Victims and Other Legislation Amendment Bill 2018 Explanatory Memoranda

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Victims and Other Legislation Amendment Bill 2018

Victims and Other Legislation Amendment Bill 2018 Introduction Print EXPLANATORY MEMORANDUM Clause Notes Part 1--Preliminary Clause 1 sets out the purposes of the Bill. The Bill will amend the Victims' Charter Act 2006, the Victims of Crime Commissioner Act 2015 and the Sentencing Act 1991 to implement a number of recommendations made by the Victorian Law Reform Commission (VLRC) arising out of its 2016 report, The Role of Victims of Crime in the Criminal Trial Process (VLRC Report). The Bill will amend the Jury Directions Act 2015 to provide a new jury direction on the language and cognitive skills of child witnesses. The main purposes of the Bill are--  to amend the Victims' Charter Act 2006--  in relation to requirements for communication with victims; and  in relation to victim impact statements; and  in relation to complaints; and  to provide for a review of victims' experiences in summary proceedings for criminal offences; and 581485 1 BILL LA INTRODUCTION 24/7/2018

 to amend the Victims of Crime Commissioner Act 2015--  to provide for the review of certain complaints made by victims (within the meaning of the Victims' Charter Act 2006) about certain agencies; and  in relation to the Commissioner's monitoring and reporting functions; and  to provide for the review by the Commissioner of the Victims' Charter Act 2006 and its benefits for victims (within the meaning of that Act); and  to amend the Sentencing Act 1991 in relation to victim impact statements; and  to amend the Jury Directions Act 2015 in relation to directions on the language and cognitive skills of child witnesses.  to amend the Children, Youth and Families Act 2005 to--  clarify that relevant historical care and protection orders made by courts on the application of the State were not convictions or findings of guilt; and  acknowledge the harm and distress caused by certain practices relating to relevant historical care and protection orders. Clause 2 provides for commencement of the Bill. Subclause (1) provides that, subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. Subclause (2) provides that if a provision of this Act does not come into operation before 4 November 2019, it comes into operation on that day. 2

Part 2--Amendment of the Victims' Charter Act 2006 Clause 3 inserts a definition for DPP into section 3(1) of the Victims' Charter Act 2006. DPP means the Director of Public Prosecutions for Victoria. The clause also substitutes "Director of Public Prosecutions for Victoria" with "DPP" in the existing definition of prosecuting agency. The term "DPP" appears in section 9 of the Victims' Charter Act 2006 (information regarding prosecution) (as amended by clause 8) and new sections 9A (additional information regarding prosecution to be provided by DPP), 9B (views of victim to be sought by DPP) and 9C (DPP to give reasons for certain decisions) (as inserted by clause 9). Clause 4 inserts a paragraph (ba) into section 4(1) of the Victims' Charter Act 2006, which relates to the objects of that Act. New section 4(1)(ba) provides that an object of the Victims' Charter Act 2006 is to recognise that a victim of crime has an inherent interest in the response by the criminal justice system to that crime, giving rise to the rights and entitlements set out in the Victims' Charter Act 2006, and to acknowledge the victim's role as a participant, but not a party, in proceedings for criminal offences. This provision implements recommendation 1 of the VLRC Report. The VLRC found that the Victims' Charter Act 2006 is the "central repository of victims' entitlements and the obligations owed to them" during criminal proceedings and therefore, "the Act should clearly acknowledge the victim's role as a participant" (VLRC Report, page 34). This role is given practical meaning through the principles in the Act, as amended by the Bill. Clause 5 inserts the words "persons adversely affected by crime" into the heading to Part 2 of the Victims' Charter Act 2006. This reflects the fact that this Part applies to both "victims" and "persons adversely affected by crime", as defined in section 3(1) of the Victims' Charter Act 2006. Clause 6 inserts new sections 7A and 7B into the Victims' Charter Act 2006. 3

New section 7A--special treatment of victims New section 7A requires investigatory agencies, prosecuting agencies and victims' services agencies to--  respect the rights and entitlements of victims as participants in proceedings for criminal offences; and  so far as is reasonably practicable, take into account, and be responsive to, the particular needs of victims living in rural and regional locations. This section gives effect to the new object introduced in section 4(1)(ba) of the Victims' Charter Act 2006 (clause 4), and underpins the implementation of other VLRC recommendations addressed in this Bill. This implements recommendations 15 and 16 of the VLRC Report. The VLRC reported that being treated with dignity is a necessary precondition to recognising victims' status as participants in the criminal trial process. Acknowledging victims' rights and entitlements is intended to assist victims to feel respected throughout the criminal process. The new requirement for agencies to have regard to the particular needs of victims in rural and regional locations (as far as it is reasonably practicable) responds to a finding by the VLRC that victims in rural and regional Victoria can receive less support and information, face greater barriers to effective participation, have more limited access to protective procedures during criminal proceedings, and experience difficulty in obtaining legal assistance to help with claims for compensation and financial assistance (VLRC Report, page 89). While the introduction of section 7A clarifies the particular status of victims, this does not affect the existing requirements imposed on agencies with respect to persons adversely affected by crime (as defined in section 3(1) of the Act). New section 7B--Communication with victims New section 7B provides that investigatory agencies, prosecuting agencies and victims' services agencies are to take into account, and be responsive to, the following matters when communicating with a victim--  whether the victim wishes to be contacted; 4

