Hon Jill Hennessy MP - Law Institute of Victoria

.14, Hon Jill Hennessy MP
                  Attorney-General                                              Level 26, 121 Exhibition Street
                  Minister for Workplace Safety                                 Melbourne Victoria 3000

                                                                                OX: 210098

                                                                                Our ref:   20076029

Mr Sam Pandya
President
Law Institute of Victoria
By email: president@liv.asn.au

Dear Mr      ndya

Thank you for your letterof 23 July 2020 regarding the impact of COVID-19 on the Victorian
Legal System.
The Government is conscious that the sunset date for the temporary measures in the
COVID-19 Omnibus (Emergency Measures) Act 2020 (the COVID Act) is approaching. The
potential need for these temporary measures to remain in force beyond 25 October 2020 is
currently under consideration. I thank you sincerely for your feedback on the operation of
these temporary measures and confirm that my department is considering the issues raised
by the Law Institute of Victoria.

The Government will provide further updates to legal industry stakeholders as soon as it is in
a position to confirm these next steps. In this letter, I provide interim responses and further
informationregarding several of the key issues raised in your letter.

COVID-19 and the Victorian Legal System
It is recognised that the lockdown measures may be challenging for vulnerable Victorians,
including those with disabilities, mental illness, dependency on drugs and alcohol or at risk of
family violence, as well as Aboriginal people and culturally and linguistically diverse
communities. The Government is working to ensure the continued provision of vital services
to vulnerable and disadvantaged Victorians. Further informationto support the continued
delivery of essential community services can be found at:
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The lockdown measures have tried to make specific allowance where possible for vulnerable
people (for example, those at risk of family violence). People with legal issues are
encouraged to contact Victoria Legal Aid's Legal Helpline on 1300 792 387, available 9am to
5pm Mondayto Friday. Legal informationis also available at:
                                                         which is supported with webchat.
www.legalaid.vic.gqy...au(ge_t„l.e.galser.yjG9*?.Q.

Family Law Jurisdiction —Including Children's Court

There is merit in the proposal to make subpoenaed materials available electronicallyand it
will be explored further, noting there are funding and operational considerations for courts to
have to make all material available electronically.

Criminal Law Section
As you would be aware, the Supreme Court of Victoria and the County Court of Victoria (the
courts) determined not to returnto criminal jury trials on 20 July 2020, as originally planned.
The process to recommence jury trials has been undertaken with careful consideration of the
public health advice and in consultationwith health professionals, the legal profession and
others involved with criminal trials. The courts will continue to prioritise the safety and
wellbeing of all court users when considering the future resumption of jury trials.

Juries are fundamental to the fair and effective administration of Victoria's justice
system, however, as you note, the COVID Act has allowed the courts to conduct trials by
judge alone for indictable charges where the accused has given consent informedby legal
advice and the court considers it is in the interests of justice to do so. This provision has
given parties and the courts an additional method for resolving criminal matters while jury
trials are suspended.

\Mile operationalarrangements such as the use of the Online Magistrates' Court are matters
for the Magistrates' Court of Victoria, Government supports the ongoing development of the
program, and sees its potentialfor long-termintegrationas a means of dealing with backlog
and improving the accessibility of the justice system. Since this letterwas written,the Chief
Magistrate has issued a practice direction (2020/20) that cements the Online Magistrates'
Court as a cornerstone of the Magistrates' Court's response to the Coronavirus pandemic.

Lhile these matters are operational issues for the courts, I note the LIV's concerns and
suggestion on the use of the WebEx platform being restricted to uncontested matters and the
need to 'opt in' to remotehearings. Government is committedto a fair and accessible justice
system, and during these challenging times Government is continuing to explore a range of
measures that ensures the system continues to operate safely during the Stage 3 and 4
restrictionswhile maintaining a fair and accessible system.

Diversion Programs
The Government is mindfulof the need to invest in programs and services, and reflect upon
law reform opportunities to divert non-violent offenders that are not a risk to the community
from the criminal justice system. However, several of your suggestions are longer term in
nature and are more appropriately considered outside of the process relating to measures in
the COVID Act.

CISP Funding
The Government supports the LIV's position on the benefits and effectiveness of CISP and
other programs while an accused person is on bail. CISP has shown to be successful in the
Magistrates' Court and the Government has provided $6.0 million of funding to extend CISP

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to the County Court through an 18-month pilot as part of the 2019-20 State Budget. This will
help to address criminal justice and prison system pressures by improving the ability of
eligible accused persons to obtain bail and access services that reduce the likelihoodthat
they will reoffend.

ARC List
The Assessment and Referral Court (ARC) is continuing to operate remotely during Stage 3
and 4 restrictions. The ARC is hearing urgent and prioritymatters through the Magistrates'
Court of Victoria Online Magistrates' Court, leveraging WebEx and telephone solutions. An
exception to this is where a Magistrate determines the circumstances unsuitable for a remote
hearing (e.g. where an order is cancelled, and a participantis to be placed into custody). The
Magistrates' Court of Victoria will aim to gradually resume face-to-face hearings and services
followingthe end of Stage 3 and Stage 4 restrictions.

Committal Hearings
The Victorian Government asked the Victorian Law Reform Commission (the Commission) to
consider whether Victoria should maintain, abolish, replace or reform the present committal
system. The Commission delivered its reportto the Attomey-General on 31 March 2020. The
Government is considering the report and will consult with relevant stakeholders, including
the LIV, on any proposed reforms, to ensure that reforms are fair, workable and effective.

