MS TIERNEY (Minister for Corrections) (17:26:21) — I move:
That the bill be now read a second time.
Incorporated speech as follows:
Background on the Access to Justice Review
In 2015 and 2016, the Victorian Government undertook a review into access to justice, which was aimed at reducing the barriers to dispute resolution and improving access to legal assistance services. The Access to Justice Review 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.
The Review found significant goodwill and dedication among institutions and service providers in the justice system and the legal assistance sector, despite the many challenges the system faces. It also found that some important enablers of the system are weak: there is a lack of data, poor technology in many parts of the system, under-resourcing of legal assistance and related services, and services that are not sufficiently integrated.
The Review proposed strategic responses — better information, more integrated services, better use of technology and stronger governance — to enhance access to justice through a systemic approach. The Review made 60 recommendations for improvements to access to justice in Victoria, focused in particular on the need to improve: legal information; flexible and integrated services; the use of technology; and leadership, governance and links within the legal assistance sector.
The Government agreed, or agreed in part, to 57 of the 60 recommendations. In its response to the Review, the Government announced $34.7 million in new funding to help disadvantaged Victorians better access legal advice, support and information. The package was in addition to the $103.7 million provided to enhance the justice system and legal assistance services that was announced in the Victorian Budget 2017–18.
The Bill will implement 16 recommendations from the Review, and make miscellaneous amendments to other justice legislation. Together, the amendments will increase access to justice for Victorians, and ensure that the most disadvantaged and vulnerable people in our community receive the support they need when engaging with the law and the justice system. Specifically, the Bill will enable Victorians to get information about a legal problem more quickly, use processes that resolve their disputes as fairly and quickly as possible, and, if they are disadvantaged or vulnerable, have better access to legal advice and assistance.
Improving people’s access to legal aid
Victoria Legal Aid, community legal services, the private legal profession, and Aboriginal legal services all play an important role in delivering complementary services to help disadvantaged Victorians access legal assistance services, and to advance equality, fairness and justice across our state.
The Bill makes a number of amendments to the Legal Aid Act to ensure that legal assistance services are responsive to the legal and related needs of the community, and that government funding is used as effectively and efficiently as possible.
Greater coordination of legal aid and legal assistance information
The Review found that the legal assistance sector lacks coordination and operates in silos, creating significant challenges for the effective and efficient use of resources. Currently there is no one entity with a full picture of funding flows or service offerings in the sector, which inhibits coordination of services and good planning for the allocation of public funds.
The Review found that while VLA has taken on, or been given, some coordination functions for the legal assistance sector, it has lacked a clear mandate from government for such a role, and therefore, the appropriate structural supports have not been put in place.
The Bill provides VLA with a clear mandate to coordinate, and undertake strategic planning for the provision of legal aid in Victoria. In performing this coordination role, VLA will consider how the legal assistance system operates as a whole, and how services could better complement one another, with the ultimate aim of reducing unmet legal need across Victoria. This formal oversight role will help to ensure that legal aid is provided in the right ways, in the right places, and to those who need it most, in order to maximise the value of the Government’s investment in the sector.
The Bill also provides VLA with a formal role in coordinating the provision of legal assistance information at the State-wide level. In performing this function, VLA will work closely with the community legal sector, using its expertise and local knowledge to understand and determine the best way to provide and expand legal assistance information. The Bill maintains the role of community legal services in developing legal assistance information. It acknowledges community legal services’ unique ability to harness their invaluable local knowledge, expertise and community connections to tailor and target legal assistance information at the local level.
In recognition of the importance of self-determination, and the independence of Aboriginal Community Controlled legal service providers in advancing access to justice for Aboriginal Victorians, Aboriginal legal services will not be subject to VLA’s strengthened coordination role.
Better collaboration through a Collaborative Planning Committee
To support VLA’s coordination role and drive genuine collaboration across the sector, the Bill establishes a new Collaborative Planning Committee. The Committee will provide strategic, evidence based advice to the VLA Board about legal and related community needs, the provision of legal aid, and VLA’s coordination functions. The Committee will be representative of the legal assistance sector, the Law Institute of Victoria, the Victorian Bar, the Victoria Law Foundation, and the Department of Justice and Regulation. Representatives from Aboriginal legal services will be invited to participate on the Committee, to ensure that the legal needs of the Victorian Aboriginal community are considered, and that mainstream legal assistance providers deliver culturally appropriate services.
