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The parties respond

News

Cite as: September 2014 88 (09) LIJ, p.23

The Coalition government, the Labor opposition and the Greens respond to the 10 key priorities identified by the LIV in its 2014 justice reform agenda, Call to Parties.

LIV calls for:
1. Funding Legal Aid

  • Access to justice for everyone in the community, particularly the most disadvantaged;
  • A review of the legal assistance sector and how the delivery of services is conducted;
  • The legal profession to be involved in future reviews of national partnership agreements;
  • An analysis of how to set the minimum level of funding and on what mechanism funding is required;
  • The state government to make an immediate one-off $10 million injection of legal aid funding and then provide appropriate ongoing recurrent funding regardless of any increase in Commonwealth funds; and
  • Introduction of a Victorian framework for Justice Impact Assessments to be undertaken for regulatory proposals, similar to the current UK model which may be administered by an independent body.

Coalition

  • The Coalition government is providing record levels of taxpayer funding to Victoria Legal Aid, and the government continues to support the work of the VLA board to ensure that funding is spent wisely and is directed to cases of greatest need where it will make a real difference.
  • In the 2013-14 Victorian budget the government provided a further $13.7 million over four years, on top of the more than $26 million a year in additional ongoing funding in the 2012-13 budget.

ALP

  • It is timely to review the effective use of resources at VLA and to examine expenditure on litigation choices, executive remuneration, publications and education functions.
  • If elected, a Victorian Labor government will conduct a root and branch review of access to justice in Victoria including Legal Aid, community legal centres, pro bono assistance, the role of the Victoria Law Foundation and assistance available at the courts.

Greens

  • The Greens’ policy is for secure funding for community legal centres and legal aid in both criminal and civil jurisdictions to ensure equal access to justice for all Victorians; that information about legal rights, responsibilities and processes be made widely available online and through community legal education; and a greater range of specialist services made available to provide an integrated response at the first point of contact with the justice system, particularly in relation to family violence.
  • The Greens support a review of the legal assistance sector;
  • involvement of the legal profession in the national partnership agreements;
  • an analysis of how to set the minimum level of funding which we believe is urgent given the changes to legal aid guidelines brought about by underfunding;
  • a one off $10 million injection of funding to overcome the impacts of the most recent funding cuts, followed by adequate ongoing funding.

LIV calls for:
2. Improving access to justice in rural, regional and remote (RRR) areas

  • Increased opportunities and better financial incentives for clinical placements for law students and graduates;
  • A scholarship scheme for law students;
  • Cash incentive payments upon completion of a specific time period in RRR areas;
  • Appropriate resources and court facilities in RRR areas;
  • Specialised Magistrates' Court services in RRR areas (i.e. Drug Court and Koori Court);
  • Delays in RRR County Court circuits to be addressed; and
  • The allocation of some government legal work to RRR firms.

Coalition

  • The government is providing $73 million in funding as part of the 2014-15 budget for a new purposebuilt, multi-jurisdictional court complex in Shepparton, together with an additional magistrate and court staff.
  • The government is also constructing a new multi-purpose court in Bendigo, with enhanced security and amenities, more prisoner holding cells and improved prisoner transfer arrangements, and is upgrading the Wangaratta Magistrates Court.
  • It has installed CCTV security cameras in 20 courts across Victoria.
  • It has supported the work of the County Court and Magistrates' Court in achieving reductions in listing times in courts across regional Victoria and has supported expansion of the Children's Koori Court to Warrnambool and Shepparton.
  • The government has already modified legal panel requirements to make it easier for government legal work to be awarded to RRR firms, and will consider possible further reforms as part of the upcoming re-tendering of the legal panel

ALP

  • The Legal Services Panel should recognise that there are professional and highly skilled lawyers and firms in rural and regional areas and they should get their fair share of work – particularly in instances where local knowledge would be an advantage.
  • Victorian Labor is proud of its legacy as the government that introduced specialist problem solving courts, including the Drug and Koori Courts. It would like to see these innovative courts expanded and integrated throughout the court system, including to courts in rural and regional Victoria. It would also encourage more training for magistrates and court staff in areas requiring specialist knowledge such as family violence and mental illness.

