Wednesday, 2 April 2025

Justice Legislation Amendment (Miscellaneous) Bill 2025

Statement of compatibility

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (10:42): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Miscellaneous) Bill 2025:

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 (Miscellaneous) Bill 2025 (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:

• narrowing the trustee secret commission offence in section 180 of the Crimes Act 1958 to capture only dishonest or otherwise corrupt conduct

• extending the commencement date of summary appeal reforms in the Justice Legislation Amendment (Criminal Appeals) Act 2019 by 3 years

• supporting the expansion of the Magistrates’ Court of Victoria’s electronic Case Management System to its criminal jurisdiction

• correcting section referencing errors in the Worker Screening Act 2020

• amending the Social Services Regulation Act 2021 (SSRA) to correct an error by repealing section 330G(2)(a), a provision relating to the regulation of out of home care workers and carers, during a transitional period, and

• repealing an outdated regulation-making power in the Magistrates’ Court Act 1989.

Human Rights Issues

Many of the Bill’s reforms are technical in nature, and do not give rise to human rights issues. The following rights are relevant to the Bill:

• equality (section 8)

• privacy and reputation (section 13)

• protection of families and children (section 17)

• property rights (section 20)

• right to a fair hearing (section 24)

• rights in criminal proceedings (section 25), and

• retrospective criminal laws (section 27).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, to the extent that any rights are limited, those limitations are reasonable and justified.

Amending the Crimes Act 1958 to narrow the trustee secret commission offence

The Bill amends section 180 of the Crimes Act to narrow the trustee secret commission offence so that it only captures dishonest or otherwise corrupt conduct.

Property rights (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. The amendments to the trustee secret commission offence in the Crimes Act may promote this right by ensuring that routine, good faith transactions engaged in during a trustee’s replacement can occur without risk of criminal liability. The reforms will also remove the onerous requirement to obtain the consent of all trust beneficiaries or the Supreme Court of Victoria (SCV) for the proposed conduct, which will help to prevent unnecessary and costly dissipation of trust assets.

Right to a fair hearing (section 24)

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 reforms to section 180 of the Crimes Act will apply retrospectively to ensure that trustees and other persons are not charged with a serious indictable offence for prior conduct that was not dishonest or otherwise corrupt. The reforms clarify the mental element that the prosecution must prove in different circumstances and break down the conduct covered by current section 180 into separate offences. If a charge is brought under revised section 180, this improved clarity may promote an efficient and expeditious hearing and support the accused’s right to a fair hearing.

Rights in criminal proceedings (section 25)

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to a presumption of innocence until proven guilty. As with the right to a fair hearing, these reforms will promote just outcomes in criminal proceedings. Without the section 180 reforms, a person may be criminally liable, for example, for a good faith offering or giving of valuable consideration to an outgoing trustee. The amendments will make clear that for a successful prosecution, it must be proved that the conduct was done for a dishonest or otherwise corrupt purpose, and with the requisite intention or knowledge.

As noted above, the reforms will break down the conduct captured by section 180 as currently in force into separate offences. This will not expand the ambit of section 180, but will instead clarify the elements of each offence in line with modern drafting techniques, with the additional threshold of requiring a ‘dishonest or otherwise corrupt purpose’.

Retrospective criminal laws (section 27)

These amendments engage, but do not limit, retrospective criminal law rights under section 27 of the Charter. Section 27(1) provides that a person must not be found guilty of a criminal offence based on conduct that was not an offence at the time the conduct was engaged in.

The Bill includes a transitional provision for the amendments to section 180, which provides that the revised trustee secret commission offences:

• will apply retrospectively to conduct engaged in prior to commencement, instead of section 180 as currently in force, including for the purposes of any ancillary offence relating to section 180 (thereby only capturing past conduct engaged in dishonestly or otherwise corruptly), and

• uphold the legality of any prior convictions and decisions by beneficiaries of a trust or the SCV to consent to conduct under section 180 as in force prior to commencement of these reforms.

Amendments to the Criminal Procedure Act 2009 and Sentencing Act 1991 to support Magistrates’ Court case management

The Bill amends the Criminal Procedure Act and Sentencing Act to support the rollout of the Case Management System (CMS) in the Magistrates’ Court Criminal Division, allowing the Magistrates’ Court of Victoria to achieve efficiencies following investment in the CMS.

Right to recognition and equality before the law (section 8)

Section 8 of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination.

The Bill will promote the right to equality before the law by increasing access to justice for Victorians. Currently, court users may be required to travel significant distances to physically file documents with the 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.

