Justice Legislation Amendment (Access to Justice) Bill 2018

Ms PENNICUIK (Southern Metropolitan) — I am very pleased to speak today on the Justice Legislation Amendment (Access to Justice) Bill 2018, which is an omnibus bill and makes amendments to a large number of acts in the justice portfolio. In particular it focuses on 16 of the 60 recommendations made in the Access to Justice Review, which was released in August 2016, and that was undertaken by the Department of Justice and Regulation with the assistance of Crown Counsel Melinda Richards, SC, and the former chair of the Queensland Legal Aid Commission, Rachel Hunter. I have read the report, and I think it is a really good report. One would say it is a timely, if not actually overdue, report.

The changes that this bill makes following from 16 of the recommendations of the review are overdue due to the building and ongoing pressures on the courts over the last few years. Judicial officers and other people who work in the justice system have also been under enormous pressure due to a number of factors, some of which are identified in the review, such as increasing numbers of complex clients, but also changes to the bail system and the parole system, most of which the Greens have supported, although we have been critical of some of the aspects of those changes, in particular the increase in numbers of people being held on remand, which is around 30 per cent of all prisoners now.

Factors also include changes to the sentencing regime over the last five, six or seven years, many of which the Greens have not supported because they have taken discretion away from judicial officers — from the courts — to look at each case and the circumstances surrounding it and use the sentencing guidelines, which Mr Morris just gave us a very thorough outline of. He did, however, leave out some aspects of them, which are that of course with the objectives of the Sentencing Act 1991 and the sentencing guidelines there are also the criteria which courts look at. I have every faith that the courts are able to implement those objectives in the sentencing guidelines and to look at the aggravating and mitigating circumstances in each case and come to a decision.

Mr Morris also spent a lot of time talking about how the community does not agree with decisions in many cases. Of course they are the ones that are reported in the media, because they are really the only decisions that the community know about unless they take the time to visit the courts. Not a vast number of the citizenry of Victoria visit the courts and sit through all the court proceedings of a given case. That is the apposite point, really — that the only people who know what happens in a case are those who have sat through the whole thing, have heard all the evidence for and against and have heard all the circumstances, aggravating and mitigating et cetera.

Things that are reported in the media are often reported in a few paragraphs in the newspaper and do not outline all the nuances and complexities of a case. It might not be very convenient for Mr Morris and others who have run this line today regarding what this bill is about — which is not what they were talking about — but where there have been forums run and studies done as to what members of the public think about particular sentences that have been passed down by judicial officers, when they actually go through the circumstances of a case with the judicial officer, it is usually found that members of the public either agree with the judicial officer's sentence or in fact think that the sentence handed down by the judicial officer is harsher than what they would hand down. In the forums and studies that I have had a look at usually the number of people who think the judicial officer was not harsh enough is less than 20 per cent. The majority of people either agree or feel that the judicial officer was harsher than they would be when they know all the circumstances of the case before them. It is worth pointing that out, given the contributions we have had today with regard to this particular aspect of the legal system.

I turn now to the Access to Justice Review and to what the report says regarding the definition of 'access to justice'. It says:

Access to justice refers to the ability of people to engage with the many formal and informal aspects of the justice system and to enjoy the benefits of living in a society governed by the rule of law.

It talks about the practical obstacles that can prevent people from being able to access justice, such as difficulties obtaining legal information and understanding the law and the inability to afford legal representation, legal advice or assistance to navigate the formal justice system.

It says the review:

… adopted a broader concept of 'access to justice', which includes considering fair and equitable access to legal information and legal assistance in both civil and criminal matters where they relate to the terms of reference.

A lot of what is covered in the Access to Justice Review, and indeed in this bill, has to do with civil matters and not necessarily the criminal matters which some people have spent an awful lot of time talking about today. In particular the reforms in the bill to VCAT are about people's access to justice in resolution of civil matters.

The review goes on to say that access to justice is fundamental to the rule of law. It talks about how confident people are that they will be treated fairly if they need to appear in the legal system and says that experiencing fair treatment promotes trust and encourages a positive relationship between individuals, organisations and the government. It talks about the Victorian Charter of Human Rights and Responsibilities and the right of every person to have recognition and equality before the law. It talks about the central role of government in providing an accessible justice system and facilitating the representation of people and their experience of fairness and equity in the justice system.

I think it is a very good report. I think the bill that we have before us now is a necessary but not sufficient response to the Access to Justice Review. As I said, this bill enacts 16 of the recommendations. In summary it provides Victoria Legal Aid with a more formal role in coordinating public legal assistance in the state of Victoria, it strengthens the strategic planning capacity of Victoria Legal Aid through the establishment of a collaborative planning committee, it strengthens the planning requirements and budgeting requirements of Victoria Legal Aid and it increases the accountability to the Attorney-General in meeting these requirements. I will return to that particular point a little later in my contribution.

