11 - parliament of victoria

Draft Orders submitted to the Governor in Council by the Honourable

the Attorney-General

COVID-19 Omnibus (Emergency Measures) Act 2020

Recommending to the Governor in Council, under section 4 of the COVID-19 Omnibus

{Emergency Measures) Act 2020, that the COVID-19 Omnibus (Emergency Measures) (Criminal

Proceedings and Other Matters) Regulations 2020, be made.

~-~ - -(Signature of Secretary) .......................................................................................... ..... .

Rebecca Falkingham, Secretary, Department of Justice and Community Safety

J /'l· 11 ap (Signature of Minister) .............

7 .......... ~~·~·~·i;;·~~~·~·~~·~; ..................................... .

For Executive Council

0 2 JUN 2020

• APPROVED BY THE

GOVERNOR IN COUNCIL

C'-~I. n. .............................. ....

Clerk of the Executive Council


COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters)

Regulations 2020

EXPLANATORY MEMORANDUM

Summary

• The COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters)

Regulations 2020 (the Proposed Regulations) would commence operation on the day they are

made.

• The Proposed Regulations would temporarily provide for certain changes to criminal and civil

processes in the courts and tribunals, as well as changes to bail processes, to facilitate the

ongoing operation of the civil and criminal justice systems, in compliance with the physical

distancing requirements set out by the Chief Health Officer.

• The Proposed Regulations will be impliedly revoked with the COVID-19 Omnibus (Emergency

Measures) Act 2020 is automatically repealed six months after that Act commenced (that Act

commenced on 25 April 2020.

Recommendation

1. It is recommended to the Governor in Council that the COVID-19 Omnibus (Emergency

Measures) (Criminal Proceedings and Other Matters) Regulations 2020 (the Proposed

Regulations) be made.

Background to proposed Regulations and their effect

2. The COVID-19 Omnibus (Emergency Measures) Act 2020 (the Act) commenced on 25 April 2020.

The purpose of the new Act is to temporarily amend certain Acts, and to temporarily empower

the making of regulations, to modify the application of cerF~l,!!¥ml~:d'.al:!~!.Jg,,~~~~~;,'

for the purpose of responding to the COVID-19 pandemic.

NOTED BY THE GOVERNOR IN COUNCIL

D 2- JUN 2020 ERK OF THE EXECUTIVE COUNCIL

3. The Proposed Regulations would commence on 2 June 2020. The Proposed Regulations will be

impliedly revoked when Part 2.1 of the Act is repealed on the day that is six months after its

commencement (section 11 of the Act).

4. The Proposed Regulations will modify the application of:

• The Bail Act 1977 to:

o allow accused persons to enter into an undertaking for bail by electronic

signature, or by audio or audio-visual link; and

o allow a surety for bail to sign an undertaking by electronic signature and make an

affidavit for justification using audio or audio-visual link and electronic signature.

• The Criminal Procedure Act 2009 to:

o extend specific timeframes so that proceedings can continue while complying with

social distancing requirements;

o ensure that the Director of Public Prosecutions can discontinue a prosecution

without physically attending court; and

o provide courts with increased flexibility to deal with pre-trial issues on the basis of

written submissions in appropriate cases.

• The Guardianship and Administration Act 2019 to extend the time for commencing

certain proceedings in VCAT from 30 days to 45 business days.

• The Interpretation of Legislation Act 1984 to ensure that certain requirements in

legislation or subordinate instruments for a responsible Minister to make a document

available for inspection by the public can be met by placing the document on a

government website without charge.

• The Juries Act 2000 to enable a jury pool to attend jury service remotely at first instance

and to limit the physical movement of jury panels in the court room.

• The Limitation of Actions Act 1958 and Wrongs Act 1958 to suspend the calculation of

time in relation to limitation periods for commencing civil actions and arbitrations.

• The Major Crime (Investigation Powers) Act 2 4 regardin . of

witness summons.

• The Magistrates' Court Act 1989 to: NOTED

BY THE GOVERNOR IN COUNCIL

01 JUN 2020 . r:;.LERK OF THE EXECUTIVE COUNCIL

o remove the obligation for a witness to attend court if a criminal proceeding is

adjourned prior to the date and time specified in the summons;

o extend the timeframe for applicants to request a statement of the reasons for

making an award; and

o provide the Magistrates' Court with flexibility to determine issues in a civil

proceeding on the basis of written submissions.

• The Victorian Civil and Administrative Tribunal Act 1998 to:

o provide the Victorian Civil and Administrative Tribunal (VCAT) with flexibility to

admit an unsworn affidavit;

o allow evidence or documents specified in a witness summons to be provided

electronically;

o allow persons to appear before VCAT by audio visual link or audio link;

o allow VCAT to conduct civil proceedings on the basis of documents; and

o modify timeframes for hearing applications under the Disability Act 2006 and

Residential Tenancies Act 1997.

5. The modifications contained in the Proposed Regulations are designed to protect life, while also

facilitating the ongoing operation of critical justice system processes. The Proposed Regulations

will provide the flexibility the justice system needs to continue to operate, without compromising

public health and wellbeing. The Proposed Regulations will help the justice system, including the

courts and VCAT, to operate in a way that is consistent with current public health advice to

practice social distancing and to minimise face-to-face interactions.

6. For certain proceedings, the Proposed Regulations will extend certain statutory timeframes.

Doing this will give the courts and VCAT more flexibility in how they manage their lists, in

circumstances where very few matters might be able to proceed as they ordinarily would while

physical distancing requirements are in place. While the ability to provide a swift resolution to

these matters is impacted, the extension of time may also enable people to overcome the

hurdles presented by the state of emergency to access justice.

7. The Proposed Regulations will also suspend certain statutor timeframes

liabilities that would have lapsed during the COVID-19 pan en'lic will n

NOTED BYTHE GOVERNOR IN COUNCIL

0 2 JUN 2020

1E1'K OF THE EXECUTIVE COUNCIL

t

g

the disruptions caused by the COVID-19 pandemic. While the principle of finality is important,

the suspension is time limited and commensurate to the response to the COVID-19 pandemic.

8. The Proposed Regulations contain a number of safeguards. For example, for criminal

proceedings, and civil proceedings in the Magistrates' Court, certain matters will only be able to

be dealt with 'on the papers' if the court determines that it is in the interests of justice to do so.

The Proposed Regulations also include several matters that the court will need to take into

account in making this assessment. Further, for proceedings at VCAT, matters will only be able to

be dealt with 'on the papers' if the parties do not object to this approach, thereby giving parties

the opportunity to have their matter heard in person if they so desire. These safeguards ensure

that parties' rights to a fair hearing are maintained, while enabling the courts and VCAT to

continue operating in a manner that is consistent with public health advice.

Authorising Legislation

9. Under section 4 of the Act, the Governor in Council may, on the recommendation of the

Attorney-General make temporary regulations that disapply, or modify the application of:

• a Justice Act provision1

• a provision of a subordinate instrument made under a Justice Act provision

• a relevant applied law or a subordinate instrument made under a relevant applied law

that provides for or regulates certain matters listed at section 4(1)(a)-(p) of the Act.

10. Relevant to the Proposed Regulations, the matters that the te nl'l'"'"''!M't'7"ffffl'f1~'fffl'ft"",m'!!""""'l!r•.!"""'..__

include:

• arrangements for or with respect to any proceeding in a

trial proceeding

• the conduct of a proceeding in a court or tribunal

:.1. ding a pre-NuTED

ev THE GOVE"-NOR IN COUNCIL

0 ?_ JUN 2120 (;LERK OF THE EXECUTIVE COUNCIL

1 A Justice Act provision means a provision of an Act (other than the Charter of Human Rights and Responsibilities) that is a provision administered either solely or jointly administered with another Minister by the Attorney-General, the Minister for Corrections, the Minister for Police and Emergency Services, the Minister for Victim Support, or the Minister for Youth Justice (s 3 of the Act) .