Correcting an unintended deemed exclusion in the Social Services Regulation Act 2021

The Bill rectifies an unintentional deemed exclusion for out of home carers by repealing section 330G(2)(a) of the Social Services Regulation Act 2021 (SSRA). This provides that all findings of misconduct in accordance with section 105(5) of the Children, Youth and Families Act 2005 are deemed exclusion decisions for the purposes of the new worker and carer exclusion scheme under the SSRA.

On repeal of section 330G(2)(a), a person would not be deemed to be excluded from being an out of home carer following a finding of misconduct made in accordance with section 105(5) of the Children, Youth and Families Act 2005 on its own. Instead, deemed exclusions under section 330G of the SSRA will only apply to findings that a person should be disqualified from registration, on the basis of a finding under section 106(3) that the person poses an unacceptable risk to children and a finding that a person should continue to be disqualified under 112 of the Children, Youth and Families Act 2005.

Right to privacy and reputation (section 13)

Section 13(a) of the Charter provides for the right of a person not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a 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 sought. The right protects a person’s interest in the freedom of their personal and social sphere, which includes the right to establish and develop meaningful social relations and may also incorporate a right to work in some circumstances (to the extent that work is necessary to establish and develop social relations, and in cases relating to caring for a child).

The amendment to the SSRA engages this right and promotes it, in that it will mean that findings of misconduct will not result in an automatic exclusion but rather, will ensure that an exclusion is only deemed under the SSRA where an out of home carer also presents an unacceptable risk of harm to children.

Right to protection of families and children (section 17)

Section 17 of the Charter provides that families are entitled to be protected by society and the State, and every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.

This amendment engages section 17 as it removes an automatic exclusion of out of home carers where a finding of misconduct has been made against them.

The amendment to the SSRA promotes the section 17 right as it is expected to result in fewer out of home carers being deemed as excluded. This is intended to ensure the availability of out of home carers will not be unnecessarily impacted, minimising disruption for children in care where a carer may be excluded, who has not been found to pose an unacceptable risk of harm.

The amendment also limits the section 17 right, because it will mean that a carer who has engaged in misconduct may still be able to work with children in out of home care. This limitation is reasonable and justified, however, on the basis that the Suitability Panel must still perform a risk assessment of the carer and must determine, on the balance of probabilities, that the carer does not pose an unacceptable risk to children. The amendment is consistent with the arrangements for excluding out of home care workers and carers for the worker and carer exclusion scheme under the SSRA.

The Hon. Sonya Kilkenny MP

Attorney-General

Minister for Planning

Second reading

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (10:42): 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 (Miscellaneous) Bill 2025 amends a number of Acts to support the courts and improve the operation of the Victorian justice and legal systems. It:

• narrows the Crimes Act 1958 trustee secret commission offence to only capture dishonest or otherwise corrupt conduct

• defers commencement of summary appeal reforms in the Justice Legislation Amendment (Criminal Appeals) Act 2019

• improves the operation of the Case Management System in the Magistrates’ Court

• corrects technical errors in the Worker Screening Act 2020

• rectifies an unintentional deemed exclusion for out of home care workers in the Social Services Regulation Act 2021, and

• removes an obsolete regulation-making power from the Magistrates’ Court Act 1989.

Narrowing the trustee secret commission offence to only capture dishonest or otherwise corrupt conduct

Section 180 of the Crimes Act 1958, as currently in force, makes it an indictable offence for a person to offer or give to a trustee, or for a trustee to receive or solicit for themself or any other person, valuable consideration for the appointment of a new trustee in the trustee’s place, without the consent of all trust beneficiaries or the Supreme Court of Victoria. The Bill will narrow the trustee secret commission offence by requiring the relevant conduct to have been done with a dishonest or otherwise corrupt purpose.

This offence was introduced in 1905 after the Royal Commission on the Butter Industry found widespread bribery and corruption involving agents, including the receipt and payment of secret commissions. It was later consolidated in the Crimes Act. Recent Supreme Court of Victoria decisions on the application of section 180 have held that a corrupt purpose is not an element of the offence. This has left trustees and other persons engaged in routine, good faith transactions relating to the replacement of an outgoing trustee at risk of serious criminal liability. It follows that the offence is no longer fit for purpose.

The reforms will ensure that only conduct done for a dishonest or otherwise corrupt purpose and with the requisite intent or knowledge will be captured by section 180. The phrase ‘a dishonest or otherwise corrupt purpose’ is intended to mean dishonest conduct or conduct done with a wrongful or improper purpose. It should not capture good faith transactions.

