Call to Parties STATE ELECTION 2014 KEY ISSUES
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Call to Parties STATE ELECTION 2014 KE Y ISSUES
The LIV calls on all parties
to commit to . . .
Funding Legal Aid 3 Access to Justice
Improving Access to Justice in Rural,
Regional & Remote (RRR) Areas 3 Access to Justice
Reviewing The Charter Of Human
Rights & Responsibilities 4 Access to Justice Protecting Rights
Criminal Justice Reform 4 Protecting Rights
Reforming Tort Law 5 Protecting Rights
Religious Exemptions Under The
Equal Opportunity Act 2010 (Vic) 5 Protecting Rights Transparency and
Accountability
Advancing Transparency, Accountability
& Best Practice 6 Transparency and
Accountability Best Practice
Improving Privacy Protection 6 Transparency and
Accountability
Court Fees – Limiting Increases 7 Court Fees and
Resources
Improving (State Revenue Office)
SRO Reporting Framework 7 Commercial Law Best Practice
VICTORIAN STATE ELECTION 2014
The LIV is the peak body for the Victorian legal profession and represents over 17,000
members’ views and interests to industry and government, an advocates justice for all.
The LIV, through its Practice Section Committees, actively seeks to influence policy by
making submission to government, the courts, parliamentary committees and other bodies.
2 CALL TO PARTIES KEY STATE ELECTION ISSUES For all LIV submissions go to www.liv.asn.auAccess to Justice Access to Justice
Funding Legal Aid Improving Access
to Justice in Rural,
THE LIV IS CALLING FOR:
• Access to justice for everyone in the community,
Regional and Remote
particularly the most disadvantaged;
• A review of the legal assistance sector and how the
(RRR) Areas
delivery of services is conducted;
• The legal profession to be involved in future reviews of
national partnership agreements; THE LIV IS CALLING FOR:
• An analysis of how to set the minimum level of funding and • Increased opportunities and better financial incentives for
on what mechanism funding is required; clinical placements for law students and graduates;
• The state government to make an immediate one-off • A scholarship scheme for law students;
$10 million injection of legal aid funding and then provide • Cash incentive payments upon completion of a specific
appropriate ongoing recurrent funding regardless of any time period in RRR areas;
increase in Commonwealth funds; and • Appropriate resources and court facilities in RRR areas;
• Introduction of a Victorian framework for Justice Impact • Specialised Magistrates’ Court services in RRR areas
Assessments to be undertaken for regulatory proposals, (i.e. Drug Court and Koori Court);
similar to the current UK model which may be administered
• Delays in RRR County Court Circuits to be addressed; and
by an independent body.
• The allocation of some government legal work to RRR firms.
BACKGROUND TO THE ISSUE
BACKGROUND TO THE ISSUE
Chronic underfunding over the past 12 years means that it has become
increasingly difficult to qualify for legal aid. Many Victorians are unable to get The July 2009 LCA–LIV Report into the Rural, Regional and Remote Areas
legal advice or afford representation by a lawyer in court. Lawyers Survey revealed that there are significant access to justice issues in RRR
areas of Australia (including Victoria), with one key issue being recruitment and
In the same period, legal aid fees for private lawyers have fallen well below what
retention of lawyers in these areas.
should be fair payment for the work that is done, and many lawyers report that
they can no longer afford to take on legally aided criminal and family law matters.
WHAT THE LIV HAS DONE TO DATE
In 2013 Victoria Legal Aid (VLA) introduced changes to its eligibility guidelines to
ensure its services remain financially sustainable in the face of record demand • Contributed to the LCA Recruitment and Retention of Lawyers Working Group
for legal assistance from the community. and liaises with country law associations;
• Identified a range of possible actions by government, the legal profession and
WHAT THE LIV HAS DONE TO DATE legal firms to recruit and retain new and experienced lawyers in RRR areas;
• Developed and implemented a succession planning education “roadshow” for
The LIV has campaigned for the past two years for an increase in legal aid lawyers and developed resources to assist legal firms;
funding at both a state and federal level, including:
• Has entered into an arrangement with Regional Development Victoria (RDV)
• Commissioning a report from PricewaterhouseCoopers, with the Law Council for RRR Cadetships. Feedback received from lawyers indicates that financial
of Australia (LCA) and the Victorian Bar, to analyse the extent of the legal aid incentives for RRR firms should be greater; and
shortfall; • Is awaiting the outcome of the Attorney General’s internal review on how
• Launching the “Legal Aid Matters” campaign, which included significant media government allocates legal work to firms.