Advice from the Committee will inform the VLA Board’s decision making about the allocation of resources for the effective and efficient provision of legal aid. The Committee will be able to make recommendations to the VLA Board. Upon request, the VLA Board will be required to respond to the Committee with any action that has been, or will be, taken in relation to the Committee’s recommendations. This process will increase the transparency of funding decisions, and ultimately increase sector acceptance of the tough decisions that need to be made in an environment of pressing demand and finite resources.
Also related to VLA’s new coordination function and the allocation of resources, the Bill includes a number of safeguards to increase the transparency of resources allocated to community legal services. These include a requirement that the VLA must include in its annual budget the total amount that it will pay community legal services in a given financial year, and discretionary power for the Attorney-General to require VLA to pay no less than a specified amount. These amendments recognise and promote the important role of community legal services in the mixed model of service delivery.
Improving accountability, and increasing transparency through robust reporting requirements
The Review recommended a number of changes to enhance VLA’s accountability for its strategic resource allocation decisions and to balance its coordination role.
The Bill requires VLA to prepare, and submit to the Attorney-General for approval, a four year strategic plan. The preparation of a strategic plan will facilitate consultation between VLA and the Attorney-General on government priorities for legal assistance services to the community, and ensure the alignment of service delivery with agreed priorities.
VLA receives significant government funding to pursue the objectives of the Legal Aid Act. To enhance VLA’s accountability for the allocation of public money, the Bill also requires VLA to prepare an annual corporate plan that outlines VLA’s budget (including the allocation of funding for community legal services), priorities, intended achievements and activities each year. Annual corporate plans would be consistent with the relevant strategic plan. The development of an annual corporate plan will facilitate dialogue between VLA and the Attorney-General about priorities and plans for the year ahead, and what VLA can reasonably do within the budget allocated to it. VLA will report back to the Attorney-General and the public on its pursuit of the annual corporate plan each year, through VLA’s Annual Report.
Both plans will be made available to the public on VLA’s website.
To improve the transparency of VLA’s operations, the Bill requires VLA to prepare and publish quarterly reports on its website. The quarterly report will outline VLA’s financial and service delivery performance, by reference to indicators specified by the Attorney-General. As VLA already provides reports with much of this information to government, this measure will deliver greater transparency without imposing an undue burden on VLA. The quarterly report will also provide an opportunity for VLA to update the sector on developments and decisions that affect the sector.
These measures will provide for structured engagement about priorities for legal assistance services to the community, and enhance VLA’s accountability for its strategic resource allocation decisions. The Bill will reduce opportunities for perceptions of conflict to arise, foster greater trust amongst the service providers, and support collaborative operations across the entire system.
Strengthening the governance of VLA
To support VLA’s coordinating and planning role the Bill strengthens the skills base of the VLA Board so that it has the appropriate skills mix to fulfil its statutory duties.
At least two Board members will have skills and experience in a relevant area of legal practice — one in criminal defence, and one in another area of law relevant to VLA’s work. At least one member of the Board will be required to have experience in public management. The requirement for one Board member to have experience in financial management will also be retained. These arrangements reflect the importance of having a good understanding of government financial and performance management, and the important relationship between an agency and its responsible Minister.
The Bill also clarifies the role of the Board and reporting lines by removing the position of Managing Director from the Board, and renaming the “Managing Director” as the “Chief Executive Officer” (CEO). The CEO will have responsibility for VLA’s day to day operations, thus achieving a clearer distinction between the CEO role and the strategic oversight of VLA by the Board. The Bill gives the Board the power to appoint the CEO, with the approval of the Attorney-General. These new arrangements will also align VLA’s governance structure with modern best practice in government boards.
The Bill strikes a balance between the need for strong sector leadership to ensure that services are coordinated and responsive, and a clearer mandate from government with appropriate transparency and accountability measures. It establishes formal mechanisms for collaboration within the sector, to inform sound decisions about resource allocation. In doing so, these reforms will improve system-wide co-ordination and integration to better meet legal need in the community, and promote greater efficiency and effectiveness in the allocation of public resources.
Strengthening the access to justice evidence base
The Review found that, in order to improve the justice system, Victoria needs better research and data about the legal needs of Victorians and how to meet them. The Review recommended that the Victoria Law Foundation, an organisation that has focussed on education and information about the law and the legal system, be reshaped into a centre of excellence for data analysis, research, and evaluation on legal need, access to justice, and civil justice.