 the victim's preferred method of contact (which may vary at different stages throughout the proceeding for a criminal offence and according to the topic of communication);  issues that affect the victim's ability to understand the information being communicated, including, but not limited to--  the victim's understanding of English; and  whether the victim has a disability; and  whether the victim is a child. This provision recognises that a victim's preferences regarding communication should be respected. The intention is that the requirements in the Victim's Charter Act 2006 (as amended by this Bill) will be subject to these matters. For example, if a victim has clearly indicated that they do not want to be advised of the progress of the case, any requirement to provide information or communicate with the victim is subject to that indication. Clause 7 substitutes section 8(1) of the Victims' Charter Act 2006 which relates to information to be given to a victim about an investigation. Section 8(1) currently requires an investigatory agency to inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence unless (a) the disclosure may jeopardise any investigation of that offence or any other offence; or (b) the victim requests not to be provided with that information. This clause removes section 8(1)(b). This paragraph is unnecessary in light of the communication principles in new section 7B, which requires relevant agencies to take into account, and be responsive to, whether the victim wishes to be contacted. Clause 8 amends section 9 of the Victims' Charter Act 2006 which currently requires prosecuting agencies to give a victim certain information about the prosecution of the relevant offence. For example, section 9(c)(iii) requires a victim to be informed about a decision to accept a plea of guilty to manslaughter where the accused was initially charged with murder, or a decision to 5

accept a plea of guilty to sexual assault where the accused was initially charged with rape. This clause amends section 9(c)(ii). Currently, this subparagraph refers to a decision "not to proceed with some or all of those charges". The Bill confines this subparagraph to a decision to discontinue the prosecution to reflect that, in practice, it is common for multiple offences to be charged where open on the evidence (including all alternative offences). In many cases, these charges will be streamlined at a later stage based on the evidence. In such cases, notifying the victim of the decision not to proceed with some charges will be inefficient and potentially confusing for victims. This clause also amends section 9(d) and (e) to exclude the DPP from the requirements to provide victims with details about how to find the date, time and place of the hearing of the charges against the accused person (paragraph (d)), and the outcome of the criminal proceeding against the accused person, including any sentence imposed (paragraph (e)). New section 9A (as inserted by clause 9 of the Bill) imposes more comprehensive obligations on the DPP to give certain information to victims than the existing obligations set out in section 9(d) and (e). Clause 9 inserts sections 9A, 9B and 9C into the Victims' Charter Act 2006. New section 9A--Additional information regarding prosecution to be provided by DPP New section 9A requires the DPP to take all reasonable steps to advise a victim of--  the date, time and location of any contested committal hearing, trial, plea hearing, sentencing hearing and appeal hearing; and  the progress of a prosecution, including the outcome of any committal mention, contested committal hearing, initial directions hearing, trial, plea hearing, sentencing hearing or appeal hearing, or guilty plea. This implements recommendation 20 of the VLRC Report. The new requirements reflect the current DPP Policy which sets out what information the Office of Public Prosecutions should provide to victims at different stages of the criminal trial process. 6

The VLRC concluded that these comprehensive policy requirements should be reflected in the Victims' Charter Act 2006 (VLRC Report, page 113). While the VLRC recommended that agencies should "ensure" victims know the relevant hearing information, this may be difficult to achieve if, for example, victims cannot be contacted after reasonable attempts. This is recognised in new section 9A, which requires the DPP to take "all reasonable steps" to give victims the relevant information. As noted above, this requirement is subject to the communication principles in new section 7B. New section 9B--views of victim to be sought by DPP New section 9B(1) provides that the DPP is to seek the victim's views before making a decision to--  substantially modify the charges; or  discontinue the prosecution of the charges; or  accept a guilty plea to a lesser charge; or  appeal a sentence; or  appeal an acquittal. New section 9B(2) requires the DPP to give a victim information about the matters taken into account when deciding to (a) agree or oppose an application to cross-examine a victim at a committal hearing; or (b) apply for, agree to or oppose an application for summary jurisdiction. This implements recommendation 24 of the VLRC Report, with some variation. Rather than "consult" with victims, as recommended by the VLRC, section 9B(1) requires the DPP to seek a victim's views. This recognises that these decisions are ultimately a matter of prosecutorial discretion and a victim's views are not determinative. The section does not require the DPP to seek a victim's views in relation to decisions to agree to or oppose an application to cross- examine a victim at a committal hearing, or apply for, agree to or oppose an application for summary jurisdiction. This is because these decisions are subject to statutory criteria that do not include 7

the victim's views. For example, decisions to hear an indictable matter summarily requires a court to have regard to the matters specified in section 29 of the Criminal Procedure Act 2009. Seeking a victim's views in this situation may create unrealistic expectations by victims that their views will be taken into account, resulting in the victim's distress. Instead, section 9B(2) requires the DPP to give victims information about these decisions. New section 9B(1) also requires the DPP to seek the victim's views in relation to a DPP decision to appeal an acquittal. This is because if the appeal is successful, a victim may be required to give evidence again. New section 9B(3) provides that the DPP is not required to seek the victim's views under section 9B(1) or 9B(2) if (a) the victim cannot be contacted after all reasonable attempts; or (b) it is not practical to contact the victim given the speed or nature of the proceeding. The communication principles in new section 7B also apply to this section. New section 9C--DPP to give reasons for certain decision New section 9C(1) provides that the DPP must, as soon as reasonably practicable, give a victim the reasons for any decision referred to in section 9(c), being decisions (i) to substantially modify charges; (ii) to discontinue a prosecution; or (iii) to accept a plea of guilty to a lesser charge. Section 9C(2) provides that reasons may be given either orally or in writing. This implements recommendation 9 of the VLRC Report. The VLRC noted that the procedure for giving reasons to victims is a matter for the DPP. While they recommended that reasons be given in writing, they recognised that it may be more appropriate to inform a victim in person, and follow up with a letter (VLRC Report, pages 69�-70). In most cases this will be the preferred approach, but section 9C gives the DPP flexibility to give reasons either orally or in writing to ensure that a victim's communication preferences are respected in accordance with the communication principles in new section 7B. New section 9C(3) provides that the DPP may decline to provide reasons if the disclosure may jeopardise any investigation of a criminal offence or prejudice any other proceeding. This reflects the current DPP Policy in relation to providing victims with 8

