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Call to parties: State election 2018 key issues

Call to parties: State election 2018 key issues

By Law Institute Journal

Access to Justice Advocacy Human Rights Justice Wellbeing 

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The LIV calls on all parties to commit to...

Access to Justice

The LIV is calling for:

  • A commitment to pursue an agreement through COAG to invest, at a minimum, $390 million per annum nationwide in Legal Aid Commissions, community legal centres (CLC), Aboriginal and Torres Strait Islander legal services, and family violence legal services to address critical civil and criminal legal assistance service gaps.
  • A whole-of-government approach to access to justice reform and embedding access to justice within multi-disciplinary policy and funding frameworks. This includes a commitment to consider justice reinvestment by redirecting funding that would otherwise be spent on prisons into community designed initiatives and services that examine the underlying causes of crime and identify appropriate local evidence based solutions.
  • Increased funding for CLCs to provide integrated legal services for survivors of family violence, including health justice partnerships, co-located financial counselling services and homelessness prevention partnerships.
  • A commitment to legislating Justice Impact Tests across all government departments to make it mandatory for government to consider the impact of new legislative or regulatory change on Victoria’s justice system.
  • A commitment to retaining committal hearings as an essential feature of a fair criminal justice system.

Background to the issue

In the next 12 months, nearly half of all Victorians will experience a legal problem, and 30 per cent will experience more than one. People experiencing disadvantage, and those who are overrepresented in the justice system (such as Aboriginal and Torres Strait Islander people) are more likely to need legal assistance but may be least able to access it. The Law Council of Australia estimates an extra $390 million per annum is required across the country.

Justice Impact Tests in place in the UK ensure every government policy process must factor in how any new policy would impact on the justice system.

What the LIV has done to date

  • Continued to call for greater financial commitment to Victoria’s justice system, including petitioning the Attorney-General to adequately resource the valuable legal assistance programs offered by the community legal sector.
  • Made a submission to the Department of Justice and Regulation’s 2016 Access to Justice Review advocating for a significant increase in funding for, and a diversification of, legal assistance services.
  • The LIV works with stakeholders to facilitate those firms giving pro bono advice to Victorians, in addition to offering a referral service that allows people to access legal advice in a timely and affordable manner.

Court Resourcing and Services

The LIV is calling for:

  • Increased funding for courts to relieve current pressures through appointments of additional court staff including a commitment to appropriately resourcing bail and remand courts to reduce waiting times and relieve overcrowding in prisons and police holding cells.
  • Greater investment in the Court Integrated Services Program (CISP) and Remand Outreach program for increased monitoring, treatment and supervision of people on bail and remand.
  • Expansion of the reach and range of specialised court division services, including the Children’s Court, Family Drug Treatment Court, Drug Court, Assessment and Referral Court, Koori Court and Family Violence Court Division, particularly in regional Victoria.
  • Increased training for specialised magistrates, registrars, support workers, police prosecutors, outreach workers and lawyers, and for magistrates exercising specialist court division jurisdiction in regional areas.
  • The retention of de novo appeals against conviction and sentence from Magistrates Courts to County Courts, which play an essential role in ensuring the summary justice system is accessible, efficient and consistent.

Background to the issue

Continued under-resourcing of courts has resulted in delays and backlog, placing unsustainable strain on the workloads of judges, magistrates, courts staff and lawyers, and contributed to overcrowding of prisons and police holding cells.

Delays in the ability of courts to hear cases in a timely way can delay access to justice for some of Victoria’s most vulnerable.

Without the availability of specialised services, there is a greater possibility of recidivism and less opportunity for effective rehabilitation.

