Wednesday, 16 August 2023

Justice Legislation Amendment Bill 2023

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:40): In accordance with the Charter of Human Rights and Responsibility Act 2006 I table a statement of compatibility in relation to the Justice Legislation Amendment Bill 2023.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to improve the operation of the Victorian legal and justice systems by implementing the following reforms:

• making certain temporary provisions in the Court Security Act 1980 and the Open Courts Act 2013 permanent, with appropriate modifications, to assist the courts and tribunals to operate safely and efficiently

• legislatively recognising the role of police coronial investigators (to give effect to Recommendation 2 of the Tanya Day coronial inquest findings, Recommendation 29 of the Royal Commission into Aboriginal Deaths in Custody and Recommendation 42 of the Victorian Parliamentary Law Reform Committee Review of the Coroners Act 1985)

• amending the Spent Convictions Act 2021 to address unintended barriers to eligibility to have convictions spent, and data sharing and judgment publication

• amending the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 and the Forests Act 1958 to expand presumptive rights legislation to three additional female specific cancers

• amending the Legal Profession Uniform Law Application Act 2014 to clarify the application of the Legal Profession Uniform Law in Victoria and to enhance protections for Victorian consumers of legal services by enabling the register of disciplinary action taken against lawyers to be updated immediately

• amending the Children, Youth and Families Act 2005 to support the roll-out of the electronic Case Management System Portal in the Family Division of the Children’s Court

• amending the Jury Directions Act 2015 to clarify that certain jury directions are available in all sexual offence trials

• making minor and technical amendments to the Criminal Procedure Act 2009 to allow specified employees under the Dairy Act 2000 and Meat Industry Act 1993 to witness statements that are provided in criminal prosecution briefs

• addressing various legal and procedural issues in respect of VCAT’s jurisdiction, by amending the Victorian Civil and Administrative Tribunal Act 1998, Wrongs Act 1958, Limitation of Actions Act 1958 and Domestic Building Contracts Act 1995

• acquitting a recommendation of the Parliamentary Inquiry into Victoria’s Criminal Justice System to require mandatory notification of the Victorian Aboriginal Legal Service (VALS) where a person taken into custody self-identifies as Aboriginal, by amending the Crimes Act 1958

• amending the Victoria Police Act 2013 to maintain the existing ability to prescribe fees for the provision of a broad range of police services.

Human Rights Issues

The following rights are relevant to the Bill:

• Equality (s 8)

• Right to life (s 9)

• Freedom of movement (s 12)

• Privacy and reputation (s 13)

• Freedom of expression (s 15)

• Protection of families and children (s 17)

• Cultural rights (s 19(2))

• Right not to be deprived of property (s 20)

• Right to liberty (s 21)

• Rights of children in the criminal process (s 23)

• Right to a fair hearing (s 24)

• Rights in criminal proceedings (s 25)

• Retrospective criminal laws (s 27)

Part 2 – Amendments to the Court Security Act 1980 and Open Courts Act 2013

Court Security Act 1980

Division 1, Part 2 of the Bill amends the Court Security Act 1980 (CSA) to ensure courts and tribunals can effectively manage their premises in response to public health risks.

‘Authorized officers’ have existing powers under the CSA to ensure ‘the security, good order or management’ of court premises (such as giving reasonable directions, refusing access and seizing prohibited items). The Bill will clarify that these existing powers can be exercised for the health of persons on court premises in relation to pandemic declarations under the Public Health and Wellbeing Act 2008 (PHWA), and to ensure that relevant pandemic and public health directions under the PHWA are followed at court premises.

The CSA amendments will replace temporary provisions introduced in 2020 to address the COVID-19 pandemic. These permanent provisions will confirm that courts may introduce measures to comply with health and safety obligations to court employees and court users generally, which may mitigate delays to the administration of justice caused by transmission of illness within the courts.

Right to life

Section 9 of the Charter provides that every person has the right to life. Division 1, Part 2 of the Bill promotes this right by ensuring authorized officers can exercise their powers to maintain public health at court premises, in connection with pandemic declarations and relevant pandemic orders and directions under the PHWA. These powers include restricting physical access to the court and giving reasonable directions. This will ensure that courts and tribunals can respond adequately and in-line with relevant public health advice and to comply with health and safety obligations. These measures protect the health of persons at the premises by minimising the impact of public health risks, and thereby promote the right to life.

Right to fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to a fair and public hearing. The right to a public hearing gives effect to the principle of open justice. The CSA reforms engage this right by clarifying that authorized officers may refuse a person access to, or remove a person from, court or tribunal premises. Refusing access may be seen as restricting access to a public hearing, thereby impinging on the right to a fair hearing and the principle of open justice. Further, refusing access may also prevent a person from attending their own hearing, thereby potentially restricting their right to a fair hearing.

However, the provisions also promote the right to a fair hearing by allowing authorized officers to prevent persons who may present a health risk from compromising the health of staff and other court users or impeding the administration of justice. Further, Division 2, Part 2 of the Bill clarifies that courts may provide remote methods of access in certain circumstances, which is likely to minimise the potential impact of a person being refused physical access to court premises. Accordingly, any impact on the right to a fair hearing is reasonable and justified.

Freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely. This includes a right of access to places and services used by members of the public. Division 1, Part 2 of the Bill engages this right by clarifying that authorized officers may refuse a person access to, or to remove a person from, the court or tribunal premises. Refusing access may be seen as restricting access to a place used by members of the public.

However, any impact is reasonable and justified by the underlying intention to protect the right to life and minimise disruption to the administration of justice by courts and tribunals.

Freedom of expression

Section 15 of the Charter provides the right to freedom of expression, which includes the right to access free, independent and uncensored media and the right to seek, receive and impart information.

The CSA reforms engage section 15 by clarifying that authorized officers can exercise their existing powers to give reasonable directions for the purpose of maintaining or restoring ‘the security, good order or management’ of court premises. This would enable authorized officers, for example, to direct a person to follow a relevant pandemic order or direction under the PHWA, or take certain steps to protect the health of persons at court premises in relation to a pandemic declaration. Similarly, an authorized officer would be able to refuse a person entry to or remove them from court premises if they believe on reasonable grounds that the person is likely to adversely affect ‘the security, good order or management’ of the premises, because, for example, they are not following a relevant pandemic order or direction under the PHWA.

The exercise of these powers may be seen to impinge on a person’s right to freedom of expression in some circumstances. For example, if remote access to proceedings is not available to the public because they are held in a physically open court room, a person’s right to access information may be impacted.

However, the Charter provides that the right to freedom of expression can be subject to lawful restrictions that are reasonably necessary for certain reasons, which include the protection of public health. Pandemic orders and directions under the PHWA will have been assessed as necessary under the PHWA for the protection of public health. If a pandemic order does not extend to court premises but applying a requirement in a pandemic order to court users (for example mandating the wearing of masks) may mitigate delays to the administration of justice and/or comply with health and safety obligations, an authorized officer may need to exercise their powers to enforce such a requirement. Any impacts to freedom of expression are therefore reasonable and justified by the need to protect public health.

Further, the requirement for authorized officers, as ‘public authorities’ under the Charter, to exercise their powers in a way that is compatible with Charter rights, acts as a safeguard to ensure freedom of expression is not unduly limited.

Property rights

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right contains an internal limitation that if a person is deprived of property ‘in accordance with law’, the right will not be engaged. The CSA reforms are relevant to property rights because they confirm authorized officers will be able to use existing powers to seize or require the surrender of prohibited items and to retain the items for the new public health reasons.

Property rights are not engaged by the CSA reforms, because any removal of property by authorized officers would be done in accordance with their clearly defined and circumscribed powers within the CSA. An authorized officer must believe on reasonable grounds that the item is a prohibited item, and there are protections to ensure surrendered or seized items are retained for a period before disposal. Further, seizure powers are only enlivened in relation to prohibited items. For the purpose of the CSA reforms, items are only prohibited if they are likely to adversely affect the health of persons on court premises in relation to pandemic declarations, or the following of relevant pandemic orders and directions under the PHWA.

Open Courts Act 2013

Division 2, Part 2 of the Bill amends the Open Courts Act 2013 (OCA) to clarify permanently that providing remote public access to proceedings does not contravene any rule of law relating to open justice, if the court or tribunal is satisfied it is ‘in the interests of justice’ to provide public access to proceedings via one of three identified alternative means.

The amendments will support the effective and efficient functioning of the court system by providing certainty that remote hearings can be used as part of business-as-usual operations. They will also ensure that courts and tribunals can provide remote access to hearings conducted in a physical hearing room if it is in the interests of justice not to allow physical attendance by the public (for example, to mitigate health risks that may compromise the administration of justice).

The remote methods of access permitted by the amendments are contemporaneous audio or audio visual broadcast, to the public generally or a member of the public on request, audio or audio visual recording, again to the public generally or a member of the public on request, and, in the case of the Supreme Court, County Court or Coroners Court, a subsequent transcript.

Right to life

Section 9 of the Charter provides that every person has the right to life. Division 2, Part 2 may promote the right to life by ensuring that courts and tribunals can limit public health risks to judicial officers, staff and the community by providing non-physical public access to proceedings, if in the interests of justice. This ensures that the efficient and open administration of justice can continue when public health risks mean that it may not be safe, lawful or practicable to have physically open hearing rooms.

Right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to a fair and public hearing. A fair hearing includes a reasonably expeditious hearing. The right to a public hearing is embraced by the principle of open justice, by ensuring that the work of courts and tribunals is done under public scrutiny, which safeguards against bias and abuse of power.