The Bill gives effect to this recommendation by:
specifying for the first time the object of the Victoria Law Foundation — to “contribute to the development of a justice system that meets the legal and related needs of the Victorian community by improving knowledge and information about the Victorian justice system”;
amending the Victoria Law Foundation’s functions to expand and prioritise its research function; and
expanding the membership of the Foundation to ensure that it includes research expertise, and to include members from Victoria Legal Aid and the Courts Council.
These changes will equip the Victoria Law Foundation to pursue its new role in 2019.
Although the Foundation will have a new and essential role in the justice system, the Government is also pleased to support the Foundation to continue its valuable work in plain language training and educating the public about the justice system through schools, community programs and Law Week.
Improving people’s access to VCAT
The Victorian Civil and Administrative Tribunal (VCAT) plays a key role in Victoria’s civil justice system by providing a contemporary, accessible, efficient, and cost-effective mechanism for people to resolve their disputes.
However, the Review found that some proceedings in VCAT have become too complex, and that disadvantaged Victorians continue to experience barriers to accessing justice.
To enhance VCAT’s ability to deliver timely, affordable and accessible dispute resolution services to Victorians, the Bill includes reforms that will reduce the complexity, and improve the user experience, of Tribunal proceedings. The Bill also makes amendments regarding the appointment of acting deputy presidents and senior members, to ensure continuity in senior VCAT roles.
Removing barriers to resolving small civil claims
VCAT plays an important role in resolving small civil claims and enforcing consumer rights. Special rules apply to hearing and determining small civil claims at VCAT — for example, VCAT generally will not allow a party in a small civil claims proceeding to be represented.
To reflect the increase in the market value of goods and services since 1998, the Bill amends the definition of ‘small claim’ in the Australian Consumer Law and Fair Trading Act 2012 to increase the threshold amount for small civil claims at VCAT from $10 000 to $15 000. This amendment will enable the more streamlined process for determining small civil claims at VCAT to apply to any civil claim under $15 000. The change also aligns with the new VCAT fee regulations that came into operation in 2016.
The amendment will only affect proceedings in VCAT, and not consumer and trader disputes in Victorian courts, or in other States and Territories.
In addition, the Bill amends the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), to allow parties to small civil claims to request written reasons for a VCAT decision within 14 days of a member giving oral reasons. Currently, parties to small civil claims must request written reasons for a VCAT decision before a matter is heard or at the hearing. This change will give parties to small civil claims the same amount of time to request reasons as parties to other proceedings at VCAT.
Expanding alternative dispute resolution at VCAT
The Bill also makes amendments to the VCAT Act to expand the range of people who can conduct compulsory conferences at VCAT. A compulsory conference is a form of alternative dispute resolution that is provided by VCAT. People have an opportunity to discuss options to resolve their dispute through a compulsory conference, with the assistance of a Tribunal member or registrar, in private, prior to a formal hearing. Most cases listed for a compulsory conference are settled and do not require a formal hearing.
Currently, these conferences are only conducted by Tribunal members or the Principal Registrar. To enable more widespread use of compulsory conferences across VCAT, the Bill enables the Tribunal to nominate a person, such as an accredited mediator, to conduct compulsory conferences. For compulsory conferences relating to proceedings under planning laws, the person who conducts the compulsory conference will also need to have sound knowledge of, and experience in, planning or environmental practice in Victoria.
These amendments will improve the efficiency and cost-effectiveness of VCAT proceedings and, in turn, promote the early resolution of disputes.
Making it easier for parties to navigate proceedings
The Bill also makes a range of amendments to the VCAT Act to make it easier for people to access and navigate VCAT proceedings.
For example, the Bill clarifies that a person can be supported by another person, such as a family member or friend, who can provide emotional support to a party during proceedings. This is in addition to a person being able to use an interpreter or advocate.
The Bill also places a positive duty on the Principal Registrar to provide assistance to parties and potential parties to VCAT proceedings. This duty does not extend to the provision of legal advice.
Facilitating the service of documents at VCAT
VCAT is also embracing digital technologies to provide more accessible services to its users.
To support VCAT’s enhanced digital services, the Bill amends the VCAT Act to facilitate the electronic service of documents on parties, and potential parties, to VCAT proceedings. The amendments will enable a document to be served on a person by sending it to a person’s electronic address, in accordance with the rules of the Tribunal. The amendments will also deem that electronic service occurs when the communication is delivered, while allowing the Tribunal to find that the communication was served at a later time, if that communication was not capable of being retrieved at the time it was sent.
