STATUTES AMENDMENT (BUDGET 2011) BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 26 July 2011.)

The Hon. J.J. SNELLING: With a heavy heart, I move:

That the amendments made in the Legislative Council be agreed to.

It is disappointing to see that the Legislative Council has deleted section 189A of the bill. Section 189A was the provision that would have reduced the court's present discretion to award costs. The government intended the costs should no longer simply follow the event. Instead, costs should only be awarded where the court is satisfied that it is proper to make an order having regard to all relevant circumstances. Further, where proper reasons do exist, costs should normally be limited to the applicable scale of costs only.

This is not an unreasonable proposal, and it is still the government's view and a view supported by South Australia Police. It is consistent with the practice in our high courts, where costs are normally not awarded in criminal cases. It is similar to the law already operating in Queensland. It is also comparable to provisions in New South Wales and Tasmania. Further, the Western Australian Law Reform Commission published a report in which it recommended that Western Australian law should be amended to stop the awarding of costs in summary prosecutions.

The commission noted that, at common law, the state, in criminal matters, neither pays nor receives costs and that this position is altered only by legislation. The commission found that the distinction between costs in summary matters and in the higher courts was artificial and could not be justified. If I might quote the Western Australian Law Reform Commission, it said:

Our reference in this Report was to make recommendations which would assist in making the justice system comprehensible, certain and reasonably expeditious, while not sacrificing fairness nor justice, nor overlooking the special considerations which need to be brought to bear in criminal matters…we are now of the view that these ends are best achieved by making all criminal jurisdiction 'no cost'.

I do not believe that any law reform commission in Australia would be recommending a change to the law that would, as some members have suggested, put at risk the presumption of innocence or any other fundamental right of an accused person. So while the legal profession in this state raises the alarm, its colleagues in three other states are already working with comparable systems. The proposals are defensible, as the West Australian Law Reform Commission shows.

Nevertheless, in order to enable the smooth passage of the bill, the government will accept this amendment. The government may well, however, come back to the parliament and revisit this issue at a later date. I thank members for their contribution to the debate and look forward to the progression of the bill through the house.

Mrs REDMOND: I am pleased, even if the Treasurer has a heavy heart, to see that the government has acceded to this amendment. Can I say from the outset that this was not done in any way lightly. We clearly had a very big decision to make in deciding that we would actually remove this measure from the budget bill, but we ultimately took the view that it was not appropriately introduced in the budget bill.

Although I anticipate that we will still likely oppose it, I welcome the Treasurer's decision that if he wants to debate it, it should come back through the house as a separate matter, because that, in my respectful submission, is where it always belonged. It should never have been, in my view, included as part of the budget. It was with a very considered and measured approach that we took the decision that we would actually seek—for the first time ever, I think—to remove a measure from the budget, because we took the view that it was not really a budget measure.

The Treasurer has indicated that there are various other jurisdictions where costs are not paid, but if you were to be charged with a relatively minor offence (even a minor speeding offence) the reality of this decision was going to be as follows. If you wanted to contest it and you knew that you were absolutely not speeding in spite of what the speed camera (or whatever) said—and I think the member for Davenport during a speech on this matter gave the instance of someone who was able to firmly establish with a highway engineer for the court that the time taken between two photographs of the same vehicle crossing the intersection (the distance and the calculation) meant that the car could not possibly have been speeding—the effect of the amendment proposed by the government would have been that someone going to court in those circumstances and contesting the matter successfully would find that they were more out of pocket than if they had just paid up. In other words, you were going to be in a 'heads, I win—tails, you lose' situation. If the Treasurer has been listening to any of the discussion on talkback radio, that was a matter of significant concern to the people of this state, and rightly so.

Can I say further that the former attorney-general used to get very fed up with me talking about the various things that I had done in practice, so I am not going to talk about the things that I have done in practice. I will talk instead about the things my son is now doing in practice because he happens to be working as a criminal lawyer. He came home and said to me, 'The thing is that, by getting these costs, that is what actually enables us to do the pro bono work that we do, because we get a good enough strike rate and that is able to finance the pro bono work that we do as a firm.' The firm that he works in happens to do quite a lot of pro bono work down at the Port Adelaide Magistrates Court and other magistrates courts around the metropolitan area. The lawyers of the Adelaide community were quite rightly concerned about the effect of this.

The other point I wanted to make is simply that the nature of this was also, we believe, going to lower the standards for police prosecution. If they are not going to have to pay out in the event of an unsuccessful prosecution, then there is less likelihood that they are going to give up on an unrealistic case. They will simply pursue the cases on the basis that it does not matter if they lose anyway; they are not going to have to pay the consequences. So, I am really pleased that, in spite of the Treasurer's misgivings, the government has come to its senses about this.

I welcome the fact that the Treasurer has said that he is going to potentially bring it back into the house for a full and proper debate on the issue as a separate bill before the house, but I think there are a number of good and cogent reasons why this was not an appropriate matter to be considered as part of the budget. Even putting that aside, the saving of $1.6 million per annum that the government anticipated making from this was very small compared to the cost of the community in the loss of its rights in pursuing an entitlement to get back their costs if they are successful in the matter of a police prosecution within our magistrates courts. For those reasons, I am really pleased that the government has decided to agree to the amendment that has been successfully moved in the other place.

Motion carried.

Mrs REDMOND: Madam Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed: