MS TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:45): I move:
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms TIERNEY: I move:
That the bill be now read a second time.
Incorporated speech as follows:
In April 2020, the Government introduced reforms aimed at ensuring the justice system could respond effectively to the challenges that COVID-19 posed, including the introduction of judge alone trials and special hearings. These reforms were time-limited and operated effectively until April 2021.
We all hoped that specific COVID-19 related provisions would no longer be required in 2022. However, the continued impacts of COVID-19, including the significantly increased prevalence of COVID-19 in the Victorian community compared with earlier stages of the pandemic, have changed the public health context. Even with high levels of vaccination and continuing public health measures, it is very likely that disruptions to jury trials and hearings caused by COVID-19 will continue for some time.
To provide the courts with an additional tool to respond to these potential disruptions and allow more criminal cases to proceed, the Bill will reintroduce these judge alone provisions on a temporary basis. The Bill will also make other reforms to ensure the justice system can manage the ongoing impacts of the pandemic, including extending temporary provisions due to expire in April 2022.
I now turn to specific aspects of the Bill.
Judge-alone criminal trials
Currently, criminal trials in Victoria must be heard by a jury, reflecting the longstanding and fundamental role of juries in the criminal justice system.
Jury trials are running in both the Supreme Court and the County Court, and the courts are implementing measures to ensure these trials run as safely as possible, for example by establishing testing facilities for jurors and other trial participants (including legal practitioners) in Melbourne, the use of rapid antigen tests on circuit and re-purposing trial and jury rooms to allow for appropriate social distancing. The courts are also conducting most non-jury work remotely, to reduce the number of users physically present at court.
Despite these efforts, the courts continue to face significant trial backlog and disruptions, which continue to be exacerbated by the ongoing impacts of the COVID-19 pandemic. Many jury trials have been adjourned due to COVID-19 since the pandemic started, and juries have been discharged due to COVID-19. Concerns about COVID-19 also appear to be affecting the available pool of jurors, with more potential jurors asking to be excused.
Delays in criminal proceedings can adversely impact complainants and victims, due to uncertainty about when matters will be heard, and lack of closure. Delays can also significantly impact accused persons, particularly those being held on remand while awaiting trial.
Accordingly, with the support of key stakeholders including the courts, this Bill will reintroduce the temporary judge alone trial model, which operated between April 2020 and April 2021 (the 2020 model). This scheme operated effectively and is already known to the courts and legal profession.
Like the 2020 model, these reforms will be time limited, and will be repealed 12 months after they commence. The key substantive difference from the 2020 model will be to provide that an order for a judge alone trial may only be made when a pandemic declaration under the Public Health and Wellbeing Act 2008 is in force. This reflects the new pandemic management legislative framework and is appropriate given these reforms are aimed at responding to the COVID-19 crisis and its continuing effect on the court system.
In addition, the Bill will allow applications for judge alone trials that have been lodged (but not yet considered by the court) while a pandemic declaration is in force or before the sunset date to continue and, if an order is made, will allow these trials to proceed by judge alone. The 2020 reforms required the order for trial by judge alone to be made before the sunset date. This change will give the courts appropriate flexibility in the event that numerous applications are filed close to the expiry date of a pandemic declaration or the sunset date.
These reforms will enable the Supreme and County Courts to order an accused person to be tried by a judge alone in certain circumstances. These trials will be available for any Victorian indictable offence, but only if the court considers it in the interests of justice to hear the trial by judge alone and the accused person consents and has obtained legal advice on whether to give consent. While the prosecution’s consent will not be required, the court must consider any prosecution submissions before deciding whether to order that a matter be heard by a judge alone.
Allowing the courts to order trials by judge alone will give the courts and parties an alternative to jury trials in appropriate cases and allow more criminal trials to run. This will minimise delays in the court system and benefit parties.
As with the 2020 model, parties will be able to appeal verdicts made by a judge sitting alone in the same way as a jury verdict. Parties will also be able to appeal a decision of a court to order, or not order, a trial by judge alone.
In 2020, the government committed to significant consultation with stakeholders and the broader community before considering any permanent judge alone trial scheme. The government stands by that commitment. These are temporary reforms that are being reintroduced only to assist the justice system to safely continue to determine more criminal trials while COVID-19 continues to affect jury trials. The new requirement for a pandemic declaration is an additional safeguard and reinforces the temporary nature of these reforms.
The government is hopeful that these provisions will no longer be required as the pandemic progresses, and we learn to live with COVID-19. In the interim, however, they will ensure the continued effective and efficient functioning of the justice system and assist its recovery from COVID-19, while protecting the health and safety of Victorians, including jurors, court users and court staff.