The bill also aims to provide greater transparency with relation to funding of community legal centres via Victoria Legal Aid and perhaps increases the level of security of community legal centres, which perform a very important function in the community and are the first port of call for many people when they come into contact with the justice system. The bill will increase the cap on funding that may be paid from the public interest fund to Victoria Legal Aid from 35 per cent to 40 per cent. The bill also makes amendments to VCAT, in particular small claims proceedings, including the ability to serve documents electronically, and broadens the criteria for persons who can conduct compulsory conferences. In fact the bill requires the use of compulsory conferences. It will allow a person participating in a proceeding to have a support person with them during the proceedings who is not necessarily an advocate or a legal practitioner but could be a family member or friend or another support person. It will also simplify the enforcement of VCAT orders.

Like many of the recommendations in the Access to Justice Review, this is a very important one. It is one that I have been calling for for a long time with regard to the inability in many ways, or the extreme difficulty, that people who have been successful at VCAT face in having orders granted in their favour against somebody who is offending against them in some way enforced without going through an expensive process of going through the courts. I have raised with the Attorney-General many times, and with the previous Attorney-General, the case of one person who I have been working with on this particular issue for a number of years, who had an order in his favour with regard to a parking issue and another party just continues to wilfully defy the order. It is really making this person's life very difficult. It has cost this person thousands of dollars trying to have the order enforced. I think Mr Gepp said in his contribution that this happens all the time — that it is fine to have an order in your favour at VCAT but often getting the order enforced is another matter. With the provisions in this bill, which I will ask some questions about in the committee stage, let us hope that we can help alleviate this issue for many people.

The bill also provides courts with clearer legislative criteria by which to make protective cost orders — that is, to put a cap on the amount of costs that can be awarded against someone. In particular this is very useful for people who are bringing matters to the court in the public interest or to query a point of law. I would also like to ask some brief questions about that part of the bill in the committee stage.

The bill amends the Births, Deaths and Marriages Registration Act 1996 to remove the requirement for a person to be unmarried if they are seeking to change the record of their sex on their birth registration or certificate, such that transgender people will not have to divorce to update their birth certificates. This is consistent with recent changes to the commonwealth Marriage Act 1961 and the commonwealth Sex Discrimination Act 1984 after the passage of the marriage equality legislation at the commonwealth level. This is a very welcome development for LGBTIQ people in the community. Of course it is in many ways a technicality following on from the passing of marriage equality by the commonwealth, but it does make things much fairer and, to disagree with Mr Finn, more just by allowing those people to change their birth registration as needs to be done.

The issue that I do want to return to with regard to the relationship under the bill between Victoria Legal Aid and the Attorney-General is the provisions in the bill that require Victoria Legal Aid to develop a four-year strategic plan, an annual budget and a corporate plan and to release quarterly updates. I do not have a problem with any of that. I agree with what Ms Patten said. We are both members of the Public Accounts and Estimates Committee, and I have read through the report of the Auditor-General and the recommendations that were made back then with regard to openness, transparency, efficiency and accountability of Victoria Legal Aid. It does receive a lot of public money, and so it should be accountable.

But where I have a concern is with regard to the independence of Victoria Legal Aid and its board in having to, under the bill, have its strategic plan and corporate plan approved by the Attorney-General. I have read through the report; I know what the recommendations are and I know the argument laid out about the Westminster system et cetera, but I also feel that there needs to be a distance between Victoria Legal Aid and the Attorney-General. In many cases the government may be the party against which Victoria Legal Aid is providing legal assistance, or another party is in litigation with the government, and I think that is an issue. But my main issue really is the independence of Victoria Legal Aid. I have prepared amendments, which I am happy to have circulated. I have previously circulated these amendments to all parties outside the chamber.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — My amendments would in fact leave in place the consultative arrangements between the Attorney-General and Victoria Legal Aid. The Attorney-General may propose amendments to the strategic plan, but it would not have to be approved by the Attorney-General.

The other thing I would like to give notice of is with regard to raising the small claims threshold from $10 000 to $15 000. I note that was also recommended in the review, but certainly the Law Institute of Victoria has written to all parties suggesting that in fact it should be lower — it should be $5000 — so I will be proposing that it remain as it is now at $10 000, which is halfway between the parties.