coverage, rallies held at the County Court, a dedicated “Legal Aid Matters”
website and online petition;
• Seeking leave to intervene in two criminal trials on the basis that it involved a
matter of public interest affecting the administration of justice in the state of
Victoria;
• Participating in consultations with VLA on establishing guidelines for quality
criminal trials; and
• Encouraging the legal profession to continue its lobbying for increased funding for
VLA through budget submissions to the government.
For all LIV submissions go to www.liv.asn.au KEY STATE ELECTION ISSUES CALL TO PARTIES 3Access to Justice Protecting Rights Protecting Rights
Reviewing the Charter Criminal Justice Reform
of Human Rights &
Responsibilities THE LIV IS CALLING FOR:
• A justice reinvestment approach to reducing crime by
(the Charter) 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
THE LIV IS CALLING FOR: system in order to rehabilitate offenders rather than further
• Retention of the Charter; stigmatising them;
• Release of legal advice obtained by the government • Specialised Magistrates’ Court services in RRR areas (i.e.
following the 2011 Parliamentary Scrutiny of Acts and Drug Court and Koori Court);
Regulations Committee (SARC) review of the Charter, • The protection of judicial discretion and the abolition of
in relation to the role of courts and tribunals under the mandatory sentences;
Charter; and • The retention of suspended sentences;
• An independent panel to be appointed to conduct the • Improvement in the state’s corrections system to address
review of the Charter of Human Rights and Responsibilities prisoner over-crowding;
that is required to occur in 2015, with a broad mandate
• A stop to the transfer to and placement of youths in adult
and sufficient resources.
prisons; and
• Introduction of a Victorian framework for Justice Impact
Assessments to be undertaken for regulatory proposals,
BACKGROUND TO THE ISSUE
similar to the current UK model which may be administered
The LIV was a strong advocate for the establishment of the Charter in 2007. by an independent body.
The Charter came into full operation on 1 January 2008. Built into the Charter
was a requirement for a review of its operation after four years. This review was
undertaken in mid-2011 by SARC and the report was tabled on 14 September
2011. The LIV expressed concern about many of the recommendations for BACKGROUND TO THE ISSUES
modifications to the Charter, including several key recommendations that would The criminal justice system hinges on a few important principles:
significantly reduce its scope. The government tabled its response to the report • The presumption of innocence;
on 14 March 2012.
• The burden of proving the guilt of a defendant falls on the prosecution;
In its response to the SARC report, the government sought specific legal advice • The double jeopardy rule where no person should be punished more than once
regarding the wording and operation of the Charter in relation to the role of the for the same offence;
courts and tribunals (as indicated at clauses 2.93-2.101 of the government’s • The right to silence; and
response).
• Punishment must be commensurate with the crime.
Under Section 45 of the Charter, the Attorney-General must undertake a review of Justice reinvestment initiatives involve identifying factors that lead to criminal
the fifth to eighth years of operation of the Charter on or before 1 October 2015. activity and establishing programs which aim to reduce such activity by altering
behaviour and other key factors.
WHAT THE LIV HAS DONE TO DATE
• Prepared a Charter Impact Report which researched the impact of the Charter WHAT THE LIV HAS DONE TO DATE
on legal practice, released on 29 August 2011; Made submissions to government, members of parliament, the Department of
• Made a 48-page submission to the 2011 Charter review on 30 June 2011; Justice and the Sentencing Advisory Council:
• Met with representatives from the Attorney-General’s office and Crown Counsel • Opposing continued indefinite detention for high risk offenders;
in September 2012 to informally discuss issues arising from the Government’s • Seeking improved resourcing in the parole system;
response to the SARC review; and • Supporting the abolition of mandatory minimum sentences;
• With Ashurst’s assistance, audited the Victorian decisions of courts and tribunals • Supporting the retention of suspended sentences, arguing that judges or
in which Charter of Human Rights and Responsibilities Act issues have been magistrates are best placed to impose an appropriate, fair and just sentence
raised. The Charter Case Audit spans decisions made between 26 September after hearing all the facts of the case;
2006 and 31 December 2012.
• Raising concerns about custody overcrowding issues; and
• Raising concerns about youth transfers to adult prisons.
4 CALL TO PARTIES KEY STATE ELECTION ISSUES For all LIV submissions go to www.liv.asn.auTransparency and
Protecting Rights Protecting Rights Accountability
Reforming Tort Law Religious exemptions
under the Equal
THE LIV IS CALLING FOR:
Amendment of the Wrongs Act 1958 (Vic) so that:
Opportunity Act 2010 (Vic)
• 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 THE LIV IS CALLING FOR:
American Medical Association Guides to the Evaluation of • A more considered approach to anti-discrimination and
Permanent Impairment (4th edition); equality in Victoria through the modification of the religious
• If the threshold for injuries, other than psychiatric, is exemptions under the Equal Opportunity Act 2010 (Vic)
lowered to 5 per cent WPI, the effect of the decision in (EO Act).
Mountain Pine Furniture v Taylor [2007] VSCA 146 is
overturned;
• The impairment threshold for a primary psychiatric injury is BACKGROUND TO THE ISSUE
10 per cent WPI; and The EO Act prohibits unlawful discrimination on the basis of protected attributes.
• In addition to prescribed injuries under Section 28LF of However, the EO Act also contains various exemptions. The religious exemptions
the Wrongs Act, a narrative test of “significant injury” is contained in sections 82, 83 and 84 provide that religious bodies and religious
included as an alternative means of assessing common schools can discriminate on the basis of a person’s religious belief or activity,
law damages for pain and suffering. sex, sexual orientation, lawful sexual activity, marital status, parental status or
gender identity, where the discrimination conforms to the doctrines, beliefs or
principles of the religion or is reasonably necessary to avoid injury to the religious
sensitivities of people who follow the religion.
BACKGROUND TO THE ISSUE In the LIV’s view the balancing of freedom of religion with other important human
Unlike the WorkCover and TAC schemes, there is no narrative test in the Wrongs rights, such as the right to equality and to be free from discrimination, requires
Act 1958 (Vic) to allow for common law rights for pain and suffering damages. thoughtful consideration by our law-makers.
Nor is there a no-fault scheme to act as a safety net for injured persons claiming
If religious exemptions are to exist, the LIV submits that the religious exemptions
under the Wrongs Act.
should apply so that religious bodies and schools may only discriminate in
the provision of goods and services and in engaging employees and contract
WHAT THE LIV HAS DONE TO DATE workers where such supply or engagement has a role in worship, observance,
practice or teaching, and insofar as such discrimination is reasonably necessary
• Made confidential written submissions to the Victorian Department of Justice;
to avoid conflict with the tenets of that religion. Additionally, the LIV considers
• Welcomed the Victorian Competition and Efficiency Commission (VCEC) Inquiry
that openness and transparency should be a pre-condition to the granting of an
into Aspects of the Wrongs Act 1958;
exemption. This may require, for instance, that a religious organisation or body
• Consulted with the VCEC in relation to the Inquiry and made submissions to having to publicly state on its website or otherwise that it intends to discriminate
the VCEC; on the basis of a specified attribute in relation to specific religious teachings.
• Responded to the VCEC’s draft report which was released in November 2013;
and
WHAT THE LIV HAS DONE TO DATE
• Proposes to continue to consult with the VCEC (if required) and government
about these issues. • Having a long-standing interest in issues of equal opportunity, human rights
and anti-discrimination, the LIV has participated in the consultation process
with the Victorian community over equal opportunity reform, and made
submissions to all stages of the review of the Equal Opportunity Act 1995 (Vic)
and review of the exceptions and exemptions in that Act.