• a specific date or time frame that must be met NOTED IYTHE GOVERNO" IN COUNCIL

• the process applying to applications for bail 0 2.. JUN 2020 'LERK OF THE EXECUTIVE COUNCIL

• the method or processes by which conditions of bail are monitored or enforced

• the process by which a document is given or issued

• the service of documents

• the lodgement, submission or filing, or inspection, of documents.

11. The Attorney-General may only recommend the making of temporary regulations if she considers

that they are consistent with any relevant advice given by the Chief Health Officer to the Minister

administering the Public Health and Wellbeing Act 2008 in relation to managing or responding

to the COVID-19 pandemic, or relevant directions under Part 10 of the Public Health and

Wellbeing Act 2008 in relation to the COVID-19 pandemic (section 4(3)(a)(i) and (ii) of the Act).

12. The Attorney-General must also consider that the regulations are reasonable in managing or

responding to the COVID-19 pandemic: to protect the health, safety or welfare of persons in

relation to the administration of justice or law; for the effective or efficient administration of

justice or law; or in relation to the conduct or carrying out of a proceeding, inquiry or

investigation by an integrity entity (section 4(3)(b)(i)(ii) and (iii) of the Act).

13. Attached is a document from the Attorney-General stating that in her opinion the proposed

Regulations are consistent with relevant directions under Part 10 of the Public Health and

Wellbeing Act 2008 in relation to the COVID-19 pandemic and are reasonable in managing or

responding to the COVID-19 pandemic to protect the health, safety or welfare of persons in

relation to the administration of justice or law.

14. Under section 8 of the Act, if the Attorney-General proposes to recommend the making of a

temporary regulation that provides for or regulates any matter under section 4(1)(a)-(p) of the

Act that relates to the conduct of proceedings, including pre-trial proceedings, in a court or

tribunal, the Attorney-General must not make the recommendation without the consent of the

relevant head of the court or tribunal.

15. Attached are letters of consent from the relevant heads of jurisdiction which agree to the

Attorney-General recommending the making of the Proposed Regulations.

Certificates provided in accordance with the Subordinate Legislation Act 1994

16. Section 6 of the Act disapplies certain requirements under the Subordinate Legislation Act 1994.

Therefore, any statutory rule made under section 4 of the Act does not require consultation or

the preparation of a regulatory impact statement, which are normally required under sections 6

and 7 of the Subordinate Legislation Act 1994, respectively. As such, the certificates, or

exemption certificates, associated with sections 6 and 7 of the Subordinate Legislation Act 1994

that are normally required for statutory rules have not been prepared.

17. However, a Human Rights Certificate under section 12A of the Subordinate Legislation Act 1994,

advising that the Proposed Regulations do not limit any human rights in the Charter of Human

Rights and Responsibilities Act 2006, is still required. Such a certificate has been prepared for the

Proposed Regulations in accordance with the Subordinate Legislation Act 1994 and is attached.

18. While the Proposed Regulations may impact certain rights, any limitations are necessary,

justified and proportionate to respond to the COVID-19 pandemic, by facilitating social distancing

and minimising face-to-face interactions, which ultimately protects the right to life (section 9 of

the Charter).

National Competition Policy

19. In accordance with the guidelines contained in the Victorian Guide to Regulation (published by

the Office of the Commissioner for Better Regulation), the Proposed Regulations are not required

to be tested under competition policy assessment requirements as they are exempt from the

Regulatory Impact Statement process.

Gazettal

20. The Proposed Regulations would be published in a Special Gazette on the day of their making.

Contact Name: Scott Fitzpatrick, Director, Community Justice

Telephone Number: 0401 650 190


0 2, JUN 2020

EffK OF THE EXECUTIVE COUNCIL

Hon Jill Hennessy MP

Attorney-General Minister for Workplace Safety

Level 26, 121 Exhibition Street Melbourne Victoria 3000 Telephone: (03) 8684 1111 DX: 210098



Regulations 2020

RECOMMENDATION

It is recommended to the Governor in Council that, under section 4 of the COVID-19

Omnibus (Emergency Measures) Act 2020 (the Act}, the COVID-19 Omnibus (Emergency Measures} (Criminal Proceedings and Other Matters) Regulations 2020 be made.

Advice from the Chief Parliamentary Counsel is submitted as required by section 13 of the

Subordinate Legislation Act 1994.

Under section 6 of the Act, sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to the making of regulations under section 4 of the Act. No regulatory impact statement or certificate of consultation in respect of these Regulations have been prepared.

Pursuant to section 4(3) of the Act, I have attached a document stating that, in my opinion, these Regulations are consistent with any relevant directions given or made under the Public

Health and Wellbeing Act 2008 in relation to the COVID-19 pandemic, and are reasonable in managing or responding to the COVID-19 pandemic to protect the health, safety or welfare of persons in relation to the administration of justice or law.

Attached are letters of consent from the relevant heads of jurisdiction, as required by section 8 of the Act.

I have issued a human rights certificate under section 12A of the Subordinate Legislation Act 1994.

Dated: 1 June 2020

~//1✓-Ho Jill Hennessy MP APPROVED

iY THE GOVERNO" IN COUNCIL

_ 0 1.. -!UN 12020 C.G{)..(s-~

CLERK OF THE EXECUTIVE COUNCIL



Subordinate Legislation Act 1994

HUMAN RIGHTS CERTIFICATE

(Section 12A)

Level 26, 121 Exhibition Street Melbourne Victoria 3000

NOTED iY THE GOVERNOR IN COUNCIL

0 ?_. JUN 2020 'LE~K OF THE EXECUTIVE COUNCIL


Regulations 2020

I, Hon Jill Hennessy MP, Attorney-General, and Minister responsible for making recommendations to the Governor in Council for the making of regulations under section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020 certify that, in my opinion:

the proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 (the Proposed Regulations) are compatible with human rights as

set out in the Charter of Human Rights and Responsibilities Act 2006.

Overview

The Proposed Regulations temporarily modify the application of various provisions of the Bail Act 1977, Criminal Procedure Act 2009, Guardianship and Administration Act 2019,

Interpretation of Legislation Act 1984, Juries Act 2000, Limitation of Actions Act 1958,

Magistrates' Court Act 1989, Major Crimes (Investigative Powers) Act 2004 and Victorian

Civil and Administrative Tribunal Act 1998.

The objective of the Proposed Regulations is to temporarily provide for certain changes to criminal and civil processes in the courts and tribunals, as well as changes to bail processes, to facilitate the ongoing operation of the civil and criminal justice systems, in compliance with the physical distancing requirements set out by the Chief Health Officer.

Human Rights Issues

These temporary amendments to requirements relating to criminal and civil proceedings in Victorian courts and tribunals engage the following rights under the Charter of Human

Rights and Responsibilities Act 2006 (the Charter): life (section 9); protection of families and children (section 17); take part in public life {section 18); property rights {section 20}; liberty and security of person (section 21); children in the criminal process (section 23); fair hearing (section 24); and rights in criminal proceedings (section 25).

Hon Jill Hennessy M


NOTED !Y THE GOVERNO" IN COIJHjtll6, 121 hibilion Street

Melbourne Vic ria 3000 0 2- JUN 202(telephone: (0 ) 8684 1111

DX: 210098 LEflfK OF THE EXECUTIVE COUNCIL

While some of these rights may be limited by the Proposed Regulations, any limitations are reasonable, and demonstrably justified, given that the purpose of any limitation is to respond to the extraordinary challenges of COVID-19. These changes are intended to ensure that criminal and civil proceedings, including in relation to bail, are consistent with any relevant directions or advice given or made under the Public Health and Wellbeing Act 2008

in relation to the COVID-19 pandemic. Given that the Proposed Regulations have this purpose, they are designed to promote the right to life.

Current public health advice is to practice physical distancing and to minimise face-to-face interactions to reduce the risk of transmission of this potentially fatal virus and ensure that health services are not overwhelmed.

