Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017 | Sue Pennicuik

Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017

The Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017 is an omnibus bill which makes a range of amendments to various acts in the justice and regulation portfolio, including providing for a new security model for the Victorian courts and tribunals with the use of private security officers, appointing them as authorised officers with expanded powers.
Tuesday, August 22, 2017 - 11:45am
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) — The Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017 is an omnibus bill which makes a range of amendments to various acts in the justice and regulation portfolio, including providing for a new security model for the Victorian courts and tribunals with the use of private security officers, appointing them as authorised officers with expanded powers. It reforms juries such that there will be a reduction in the number of peremptory challenges in civil and criminal jury trials. There are statutory criteria which a court may consider in determining whether to order the empanelment of additional jurors and a requirement that a potential juror must be identified by number, not name, unless the court considers it is in the interests of justice to identify potential jurors by name because the trial is in a regional court and the names are important in alerting the judge, lawyers and the person arraigned that they may have a personal connection with a potential juror.

The bill provides for reforms that will improve the operation of the appeal costs scheme and make it more efficient; it makes minor amendments to provisions in the Land Acquisition and Compensation Act 1986 in relation to the correct forum for determining relevant disputes over compensation payable and will not alter a person's entitlement to or calculation of compensation; and it provides that the statutory fee reimbursement provision under the Victorian Civil and Administrative Tribunal Act 1998 is extended to enforcement proceedings under the Planning and Environment Act 1987 so that local councils are not discouraged from taking action to enforce contraventions of planning laws. That is an interesting amendment that we certainly support. We have raised before in this chamber, particularly during the term of the last government, the issue that the statutory fee reimbursement presumption under the VCAT act should be changed to allow for councils to be covered by it with respect to planning proceedings and to make sure that the fees charged do not discourage local councils from using VCAT. The bill provides the legal services board with greater power to safeguard clients' trust money that is handled by barristers' clerks and makes consequential amendments to natural resources legislation which the statement of compatibility states do not diminish the distinct cultural rights of Aboriginal persons in Victoria which were enhanced under previous legislation.

The amendments with regard to juries reduce the number of peremptory challenges — that is, challenges without a reason — in civil trials from three to two for each party in accordance with recommendations by the Victorian Law Reform Commission in its Jury Empanelment report, and they reduce the number of peremptory challenges in criminal trials from six to three. The government states that challenges tend to be based on the characteristics and appearance of the potential juror, facilitating stereotyping which distorts the composition of juries. That is why it wants to see the number of peremptory challenges reduced.

It has been argued by defence lawyers that this reduction in the number of challenges for an accused person may actually place at risk the proper conduct of a fair trial. The number of peremptory challenges in criminal trials has already been reduced from 15 to six in order to produce significant savings in the administration of the jury system, and this, defence lawyers say, should not be further reduced from six to three.

However, on the other hand the government says that the rate of challenges to women in criminal trials are double that of men so that there is the very real problem of defence lawyers removing most, if not all, women from a jury panel, which fails to keep the jury system representative of a cross-section of society. We acknowledge that we need to make sure there is diversity on juries, so we are supportive of that change. Also the reduction of peremptory challenges does not preclude challenges with reason to be made by defence lawyers, and these remain unlimited.

The other amendments that I wanted to speak about really go to the issue of the court security changes, which are the main changes in the bill. We know that for a long time there has been a mix of private security, protective services officers (PSOs) and police in the courts and tribunals. Private security contractors have largely been stationed at the gates and entry points of most metropolitan courts and state buildings. For higher risk areas, such as within the courts and tribunals and in areas where there is a higher security risk and where response and arrest may be required, PSOs and Victoria Police are used. In the highest risk areas there are generally only police officers.

As outlined by the Attorney-General in the second-reading speech, the government is expanding the use of private court security officers appointed as authorised officers as part of a new court security model. I understand this will be in areas of low volume where a police presence cannot be justified — for example, in regional courts. Private court security officers are to be used not only at entry points, as has been traditional, but also within the courts, with limited and expanded powers. I understand they will not be armed with firearms and will not be able to make arrests but that they will have batons and wear bullet and stab-proof vests and will be able to use reasonable force to remove individuals who may be causing trouble in the courts.

