3rd of July 2019
Attorney General, Jill Hennessey, has flagged significant reforms to overhaul our legal system.
This news is fantastic and that a number of the reforms touch on the issues raised by the Community Advocacy Alliance (CAA), over the last four years, is heartening indeed.
As reported in the Herald Sun,
“New laws forcing crooks to cough up cash for their victims, an overhaul of defamation laws to protect journalists and a fresh bid to break open the state’s suppression order culture are all in the works”.
Addressing the transparency of Courts is laudable as is the monitoring of sentencing, but there is one omission, that, if addressed, would have a greater impact on the welfare of victims and the governance of the State of Victoria and the lawful performance of the private sector, than all the other reforms being considered.
We are not referring to Criminal Law, although crimes can be covered up, we are referring to Civil Law where the blight of the ‘Non–Disclosure’ or ‘Confidentiality Agreements’, that have been allowed to fester to a degree where they would easily outstrip the adverse impact of the Suppression Order pandemic in our legal system. Hiding misconduct and protecting the guilty and incompetent.
Not widely known to the public, these arrangements are used as a bargaining chip in Civil Litigation, as a tool, that the Lawyers use to silence the victim. Often referred to as, ‘shut up money’ or ‘buying silence’, either way, although technically lawful, is morally criminal in effect.
Although rampant in Police civil settlements, it is also used widely in commercial matters so the bad behaviour of a commercial enterprise can be hidden from the public because the Victim is unable to air their issues and have them exposed by the media. Victims bought off.
The Banking Royal Commission and perhaps the Lawyer X scandal could have been avoided if the bad behaviour had been scrutinised by the media earlier; commercial and legal imperatives would have forced change.
The use of this process in civil matters that either the public or police members bring against Victoria Police or the Government hides from scrutiny the mischief or malpractice by the organisation alleged.
Coupled too often to this immoral process the abuse by Government entities of the principal of ‘Model litigant’. This rule needs to be given teeth so Government entities cannot use delaying tactics in civil matters to frustrate complainants, hoping they cannot afford the protracted legal process.
Unfortunately, the principle decision makers within the Government entities are the ones most likely to be adversely affected by many civil actions, so they have a vested interested in making the actions go away, and delays and confidential settlements are the tools at their disposal and regularly used.
Light is the best disinfectant and needs to be let in if bad practices are to be eliminated.
There is a strong and unequivocal obligation on jurists to ensure that the right of the public to know is honoured, and that means that bad behaviours which are identified in the civil and public areas are exposed.
The ‘Non-Disclosure’ mechanism imposed on either aggrieved members of the community or aggrieved members of the Police Force, bar the victims from speaking out creating self-imposing guilt that their experiences cannot be exposed to improve things for others or satisfy their anger or publicly repair lost credibility.
We often hear from victims that are excited for their day in court where the ‘true story’, of their experience can be told, and the culprits that they hold responsible will be held to account. The reality is that their dream is rarely if ever realised as inevitably the civil action they instigate is resolved with a settlement that includes a ‘Non-Disclosure’ clause.
It is true that the victims enter into these agreements voluntarily, usually based on legal advice but to reject those clauses in any settlement usually has a substantially negative monetary risk or penalty attached.
The efforts of the Attorney General must be applauded by all Victorians, and we would encourage the Attorney General to consider the ‘Non-Disclosure’ and the ‘Model Litigant’ matters when dealing with the freedom of the press.
We are convinced that if the ‘Non-Disclosure’ and ‘Model litigant’, matters were not abused, then matters would be exposed far earlier, giving Parliament a chance to act and the need for Royal Commissions reduced.
The CAA applauds the actions of the Attorney General.
“Do the right thing, do what needs to be done.”
The Hennessey motto.