The Proposed Regulations will help the courts and tribunals to operate in a way that is consistent with current public health advice to practice physical distancing and to minimise face-to-face interactions. They will also provide the courts and tribunals with the flexibility to meet statutory timeframes during the COVID-19 pandemic, without compromising public health and wellbeing.

The Proposed Regulations will also facilitate the ongoing operation of jury and bail processes in a manner that complies with physical distancing requirements, and stay at home directions, through the use of audio and audio visual technology to conduct certain bail and jury empanelment processes. By suspending civil limitation periods, the Proposed Regulations will also ensure that people are not forced to choose between meeting a statutory timeframe and complying with public health directions.

By doing so, the Proposed Regulations protect public health and wellbeing. These measures will ultimately promote the right to life in section 9 of the Charter. They also promote the right to take part in public life in section 18 of the Charter, by enabling people to be granted bail, or participate as a jury member, in a manner that is consistent with current public health advice.

For particular proceedings, the Proposed Regulations will extend certain statutory timeframes. For example, the Proposed Regulations will modify the Criminal Procedure Act 2009 to give parties more time to discuss how the matter should be dealt with, without

requiring parties to attend court. The court must be satisfied it is in the interests of justice to adjourn the matter. The Proposed Regulations will also allow courts more flexibility in the commencement of sexual offence trials, in circumstances where very few trials are able to run while social distancing measures are in place. The court will still be required to consider that extension is in the interests of justice.

Hon Jill Hennessy


NOTED l!Y THE GOVEIUJO~ IN C

OUtffij~ 26, 1 Exhibition Street O 2._ JUN 2020 Melbourne ictoria 3000

Telephone: (03) 8684 1111

ElfK OF THE EXEC DX: 21009 UT/VE CIUNCIL

The Proposed Regulations will also modify the Criminal Procedure Act 2009 to enable certain matters to be dealt with 'on the papers'. It is well recognised at common law that a hearing based on written submissions can be fair, if parties can fully present their case and respond to adverse material. What is required for a fair hearing depends on the circumstances of a case, which the court will be required to consider under the requirements embedded in the

Proposed Regulations.

While the Proposed Regulations remove the requirement for the parties to agree, they will require the courts to determine issues on written submissions only if it is in the interests of justice to do so. The Proposed Regulations specifically require the court to have regard to an accused's right to a fair hearing and whether the accused has consented when considering whether it is in the interests of justice to determine an issue on written submissions. This provides a safeguard to ensure the right to a fair hearing is not unduly limited and the extent to which it is proportionate and justified to protect the community during the COVID-19

pandemic.

The Proposed Regulations will also suspend certain statutory timeframes for civil matters, thereby promoting the right to a fair hearing, as liabilities that would have lapsed during the COVID-19 pandemic will now continue. While suspending statutory timeframes may mean that there is a delay in giving effect to property rights, and the right to protection of families and children, suspending timeframes for the resolution of civil matters is necessary due to

the disruptions experienced as a result of the COVID-19 pandemic. While avoiding delay and the principle of finality are important, the suspension is time limited and commensurate to the response to the COVID-19 pandemic.

Furthermore, the impact on these rights is likely to be minimal due to the safeguards that have been included in the Proposed Regulations. For example, for criminal proceedings, and civil proceedings in the Magistrates' Court, certain matters will only be able to be dealt with 'on the papers' if the court determines that it is in the interests of justice to do so. The Proposed Regulations also include a number of matters that the court will need to take into account in making this assessment. For proceedings at VCAT, matters will only be able to be dealt with 'on the papers' if the parties do not object to this approach, thereby giving parties the opportunity to have their matter heard in person if they so desire. These safeguards ensure that parties' rights to a fair hearing are maintained, while enabling the courts and

VCAT to continue operating in a manner that is consistent with public health advice.

The right to a fair hearing implicitly requires a reasonably expeditious hearing, and for criminal proceedings the rights to liberty and security of the person, expressly include a right to be tried without unreasonable delay. However, extending these statutory timeframes will




give courts more flexibility in how they manage their lists, in circumstances where very few matters might be able to proceed as they ordinarily would while physical distancing requirements are in place. Additionally, while the ability to provide a swift resolution to these matters is impacted, the extension of time may also enable people to overcome the hurdles presented by the State of Emergency to access justice.

The Proposed Regulations will ensure that any requirement for a document to be made available for public inspection can be met by placing the document on a government website without charge. Making documents available for public inspection without charge ensures that members of the public are aware of the obligations that apply to them. This is foundational to the right to fair hearing. In most cases, this will enable individuals to access documents remotely and their right to fair hearing will not be affected. However, the right to fair hearing of those Victorians who are unable or have difficulty in accessing the internet may be limited, particularly given that libraries and community hubs are temporarily closed. Any such limitation is reasonable and demonstrably justified, given that the purpose is to respond to the challenges of COVID-19, and to comply with current public health advice.

Further, the publication of materials on government websites without charge promotes the right to life, as it ensures that the public does not need to attend government buildings to physically inspect documents. Documents will be able to be inspected in a way that is consistent with current public health advice to practice social distancing and to minimise face-to-face interactions. This will reduce the risk of transmission of COVID-19 and ensure that health services are not overwhelmed.

Dated: lJune 2020

-~,1/J{-, Ho9 Jill Hennessy MP A it'orney-General

NOTED iY THE GOVERNOR IN COUNCIL

0 2- JUN 2020

LE~K OF THE EXECUTIVE COUNCIL



Level 26, 121 Exhibition Street Melbourne Victoria 3000 Telephone: (03) 8684 1111 o ·

COVID-19 Omnibus (Emergency Measures} Act 20

ATTORNEY-GENERAL'S OPINION FOR RECOMMENDING THE MAKI

REGULATIONS

(Section 4)

NOTED OF t'frJl~~A'm'lR IN COUNCIL

0 1. JUN 2020 LE1'K OF THE EXECUTIVE COUNCIL

COVID-19 Omnibus (Emergency Measures} (Criminal Proceedings and Other Matters)

Regulations 2020

I, Hon Jill Hennessy MP, Attorney-General, and Minister responsible for making recommendations to the Governor in Council for the making of regulations under section 4 of the COVID-19 Omnibus (Emergency Measures} Act 2020 (the Act) am of the opinion that

the proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 (the Proposed Regulations) are consistent with any relevant directions made by an authorised officer under Part 10 of the Public Health and Wellbeing

Act 2008 in relation to the COVID-19 pandemic {section 4{3){a){ii) of the Act).

I am also of the opinion that the Proposed Regulations are reasonable in managing or responding to the COVID-19 pandemic to protect the health, safety or welfare of persons in relation to the administration of justice or law {section 4(3){b){i) of the Act). They are also

reasonable in managing or responding to the COVID-19 pandemic for the effective or efficient administration of justice or law {section 4{3){b){ii) of the Act).

I base this opinion on the following:

Requirements of section 4(3}(a}(ii} of the Act

Stay at Home Direction {No 6) (the Direction) made under section 200 of the Public Health

and Wellbeing Act 2008, dated 11 May 2020, requires everyone in Victoria to limit their interactions with others by restricting the circumstances in which they may leave the premises where they ordinarily reside and placing restrictions on gatherings. Clause 6 {necessary goods or services) and clause 8 {work and education) of the Direction limits the reasons for leaving a premise. Clause 6 allows a person to leave a premise to obtain a necessary good or service from certain bodies. While clause 8 allows a person to leave their home for work, this is only if it is not reasonably practical for the person to work from home. Under clause 11 (Restrictions on gatherings) indoor gatherings are limited to five persons

Hon Jill Hennes y MP

Attorney-General Lev 26, 121 Exhibition Street NOTED Mel urne Victoria 3000 Minister for Workplace Safety

l!IY THE GOVE"NOR IN COUNCIL Tel hone: (03) 8684 1111

0 2- JUN 2020 DX: 10098

ERK OF THE EXECUTIVE COUNCIL

(excluding those who live at the premises) and outdoor gatherings are limited to ten persons

unless one of the Direction's reasons, such as work or education, apply.