Online technologies provide a faster and more reliable way to contact people than ordinary post.
Simplifying the enforcement of VCAT orders
The Bill also makes a range of amendments to simplify the process for enforcing VCAT orders:
first, the Bill removes onerous requirements for parties to file documents in the courts and provides that a person may enforce an order of VCAT as if it were an order of the relevant court;
second, the Bill enables VCAT to re-open a proceeding in order to review an order, and make further orders, where there are problems with enforcing or complying with the order; and
third, the Bill clarifies when a failure to comply with a VCAT order constitutes contempt of the Tribunal, and enables all presidential members of the Tribunal to exercise VCAT’s contempt powers.
Reducing financial barriers to people accessing the Courts
Protective costs orders
The Bill amends the Civil Procedure Act 2010 to set out the matters that a Court may have regard to when considering whether to make a protective costs order. Such orders fix or cap a party’s liability for costs in advance to protect the party from an adverse costs outcome, and are often made in public interest cases that are designed to test and clarify important points of law, particularly for marginalised and disadvantaged people.
The courts already have the power to make protective costs orders, and, traditionally, have relied upon a list of criteria identified by the Court of Appeal. Setting out the common law criteria for protective costs orders in legislation will provide clarity and guidance on the circumstances in which such orders will be considered appropriate.
Flexible fee levels in the County Court and Magistrates’ Court
The Bill expands the fee regulation-making powers in the County Court Act 1958 and the Magistrates’ Court Act 1989. This change will bring the fee regulation-making powers for these courts into conformity with other jurisdictions. For example, the Bill provides that regulations may be made to set fees for different classes of proceedings and different classes of court users; to provide for the payment of fees in advance, and the consequences of failure to pay a fee; and to allow fees to be reduced, waived, postponed, remitted or refunded.
The existing provisions constrain the capacity to amend the court fee structures in a way that takes account of the actual costs of different steps in litigation. Facilitating a more flexible structure for court fees will increase access to justice, support reforms to court operations, and enhance efficiency.
Increasing access to funding for legal assistance
The Bill makes two amendments to the Legal Profession Uniform Law Application Act 2014 to increase funding to legal assistance services. The Bill:
increases the amount of funding that may be paid from the General Account of the Public Purpose Fund to the Legal Aid Fund from 35 per cent to 40 per cent. Money from the Legal Aid Fund is then used to make payments in, or in connection with the provision of legal aid (among other things); and
amends the Victorian Legal Services Board’s grant-making power, enabling it to make a grant payment for innovative improvements to access to justice, without limiting the Board’s general discretion.
Removing barriers for married people seeking to alter the record of their sex
The Bill amends the Births, Deaths and Marriages Registration Act 1996 (BDMR Act) to remove the current requirement for a person to be unmarried in order to make an application to alter the record of their sex in their birth registration, and therefore what appears on their birth certificate. This requirement was included in the BDMR Act to prevent the creation of a same-sex marriage through the registration of one spouse’s change of sex.
Following reforms to the Marriage Act 1961 (Cth) to facilitate same-sex marriage and associated amendments to the Sex Discrimination Act 1984 (Cth), a refusal by the Victorian Registrar of Births, Deaths and Marriages after 9 December 2018 to alter an official record of a person’s sex because the person is married will breach the Commonwealth law’s prohibition on discrimination on the grounds of marital or relationship status.
By removing the requirement for a person to be unmarried, the Bill ensures that a person does not need to divorce their spouse in order to have a birth certificate that reflects their sex.
The Bill also makes minor amendments to the Legal Profession Uniform Law Application Act 2014, and the Legal Profession Uniform Law which is a Schedule to that Act and that has joint effect in NSW. These changes:
establish an exception to the general prohibition on a law practice operating or promoting a managed investment scheme, in respect of a scheme that is connected with or related to the business structure, ownership or operation of the law practice (such as a profit-sharing arrangement); and
reinstate the Victorian Legal Admissions Board’s power to charge a fee to recover its reasonable costs of assessing overseas qualifications.
In conclusion, I would like to thank all those individuals and organisations who contributed to the Review, and to the development of this legislation.
The amendments in this Bill will help break down the barriers for many Victorians, particularly those who face significant disadvantages, so that they can access legal services and support when they need them. A justice system that supports the most vulnerable in our community and gives the disadvantaged better access to legal services means a fairer, safer Victoria.
I commend the Bill to the house.