reasons on request. Additionally, the requirement to give reasons is to be carried out "as soon as reasonably practicable". It is likely that, once the risk of jeopardising an investigation has passed, it will then be "reasonably practicable" for the DPP to provide a victim with reasons. The communication principles in new section 7B also apply to this section. Clause 10 amends section 11(2) of the Victims' Charter Act 2006 which relates to information about the court process which must be given to a victim who is to appear as a witness for the prosecution. Currently, section 11(2) requires the prosecuting agency to ensure the victim is informed about the process of the trial or hearing and the victim's role as a witness for the prosecution. Clause 10 introduces a new requirement into this subsection which requires the prosecuting agency to inform the victim, where relevant, about special protections or alternative arrangements for giving evidence. It also requires the prosecuting agency to inform the court about the victim's preferences for the use of special protections or alternative arrangements for giving evidence. This implements recommendation 42 of the VLRC Report. The Note to subsection (2)(b) notes that the Criminal Procedure Act 2009 contains a number of special protections and alternative arrangements for giving evidence. Examples of special protections are contained in Division 5 of Part 8.2 of the Criminal Procedure Act 2009 which covers the use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence, assault and family violence matters. Further, Division 6 of Part 8.2 contains provisions relating to procedure and rules for children and cognitively impaired complainants and Division 7 of Part 8.2 relates to the admission of recorded evidence of complainant given in trial for sexual offences. Alternative arrangements for giving evidence are available to victims who appear as witnesses in sexual offence cases and cases involving conduct that constitutes family violence under Division 4 of Part 8.2 of the Criminal Procedure Act 2009. 9

Clause 10 also introduces a new requirement which requires the prosecuting agency to inform the victim that after the victim has given evidence, the victim may remain in the courtroom unless the court otherwise orders. Clause 11 substitutes section 13(2) and inserts a new section 13(3) in the Victims' Charter Act 2006. Currently, section 13(2) requires a prosecuting agency to refer a victim who expresses a wish to make a victim impact statement to an appropriate victims' service agency for assistance in preparing their statement. This requirement is not being changed. New section 13(2)(b) will require the prosecuting agency to give the victim general information about the types of material in a victim impact statement that the court may rule inadmissible and the consequences that may occur from that ruling. However, new section 13(3) makes clear that, despite subsection (2)(b), the prosecuting agency does not have a duty to advise the victim of the admissibility of a particular victim impact statement. This provision imposes a general duty on the prosecuting agency to give the victim information about the type of material that may be ruled inadmissible, and the consequences that may occur from that ruling. This could include, for example, information that the victim impact statement cannot refer to other offences are not the subject of sentencing. It could also include the ways that a court may hear admissible evidence (for example, by only allowing the victim to read admissible evidence aloud, or choosing to take the statement as a whole and only considering the admissible evidence). This ensures that a victim is aware of potential admissibility concerns before preparing the statement. This reform addresses recommendation 27 of the VLRC Report but does not require the prosecuting agency to go through the contents of a victim impact statement with the victim and identify what is, or is not, admissible. This process can often be distressing for the victim, and may undermine the relationship of trust between prosecuting agency and victim. Clause 12 inserts the words "for persons adversely affected by crime" in the heading to section 19 of the Victims' Charter Act 2006, which requires an agency to give information about the agency's complaints process. This makes clear that this section applies to 10

persons adversely affected by crime (which includes a victim) (as defined in section 3(1) of the Victims' Charter Act 2006), and helps to differentiate this obligation from the obligation in new section 19A of the Victims' Charter Act 2006, which only applies to victims (as defined in section 3(1) of the Victims' Charter Act 2006). Clause 13 inserts new sections 19A and 19B into the Victims' Charter Act 2006. New section 19A--Complaints system for victims New section 19A(1) provides that each investigatory agency, prosecuting agency and victims' services agency must institute and operate a system to receive and resolve complaints from victims in respect of the agency's compliance with the Charter principles, including complaints made under section 19B. New section 19A(2) provides that a complaints system referred to in subsection (1) must (a) be accessible and transparent; and (b) offer fair and reasonable remedies. A note to this subsection provides guidance on the types of remedies that may be appropriate. It states that fair and reasonable remedies may include an apology, an acknowledgment that an error occurred or an explanation as to why an error occurred and the steps being taken by the agency to prevent the error reoccurring. New section 19A(3) provides that a relevant agency that is dealing with a victim must inform the victim, as soon as is reasonably practicable after commencing to deal with that victim, of (a) the agency's complaints system referred to in subsection (1); and (b) the victim's right to have a complaint reviewed under the Victims of Crime Commissioner Act 2015 if dissatisfied with the agency's response to the complaint. Current section 19 of the Victims' Charter Act 2006 requires an agency to inform a person adversely affected by crime (which includes a victim) about the process to make a complaint once a complaint is made. In contrast, new section 19A(3) requires information about complaint processes to be given at an early stage, so that the victim has the relevant information at the start of their dealings with the agency. 11

These provisions implement recommendation 7(b) of the VLRC Report. The VLRC found that a requirement for agencies to implement the principles in the Victims' Charter Act 2006 should be "underpinned by robust processes for handling complaints" (VLRC Report, page 64). New section 19B--Victim may complain to agency New section 19B provides that a victim may complain to an investigatory agency, a prosecuting agency or a victims' services agency if the victim believes that the agency has not complied with the Charter principles. This implements recommendation 7(a) of the VLRC Report. Currently, section 19 of the Victims' Charter Act 2006 only requires an agency to inform a person adversely affected by crime (which includes a victim) about the processes available for making a complaint, where that person informs the agency that they believe the agency has not upheld the Charter principles. The VLRC considered that the Victims' Charter Act 2006 should be strengthened in similar terms to the Victims Right and Support Act 2013 of New South Wales, which provides victims with a right to make a complaint. This reform is intended to "underscore the significance of a victim's role in the criminal trial process" (VLRC Report, page 64). The Note to this subsection notes that a victim may seek a review of the agency's response to the complaint under the Victims of Crime Commissioner Act 2015. This new complaint process is contained in clause 20 of the Bill. Clause 14 inserts a Note at the foot of section 21 of the Victims' Charter Act 2006, which relates to reporting on the operations of that Act. The Note indicates that section 29A of the Victims of Crime Commissioner Act 2015 requires the Victims of Crime Commissioner to commence a review of the operation of Victims' Charter Act 2006 and its benefits for victims by 4 November 2024. This new section is inserted by clause 23 of the Bill. Clause 15 inserts new section 21A into the Victims' Charter Act 2006. This new section requires the Attorney-General to cause a review to be conducted into legislative and non-legislative changes that are necessary and appropriate to improve the experience of victims participating in summary proceedings for criminal 12