The reforms will also remove the onerous and costly requirement for trust beneficiaries or the Supreme Court to consent to a person offering or giving, or a trustee soliciting or receiving, valuable consideration associated with a trustee’s replacement, such as reimbursement of reasonable costs. This will save those involved, and the Court, time and resources. The consent requirement will no longer be necessary once the reforms commence, as neither beneficiaries nor the Court would knowingly consent to dishonest or otherwise corrupt conduct.

The Bill will break section 180 down into five offences. This does not expand the ambit of section 180, but rather will clarify, through the use of modern drafting techniques, the elements the prosecution must prove in each scenario currently prohibited by section 180, with the additional threshold of requiring a ‘dishonest or otherwise corrupt purpose’ and either intent or knowledge.

The revised section 180 offences will be retrospective in operation, except in specific instances. This will mean that trustees and other persons who have in the past engaged in good faith, routine trust transactions that may have inadvertently breached section 180 as currently in force, can be assured that they will not be held criminally liable. Retrospectivity also extends to circumstances in which a person may be criminally liable under certain ancillary offences in the Crimes Act that relate to the primary section 180 offence as currently in force.

These reforms are important to keep our criminal laws fit for purpose, to promote just outcomes, and provide confidence in the legality of good faith, routine dealings that are central to the effective operation of trusts.

Delaying the commencement of summary appeal reforms

The Bill extends the forced commencement date of summary appeal reforms in the Justice Legislation Amendment (Criminal Appeals) Act 2019 for 3 years, to 1 July 2028. This allows additional time for implementation planning and for affected justice agencies to prepare for commencement of these significant changes to criminal procedure.

In 2019, Parliament passed laws to modernise Victoria’s summary criminal appeal system. These laws, currently set to commence on 5 July 2025, will abolish summary appeals of criminal cases to the County Court and replace them with new processes that seek to enhance efficiency and reduce trauma for witnesses and victims who will no longer have to re-attend court and give evidence a second time on appeal.

These are important objectives, but they can only be achieved if courts and justice agencies have sufficient time to prepare for this change in practice. The commencement date for these reforms was postponed on previous occasions to allow affected agencies to prepare, while also recovering from the impacts of the pandemic on courts. Since the Criminal Appeals Act passed, Parliament has passed several other pieces of legislation which have made, or will make, significant changes to other aspects of criminal procedure. These include enabling judge alone trials to address the impacts of the pandemic on jury trials which, though temporary, required significant effort for courts to implement, the Youth Justice Act 2024, and, more recently, the Justice Legislation Amendment (Committals) Act 2025.

This changed environment has required Government to turn its focus to supporting implementation of these critical reforms to the justice system. In light of the significant time and resources required to implement the summary appeal reforms on top of these other reforms, it is necessary to further delay their commencement. This will ensure that implementation activities can be undertaken in a careful, staged manner, minimising significant disruptions to the court system.

Improving the operation of the Case Management System in the Magistrates’ Court

The Bill makes technical amendments to the Criminal Procedure Act and Sentencing Act to allow the Magistrates’ Court of Victoria to extend the use of its Case Management System in its criminal jurisdiction. These reforms will modernise registry services and improve the efficiency of court operations by enabling certain documents to be filed electronically.

Correcting technical errors in the Worker Screening Act 2020

The Bill will make technical amendments to the Worker Screening Act to correct errors in references to sections in the Act relating to National Disability Insurance Scheme checks and Working with Children checks.

Rectifying an unintentional deemed exclusion for out of home care workers in the Social Services Regulation Act 2021

The Bill will amend the SSRA to ensure that, during the 3-year transitional period for the Suitability Panel, a person can only be excluded from working in the out of home care sector when the Panel finds both that the person:

a. engaged in conduct, and

b. poses an unacceptable risk to children.

This amendment will ensure workers are not unintentionally excluded from working in the out of home care sector, where a Panel has not found they pose an unacceptable risk to children in out of home care.

This ensures consistency with the approach to exclusion decisions made by the Suitability Panel before the new Act was introduced, and is the approach taken by the new Worker and Carer Exclusion Scheme for out of home care workers and carers.

Removing an obsolete regulation-making power from the Magistrates’ Court Act 1989

The Bill repeals an outdated power in the Magistrates’ Court Act to prescribe municipal areas where police officers are not required to serve civil process. This provision is no longer required as police officers do not serve civil process.

I commend the Bill to the house.

Michael O’BRIEN (Malvern) (10:43): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 16 April.