Division 2, Part 2 is relevant to this right because it permits alternatives to physical public access to hearings, which has been the traditional method of public access to hearings.

The amendments may promote the right to a fair hearing in some ways. Remote access may facilitate attendance and scrutiny of proceedings by a wider sector of the public, particularly where distance, cost, or the ability to travel to a physical court or tribunal is an issue. For example, remote access enables hearings to be observed from the home, office, or a public library, and from other parts of the country (or world).

Further, clarifying that remote access does not contravene rules relating to open justice may promote expeditious hearings and, in turn, assist courts and tribunals to efficiently manage caseloads by decreasing reliance on physical hearing rooms.

Remote public access may, however, limit the right to a fair hearing to some extent. Providing access other than via a physically open hearing room involves a departure from open justice. For example, some people may not have access to the technology necessary to access contemporaneous broadcasts or to download recordings or transcripts. However, the extent of the limitation on the right is not significant, in light of the alternative modes of access provided. Although there is some encroachment on open justice where proceedings are held other than before a judge or tribunal member in a physically open hearing room, the hearing would still be public in the sense it is accessible to the public through the remote method or methods. The court or tribunal would need to be satisfied that it is in the ‘interests of justice’ to provide access to a proceeding in this manner rather than via a physically open hearing room.

Access ‘on request’ will require members of the public to seek access from the court or tribunal. In some cases, this may reduce the number of people who observe a hearing. Such request is not needed to walk into a physical hearing room or access a broadcast available to the public generally via, for example, a link on the court or tribunal’s website. Again, although this limits the right to a fair hearing, the extent of that limitation is not significant, as the court or tribunal would need to be satisfied that it is in the ‘interests of justice’ that access to a proceeding be given ‘on request’ rather than to the public generally. The option of doing so permits a court or tribunal greater flexibility to ensure the impact on open justice in a particular case is the least restrictive. There may be instances where the court or tribunal wishes to permit a contemporaneous broadcast of a proceeding, but there are concerns around confidentiality that requires the court or tribunal to be able to communicate with, or identify, persons observing the proceeding. In those cases, it may be in the interests of justice to permit access to a contemporaneous broadcast to members of the public on request, rather than at large.

Access to a hearing by way of recording or transcript is not equivalent to an open court in the way that a contemporaneous broadcast or in-person access would be. However, these methods may be necessary in limited circumstances. For example, they represent effective back-up methods of access if technological issues interrupt a broadcast or if a court is unable to respond immediately to a request for access to a contemporaneous broadcast that is received after a hearing has commenced, and physical hearing room access is not available. Providing access solely by way of recording or transcript may be in the interests of justice in some cases if, for example, the need for an expeditious hearing is so great that it outweighs the disadvantages arising from more restricted public access to the proceeding (if, for example, technological constraints mean that a live broadcast cannot be accommodated by the time the proceeding is due to commence).

Again, although this limits the right to a fair hearing, the extent of the limitation is not significant, as the court or tribunal would need to be satisfied that it is in the ‘interests of justice’ to provide access in this manner.

In deciding the ‘interests of justice’ question, the court or tribunal would balance a range of competing factors. These factors would include: the presumptions in favour of open court proceedings in sections 4 and 28(1) of the OCA; the impact of the method of access on open justice and other rules relating to open justice (for example, the right to a fair hearing under the Charter); and how justice can best be achieved, taking into account the rights and needs of the parties and broader considerations such as the efficient management of the proceeding, the efficient use of judicial and administrative resources, and the interests of the media and community at large. Bearing in mind the factors to which the court or tribunal will have regard when exercising the discretion; the extent of the limitation on the right (which is not significant); and the purpose and competing rights at which the limitation is directed, including the right to life and the efficient administration of justice, the limitation on rights is justified under section 7(2) of the Charter.

Right to freedom of expression

Section 15 of the Charter provides the right to freedom of expression, which includes the right to access free, independent and uncensored media and the right to seek, receive and impart information. These aspects of the right have been considered to statutorily endorse the open justice principle and apply to information relating to the courts.

Division 2, Part 2 is relevant to these rights because it permits alternatives to physical public access to hearings, which has been the traditional method of public access. It also permits the Supreme Court, Coroners Court and County Court to, if satisfied it is in the interests of justice to do so, make an order restricting or prohibiting publication of any transcript, or part of a transcript, provided under section 8B(1). Existing prohibitions against recording proceedings (and publishing and transmitting recordings) under sections 4A–4C of the CSA will continue to apply to broadcasts and recordings provided under section 8B(1), as they do with proceedings to which physical access is provided.

The amendments may promote the right to freedom of expression because remote access may facilitate observance of a proceeding by a wider sector of the public, as outlined in relation to the right to a fair hearing.

In other circumstances, as outlined above in relation to the right to a fair hearing, remote public access may limit access to hearings for some members of the public. Although the departure from the principle of open justice constitutes a limitation on the right to freedom of expression encompassing the open justice principle, the extent of the limitation is not significant in those cases as the Supreme Court, Coroners Court or County Court would need to be satisfied that it is in the ‘interests of justice’ to provide access to a proceeding in this manner, having regard to the right to freedom of expression. For the same reasons as outlined above in relation to the right to a fair hearing, the limitation on the right is justified under section 7(2) of the Charter bearing in mind the extent of the limitation on the right (which is not significant) and the enhancement to the administration of justice which the reforms seek to achieve.

The power for the Supreme Court, Coroners Court and County Court to make orders restricting or prohibiting publication of transcripts or parts of transcripts provided under section 8B(1) may limit freedom of expression. This power provides the flexibility for the courts to control distribution of sensitive content in transcripts if appropriate in a particular case, in the event other powers (for example, powers to make closed court orders under the OCA) do not allow for that. This recognises that once a transcript of a hearing is in the public domain, the information it contains cannot be retracted.

Although this limits freedom of expression to some extent, the extent of the limitation is not significant. The power to make orders restricting publication of transcripts or parts of transcripts ensures the default position is that transcripts or parts of transcripts may be published (subject to existing restrictions that may be in place – for example, under copyright laws, or where a non-public or suppression order is already in place over information that may have been disclosed during a proceeding). In this way, the presumption in favour of open justice is not disturbed. Before making such an order, the Supreme Court, Coroners Court and County Court would need to be satisfied that it is in the interests of justice to provide access to a proceeding by way of transcript instead of a physically open hearing room, and also be satisfied that it is in the interests of justice to place restrictions on the publication of the transcript, having regard to freedom of expression and the principle of open justice.

Freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely. This includes a right of access to places and services used by members of the public. Division 2, Part 2 is therefore relevant to this right because it clarifies that a court or tribunal may decide that it is in the interests of justice not to allow the public to physically access a hearing room and to provide access in another way. This may occur, for example, if a hearing is conducted remotely or if a hearing is held in a physical hearing room and there is too great a risk of a serious illness being transmitted if public access is allowed.

While the reforms may restrict the ability to physically access hearing rooms, this will only be possible if a court or tribunal assesses that it is ‘in the interests of justice’. Therefore, any impact on this right will be reasonable and justified to support the effective, efficient and speedy functioning of the court system.

Part 3 – Amendments to the Coroners Act 2008

Part 3 of the Bill amends the Coroners Act 2008 (Coroners Act), and consequentially the Victoria Police Act 2013, to legislatively define and recognise the role of a police coronial investigator (CI) assisting a coroner with an investigation into a reportable death. This implements Recommendation 2 of the Tanya Day inquest findings.

Right to life

Section 9 of the Charter provides that every person has the right to life. The positive duty to protect life carries a ‘procedural obligation to undertake effective coronial investigations where required’, as found in international jurisprudence and outlined by the Explanatory Memorandum to the Charter.¹

The Coroners Act amendments may promote the right to life as they will improve the effectiveness and independence of coronial investigations into reportable deaths, including deaths in custody and other police contact related deaths. The amendments will enhance the transparency of investigations by formalising the role of CIs, which has operated by way of convention to date. The amendments will provide coroners with an explicit power to direct CIs, who have a duty to comply (with appropriate exceptions), thereby enhancing the independence of coronial investigations.

Right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to a fair and public hearing. A fair hearing must be absent of influence, pressure, intimidation or intrusion. The currently undefined role of a CI may create a perceived conflict of interest in investigations involving a death in custody or other police contact deaths, given the CI’s dual role in assisting a coroner whilst fulfilling their duties as a police officer. Without a clear power for a coroner to direct a CI in a coronial investigation, a CI investigating the actions of other police officers on behalf of the Coroners Court may be perceived to be subject to influence, pressure, intimidation or intrusion. The amendments will promote the right to a fair hearing by imposing a duty on the CI to comply with the directions of a coroner, with exceptions, to create a clear separation between the coronial investigation and the CIs role as a police officer and reduce any perception of a conflict of interest arising from police investigating the actions of other police.

Rights in criminal proceedings

These amendments engage, but do not limit, rights in criminal proceedings in circumstances where both a coronial investigation and criminal investigation are on foot simultaneously.

The Bill provides that a CI need not comply with a direction of a coroner where the Chief Commissioner considers that complying would likely compromise a criminal investigation. This exception avoids a potential conflict of interest arising from the competing duties of a CI and preserves police independence in criminal investigations.

Part 4 – Amendments to the Spent Convictions Act 2021

Amendments to the definition of ‘term of imprisonment’ and eligibility to have convictions spent for children and young offenders

Expanding eligibility for spent conviction order by narrowing definition of ‘term of imprisonment’ and amending provisions relating to children and young offenders upholds section 8, 13, 17, 19 and 23 rights

The Bill amends the Spent Convictions Act 2021 (SCA) to include a narrow definition of ‘custodial term’ in place of the current, undefined reference to a ‘term of imprisonment’. These amendments create a narrow definition, including only periods where someone is physically imprisoned or detained, and excluding non-custodial sentences such as suspended sentences. As certain terms of imprisonment make a conviction ineligible to be spent, this narrow definition means that more convictions will be eligible to be spent.

