Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021 - Legislation

17 November 2021

It gives me a great deal of pleasure to rise to speak on this bill this evening but also to follow the previous speaker on that note of confidence, because I have to say my local community out in Wyndham are feeling really, really confident at the moment because they have cracked that 90 per cent double-vaxxed rate and are leading vaccination rates in Melbourne’s west. There is a whole lot of confidence in the people in my community. That plus-90 per cent getting double vaxxed shows just how confident people are in understanding the science to go ahead and get vaccinated and understanding what this global pandemic and these past two years have really, really been about. But I digress.

I am going to talk about the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021. This bill is all about taking a really important next step towards implementing recommendations that came out of the Royal Commission into the Management of Police Informants. Now, when our government was re-elected in November 2018 one of the first things that we did was go ahead and initiate the Royal Commission into the Management of Police Informants. When this royal commission wrapped up we learned of significant deficiencies in the operation of the Victorian criminal justice system, particularly when it came to police and what they were doing in relation to police informants.

I have talked here in the house previously about the real difference between good governments and great governments. Great governments really look at addressing inadequacies, whether they are in policy or legislative reform, and inequalities that currently exist in society. Whether that is around us talking about and moving legislation with the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 that was before the house today—and we talked about equality for our LGBTIQ community—or whether it is people with disabilities, whether it is around gender or whether it is around your religion, your background or the colour of your skin, we are all about making Victoria a safer, fairer and more equal community.

And that does not just stop there. We have gone and we have identified inadequacies in our criminal justice system, and this bill is all about stepping in and making changes to ensure that they are addressed. The commissioner of the royal commission made 111 recommendations. Of these, just under half—54 recommendations—will require government action. I am very pleased to say to Victorians that our government has wholeheartedly accepted the royal commission’s findings and it has made it clear that incidents like the one with Lawyer X cannot be allowed to be repeated here in Victoria. Now, when the final report was handed down last year, our government did agree to implement all recommendations outlined in the report. In fact we already made really good progress in work on this earlier this year by establishing the police informants monitor. We appointed Sir David Carruthers to head that office, and that office of the monitor is now working with the Department of Justice and Community Safety to work through the implementation of the remaining recommendations that we need to go ahead and implement. We have made these changes, most importantly, because Victorians need and most certainly deserve a justice system that operates within the rule of law, as it always should.

What this bill will go ahead and do is implement recommendations 62, 63, 66 and 67, which all relate to disclosure requirements in criminal proceedings, to protect information given to police from being misused. As we have seen in the context of Lawyer X, failure to disclose information does have serious consequences for the operation of our justice system, and that should concern all of us. We have already seen three convictions set aside because of conflicts of interest that failed to be disclosed, and two of those were directly linked to Lawyer X. To rectify this, this bill creates a statutory obligation for the information given by informants to be provided to the Director of Public Prosecutions in line with recommendation 62. In order for criminal trials to operate fairly the DPP needs to have all relevant information, even when it results in a not guilty verdict. Now, where that information is subject to the privilege of immunity or a disclosure restriction, the existence of this restriction and the nature of the material must be provided to the DPP instead when requested to be provided.

The reason for this is simple, but it is actually quite important. The DPP has an obligation to provide all relevant information to the court, and it cannot unlawfully withhold information, even when it is going to sink its case. This is fundamental to the right of the accused getting a fair hearing. Many, many moons ago I worked as one of—I am trying to think what we were called—the ‘legal eagles’; we were young clerks put into the Office of the Director of Public Prosecutions in Queensland, all those years ago as I was finishing off my law degree at the University of Queensland. It was something I was quite familiar with, the fundamental right for the accused to get a fair hearing.

In addition to this, recommendation 63 requires that the bill also provide for police to complete disclosure certificates where evidence is prepared that contains information provided by informants, and then those have to be signed off by the DPP. Again, where information is subject to privilege, immunity or restrictions, the police will be required to declare this. What this will mean is that information is withheld from the accused but all parties in the proceeding will be aware of that fact, which may be relevant in court where disclosure, most importantly, is being sought. These changes will help facilitate a fair trial, and it is going to ensure that information handled by police is treated with the utmost diligence, as it always should have been.

Now, further to this, recommendation 66 requires that any and all information relevant to the credibility of a prosecution witness must also be disclosed to the accused. Again, in a fair trial the accused has the right to cross-examine witnesses, and this means that when presented with information as to the credibility of a witness, the accused will have the right to plan their case accordingly and strengthen their cross-examination. All of these changes contained in the bill, particularly around police informants and the way in which they handle this information, sound quite technical in nature, and when I had a read through the bill, it is quite technical in nature. It takes me way back to my legal studies at the University of Queensland. But what is really important about the technical changes contained within this bill is that once implemented they are going to ensure greater fairness in how informant information is used, is disclosed and most importantly is protected within our justice system.

Now, in addition to the royal commission recommendations this bill makes a number of miscellaneous amendments for the purpose of improving the operation of our courts. One of these changes is to the role of the Chief Magistrate as a head of jurisdiction. Currently the Chief Magistrate holds a dual commission with the County Court. As it stands, the Magistrates Court at the moment accounts for 90 per cent of all cases that come before the Victorian court system on a yearly basis. That is a lot of cases going through the Mags Court. So what we are going to do is make sure that the Chief Magistrate role is a role that is attracting the very best quality of candidates from across our judiciary. That is why this bill will elevate the commission of the Chief Magistrate in line with other heads of jurisdictions such as the County Court and Supreme Court.

This bill is going to implement a range of other reforms in relation to the Royal Commission into Family Violence that we held. It is going to implement recommendations 71 and 133 by permitting the use of remote technology for victim-survivors of family violence to go ahead and give their evidence outside of the courtroom so as not to be put in contact with the perpetrator—something very, very important that will happen as part of this bill. It is for these reasons I commend the bill to the house.