Justice Legislation Further Amendment Bill 2015

Ms PENNICUIK (Southern Metropolitan) — The Justice Legislation Further Amendment Bill 2015 is indeed an omnibus bill that makes amendments, many of them technical amendments, to a large number — some 20-odd — of acts. I will be referring to the most substantial of those amendments that are in the bill, not to every single amendment to every single act that is covered in this omnibus bill.

The Greens will be supporting the bill; however, we will be moving amendments to areas of the bill that refer to amendments to the Victorian Civil and Administrative Tribunal Act 1998, and I will talk about that a little further into my contribution. These amendments do not actually mean that the Greens are not supporting the amendments already being made to that area, just that we would like those to go further.

Clauses 4 to 8 of the bill refer to the electronic transfer of warrants. The State Coroner recently recommended in the findings into the death of Luke Batty that all warrants in relation to family violence-related incidents should be executed with high priority and entered onto the Victoria Police law enforcement assistance program (LEAP) system within 24 hours of issue; otherwise delays in doing this through use of the manual system could have dire or tragic consequences. The bill will streamline the warrant process by enabling magistrates and registrars in the Magistrates and Children's courts to transfer warrant information electronically to the LEAP system via the court's IT system, which is known as Courtlink. The bill will also enable the execution of warrants and for copies of affidavits in support of warrants to arrest or search warrants to be transmitted by other electronic means, as well as by facsimile. The Greens are very supportive of these amendments and believe they are important amendments.

With regard to the appointment of Koori Court elders and respected persons, Court Services Victoria was established to provide administrative support to the courts and the Victorian Civil and Administrative Tribunal (VCAT) independently of the executive arm of government. This bill will enable the chief executive officer of Court Services Victoria, instead of the Secretary of the Department of Justice and Regulation, to appoint and manage the terms of Aboriginal elders and respected persons for the purposes of performing functions in the Koori Court, such as making contributions during court hearings relating to the cultural needs of Koori offenders.

We support these amendments given that the role of Court Services Victoria should be wholly contained within the court system and be separate from the executive.

Clause 14 removes the requirement for a statutory declaration to make an application to the Victims of Crime Assistance Tribunal (VOCAT). Essentially it makes the requirement to verify an application to VOCAT by a statutory declaration to be only necessary where applications relating to acts of violence have not been reported to the police, and this will make the compensatory process more efficient and responsive to the needs of the victims of crime. A statutory declaration was originally required to verify an applicant's identity and impose a penalty for perjury. The bill removes this requirement to have a statutory declaration provided that the matter has been reported to police. However, the bill will retain the requirement for a statutory declaration if an alleged act of violence has not been reported to the police, and this will make it easier for victims of crime going through the compensation process.

The Greens would also like to raise that another area to be examined in relation to VOCAT is the levels of compensation that are available to victims of crime, as well as the accessibility of VOCAT. According to Smart Justice, only a small percentage of victims of violent crime actually apply for compensation at VOCAT despite being entitled to it. Some victims do not even bother making a claim because the average amount awarded in the state-funded scheme is quite low.

There are also other barriers in applying for crimes compensation where some Koori as well as non-Koori victims have been victims of family violence or sexual assault as children, which has led to drug use and a criminal record. However, the current law requires VOCAT to have regard to a victim's past criminal activity when making an award or when assessing the amount of the award, and this was an issue that was raised by the Greens when the legislation went through the Parliament with regard to that particular issue. We would urge the government to consider increasing compensation paid to victims where possible and to reduce the barriers in accessing it, such as making sure that irrelevant and unrelated personal information about victims is not used when assessing a claim.