The Proposed Regulations are consistent with the Direction, as they will help to ensure that people limit their interactions with others, while also facilitating the administration of justice through the continuation of essential criminal and civil processes in the courts and Victorian

Civil and Administrative Tribunal (VCAT).

Requirements of section 4(3)(b)(i) of the Act

Section 4(3)(b)(i) of the Act requires any regulations to be reasonable, in managing or responding to the COVID-19 pandemic, to protect the health, safety or welfare of persons in

relation to the administration of justice or law.

In general, the Proposed Regulations are reasonable in managing or responding to the COVID-19 pandemic to protect the health, safety or welfare of persons in relation to the administration of justice or law as they encourage people to limit their physical interaction with others and limit activities outside of their residential premises, which are key COVID-19 transmission reduction measures. Reducing the need to for a person to leave their premises

will help to protect their safety and the welfare of the community while ensuring the continuation of the administration of justice through the continued operation of the courts and VCAT, and the ongoing maintenance of processes in relation to bail.

Specifically, facilitating the use of audio and audio visual technology for the purposes of jury and bail processes will enable these critical processes to continue, without jeopardising the health and safety of potential jurors, or accused persons who enter into bail undertakings. This will facilitate the reintroduction of jury trials, which were suspended as a result of the COVID-19 pandemic. It will also ensure that bail processes can proceed in a manner that

complies with physical distancing and stay at home requirements. As such, the Proposed Regulations are a reasonable measure to protect the health, safety or welfare of people in relation to the administration of justice or law.

Further, the Proposed Regulations enable the Director of Public Prosecutions to discontinue criminal proceedings without needing to attend court, which is what is currently required . Providing this flexibility in the way in which criminal proceedings may be discontinued, the Proposed Regulations provide a reasonable measure to protect the health, safety or welfare of people in relation to the administration of justice or law.

In addition, by suspending civil limitation periods, the Proposed Regulations will also ensure that people are not forced to choose between meeting a statutory timeframe and complying

Hon Jill Henn

Attorney-General Minister for Workplace Sa ty NOTED

BY THE GOVERN01' IN COUNCIL

0 2 JUN 2020


. ElfK OF THE EXECUTIVE COUNCIL

with public health directions. This 'is a further way in w Ic oposed Regulations will reduce the need for a person to leave their premises for any reason. While suspending statutory timeframes may mean that there is a delay in the finalisation of proceedings, suspending timeframes for the resolution of civil matters is necessary due to the disruptions experienced as a result of the COVID-19 pandemic. While avoiding delay and the principle of finality are important, the suspension is time limited and commensurate to the response to the COVID-19 pandemic. As such, the suspension of civil limitation periods is reasonable in order to protect the health, safety or welfare of persons in relation to the administration of

justice or law.

Further, the publication of materials on government websites without charge will ensure that the public does not need to attend government buildings to physically inspect documents. Documents will be able to be inspected in a way that is consistent with current public health advice to practice social distancing and to minimise face-to-face interactions. This will reduce the risk of transmission of COVID-19 and ensure that health services are not overwhelmed. While this may adversely impact those people who are unable or have difficulty in accessing the internet, on balance, the publication of materials on government websites free of charge is a reasonable measure to manage or respond to the COVID-19 pandemic, and protect the health, safety or welfare of persons in relation to the administration of justice or law.

Requirements of section 4(3)(b)(ii) of the Act

Section 4(3)(b)(ii) of the Act requires any regulations to be reasonable, in managing or responding to the COVID-19 pandemic, for the effective or efficient administration of justice or law. The Proposed Regulations are reasonable in managing or responding to the COVID-19 pandemic for the effective or efficient administration of justice or law because they facilitate the ongoing operation of the courts and VCAT, including in relation to jury trials in criminal proceedings, in circumstances where this may not be possible without the modifications made by the Proposed Regulations. They also facilitate the ongoing maintenance of processes in relation to bail, in circumstances where these processes may not be able to be conducted in compliance with physical distancing requirements and stay at home directions without the modifications made by the Proposed Regulations.

In general, the Proposed Regulations will help the courts and tribunals to operate in a way that is consistent with current public health advice to practice physical distancing and to minimise face-to-face interactions. They will also provide the courts and tribunals with the flexibility to meet statutory timeframes during the COVID-19 pandemic, without compromising public health and wellbeing.

Hon Jill He nessy

Attorney-General NOTED Minister for Workplac SafetyliilY THE GOYE1'NOR IN COUNCIL

0 'L JUN 2020 ElfK OF THE EXECUTIVE COUNCIL


For particular proceedings, the Proposed Regulations will extend certain statutory timeframes in criminal and civil proceedings. For example, the Proposed Regulations will modify the Criminal Procedure Act 2009 to give parties more time to discuss how the matter should be dealt with, without requiring parties to attend court. The court must be satisfied it is in the interests of justice to adjourn the matter. The Proposed Regulations will also allow courts more flexibility in the commencement of sexual offence trials, in circumstances where very few trials are able to run while social distancing measures are in place. The court will still be required to consider that extension is in the interests of justice.

The Proposed Regulations will also modify the Criminal Procedure Act 2009 to enable certain matters to be dealt with 'on the papers' . It is well recognised at common law that a hearing based on written submissions can be fair, if parties can fully present their case and respond to adverse material. What is required for a fair hearing depends on the circumstances of a case, which the court will be required to consider under the requirements embedded in the Proposed Regulations.

While the Proposed Regulations remove the requirement for the parties to agree, they will require the courts to determine issues on written submissions only if it is in the interests of justice to do so. The Proposed Regulations specifically require the court to have regard to an accused's right to a fair hearing and whether the accused has consented when considering whether it is in the interests of justice to determine an issue on written submissions. This provides a safeguard to ensure the right to a fair hearing is not unduly limited and the extent to which it is proportionate and justified to protect the community during the COVID-19 pandemic.

The Proposed Regulations contain a number of safeguards to ensure that the modifications made are reasonable in the circumstances. For example, for criminal proceedings, and civil proceedings in the Magistrates' Court, certain matters will only be able to be dealt with 'on the papers' if the court determines that it is in the interests of justice to do so. The Proposed Regulations also include a number of matters that the court will need to take into account in making this assessment. For proceedings at VCAT, matters will only be able to be dealt with 'on the papers,. if the parties do not object to this approach, thereby giving parties the opportunity to have their matter heard in person if they so desire. These safeguards ensure that parties' rights to a fair hearing are maintained, while enabling the courts and VCAT to continue operating in a manner that is consistent with public health advice.

Together, the modifications made to civil and criminal processes by the Proposed Regulations are reasonable, in managing or responding to the COVID-19 pandemic, for the effective or efficient administration of justice or law. They will facilitate the continuation of




vital justice system processes, in circumstances where they otherwise might not be possible having regard to physical distancing requirements and stay at home advice. The safeguards put in place ensure that the modifications will only apply in the most appropriate circumstances, and after having regard to all relevant factors. --------~-~~-Dated: 1 June 2020

,~r J Ho,9 ]ill Hennessy MP

1>tforney-General

1! '1

NOTED iY THE GOVE~NOR IN COUNCIL

0 z__ JUN 2020




Her Excellency the Honourable Linda Dessau AC Governor of Victoria c/- Clerk of the Executive Council Level 3, 1 Treasury Place EAST MELBOURNE VIC 3002

Dear Governor

Level 26 , 121 Exhibition Street Melbourne Victoria 3000 Telephone: (03) 8684 1111 DX: 210098

Our ref: 20053523

I write to advise you that I remain of the opinion that the COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 (the Regulations), which you are considering making, are consistent with health directions and are reasonable in managing and responding to the COVID-19 pandemic.

For the Regulations to be made, section 4(3) of the COV/0-19 Omnibus (Emergency Measures) Act 2020 (the Act) requires that I consider the Regulations to be consistent with any relevant directions made under the Public Health and Wellbeing Act 2008 in relation to the COVID-19 pandemic, and reasonable in managing or responding to the COVID-19 pandemic to protect the health, safety or welfare of persons in relation to the administration of justice or law, or in ensuring the effective or efficient administration of justice or law.

