12/03/2009

Ms PENNICUIK (Southern Metropolitan) -- In relation to the Sheriff Bill 2008 I would like to say at the outset that the Greens agree the sheriff provides an important function in the general scheme of law enforcement, and we do not oppose the collection of legitimate fines and the execution of warrants in the state of Victoria. As Mr O'Donohue has outlined, and as the Attorney-General outlined in his second-reading speech, this bill amalgamates a range of legislation, mainly provisions of the courts legislation that apply or refer to the sheriff, the Infringements Act and some parts of common law relating to the powers and obligations of the sheriff.

In principle, it is probably a good idea to consolidate the heads of power under which the sheriff operates. The government has been doing this with a number of recent amendment bills, for example in relation to the Evidence Act and the Criminal Procedure Act.

However, the justification for some of the provisions in this bill, in particular increasing the powers of the sheriff, has not been made. The reports and views which have led to this bill have not been made public. Parliament should always be wary of increasing the powers of statutory officers without sufficient justification or oversight, and it is difficult to see the justification or the oversight in this bill.

The bill consolidates a wide range of laws governing the powers and the duties of the sheriff, which the Attorney-General says will remove confusion about the sources of the sheriff's powers -- I am not sure there was confusion, but I will accept what he says -- and promote a more efficient and effective system. This appears to me to be achieved largely by removing the involvement of the courts in issuing warrants and enforcement orders. The Attorney-General says that consolidation will improve clarity, reflect modern enforcement practices and provide the community with a greater understanding of the sheriff's role.

I am not really sure what that means or whether the bill achieves any of that. I do not know what 'modern enforcement practices' are, but in this bill it appears that 'modern enforcement practices' mean less involvement of the courts in the enforcement practices.

The bill provides for the power to enter property using such force as is reasonable for both civil and criminal matters. This is an extension of existing powers, as the use of force is currently not sanctioned in the context of civil warrants. The justification for this extension is that, just like criminal warrants, civil warrants are orders of the court. The Attorney-General went on to give an example in his second-reading speech of a criminal warrant to enforce the payment of a $50 littering file versus a civil warrant for payment of an $11 000 fine by an employer for non-payment of wages. I am not saying those warrants should not be executed or those debts should not be recovered, but it is the way it is done that is something we should be looking at in this Parliament.

We have taken a little time to look at the sheriff and warrant provisions in other jurisdictions, namely in Western Australia and New South Wales. Both of those jurisdictions have two separate acts for criminal and civil warrants. The bill before us joins those together, and it is difficult to discern from the bill the steps a sheriff would be required to take before he resorts to the use of force.

In Western Australia the Civil Judgments Enforcement Act applies to all judgements made in civil jurisdictions of the Supreme, District and Magistrates courts. Before any use of power to enter premises is allowable a judge must have entered a judgement against a debtor for a certain amount, and a number of processes follow. When a court finally grants an enforcement order, this is when the sheriff becomes involved. Enforcement orders are alive for only 12 months, and after that point the order will need to be applied for.

Under the Western Australian Civil Judgments Enforcement Act there is no general power for a sheriff to restrain a person under the act, unless they are acting under a warrant of arrest. In Western Australia, in relation to civil warrants or warrants for seizure or sale, the legislation specifies that the applicant must be the judgement creditor. There is no such stipulation in Victoria. Any person who wilfully obstructs or resists a person lawfully charged with the execution of an order or warrant is guilty of a crime in Western Australia.

This section does not empower the sheriff to act in any particular way to restrain the resisting person. Under this section, when a sheriff encounters a person who is hindering the enforcement of a warrant by barricading themselves in their home, for example, they must leave the premises and seek police assistance. Police then do the restraining. Apart from all that, the sheriff in Western Australia is not involved in the process unless two applications have been made to the court.
In New South Wales there are two acts, the Civil Procedure Act and the Fines Act, which deal with infringements and criminal warrants. For civil warrants, the system is very similar to that in Western Australia. The sheriff becomes involved after the judgement creditor has applied for an order to enforce the judgement, and there is no mention in that act of restraining a person. However, the use-of-force system is different in New South Wales.

The use and type of force is sanctioned by the court when it makes an order to enforce the judgement, and that will be outlined in the directions as to the enforcement. There is no other mention in the act of the use of force nor is there mention in the act of the power to restrain a person.

Therefore in terms of two similar jurisdictions we are certainly going in a different direction here. It is difficult to work out how all the provisions that exist in the three major court acts, in the Infringements Act and in common law have been amalgamated in the Sheriff Bill.

I would also say that the Attorney-General is talking about modern enforcement procedures, efficiency et cetera but not mentioning procedural fairness or natural justice in those remarks.

The Attorney-General in his second-reading speech also referred to safeguards in the bill drawn from a range of sources -- whatever they are -- and including the Victorian parliamentary Law Reform Committee's report on warrant powers and procedures. We have looked at that report, which was tabled in 2005. Our reading of that is somewhat limited, bearing in mind the amount of time and resources we have to read through that report and the bill and the other acts and to know whether we have a bill in front of us that does what the Attorney-General is claiming. Hardly any of the recommendations of that report appear to be adopted, except for those specifically mentioned by the Attorney-General in his second-reading speech, which only had four dot points concerning safeguards on the use of force in the execution of civil warrants.

Admittedly that report, which has 147 recommendations, covers a lot of ground and probably many were not necessarily directly applicable to the Sheriff Bill.

However, many recommendations relating to warrant applications procedures, which could have been included in this bill, were not. There is also the issue about reliance on the regulations. It is difficult to see if many of the recommendations have been taken up because so much is no longer in the legislation.

Certainly we asked several questions about procedures, about the criteria the sheriff would choose to ascertain whether the use of force was required or not. We were told that this would all be put into guidelines or regulations, which at the moment we have not seen. We are talking about a bill which expands the powers of a statutory officer to use force, and we need to bear in mind that in many cases the use of that force will be on vulnerable people.

I asked the department how many times force was used. It advised me that the sheriff rarely resorts to the use of force, which is a good thing to hear.

According to the Department of Justice annual report, more than 700 000 warrants were actioned by the sheriff's office in the last reporting year, and there were five reported incidents involving the use of force. That is good to know. However, with the expansion of the ability to use force in the case of civil warrants, that may rise.

I am concerned that the Victorian parliamentary Law Reform Committee report recommended very strongly that primary legislation be amended. Recommendation 18 was for each agency with warrant powers to create and maintain a search warrants register and record the following information in it. That certainly is not in the primary legislation. There are several other recommendations which I will go to in the committee stage when I ask the minister why they were not taken up. Those recommendations go to enshrining in the legislation the procedures and criteria and processes that the sheriff must undertake before he resorts to the use of force.

If you look at clause 16 of the bill, it bluntly says that the sheriff may use force in the execution of a warrant or an enforcement order. It does not say what the sheriff must do -- step 1, step 2, step 3 -- before he resorts to the use of force. We have been told that guidelines will be developed. Mr O'Donohue referred to the long delay before the enactment of the bill, which goes to the government saying it needs to get in place all the guidelines, procedures and training, but we are being asked to pass a bill which expands the power of a statutory officer to use force and to restrain individuals without any of these procedures in the primary legislation and with no reporting oversight. I have

drawn up some amendments and I ask that they be circulated.
Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK -- Before we go down the track of expanding the power of the sheriff to use force in the execution of civil warrants, we are proposing to revert back to the existing situation where that is not possible. The amendments that I will be proposing in committee go towards removing the ability of the sheriff to use force in the execution of civil warrants.

As Mr O'Donohue referred to in his contribution, the bill also allows the sheriff to request personal information from public authorities and local councils with the very slim safeguard that the public authority or the council may refuse to apply that in exceptional circumstances.

Under the bill there is no criteria to explain what those exceptional circumstances may be. That is certainly a failing with the bill. We also have an amendment to include that the public interest be taken into account in terms of the release of information by public authorities to the sheriff, because there are virtually no safeguards regarding this power except that law enforcement agencies do not have to comply -- for example, the Office of Police Integrity does not have to comply.

Other public agencies may not comply if there are exceptional circumstances, but the bill does not outline or describe in any way what these might be and does not mention things like the personal safety of the person concerned, which probably should be the main concern. At best, this power will erode public trust and confidence in public institutions, and it could put people in danger.

There is huge public interest in maintaining the trust of the public regarding the use of personal information. An improvement would be to include a set of criteria that may constitute exceptional circumstances. Also, we would say that upon making a request for information the sheriff should also be required to include a statement outlining the circumstances in which the agency may not comply. Otherwise, agencies may not know that option is open to them and may go ahead and release information in inappropriate circumstances. Agencies like the Department of Human Services, for example, should be particularly directed to the circumstances in which they need not comply. When we had a briefing with the minister's department its officers took that on board. I am not sure whether they gave a guarantee, but they did take on board the suggestion that when the sheriff applies for this information from a public authority or local council it would be made very clear in that request that the public agency is not required or compelled to provide that information.

