The impact of VCAT fees on access to justice has been questioned, with statistics revealing a significant drop in the number of applications following fee increases. Last financial year, fees for consumer cases increased from $39 to $132, and the number of applications fell by 15%. Gerard Brody of the Consumer Law Action Centre said, “VCAT was created as an alternative to the mainstream court system [and] we are concerned that it remain a low-cost accessible tribunal, rather than becoming more court-like. If the claim is less than a couple of thousand dollars then you might think the fee, together with the time involved with having to go to VCAT, is not worth the effort.” The fee to lodge a planning dispute was increased from “$322 with no daily charges” to “$805, with daily fees of up to $1462″—and in the following year, the number of applications fell by 35%. VCAT said this was partly explained by changes to planning laws making it easier to amend planning permits without going to VCAT, but barrister Michelle Quigley QC warned, “it’s not just a one-off fee now—it’s a daily fee. Ordinary people just can’t afford it. It’s contrary to access to justice.”
Law Report focusses on unrepresentative juries
ABC Radio National’s Law Report this week focussed on the representativeness of juries. The first segment looked at the tactic of “black striking”, in which American lawyers try to remove African American jurors: “African Americans are three times more likely to be cut than white Americans”. Next, it turned to Alice Springs, and an NT Law Reform Committee report which acknowledged under-representation of Aboriginal people on juries was “clearly an affront to the principle ‘equality before the law’, a principle accepted as basic to this nation; the more so when translated into equally basic Australian such as ‘mateship’ and ‘fair go’.” It concluded, “There is no magic wand to be waved, no miraculous incantation to be pronounced… One must descend into the harsh world of reality and practicality; and that points inevitably to the obvious and comprehensive but long-term solution; education.” In the final segment, the chair of the VLRC explains its recent recommendation that peremptory challenges should be scaled back to prevent gender discrimination.
Supreme Court speeds up post-committal directions
A new Practice Note issued by the Supreme Court is intended to reduce delays between committal hearings and trial. Under the new guidelines, the Magistrates’ Court will be required to email documentation to the Supreme Court immediately after committal, and “where feasible, the [post-committal directions hearing] may be heard in the afternoon on the same day and otherwise will be heard at 9:30 am the following sitting day.” The new guidelines also require the parties to be ready at the first directions hearing to advise the Supreme Court about issues such as whether the accused is negotiating on a plea, the availability of witnesses, and the estimated length of the trial.
Blogging Justice predicts Supreme Court digital shift
As part of its new website, the Supreme Court of Victoria has launched launched a weblog. The first substantive post is from Justice Jack Forrest of the Trial Division, who predicts a number of changes in court procedure in coming years. Of note is the emphasis on digital documents: “an online filing system called ‘RedCrest’ … is being rolled out in the Commercial Court. … Hopefully, it will reduce the size not only of solicitors’ paper files, but also of briefs provided to counsel. Furthermore, it will make life much easier for court staff, counsel and solicitors alike by allowing them to search electronic databases quickly and effectively”. In addition, Justice Forrest remarks: “Any case involving five or more folders of court documents will be required to be run as an e-trial—at least for those cases before me.” Other predicted changes will focus on narrowing the issues in dispute as soon as possible: “The days of trials proceeding by attrition are gone. Practitioners should expect the courts to take a grim view of unnecessarily adversarial conduct.”
Victoria ahead of UK debate on emotional abuse
The British Home Secretary, Theresa May, is calling for a new criminal offence of “domestic abuse”. Her call has sparked a debate about whether non-physical bullying should be criminalised, with some victims in favour of the proposal, and others saying it should not be a crime. Here in Victoria, the Family Violence Protection Act 2008 (Vic) already includes a broad definition of “family violence”, which includes emotional and psychological abuse, economic abuse, and “in any other way control[ling] or dominat[ing] the family member and caus[ing] that family member to feel fear for the safety or wellbeing of that family member or another person”. A victim can apply to the Magistrates’ Court for a Family Violence Intervention Order, and breaching the order is a criminal offence carrying a term of imprisonment.