As you are no doubt aware, the State of Emergency in Victoria has been extended and this has been accompanied by some changes to health directions. However, the health directions still direct the public to practice physical distancing and to minimise face-to-face interactions.

Therefore, I remain of the opinion that the Regulations are necessary to ensure that criminal and civil processes, including in relation to bail, are consistent with current health directions to practice physical distancing and to minimise face-to-face interactions. I consider that by doing so, the Regulations are reasonable in managing and responding to the COVI D-19 pandemic by protecting the health and welfare of the public and members of the legal profession, and in ensuring the effective or efficient administration of justice or law.

Yours sincerely

F.,t/ I-f'I./

on Jill ennessy MP Attorney-General Minister for Workplace Safety

1 / 6 / 2020


0 2 JUN 2020 ERK OF THE EXECUTIVE COUNCIL

·a· ___ , v,cTo\l.'"

29 May 2020

Hon Jill Hennessy MP Attorney-General Level 26 121 Exhibition Street Melbourne Vic 3000

Dear Attorney General

Consent to Regulations

NOTED

CHIEF JUSTICE'S CHAMBERS SUPREME COURT MELBOURNE 3000

!!Y THE GOVE~OR IN COUNCIL By email

0 2-- JUN 2020

E!fK OF THE EXECUTIVE COUNCIL

Thank you for your letter dated 28 May 2020 enclosing the proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020.

You have sought my consent to your making recommendation to the Governor for the making of these regulations pursuant to s 8 of the COVID-19 Omnibus (Emergency Measures) Act 2020.

That consent is required from a relevant head of jurisdiction where regulations are proposed to be made under s 4 of that Act that relate to the conduct of proceedings, including pre-trial proceedings, in a court or tribunal.

The proposed regulations include provisions meeting that description in relation to proceedings in the Supreme Court.

As Chief Justice of the Supreme Court of Victoria I provide consent to your making that recommendation in relation to those parts of the regulations that relate to the conduct of proceedings, including pre-trial proceedings, in the Supreme Court.

Yours sincerely

ANNE FERGUSON Chief Justice

Telephone: Facsimile:

29 May 2020

(03) 962 87792 (03) 9628 7793

The Honourable Jill Hennessy MP Attorney-General Level 26 121 Exhibition Street MELBOURNE VIC 300

MAGISTRATES' COURT Of VICTORIA

Her Honour Judge Lisa Hannan Chief Magistrate

Magistrates' Court of Victoria 233 William Street

MELBOURNE VIC 3000

GPO Box 882 MELBOURNE VIC 3000


0 'l JUN 2020 via email- [email protected]


Dear Attorney General,

RE: CONSENT TO REGULATIONS

Thank you for your letter of 29 May 2020 enclosing the proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020.

You have sought my consent to your making recommendation to the Governor for the making of these regulations pursuant to s 8 of the COV/0-19 Omnibus (Emergency Measures) Act 2020.


The proposed regulations include some provisions which would meet that description in relation to proceedings in the Magistrates' Court, and a number of others which fall outside that description.

As Chief Magistrate of the Magistrates' Court of Victoria I provide consent to your making that recommendation in relation to those parts of the regulations that relate to the conduct of proceedings in the Ma · tes' urt.

/

29 May 2020

The Hon. Jill Hennessy Attorney-General Level 26,121 Exhibition Street Melbourne, VIC 3000

Dear Attorney-General

NOTED

The Honourable Justice Peter Kidd Chief Judge of the County Court

County Court of Victoria 250 William Street

MELBOURNE VIC 3000 DX 290078 Melbourne

Telephone: (03) 8636 6420

BY THE GOVERNOR IN COUNCIL

0 'L- JUN 2020 ERK OF THE EXECUTIVE COUNCIL

COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 ·

Thank you for the opportunity to review and consider the proposed regulations, namely the COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020.

You have sought my consent to your making recommendation to the Governor for the making of these regulations pursuant to section 8 of the COV/0-19 Omnibus (Emergency Measures) Act 2020 ('the Act').

· That consent is required from a relevant head of jurisdiction where regulations are proposed to be made under section 4 of the Act that relate to the conduct of proceedings, including pretrial proceedings, in a court or tribunal. ·

The proposed regulations · include some provisions which would meet that description in relation to proceedings in the County Court, and a number of others which fall outside that description.

Pursuant to section 8(2) of the Act, in my capacity as Chief Judge of the County Court, I consent to the Attorney-General recommending the making of those parts of the regulations that relate to the conduct of proceedings in the County Court.

Yours sincerely

,--. Children's Court ••... of Victoria T: (+613) 8638 3300

F: (+613) 8601 6720 477 Litlle Lonsdale Street Melbourne VIC Australia 3000

PO Box 13292, Law Court:; VIC 8010 DX212561

(

29May 2020

The Honourable Jill Hennessy MP Attorney-General Level 26 121 Exhibition Street Melbourne VIC 3000

Via email

Dear Attorney-General,

Consent to Regulations

NOTED BY THE GOVE~NOR IN COUNCIL

0 1-. JUN 2020

EffK OF THE EXECUTIVE COUNCIL

Thank you for your letter dated 28 May 2020 enclosing the proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020.

You have sought my consent to your making recommendation to the Governor for the making of these regulations pursuant · to s 8 of the COVID-19 Omnibus (Emergency Measures) Act 2020.

As President of the Children's Court of Victoria I provide consent to your making that recommendation in relation to those parts of the regulations that relate to the conduct of proceedings in the Children's Court.

Yours sincerely

Judge Amanda Chambers President Children's Court of Victoria

V 28 May 2020

The Honourable Jill Hennessy MP Attorney-General Level 26, 121 Exhibition Street MELBOURNE VIC 3000

AT

Via email: [email protected]

Dear Attorney-General

vlctorian civil a, admln trative tribunr----=~;-~-----

NOTED BY TH£ GOVEfltNO/lt IN COUNCIL

O 'L JUN 2020

E~K OF THE EXECUTIVE COUNCIL

Proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 -Consent

Thank you for your letter of 28 May 2020 enclosing the proposed COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020.

You have sought .my consent to your making recommendation to the Governor for the making of these regulations pursuant to s 8 of the COVID-19 Omnibus (Emergency Measures) Act 2020.


The proposed regulations include some provisions which would meet that description in relation to proceedings in the Victorian Civil and Administrative Tribunal (Tribunal), and a number of others which fall outside that description.

As President of the Tribunal, I provide consent to your making that recommendation in relation to those parts of the regulations that relate to the conduct of proceedings, including pre-trial proceedings, in the Tribunal.

Yours faithfully,

Justice Michelle Quigl President

Victorian Civil and Administrative Tribun.il (VCAT) President's Chambers 55 King Street Melbourne VIC 3000 TRIM REF:BC/20/11213


Regulations 2020

S.R. No. lf-S-

TABLE OF PROVISIONS

Regulation Page

Part I-Preliminary 1

1 Objective 1 2 Authorising provision 2 3 Definitions 3 4 General 3

Part 2-Modification of application of provisions of Bail Act 1977 4

5 Capacity of child to enter into undertaking 6 Bail undertakings and sureties

Part 3--Modification of application of provisions of Criminal

4 4

Procedure Act 2009 13

7 Adjournment without appearance of parties 13 8 Power to extend or abridge time 13 9 Provision of material before first mention 13 10 Discontinuance by audio visuaJ link or filing notice with the

registrar 13

Part 4-Modification of application of provisions of Guardianship and Administration Act 2019 15

11 Extension for Guardianship hearings in the Victorian Civil and Administrative Tribunal I 5

Part 5-Modification of application of provisions of Interpretation of Legislation Act 1984 16

12 Meaning of available for inspection 16

Part 6-Modification of application of provisions of Juries Act2000 17

13 Summoning of jurors 17 14 Means of attendance for jury service 17 15 Selection of panels 17 16 Modified arrangements to stand aside a juror in criminal trials 17