The Bill also removes the requirement that children and young offenders must be sentenced under specified legislation in order to be eligible to have convictions spent under sections 9(1)(a) and 11(1)(a) of the SCA, ensuring all children and young offenders are eligible to have certain convictions spent after a 5-year conviction period or apply for a spent conviction order for relevant convictions.

These amendments may promote section 8 and section 13 rights to the extent that they expand eligibility to have a conviction spent and, as a result, may enhance a person’s ability to access human rights such as education, employment and housing, enhance a person’s protection from discrimination based on their criminal history and protect the privacy and reputation of a person who has a minor or historic conviction.

To the extent that Aboriginal people are overrepresented in the criminal justice system, these amendments may support the right under section 19(2) of the Charter to the extent that improved access to the spent conviction scheme may remove barriers for Aboriginal people to enjoy culture, maintain kinship ties and maintain connection to land, identity, traditional laws and customs.

Amending the SCA to ensure all young people are eligible to have certain convictions spent after a 5-year conviction period or apply for a spent conviction order for relevant convictions may also promote sections 17(2) and 23(3) of the Charter to the extent that it enhances a child’s protection from discrimination based on their criminal history and provides for children convicted of an offence to be treated in a way that is appropriate for their age.

Amendments to allow disclosure of spent conviction information under Family Violence and Child Information Sharing Schemes ensures appropriate exemptions to the SCA

Exemptions to disclosure are proportionate limitations on section 8, 13 and 19 rights, having regard to the need to manage risks of family violence and risks to child safety and wellbeing.

The Bill will clarify permitted disclosures of spent conviction information to enable disclosures under the Family Violence Information Sharing Scheme (FVISS) and the Child Information Sharing Scheme (CISS) in accordance with Part 5A of the Family Violence Protection Act 2008 and Part 6A of the Child Wellbeing and Safety Act 2005 respectively.

Disclosure of criminal history information, including spent convictions, between Information Sharing Entities (ISEs) under the FVISS is required for the purposes of establishing, assessing and managing risks of family violence. Similarly, disclosure under the CISS is required to enable similarly prescribed ISEs to share information to promote the wellbeing and safety of children.

To the extent the amendments limit the rights to equality before the law, privacy and reputation and, for Aboriginal people, access to distinct culture rights (sections 8, 13, 19(2) respectively) by further enabling the disclosure of spent convictions information under the FVISS and CISS, the limitations are proportionate having regard to the need to protect individuals from the risk of family violence and risks to child wellbeing and safety.

The amendments allow ISEs prescribed in the Family Violence Protection (Information Sharing and Risk Management) Regulations 2018, which include courts, police, corrections, family violence service providers, schools and public hospitals, to carry out their existing functions under the FVISS and CISS. The Bill addresses an unintended omission in the SCA by explicitly permitting the disclosure of spent conviction information for limited purposes under the Family Violence Protection Act 2008 and the Child Wellbeing and Safety Act 2005.

The current provisions of the SCA includes exemptions to allow disclosure of spent convictions for law enforcement functions. In almost all cases, these exemptions already allowed for the FVISS and CISS to operate without limitation. The Bill provides further clarity regarding these exemptions, ensuring that information sharing practices that had been lawful prior to the commencement of the SCA can continue without any limitations from the SCA.

Providing lawful exemptions for disclosure of spent convictions to protect individuals from family violence and to promote the safety and wellbeing of children is also consistent with and may promote the rights of families and children in section 17 of the Charter.

Amendments to allow data sharing for research, access to court records and publication of judgments ensures appropriate exemptions to the SCA

Exemptions to disclosure of spent convictions are reasonable and justifiable limitations on section 8, 13, and 19 rights to support research and analysis of the justice system and the principles of open justice

The Bill includes further, but limited, exemptions to the disclosure of spent conviction information by enabling disclosure by courts in the form of identified data sharing for research purposes, in the publication of judgments and in providing access to court records.

To the extent the amendments limit the rights to equality before the law, privacy and reputation and, for Aboriginal people, access to distinct culture rights (sections 8, 13, 19(2) respectively) by further enabling the disclosure of spent convictions information, the limitations are reasonable and justifiable.

Regarding disclosure of spent convictions for research purposes, the Bill addresses an unintended consequence of existing provisions in the SCA that, in some cases restricted previously permitted data sharing. Prior to the introduction of the SCA, courts and tribunals routinely shared datasets including identifying information and conviction details with research bodies. This sharing of identified data was vital to support research and analysis functions to inform the operations of the justice system. This identified data was not made publicly available and the Bill contains safeguards to ensure that this remains the case.

For example, disclosure of identified court data, including spent conviction information, by courts to the Sentencing Advisory Council (SAC) enables SAC and the courts to fulfil their statutory obligations under the Sentencing Act 1991 and supports courts to impose appropriate sentences, having regard to statistics on sentencing practices provided by SAC.

In this respect, the Bill may promote the right to equality before the law in section 8 of the Charter by enabling consistent, fair and lawful decision-making by the courts.

Disclosure of identified court data for the purposes of publishing judicial decisions and proceedings and to provide access to court records under relevant legislation, rules, regulations and the implied or inherent jurisdiction of courts and tribunals is consistent with the principles of open justice. These exemptions are consistent with section 24 of the Charter, specifically subsection (2) which provides that all judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires, or a law other than this Charter otherwise permits.

The Bill also provides a regulation making power to prescribe further bodies that can receive spent convictions information from courts and tribunals and that can disclose spent conviction information to other prescribed bodies, in recognition that such exemptions may be required for limited additional circumstances where disclosure is necessary to support the administration of justice.

Having regard to the purposes of the limitation on a person’s right to privacy, reputation and non-discrimination, and for Aboriginal people, access to distinct culture rights, these exemptions are reasonable and proportionate limitations on the rights under sections 8 and 19(2) of the Charter.

Likewise, prescribing lawful exemptions for disclosure supports a person’s right not to have their privacy or reputation unlawfully or arbitrarily interfered with, consistent with section 13 of the Charter.

Given this protection, the Bill strikes an appropriate balance between the need to support the rehabilitation of individuals and public safety and the administration of justice, and is compatible with sections 8, 13 and 19(2) of the Charter.

Part 5 – Amendments to the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 and Forests Act 1958

The Bill will amend the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (FPRC Act) and the Forests Act 1958 (Forests Act) to extend firefighters’ presumptive rights coverage to cervical, ovarian and uterine cancers.

Right to equality and protection against discrimination

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

The term ‘discrimination’ referred to in section 8(3) of the Charter is defined as:

Discrimination (within the meaning of the Equal Opportunity Act 2010 (EO Act)) on the basis of an attribute set out in section 6 of that Act.

‘Employment activity’ is identified as an attribute within section 6 of the EO Act. The proposed amendments to the FPRC Act and Forests Act create provisions that confer an additional benefit on eligible persons on the basis of certain characteristics of their employment or service, including the nature of their employment as a firefighter, volunteer firefighter or other eligible person and the duration of their service, where they are diagnosed with primary site cervical, uterine or ovarian cancer.

‘Disability’ is identified as an attribute within section 6 of the EO Act. The definition of ‘disability’ in the EO Act includes ‘the presence in the body of organisms that may cause disease’. This Bill creates provisions that prescribe which types of disease qualify for the rebuttable presumption to compensation. The proposed amendments expand the limited list of diseases to which the rebuttable presumption applies to include cervical, uterine and ovarian cancers. Existing provisions also continue to limit access to the presumptive right to those persons that have served for a qualifying period of 10 years and recognition of only cancer diagnoses which occurred on or after 1 June 2016.

‘Sex’ and ‘sex characteristics’ are both identified as an attribute within section 6 of the EO Act. The Bill expands access to the rebuttable presumptive right to compensation with reference to additional types of cancer related to sex and sex characteristics, specifically cancers that impact the female reproductive system. These provisions reduce any indirect discriminatory limitation in access to the presumptive rights scheme based on the sex and sex characteristics of the firefighter, volunteer firefighter or other eligible person.

These provisions limit the ability of certain firefighters and staff from accessing the rebuttable presumptive right to compensation by virtue of employment defined by the EO Act. Further, while these provisions expand the number of diseases recognised under the presumptive rights compensation scheme, it nonetheless continues to limit access to the rebuttable presumption for other diseases experienced by firefighters and staff. These provisions therefore may limit the rights to equality and protection against discrimination.

To the extent that these provisions do limit the rights to equality and protection against discrimination, these limitations are minor and are reasonable and demonstrably justified. The provisions will directly achieve their important purpose of assisting female firefighters and staff diagnosed with serious illnesses, by expanding their access to compensation under the Workplace Injury Rehabilitation and Compensation Act 2013. The provisions are necessary to promote the intent of the scheme, and ensure female firefighters and staff are not disadvantaged in their access to the scheme by reason only of their sex or gender. They also operate to promote substantive equality for female firefighters by ensuring female- specific reproductive cancers are also included in the presumptive rights scheme alongside male-specific reproductive cancers. Further, limiting the scope of the scheme to any disease diagnosed on or after 1 July 2016 is necessary to ensure compensation entitlements can be costed and implemented effectively, without any risks to the ongoing viability of the scheme.