Clause 17 refers to the Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014, which was passed and which commenced on 1 September 2015 with widespread support. In the course of preparing for the act's commencement in September, VCAT suggested that the act be amended so that members of the tribunal other than the president or the vice-presidents could hear appeals. VCAT was concerned that the limited availability of the president and vice-presidents could mean that appellants would have to wait too long for a hearing. So the bill will amend the act to allow the president, vice-presidents, deputy presidents and senior members to hear these matters and will provide greater flexibility to VCAT. This will expand the pool of suitably qualified people who can hear appeals under the act and reduce the delay for appellants. The Greens believe this is a sensible and practical amendment and a welcome amendment to provide for the efficient timely access to justice with regard to this particular act and particular issue.

Clause 15 of the bill refers to amendments to the VCAT fee reimbursement provisions, and in particular it repeals section 115C(1)(d) of the VCAT act so that the residential tenancy matters will no longer be subject to the presumption that fees will be reimbursed. In 2014 the VCAT act was amended to introduce a presumption in certain civil proceedings that a party who had substantially succeeded against another party was entitled to be reimbursed by the unsuccessful party for any fee in the proceeding unless VCAT ordered otherwise. The amendment provided for the fee reimbursement presumption to apply to a proceeding under the Residential Tenancies Act 1997 other than a proceeding in which the director of housing is a party.

Given the nature of landlord-tenant proceedings, tenants are often being unfairly disadvantaged by the fee reimbursement provisions. The overwhelming majority of proceedings under the Residential Tenancies Act are brought by landlords against tenants, many of whom are economically advantaged. We know that only 20 per cent of tenants attend the Residential Tenancies Act proceedings. In addition, as respondents, tenants are not able to seek a fee waiver on financial hardship grounds.

The amendment, the minister says, that repeals section 115C(d), is in the interests of fairness and equity and will remove the presumption for fee reimbursement. However, a fee reimbursement will continue to be available in relation to proceedings under the Residential Tenancies Act. But in making an order for the reimbursement of payment of fees VCAT will be required to have regard to the nature of and issues involved in the proceedings, the conduct of the parties and the result of the proceeding if it has been reached. The government is maintaining that this results in an appropriate balance between the interests of landlords and tenants.

While the Greens are supporting this amendment made by the bill, we think it could go further. I raised these points during the debate almost two years ago on the Victorian Civil and Administrative Tribunal Amendment Bill 2014 amongst a whole lot of other concerns I raised about that particular bill at the time and the changes it was making to VCAT. We think the government should go further. I note that the tenants union has said that ideally the residential tenancies list should be exempt from the application of section 115B to ensure that tenants are not unfairly disadvantaged.

The Greens will be moving amendments to section 115B and section 115C of the Victorian Civil and Administrative Tribunal Act 1998 such that VCAT should take into account, when considering reimbursement of fees under those sections, financial hardship and any other matter it deems relevant. We think it is appropriate that VCAT give attention to the financial hardship of the unsuccessful party when it is giving consideration to awarding the reimbursement of fees. I am very happy to have those amendments circulated.

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

Ms PENNICUIK (Southern Metropolitan) — Amendment 2, which I have circulated, inserts a new clause before clause 15 of the bill such that in section 115B(3) of the Victorian Civil and Administrative Tribunal Act 1998 after paragraph (c) a new paragraph (d) be inserted which provides that VCAT considers:

(d)   any financial hardship of the party against whom the order would be made; and

(e)    any other matter the Tribunal considers relevant.

My amendment 3 to section 115C(3) of the Victorian Civil and Administrative Tribunal Act 1998, provides that after paragraph (b) a new paragraph (c) be inserted, similar to that for section 115B(3), which would read:

(c)    any financial hardship of the party against whom the order would be made; and

(d)   any other matter the Tribunal considers relevant.

Those amendments would require VCAT to take that into account when awarding a reimbursement of fees under those sections of the VCAT act.

It is interesting to note that I moved similar amendments to the bill in March 2014, almost two years ago. In fact those amendments were supported by the ALP at the time. I am looking forward to the government's support for these current amendments, as almost two years ago it supported very similar amendments to the VCAT act.