20-064SR.S2-28/5/2020

Regulation Page

17 Modified arrangements to challenge peremptorily a juror in criminal trials 18

18 Directions to move 18 19 Persons not required to be physically present in same room 19

Part ?-Modification of application of provisions of Limitation of Actions Act 1958 and Wrongs Act 1958 20

20 Extension of civil limitation periods-Limitation of Actions Act 1958 20

21 Limitation period-Wrongs Act 1958 21

Part 8--Modification of application of provisions of Major Crime (Investigative Powers) Act 2004 22

22 Temporary measure relating to personal service of witness summons 22

Part 9--Modification of application of Acts relating to Victorian courts and tribunals 23

Division 1-Modification of application of provisions of Magistrates' Court Act 1989 23

23 Temporary measures relating to witness summons 23 24 Award 23 25 Temporary measures relating to the conduct of civil

proceedings 23

Division 2-Modification of application of provisions of Victorian Civil and Administrative Tribunal Act 1998 24

26 Temporary measures to provide for the conduct of hearings 24 27 Temporary measures relating to witness summons 24 28 Evidence-Allowing affidavits in proceedings 25 29 Commencement ofVCAT proceedings under the Disability

Act 2006 25 30 Commencement of V CAT hearing a proceeding under the

Residential Tenancies Act 1997 25

20-064SR.S2-28/5/2020 11

STATUTORY RULES 2020

S.R.No. ~s--COVJD-19 Omnibus (Emergency Measures) Act 2020


Regulations 2020

The Governor in Council, on the recommendation of the Attorney-General, makes the following Regulations:

Dated: 0 2 JUN 2020 Responsible Minister:

JILL HENNESSY Attorney-General

c .f;uA·<;~ Clerk of the Executive Council

Part 1-Preliminary 1 Objective

The objective of these Regulations is to modify the application of various provisions of various Justice Acts-

( a) to modify the witnessing, execution or signing of legal documents such as affidavits and undertakings under the Bail Act 1977; and

(b) to modify the conduct of proceedings under the Criminal Procedure Act 2009; and

20-064SR.S2-2S/5/2020

COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020

S.R.No.

Part I -Preliminary

( c) to modify the physical inspection of document requirements under section 32 of the Interpretation of Legislation Act 1984; and

( d) to modify the conduct of, or arrangements for, proceedings and requirements for the service of documents under the Juries Act 2000; and

( e) to extend the limitation periods for civil actions under the Limitation of Actions Act 1958 and the Wrongs Act 1958; and

(f) to modify the operation of section 17(1) of the Major Crime (Investigative Powers) Act 2004 regarding the personal service of witness summons; and

(g) to modify or suspend certain statutory time frames under the Magistrates' Court Act 1989; and

(h) to modify the conduct of proceedings under the Magistrates' Court Act 1989; and

(i) to modify the conduct of proceedings and evidentiary requirements under the Victorian Civil and Administrative Tribunal Act 1998; and

G) to modify the time frames that apply under the Victorian Civil and Administrative Tribunal Act 1998 for the VCA T to hear certain applications under the Disability Act 2006, the Guardianship and Administration Act 2019 and Part 12A of the Residential Tenancies Act 1997.

2 Authorising provision

These Regulations are made under section 4 of the COVID-19 Omnibus (Emergency Measures) Act 2020.

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S.R. No.

Part I-Preliminary

3 Definitions

In these Regulations-

audio link has the same meaning as in Part IIA of the Evidence (Miscellaneous Provisions Act) 1958;

audio visual link has the same meaning as in Part IIA of the Evidence (Miscellaneous Provisions) Act 1958;

authorised legal representative of a person means an Australian legal practitioner who has been instructed by the person to receive documents on the person's behalf;

destroy in relation to a document provided to an agency under these Regulations by secure electronic means, means-

4 General

( a) permanently delete the electronic document from all information systems on which the agency receiving the document held or stored that document; and

(b) destroy any hard copy of the document.

The application of an Act or a provision of an Act referred to in a Part of these Regulations is modified as set out in the applicable Part or regulation.

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S.R. No.

Part 2-Modification of application of provisions of Bail Act 1977


5 Capacity of child to enter into undertaking

The Bail Act 1977 applies as if after section 16B there were inserted-

11 l 6C Alternative methods of entering into undertaking for a child

Sections 17 A and 17B apply, with any necessary modifications, to the entering into of an undertaking under section 16B. 11

•

6 Bail undertakings and sureties

The Bail Act 1977 applies as if in Part 2 after section 1 7 there were inserted-

" 17 A Electronic signature of undertaking by accused

( 1) Without limiting how an accused may enter into a written undertaking under section 5(1), the requirements for an accused to enter into a written undertaking are satisfied if-

20-064SR.S2-28/5/2020

(a) the bail decision maker, or another authorised person, sends a copy of the undertaking and a copy of the section 17 notice to the accused by electronic communication; and

(b) the accused, by return electronic communication to the bail decision maker or authorised person-

(i) confirms that the accused has received a copy of the section 17 notice and understands the nature and extent of the conditions of the accused's bail and the consequences of failure to comply with them; and

4


S.R.No.

Part 2-Modification ofapplication of provisions of Bail Act 1977

(ii) signs the undertaking by electronic signature; and

( c) on receipt of the electronic communication from the accused, the bail decision maker or authorised person-

(i) makes a note on the undertaking that the undertaking has been entered into by the accused by electronic signature; and

(ii) makes a note on the undertaking stating the bail decision maker's or authorised person's name and position; and

(iii) attaches a copy of the electronic communication from the accused to the annotated undertaking.

(2) Subject to subsection (3), if an undertaking is entered into in accordance with subsection (1), the annotated undertaking with attached electronic communication from the accused constitutes the undertaking.

(3) If an undertaking entered into in accordance with subsection ( 1) has a surety or sureties, the undertaking is constituted by-

20-064SR.S2-28/5/2020

(a) if the surety signs the annotated undertaking, the annotated undertaking with attached electronic communication from the accused; or

(b) if the surety signs the undertaking by electronic signature, the annotated undertaking with attached electronic communication from the accused and the documents required by section 17C(l)(c).

5


S.R.No.


( 4) If an undertaking is entered into in accordance with this section, the bail decision maker or authorised person without delay must cause a copy of the undertaking and the section 17 notice to be sent to the accused by electronic communication or post.

(5) In this section-

authorised person means a person authorised by section 27 or 34B to admit an accused person to bail;

electronic signature includes, but is not limited to---

(a) a person confirming their agreement by electronically selecting an option indicating affirmation; or

(b) a person providing a scanned or photographed copy of a document signed by hand;

section 17 notice means the written notice of conditions of bail required by section 17.

17B Undertaking by accused by audio or audio visual means

( 1) Without limiting how an accused may enter into a written undertaking under section 5(1 ), the requirements for an accused to enter into a written undertaking are satisfied if an undertaking is made in accordance with this section.

(2) If the court granting bail considers that it is impracticable for the accused to enter into the written undertaking in person or by electronic communication, the court may

20-064SR.S2-28/5/2020 6


S.R.No.

Part 2-Modification of application of provisions ofBail Act 1977

direct that the undertaking be entered into in court by audio link or audio visual link.

(3) If the court gives a direction under subsection (2), the undertaking is entered into by-

( a) the accused appearing before the court by audio link or audio visual link; and

(b) the court providing a clear oral explanation of the nature and extent of the conditions of the accused's bail and the consequences of failure to comply with them; and

( c) the accused providing oral confirmation that the accused understands the matters in paragraph (b) and agrees to the undertaking; and

( d) the court being satisfied the accused understands the matters in paragraph (b) and noting the accused's oral agreement to the undertaking on the record of order granting bail; and

( e) the person constituting the court or a court official making a note on the written undertaking that the undertaking has been entered into by audio link or audio visual link; and

(f) the person making the note referred to in paragraph ( e) making a note on the undertaking stating the person's name and position.

