STATUTES AMENDMENT (COURTS EFFICIENCY REFORMS) BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:50): Obtained leave and introduced a bill for an act to amend the Building Work Contractors Act 1995, the Controlled Substances Act 1984, the Criminal Law Consolidation Act 1935, the Criminal Law (Sentencing) Act 1988, the Domestic Partners Property Act 1996, the Magistrates Court Act 1991, the Mining Act 1971, the Opal Mining Act 1995, the Retail and Commercial Leases Act 1995, the Summary Offences Act 1953, the Summary Procedure Act 1921, the Unclaimed Goods Act 1987 and the Youth Court Act 1993. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:51): I move:

That this bill be now read a second time.

The Statutes Amendment (Courts Efficiency Reforms) Bill 2012 was first introduced in the House of Assembly on 23 November 2011, but lapsed without being debated when parliament was prorogued on 15 December 2011.

The bill I now reintroduce is in the same form as was introduced in 2011. Members would have received the detail of the bill last year. I reiterate that there have been no changes made since that time. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The primary focus of this Bill is reducing the backlog of criminal cases in the District Court and reducing delays in the finalisation of criminal matters, with the aim of improved court efficiency. The Bill predominantly focuses on the jurisdiction and procedures of the courts with further amendments to a range of Acts as proposed by various parties involved in the justice system, including the judiciary, to improve the general efficiency of the courts.

In recent years, there has been an increasing backlog of criminal cases awaiting finalisation in the District Court. This problem has been developing for some time and has become more acute over recent years, placing major pressures on the operation and resources of the court system and many other agencies, as well as contributing to South Australia's high rate of prisoners on remand.

Delays in finalising criminal matters in the court system are now commonplace, with matters routinely taking over 12 months, and in some cases 24 months or longer, from the time an accused is first charged until the trial takes place. Cases therefore continue to accumulate, leading to a backlog of matters pending, particularly in the District Court.

There are various and complex reasons for these problems, including, but not limited to: delays in the disclosure of evidence by the prosecution; late withdrawal and changes of charges; the substantial number of guilty pleas being entered at a late stage; courts over-listing cases based on the expectation that many will be resolved just prior to trial; and the increasing number of cases entering the criminal justice system.

There are some recent signs of minor improvements. According to the latest Courts Administration Authority Annual Report, in 2010-11 the increase in disposals in the District Court was greater than the increase in lodgements, as it was in the previous reporting year. However, there is still a substantial backlog of cases awaiting trial in the District Court and more needs to be done to make greater improvements.

If lengthy delays are allowed to continue, the trend will seriously erode public confidence in the criminal justice system. Long delays in getting criminal cases to trial increase the prospect of criminals escaping justice through attrition of victims and witnesses, add to the strain on victims and their families, increase the length of time people are kept on remand and means police, prosecution and forensic resources are devoted to preparing and processing cases unnecessarily for trial when those limited resources could be better allocated elsewhere. Delaying the finalisation of a criminal matter also weakens the deterrent effect because there is no immediate link between the offending and its consequences.

The efficient and effective operation of the criminal justice system is essential to maintaining public confidence in our legal system and is fundamental to maintaining peace, order and good government in our society.

In response to this increasing problem, in November 2005 the Chief Justice and Chief Judge requested His Honour Judge Paul Rice of the District Court to address 'how the trend towards an increasing number of cases in the criminal trial list and the steadily lengthening time between arraignment and trial (now averaging at least one year) can be reversed'. The subsequent 'Rice Report' focussed on delays in pre-trial procedures and recommended a series of measures to address factors giving rise to the delays.

In October 2006 the then Attorney-General formed the Criminal Justice Ministerial Taskforce. At the relevant time, the Criminal Justice Ministerial Taskforce was chaired by the then Solicitor-General, now Justice, Chris Kourakis QC and included representatives from various government and non-government agencies, as well as members of the judiciary in an observer capacity.

The first report of the Criminal Justice Ministerial Taskforce recommended a range of measures to address inefficiencies in the criminal justice system, particularly directed at reducing delays in criminal cases coming to trial, including increases to the jurisdiction of the Magistrates Court.

Several recommendations of Judge Rice and the Criminal Justice Ministerial Taskforce have already been implemented. These include measures designed to reduce the workload of magistrates to make way for more matters moving down from the District Court, specifically legislation making driving unregistered and uninsured offences expiable as well as amendments to the Magistrates Court Act 1991 in late 2009 to increase the jurisdiction of Special Justices in the Petty Sessions division of the Court to deal with other minor offences.

Other significant recommendations of the Criminal Justice Ministerial Taskforce included:

introduction of a sentence discount scheme to encourage early guilty pleas and accused cooperation; and

modification of the committal processes and timeframes in relation to major indictable offences; and

increasing the jurisdiction of the Magistrates Court to alleviate some workload from the District Court.