What the LIV has done to date

  • Advocated for increased funding for bail support and other court-based support services to allow these services to become more widely available, as well as for the sufficient funding of the CISP to allow it to expand into the County Court, through the LIV’s substantial submission to the Bail Review.
  • Called for the establishment of, and continued to assist Court Services Victoria and Corrections Victoria with, prison audio video link hubs. The hubs reduce overcrowding at courts and allow lawyers to communicate with their clients before and after a court hearing, improving the efficiency of the court appearance system.
  • Continued to meet with heads of jurisdiction and court services to collaborate on ways to improve efficiencies in the court system.

Metro and Regional Legal Infrastructure

The LIV is calling for:

  • Improved court infrastructure in regional Victoria, including improved accessibility and diversity support, safety features, video and teleconferencing facilities between an accused person and their lawyer before and after video appearances, client meeting rooms and multi-use courtrooms.
  • More resources for magistrates working in rural, regional and remote (RRR) areas, including access to training required to exercise specialised court jurisdictions (such as the Children’s Court) in RRR areas.
  • Expanding legal assistance programs and specialised court services in RRR areas, such as Drug and Koori Courts.
  • Consultation with the legal profession on planning future frameworks for legal infrastructure services and resourcing in metropolitan and RRR Victoria, including the establishment of a blueprint for justice infrastructure across Victoria to accommodate the state’s growing population.
  • A commitment to providing adequate resources to ensure County and Supreme Court hearings continue in RRR areas, together with all specialist court services being made available in all Magistrates’ Courts across the state to avoid “postcode injustice”.

Background to the issue

Under-resourcing of courts has resulted in delays and backlog, placed strain on judges, magistrates, court staff and lawyers and contributed to prison overcrowding. Ageing court infrastructure has resulted in the County Court no longer being able to sit in Sale, East Gippsland. Geographic, linguistic and financial barriers often prevent Victorians in RRR areas from accessing adequate legal services. Specialised court services require increased funding to address disproportionate legal need in these communities. The current video link court appearance system for prisoners is inadequate. Prison video-link hubs would allow multiple prisoners to engage with lawyers, improving efficiency and access to justice.

What the LIV has done to date

  • Lobbied for the creation of dedicated Bail and Remand Courts, which the Victorian government then committed to in its 2018/19 Budget.
  • Contributed feedback to the Department of Justice and Regulation on design principles to facilitate the delivery of high quality, effective and safe legal professional services for the new Cherry Creek Youth Justice Detention facility.
  • Advocated for additional funding to support an increase in court staff.

Health and Wellbeing of the Judiciary and Legal Profession

The LIV is calling for:

  • Investment in court and justice assistance systems to reduce the unsustainable workload placed on members of the judiciary, court staff and legal professionals.
  • Accompanying reform with an impact assessment that properly assesses the ability of courts, court support services and the legal profession to successfully implement the reform, taking into account the risks to wellbeing and sustainable workloads.
  • The development of best practice guidelines on how to manage mental health in the workplace and increased government funding for support services and wellness initiatives for those working in the justice system.
  • Integrated, meaningful wellness and monitoring programs, together with counselling services, to support magistrates, judges, lawyers, court staff, and support services staff to effectively debrief and regularly access professional support to mitigate the stress and exposure to trauma inherent in their roles.

Background to the issue

Lawyers are more likely than other professional groups to suffer anxiety and depression, with a third of solicitors and a fifth of barristers affected. The critical and often high-profile work of magistrates and judges, particularly in an under resourced court system, places them at significant risk. Investing in wellbeing for legal professionals and relieving unsustainable workloads is critical.

Insufficient funding of key legal services and assistance programs has resulted in strain on legal professionals. The health and wellbeing of legal professionals working in community legal centres and legal aid services is impacted by under-funding and under-resourcing across the sector.

What the LIV has done to date

  • Held the Meeting of the Profession event in May 2018, which provided solicitors of the Office of Public Prosecution, Victoria Legal Aid, Police Prosecutors, and private practitioners with the opportunity to share experiences and provide feedback about aspects of the criminal justice system which are or are not working well, which will be used to inform future advocacy.
  • Established, and continues to contribute to the Wellbeing and the Law Foundation, a foundation that promotes and supports the legal community, both employees and employers, with workplace wellness aspirations.
  • Partnered with Converge International to provide LIV members with an Employee Assistance Program to help deal with challenges affecting members at work or at home.

Property and Environmental Law Changes

The LIV is calling for:

  • The postponement of mandatory electronic conveyancing in Victoria (scheduled for 1 October 2018) until security and operational problems with PEXA are rectified and there is at least one competitor to PEXA.
  • The government to require PEXA to immediately rectify its security and operational deficiencies.
  • Public consultation with relevant bodies, including the Victorian Legal Services Board and Commissioner, the Legal Practitioners’ Liability Committee, the Australian Institute of Conveyancers, and the Real Estate Institute of Victoria, to resolve identified security and inter-operational problems with the current electronic conveyancing system. Greater consumer protection measures are needed as certain PEXA dealings are not covered by the Fidelity Fund.
  • The government to ensure that the proposed partial privatisation of the Victorian Land Titles Registry does not compromise the integrity, security, accuracy and privacy of sensitive data or allow it to be exploited.
  • Continued legal and policy leadership to cut greenhouse emissions, increase renewable energy targets and strengthen building and planning laws to reduce impacts of climate change on Victoria’s natural and built environment.

Background to the issue

PEXA is currently the only electronic lodgement network available. Recent incidents involving the fraudulent redirection of settlement funds effected through the PEXA platform have resulted in consumers losing funds from their conveyance.

As part of its 2017-2018 budget, the government announced its plan to privatise the Victorian land titles registry, and will be outsourcing some of its land titles and registry functions as part of a 40 year lease.

What the LIV has done to date

  • Expressed concern about the monopolisation of the electronic conveyancing market, and written to the Legal Services Council about the lack of consumer protection for clients transferring settlement funds and seeking amendments to consumer protection frameworks to include electronic conveyancing.
  • Written to the Victorian Premier and relevant ministers and shadow ministers voicing strong concerns about privatising the Victorian land titles registry, met with government, external stakeholders and LIV members, and expressed the LIV’s strong opposition to privatisation at a Parliament of Victoria Environment and Planning Committee meeting.
  • Published resources, including a guidebook, fact sheets and articles to help practitioners to prepare for electronic conveyancing and to understand and manage the cyber security risks to themselves and their clients.

Judicial Independence and Discretion

 

The LIV is calling for:

  • A repeal of mandatory sentencing legislation that removes the discretion of Victoria’s judiciary.
  • Government to respect the critical importance of judicial independence, the separation of powers and the rule of law by facilitating the freedom of judges and magistrates to impose sentences which recognise the individual circumstances of each case, and allow for rehabilitative and restorative sentences to be imposed in appropriate cases where such sentences offer the greatest benefit to the community.
  • Government to respect the expertise, experience and skill of Victoria’s judges and magistrates in appropriately considering and weighing all factors in determining the appropriate sentence in the circumstances of each particular case.
  • An end to political attacks and public criticism by government and opposition, including politicians, public servants and police which undermines the authority of the justice system.

Background to the issue

The government is introducing mandatory sentences for people who injure emergency workers, which will soon be a category 1 offence: the same category as murder and rape.

Mandatory sentences disproportionately affect young offenders and members of vulnerable communities. Because their circumstances cannot be taken into account by judges, they are not treated equally before the law.

Mandatory sentencing is proven to be an ineffective deterrent to crime. Justice reinvestment initiatives have a higher success rate in reducing recidivism and community safety. Victoria’s magistrates and judges must have discretion when it comes to sentencing and have the flexibility to deal with every case on an individual basis, not be forced to hand down mandatory sentences.