(4) Subject to subsection (5), if the undertaking is entered into in accordance with subsection (3 ), the annotated undertaking constitutes the undertaking.

20-064SR.S2-28/5/2020 7


S.R.No.


(5) If an undertaking entered into in accordance with subsection (3) has a surety or sureties, the undertaking is constituted by-

( a) if the surety signs the annotated undertaking, the annotated undertaking; or

(b) if the surety signs the undertaking by electronic signature, the annotated undertaking and the documents required by section l 7C(l)(c).

( 6) If an undertaking is entered into in accordance with this section, the court without delay must cause a copy of the undertaking and a copy of the section 17 notice to be sent to the accused by electronic communication or post.


audio link has the same meaning as in Part IIA of the Evidence (Miscellaneous Provisions) Act 1958;

audio visual link has the same meaning as in Part IIA of the Evidence (Miscellaneous Provisions) Act 1958;

court ofjicial--see section 27(2);

electronic signature-see section 1 7 A( 5);

section 17 notice-see section 17 A(5).

l 7C Electronic signature of undertaking by surety

( 1) Without limiting how a surety may sign an undertaking of bail under section 9(3)(c), the requirements for a surety to sign an undertaking are satisfied if.-

20-064SR.S2-28/5/2020 8


S.R.No.


(a) the bail decision maker or another authorised person sends a copy of the undertaking signed by the accused and a copy of the section 17 notice to the surety by electronic communication; and

(b) the surety by return electronic communication to the bail decision maker or authorised person-

(i) confirms that the surety has received a copy of the section 17 notice and understands the nature and extent of the obligations of the accused under the conditions of the accused's bail and the consequences of the accused's failure to comply with them; and

(ii) signs the undertaking by electronic signature; and

( c) on receipt of the electronic communication from the surety, the bail decision maker or authorised person-

(i) makes a note on the written undertaking that the undertaking has been entered into by the surety by electronic signature; and

(ii) attaches a copy of the electronic communication from the surety to the annotated written undertaking.

(2) To avoid doubt, a reference in subsection (l)(a) to the undertaking signed by the accused includes a reference to the undertaking signed by the accused in accordance with section 17 A or 17B.

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S.R.No.


(3) If an undertaking is signed by a surety in accordance with subsection (1), the bail decision maker or authorised person without delay must cause a copy of the undertaking and a copy of the section 1 7 notice to be sent to the surety by electronic communication or post.

( 4) In this section-

authorised person-see section 17 A(5);

electronic signature--see section 17 A( 5);

section 17 notice-see section 17A(5).

17D Electronic signature of affidavit of justification for bail by surety

( 1) Without limiting how a surety may make an affidavit of justification for bail under section 9, the requirements for making an affidavit of justification for bail are satisfied if the surety in accordance with subsection (2)-

(a) makes the affidavit by audio link or audio visual link before the bail decision maker or another authorised person; and

(b) signs the affidavit by electronic signature.

(2) A surety may make and sign the affidavit of justification for bail by-

20-064SR.S2-28/5/2020

( a) the bail decision maker or authorised person sending the affidavit to the surety by electronic communication; and

10


S.R. No.


(b) the surety appearing by audio link or audio visual link before the bail decision maker or authorised person and stating that the surety-

(i) confirms that the particulars of the affidavit are true and correct; and

(ii) agrees to sign the affidavit by electronic signature; and

( c) the surety by return electronic communication to the bail decision maker or authorised person, signing the affidavit by electronic signature and confirming the matters referred to in paragraph (b )(i); and

(d) on receipt of the electronic communication from the surety, the bail decision maker or authorised person-

(i) stating in the jurat of the affidavit that the surety confirmed that the particulars of the affidavit are true and correct by audio link or audio visual link and that the affidavit was signed by the surety by electronic signature; and

(ii) attaching a copy of the electronic communication to that written affidavit; and

(iii) signing the affidavit as a witness to the surety's electronic signature.

(3) If an affidavit of justification is made in accordance with subsection (2), the complete affidavit is constituted by the written affidavit with attached electronic communication from the surety.

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S.R.No.


( 4) If an affidavit is made in accordance with this section, the bail decision maker or authorised person without delay must cause a copy of the affidavit to be sent to the surety by electronic communication or post.


20-064SRS2-28/5/2020

audio link-see section 17B(7);

audio visual link-see section 17B(7);

authorised person-see section 17 A(S);

electronic signature--see section 17A(5)." .

12


S.R.No.

Part 3-Modification of application of provisions of Criminal Procedure Act 2009


7 Adjournment without appearance of parties

Section 121(1) of the Criminal Procedure Act 2009 applies as if a reference in paragraph (a) to 14 days were a reference to 28 days.

8 Power to extend or abridge time

Section 247(2) of the Criminal Procedure Act 2009 applies as if a reference to 3 months were a reference to 6 months.

9 Provision of material before first mention

Section 53A(2) of the Criminal Procedure Act 2009 applies as if the informant were required to serve the documents listed in paragraphs (a) and (b) or paragraph ( c) of section 5 3A(2) ( as the case requires) on the accused or the legal practitioner representing the accused no less than 7 days before the date listed for the first mention hearing.

10 Discontinuance by audio visual link or filing notice with the registrar

(1) Section 177(1) of the Criminal Procedure Act 2009 applies as if for paragraph (b) there were substituted-

"(b) filing written notice of the discontinuance, signed by the DPP, with a registrar of the court in which the accused was committed for trial or in which a direct indictment was filed against the accused.".

(2) Section 177 of the Criminal Procedure Act 2009 applies as if for subsection (4) there were substituted-

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S.R.No.


"(4) If a discontinuance of prosecution is announced in court, including by audio link or audio visual link, written notice of the discontinuance, signed by the DPP, must be filed with a registrar of the court in which the accused was committed for trial or in which a direct indictment was filed against the accused, as soon as practicable after the announcement.".

(3) Section 177 of the Criminal Procedure Act 2009 applies as if-

( a) a reference in subsection (l){a) to "in court" included a reference to the DPP appearing by audio link or audio visual link; and

(b) a reference in subsection (5) to notice being filed in court were a reference to notice

20-064SR.S2-28/5/2020

being filed with a registrar of the court in which the accused was committed for trial or in which a direct indictment was filed against the accused, as soon as practicable after the announcement.

14


S.R.No.

Part 4--Modification of application of provisions of Guardianship and Administration Act 2019

Part 4-Modification of application of provisions of Guardianship and

Administration Act 2019 11 Extension for Guardianship hearings in the

Victorian Civil and Administrative Tribunal

Sections 28, 85, 104 and 144 of the Guardianship and Administration Act 2019 apply as if-

(a) a reference in those sections to 30 days were a reference to 45 business days or the next available hearing date after 45 business days; and

(b) a business day were a day other than

(i) a Saturday or Sunday; or

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(ii) a public holiday or public half holiday in the place where the relevant application is received.

15


S.R.No.

Part 5-Modification of application of provisions of Interpretation of Legislation Act 1984

Part 5-Modification of application of provisions of Interpretation of Legislation

Act 1984 12 Meaning of available for inspection

Section 32(3)(b) and (4)(c) of the Interpretation of Legislation Act 1984 applies as if, after section 32(4) there were inserted-

"(4A) For the purposes of subsections (3)(b) and (4)(c), the requirement that a document be kept available for inspection during normal office hours is satisfied if the document is made available on a government website that is accessible to the general public without charge." .

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S.R.No.

Part 6-Modification of application of provisions of Juries Act 2000


13 Summoning of jurors

(1) Section 27(2)(b) of the Juries Act 2000 applies as if a reference to attending for jury service includes a reference to attending for jury service by audio link, audio visual link or other specified electronic means as set out in the summons.

(2) A reference in section 27(2)(c) of the Juries Act 2000 to serving a summons is to be read as including serving the summons by means of electronic communication if the person consents to receiving the summons by electronic communication.