Greens

  • The Greens' policy is to work closely with the LIV to address the shortage of skilled lawyers in regional areas.
  • The Greens support scholarships in principle, subject to further consultation regarding implementation.
  • The Greens' policy is to reduce trial delays, in particular addressing the need for adequate resources and court facilities in RRR areas.
  • The Greens' policy is to maintain and, where appropriate, expand specialist tribunals such as the Koori Court, the Drug Court and the specialist Family Violence Court.
  • The Greens agree delays in RRR County Court circuits need to be addressed.
  • The Greens agree that legal firms in RRR areas with the appropriate expertise should be allocated a proportion of government

LIV calls for:
3. Reviewing the charter of human rights and responsibilities

  • Retention of the Charter;
  • Release of legal advice obtained by the government following the 2011 Parliamentary Scrutiny of Acts and Regulations Committee (SARC) review of the Charter in relation to the role of courts and tribunals under the Charter; and
  • An independent panel to be appointed to conduct the review of the Charter that is required to occur in 2015, with a broad mandate and sufficient resources.

Coalition

  • In 2011, the Coalition government asked SARC to review the Charter of Human Rights and Responsibilities Act 2006 and its operation. SARC made 35 recommendations for change, 34 of which were unanimous.
  • The government accepted most of SARC's recommendations in its formal response tabled in Parliament in March 2012. The government also committed to seek legal advice in relation to aspects of the operation of the Act, particularly its operation in courts and tribunals and the duties of public authorities under the Act. The government is considering the advice and feedback.
  • The two statutory reviews required under the Act are separated by fouryear intervals in part to ensure that different Parliaments will consider the outcomes of each review. The government does not intend to pre-empt a determination about the nature of the further statutory review required by the Act during the term of the next Parliament.

ALP

  • The Charter of Human Rights and Responsibilities Act 2006 was an Australian first and began the development of a human rights culture within government. The eight-year review must occur before October 2015. If elected, a Victorian Labor government will ensure that the next review of the Charter is completed by a sufficiently resourced and independent reviewer.

Greens

  • The Greens support strengthening the Charter and its extension to include economic, social and cultural rights.
  • The Greens support release of legal advice following the 2011 SARC review of the Charter and an independent panel to be appointed to conduct the 2015 review.

LIV calls for:
4. Criminal Justice Reform

  • A justice reinvestment approach to reducing crime by reallocating funds from the prison system to community services which aim to prevent crime;
  • Less restrictive means for protecting the community from high-risk offenders, and increasing resources to the parole system in order to rehabilitate offenders rather than further stigmatising them;
  • Specialised Magistrates' Court services in RRR areas (i.e. Drug Court and Koori Court);
  • The protection of judicial discretion and the abolition of mandatory sentences;
  • The retention of suspended sentences;
  • Improvement in the state's corrections system to address prisoner overcrowding;
  • A stop to the transfer to and placement of youths in adult prisons; and
  • Introduction of a Victorian framework for Justice Impact Assessments to be undertaken for regulatory proposals, similar to the current UK model which may be administered by an independent body.

Coalition

  • Through amendments to the Sentencing Act, Community Correction Orders (CCOs) have replaced a number of community based orders. Changes under CCOs include the introduction of a judicial monitoring condition, the ability for higher courts to order GPS monitoring of curfew and movement restrictions, as well as increasing to 600 hours the maximum amount of community work that can be ordered.
  • Legislation has been introduced to Parliament to create baseline sentences for serious offences.
  • Suspended sentences for all matters heard in the higher courts have now been abolished, with suspended sentences to be completely abolished from September 2014.
  • Gross violence offences carrying four-year statutory minimum sentences have been introduced in Victoria. Under the reform, injury thresholds contained in the Crimes Act were also amended to ensure they properly reflect the different levels of injury that might result from a violent attack.
  • The government is undertaking a major expansion of Victoria's prison system.
  • The government does not intend to reduce funding for the prison system as called for by the LIV.

