June 4, 2020

I rise today to proudly present this motion to the House with my colleague and friend, Mr Grimley, as representatives of Derryn Hinch’s Justice Party.

There are an enormous variety of challenges, demands and responsibilities that face us in this Parliament.  However, ultimately almost everything we do here is tied to the fundamental objective of maintaining effective laws and indeed an effective rule of law – and ensuring that these are underpinned by a cohesive justice system. In fact, it’s principally on that basis that many thousands of people in Western Victoria and Northern Victoria, respectively, elected Mr Grimley and me to this Parliament.  Those voters understand – and we are here to express on their behalf – that Victorians will never feel entirely safe or secure, nor appropriately protected from the worst effects of crime, if our society is not based on solid legal foundations and values.  And that’s why I am moving this motion here in the Legislative Council today.

The motion is specifically for a referral to the Legal and Social Issues Committee for an inquiry that I believe will enable us to examine a number of crucial and pressing issues in the Victorian justice system.  More to the point, I hope it will allow us to identify meaningful solutions to a number of serious and enduring problems.  It is deliberately based on broad terms of reference, with four main points of focus.  I have chosen these not only because they represent four of the most immediate and critical areas in the justice system that lend themselves to committee consideration.  But because, in all likelihood, they will also seamlessly pave the way for scrutiny of some other important and associated issues.

Firstly, analysis of the number of people in our State’s prisons is one of the most obvious baselines for any inquiry of this kind. According to the Australian Bureau of Statistics: over the past 21 years, the number of people in full time custody in Victoria has soared by more than 200 per cent – to more than 8,000 people in the December 2019 quarter.  As the Productivity Commission’s latest ‘Report on Government Services’ confirms, this means around 157 people per every 100,000 are imprisoned in Victoria compared to only 106 even a decade ago.  Within that overall cohort, close to 3,000 prisoners are currently on remand whereas, 21 years ago, there were only around 400.  To add to all of that, the ABS data says there are also nearly another 13,000 people on community corrections orders.  That’s more-than-double the equivalent figure in 2001.  No matter the perspective from which any of us comes to law-and-order debates, no-one can be content about what these numbers are already telling us.  Especially as they also need to be set in the context of what is widely understood to be substantial under-reporting of crime in many areas, particularly rural towns.  We should be even more worried about what a potential continuation of these trends will mean in the future.  Ultimately, significantly driving down crime has to be a goal we all share.  This leads me to the second part of my motion.

Clearly, one development that would dramatically improve law and order in Victoria would be the reduction of our persistently high rates of criminal recidivism.  Currently, more than 50% of people incarcerated in Victoria subsequently re-offend.  Worse still, 43% of all Victorian prisoners are back in custody again within just two years of being released.

Each of those numbers is staggering.  Arguably what is most stark of all about them is they confirm we have what the IPA’s Andrew Bushnell describes as a corrections system that isn’t proving sufficiently corrective.   In short, some inmates aren’t being imprisoned for long enough to keep the broader community adequately safeguarded from them.  Nor is Victoria most effectively using what is often the last-best chance to break what has typically become an entrenched downward spiral for many people who have found their way to jail.

In my view, a committee process would allow for detailed and careful consideration of the myriad of ramifications of these numbers, as well as the many factors behind them. This would almost certainly incorporate contemplation of more work and investment in early interventions and programs to divert Victorian youths, in particular, from a trajectory of offending.

The committee would also likely hear that, for the most directly affected victims, the devastating consequences of almost every serious crime are frequently compounded by court processes and responses that are bewildering and deeply unsatisfying.

To that end, the last two components of my motion focus on how we ensure that we attract, appoint and equip the best candidates for judicial office to most proficiently meet the demands and needs of contemporary courts and society.

Over more than a decade, the two major parties have variously promoted the need for changes to improve the quality and transparency of the processes and criteria for judicial appointments.  However, those reforms have yet to materialise. By contrast, in other States and Territories, a number of formal review processes and inquiries have recently led to the creation and implementation of a range of important new guidelines and protocols for judicial appointments.  In some of those cases, advisory panels have also been established specifically to help Attorneys-General vet and select candidates in a more comprehensive and considered way.

I would stress this is not to criticise Attorney-General Hennessy or any past Victorian Attorney-General by comparison.  However, it is to raise the point that there are no statutory requirements for consultation in this area in Victoria, and that our Attorneys are also not bound by such advice. For Queensland’s part, its Attorney-General, Yvette D’Ath, wrote in 2015 that there is clear value to be gained from (and I quote) “a public discussion about what attributes, skill-sets and qualities we should seek in filling judicial positions.” Those are sentiments with which I agree.