For all LIV submissions go to www.liv.asn.au KEY STATE ELECTION ISSUES CALL TO PARTIES 5Transparency and Best Practice Transparency and Accountability
Accountability
Advancing Transparency Improving Privacy
& Accountability Protections
THE LIV IS CALLING FOR: THE LIV IS CALLING FOR:
• Implementation of key recommendations in the Betrayal of • Reform of the Surveillance Devices Act 1999 (Vic) to
Trust report including: provide more comprehensive regulation of surveillance
• For the authorisation of an independent statutory body to practices and an independent body to oversee and monitor
oversee and monitor the handling of allegations of child the implementation of those laws;
abuse by relevant government departments, religious • A statutory cause of action for invasions of privacy; and
and non-government organisations, and to investigate • Further information about the government’s work to
complaint handling systems and processes; and improve privacy protections in Victoria.
• Review of the Victims of Crime Assistance Tribunal to
determine its capacity to administer a specific scheme
for victims of criminal child abuse; BACKGROUND TO THE ISSUE
• Introduction of a Victorian framework for Justice Impact The LIV considers that the right to privacy is a significant right. Rapid advances in
Assessments to be undertaken for regulatory proposals, information, communication, storage, surveillance and other relevant technologies
similar to the current UK model which may be administered have significant implications for individual privacy. There are gaps in privacy
by an independent body; and protection and potential discrimination related to the lack of comprehensive
• Ongoing commitment to open, honest and accountable regulation and independent review of surveillance practices and the use of material
generated by surveillance. Persons have a right not to have their privacy unlawfully
government and the strengthening of Victoria’s public
or arbitrarily interfered with (see for example, Article 17, International Covenant on
governance frameworks.
Civil and Political Rights).
A number of reviews of the status of privacy laws have been undertaken at a state
level, notably the Victorian Law Reform Commission (VLRC) Inquiry into Surveillance
BACKGROUND TO THE ISSUE in Public Places, the Auditor-General’s report on Maintaining the Integrity and
The LIV monitors the exercise of government power and champions initiatives Confidentiality of Personal Information, the Victorian Parliament Law Reform
that advance transparency, access and accountability. The LIV has consistently Committee Inquiry into Arrangements for Security and Security Information Gathering
lobbied government emphasising the importance of maintaining public for State Government Construction Projects and the Review of Victoria Police Major
confidence in the integrity of the public sector in a range of areas including: Project Development Memorandum of Understanding by the Commissioner for Law
• Participating in the Victorian Parliament Family and Community Development Enforcement Data Security. At a federal level, the Australian Law Reform Commission
Committee (VPFCDC) review into the processes by which religious and other (ALRC) has conducted Inquiries into Privacy Law and Practice and Serious Invasions
non-government organisations respond to the criminal abuse of children by of Privacy in the Digital Era and the Commonwealth government released an issues
personnel within their organisations, with a focus on state responsibility to paper, A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy.
investigate and prosecute crime. The Committee’s final report, Betrayal of
Trust, was tabled on 13 November 2013;
• Expressing concerns about the capacity of the Independent Broad Based Anti- WHAT THE LIV HAS DONE TO DATE
Corruption Commission (IBAC) to efficiently handle complaints against corrupt • Monitored government reforms affecting the right to privacy, and contributed
public officials; and at every stage of the VLRC, Auditor-General, Victorian Parliament Law Reform
• Establishing a Police Misconduct Working Group to consider issues such as Committee, Commissioner for Law Enforcement and Data Security, ALRC and
barriers to independent investigation of allegations of police misconduct and Commonwealth Government Inquiries by making submissions. In 2013 the LIV
limitations to holding the state vicariously liable for the actions of police officers.
met with Commissioner Barbara MacDonald to discuss the LIV’s policy position
on issues relevant to the ALRC Inquiry into Serious Invasions of Privacy in the
WHAT THE LIV HAS DONE TO DATE Digital Era;
• Monitored legislation and made submissions to government including • Proactively raised with individual ministers privacy issues in relation to specific
submissions relating to the development of the Independent Broad-Based policies;
Anti-Corruption Commission (IBAC), the Protecting Victoria’s Vulnerable Children • Developed a policy on privacy issues in November 2011; and
Inquiry and the Victorian Parliamentary Family and Community Development
Committee (VPFCDC) inquiry; and • Established a Social Media Taskforce in December 2012.
• Given evidence to the VPFCDC Inquiry and made a supplementary submission
elaborating on matters addressed in the LIV’s original submission and responding
to questions taken on notice at the hearing.