ALP

  • Labor has committed to a new offence of assault causing death, which will fill the gap where police may be unable to secure a murder or manslaughter conviction in "'one-punch" cases.
  • Labor has committed to trialling Jury Sentencing Recommendations in the case of serious indictable offences. Juries will, in such cases, provide advice to the sentencing judge about an appropriate sentencing range for a given offence. Where the judge disagrees with the jury's recommendation, a written explanation will be required.
  • When young people engage in criminal behaviour, Labor believes in diverting low-risk non-violent offenders away from the justice system where possible.
  • Labor will look to extend the Neighbourhood Justice Centre Model, which has shown the success of integrated services – such as housing or employment assistance, or drug, alcohol and mental health treatment – at the one location.
  • Labor welcomes the Ombudsman's investigation into the prison system, prompted by concerns about the rate of reoffending and the costs to the Victorian community.
  • If elected, a Labor government will commit to creating a safer community and put in place programs that can reduce crime.

Greens

  • The Greens fully support justice reinvestment initiatives and providing more funds to community services that aim to prevent crime rather than building more prisons.
  • The Greens have called for increased resources for the Adult Parole Board and to the parole system in general and for increased resources for rehabilitation programs.
  • The Greens are committed to the protection of the independence and integrity of courts and tribunals including judicial discretion in sentencing and oppose legislation to introduce mandatory sentencing.
  • The Greens opposed legislation to abolish suspended sentences and home detention.
  • The Greens are committed to addressing prisoner overcrowding through the greater use of noncustodial sentencing options aimed at rehabilitation.
  • The Greens are opposed to the transfer to and placement of young offenders in adult prisons.
  • The Greens support the introduction of Justice Impact Assessments that assess the impact of new regulatory proposals on the overall justice system.

LIV calls for:
5. Reforming Tort Law

Amendment of the Wrongs Act 1958 (Vic) so that:

  • The threshold of 5 per cent whole person impairment (WPI) applies to all injuries, other than psychiatric, and is not limited to musculoskeletal injuries under Chapter 3 of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition);
  • If the threshold for injuries, other than psychiatric, is lowered to 5 per cent WPI, the effect of the decision in Mountain Pine Furniture v Taylor [2007] VSCA 146 is overturned;
  • The impairment threshold for a primary psychiatric injury is 10 per cent WPI; and
  • In addition to prescribed injuries under s28LF of the Wrongs Act, a narrative test of "significant injury" is included as an alternative means of assessing common law damages for pain and suffering.

Coalition

  • The Coalition committed to the LIV before the 2010 election to re-examine the Wrongs Act to determine whether the legislation could be amended to operate more equitably. It has delivered on that commitment through the review it commissioned by the Victorian Competition and Efficiency Commission (VCEC).
  • The VCEC was asked to consider the operation of the Act in relation to personal injuries including impairment thresholds and limits on damages for personal injury or death, including economic and noneconomic loss.
  • The VCEC provided its report in February 2014 and the government is currently considering its recommendations.

ALP

  • VCEC completed a review of the Wrongs Act in February 2014. Labor will give further consideration to reforming the Wrongs Act after the release of VCEC's final report.
  • Labor is committed to protecting the rights of injured Victorians. Labor governments conceived and implemented WorkCover and the National Disability Insurance Scheme. In Parliament it has opposed the government's attacks on the common law rights of injured emergency service workers and the victims of road trauma. It also opposed the government giving itself the power to determine what kind of injuries sustained in a traffic accident are eligible for compensation.

Greens

  • The Greens are concerned about the application of the American Medical Association Guides to the Evaluation of Permanent Impairment because it is too rigidly skewed against fair assessment of injuries and thus fair compensation to workers.
  • The Greens support measures which ensure that all injured people are fairly compensated, including a narrative test of "significant injury" as an alternative means of assessing common law damages for pain and suffering to better capture the circumstances of each case.