While referring to the Access to Justice Review I neglected to say not only that the report is really good at pointing out areas such as better coordination, better accountability, clarifying the roles of Victoria Legal Aid, amendments to VCAT, giving extra functions to the Victorian Law Foundation to give it a role in collecting and analysing data and doing more research about the legal system but also that I thought the process as outlined in the report was very impressive. It included some 90 submissions, lots and lots of meetings with a very large number of stakeholders and lots of round tables et cetera. I think the actual process that was undertaken by the department of justice was excellent, and I just wanted to commend the department of justice for that, because it is, as I said, an overdue review given the pressures that are on the courts and judicial officers.

We have had just recently the very tragic circumstance of the death of Stephen Myall and other judicial officers who have found themselves under a lot of pressure, which I have raised many times in this Parliament, so it is good to see at least these structural changes coming into being, along with, I should say, the government's appointment of more judicial officers under the recent budget and more funding for the courts.

I would like to also go to the issue of funding because a lot of the success of these changes, particularly with regard to legal aid, will rest on whether or not there is enough funding. The government has put in $34-odd million for implementing these changes, but we know the VLA have been talking about how they have been running under deficits. Of course the previous government underfunded Victoria Legal Aid to a massive degree and caused some of those problems that it had. But the amount of money that is needed to really get the system back on its feet is probably double what the government is putting in.

It is worth, I think, responding to some of the other points that have been made by speakers about crime rates et cetera in suggesting that the crime rate in Victoria is rising when in fact the figures suggest the crime rate is falling. However, as I have said, the Greens have opposed many of the sentencing changes that have led to people who are not serious violent offenders — not everybody in prison is a serious violent offender; a lot of people are in there for a lot lesser crimes — ending up in prison.

The reason, as Ms Patten said, jurisdictions such as the Netherlands and others in Europe and many states in the United States are reducing their prison populations is that they are investing in justice reinvestment to a greater degree than we are doing here. We are spending tens of millions of dollars on that. We are spending over a billion dollars on running the prison system. We are spending $700 million on building a new prison. So the amount of money that is being put into Victoria Legal Aid and the legal assistance regime is a tenth of what is being put into the prison system.

You change things by reversing or making a significant change to that percentage, to that figure, and putting more funds into justice reinvestment, more funds into legal aid to prevent people from entering the prison system in the first place and more justice reinvestment funding into certain postcodes, because research has shown that about half of the prisoners in the prison system come from around six postcodes. That is where we should be focusing our resources, on the people who live in those areas and trying to help them rebuild their lives in the circumstances that they find themselves in. Mr Morris was saying, 'Oh, well, it's nothing to do with the system', but it is to do with the system. It is a combination of the system and the person. You cannot say it is just one or the other, but the evidence is very clear that it is the system as well.

The Greens are broadly supportive of this bill that comes about as a result of the access to justice review, and we think it will assist in the operation of legal assistance in the state of Victoria. There are just a couple of issues that I have raised in my contribution. I should say that a couple of more technical issues were raised by some other correspondents. For example, the Consumer Action Law Centre raised the issue of protective cost orders and asked — the minister could probably answer this during the committee stage — whether a person is seeking claims for damages should be a criterion that is considered when deciding whether or not a protective cost order should be granted. I raise that on behalf of the Consumer Action Law Centre.

I note there are changes to the expertise of the Victoria Legal Aid board, including having two representatives that have experience in the work of Victoria Legal Aid legal assistance practice. In the past I have called for representatives or nominees from the Law Institute of Victoria and the Victorian Bar to be included on the board. The government has rejected this in the past, but that is the model in New South Wales, whose legal aid body has on it representatives from the Law Society of New South Wales and the New South Wales Bar Association.

The law institute also said in terms of clause 66 of the bill, which empowers the tribunal or principal registrar to nominate a person to conduct a compulsory conference, that it was concerned that by empowering the tribunal or principal registrar to nominate a person that person may be referred to by name and this may result in orders that specify that particular person who may not actually be available to conduct the mediation. That is just a clarification that I think is needed there.

The other issue is the one about the threshold for small civil claims, which the law institute suggests should be reduced from $10 000 to $5000. On that issue, while the value of certain goods may have increased over the years, the income of many people has not increased over the years, and while $15 000 may not sound like a lot to some people, it is a very large amount to many people in the community, as is $10 000, as indeed is $5000. I am not sure the case has been made to increase the amount by $5000 as the bill does.

The law institute also suggested that the bill should be amended to waive fees altogether for applications in the Magistrates Court and County Court for parties that are receiving legal assistance or pro bono assistance. I note there are some provisions in the bill that may or may not allow the courts to do that, and I would like to clarify that during the committee stage. They are the minor issues really with the bill. Otherwise the Greens will be supporting the bill.