The Taskforce also identified the need to consider revised funding options to provide incentives for defence lawyers to identify and finalise potential early guilty pleas.

The recommendation for a sentence discount scheme to encourage early guilty pleas forms the basis of the Criminal Law (Sentencing) (Sentencing Considerations) Bill 2011, which was introduced last year and is to be dealt with separately by this Parliament.

A review of the Legal Services Commission, chaired by the Solicitor-General, is also well underway and is likely to lead to legislative change in the near future. Part of the review includes looking at the fee structure and considering possible modifications to the fee structure, which would create incentives for counsel to read and consider material and advise their clients accordingly in line with the proposed discounted guilty plea scheme.

Several of the recommendations of the Criminal Justice Ministerial Taskforce do not necessarily entail legislative reform but are aimed at cultural changes to both the system and the practices of key players. The courts have themselves put in place modifications to committal processes, trialing case conferencing in the Magistrates Court. The District Court began in 2011 a trial of special directions hearings for criminal matters. The objective of case conferencing and special directions hearings is to identify matters that can be resolved at an early stage rather than near the trial date or to narrow the issues at trial.

Early indications are that both initiatives are delivering positive results.

Further, in recognition of the need to deal with the time taken to finalise prosecution briefs and the flow-on effects that this, and prosecution disclosure, have on defence disclosure and time taken to resolve criminal matters or ready them for trial, the Government has asked the Honourable Brian Martin AO QC to chair a committee. The committee consists of members who are representatives of the Office of the Director of Public Prosecutions and South Australia Police, and will inquire into practices and procedures relating to the preparation and presentation of major indictable prosecution briefs.

Matters not proceeding as major indictable files and trials vacated as a result of nolle prosequis or late guilty pleas represent an inefficiency in the criminal justice system. Courts and lawyers are expensive and should not be involved in processes which do not advance matters. Accurate, informed and early decisions on charging in major indictable matters is crucial to the appropriate and efficient use of the court system and resources. Timely and effective prosecution disclosure, with a substantially completed brief, in a major indictable matter at a sufficiently early stage should mean a defendant knows the case they have to meet and whether they should be entering an early plea of guilty. The committee has been asked to make recommendations on changes to practices, procedures and legislation to achieve the following:

Improve efficiency in the preparation of major indictable briefs;

Facilitate timely and early disclosure of major indictable briefs; and

Facilitate early and authoritative decision-making in relation to major indictable briefs by both the DPP and defence.

Reforms arising from the work of the committee would be expected to have a significant impact on time taken to finalise major indictable matters by guilty plea or trial in the superior courts.

The Chief Magistrate has also established a substantial inquiry into the processes of the Magistrates Court, to achieve similar aims in that jurisdiction. The Court Process Redesign Project is being steered by the court with a view to driving greater efficiencies to enable matters routinely heard in the Magistrates Court to be disposed of more efficiently.

Several recommendations of 2009-10 Thinker in Residence, Judge Peggy Hora (retired Judge of the Superior Court of California) in her report, 'Smart Justice: Building Safer Communities, Increasing Access to the Courts, and Elevating Trust and Confidence in the Justice System' (November 2010) are also implemented by this Bill, in particular her recommendations to increase the small claims jurisdiction and criminal jurisdiction of the Magistrates Court.

A wide range of other measures are currently being worked on or actively considered to improve access to justice and the effectiveness of the present system. These include amendments to the Evidence Act 1929 in order to facilitate the giving of evidence by young children and mentally disabled persons. This important measure will also facilitate the effective progress and presentation of such cases within the criminal courts.

The measures in this Bill are designed to work in conjunction with the above projects to reduce the current delays in criminal cases coming to trial and to reduce the backlog of cases awaiting finalisation. Ultimately, the objective is to improve outcomes for victims of crime and meet community expectations for the timely dispensing of justice while maintaining appropriate checks and balances to protect the provision of substantive and procedural justice to defendants.

I stress that it is not intended that this Bill, by itself, resolve the diverse issues that lead to delays in the criminal justice system. The measures in this Bill are an incremental step in achieving that objective and must be seen as a piece of a much larger puzzle of the programs and proposals I have referred to, aimed at increasing the efficiency and speed of the justice system. In fact, there may be pieces to this puzzle that are yet to be identified and the Government welcomes input and suggestions from those who have an interest in seeing improvements made to the courts and the criminal justice system. Not all of the solutions will be legislative and not all need sit together in one piece of amending legislation.

It is again acknowledged that this Bill standing alone will not have a significant impact on the creation of system-wide efficiency. However that in itself is not sufficient reason to delay the introduction of these minor system improvements that have been recommended and supported by various players in the criminal justice system. As previously explained, it is intended that these reforms form part of a suite of measures to address the many and various causes of delays in the criminal justice system.

