Justice Legislation Amendment Bill

I rise today to speak on the Justice Legislation Amendment (System Enhancements and Other Matters) Bill 2021. As many other speakers have already said in the Assembly and here in the Council, the overwhelming majority of the bill is uncontroversial. Most of the changes being legislated here will prolong the use of audio, audiovisual and other electronic devices to alleviate potential COVID-related problems associated with in-person activity and contact. Accordingly, much of the bill is compatible and consistent with the government’s broader COVID response.

As I have done before, I would also like to commend the government on sensibly extending the time frames around child reunification processes. However, Derryn Hinch’s Justice Party does continue to have reservations about some of the other measures and processes to which the bill will give further expression. Since the advent early last year of the COVID-prompted changes to the operation of the justice and corrections system, we have repeatedly expressed our concerns in relation to foreseeing and predicting their likely practical impacts while also commenting on those practical consequences as they have materialised. From the arrival in the Council of the very first piece of legislation of this type on 23 April last year, I have spoken repeatedly of, and I quote, ‘my particular concerns in the area of early release and reporting conditions’. I have also raised the prospect from that day of, quote, ‘even more delays’ in the justice system. These delays regrettably have subsequently become all too apparent. It is good to see that many members of the legal fraternity and the media have recently been raising their voices about these important issues, especially through the early months of 2021.

When it comes to the functioning of courts in particular we should always think carefully about making and entrenching changes that have a clear potential to create adverse consequences. This may actually be an opportune moment for me to circulate my amendments.

Through these amendments I really am seeking to do two things. The first is to flag that this facet of the bill is actually a very significant one. The removal from juries of the power to determine mental unfitness to stand trial is a significant and consequential step, and I believe this needs very careful thought and scrutiny from the Parliament. I would argue that this change needs detailed consideration in its own right and as a part of a specific mental impairment bill rather than part of an omnibus bill. I would argue that its importance has really become blurred here in amongst dozens of other justice-related provisions.

The second thing that I am trying to achieve through the amendments is to ensure the shift from jury to judge-alone determinations happens only as an interim step for a maximum of six months at this stage pending further consideration. There is a separate bill called the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2020 that is yet to come to the Council, and that fully legislates for this change. I believe we should be waiting for the debate on that bill to occur before essentially fast-tracking this particular change now on an indefinite basis.

I have to say that among all of the issues that victims of crime and indeed other members of the community raise with Mr Grimley and me, outrage at the handling of mental impairment cases is undoubtedly one of the most regular and significant of them. Accordingly, I know that there will be many Victorians who will be quite upset to think that juries are being removed, potentially permanently, from the process of determining an offender’s fitness to stand trial. There is already great trepidation among victims of horrendous crimes in Victoria, in particular not only about the use of mental impairment defences in relation to those crimes but also about the deliberation in very few hands of the decision-making powers about whether an accused was mentally impaired at the time of their offending.

Allowing the passage of this change in the bill without amendments will exacerbate these issues and frustrations. I imagine the government is going to tell me that what they are doing here is merely bringing forward part of that other bill and that the change is also being made on the basis of a Victorian Law Reform Commission recommendation. However, I would say a number of things in response to that.

The first is that this recommendation about judge-only determinations is now nearly seven years old. I would argue that it not only predates but has also been overtaken by various subsequent developments in the handling of mental impairment cases in Victoria. Moreover, if we are going to transplant a part of that other bill into this one for the purpose of hastening its implementation, then other elements should arguably have received the same treatment too. I say that particularly in respect of notification processes for victims, which remain appalling in this area and in desperate and urgent need of change. In short, I think it would be more appropriate to consider the shift to judge-alone determinations in more detail in the future, rather than quickly making it a fait accompli now. Essentially my amendments allow the shift to occur for the next six months. However, they also obligate the government to ensure that a continuation of judge-alone determinations after 26 October can only occur either after the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill has been brought to the Parliament after its very long period in limbo or after a separate legislative change requiring parliamentary approval is created for this purpose instead. These are therefore commonsense amendments in my view that will allow for more detailed review of this change before it is made indefinite and/or permanent. I will leave my discussion of those amendments there for now.

In coming back more broadly to the matters associated with the bill, I will revisit a comment made by Ms Hennessy in April last year, when she was talking about the justice-related measures in the first COVID omnibus bill and therefore many of the same measures that are being legislated again in this bill which we are debating today. She said that they were being introduced to enable justice processes to be ‘quickly adapted to changing public health requirements’. I think it is really important that we do not lose sight of that rationale.

In keeping with that justification and especially at a time of no community transmission, I would again urge the government to think about adapting to what are, quite plainly, less dire public health requirements and concerns than those of 12 months ago. As I have said before in this place, there needs to be a return to conventional processes, hearings and trials in the courts as quickly as reasonably and safely possible.

Another problem that continues to provoke widespread concern is the ongoing 14-day quarantining of incoming inmates of Victorian correctional facilities. I have to say that this is becoming an increasingly difficult approach for many Victorians to comprehend in periods when there is no community transmission of COVID. Indeed there are now significant levels of concern across many sections of the community about this practice. In fact it is quite something to see a unified approach to the desire for the removal of this quarantining now coming from those on the one hand who regard it as degrading and akin to a form of solitary confinement and those on the other hand who are angered that the policy is allowing prisoners to benefit from a very generous emergency management days system that is significantly cutting their stays in prison. On the latter point, at last count around 5000 convicted criminals had benefited from this policy and been released early from prison.

More broadly, to the government’s credit, I do applaud Ms Symes’s actions in recognising the urgent need to implement what was a significant package to assist with trying to return the state’s courts and tribunals to something close to business as usual. However, there is still much to do, and unfortunately this also means there is still much more to spend. There is also much to learn from other jurisdictions, including the UK, New South Wales and Tasmania, as other people have suggested today.

Even if the various COVID rules and restrictions in Victoria were to be abolished immediately, then we would already be confronting years worth of delays and backlogs in the system that would have to be overcome. So a continued entrenchment of what were originally mooted as only temporary COVID measures across the justice system will mean that these problems will only be accentuated, and resolving them will only become an even bigger task.

We are talking not only about a very serious and sustained financial impact but also about gigantic ongoing ramifications in a legal sense as well. It is absolutely true in this context that justice delayed is justice denied, as many people have spoken about today in their contributions. I think victims of crime in Victoria are again the ones on the receiving end of that, most manifestly as they watch so many offenders enjoy early release, receive even more lenient sentences and/or walk away from having to go through trials or hearings altogether. Whilst I would also urge people to support our commonsense amendments, I will reaffirm that Mr Grimley and I support the remainder of this bill. We will do so because the overwhelming majority of the changes in it are uncontroversial. However, I will end my contribution by saying that as a Parliament we also, collectively, surely cannot allow the many and varied problems being created by COVID-related law and policy changes to persist for much longer.