While we are on the subject of VCAT, it is certainly worth noting that there need to be further reforms made to VCAT, in particular undoing the fee hike introduced by the previous government to make it easier to enforce VCAT orders. There have been many reports of a drop in the number of people going to VCAT. We know from media reports and from organisations such as the Consumer Action Law Centre that the fee hikes have particularly reduced access for people using VCAT to resolve basic consumer disputes. Small claims have plunged by one quarter, whilst VCAT's fee revenue jumped more than $1.4 million. Planning disputes have also fallen, while the amount paid to VCAT to hear cases has simultaneously jumped close to $1 million, according to the Age.

This is an area to which the government needs to turn its attention to ensure that VCAT remains a low-cost tribunal at which ordinary citizens can have their disputes heard. It is certainly not turning out to be that way with the huge hikes to VCAT fees.

Also with regard to VCAT, another issue that I have also raised with the Attorney-General — in fact with both the current and the previous Attorney-General — is about the enforcement of VCAT orders. Orders can be made in VCAT for people to either do something or cease and desist from doing something. However, those people who have been successful at VCAT often have to go through the court system to actually have those orders enforced. This is an extra expense for those ordinary citizens who have been successful at VCAT but who have not been successful in having the orders enforced. I have raised the case of Mr Michael Kanter with both the former Attorney-General and the current Attorney-General, but there are other cases that also come under this category of the inability to enforce orders.

Clauses 18 to 23 of the bill make amendments to the Magistrates Court Act 1989 and the Supreme Court Act 1986 regarding the superannuation entitlements of magistrates, reserve magistrates, non-magistrate coroners and judicial registrars to provide clarity with regard to superannuation entitlements. The feedback we have had from the legal community is that these are supported, as are the dual commission amendments in part 9 of the bill. These amendments will require that a person appointed as a chief judge may also be appointed as a judge of the Supreme Court and a person appointed as a chief magistrate may also be appointed as the judge of the County Court. This reform will help to improve the interconnection of the three largest courts by promoting cooperation between them and facilitating the sharing of resources. The bill also makes clear that the prime responsibility of that person will still be as the head of the jurisdiction.

These amendments will build on Victoria's existing judicial system, where the heads of three of the jurisdictions are members of either the County or Supreme courts — that is, the State Coroner, who is head of the Coroners Court, is a County Court judge, the President of the Children's Court is a County Court judge and the President of the Victorian Civil and Administrative Tribunal is a Supreme Court judge. Feedback we have received on those amendments also indicates that they are supported by the legal community.

With those comments on the substantive amendments made by this omnibus bill, the Greens will support it. We look forward to moving our amendments in committee.

Committee Stage 11 February 2016

Ms PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 1, page 2, after line 31 insert—

“(iii) to require the Tribunal to take into account financial hardship and other relevant matters in making orders regarding reimbursement of fees; and”.

This is an amendment to the purposes clause. It adds a further subparagraph to clause 1(f) to require the Victorian Civil and Administrative Tribunal (VCAT) to take into account financial hardship and other relevant matters in making orders regarding the reimbursement of fees. Should this amendment pass, then I will be able to proceed with my amendments 2 and 3, which are substantial amendments to the clause of the bill with regard to VCAT, and there are following consequential renumbering amendments.

I take the opportunity now to speak to the subsequent amendments 2 and 3, which depend on the passing of amendment 1. Should amendment 1 be agreed to, I will be proceeding to amendment 2, which is to insert a new clause before clause 15 of the bill regarding orders as to the reimbursement or payment of fees. This would amend section 115B(3) of the Victorian Civil and Administrative Tribunal Act 1998 by inserting a new paragraph (d) requiring VCAT to take into account any financial hardship of the party against whom the order would be made and, in new paragraph (e), any other matter the tribunal considers relevant. Section 115B is with regard to the residential tenancies list. The bill already takes away the presumption of the reimbursement of fees under the residential tenancies list, but it still allows for the reimbursement of fees. This amendment would mean that in that case VCAT would need to take into account financial hardship and any other relevant matter.