Residential Tenancy Matters
The Government agrees that expanding the use of remote hearings at VCAT generally will
bring significant accessibility benefits, and is supporting the Tribunal in expanding this
capacity and capability. In April 2020, $5.2 millionwas provided to bring the Planning and
Environment List online, with VCAT also being asked to use this project to consider how
these upgrades could be generalised to other types of matters.

From 13 May 2020, tenants and landlords who have a rental dispute must get a referral to
Consumer Affairs Victoria (CAV) before their dispute can be considered at VCAT. DJCS is
working closely with VCAT to ensure an integrated process through CAV's front door
residentialtenancy service, enabling vulnerable Victorians to receive timely access to justice
during the eviction moratoriumperiod. Following implementationof a streamlined process,
CAV is now referring eviction matters (and other matters not suitable for resolution by CAV)
to VCAT within one business day. VCAT is continuing to hear residential tenancy matters
remotely where possible, ensuring that tenancy disputes involving vulnerable Victorians can
be resolved quickly.

Since 18 May 2020, VCAT has been conducting all hearings remotelywhere possible,
leveraging telephone and videoconferencing solutions. VCAT is prioritising matters in the
Planning and Environment, Guardianship and Residential Tenancies Lists. This has been
enabled through legislative changes and additional funding, including Government's
investment in April 2020 to bring more VCAT matters online. Matters that are unable to
proceed remotely are being relisted at a later date.

V CAT is triaging matters listed on or after 18 May 2020 and actively contacting parties to
advise accordingly. Matters appropriate to be decided on the papers will be determined in
that way, and mediations are taking place remotely.
Residential tenancy moratorium
I note that the expiration of temporary measures under Part of 16 of the Residential
Tenancies Act 1997 and the Residential Tenancies (COVID-19 Emergency Measures)
Regulations 2020 is an area of concem for LIV and its members. Return to Stage 3
restrictions in Victoria, and now Stage 4 restrictions across Melbourne, mean that many
tenants and landlords continue to find themselves in a difficult and uncertain financial
position. Accordingly, the Government has announced an intention to extend (among other
things) the moratorium on evictions, rent relief for eligible tenants and suspension of rental
increases until 28 March 2021.

AVI-

While court operations are a matter for the courts, the Govemment is working closely with
the jurisdictions to support them in managing their response to the pandemic. The
jurisdictions have implemented a variety of measures to protect the judiciary, staff and court
users, including by greatly increasing the use of AVL and remote hearing technologies.

Government is continuing to support the courts and VCAT in this transition, including through
providing additional procedural flexibility as part of the COVID Act and $5.2 million in funding
recently invested to bring more VCAT matters online. VCAT is currently conducting hearings
using via telephone and videoconference technology.

There has been a significant uptake of new technologies in the courts and VCAT, which is
allowing more matters to be heard online. The jurisdictions have been investigating and
piloting a variety of solutions to link between the jurisdictions, the personal devices of court
users, legal assistance providers and custodial and police facilities. Government will continue
to work with the courts and VCAT to identify opportunities for innovation and further
development in this space.

OperationalIssues withAVL
I understand the concerns of LIV members around insufficient or rigid time allocations for
AVL based hearings. Time allocations are based on a number of factors including availability
of AVL hardware in the courts and custodial facilities, and legal practitionerestimates of time
required.

The Government is exploring opportunitiesto streamline the current processes and ensure
that AVL matters are efficiently and effectively scheduled. In addition, the Government is
considering all options to ensure sufficient capacity exists across the system to have matters
heard remotely.

The Government is acutely aware of the impacts that Stage 3 and 4 restrictions have had on
people's access to justice, particularly in regional areas which were significantly impacted by
bushfires just prior to COVID-19. Necessary measures by the courts and VCAT to bring more
matters online have greatly increased demand for AVL and telephone hearing capability. The

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courts have been investigating and piloting a variety of solutions to link-in with people's
personal devices, legal assistance providersand various facilities, such as custodialfacilities
and police stations,

The Government is working closely with the courts and VCAT to support remote access for
those that do not have the necessary technology, including in regional Victoria, Various
options are currently being considered.

The courts, including the Magistrates' Court of Victoria, have implemented a variety of
measures to protectthe judiciary, staff and court users. These measures promote physical
distancing by eliminating the need for in-person attendance. To ensure that urgent matters
are dealt with, the Magistrates' Court of Victoria continues to prioritise matters including bail,
remand, warrants, family violence and personal safety intervention orders.

Similar to the other courts, the Magistrates' Court of Victoria is implementing measures to
progress through its backlog, including:

    • remote hearings facilitated by AVL and WebEx; and
    • new innovations, such as the Online Magistrates' Court to hear high-volume, non-
    remand matters remotely.

The Online Magistrates' Court became fully operational on 13 July 2020. The Online
Magistrates' Court is progressing a wide range of matters including pleas, sentencing
indications, various committals and applications, including personal safety interventionorder
and family violence applications. The Government is continuing to support the courts to
address their backlogs.

I commend the Law Institute of Victoria for its constructive work with the Government and the
relevant agencies to ensure that the legal profession and the justice system provide the
essential services.

Should you wish to discuss any of the matter further please contact Ms Anna Faithfull,
Deputy Secretary, Justice Policy and Data Reform at the department of Justice and
Community Safety by email at

Thank you for again taking the time to write to me about these matters, and I look forward to
continuing to engage with you on the impacts of the COVID-19 pandemic on the legal
profession.

Yo s sinc ely

         Hennessy
    r Y-General
   is   or Workp      e Safety
        / 2020