14 Means of attendance for jury service

In section 29(1) of the Juries Act 2000, attend is to be read as including attendance by audio link, audio visual link or other specified electronic means as set out in the summons or in accordance with a direction given by the Juries Commissioner or a pool supervisor.

15 Selection of panels

Section 30(2) of the Juries Act 2000 applies as if, after that subsection, there were inserted-

"(2A) To avoid doubt, for the purposes of subsection (2), a pool is not required to be physically present.".

16 Modified arrangements to stand aside a juror in criminal trials

(1) Section 38 of the Juries Act 2000 applies as if subsection (2) of that section were omitted.

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S.R.No.


(2) Section 38 of the Juries Act 2000 applies as if, after subsection (3), there were inserted-

"(4) The requirement to stand aside under subsection (I) must be made during the period of time that the potential juror is directed to move in accordance with section 39A.

(3) Section 38(3) of the Juries Act 2000 applies as if paragraph (b) of that subsection were omitted.

17 Modified arrangements to challenge peremptorily a juror in criminal trials

(1) Section 39 of the Juries Act 2000 applies as if subsection (2) of that section were omitted.

(2) Section 39 of the Juries Act 2000 applies as if, after subsection (3), there were inserted-

"(3A) In a criminal trial, each peremptory challenge under subsection (1) must be made during the period of time that the potential juror is directed to move in accordance with section 39A.".

18 Directions to move

The Juries Act 2000 applies as if, after section 39 of that Act, there were inserted-

"39 A Trial judge may direct potential juror to move

( 1) A trial judge may direct a potential juror to move in a particular direction to distinguish the potential juror from other potential jurors-

20-064SR.S2-28/5/2020

(a) to enable the Crown to consider whether to require the potential juror to stand aside in accordance with section 38(1); and

18


S.R.No.


(b) to enable each person arraigned adequate time and reasonable opportunity to view the face of the potential juror to consider whether to challenge peremptorily the potential juror in accordance with section 39(1).

Example

Standing and then being seated again or moving towards a particular place in the room.

(2) Only one direction to move may be given to a potential juror for the purposes of sections 38 and 39.".

19 Persons not required to be physically present in same room

The Juries Act 2000 applies as if, after section 41 of that Act, there were inserted-

" 4 lA Persons not required to be physically present together

20-064SR.S2-28/5/2020

Nothing in sections 31 to 41 requires all persons involved in any process or procedure under those sections to be physically present together in the same room or place." .

19


S.R.No.

Part 7-Modification of application of provisions of Limitation of Actions Act 1958 and Wrongs Act 1958

Part 7-Modification of application of provisions of Limitation of Actions Act 1958

and Wrongs Act 1958 20 Extension of civil limitation periods-Limitation of

Actions Act 1958

The Limitation of Actions Act 1958 applies as if, after section 4 of that Act, there were inserted-

" 4A Calculation of certain limitation periodsCovid 19

(I) This section applies to a limitation period (however described) in sections 5, 6, 8, 15, 19, 20, 20A, 21, 22, 27D, 27E, 271 and 27Q.

(2) For the purposes of calculating a limitation period to which this section applies, the period commencing 16 March 2020 and ending 31 July 2020 (inclusive) is not to be included in the calculation of the applicable limitation period.

(3) In this section, limitation period means

(a) in relation to section 5-

20-064SRS2-28/5/2020

(i) in subsections (1 ), (2) and (7), six years;

(ii) in subsection (IAAA), 1 year;

(iii) in subsections (lAA) and (IA), 3 years;

(iv) in subsections (3) and (4), fifteen years;

(v) in subsection (5), two years;

(b) in relation to section 6, 19, 20( 5) or 21, six years;

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Part 7-Modification of application of provisions of Limitation of Actions Act 1958 and Wrongs Act 1958

(c) in relation to section 8, 15, 20 (other than subsection(S)) or 22, fifteen years;

(d) in relation to section 20A, 12 months;

(e) in relation to section 27D, 3 years or 12 years, as the case requires;

(f) in relation to section 27E, 6 years or 12 years, as the case requires;

(g) in relation to section 271, 12 years;

(h) in relation to section 27Q, 3 years.".

21 Limitation period-Wrongs Act 1958

Section 20 of the Wrongs Act 1958 applies as if, after subsection (7), there were inserted-

"(8) For the purposes of calculating the six year limitation period (however described) in this section, the period commencing 16 March 2020 and ending 31 July 2020 (inclusive) is not to be included in the calculation of the applicable limitation period.".

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Part 8-Modification of application of provisions of Major Crime (Investigative Powers) Act 2004

Part 8-Modification of application of provisions of Major Crime (Investigative

Powers) Act 2004 22 Temporary measure relating to personal service of

witness summons

Section 17 of the Major Crime (Investigative Powers) Act 2004 applies as if after subsection (3) there were inserted-

" ( 4) For the purposes of subsection ( 1) the requirement to deliver a copy of a witness summons to a person personally may be satisfied by putting a copy of the summons down in the presence of that person and telling that person the nature of the summons." .

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Part 9--Modification of application of Acts relating to Victorian courts and tribunals

Part 9-Modification of application of Acts relating to Victorian courts and tribunals

Division I-Modification of application of provisions of Magistrates' Court Act 1989

23 Temporary measures relating to witness summons

Section 45 of the Magistrates' Court Act 1989 applies as if, at the end of that section, there were inserted-

"(2) A witness is not required to attend court on the date and time specified in a witness summons under paragraph (a), if the criminal proceeding is adjourned prior to the date and time specified in that summons.".

24 Award

Section 104(4) of the Magistrates' Court Act 1989 applies as if a reference in that subsection to 28 days were a reference to 60 days.

2S Temporary measures relating to the conduct of civil proceedings

Section 125 of the Magistrates' Court Act 1989 applies as if, at the end of that section, there were inserted-

11(3) The Court may decide any issue in a civil proceeding, or determine a civil proceeding, entirely on the basis of written submissions and without the appearance of the parties-

( a) if the Court is satisfied that it is in the interests of justice to do so; and

(b) whether or not the parties consent to the Court doing so.

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( 4) In determining whether it is in the interests of justice to decide an issue or determine a proceeding entirely on the basis of written submissions and without the appearance of the parties, the Court must have regard to--

(a) the nature of the issue or proceeding; and

(b) the right to a fair hearing; and

( c) whether the parties have had the opportunity to obtain legal advice; and

( d) whether the parties consent to the Court doing so.".

Division 2-Modification of application of provisions of Victorian Civil and Administrative

Tribunal Act 1998

26 Temporary measures to provide for the conduct of hearings

The Victorian Civil and Administrative Tribunal Act 1998 applies as if for section 100(2) there were substituted-

" (2) The Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without the appearance of the parties or their representatives or witnesses, unless a party objects to the proceeding being conducted in this manner.".

27 Temporary measures relating to witness summons

Section 104 of the Victorian Civil and Administrative Tribunal Act 1998 applies as if after subsection (3) there were inserted-

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"(3A) A person who receives a summons to produce documents may produce the documents by filing them with the Tribunal by electronic communication or by post.

(3B) A person who receives a summons to physically attend the Tribunal under subsection (1) may instead appear before the Tribunal by audio link or audio visual link.".

28 Evidence-Allowing affidavits in proceedings

Section 102 of the Victorian Civil and Administrative Tribunal Act 1998 applies as if after subsection ( 4) there were inserted-

" ( 5) For the purposes of this Act, section 49F of the Oaths and Affirmations Act 2018 applies as if a reference in that section to a court were a reference to the Tribunal.".

29 Commencement ofVCAT proceedings under the Disability Act 2006

Clause 1 lAE of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 applies as if.-

(a) a reference in paragraph (a) to 5 business days were a reference to 10 business days; and

(b) a reference in paragraph (b) to 30 days were a reference to 45 business days.

30 Commencement ofVCAT hearing a proceeding under the Residential Tenancies Act 1997

Clause 77D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 applies as if a reference to 30 days were a reference to 45 business days.

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