A similar amendment is amendment 3, which would insert in section 115C(3) of the VCAT act a new paragraph (c) requiring that for other lists under VCAT the tribunal would have to take into account any financial hardship of the party against whom the order would be made and any other matter the tribunal considers relevant. That would apply to other lists under the act.

For those people who are not in the committee or were not listening to the debate on Tuesday with regard to these particular issues I am raising here, it is fair to say that since the fee rises at VCAT in 2013 there has been a drop-off in proceedings at VCAT.

That is being attributed to people being put off by the cost of applying to VCAT. It is worth remembering that VCAT is meant to be an accessible, low-cost tribunal for people to have their disputes settled. The Greens and others have opposed the fee hikes at VCAT, so that is part of the context. We already have a situation where people are discouraged from actually applying to VCAT.

I will go now to amendment 2, which refers to the residential tenancies list. I did make some points about that particular list and the types of matters that are heard there. The Attorney-General in his speech in the Legislative Assembly said:

Given the nature of landlord-tenant proceedings, tenants are being unfairly disadvantaged by the fee reimbursement provisions

And we agree with that. That is why the government has moved its repeal of the presumption for reimbursement. However, we do not feel that has gone far enough. The Attorney-General said the vast majority of proceedings are brought by landlords and that tenants very rarely attend the proceedings. The most common application made by landlords is an order for possession of property and, if granted, the affected tenant is left without a home and in acute financial and emotional stress. The additional cost burden of the landlord's fees is a significant financial strain at this time, bearing in mind that the fees are a lot higher than they used to be.

The other context is that VCAT applicants are able to apply for a fee waiver — and these are points that have been made to us by the Tenants Union of Victoria — if they are experiencing financial hardship, and this provides a recognition of their low income and promotes access to justice for that section of the community. However, if fees are ordered to be reimbursed, the same protection is not awarded, as financial capacity is not considered. Under the residential tenancies list a tenancy agreement may be brought to an end either by a tenant vacating in response to receiving a notice to vacate or by an order of VCAT. A tenant is not in breach of the act or the tenancy agreement by requiring a landlord to prove the grounds claimed to entitle them to possession. It is within the tenant's rights and it is the role of VCAT for the tenant not to attend the hearing and to have VCAT determine the outcome fairly. Yet in this situation, a tenant is likely to be required to pay the landlord's fees. This may dissuade tenants from making use of VCAT as an appropriate step in preventing improper evictions and to serve to further increase the power imbalance in residential tenancies.

Also landlords and estate agents often make claims against tenants' bonds. Bond and compensation claims are the second most common application type made by landlords at VCAT, and it is well within the rights of tenants to seek assistance through VCAT to determine an outcome to these claims. A key function of VCAT is to act as an independent body and this is important in landlord-tenant relationships where there is an inherent imbalance of power. The tenant should not be punished for accessing VCAT by being ordered to pay the landlord's fees.

The other point is that the residential tenancies list at VCAT is wholly funded through interest paid on tenants' bonds held by the Residential Tenancies Bond Authority. Consequently the tenants union and other organisations believe that tenants should never be required to pay fees to access VCAT as an applicant or respondent, because when the tenant pays a VCAT application fee they are essentially paying twice.

The combination of the substantial increases in fees in 2013 and the introduction of hearing fees, moving towards what has been called a substantially unsuccessful party-pays system at VCAT, have made VCAT more like a court in terms of costs with none of the accountability measures such as written reasons being standard practice or de novo appeal rights. These sorts of costs can be a business cost to the landlord, but the fee is often a very important consideration by a tenant when determining whether or not to apply to VCAT to have their matter heard, given the relatively few numbers of applications by tenants and extremely low participation rates. On balance, the current practice has caused further harm to a frequently economically disadvantaged section of our community.

That explains, I hope, for the benefit of the committee why we are moving these amendments. I add that the Greens also moved these similar amendments to the VCAT act about two years ago when the previous government brought in changes to the VCAT act, many of which we did not agree with, and brought in this user-pays, higher cost system, which has really undermined the original purpose of VCAT as a low-cost accessible tribunal.