Right to privacy

Section 13 of the Charter provides that a person has the right not to have their privacy, unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked. This right protects informational privacy, including a person’s medical records or health status.

An interference with privacy will not limit the right to privacy where that interference is not unlawful or arbitrary – that is, where the interference is provided for by law, and is not unpredictable, unjust, or unreasonable in the circumstances.

These provisions may be relevant to the right to privacy. Under the existing provisions of the FPRC Act and the Forests Act, WorkSafe Victoria will request that the relevant advisory committee provide an expert opinion on whether a claimant is eligible for compensation.

The committee will consider personal information including relevant records, volunteer or employment data and local knowledge. This access to information may interact with a claimant’s right to privacy.

However, these provisions do not unlawfully or arbitrarily interfere with a person’s privacy. This is because the FPRC and the Forests Act specifies the parameters of the information required to be disclosed, and the Firefighters’ Presumptive Rights Compensation Regulations 2019 and Forests (Forest Firefighters Presumptive Rights Compensation) Regulations 2022 provide that a claimant’s information must be treated as confidential.

Collection and use of the information is also required to maintain the integrity of the compensation scheme as a whole.

Therefore, any engagement with a claimant’s privacy does not constitute an unlawful or arbitrary interference and is consistent with section 13 of the Charter.

Freedom of expression

Section 15 of the Charter provides that all persons have the right to freedom of expression. This includes the right to impart information, including through any medium that the person may choose, or a right not to impart information at all.

These provisions may be relevant to a claimant’s right to freedom of expression by requiring that they provide certain information to support the eligibility assessment by the relevant advisory committee. Information required to be disclosed may include personal information including relevant records, volunteer or employment data and local knowledge.

However the requirement to impart personal or confidential information, including medical information, is reasonably necessary to verify the claimant’s eligibility to the rebuttable presumption and maintain the integrity of the compensation scheme as a whole.

To the extent that freedom of expression under section 15 is limited by the requirement to provide information, the limitation is reasonable and demonstrably justified.

Part 6 – Amendments to the Legal Profession Uniform Law Application Act 2014

Right to privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) states that a person has the right not to have their reputation unlawfully attacked. An interference with the right to privacy and reputation is justified if it is both lawful and not arbitrary. An interference will be lawful if it is permitted by law which is precise and appropriately circumscribed and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sort.

The amendments relating to the register of disciplinary action (RODA) engage the right to privacy and reputation by allowing the immediate publication on the publicly available RODA of information about lawyers who are subject to disciplinary action determinations. Section 150C of Legal Profession Uniform Law Application Act 2014 prescribes the information that may be included on the RODA, which includes a lawyer’s full name, address for service, home jurisdiction and particulars of the disciplinary action. The immediate publication of disciplinary action determinations on the register is for the legitimate purpose of promoting transparency and protecting consumers of legal services and accordingly does not constitute an arbitrary interference with privacy and reputation.

The amendment is proportionate to the need to strengthen consumer protections and information will only be published after a determination is made. The proposed reforms will support the community to access accurate and up to date information about a legal practitioner and in turn better equip them to make an informed decision about whether to engage that legal practitioner. Accordingly, the amendments are consistent with the right to privacy and reputation.

Part 7 – Amendments to the Children, Youth and Families Act 2005

The Bill will promote the right to equality before the law (section 8) by increasing access to justice for Victorians. Currently, court users may be required to travel significant distances to physically file documents with registry. These amendments will reduce the need for travel by enabling certain applications to be filed online. As such it will ensure that court users, including those with disabilities and who live in rural or regional areas, can access registry services more easily.

Part 8 – Amendments to the Jury Directions Act 2015

Part 8 of the Bill will clarify that certain jury directions are available in all sexual offence trials. These jury directions address misconceptions about:

• the continuation of relationship or communication after a sexual offence;

• the absence of physical injury, violence or a threat;

• responses to a non-consensual act;

• other sexual activity;

• personal appearance and irrelevant conduct;

• non-consensual sexual acts occurring between all sorts of people; and

• general assumptions not informing a reasonable belief in consent.

These amendments will confirm that trial judges can give these jury directions in trials involving charges that do not include lack of consent as an element, such as trials for sexual offences against children. These directions can assist juries in better assessing the evidence and reaching a verdict. They also guard against a jury making incorrect assumptions as to these issues, promoting victim-survivors’ rights and achieving fairer outcomes in proceedings for all sexual offences.

These reforms promote the protection of families and children under section 17, the right to a fair hearing under section 24 and rights in criminal proceedings under section 25 of the Charter. They do so by clarifying the availability of existing directions that make it easier for juries to apply the law.

Limitation of rights

Clause 62 inserts a transitional provision to apply the Bill’s amendments to proceedings where offences may have been committed before the new provisions commence. This may engage the protection against retrospective criminal laws under section 27 of the Charter.

Section 27(1) of the Charter provides that a person must not be found guilty of a criminal offence because of conduct that was not an offence at the time the conduct was engaged in. Accordingly, while section 27 prohibits imposing criminal liability where previously there was none, it does not prohibit retroactivity in respect of procedural laws. This includes changes to the rules of evidence or other procedural elements such as, in this case, the content of jury directions, given they relate to how the trial is conducted, and do not themselves impose criminal liability. This is consistent with the operation of the equivalent provision of the International Covenant on Civil and Political Rights, whereby article 15(1) does not extend to changes in procedural law. This also reflects the statutory interpretation principle that the presumption against retrospectivity does not extend to laws that are merely procedural.

Accordingly, Part 8 of the Bill, and in particular clause 62, does not limit the right against retrospective criminal laws under section 27 of the Charter.

Part 9 – Amendments to the Criminal Procedure Act 2009

This is a minor and technical amendment that inserts specified inspectors to Schedule 3 to the Criminal Procedure Act to allow witnessing of statements contained in criminal briefs. No human rights are affected.

Part 10 – Amendments to the Victorian Civil and Administrative Tribunal Act 1998, Wrongs Act 1958, Limitation of Actions Act 1958 and the Domestic Building Contracts Act 1995

Part 10 of the Bill is compatible with the Charter. The amendments engage the right to a fair hearing (section 24) by increasing access to justice for Victorians. The reforms seek to do this by increasing court and tribunal efficiencies, clarifying jurisdictional uncertainty and preventing previous decisions made in good faith from being invalid. These reforms seek to empower parties to access fair justice.

To ensure that past Victorian Civil and Administrative Tribunal (VCAT) decisions made under the previously understood scope of VCAT’s jurisdiction are effective, the Bill deems that parties have the same rights and liabilities purportedly established by those decisions from those decisions until the commencement of this Bill. While recent Supreme Court decisions have only highlighted the consequences of previous High Court decisions that ruled VCAT is not a ‘court’ rather than extending the meaning, its clarity in holding that VCAT does not have jurisdiction to determine ‘indirect’ federal law matters has had a significant impact.

This is because there was a widespread assumption and honest belief that VCAT had jurisdiction to determine ‘indirect’ federal law matters. The curative provisions are therefore considered an appropriate response given the high volume of past decisions made in good faith but which are now invalid.

The Bill provides necessary certainty regarding parties’ rights and liabilities, and ensures that past VCAT decisions cannot be challenged solely on technical jurisdictional grounds. Any limitation is confined, because parties may challenge the deemed statutory rights and liabilities, and rights to appeal on other grounds are not affected. For these reasons, the Bill strikes an appropriate balance between the public interest in legal certainty and the right to a fair hearing, and any limitations on fair hearing rights are reasonable and justified.

Part 11 – Amendments to the Crimes Act 1958

Part 11 of the Bill amends the Crimes Act 1958 to make clear that if a person self-identifies as an Aboriginal person, police must notify the VALS. This is in addition to the existing requirement for VALS to be notified when police are of the opinion that the person is an Aboriginal person.

Over the past decade, there has been a significant increase in the number of Aboriginal people remanded in custody. The potential devastating effects of time spent in custody have been well documented, from the 1991 Report of the Commission into Aboriginal Deaths in Custody to the recent Parliamentary Inquiry into Victoria’s Criminal Justice System (the Inquiry) and the Coronial Inquiry into the passing of Veronica Nelson, a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman who died at Dame Phyllis Frost Centre on 2 January 2020.

Section 464FA of the Crimes Act provides for a process known operationally as the Custody Notification Service. It requires that VALS be notified within an hour of an Aboriginal person being taken into custody. Under the current provisions, Aboriginality is to be determined for the purposes of triggering the notification requirement by the opinion of the investigating official, who must have regard to any statement made by the person as to whether they are an Aboriginal person.

In its submission to the Inquiry, VALS reported that it was aware of incidents in which the validity of a person’s self-identification as Aboriginal had been questioned by investigating officials. VALS reports that it has its own processes for cases where a person’s Aboriginality is in question, and that it is never appropriate for officials to prefer their own judgement or evidence from records over a person’s self-identification. The report of the Inquiry subsequently recommended that section 464FA be amended to provide that an investigating official must contact VALS in all circumstances where a person taken into custody self-identifies as an Aboriginal person. The Bill enacts this recommendation, thereby strengthening the protection of human rights.

Recognition and equality before the law

Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

Aboriginal people are disproportionately affected by contact with the criminal justice system, including in respect of overrepresentation in custody. The amendments in Part 11 of the Bill provide for prompt, mandatory notification to VALS where a person in custody identifies as an Aboriginal person, thereby upholding the right to equality by ensuring Aboriginal people have ready access to appropriate legal assistance and other support. It also ensures self-identification is preferred over the opinion of investigating officials, allowing VALS to use its own culturally appropriate processes for determining if a person is Aboriginal. However, investigating officials can still make a referral if the person does not self-identify but the official knows or is of the opinion the person is Aboriginal, particularly in circumstances where an accused may be unable to communicate. This ensures notification occurs as broadly as possible, enabling Aboriginal persons to be appropriately offered cultural support in custody. A person who does not wish to use the support can advise that when VALS offers it.