6 CALL TO PARTIES KEY STATE ELECTION ISSUES For all LIV submissions go to www.liv.asn.auCourt Fees and Resources Commercial Law Best Practice
Court Fees – Limiting Improving State Revenue
Increases Office (SRO) Reporting
Framework
THE LIV IS CALLING FOR:
• Fair and appropriate regulation of the level of fees charged
in the Magistrates’, County and Supreme Courts and the THE LIV IS CALLING FOR:
Victorian Civil and Administrative Tribunal (VCAT). • 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
BACKGROUND TO THE ISSUE be fully informed about the ruling process and access this
Over a number of years there have been increases in court and tribunal fees process efficiently and effectively; and
at both state and federal levels. The LIV is concerned that charging people on • Greater information on the oversight and accountability of
a “user pays” basis for the administration of justice is problematic and may the SRO to ensure that parliamentary reporting processes,
potentially create a serious impediment to access to justice where those with similar to those which exist at a federal level, are in place.
insufficient funds are prevented from initiating applications or proceedings, or
having their matters heard.
WHAT THE LIV HAS DONE TO DATE BACKGROUND TO THE ISSUE
• Made various submissions opposing the significant increases in fees for the At a federal level, there is detailed information available on the Australian Taxation
Magistrates’, County and Supreme Courts and VCAT; Office (ATO) website that sets out the process for seeking a private ruling on a matter
• Contributed to a submission by the LCA on the Productivity Commission’s including where to find the application form, what supporting documents can be
Inquiry into Access to Justice Arrangements; submitted with an application and the estimated timeframe for receiving a response
to an application.
• Made a submission regarding a Regulatory Impact Statement for proposed
Victorian Civil and Administrative Tribunal (Fees) Regulations 2013; and In addition to the uncertainty surrounding SRO rulings at a state level, the LIV
• Made a submission regarding a Regulatory Impact Statement for proposed is concerned about a lack of oversight and accountability at the SRO which
Magistrates’ Court (Fees) Regulations 2012 and Juries (Fees) Regulations 2012. does not appear to exist to the same extent at a federal level. In this sense, the
ATO provides detailed information on its website about the ATO’s requirement
to report to government generally, and in particular, to the Joint Committee of
Public Accountants and Audit, to ensure it is held accountable for its use of public
money. At a state level however, the SRO only provides general information about
its consultation with government regarding the framework for the tax system and
policy objectives, but does not appear to publish on its website any information
about any requirement to report on its performance at a parliamentary level. The
LIV considers that this lack of oversight and accountability at a state level leads to
ineffective processes being put in place, such as the recently introduced Duties
Online system, about which the LIV has raised concerns directly with the SRO.
WHAT THE LIV HAS DONE TO DATE
• Made a submission to the Commissioner of the SRO setting out the LIV’s
concerns about the Duties Online system; and
• Held quarterly meetings with representatives from the SRO in which concerns
such as those relating to the Duties Online system and the reporting of SRO
appeal statistics have been raised.
For all LIV submissions go to www.liv.asn.au KEY STATE ELECTION ISSUES CALL TO PARTIES 7GLOSSARY TERMS
ALRC Australian Law Reform Commission
EO Act Equal Opportunity Act 2010 (Vic)
IBAC Independent Broad Based Anti-Corruption Commission
LCA Law Council of Australia
LIV Law Institute of Victoria
RDV Regional Development Victoria
RRR Rural Regional and Remote
SARC Scrutiny of Acts and Regulations Committee
SRO State Revenue Office
TAC Transport Accident Commission
The Charter The Charter of Human Rights and Responsibilities
VCAT Victorian Civil and Administrative Tribunal
VCEC Victorian Competition and Efficiency Commission
VLA Victorian Legal Aid
VLRC Victorian Law Reform Commission
VPFCDC Victorian Parliamentary Family and Community Development
Committee
WPI Whole Person Impairment
Law Institute of Victoria
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Authorised and published by the Law Institute of Victoria, February 2014 ©2014 The Law Institute of Victoria Ltd. ABN 32 075 475 731
The Law Institute of Victoria (LIV) has used its best endeavours to ensure that material contained in this publication was correct at the time
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