In a nutshell, the amendments just require VCAT, when looking at the reimbursement of fees, to look at the financial hardships of the party and any other matter. We think they are very reasonable things for VCAT to turn its attention to in the interests of access to justice. I know I have taken a little bit of time, but because amendment 1 is a test for all the further amendments, I thought I would take the opportunity to outline what the further amendments would do.

Ms PENNICUIK (Southern Metropolitan) — I just wanted to respond to some of the issues raised in the conversation that has been occurring over the last couple of minutes. One is to take up the point that the minister made, and I think Mr Rich-Phillips referred to it as well, that in the 93 per cent of the cases brought by landlords, in only about 20 per cent of the cases do the tenants actually attend the tribunal hearings. I want to flesh that out a bit. Often a landlord may be at the proceeding or be represented at the proceeding by a legal representative or an agent, for example. Those costs, plus the VCAT fees, are all reimbursable or claimable by the landlord through the tax system. That is not so for the tenant. I also wanted to say too that only 20 per cent of tenants attending hearings could be for a large number of reasons, and probably the primary one is that the tenants cannot get time off work to attend and cannot afford to send along a representative, whose costs they cannot claim on their tax et cetera as a tenant. So there is that in-built imbalance there.

Also in some cases the tenants may be afraid; they may not understand what is going on. The minister was talking about them not returning phone calls, for example. There may be many reasons for that, and they should not be implied — I am not necessarily saying they were implied — to be nefarious reasons. I just wanted to put on the record that there are an awful lot of reasons why tenants may not be attending the tribunal.

I also wanted to make the point that we fully support the removal by the bill of section 115C(1)(d), which is the presumption for the reimbursement of fees under the tenancies list. Two-thirds of the matters heard at VCAT are in fact under the residential tenancies list, so it is the biggest area of dispute that VCAT is involved in. We think that repeal is a very positive move.

I take issue with the minister is suggesting that this will add undue delays. I am not suggesting it would not add some time to the proceedings. The minister was also talking about efficiency et cetera. Efficiency is not the only goal for VCAT. One of the other goals is a fair and just outcome that does not put someone who is in a financially precarious position in a worse position by having fees awarded against them.

The other point I want to make, if I could, given that we are dealing with all these amendments under the purposes clause, is to just draw attention to the fact that my amendment 2 refers to the residential tenancies list, and my amendment 3 — that VCAT take into account financial hardship — refers to other parts, including the Domestic Building Contracts Act 1995, the Owners Corporation Act 2006, and, of course, the existing section 115C(1)(d) of the Victorian Civil and Administrative Tribunal Act 1998, which is being repealed by this bill.

There are cases, I think, under the Building Contracts Act and under the Owners Corporation Act where again you could have parties that are at a financial disadvantage compared to the other party. That is why I think it is important that this is something that VCAT gets into the habit of taking into account. I am a bit surprised. I take Mr Gordon Rich-Phillips's point that we all should be wondering why we are not supporting the amendments. I would say we should be supporting the amendments because they would be an improvement to VCAT — to have VCAT focusing on these issues.

I am very surprised that during the debate in 2014 on the Victorian Civil and Administrative Tribunal Amendment Bill 2014, introduced by the previous government, the very same amendments that I am moving now were supported by the ALP. Mr Tee said:

The opposition —

now the government —

will be supporting the amendment. We do so on the basis that in a number of planning matters where community groups participate, they are financially disadvantaged. They often need to obtain money for expert reports, and on occasion for legal representation. Our concern is that this will add an additional and unnecessary cost burden, a cost that might make a difference in terms of whether or not these parties can proceed.

We already know, and certainly have mounting anecdotal evidence, of people not taking things to VCAT because of the fee hikes et cetera in the particular lists. I just wanted to respond to some of those points in that regard. I do not think this amendment is going to do anything except improve the outcomes at VCAT.