The court security officers will conduct roving patrols of the court premises and provide escorts for vulnerable attendees, including victims of family violence. PSOs will still have a presence in the courts, but it is not clear if this will be for all courts, including regional courts always, given deployment of PSOs is up to police command. Police officers will continue to provide security at the Supreme Court and the County Court in the CBD while also responding to major incidents.

While authorised officers can already undertake searches, prevent a person from entering or remove a person from court premises, there is no express authorisation for authorised officers to use force in relation to other powers — for example, to seize a prohibited item — or to use reasonable force to ensure the safety of an escorted person et cetera. This bill provides new powers for authorised officers to give directions in particular circumstances and clarifies the permissible force that may be used by authorised officers.

In terms of the oversight of the use of private security officers, the statement of compatibility says:

Under the new court security model, the private security company engaged under the … act will also be subject, through the contractual arrangements, to performance monitoring and reporting and be required to have a complaints management system. Further, the Ombudsman may investigate the administrative actions of a contractor that has entered an agreement to provide court security services under the … act.

I note that there will be a court security agreement for the purposes of section 2C of the Court Security Act 1980.

Oversight by the Ombudsman of a private security contract is due to the interaction of provisions of the Ombudsman Act 1973 and the Court Security Act, and this is not affected by this bill. Under section 13 of the Ombudsman Act the principal function of the Ombudsman is to inquire into or investigate administrative actions taken by or in an authority. A private security contractor engaged under section 2 of the Court Security Act is an authority for the purposes of the Ombudsman Act. So a contractor's administrative actions can be investigated by the Ombudsman and are also covered by the definition of 'contractor' in section 2(1) of the Court Securities Act and the definition of 'authority' and 'specified entity' in the Ombudsman Act and schedule 1 of the Ombudsman Act.

Private security officers are subject to Court Services Victoria, which is responsible to the Parliament via the Attorney-General, and oversight is provided by the Ombudsman. However, the Greens have some concerns about this. We understand that court security is very important. The court security model ideally is a matter of public policy, and we believe that the model of private security officers at entry points, as is currently the case, is probably the ideal model.

If we go back to the original purpose of protective services officers, we can see that over the years their role has been expanded. It was originally and for a very long time limited to security at the courts, at Parliament, at the Shrine of Remembrance and at Government House. Now there is a wide array of places where they can operate under the act. What we are concerned about is the change under this bill to allow the appointment of private security officers, who are not public servants, as authorised officers and allowing them to be given further powers to use reasonable force — for example, when removing a prohibited item or removing a person. We have always raised concerns about the use of reasonable force by authorised officers, but we raise concerns in particular with this class of authorised officers who would not be public servants in any way, shape or form.

The Greens are concerned about the chain of command — that is, who will be directing these private security officers in the courts, because they will now be within the courts — and who will be responsible for private security officers and their actions. It is quite a departure from the current situation, where police and PSOs are inside the court and are clearly under the direction of police command, however that is organised by the commissioner, deputy commissioners or whoever is in charge in that regard.

I ask the government to provide some answers to those questions. I went into detail with regard to the oversight of the Ombudsman or the ability of the Ombudsman to investigate incidents, for example. That is possible and has been done in terms of authorised officers on the railway system or on the public transport system. There have been some quite damning reports with regard to authorised officers overstepping their authority on the public transport system. I do not think it would be an overstatement to say there has been quite a lot of public concern about the behaviour of some authorised officers over the years on the public transport system.

We are now talking about a different class of private security officers, who are not public servants, being given these types of expanded powers. We are always concerned about the expanding of the powers of authorised officers. It is something we have raised over the years. We have foreshadowed that there would be creep and that these expanded powers would expand more and more, and that is exactly what we are seeing.

I suppose the crux of the question for the government is why, given that we are having more protective services officers employed and more police employed, we do not just employ more police and protective services officers in the court to maintain court security and leave the private security officers where they have traditionally been. We are concerned about this change even though, as I said, there is the oversight by court services and there is the potential investigative power of the Ombudsman, but that is after the fact of course. It is important, but it is still after the fact.

In terms of the other changes in the bill — a large number of changes are made to various acts in this bill — the Greens are supportive of those generally, but it is this issue of the expansion of powers of private security firms as authorised officers in the bill that we are concerned with.