While this section of the Crimes Act continues to operate to protect Aboriginal people as a group, rather than all people, it will not result in less favourable treatment of other groups of people. However, if it did have this effect, section 8(4) of the Charter provides that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination will not constitute discrimination. The purpose of the amendment is to protect Aboriginal people from discrimination, both in the justice system specifically and more broadly, that results in an overrepresentation of Aboriginal people in custody. In this context, it is appropriate for Parliament to strengthen laws aimed at reducing this discrimination and its impacts.

Liberty and security of the person

Section 21 of the Charter provides that every person has the right to liberty and security, and that the arrest and detention of any person must be both lawful and not arbitrary.

The amendments to the Crimes Act in Part 11 of the Bill promote the right to liberty by ensuring that Aboriginal people, who are overrepresented in the criminal justice system, receive prompt, culturally appropriate legal assistance and support for their needs in custody. Effective legal representation gives accused people a better chance at being granted bail or being otherwise released from custody, and guards against a person being held in custody where it is not warranted. Furthermore, culturally appropriate legal assistance of the kind offered by VALS ensures specific attention is given to the specific needs or sensitivities of an Aboriginal person being held in custody, helping to address the documented disproportionate impact of contact with the criminal justice system on Aboriginal people.

Right to privacy and reputation

Section 13 of the Charter provides a person has the right not to have their privacy unlawfully and arbitrarily interfered with. However, this right has internal limitations that allow for lawful and non-arbitrary interference with a person’s privacy.

The amendment requires police to notify VALS if a person self-identifies as an Aboriginal person. Police must also notify VALS if they know or are of the opinion that an accused person is Aboriginal, even where there is no self-identification. In both circumstances, the notification must be made regardless of whether that person authorises the sharing of information. The notification will continue to be automatic upon police entering information about Aboriginality into police records. While this may interfere with a person’s right to privacy, the interference is non-arbitrary. The purpose of notification is to protect and promote the rights of an accused Aboriginal person in custody by ensuring that they receive an offer of culturally safe legal assistance, as well as access to appropriate care and treatment in custody.

As a result, the impact on the right to privacy is reasonable, appropriate and justified by the purpose of the amendment.

Part 12 – Amendments to the Victoria Police Act 2013

The amendment to the regulation making power in Schedule 5 of the Act amends a mistaken omission in upcoming legislation. No human rights are affected.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

¹Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006, 10.

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:40): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Justice Legislation Amendment Bill 2023 amends a number of Acts to support the courts and the Victorian Civil and Administrative Tribunal and improve the operation of the Victorian justice and legal systems.

Making temporary measures permanent to assist the efficient operation of the courts

The Bill will assist the courts to operate efficiently and safely, by making temporary measures in the Open Courts Act 2013 and the Court Security Act 1980 permanent, with appropriate modifications.

The Bill will continue to support remote public access to court and tribunal hearings by:

• providing certainty about when remote hearings can be used as part of business-as- usual operations, and

• allowing courts and tribunals to provide alternatives to physical access if hearings are conducted in a physical court room but it is in the interests of justice not to allow physical attendance by the public (for example, to mitigate health risks).

This will, in turn, support more efficient and accessible services and facilitate broader public access to court and tribunal proceedings. For example, non-physical access enables members of the public and the media to observe proceedings from their home, office, or public library. This may enhance open justice by offering greater convenience, particularly where distance, cost, or the ability to travel to a court or tribunal is an issue.

The Bill will also confirm that authorized officers can use their existing powers to effectively manage court and tribunal premises in response to public health risks.

The provisions would allow authorized officers to restrict access to court and tribunal premises and/or give reasonable directions for the health of all persons on the premises when a pandemic declaration is in force, or to ensure that relevant pandemic and public health directions under the Public Health and Wellbeing Act 2008 are followed at court and tribunal premises.

This will provide certainty that courts and tribunals can take steps to comply with health and safety obligations to their employees and court users generally, and mitigate delays caused by transmission of illness.

These reforms will support courts and tribunals to continue managing their premises safely and to use digital technologies to administer justice flexibly, effectively and efficiently.

Implementing Recommendation 2 of the Tanya Day coronial inquest findings

The Bill will implement Recommendation 2 of the Tanya Day coronial inquest findings to provide clarity around the role of police coronial investigators in coronial investigations into reportable deaths. It will also give effect to Recommendation 29 of the Royal Commission into Aboriginal Deaths in Custody and Recommendation 42 of the Victorian Parliamentary Law Reform Committee Review of the Coroners Act 1985.

The role of the police coronial investigator has operated by convention and informal arrangements between the Coroners Court and Victoria Police to date. The Bill will provide a coroner with an explicit power to direct a coronial investigator, who will have a duty to comply with all reasonable and lawful directions. There will be a narrow exception to the duty to comply, for directions that are, in the opinion of the Chief Commissioner, unreasonable or likely to compromise a criminal investigation. The Coroners Act reforms will improve the transparency and independence of the coronial system by providing a clear legislative framework around the role of the coronial investigator.

Improving the operation of the Spent Convictions Act 2021

Addressing barriers to eligibility under the Spent Convictions Act

The Bill will remove unintended limitations to eligibility to have convictions spent. In particular, the reforms remove the requirement for children and young offenders to have been sentenced under specific legislation to be eligible to have their convictions spent automatically after a conviction period of five years or, for serious convictions, to be eligible to apply to the Magistrates’ Court to have their convictions spent.

The spent convictions scheme is particularly important for children and young people, giving them a chance to rehabilitate and re-integrate into society despite past offending. These reforms ensure that these benefits are available to all children and young people.

The Bill also addresses the lack of definition of ‘term of imprisonment’ in the Spent Convictions Act. The length of a term of imprisonment imposed for a conviction reflects the seriousness of that conviction, determining whether and when a conviction can be spent. However, without a definition, imprisonment can be interpreted as including sentences such as suspended sentences, home detention or intensive corrections orders. In these cases, courts have imposed sentences that do not involve physical imprisonment or detention and these sentences should not be given the same level of seriousness as convictions involving actual time in prison or detention.

To address this, the reforms create a new definition of a ‘custodial term’, which is defined narrowly to include only periods where someone is physically imprisoned or detained. This narrow definition means that more convictions will be eligible to be spent, ensuring that the benefits of the Spent Convictions Act are extended to support more Victorians to rehabilitate and move on with their lives.

Allowing appropriate exemptions to the Spent Convictions Act for family violence and child information sharing, data sharing for research, access to court records and publication of judgments

The Bill addresses urgent, unintended limitations to the Family Violence Information Sharing Scheme, established under the Family Violence Protection Act 2008, and the Child Information Sharing Scheme, established under the Child Wellbeing and Safety Act 2005.

The current drafting of the Spent Convictions Act includes exemptions for law enforcement agencies and courts to share spent conviction information, recognising that disclosure of past offending, including spent convictions, is crucial to manage safety and risk in our community. In almost all cases, these exemptions allowed for the family violence and child information sharing schemes to operate without limitation. However, this Bill provides certainty, making it clear that all aspects of these important information sharing schemes can operate without limitations from the Spent Convictions Act.

Additionally, the Bill provides for regulations to prescribe further bodies that can receive spent convictions information from courts and tribunals and that can disclose spent conviction information to other prescribed bodies. This allows the flexibility for the Spent Convictions Act to respond to community safety needs by allowing the disclosure of spent convictions where appropriate.

The Bill also clarifies that current practices to share data for research purposes, as well as existing access to court records and publication of court judgments, are not affected by the Spent Convictions Act. Furthermore, the Bill ensures that it is clear that Court Services Victoria can support courts and tribunals to carry out their functions under the Spent Convictions Act. While many of these actions were permitted under the existing drafting of the Spent Convictions Act, the reforms provide clear and appropriate exemptions to support the smooth and effective operation of our justice system.

The Bill supports a robust, effective spent convictions scheme that makes sure the actions of the past no longer unfairly impact people’s future, while maintaining access to convictions where needed for our justice system to operate effectively and keep people safe.

Expanding the presumptive rights scheme to include three additional cancers affecting female firefighters

The Victorian Government acknowledges the significant risks and dangers that firefighters and other fire services personnel are exposed to in the course of their service, including increased susceptibility to certain types of cancer. In 2019 the government legislated the firefighters’ presumptive rights compensation scheme to make the process of applying for compensation less onerous for Victorian firefighters engaged by Fire Rescue Victoria and the Country Fire Authority. The scheme recognises the invaluable service provided by firefighters and the dangerous work that they do.

In 2022, the Scheme was extended to apply to forest firefighters engaged by Forest Fire Management Victoria and to vehicle and equipment maintenance employees engaged by Fire Rescue Victoria and the Country Fire Authority.

In June of this year, the Government made a public commitment to further extend the scheme to cover three female specific cancers - primary site cervical, ovarian, and uterine cancers. This Bill delivers on this commitment and amends the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 and the Forests Act 1958 to extend presumptive rights coverage to female career and volunteer firefighters and vehicle and equipment maintenance employees who contract primary site cervical, ovarian, and uterine cancers.

Presumptive rights for cervical, ovarian and uterine cancers will be subject to a qualifying period of 10 years to align with other Australian and international jurisdictions. It will relate to cancer diagnoses on or after 1 June 2016, which is in line with cancers already included under Victoria’s presumptive rights legislation.

