter? Those words matter because once something is an immediate risk to health and safety WorkSafe inspectors have got extraordinary powers under the Occupational Health and Safety Act. An inspector is able to use section 112 of the OH&S act to issue a prohibition notice and effectively shut down a workplace or shut down a business. A workplace inspector can use a direction under section 120 to very similar effect.

What I am concerned about with this aspect of the bill is that it is fairly lazy legislating. The government could have said, ‘Certain breaches of pandemic orders are really serious, and we are going to deem those types of breaches as immediate risks to health and safety’. But instead the government said, ‘Any breach at all of any COVID-related pandemic order or public health direction’—any breach at all, no matter how minor—‘is automatically deemed to be an immediate risk to health and safety’. The government says, ‘Don’t worry about it, because WorkSafe inspectors can be trusted. They won’t abuse that power’. That is not good enough. People should not be relying on the discretion of workplace inspectors to know what is a minor and what is a major breach. It is the government’s job to get the legislation right. The government should be saying, ‘These are serious breaches, and these sorts of breaches will be automatically deemed to be immediate risks to health and safety’.

For goodness sake, if I walk into my local cafe and the waiter or the waitress has forgotten to put their mask on or has got it under their nose, the business should not be at risk of a prohibition notice. The business should not be at risk of a direction that could shut them down or the significant penalties that arise from that. But that is what the effect of this measure is. It extends for six months what is essentially a draconian power, because it says, ‘No matter how minor the breach, no matter how effectively irrelevant it is to health and safety, we’re going to deem it to be an immediate risk to health and safety’. We have been consulting with different organisations in relation to this matter, and can I say the Housing Industry Association has come back to us and has said—and I am directly quoting:

In the absence of evidence that further extension is necessary, there is no case for this section to be extended for another six months and clause 10 should be removed from the Bill.

Similarly, we have had feedback from the Master Grocers Association, and the MGA says:

MGA is not in favour of any form of extension to point 2 that may be deemed necessary if the government is seeking to implement more pandemic orders once the current ones expire.

We have had feedback from a number of organisations that are concerned because these are extraordinary powers and they are being extended in a way which provides enormous discretion to workplace health and safety inspectors. Now, I have great respect for the work they do; I always have had. Victoria has had some of the best workplace safety records, under successive governments, and that is something that we should be proud of as a state. Everybody who goes to work should have the right to come home safely; nobody disagrees with that. But where I think people of good conscience can disagree is where we have legislation which deems any insignificant or minor breach of a public health direction to automatically be an immediate risk to health and safety. And it is the government’s obligation to explain why it wants to do that. Why can’t it say, ‘Actually, there are different types. There are certain types of breaches which we say would be an immediate risk to health and safety and others that wouldn’t be’. But instead, I say this is lazy legislating. This is the government saying, ‘Look, let’s just sweep them all up—any breach. It doesn’t matter how minor, how finicky, how irrelevant or how non-compromising to public health and safety they are, we’re just going to deem them all to be breaches, and we’ll let the inspectors sort it out’. Well, with respect, that is not the best way to legislate. That is just adding to an environment of uncertainty. A lot of our small businesses are already suffering a lot of uncertainty as it is. They do not need more of this, but that is what we are seeing in this bill.

There are aspects of this bill which we are comfortable with, as I say, on a limited basis, on a temporary basis, in relation to the extension of the option for judge-alone trials and keeping those safeguards in place so that no defendant can be required to have a judge-alone trial if they do not consent and that courts retain overall discretion to ensure that any such trial would be in the interests of justice. We do not have any particular concerns about the 12-month extension to the powers to allow for audio or audiovisual links to be used to satisfy attendance and reporting requirements in the youth justice system. We think that actually does make sense. We are slightly more concerned about extending by 12 months the default requirement that an adult in custody attends a Magistrates Court contested hearing or committal by AV link rather than in person, because we think that does infringe more on that individual’s right to be present when their liberty is on the line.

In the circumstances of this pandemic it is something that we will not die in a ditch over, but we do believe the government has got it wrong when it comes to that six-month extension on the provisions of the Occupational Health and Safety Act, which deems any breach of a pandemic order or a COVID-related public health direction to be an immediate risk to health and safety. There is a better way the government could go about giving inspectors the powers they need. There is a way they could do that without this sort of blanket approach that could lead to absurd outcomes and frankly just puts less confidence into particularly small business than they have at the moment.

What we are looking for—what is not in this bill—is any government proposals to deal with the appalling criminal case backlog we have in this state. So when you have a Magistrates Court backlog of 28.3 per cent of cases being delayed more than 12 months compared to 4.7 per cent in New South Wales, when you have 19.6 per cent backlog of more than 12 months in the Children’s Court with some of our most vulnerable Victorians compared to 4.5 per cent in New South Wales, you have got to say this government has not got it right. They have got it wrong, but there is no plan to fix it, and if we are going to recover, if we are going to rebuild, if we are going to return justice to this state and treat vulnerable Victorians appropriately, we need a lot more from this government to fix the problems in our criminal justice system.