The Bill

The substance of the Bill was released for consultation in the form of a discussion paper in late 2010. 20 responses were received, including from the Chief Justice, Chief Judge and Chief Magistrate, the Office of the Director of Public Prosecutions, South Australia Police and the Commissioner for Victims' Rights. The key purpose of consultation in the form of a discussion paper was to identify any risks or procedural or operational issues with the proposals before seeking to draft a Bill. In this way, the Government has received the indispensable advice of the key users of the court system to devise a suitable package of reforms. Refinements have made to the proposals along the way as a result of the valuable input from these parties.

A number of interested parties, including the courts and legal profession, were also consulted on the form of the draft Bill. Submissions from these parties were considered by the Government in finalising the Bill.

The changes contained in this Bill will:

Make pre-trial rulings binding on a different trial Judge

The Bill provides that rulings made on any matter pursuant to section 285A of the Criminal Law Consolidation Act 1935 in advance of trial are binding on the trial Judge irrespective of whether the rulings were made by the trial Judge. This will increase efficiency and timeliness in the criminal jurisdiction.

Provide for an appellant's presence at appeal to be satisfied by audio visual link

In 2006, the Evidence Act 1929 was amended to insert Part 6C Division 4 (use of audio and audio visual links). The Division provides that evidence and submissions may be received by the court by audio visual or audio link where the required facilities exist (including for confidential communication between lawyer and client). It also introduced a default rule that most pre-trial remand proceedings in the Magistrates Court be conducted by audio visual link where the facilities are available. There are several exceptions to that rule, including the requirement for personal attendance at first appearances, committal proceedings where oral evidence is to be taken and inquiries into the defendant's fitness to stand trial.

The higher courts are in the process of increasing their use of audio visual links (video-conferencing) between the courts and prisons for criminal proceedings. This is happening administratively.

One proposal for increased use of video-conferencing that would require legislative change is to provide for an accused to be present during the hearing of their appeal by audio visual link from prison rather than in person in court.

Section 361 of the Criminal Law Consolidation Act 1935 currently provides that an appellant is entitled to be present at an appeal to the Court of Criminal Appeal except for appeals on a question of law alone, applications for permission to appeal and other preliminary or incidental proceedings to an appeal, in which case the appellant may be present only with the permission of the Full Court or pursuant to Court rules.

As distinct from other hearings in which the accused might actually participate, it is fair to argue that attendance by audio visual link for appeals, in which there is no participation by the accused, is sufficient. By way of analogy, an appellant/applicant to the High Court has no right to be present during High Court appeals.

If all appellants witnessed their appeal hearings via audio visual link rather than in person in the courtroom, it may be possible to free up a courtroom in the Sir Samuel Way Building for the hearing of more jury trials.

The idea is that removing the existing legislative obstacle would enable the Court to issue a practice direction, when it is realistic, to direct that appellants attend appeals by audio visual link rather than in person. This could occur at such time as the Court is satisfied that this is administratively workable from the perspective of availability of video-conferencing facilities and Corrections staff.

Improve mechanisms for correcting technical errors in the sentencing process

In Mallett v Police [2007] SASC 102 doubts were raised by the Supreme Court about the ability for the Magistrates Court to bring a matter back on to correct a sentencing error. The case highlighted questions or limitations on the ability of courts to correct sentencing errors. These difficulties will be addressed by amending:

section 9A of the Criminal Law (Sentencing) Act 1988 to allow the court to invoke section 9A of its own motion (i.e. to make orders to rectify a sentencing error of a technical nature, whereas presently this power is only on application by the prosecution or defendant); and

section 76A of the Summary Procedure Act 1921 to make it clear that the time limit to set aside an order made in error and re-hear the matter does not apply where the court is acting of its own motion. This was the intention of the provision, however, the courts have not interpreted the provision as intended (e.g. Police v Alikaris [2000] SASC 163).

These amendments will reduce the need for costly appeals to correct errors of a technical nature, such as errors in calculating non-parole periods and taking into account time previously served.

Allow administrative extension of period for completing community service order

The Bill amends the Criminal Law (Sentencing) Act 1988 to provide that the Minister for Correctional Services, and the Minister for Education and Child Development in the case of youths ordered to perform community service by the Youth Court, may extend the period of time during which an order for community service must be completed by up to 6 months where sufficient reason, such as illness, exists. The provision will not limit the power of the courts to vary the terms of a community service order, however it will save on court and Correctional Services' resources in those cases where an extension of time is warranted and could avoid the offender breaching the order.