LIV calls for:
6. Religious exemptions under the Equal Opportunity Act 2010 (VIC)

  • A more considered approach to anti-discrimination and equality in Victoria through the modification of the religious exemptions under the Equal Opportunity Act 2010 (Vic).

Coalition

  • In 2011 the government made changes to equal opportunity laws to restore fairness and balance. The changes ensure that the Victorian Equal Opportunity and Human Rights Commission has the powers it needs to promote equal opportunity and tackle abuses while also ensuring that schools, sporting clubs and other organisations can continue to perform their legitimate roles.
  • The government has no intention of reversing those changes.

ALP

  • Victorian Labor introduced laws aimed at stamping out entrenched and systemic discrimination.
  • A Labor government will reinstate the "bona fide occupational requirement" limitation on religious exemptions.

Greens

  • The Greens are opposed to the religious exemptions under the Equal Opportunity Act 2010 (Vic) that allow religious organisations to discriminate on the basis of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity. It is inappropriate for organisations to even ask these questions of prospective employees, or students in the case of schools. In 2007, 2010 and 2011, the Greens moved amendments to remove the exceptions for religious schools and organisations.

LIV calls for:
7. Advancing Transparency and Accountability

  • Implementation of key recommendations in the Betrayal of Trust report including:
    • The authorisation of an independent statutory body to oversee and monitor the handling of allegations of child abuse by relevant government departments, religious and nongovernment organisations, and to investigate complaint handling systems and processes; and
    • Review of the Victims of Crime Assistance Tribunal to determine its capacity to administer a specific scheme for victims of criminal child abuse;
  • Introduction of a Victorian framework for Justice Impact Assessments to be undertaken for regulatory proposals similar to the current UK model which may be administered by an independent body; and
  • Ongoing commitment to open, honest and accountable government and the strengthening of Victoria's public governance frameworks.

Coalition

  • The government has announced a wide range of measures in response to the landmark Betrayal of Trust report, including three new criminal offences, new minimum child safety standards for organisations having contact with children, and a new reportable conduct scheme requiring organisations to centrally report on child abuse allegations to the Commission for Children and Young People.
  • The government is continuing to consider options and develop legislation for the implementation of other recommendations made by the Family and Community Development Committee, including in relation to redress for abuse victims.
  • The government has established Victoria's first independent, broadbased anti-corruption commission (IBAC). The Coalition has also established a Public Interest Monitor to review telephone and surveillance device warrant applications, and a Victorian Inspectorate to monitor the conduct of integrity bodies.
  • The government is considering the recommendations and suggestions made by IBAC with a view to introducing amending legislation later this year.
  • It has also appointed Victoria's first independent Freedom of Information Commissioner.

ALP

  • Labor will reform IBAC. It will give it jurisdiction over misconduct in public office, remove some of the jurisdictional issues between IBAC, the Auditor-General and the Ombudsman, and lower the threshold required before IBAC can investigate corruption.
  • Labor has promised to reform the estimates hearings process. The changes include a committee made up of an equal number of government and non-government members, a day of hearings per department with questions to relevant departmental officials and preventing government members asking ministers Dorothy Dixer questions.

Greens

  • The Greens support the establishment of an independent statutory body to oversee and monitor the handling of allegations of child abuse by relevant government organisations.
  • The Greens support a review of the Victims of Crime Assistance Tribunal to ensure that all appropriate avenues for compensation are available to victims of criminal child abuse and can meet the particular needs of victims.
  • The Greens are calling for amendments to the FoI legislation and system, and amendments to the IBAC legislation so that it can properly investigate complaints of corruption by public officials and misconduct in public office. The Greens have also moved in Parliament for the establishment of a fully independent and wellresourced body to investigate deaths and serious injury as a result of police contact, and an independent statutory body to oversee prisons.
  • The Greens support the introduction of Justice Impact Assessments that assess the impact of new regulatory proposals on the overall justice system.