Suspended sentences no longer an option
In a major change to Victoria’s sentencing system, “From 1 September 2014, Victorian courts can no longer impose suspended sentences. This sentencing option was progressively abolished in 2013 and 2014 by the Sentencing Amendment (Suspended Sentences and Other Matters) Act 2013.” The Government argues that suspended sentences “allow offenders to walk free from court without any supervision”, and suggests that the new Community Corrections Orders should be used as an alternative. However, Sentencing Advisory Council statistics show that “as use of suspended sentences continued to decline [during the phase-out period], so did CCOs—while orders for imprisonment and fines continued to increase”. The SAC is calling for further research to determine why judges are not using CCOs in the way the Government had predicted. Some lawyers argue the removal of sentencing options leads to unjust outcomes by reducing the ability to tailor sentences to the individual case.
Parole crackdown exposes rehabilitation problems
The Chairman of the Adult Parole Board, Bill Gillard QC, says that it is now harder to be granted parole in Victoria, and one substantial cause is the lack of prisoners’ access to rehabilitation programs: “It is Corrections that must make sure that the person is ready for parole. Corrections Victoria has the obligation to put the prisoner in the right position to apply for parole.” This appears to be a vicious cycle, as the lack of access to parole increases prison populations, which, according to Smart Justice, puts further strain on prison services: “There’s a current overcrowding crisis in Victorian jails and the impact of that is it’s denying a chance of proper rehabilitation before prisoners are released from jail.” Corrections Victoria says it has significantly increased funding for rehabilitation programs in the last two years.
VLRC calls for reform to end gender bias on juries
The Victorian Law Reform Commission’s Jury Empanelment report was tabled in parliament on Wednesday. It made a number of recommendations, such as calling jurors by number only (not by name), ending the practice of jurors “parading” past the accused, and allowing up to 15 jurors to deliberate instead of additional jurors being “balloted off” at the end of the trial. The most significant recommendation was to reduce the number of peremptory challenges. The VLRC said that on current statistics, “For every man challenged, two women are challenged”, and as a result “women make up on average only 44 per cent of jurors on criminal trials”. Reducing the number of peremptory challenges would limit their impact on the gender representativeness of juries. The Government will now consider the recommendations before deciding whether to implement them.
Geoff Shaw returns to Parliament
The Member for Frankston, Geoff Shaw, returned to Parliament this week following his suspension. Upon his return, he gave a Personal Explanation: “To avoid being in contempt of the Legislative Assembly, … I humbly and sincerely apologise to the house and to the people of Victoria for my breach of the code of conduct for members”. However, later that day, Shaw told the Herald Sun the situation was “a political farce”. Premier Denis Napthine took this as evidence that the apology was not genuine, and moved a motion to expel Shaw permanently—but the Opposition dismissed it as a “stunt” and voted with Shaw to keep him in the chamber. There is only one sitting week of parliament remaining before the election.
Govt ignores VLRC recommendation on wills
In October last year, the Victorian Law Reform Commission’s final report on Succession Laws was tabled in parliament. Its recommendations aimed to clarify and simplify the rules relating to making, executing and challenging wills and inheritances. The Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, currently before Parliament, is the Government’s legislative response. However, the Herald Sun reports that the Victorian Government has rejected one of the VLRC’s key recommendations: “Parents, carers and adult children of the deceased would be barred from contesting wills under radical reforms to Victorian succession laws”, unless the claimants were “wholly or partly dependent on the deceased at the time of death. The dependency reform comes despite strong objection by the Law Reform Commission.” The Government says the VLRC’s preferred approach does not adequately protect “the principle that a deceased’s person’s will ought to be respected unless it is shown they have failed in their duty to provide for someone they should have made provision for”.