This expansion of presumptive rights to include the additional three cancers follows consultation with key stakeholders and will ensure more equitable access to cancer compensation for female firefighters.

Clarifying how the Legal Profession Uniform Law applies in Victoria and enhancing consumer protections for legal service consumers

The Bill clarifies legislative uncertainties about how the Legal Profession Uniform Law applies in Victoria and enhances consumer protections for Victorian legal service consumers.

The Bill clarifies that the offences of causing a deficiency in a trust account and the improper destruction of regulated property are indictable offences that are triable summarily. Both offences prescribe a maximum penalty of 500 penalty units or 5 years’ imprisonment or both. Despite this penalty exceeding the jurisdiction of the Magistrates’ Court, a technicality in the language used to prescribe these penalties in the uniform legislation has resulted in these offences being classified as summary offences in Victoria and subject to a 12-month limitation period for commencing prosecution. This has created a practical impediment to prosecuting these matters as there is often a significant delay in detecting complex trust accounting deficiencies or the mishandling of property. These amendments will support more effective prosecution of this conduct, ensure penalties are commensurate with the conduct and provide an effective disincentive to inappropriate conduct.

The Bill amends the legislative framework for the register of disciplinary action for Victorian lawyers, to increase consumer protections and better align with the frameworks in other participating jurisdictions of the uniform law scheme. Presently, the Victorian Legal Services Board cannot publish on the register of disciplinary action any details of a determination of unsatisfactory professional conduct under section 299 of the Legal Profession Uniform Law. This is because section 150E of the Legal Profession Uniform Law Application Act 2014 (LPULA Act) provides that the Victorian Legal Services Board must not publish information until the time limit for an appeal against the determination is expired and no time limit is currently specified. The Bill addresses this by providing a 28-day time limit for appealing a determination under section 299 of the Legal Profession Uniform Law. Section 150E of the LPULA Act is also repealed to allow the immediate publication of disciplinary action outcomes on the register of disciplinary action. Correspondingly, if a disciplinary action is quashed on appeal the details must be removed from the register of disciplinary action. Appropriate transitional measures are included to minimise impacts on affected legal practitioners.

Supporting the roll-out of the Case Management System in the Family Division of the Children’s Court

Part 7 of this Bill will make technical amendments to the Children, Youth and Families Act 2005 to support the Children’s Court of Victoria in performing its functions electronically. These reforms will modernise registry services and improve the efficiency of court operations by enabling certain documents to be filed electronically. They will deliver an improved court-user experience by reducing the need to print out documents, travel to court locations and join registry queues.

Clarifying that certain jury directions are available in all sexual offence trials

In 2022, new jury directions were introduced to address some common misconceptions that arise in the context of sexual offence trials. This included a direction, recommended by the Victorian Law Reform Commission, addressing misconceptions about why a person would continue a relationship or maintain contact with an accused after a sexual offence.

The current wording of this direction refers to a lack of consent to sexual acts. This reference to ‘consent’ created uncertainty about whether it could be used in proceedings for offences which do not require the prosecution to prove lack of consent, such as sexual offences against children. As this misconception can arise in such cases, and should be addressed where relevant, the Bill clarifies that the direction can be used in proceedings related to all sexual offences.

Similarly, the Bill clarifies that other jury directions related to consent and reasonable belief in consent may be given in relation to all sexual offences, regardless of whether lack of consent is an element. These directions may address, for example, that sexual offending can occur without physical injury being caused to the victim. Existing processes for determining whether directions should be given will apply – for example, the judge must have good reasons for giving the direction.

Allowing certain authorised officers to witness statements in criminal prosecution briefs

Authorised employees of PrimeSafe and Dairy Food Safe Victoria are tasked with investigating and carrying out prosecutions under the Meat Industry Act 1993 and Dairy Act 2000 respectively. But the Criminal Procedure Act 2009 does not allow them to witness statements that are used to prosecute these matters in court, resulting on this burden falling on others, such as police. To improve justice system efficiency, the Bill will allow these authorised employees to witness such statements.

Addressing various legal and procedural issues in respect of the Victorian Civil and Administrative Tribunal’s jurisdiction outlined in Thurin v Krongold and other Supreme Court decisions

The Bill will address various legal and procedural issues in respect of the Victorian Civil and Administrative Tribunal’s (VCAT’s) jurisdiction which have been outlined in recent Supreme Court decisions. These reforms will provide certainty about the jurisdiction and rights of parties in impacted cases, noting that this parliament cannot legislate on matters of Commonwealth constitutional law that limit the operation of tribunals.

The Court of Appeal’s decision in Thurin v Krongold¹ (Krongold) late last year highlighted that, because of certain provisions in the Commonwealth Constitution, VCAT does not have jurisdiction over cases that indirectly raise matters of federal law. The decision will require the transfer of many cases intended to be heard by VCAT to the courts. Currently, orders to transfer cases can only be made by VCAT’s judicial members.

In response to Krongold, the Bill will implement several reforms in the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to minimise delay and clarify uncertainties faced by litigants in affected matters. The reforms will:

• expand the class of VCAT members who can make orders to transfer federal jurisdiction matters to a court for determination,

• provide courts with the power to extend the limitation period for federal jurisdiction matters referred to them by VCAT, and

• preserve the rights and liabilities of parties involved in previous VCAT decisions which are no longer valid due to the matters having an ‘indirect’ connection to federal law.

The Part 10 retrospective validation amendments have been included as they are considered an appropriate response in this context given the high volume of past decisions which are now invalid on the basis of the recent findings that VCAT lacks the required jurisdiction. Commentary from the legal profession regarding Krongold and Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property)² demonstrates that the profession views these decisions as having effectively reduced the previously-understood scope of VCAT’s jurisdiction in a significant way. The Bill will provide litigants with certainty, avoid the need for litigants to spend additional time and money having their disputes re-heard at courts, and avoid the risk of the courts receiving an influx of applications to re-hear previous VCAT matters.

The Bill will also support efficiencies by empowering the courts to continue to hear domestic building matters that would otherwise be transferred to VCAT, where an assessment has been made that the action may raise a controversy involving federal subject matter in the future. This will prevent parties from being ‘passed back’ to VCAT despite there being a strong chance that the matter will need to be transferred to a court due to federal jurisdiction issues arising.

Other recent decisions by the Supreme Court and VCAT have found that the Victorian Limitation of Actions Act 1958 (Limitation of Actions Act) does not apply to VCAT proceedings, and that VCAT does not have jurisdiction to make rulings on contribution claims and contributory negligence claims under the Victorian Wrongs Act 1958. These decisions are both contrary to what had previously been assumed by VCAT and the legal profession and do not reflect government’s intention. The Bill will remove these anomalies in VCAT’s jurisdiction by:

• clarifying that the Limitation of Actions Act applies to VCAT proceedings,

• clarifying that VCAT has jurisdiction to determine claims under Part IV and Part V of the Wrongs Act, to avoid the need for over a thousand VCAT cases to be transferred to a court for resolution, and

• preserving the rights and liabilities of parties involved in previous VCAT decisions on claims which were unknowingly made without jurisdiction.

These reforms will make critical changes to complex legal issues impacting parties, the legal profession and Victoria’s Court system.

Ensuring the Victorian Aboriginal Legal Service is notified in all circumstances when a person taken into custody self-identifies as Aboriginal

Part 11 of the Bill makes changes to the Crimes Act 1958 to ensure that the Victorian Aboriginal Legal Service (VALS) is contacted in all cases where a person taken into custody identifies as Aboriginal. This change is important to ensure VALS is able to provide prompt, culturally appropriate legal assistance to Aboriginal people who come into contact with the justice system – a key factor in tackling the overrepresentation of Aboriginal people in custody.

Whenever an Aboriginal person is in custody, Victoria Police are required to notify VALS. Currently, a notification to VALS is only required where an investigating official is of the opinion that a person is Aboriginal. While an official must take any statements by the person into account, a statement of self-identification is a consideration rather than a mandatory trigger for notification. This amendment will make sure that a statement of self- identification as an Aboriginal person always meets the threshold for mandatory notification, regardless of any other factors or opinions held by investigating officials. Investigating officials may still notify VALS if they know or are of the opinion the person is Aboriginal. This may be in circumstances where the person is unwilling or unable to self- identify, for example, if they are unwell.

This amendment responds to a recommendation from the report of Parliament’s Legal and Social Issues Committee’s Inquiry into Victoria’s criminal justice system.

Maintaining existing regulation making power to prescribe fees for the provision of a broad range of police services

An amendment is included to the regulation making powers in the Victoria Police Act 2013. Currently, the Act enables the regulations to prescribe fees for a range of services provided by police personnel, in particular for the deployment of resources to search and provide information. This amendment will prevent the mistaken removal by a previous Bill of the existing power of the regulations to prescribe the fees for the range of services that police personnel provide.

I commend the Bill to the house.

¹[2022] VSCA 226.

²[2023] VCAT 233.

James NEWBURY (Brighton) (10:40): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Anthony CARBINES: I move:

That the debate be adjourned for 13 days.

James NEWBURY (Brighton) (10:40): I am absolutely outraged. I am outraged. I am shocked. I am absolutely outraged. We have had several weeks running where the government has tried to ram through legislation, and it is a very thin number of bills they have. All this shows is the government cannot manage its own legislative program. We have yet to, in this chamber, debate the budget take-note motion this week. We have not had the opportunity to debate it yet.