offences. A report of the review must be completed and laid before Parliament within 2 years of Part 2 of the Bill commencing. This 2 year review will complement the 5 year review to be conducted by the Victims of Crime Commissioner (clause 23). Clause 16 inserts new Part 4 into the Victims' Charter Act 2006. New Part 4 provides for transitional provisions. The new transitional provision provides that the amendments made to the Victims' Charter Act 2006 by Part 2 of this Act apply in respect of a person who was a victim immediately before the commencement of that Part and who is a victim on the day that Part comes into operation. This clarifies that the requirements introduced by the Bill will apply from the date of commencement, including to investigations or prosecutions that are ongoing. For example, if after commencement of this Part, the DPP decides to discontinue a prosecution that commenced before commencement of this Part, the DPP will be required to give the victim reasons for that decision, to meet the requirements in new section 9C. Part 3--Amendment of the Victims of Crime Commissioner Act 2015 Clause 17 inserts the definitions of agency and Charter principles into section 3 of the Victims of Crime Commissioner Act 2015. Agency means an investigatory agency, a prosecuting agency or a victims' services agency within the meaning of section 3(1) of the Victims' Charter Act 2006. This definition is used throughout the new complaints provisions in this Part. Charter principles has the same meaning as in section 3(1) of the Victims' Charter Act 2006. Clause 18 amends section 13(1) of the Victims of Crime Commissioner Act 2015 to give the Commissioner an additional function. The additional function empowers the Commissioner to perform any other functions conferred on the Commissioner by this Act or any other Act. 13

The new function is to enable the Commissioner to investigate complaints from victims (as defined in the Victims' Charter Act 2006) regarding agency compliance with the Charter principles. The Commissioner's new function accords with VLRC recommendation 8, that the Commissioner should be empowered to review the outcome of complaints regarding the compliance by agencies with the Charter principles, if the complainant is not satisfied with the agency's response. Clause 19 inserts a reference to new Division 3A in section 18 of the Victims of Crime Commissioner Act 2015 to enable the Commissioner to require access to records from the Secretary to perform the Commissioner's functions under new Division 3A. Division 3A is a new division inserted by this Bill which allows the Commissioner to consider complaints about compliance with the Charter principles. Clause 20 inserts new Division 3A into Part 2 of the Victims of Crime Commissioner Act 2015. New Division 3A allows complaints to be made to the Commissioner regarding an agency's compliance with the Victims Charter Act 2006. Division 3A inserts new sections 25A to 25K. These provisions further implement recommendation 8 of the VLRC report. New section 25A--Making a complaint to the Commissioner New section 25A sets out how to make a complaint to the Commissioner. New section 25A provides that a person may make a complaint to the Commissioner about an agency's compliance with the Charter principles if the person is a victim within the meaning of the Victims' Charter Act 2006, and the person has first made the complaint to the agency under section 19B of the Victims' Charter Act 2006 and the person is dissatisfied with the agency's response to that complaint. The terms "agency" and "Charter principles" are defined in section 3 of the Victims of Crime Commissioner Act 2015 (as amended by clause 17). 14

The Victims' Charter Act 2006 requires an agency to inform a victim of the processes available for making a complaint, if that person believes that the agency has not upheld the Charter principles. However, it does not provide any processes for taking a complaint further if the person is not satisfied by the agency's response. To acquit VLRC recommendation 8, the Bill includes a right to review if a person is not satisfied with how the agency has responded to their complaint. New section 25B--How to make a complaint New section 25B sets out how a person may make a complaint to the Commissioner. A complaint may be made either orally or in writing. If a person makes a complaint orally, the person must confirm the complaint in writing as soon as practicable. The Commissioner is required to take all reasonable steps to assist a person who has made a complaint orally to confirm that complaint in writing. A Note to the provision clarifies that a complaint may be made by an electronic communication within the meaning of section 3(1) of the Electronic Transactions (Victoria) Act 2000. New section 25C--Time limit for making complaint New section 25C sets out the time frame for making a complaint to the Commissioner. New section 25C(1) provides that subject to subsection (2), a complaint must be made not more than 12 months after the matter that is the subject of the complaint occurred. New section 25C(2) gives the Commissioner discretion to accept a complaint made later than 12 months if the Commissioner is satisfied that there is a good reason for the delay. New section 25D--Withdrawal of complaint New section 25D deals with the withdrawal of a complaint. The provision allows the person making a complaint to withdraw the complaint in writing and requires the Commissioner to take reasonable steps to assist the person to do so. 15

New section 25E--Information relating to complaint to be provided New section 25E deals with information that the Commissioner may request be provided by the person who has made the complaint or the agency that is the subject of the person's complaint. The provision allows the Commissioner to elicit further information relating to the complaint and specify the time by which the information must be provided. If a person fails to provide the requested information in the specified time, the Commissioner may decline to consider the complaint under new section 25G(e). New section 25F--Preliminary assessment of complaint New section 25F deals with the Commissioner's assessment of whether to consider a complaint. New section 25F(1) provides that the Commissioner has 28 days to either agree or decline to consider the complaint. New section 25F(2) provides that on agreeing to consider the complaint, the Commissioner must, within 14 days, give written notice of that decision and the particulars of the complaint to the person who made the complaint and the agency that is the subject of the complaint. New section 25F(3) provides that on declining to consider the complaint, the Commissioner must, not more than 14 days after declining to consider a complaint, give written notice of that decision to the person who made the complaint. New section 25G--Certain grounds on which Commissioner may decline to consider complaint New section 25G sets out the circumstances in which the Commissioner may decline to consider a complaint. The circumstances include where the agency has not finalised its investigation of the complaint, the Commissioner refers the matter under sections 25H, 26 or 27 of the Victims of Crime Commissioner Act 2015 or the complaint forms the basis of an investigation being conducted by another body, organisation, agency or entity. The Commissioner may also decline to consider a complaint if satisfied that the complaint is frivolous, vexatious, misconceived, lacking in substance, or otherwise does not warrant action, is not made in good faith, is made for an 16