What the LIV has done to date

  • Continuously and publicly opposed mandatory sentencing, and advocated for justice reinvestment as an alternative, through traditional media and social media.
  • Written to and met with the Attorney-General to express serious concerns about mandatory sentencing, and stressed the importance of allowing the judiciary to impose appropriate sentences depending on the individual circumstances of each case.
  • Written to and met with members of parliament to outline concerns over the introduction of mandatory sentences for emergency worker assaults.

Accountable Policing

The LIV is calling for:

  • A new, independent body to investigate complaints of police misconduct, that is effective, transparent and complainant-centric.
  • Alternatively, additional funding for IBAC to increase its capacity to independently investigate police misconduct.
  • Changes to Freedom of Information legislation to ensure that police misconduct investigation documents can be accessed.
  • A legislative basis for formal cautioning by police to remove their discretion, and ensure that police cannot use these powers in a discriminatory way.
  • Increased privacy protections for the use of DNA information and maintaining court oversight of applications to take DNA samples from young people.

Background to the issue

Community confidence in our police force depends on the public feeling assured that police powers are appropriate, and kept in check by an independent and transparent complaints handling process. Concerns have been raised through the parliamentary inquiry into the external oversight of police corruption and misconduct about the effectiveness and independence of IBAC, particularly its routine referral of police complaints back to Victoria Police for self-investigation. IBAC, or a new independent investigatory body, will need to be adequately funded if they are expected to properly investigate complaints against police.

Victoria Police currently has the lowest rate of diversion among all Australian states and territories, particularly in relation to the issuing of cautions, which the organisation has acknowledged to be a result of a general lack of knowledge within the operational environment regarding the long-term benefits of effective diversion processes.

The state government proposes to remove the current requirement for police to seek a court order to obtain a DNA sample from young people aged 15-17 years suspected of violent offences.

What the LIV has done to date

  • Called on the Victorian government to work collaboratively with the LIV to ensure that Victoria’s policies on police accountability reflect a commitment to fairness, equality and the rule of law.
  • Made a significant submission to the parliamentary inquiry into IBAC and given evidence at the inquiry’s public hearing.
  • Met with the IBAC Commissioner to discuss the LIV’s concerns with the complaints process in Victoria, and participated in a police accountability roundtable exploring options for Victoria’s police accountability regime, with attendees from the Victorian parliament, IBAC and the Police Association.

Health Justice Partnerships

The LIV is calling for:

  • Increased resourcing of frontline legal services for survivors of family violence and elder abuse, to improve response times and provide urgent assistance and legal services for survivors.
  • Funding for VCAT’s Guardianship List to facilitating the expansion of VCAT’s jurisdiction over elder abuse matters to including family agreements and assets-for-care arrangements.
  • Ongoing funding for community legal centres to expand the invaluable services provided by both issues-based and generalist health justice partnerships.
  • Specialist services for prisoners with disabilities and mental health conditions, both during their sentence (including increased forensic mental health workers, and treatment facilities) and on release (including transitional support and assistance programs to improve access to health services).
  • Additional funding for legal representation for people experiencing mental illness to reduce the rate of contact with the justice system for issues such as discrimination, fines, debt, child protection, family law and criminal law.

Background to the issue

In Australia’s ageing population, the prevalence of elder abuse is a significant issue. Frontline services are unable to keep up with demand, placing victims at increased risk.

40 per cent of Victoria’s prison population has a mental health condition, with similar numbers showing evidence of an acquired brain injury. Specialist facilities and treatment beds are minimal, and are failing to meet the needs of prisoners with disabilities and mental health conditions.

Evidence shows people are more likely to talk about their legal problems with a trusted health professional than a lawyer. Health justice partnerships and integrated services facilitate the provision of accessible and free legal advice.

What the LIV has done to date

  • Supported the piloting of health justice partnerships in community legal centres.
  • Held a free community information session on recent changes to medical treatment planning and decision making as part of Law Week 2018, in conjunction with offering free education sessions for lawyers and health professionals in regional areas across Victoria.
  • Continued to advocate for improved health justice services for the community by active involvement at a national level, including providing input into recent inquiries on elder abuse, NDIS market readiness, and the quality of aged care in Australia.