We spent almost the entire day yesterday debating one of the government’s own sledge motions, and we have now seen the government introduce a bill and try to push through this new bill within 13 days, breaching the longstanding convention. This has happened so many times in this Parliament. In fact I would say there have been more instances of this government breaching the convention of a two-week layover of a bill than has ever happened in this Parliament before. In the short life of this arrogant government – a government that frankly is already in civil war – and in the short life of this term they have done it more than it has been done in the entire time of this Parliament. It is not just a convention that has stood in Victoria but a convention that has stood in the Westminster system for the best part of a century. It is a convention that exists for a reason. The convention of a two-week layover of a bill is there for a reason.

We know the government is embarrassed. We know why the government is shouting and full of bluster. It is because they do not want the community to see what they plan to do. That is the problem. They have been caught. They have been sprung. They do not want the community to know what they are doing. They cannot manage their own legislative program, so they take every opportunity to ram it through – sometimes, as is the case here, when we have not had an opportunity to read the legislation yet. This is the Justice Legislation Amendment Bill 2023, but we saw it with the budget. How outrageous. How outrageous was that, ramming through new tax bills without providing the community any opportunity to see the pernicious taxes that the government was introducing and slamming onto the Victorian community. We have seen it again today. In this short term we have seen the government push through bills in a way that we have not seen in the life of this Parliament. The breaches of convention are absolutely outrageous. It is absolutely outrageous what the government is doing. It is another example of the mismanagement of this place, which is clear for all to see.

It is absolutely clear for all to see. Victorians should have a right to see the bills that are introduced into this place. They should have an opportunity to consider them. Organisations that are interested, that work in the field, and industry should have an opportunity to consider the bills that are introduced into this place. That is why this Parliament, that is why the Westminster system, has a convention of ensuring a minimum time for the community to look at what governments are proposing. But the government does not care. That is why they are doing it again; they are ramming through another bill – another instance of not allowing the community to see what they are doing. This is just a clear example of the government mismanaging this place, mismanaging their program and hiding what they are doing, as they did with the budget taxes. They slammed the budget taxes through this place. What a disgrace. I would say the coalition will oppose what the government is trying to do today, to ram another bill through this place, not allowing the community an opportunity to see it. We will vote against it.

Danny PEARSON (Essendon – Minister for Government Services, Assistant Treasurer, Minister for WorkSafe and the TAC, Minister for Consumer Affairs) (10:45): What an absolute load of hogwash from the member opposite. This faux outrage, being lectured on parliamentary standards from the Liberal Party – the Liberal Party who, for example –

James Newbury: On a point of order, Deputy Speaker, this is a tight procedural debate over timing of an adjournment. It is not an opportunity to receive a lecture from, especially, this member about standards.

The DEPUTY SPEAKER: The Assistant Treasurer had just begun, and you did open the door a little bit in your opening, so I would be appreciative if we all stuck to the adjournment of debate in question.

Danny PEARSON: Thank you, Deputy Speaker. The issue here is that the member for Brighton is taking exception to the fact that we are seeking a 13-day adjournment rather than 14 days, and he is complaining that this is somehow in breach of parliamentary standards – this from a party who ratted on a pair deal in our first term of government –

James Newbury: On a point of order, Deputy Speaker, this is not a grievance debate, this is a tight procedural debate.

Danny Pearson: You started it, mate, and I’m finishing it.

James Newbury: Deputy Speaker, may I ask you to ask the member to calm down. I am perfectly entitled to raise a point of order without being attacked from across the table.

Mary-Anne Thomas: Deputy Speaker, on the point of order, the adjournment debate goes to the matter of parliamentary standards, and I ask that you rule the objection raised by the Manager of Opposition Business null and void. The minister on his feet was being entirely relevant to the debate, and I ask that you enable him to continue.

Cindy McLeish: On the point of order, Deputy Speaker, I rise to support the member for Brighton. As you have heard, the minister across the table has –

The DEPUTY SPEAKER: Thank you, member for Eildon. On the point of order, I think the Assistant Treasurer had spoken for 12 or 13 seconds. The Assistant Treasurer to continue on the debate. There is no point of order.

Danny PEARSON: Thank you, Deputy Speaker. As I said, we will not be taking lectures from those opposite on parliamentary procedure, given the fact that they have been serial offenders when it comes to parliamentary procedure, be it in terms of ratting on pair deals, be it on kicking a former Leader of the Government in the other place out for six months –

James Newbury: Deputy Speaker, on a point of order, this is now just grubby muckraking. I would say this is a tight procedural debate, and just because he is throwing muck in a short amount of time does not make it right.

The DEPUTY SPEAKER: Order! There is a bit going back and forth here, and I do not want the next 22 minutes to be persistent points of order. On the procedural debate in front of us, the Assistant Treasurer to continue.

Danny PEARSON: Thank you, Deputy Speaker. What the government is proposing is a 13-day adjournment. If the opposition are incapable of consulting with various stakeholders about this bill – a very important bill which, for example, will ensure that female firefighters have presumptive rights extended to three female cancers – and if they somehow cannot get their act together to get briefed on this bill in 13 days and they want to just save their homework to do it the night before Parliament resumes, that is their problem; that is not our problem. Thirteen days is more than enough time for those opposite to be briefed on this bill and to consult about this bill. Right? It is just faux outrage. For the member for Brighton this is more to do with a job advertisement for a vacancy in the seat of Goldstein.

James Newbury interjected.

The DEPUTY SPEAKER: Member for Brighton, I think I can pre-empt your point of order. The minister had started –

James Newbury: On a point of order, Deputy Speaker, disappointingly the member’s behaviour is reflecting on him, and I ask you if you would mind bringing him back to the motion. This is just an embarrassment, and he clearly is not debating the motion at hand.

The DEPUTY SPEAKER: The Assistant Treasurer had started to stray a little bit, and I bring him back.

Danny PEARSON: Thank you, Deputy Speaker. Again, what is being proposed by the government is more than fair and reasonable – 13 days. If those opposite had any backbone, any capacity for work, they would be able to get across the details of this bill within 13 days.

James Newbury interjected.

The DEPUTY SPEAKER: The member for Brighton – recurring points of order on the same. I am listening to the debate. I have not called you. The time is effectively over for the minister, and I think we spent much more time on points of order. I am going to rule them out a lot more quickly if we have persistent frivolous ones.

Annabelle CLEELAND (Euroa) (10:51): I would also like to rise and speak in support of the member for Brighton, because this is absolutely preposterous and outrageous –

A member interjected.

Annabelle CLEELAND: I am not responding to you, because I am freestyling, which I am very, very good at, so pipe down. I am echoing his concerns about due diligence which this government fails to adhere to and then wonders why there are statewide distrust and concerns about corruption. My wonderful member for Mildura wants me to freestyle. I will adhere to parliamentary language, obviously.

A member interjected.

Annabelle CLEELAND: Yes, that is what we believe as well, which is why we think that there should be an adequate two weeks of consultation, and anything less is completely inadequate. What the Minister for Police has presented is a really important piece of legislation which we do take seriously. This is a justice legislation amendment bill. Why does this not deserve the normal two weeks of consultation with our community and stakeholders? Something as serious as this bill must have community stakeholder consultation, and that is non-negotiable. Anything less is reckless, dangerous and absolutely outrageous. Why are we concerned about this reduction? Too often this government is wasting taxpayers money, and Victorians are sick of it, because of this inadequate consultation. Some examples of the government –

Mary-Anne Thomas: Deputy Speaker, it is a legitimate point of order which I raise. As the member for Brighton articulated so many times during the Assistant Treasurer’s contribution, the member on her feet is not speaking to the narrow procedural motion, and given the last few words she uttered I think you now have opportunity to advise her before she further embarrasses herself on her feet.

The DEPUTY SPEAKER: Thank you, Leader of the House. I was listening to the member. There is no point of order.

Annabelle CLEELAND: Coming back in relation to the specific adjournment motion –

A member interjected.

The DEPUTY SPEAKER: Order!

Annabelle CLEELAND: Thank you, Deputy Speaker. I am not going to bite. I will mention it afterwards directly to these people. But I just actually want to mention some examples of when this government has failed to have adequate stakeholder engagement. There is a long list here where you have wasted taxpayers money because of that inadequate stakeholder engagement. I would like to mention some examples: backflips when you not have not adhered to adequate stakeholder engagement. The schools tax is a great example. Melbourne airport rail –

Mary-Anne Thomas: On a point of order, Deputy Speaker, I draw your attention once again to the points that were made by the Manager of Opposition Business. The member is straying from the procedural motion and using this as an opportunity to attack the government.

Brad Rowswell: On the point of order, Deputy Speaker, these are legitimate examples of distrust in government. The very fact that the government has given this house 13 days to consider the bill before the house – the member for Euroa is well entitled to use examples to articulate her point.

The DEPUTY SPEAKER: Thank you, member for Sandringham. The member was straying into debating other issues, and I bring her back to reasons for the adjournment.

Annabelle CLEELAND: My connection is two weeks of adequate community consultation, and I would like to raise why it is so critical to respect that. Out of respect to Victorians, they deserve to have adequate stakeholder engagement. It is a convention of Parliament, and why are we eroding that? It is an example of why Victorians no longer trust this government.

I would like to bring it back to why I am supporting the member for Brighton’s concerns. We have such widespread statewide distrust in the Andrews Labor government, with report after report of allegations of corruption, poor stakeholder consultation and poor planning. We need to return trust to our democratic process. Cutting corners like this repeatedly is reducing adequate community consultation and why so many Victorians believe this government is arrogant and stale. Victorians deserve better. We need legitimacy, we need accountability and we need a government that respects Victorians and the proper stakeholder process.