improper purpose, or in the circumstances, it is appropriate to do so. New section 25H--Commissioner may refer complaint New section 25H sets out the circumstances in which the Commissioner may refer a complaint. If the Commissioner is satisfied that a complaint would be more appropriately dealt with by another body, organisation, agency or entity, the Commissioner may refer a complaint or part of a complaint to that body, organisation, agency or entity. If the Commissioner refers a complaint or part of a complaint, within 14 days of the referral the Commissioner must give written notice of that decision to the person who made the complaint and the agency that is the subject of the complaint. The intention of this provision is to avoid unnecessary duplication of inquiries and to facilitate the coordination and expedition of inquiries. New section 25I--Investigation of a complaint New section 25I sets out what the Commissioner can and cannot do when investigating a complaint. If the Commissioner agrees to consider a complaint, the Commissioner must investigate the complaint. In the course of investigating the complaint the Commissioner may review any findings, recommendations, determinations or other decisions of the agency in relation to the complaint and consider the agency's response to the complaint, its processes for dealing with complaints, and its compliance with the Victims' Charter Act 2006 and Charter principles. An avoidance of doubt provision is included to make clear that in investigating a complaint, the Commissioner must not review a decision involving the exercise of prosecutorial discretion and includes illustrative examples such as a decision to discontinue a prosecution or accept a guilty plea in relation to particular charges. Further, in investigating a complaint, the Commissioner must not intervene in a way that prejudices a proceeding for a criminal offence or the investigation of a criminal offence or interfere with the exercise of the jurisdiction of a court. 17

New section 25J--Outcome of investigation New section 25J deals with the outcome of the Commissioner's investigation of a complaint. After investigating a complaint, the Commissioner may recommend to the agency that is the subject of the complaint that it take any of the following actions-- (a) an apology, explanation or facilitated meeting; (b) additional training; (c) a change of policy; (d) the provision of information. The Commissioner must not, in making a recommendation, require or direct any party to the complaint to do any act or thing or make a determination that is binding on any party to the complaint. The VLRC considered that the availability of an external review process would in itself "strengthen the force of the principles and underscore the need for the agencies to have robust processes for responding to victims' complaints" (VLRC Report, page 66). The Commissioner's new review function will promote more consistent compliance with Charter principles, contributing to the cultural change that the Bill seeks to achieve. New section 25K--Notice of investigation outcome New section 25K requires the Commissioner to give notice of the outcome of an investigation not more than 14 days after completing an investigation to the person and the agency that is the subject of the complaint. The notice must include the reasons for the decision and any non-binding recommendations made by the Commissioner under new section 25J(1). Clause 21 inserts new section 27(1)(ba) into the Victims of Crime Commissioner Act 2015 to enable the Commissioner to refer a complaint to the Victorian Legal Services Commissioner appointed under the Legal Profession Uniform Law Application Act 2014 if appropriate to do so. 18

This implements recommendation 11 of the VLRC Report. The VLRC found that the Commissioner should have the power to refer matters to the Legal Services Commissioner, since it is likely that matters raised with the Commissioner may include complaints about the conduct of lawyers. Clause 22 inserts new section 28(1A) into the Victims of Crime Commissioner Act 2015 to require the Commissioner to include in the annual report information about prescribed agencies' compliance with the Victims' Charter Act 2006 in that year and the number, type and outcome of complaints made to, and processed by, the Commissioner in that year about compliance with the Charter principles by prescribed agencies. The agencies to be included in the report will be prescribed in Regulations. This implements recommendation 12 of the VLRC report. The VLRC considered this function would be consistent with the Commissioner's function of bringing 'systemic problems and possible solutions to the Government's attention' (VLRC Report, page 79). Clause 23 inserts new section 29A into the Victims of Crime Commissioner Act 2015 to require the Commissioner to review the operation of the Victims' Charter Act 2006. By no later than 4 November 2024, the Commissioner must commence a review of the operation of the Victims' Charter Act 2006 and its benefits for victims (within the meaning of that Act) and provide a report of the review to the Attorney-General on or before 7 September 2025. The Attorney-General must cause a copy of the report to be laid before each House of Parliament within 10 sitting days of receiving that report. This provision implements recommendation 14 of the VLRC report. The VLRC recommended that the Commissioner lead a comprehensive review of the Victims' Charter Act 2006 not later than five years after the commencement of the reforms recommended in the VLRC report to evaluate the effectiveness of the reforms and whether further reform is necessary. Clause 24 substitutes references to section 29 of the Victims of Crime Commissioner Act 2015 in sections 30(1) and (2) with references to section 29 or 29A. Section 30 of the Victims of Crime Commissioner Act 2015 relates to the content that may 19