Judge alone special hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA)
The Bill will amend the CMIA to allow proceedings to be conducted with greater flexibility during the COVID-19 pandemic, by allowing a special hearing under the CMIA to be heard by a judge alone if it is in the interests of justice to do so. In determining whether to make an order that a special hearing be heard by judge alone, the Bill will require the court to take into account the views of the accused as well as the prosecution.
These amendments are necessary to ensure that certain CMIA proceedings can continue throughout the COVID-19 pandemic in a timely way. Avoiding unreasonable delay is important in CMIA matters, as proceedings generally involve vulnerable accused persons with severe mental impairments or mental illness. Allowing judge alone special hearings will avoid further disruptions and backlogs in the court system and will reduce the risk that those who work in and attend Victoria’s courts will contract the potentially fatal COVID-19 virus.
In addition, the Bill will make amendments to address concerns raised by key stakeholders that the three-month timeframe for special hearings is presenting considerable challenges as the pandemic continues. The CMIA provides that if the accused is found not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing within three months. The Bill will allow for one extension to the three-month period to be granted, if it is in the interests of justice. The court may extend the time for a period that is reasonable, taking into account all the circumstances of the case and submissions from the prosecution and defence. This will ensure the extension will only be for the minimum period necessary to allow for the matter to be prepared, considering the individual circumstances of the case.
In alignment with the judge alone trial model, these changes will be time limited, and will be repealed 12 months after they commence. In addition, the variations noted above in relation to the judge alone trial model will apply to these reforms.
Delaying the commencement of de novo appeals reforms
In 2019, Parliament passed laws to modernise Victoria’s summary criminal appeal system. The Justice Legislation Amendment (Criminal Appeals) Act 2019 will abolish de novo appeals of criminal cases to the County Court and replace them with new processes that will enhance efficiency and transparency and reduce the burden on witnesses and victims.
These are important objectives, but they can only be achieved if courts and the legal profession have sufficient time to prepare for this significant change in practice. The commencement date for these reforms was postponed to 1 January 2023 by the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (System Enhancements Act) to allow courts and the legal profession more to prepare, due to the COVID-19 pandemic. However, the ongoing effects of COVID-19 on the court system and the significant time and resources required to implement the reforms make it necessary to further delay the commencement of the de novo appeal reforms until July 2025. This delay will ensure that efforts can remain focused on managing the impacts of COVID-19 and addressing the backlog of cases in the court system.
Extension of COVID-19 temporary measures
The Bill will extend Part 16 of the Occupational Health and Safety Act 2004 (OHS Act), which is a temporary Part introduced by the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 and extended by the System Enhancements Act and the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021.
The extension of this Part for a further six months will maintain the ability of WorkSafe inspectors to take enforcement action in relation to the occupational health and safety risks posed by COVID-19. Importantly, the extension will also ensure that employers and other duty holders under the OHS Act are providing a safe place of work and continuing to mitigate COVID-19 exposure risks in the workplace.
The Bill also extends section 42JA(2A) of the Evidence (Miscellaneous Provisions) Act 1958, which requires adult accused in custody to attend a summary contested hearing or a committal hearing by AVL by default. This temporary provision was introduced by the System Enhancements Act to address risks posed to the accused and other court users and staff by COVID-19 and is currently due to lapse on 26 April 2022.
Due to the risks presented by the ongoing pandemic, the Bill will extend the operation of this provision for a further 12 months. This will support Corrections Victoria to manage infection risk in custodial settings and mean fewer accused are required to undertake quarantine processes after attending these court hearings. However, as is appropriate, the Magistrates’ Court will retain the ability to order an accused to physically attend court when the interests of justice require it.
The Bill also extends Part 8.5A, sections 600S and 600T of the Children, Youth and Families Act 2005 for a further 12 months. These powers allow for the use of AVL or audio-link to satisfy young people’s attendance and reporting requirements under the Act. This was introduced as part of the COVID-19 Omnibus (Emergency Measures) Act 2020 and further extended for 12 months by the Justice Legislation (System Enhancement and Other Matters) Act 2021 and is currently due to also lapse on 26 April 2022.
Due to the current number of COVID-19 transmissions in the community, the requirement to attend a youth justice unit or report may not be feasible in some locations where staff or young people are isolating due to suspected or confirmed COVID-19 transmissions or cases. These extensions will ensure that Youth Justice can flexibly and appropriately manage the safety and wellbeing of young people under youth justice community supervision by allowing young people a remote means to safely suffice the requirements of their community order.
I commend the Bill to the house.