LIV calls for:
8. Improving privacy protection

  • Reform of the Surveillance Devices Act 1999 (Vic) to provide more comprehensive regulation of surveillance practices and an independent body to oversee and monitor the implementation of those laws;
  • A statutory cause of action for invasions of privacy; and
  • Further information about the government's work to improve privacy protections in Victoria.

Coalition

  • The government is committed to strengthening data security and the privacy and protection of personal information within the Victorian public sector, while also providing more open access to publicly held data and information wherever possible. Legislation to establish a new Privacy and Data Protection Commissioner is being prepared.

ALP

  • It is imperative that people who engage with the Victorian public sector can be confident that government departments are diligent in exercising their data security obligations. Personal information in government possession must be kept safe and there must be effective oversight of this responsibility.
  • The Parliament is currently considering the Privacy and Data Protection Bill 2014. Labor will not be opposing this legislation which combines the Privacy Commissioner with the Commissioner for Law Enforcement Data Security.

Greens

  • The Greens support reforms to address gaps in privacy protection and potential discrimination and the establishment of an independent body to oversee and monitor the implementation of those laws.
  • The Greens support a statutory cause of action for invasions of privacy.
  • The Greens have raised privacy concerns in relation to a number of government Bills.

LIV calls for:
9. Court fees - Limiting increases

  • Fair and appropriate regulation of the level of fees charged in the Magistrates', County and Supreme Courts and the Victorian Civil and Administrative Tribunal (VCAT).

Coalition

  • The fee changes of recent years have sought to achieve a better balance between taxpayer and user funding. Most fees payable by litigants will remain below the full cost of proceedings and will be predominantly funded by the taxpayer. Fee waiver provisions apply across the jurisdictions in cases of genuine hardship.

ALP

  • Labor will always seek to minimise the cost burden on Victorians seeking to pursue or defend their rights, particularly in tribunals such as VCAT. It will also continue to promote alternative dispute resolution as a way of minimising strain on the justice system and of keeping costs down. Its review of access to justice will be extensive and will be another way to examine initiatives to keep costs down.

Greens

  • The Greens are committed to fair and appropriate court and tribunal fees and have opposed recent court fee increases, particularly at VCAT which is meant to be accessible and a low or no cost tribunal.

LIV calls for:
10. Improving SRO reporting framework

  • Greater transparency and information on the ruling system which exists within the State Revenue Office (SRO), similar to that which exists at a federal level, so that lawyers can be fully informed about the ruling process and access this process efficiently and effectively; and
  • Greater information on the oversight and accountability of the SRO to ensure that parliamentary reporting processes, similar to those which exist at a federal level, are in place.

Coalition

Ruling system transparency

  • The SRO has issued a Revenue Ruling providing general information on private rulings.
  • The ruling is available on the SRO website. The SRO also has a free telephone information and email service.
  • The SRO Customer Charter states that the SRO will finalise 80 per cent of private rulings within 90 days.

Oversight and accountability

  • The SRO is subject to:
    • Quarterly reports to the DTF Secretary on the SRO's performance and progress;
    • Full financial reports being tabled in Parliament;
    • The publication of Annual Review;
    • Accountability of the Treasurer to Parliament.
    • A formally constituted audit committee.
    • Consultative committees with stakeholders including the State Taxes Consultative Committee of which the LIV is a member. The SRO also holds quarterly meetings directly with the LIV.

ALP

  • Labor intends to introduce changes to enhance accountability and scrutiny during a budget estimates process that will closely replicate the Senate Estimates hearing process.
  • Detailed questioning about the SRO will be possible during the Department of Treasury and Finance hearing day in Estimates.
  • Labor has not formed a detailed policy on reform of the SRO, however the proposals of the LIV appear worthy of further exploration and would be given further examination by government.

Greens

  • Greater consistency between the state and federal levels is needed with the state replicating the higher threshold of transparency and information on the ruling system that already exists at the federal level.
  • The Greens support greater information on the oversight and accountability of the SRO as part of its commitment to increased transparency and accountability across the whole of government administration.

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