be included and must not be included in certain reports prepared by the Commissioner. Clause 25 inserts new Part 5 into the Victims of Crime Commissioner Act 2015. New Part 5 provides for transitional provisions. The new transitional provision provides that the amendments made to the Victims of Crime Commissioner Act 2015 by Part 3 of the Bill do not apply in relation to a complaint made to an agency before the day on which that Part comes into operation. Part 4--Amendment of the Sentencing Act 1991 Clause 26 inserts new subsections (4)-(6) into section 8L of the Sentencing Act 1991 which relates to the contents of a victim impact statement. New section 8L(4) provides guidance in relation to the interpretation of section 8L. It provides that it is the intention of Parliament that, in interpreting and applying section 8L, courts have regard to (a) that a victim impact statement allows the victim to tell the court about the impact of the offence on them; and (b) that a victim impact statement is not inadmissible merely because it contains subjective or emotive material. This implements recommendation 26 of the VLRC Report. Currently, section 8L(3) provides that "the court may rule as inadmissible the whole or any part of a victim impact statement". There will be no change to this provision. However, courts have generally taken a permissive approach to victim impact statements in criminal cases, recognising that it would destroy the purpose of a victim impact statement, and potentially re-traumatise victims, to apply the same procedural standards that apply to witness statements in commercial cases (see, for example, R v Dowlan [1998] 1 VR 123; R v Swift (2007) 15 VR 497). New section 8L(4) enhances the transparency of this process, and reflects the important role of victim impact statements. New section 8L(5) provides that a court may receive the whole of a victim impact statement despite (a) an objection being taken to the statement or part of a statement; or (b) the statement containing inadmissible material. This reflects current practice, explained in Dowlan and Swift, where a court may accept a 20

victim impact statement in its entirety despite it containing some inadmissible content. New section 8L(6) provides that if a court receives a victim impact statement that contains inadmissible material, the court, in sentencing the offender (a) is not to rely on the material that the court considers to be inadmissible; and (b) need not specify which of the material is not being relied on. This balances the operation of section 8L(5) by ensuring that, although a court may receive a full victim impact statement that contains inadmissible material, the court must not rely on material that it considers inadmissible in deciding on a sentence. Additionally, a court is not required to specify which parts of the victim impact statement it is not relying on, as it can be distressing for victims to hear a court discuss their statement in this way in open court. The Note to this section refers to section 8Q of the Sentencing Act 1991 which provides that only the admissible parts of a victim impact statement may be read aloud in open court. The reforms to section 8L do not affect the obligations on the court under section 8Q. Clause 27 substitutes section 8N of the Sentencing Act 1991. New section 8N(1) provides that if the victim prepares a victim impact statement, the victim must, a reasonable time before sentencing is to take place, provide a copy to the prosecutor, and the copy must include a copy of any medical report attached to the victim impact statement. New section 8N(2) requires a prosecutor who receives such a statement, as soon as practicable after receiving it, to (a) file a copy of the victim impact statement and any attached medical report with the court; and (b) provide a copy of the victim impact statement and any attached medical report to the offender or the legal practitioner representing the offender. This implements recommendation 28 of the VLRC Report. Currently, section 8N places the obligation on the victim to provide their victim impact statement to the court and the offender. The VLRC found that this provision was at odds with the need to minimise the victim's contact with the offender. It concluded that it is more appropriate for the prosecution to communicate with the offender (or their lawyer) and file the documents with the court. This is consistent with existing 21

Supreme Court and County Court practice notes (VLRC Report, pages 156�-7). Clause 28 inserts new section 169 at the end of Part 12 of the Sentencing Act 1991. This is a transitional provision which provides that amendments made to the Sentencing Act 1991 by Part 4 of the Bill apply to the sentencing of an offender on or after the commencement of Part 4, irrespective of when the offence was committed. Part 5--Amendment of the Jury Directions Act 2015-- Language and cognitive skills of child witness Clause 22 amends the heading to section 33 of the Jury Directions Act 2015, by inserting "reliability of" after "in relation to". This is a more accurate heading for that section and helps to differentiate that section from new section 44N. Clause 30 inserts new Division 11 into Part 4 of the Jury Directions Act 2015. Part 4 contains evidential directions. New Division 11 provides for a new jury direction on children's abilities as witnesses, with particular emphasis on how their language and cognitive skills affect how they give evidence in criminal proceedings. New Division 11--Language and cognitive skills of child witness Research has shown that children can give accurate evidence, and the assumed gap between the reliability and credibility of adult and child testimony has been overestimated. However, the common law in Australia has traditionally viewed children as unreliable witnesses. Misconceptions about children as witnesses include that children:  particularly young children, cannot retain and recall information;  are prone to fantasy; and  frequently lie. As Spigelman CJ explained in JJB v The Queen [2006] NSWCCA 126 at [4]-[5], jurors may reflect these widely held (but mistaken) assumptions about children's evidence, as reinforced by the legal profession. Misconceptions can affect a 22

juror's assessment of relevant evidence, impacting on the fairness of a trial. The Evidence Act 2008 and the Jury Directions Act 2015 include provisions that partly address unwarranted assumptions about children's evidence, including the ability to allow expert evidence to be adduced regarding children's behaviour and development, and a prohibition on suggesting that children as a class are unreliable witnesses. Nonetheless, expert evidence is rarely used and the common law does not allow trial judges to give specific directions to address misconceptions about the reliability and credibility of children's evidence. The direction in new section 44N relates to the giving of a jury direction on the language and cognitive skills of a child witness. The direction is based on extensive empirical research on children's abilities as witnesses in criminal proceedings. The direction explains the particular difficulties that children may face during criminal trials due to the mismatch between their capabilities and the adult-oriented court environment and processes. The aim of the direction is to neutralise misconceptions that may unfairly affect the assessment of child witnesses, to ensure that charges are determined in a fair manner by a competent and impartial jury. New section 44N(1) sets out when a direction under new subsection (4) must be given. This subsection provides that the trial judge must give the direction in subsection (4) if, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that the reliability or credibility of a child witness is likely to be in issue. The direction must be given before any evidence by the child is adduced, unless the trial judge considers there are good reasons for not doing so, and may be given before any evidence is adduced in the trial. This process is similar to the process in existing section 52 of the Jury Directions Act 2015 (Direction on delay in complaint or lack of complaint). New section 44N(2) provides that if, at any other time during the trial, the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge must give the direction in subsection (4) as soon as practicable, unless there are good reasons for not doing so. This is to address scenarios where it does not become evident until after evidence has already begun 23

to be adduced that the child witness's reliability or credibility is likely to be in issue. New section 44N(3) provides that a trial judge may repeat the direction at any time in the trial. New section 44N(4) sets out the content of the direction. Child witnesses are expected to understand complex language and grammar that may intimidate and confuse even the most prepared witnesses. The content set out in this subsection explains a number of factors that may affect the quality of children's evidence, each of which is supported by extensive empirical research. Subsection (4) requires trial judges to inform the jury that-- (a) children can accurately remember and report past events; and (b) children are developing language and cognitive skills, and this may affect-- (i) whether children give a detailed, chronological or complete account; and (ii) how children understand and respond to the questions they are asked; and (c) experience shows that, depending on a child's level of development, they-- (i) may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and (ii) may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and (iii) may not request the clarification of a question they do not understand; and (iv) may not clarify an answer they have given that has been misunderstood. 24