Nina TAYLOR (Albert Park) (10:56): I am definitely concerned to hear that the opposition cannot organise themselves to consult in 13 days, that they are not capable. I mean, we could sit down, we could set up a bit of a work plan and maybe give them some ideas on how you reach out to stakeholders, because clearly they are incapable of doing it. I am genuinely concerned that they do not know how to organise themselves in that period of time. Somehow community will be denied consultation because with 13 days they cannot organise themselves, because that is what this debate is really about. They cannot get themselves organised, let me say that. I will not –

A member interjected.

Nina TAYLOR: Yes, exactly. They might also want to have a little look in the mirror. They are talking about a civil war. What about a member for Western Metro Region – is it Moira Deeming? I mean, what is going on there? In talking about a civil war, I think they are looking back at themselves. Hold up the mirror.

Brad Rowswell: On a point of order, Deputy Speaker, this is a member who is clearly freestyling and freestyling quite clearly away from the narrow procedural motion. I ask you to bring her back to the motion before the chamber.

The DEPUTY SPEAKER: I uphold the point of order. The member to come back to the debate at hand.

Nina TAYLOR: It was the member for Brighton who suggested a civil war. He opened the door there, and I felt it was only due and proper to rebut the proposition.

James Newbury: On a further point of order, Deputy Speaker, you have ruled, and I would ask you to remind the member of that.

The DEPUTY SPEAKER: Yes. The member for Albert Park to come back, without commentary on the ruling.

Nina TAYLOR: Duly noted, but just pointing out some of the –

The DEPUTY SPEAKER: Member for Albert Park, I have not called you. I would appreciate that if I do uphold a point of order, you do not comment on that. It is a reflection on the Chair. The member to continue on the debate.

Nina TAYLOR: Sincerest apologies to the Deputy Speaker. Duly noted. Indeed I shall proceed. While we are pontificating here, just helping the opposition to diarise and to plan ahead in terms of their consultation, the bill is there now, off you go. We are wasting time. We are burning daylight here in the chamber pontificating about the bill. Why not just get to it, get out there, start consulting? I am just putting the idea out there. I do not think it is novel; I do not think it is outside the square because clearly they are sweating over it. I do not know what is going on over there, but I think I would suggest that the time is now. You have been duly notified – 13 days. You say you cannot organise yourselves, you cannot consult in that time frame, but it is extraordinary.

Members interjecting.

Nina TAYLOR: No, it absolutely is about you. You are the ones who have –

Sorry, through the Chair. I should say it is my understanding that the opposition say they are incapable of consulting within 13 days. I do not know what to say about that. What is going on over there? Maybe it is because of the civil war they are having in their own party. They are so busy fighting with each other they cannot coordinate their diaries.

A member interjected.

Nina TAYLOR: Moira Deeming, yes.

Brad Rowswell: On a point of order, Deputy Speaker, on two points. Firstly, the member has strayed completely from the motion before the chamber, which is very narrow, again, which you have already ruled on. Also, if the member wishes to make a personal reflection upon another member, it must be done by substantive motion.

The DEPUTY SPEAKER: On the first of your points, the member was starting to stray, and I bring her back. On the second, references to a collection of members are not personal inferences.

Nina TAYLOR: Thank you, Deputy Speaker, for that clarification.

Paul Edbrooke interjected.

The DEPUTY SPEAKER: Without assistance, member for Frankston.

Nina TAYLOR: I greatly appreciate your advice, and I shall heed that advice to the best of my ability. But as I was saying from the outset, if those opposite are as keen as us – and we are very keen; this legislation is extremely important and we are very keen to transact it for the benefit of the whole community – I suggest they get out there. Go on, start consulting now. You will be fine; I have faith. Well, I do not know, actually – that might be going a bit far. But it is possible that you can do it, so set the challenge now. You know, make those phone calls – ding, ding, ding, ding, ding. I do not know if the stakeholders will answer the phone calls, but you can give it a good crack. You have got time. And on that note –

Jess Wilson: On a point of order, Deputy Speaker, I think the member is using ‘you’ quite often, and speaking through the Chair would be appreciated.

The DEPUTY SPEAKER: I had noticed that too. Thank you, member for Kew. Yes, through the Chair. ‘You’ is a reflection on the Chair. Let us keep it tidy.

Nina TAYLOR: Yes. Respectfully, Deputy Speaker, I duly note your advice, and on that matter I shall close my argument there.

Cindy McLEISH (Eildon) (11:01): I rise to make my contribution to this narrow debate, and the nature of this debate is the period of adjournment for the Justice Legislation Amendment Bill 2023. When the Minister for Police came and presented that bill, he asked for 13 days rather than the conventional 14 days, so we are debating as to why the 14-day period should be in place. The government provided absolutely zero reason for 13 days. In fact the Assistant Treasurer made it sound as though it is no big deal, but let me tell you the reasons it is a big deal.

But before I do that, I think what this is evidence of – the convention for some time has been 14 days – is that the government has a lack of planning over their legislative agenda. There is a lack of organisation around their legislative agenda. We know the sitting dates well in advance. We know the program: every Tuesday, Wednesday and Thursday it is typically the same. We know when bills are introduced and when they are second read, and we know that it is customary to have a 14-day adjournment period. What we have seen, to back up that this government are so disorganised and lack that planning, is that they are filling that legislative void with motion after motion. I heard the Assistant Treasurer before say, ‘We’ll just put another sledge motion forward.’ I think that is the tactic they are using. I find it quite insulting that instead of focusing on what should be –

Mary-Anne Thomas: On a point of order, Deputy Speaker, I am increasingly concerned at the use of this term ‘sledge motion’ by the opposition to describe perfectly –

The DEPUTY SPEAKER: The point of order is?

Mary-Anne Thomas: The point of order is that it is unparliamentary, given it is actually a function of this Parliament to debate serious motions of concern to the people of Victoria.

The DEPUTY SPEAKER: Thank you. I will rule on the point of order. It is a matter of debate.

Cindy McLEISH: In this Parliament we have seen more often than not bills brought forward with a 13-day turnaround time. That, as we know, has not been the convention; 14 days has been the convention. I will go back some 90 years to 1932, which was the first disagreement over the adjournment period, and at the time the government had proposed one week and the opposition wanted two – so we know that this 14-day convention has been in place for a very long time. We have had occasions where things have needed to go through very quickly and the period of adjournment was agreed and negotiated with the opposition so things could go through. Not only have we seen 13 days, but we have seen six, and on 30 May we had the State Taxation Acts Amendment Bill 2023, which was going to be debated in one day, and at that point we had not even seen it.

The government are squeezing the time for us to review bills, to go through them, and when you have got a bill that is touching on so many different areas, there are a lot of stakeholders. The government could not give us a reason why we need only 13 days; it was absolutely the contrary. But what we do need is the stakeholder consultation. It is not just us going out to the stakeholders, it is the stakeholders that have to come back with their information. They have to read it, and very often they have not come back in that two-week period. So you will see that between the two houses, the two chambers, with the bills debate, that that is still coming in and we are getting new information, because as organisations and as stakeholders look at it, they are understanding what it means for them. So every day does count.

I think it is such an insult to the stakeholders, the way that the government is carrying on and proposing that they should have less time to try and get back to us. It is very difficult for them, when they are not expecting legislation – depending on what is happening in their organisation, their department at the time – to get that turnaround in the 14 days as it is. It is not about the opposition getting out. We get out there straightaway. It is about the stakeholders that have to come back. I think that there is absolutely zero respect shown to the stakeholders by this Labor government.

There is that convention of 14 days. The government make it sound as though 13 is no problem, six is no problem and one day, ‘Well, every now and again we’ll spring a one day on you’. That is not good enough. They need to be organised and have a 14-day – (Time expired)

Assembly divided on motion:

Ayes (51): Juliana Addison, Jacinta Allan, Colin Brooks, Anthony Carbines, Ben Carroll, Darren Cheeseman, Anthony Cianflone, Sarah Connolly, Chris Couzens, Jordan Crugnale, Lily D’Ambrosio, Daniela De Martino, Steve Dimopoulos, Paul Edbrooke, Matt Fregon, Ella George, Luba Grigorovitch, Bronwyn Halfpenny, Katie Hall, Paul Hamer, Martha Haylett, Mathew Hilakari, Melissa Horne, Natalie Hutchins, Lauren Kathage, Sonya Kilkenny, Nathan Lambert, Gary Maas, Alison Marchant, Kathleen Matthews-Ward, Steve McGhie, Paul Mercurio, John Mullahy, Tim Pallas, Danny Pearson, Pauline Richards, Tim Richardson, Michaela Settle, Ros Spence, Nick Staikos, Natalie Suleyman, Meng Heang Tak, Nina Taylor, Kat Theophanous, Mary-Anne Thomas, Emma Vulin, Iwan Walters, Vicki Ward, Dylan Wight, Gabrielle Williams, Belinda Wilson

Noes (31): Brad Battin, Jade Benham, Roma Britnell, Tim Bull, Martin Cameron, Annabelle Cleeland, Chris Crewther, Gabrielle de Vietri, Wayne Farnham, Sam Groth, Matthew Guy, Sam Hibbins, David Hodgett, Emma Kealy, Tim McCurdy, Cindy McLeish, James Newbury, Danny O’Brien, Michael O’Brien, Kim O’Keeffe, John Pesutto, Tim Read, Richard Riordan, Brad Rowswell, Ellen Sandell, David Southwick, Bill Tilley, Bridget Vallence, Peter Walsh, Kim Wells, Jess Wilson

Motion agreed to and debate adjourned until Tuesday 29 August.