Justice Reinvestment and Young People

The LIV is calling for:

  • Legislated justice reinvestment programs that are part of the Sentencing Act 1991, together with a strategic plan, that divert government spending from prisons and invest in rehabilitation to address underlying criminal justice issues, reduce offending rates, break the cycle of recidivism and increase community safety. There should be a focus on youth engagement programs.
  • Transitional support services for people leaving Victoria’s corrections system.
  • A commitment to legislate a regime for spent convictions in Victoria to prevent discrimination based on past offending.
  • Funding for community legal service providers and Victoria Legal Aid to resource a statewide expansion of lawyers in school programs, with a focus on rural and regional areas.
  • Strengthening cultural support plans for Aboriginal children in out of home care, through increased education services, increased collaborative decision making and engagement with Aboriginal communities, to safeguard the cultural rights of Indigenous children.
  • Dedicated education and resources for sporting authorities on new child safety and working with children laws.

Background to the issue

Victoria’s prison population exceeds 7300, and its imprisonment rate is at its highest in more than 100 years despite a consistent downward trend in crime rates. Recent analysis on investment returns in youth programs in remote central Australia have found that every dollar invested generated a return of between $3.48 and $4.56. Young people are over-represented in the justice system, and their recidivism rate is higher than that of the general population. Lawyers in Schools programs improve legal awareness and facilitate access to legal services for young people.

What the LIV has done to date

  • Continuously supported justice reinvestment schemes, being an active member of the Smart Justice initiative, and advocated against strengthening mandatory sentencing laws, which prevent judges and magistrates from considering diversionary or rehabilitative sentencing responses.
  • Developed a submission on the Child Information Sharing Scheme Ministerial Guidelines, focusing on the impact of the scheme on children and young people who have been involved in the youth justice and child protection systems and the need to reduce the risk of stigmatisation.
  • Drafted a set of core principles for the Department of Justice and Regulation to guide the design of the proposed new youth justice centre at Cherry Creek.

Human Rights Protections

The LIV is calling for:

  • A commitment to immediately implement the 52 recommendations of the 2015 Review of the Victorian Charter of Human Rights and Responsibilities.
  • A new principle in the preamble to the Charter that recognises the right to self-determination for the Aboriginal people of Victoria.
  • A new direct cause of action to enable a person to apply for a remedy, or rely on the Charter in any legal proceedings, for breach of human rights protections by a public authority to ensure that the Charter is enforceable and effective.
  • An optional alternative dispute resolution process for Charter disputes.
  • The government to legislate to prevent the detention of children in adult prisons in any circumstances.

Background to the issue

The Charter provides legal protection for the fundamental human rights shared by all Victorians, including freedom of speech, association and assembly, freedom of conscience, religion and belief, freedom from cruel, inhuman and degrading treatment, the right to be free from arbitrary detention, and the right to a fair trial.

A mandated four-year review of the Charter was undertaken, and the report tabled in Parliament in September 2015. The review made recommendations to improve the practicability of the Charter and to increase access for all Victorians.

In July 2016, the government committed to wholly or partially implement 45 of the 52 recommendations arising from the review. However, the government is yet to implement any recommendations from the review.

What the LIV has done to date

  • Made a lengthy submission to the Review of the Charter in 2015.
  • Continued to monitor the impact the Charter has had in Victoria by developing a Charter Case Audit Database which analyses decisions made using the Charter.
  • Continued to be cognisant of the guiding recommendations made by the Charter in its advocacy on human rights matters.

About the LIV

The LIV is the peak body for the Victorian legal profession, representing about 19,500 lawyers and people working in the legal sector in Victoria, interstate and overseas. Our members offer their commitment, diversity and expertise to help shape the laws of Victoria and to ensure a strong legal profession for the future. The LIV promotes the rule of law and justice for all.


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