New paragraph (c) also includes examples of language and concepts that may be difficult for children to understand, including hypothetical, ambiguous, repetitive, multi-part or yes/no questions, the use of the passive voice, negatives and double negatives, and relative concepts such as time, duration, measurement or frequency. A number of these examples, along with other useful commentary on the evidence of children, was discussed by the Court of Appeal in Ward (a Pseudonym) v The Queen [2017] VSCA 37 at [96]-[103] and [109]-[114]. The direction will remind the jury of the need to take a child witness's age and level of development into consideration when assessing their evidence. In particular, by explaining key areas of difficulty that children face when giving evidence, the direction acknowledges that over the past 25 years, the research focus has shifted from asking whether or not children are unreliable witnesses, to looking at the circumstances or conditions that may affect the quality of children's evidence. As with other "corrective" directions in the Jury Directions Act 2015, it will remain up to the jury to determine the reliability and credibility of the particular child witness. Jurors should use their own experiences and common sense when evaluating the evidence of a child. However, research on children's cognitive and recall skills are not within the average juror's ambit of knowledge. The purpose of the direction is educative, to provide the jury with information that is based on empirical research and the experience of the courts, so that the jury does not rely on misconceptions. This direction will assist the jury to assess those witnesses' evidence fairly and impartially. New section 44N(5) provides that this section does not limit what the trial judge may include in any other direction to the jury in relation to the evidence of the child witness. Clause 31 amends section 52(5) of the Jury Directions Act 2015 to replace "any direction that the trial judge may give the jury" with "what the trial judge may include in any other direction to the jury". This more accurately describes how the section operates, and is consistent with the wording in new section 44N(5). 25

Clause 32 amends section 54D(4) of the Jury Directions Act 2015 to replace "any direction that the trial judge may give the jury" with "what the trial judge may include in any other direction to the jury". This more accurately describes how the section operates, and is consistent with the wording in new section 44N(5). Clause 33 amends section 58(6) of the Jury Directions Act 2015 to replace "any direction that the trial judge may give the jury" with "what the trial judge may include in any other direction to the jury". This more accurately describes how the section operates, and is consistent with the wording in new section 44N(5). Clause 34 amends Schedule 1 to the Jury Directions Act 2015 to insert a transitional clause specific to the Bill. New clause 5(1) of Schedule 1 provides that amendments made to the Jury Directions Act 2015 by a provision of the Bill apply to-- (a) a trial that commences on or after the day on which that provision comes into operation; and (b) to a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the day on which that provision comes into operation. New clause 5(2) defines specified day consistent with existing clause 4(3) of Schedule 1 to the Jury Directions Act 2015. Part 6--Amendment of Children, Youth and Families Act 2005 Clause 35 inserts a new Chapter 7A after Chapter 7 of the Children, Youth and Families Act 2005. This Chapter is titled "Relevant historical care and protection orders". Part 1--Recognition of matters relating historical care and protection orders Part 1 provides for the recognition of matters relating to relevant historical care and protection orders. New section 592A provides a statement of recognition. The purpose of this statement of recognition is to acknowledge the harm and distress caused by recording practices in relation to relevant historical care and protection orders. 26

The statement provides that historically, the child welfare and criminal justice systems in Victoria were not clearly differentiated. As a result, children often experienced historical care and protection applications made by the State as criminal proceedings, and care and protection orders made by courts were recorded by the State on criminal records. The statement of recognition also acknowledges that the recording of relevant historical care and protection orders on criminal records occurred in cases where the child had not committed a crime, or been convicted or found guilty of a criminal offence, and in many instances before the child had reached the age of criminal responsibility. This has led to adverse life-long consequences for many of those children. Further, the statement expressly recognises that Aboriginal children were disproportionately impacted by historical State welfare policies. As a result, Aboriginal children were also disproportionately affected by recording practices of the State. The inclusion of a statement of recognition is a clear acknowledgement by Parliament of the significant personal and intergenerational harm caused by recording practices in relation to relevant historical care and protection orders. New section 592B inserts definitions for the purposes of new Chapter 7A. The meaning of conviction makes clear that, in respect of a criminal record, a conviction includes a finding of guilt by a court, whether or not a conviction is recorded. Criminal record in relation to a person, means a document that sets out-- (a) all the person's previous convictions; and (b) in relation to each previous conviction-- (i) the date of the conviction; and (ii) the court in which the conviction took place; and (iii) the place of sitting of that court; and (iv) the offence committed; and (v) the sentence imposed. 27

Official record means a relevant historical care and protection order or a criminal record that contains a relevant historical care and protection order or a record held by a responsible agency containing information about a relevant historical care and protection order or a criminal record that contains a relevant historical care and protection order. Relevant historical care and protection order has the meaning given by section 592C. Responsible agency means any of the following with the care and control of official records or secondary records-- (a) a public authority within the meaning of the Charter of Human Rights and Responsibilities Act 2006; (b) a community service; (c) a non-Government organisation that provides support or advocacy services to persons who were placed in Victorian orphanages, children's homes or foster care; (d) a prescribed entity. It is intended that the definition of responsible agency captures both Government and Non-Government organisations that hold official records or secondary records. These organisations will be required to comply with a statutory obligation under proposed section 592G or section 592H. Secondary record means an official record that is a copy, duplicate or reproduction of, or extract from, another existing official record. New section 592C--Meaning of relevant historical care and protection order New section 592C provides the meaning of relevant historical care and protection order. Subsection (1) provides that a relevant historical care and protection order, in relation to a person, means an order, however expressed or described, in the nature of an order made by a court as a result of an application for an order for the care and protection of the person when the person was a child. 28