The Attorney-General mentioned VicRoads, but the legislation does not specify VicRoads. The Attorney-General mentioned that, and Mr O'Donohue also did so in his contribution. I remember last year in this house we had a debate about the release of information from the VicRoads database, and I made the point then about the privacy implications of that. We were also in the middle of a situation where the VicRoads database was leaking all over the place, and it was also false -- for example, it contained listings of people who did not exist.

As a Parliament we should always be wary of allowing public institutions to have increased access to private information. This is almost like a release-of-private-information creep that is happening under a series of bills that have been introduced to Parliament in only the short time I have been here, whereby people's information is becoming more and more available to public institutions.

In particular, the sheriff should be required to consider the public interest and the extent to which community trust in public organisations may be damaged by the request for and provision of personal information.

I mentioned before some of the recommendations of the parliamentary Law Reform Committee's report on warrant powers and procedures.

It is worth saying that recommendation 134 of that report said any new legislation to introduce a power of forced entry should require that: the exercise of the power be preceded by an examination of the judgement debtor's assets and financial circumstances; there be a threefold process; a warrant to seize property should be issued only where examination has established the existence of assets other than 'protected assets'; a court may issue a warrant to seize property where it determines that such examination is not practicable or where it is satisfied that on the balance of the available evidence, despite having participated in the examination process, the judgement debtor has failed and where it has considered alternative means of enforcement; and the government should consider the introduction of a monetary threshold below which recovery of a judgement debt should be by means other than a warrant to seize property.

The report also outlines another system that was not taken up in this bill, such as a brake on the use of forced entry.

It outlines South Australia as a jurisdiction that has a system of examination hearings as an interim process whereby there is an examination of a judgement debtor's financial circumstances. This process comes before the issue for a warrant to seize property and effectively puts the debtor on notice. The report outlines a very effective method of coupling these hearings with advice to debtors that forced entry under warrant is available where parties cannot reach agreement.

Recommendation 135 is:

That in any new legislation to introduce a power of forced entry an examination process be a compulsory first stage in the enforcement process for claims below a certain dollar value, for example $10 000.
None of these seem to be in the bill.

The bill is bereft of those types of mitigating procedures and is really concentrated on just the execution of warrants, and, on my reading, a lot of it is at the discretion of the sheriff.

The other amendment I have circulated amends division 3, which would require the sheriff to report every two months on the use of force or restraint under the bill. I feel this is the most important amendment I am putting forward. It is based on a similar provision in the Fisheries Act, under which fisheries officers who use batons or capsicum spray in the execution of their duties under that act are required also to report to the Ombudsman. This amendment is very important because we have legislation here which extends the enforcement powers of the sheriff. The provisions allow for a greater use of force and restraint than is currently the case, has previously been the case or is the case in other jurisdictions. So when we increase the powers of a statutory officer we need also to provide effective oversight.

I discussed this with departmental officers in our briefing, and their response was that, yes, if a sheriff's officers use force or restraint, they issue a report that is held by the sheriff. The problem with that is that it is all held internally. It might be said that the Ombudsman can ask for those reports, but if he does not know they exist, then he will not ask for them unless a complaint is made.

The problem is that people do not always make complaints. Particularly vulnerable people who may be the subject of the use of restraining orders, or restraint or force, could be people who do not fully understand the system and are not totally cognisant of the seriousness of their situation or the powers under the act, because of whatever the personal circumstances that may have landed them in that position, and they may not always be aware they are able to complain to the Ombudsman, for example.

Given that this sort of provision already exists in a different act and that it does not impose another duty on the Ombudsman -- he just receives the reports -- he can choose, under the existing powers, whether or not to act on them. So there is no extra burden on the Ombudsman. It is only more information going to the Ombudsman. It also means that if the Ombudsman looks at the report and sees there is some issue to look at, then he can act in a timely way. The amendment also provides for an annual report on the sheriff's use of force and restraint. The other advantage of that is that by receiving and reviewing these reports the Ombudsman can identify systemic problems -- for example, the need for extra training -- which is a very important function of the Ombudsman's office.

I am not sure the bill before us will achieve entirely what it says it will achieve. It certainly has implications for people's rights and safety, and in our view not enough oversight is built into the bill to deal with the expansion of the powers of 150 such statutory officers.

Under the bill employees of the Department of Justice can also be deputised to act as sheriffs. Again I am told by the department that that will be after training, but there is no mention of it. The legislation just refers to 'trained' officers, but I have not seen what that training involves. The subordinate regulations and the guidelines that underpin this will be very important in determining how it operates in terms of looking after the most vulnerable people in the community, bearing in mind that, as Mr O'Donohue said, the vast majority of warrants will not require the use of force.

But we as a Parliament need to turn our minds to how the use of force or restraint is used and how the people it is used against fare in that process.