They also have particular relevance at a time when many justice systems (and Victoria’s is one of those) are increasingly being supplemented by the use of specialist courts.  Improved decisions, and more accurate scrutiny of the increasingly sophisticated and complex evidence that typically features in specialist courts, will surely flow from wider discussion and analysis not only of how we make judicial appointments in and of themselves.  They will also come when we best align judges and magistrates’ individual skills and relevant capabilities to where they are most needed.  Obviously, it would also be remiss of me to complete this speech without reflecting on the point that our State clearly does have some particularly difficult questions to contemplate here after the recent overturning of a succession of Victorian decisions on appeal to the High Court.

Across each of the aspects of the inquiry, MLCs would undoubtedly bring a number of different ideas to the table.  However, I would encourage anyone who might be inclined to contribute to it to recognise there’s a real opportunity (and actually a real imperative) for us all to work collaboratively on this. Not least because the view that our justice system requires major reform tends to be almost universally shared across Victorian society, but is also widely shared throughout the legal fraternity too.

And, if anyone doesn’t believe that, they may care to type terms like “Victoria broken justice system” into a Google search.  They can then not only behold 23 million plus entries that will greet them – but also contemplate the vast range of personal and professional backgrounds from which those observations come.  In a legal sense, reports and comments pointing to dissatisfaction with elements of Victorian justice can be found not only, for example, from the likes of Victoria Legal Aid, the Victorian Aboriginal Legal Service, VCOSS and other centres and organisations working with the most destitute, disadvantaged clients.  You’ll also find them even in recent times (right at the other end of the system), too, from eminent judges and magistrates such as Dyson Heydon, Charlie Rozencwajg and Nick Papas, and many other very senior figures.

Of course, it’s not hard to understand why – given that Victoria’s justice system, to this day, remains plagued by a catalogue of abiding problems and challenges. These range from insufficient early intervention and primary prevention at one end of the spectrum through to the discouraging evaluation of programs at the other, which ultimately determines outcomes.  They extend from protracted court delays and the inefficiency of many processes (even when cases do make it to trial) through to the growing proliferation of plea bargains, legal loopholes and sometimes-dubious defences that enable offenders to sidestep certain hearings altogether.  They take in contradictions such as Nicola Gobbo being awarded more than $7 million in legal costs and compensation while people requiring legal aid, and victims of horrific crimes, sometimes struggle even to access basic support.

Obviously, I could cite many more problems – including:

  • the inadequate monitoring of some high-risk offenders;
  • the lack of a public sex offenders’ register;
  • waves of child pornography activity;
  • soaring levels of drug abuse;
  • rife smuggling of contraband into correctional facilities;
  • shocking numbers of assaults on emergency workers (including custodial and correctional officers);
  • youth justice and child protection systems under ever-present strain;
  • crumbling court infrastructure in some locations;
  • legislation that’s sometimes not accurately targeted;
  • prolific domestic and family violence (including growing numbers of infanticide, and adolescent, parent-child and child-on-child violence cases);
  • growing pressures on judicial officers themselves, insufficient continuing education for lawyers, magistrates and judges, and the need for more prosecutors and specialist staff; and
  • the lack of 24 hour police stations in a number of parts of Victoria, especially across rural and regional areas.

Let alone the rising demands, pressures and costs (indeed often prohibitive costs) at almost all points of the system. Of course, this inquiry that I am proposing clearly can’t extend its remit to anything like all of those issues.

Furthermore, and as is the case for all such inquiries, it might be that the Government is reluctant at the end of the day to embrace even the various changes that the committee proposes.  For our part in Derryn Hinch’s Justice Party, though, we genuinely believe this inquiry offers the potential to identify some far-reaching and critically-needed reforms. Ultimately, Victoria would benefit substantially from the re-emergence of a justice system that appropriately holds those accountable who offend, and offers genuine deterrence to those who are thinking of doing so.  We also need a system that incorporates a corrective component that is sufficiently equipped to better enable released prisoners to integrate back into society and make them less likely to re-offend.

Most of all, we need to better honour the principle that the main beneficiaries of any serious, self-respecting justice system should always be those who abide by the law rather than those who break it.  Frankly, we can’t afford much more loss of community faith in a Victorian system that has both long and widely been perceived as tilting the scales of justice too heavily in favour of the perpetrators of crimes over their victims.

Clearly, one key step in helping to achieve all of that is more intensive and focused work here in the Upper House on measures that have the potential to trigger meaningful and genuine reform – and to rebuild public confidence in the justice system in the process.  That’s the fundamental premise on which this motion is predicated, and I trust that other MLCs will today recognise the value and common sense in that approach.

Many of the problems in the Victorian justice system have become unsustainable, but we simply cannot allow them to become insurmountable. On that note, I commend this motion to the House.