Subsection (2)(a) provides a non-exhaustive list of relevant historical legislation under which an order of the kind described in subsection (1) could have been made. These Acts include-- (a) the Neglected and Criminal Children's Act 1864; (b) an Act to provide for the Protection and Management of Aboriginal Natives of Victoria (no. CCCXLIX (349) also known as the Aborigines Protection Act 1869; (c) the Children's Court Act 1986; (d) the Children's Welfare Act 1928; (e) the Community Welfare Services Act 1970; (f) the Children and Young Persons Act 1989; (g) a prescribed Act. Subsection (2)(b) clarifies that a relevant historical care and protection order does not include an order, however expressed or described, for the care and protection of the person when the person was a child, if-- (a) the child was found guilty of a criminal offence by the court; and (b) the order was made as part of the sentence imposed by the court for that offence. In some circumstances, historical care and protection orders were made by a court when a child was found guilty of a criminal offence. The purpose of subsection (2)(b) is to exclude orders made as a result of a finding of guilt from the application of Part 1 of Chapter 7A. New section 592D--Application of this Part New section 592D clarifies the application of Part 1 of Chapter 7A. Due to the historical nature of relevant historical care and protection orders, it is necessary to make clear that the Part applies to the several children's courts that existed immediately before the commencement of section 8 of the Children and Young Persons Act 1989. 29

New section 592E--Effect of relevant historical care and protection order in relation to matters concerning convictions, findings of guilt or criminal history New section 592E sets out the legal effect of relevant historical care and protection orders after the commencement of these reforms. This section also clarifies how these orders are to be treated after the commencement of these reforms. Subsection (1) states that on and after the commencement of this section, the following have effect in relation to a relevant historical care and protection order. Subsection (2) confirms that a relevant historical care and protection order is not to be treated as a conviction or finding of guilt for any purpose. Subsection (3) provides that a question about a person's criminal history (including one put in a legal proceeding and required to be answered under oath) is to be taken not to refer to a relevant historical care and protection order in respect of the person. Subsection (4) confirms that a person is not required to disclose to any other person for any purpose (including when giving evidence under oath in a legal proceeding) information concerning a relevant historical care and protection order in respect of the person. Subsection (5) establishes that in the application of an Act, subordinate instrument or agreement-- (a) a reference to a conviction or a finding of guilt, however expressed, is to be taken not to refer to a relevant historical care and protection order in respect of the person; and (b) a reference to the person's character or fitness, however expressed, is not to be taken as allowing or requiring account to be taken of a relevant historical care and protection order in respect of the person. New section 592F--Effect of relevant historical care and protection order in relation to an appointment, post, status or privilege New section 592F sets out the effect of these amendments on relevant historical care and protection orders in relation to an appointment, post, status or privilege. The purpose of this 30

provision is to ensure that a person subject to a relevant historical care and protection order is not disadvantaged by that order after the commencement of these reforms. Subsection (1) provides that on and after the commencement of this section, a relevant historical care and protection order, or disclosure of the existence of, or information included in, a relevant historical care and protection order, in respect of a person, is not a proper ground for refusing the person any appointment, post, status or privilege; revoking any appointment, status or privilege held by the person; or dismissing the person from any post. Subsection (2) establishes that if, before the commencement of this section, a person referred to in subsection (1)-- (a) was refused any appointment, post, status or privilege; or (b) had any appointment, status or privilege revoked; or (c) was dismissed from any post-- the person may re-apply, at any time, for the appointment, post, status or privilege irrespective of any minimum waiting period that would otherwise be required. New section 592G--Obligations of responsible agencies, other than Victoria Police, in relation to the release of official records and secondary records New section 592G creates an obligation that a responsible agency, other than Victoria Police, must take all reasonable steps to ensure that an official record or a secondary record released by the responsible agency is accompanied with information that-- (a) addresses and corrects the apparent criminal nature of a relevant historical care and protection order; and (b) states that a relevant historical care and protection order is not a conviction or a finding of guilt. The purpose of this provision is for contextual information to be attached to official records or secondary records when released to prevent any misconception that relevant historical care and protection orders are criminal in nature. 31

New section 592H--Obligations of Victoria Police in relation to the release of official records and secondary records New section 592H creates an obligation that Victoria Police must take all reasonable steps to ensure that an official record or a secondary record released by Victoria Police pursuant to a request under the Freedom of Information Act 1982 is accompanied with information that-- (a) addresses and corrects the apparent criminal nature of a relevant historical care and protection order; and (b) states that a relevant historical care and protection order is not a conviction or a finding of guilt. The purpose of this provision is to ensure that official or secondary records that are released by Victoria Police pursuant to a freedom of information request are accompanied with contextual information that addresses and corrects the apparent criminal nature of these records. New section 592I--Destruction of official records and secondary records New section 592I inserts provisions relevant to the destruction of official records and secondary records. Subsection (1) confirms that, subject to subsection (2), this Part does not authorise the destruction by or on behalf of a responsible agency of an official record or a secondary record. Subsection (2) establishes that for the purpose of preventing a relevant historical care and protection order being recorded on a criminal record, Victoria Police may remove secondary records that are relevant historical care and protection orders from any Victoria Police database, whether computerised or not, that contains criminal records. The purpose of subsection (2) is to allow Victoria Police to remove relevant historical care and protection orders from its electronic database. New section 592J--No effect on entitlement to compensation or creation of entitlement to compensation New section 592J confirms that the amendments made by this Part are not intended to alter or affect an existing entitlement to compensation or create an entitlement to compensation arising 32

from the circumstances in which a relevant historical care and protection order was made or carried out or the existence of a relevant historical care and protection order. Part 7--Repeal of amending Act Clause 36 provides for the automatic repeal of this amending Act on 4 November 2020. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 33

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