Increase the maximum sentence of imprisonment that may be imposed by a Magistrate

Section 19(3) of the Criminal Law (Sentencing) Act 1988 currently provides that a Magistrates Court (constituted by a Magistrate) does not have the power to impose a sentence of imprisonment that exceeds two years. The Court has power under section 19(5) of the Criminal Law (Sentencing) Act 1988 to remand a defendant to appear for sentence in the District Court if the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limit prescribed by section 19(3).

The Bill will increase the maximum sentence of imprisonment that may be imposed in the Magistrates Court for a single offence from two years to five years. This amendment is critical to expanding the matters able to be dealt with for sentencing in the Magistrates Court, which is outlined below.

A further amendment will set a maximum sentencing limit for the Magistrates Court when sentencing for multiple offences. As it now stands, the sentencing jurisdiction of the Magistrates Court is and will remain effectively unlimited except by the number of offences being considered. This result is achieved by legal authority which says the sentencing limitation on the Magistrates Court applies to each offence separately.

While currently a Magistrate is limited to a maximum term of imprisonment of two years for a single offence, if imposing sentence for more than one offence, the Magistrate may impose a sentence greater than two years imprisonment. That is so whether the Magistrate sentences globally or individually. For example, should the sentencing limit be raised to five years and there are three offences of theft, effectively the limit on the power of the Magistrates Court to sentence would be 15 years. A maximum sentencing limit to apply to the Magistrates Court when sentencing for more than one offence will prevent the incongruous situation in the above example. The maximum sentencing limit of the Magistrates Court for more than one offence will be set at 10 years imprisonment.

Increase the criminal jurisdiction of the Magistrates Court

The Bill will enable Magistrates to impose sentence where a defendant has pleaded guilty to a major indictable offence in the Magistrates Court. Currently the Magistrates Court has jurisdiction to try and sentence for summary offences and minor indictable offences where an accused does not elect for trial in a superior court. Major indictable offences presently may only be finalised in the superior courts.

Allowing Magistrates to sentence for major indictable offences where the accused pleads guilty should lead to increased efficiency in the disposal of a criminal file and alleviate some of the delay that would be experienced should the matter be required to be finalised in the District Court. Currently, for example, where an accused pleads guilty to a major indictable offence at the committal stage, the matter must be committed by the Magistrates Court to a superior court for sentencing. This is so, even if the facts of the matter or the nature of the offending would suggest the appropriate penalty would be within the range able to be imposed by a Magistrate.

This amendment will mean the Magistrates Court will be able to impose sentence for a major indictable offence where the defendant has pleaded guilty and both the defendant and the Director of Public Prosecutions consent to the matter being sentenced in the Magistrates Court. The Magistrates Court will then determine and impose sentence itself unless the Court is of the opinion that the interests of justice require committal to a superior court.

The limits on the sentencing jurisdiction of the Magistrates Court will apply to offences dealt with in this manner. Without the proposed amendment in this Bill to increase the sentencing limit of the Magistrates Court, there is a risk of matters still requiring transfer to the District Court for sentence, where the appropriate penalty for the offending is outside the range a Magistrate can impose.

The power in section 19(5) of the Criminal Law (Sentencing) Act 1988 to remand a defendant to appear for sentence in the District Court if the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limit of the Magistrates Court will be available if the Magistrate considers the defendant may not be adequately punished, even with the proposed extended sentencing powers of the Magistrates Court.

There are efficiencies and other benefits to be gained in permitting the Magistrates Court to impose sentence in these circumstances. If a guilty plea is entered some way into committal proceedings the Court will already have some knowledge of the circumstances of the offending and the delays in waiting for a matter to be committed to a superior court for sentence can be avoided. In addition, where an accused is on bail and the matter is before a regional Magistrates Court, the matter can be dealt with in that community without the need for the defendant, and in some cases the victim, to travel long distances for a short hearing.

Although, it would be expected most guilty pleas will be entered at committal stage, the incidence of early pleas may in fact be greater with the introduction of the formal sentencing discount scheme. A feature of the guilty pleas sentencing discounts Bill currently before Parliament is that a significant discount will be available for guilty pleas entered prior to the defendant being committed for trial. In reality, a plea of guilty could be entered at the first appearance or indicated early and disposed of at a subsequent hearing. This would greatly reduce the court time and resources required for disposing of a major indictable offence.

An appeal against a sentence imposed by a Magistrate for a major indictable offence will be to the Court of Criminal Appeal, as is the case with major indictable offences sentenced before superior courts.

Increase the civil jurisdiction of the Magistrates Court

The Bill amends the Magistrates Court Act 1991 to increase the civil jurisdiction of the Magistrates Court.

The increase was proposed by the Chief Magistrate in order to keep in line with other jurisdictions and improve access to justice.

The increase will also potentially have a positive impact on the criminal trial delays in the District Court by keeping more civil matters out of that Court, thus reducing the demand on District Court resources.

The monetary limits will be increased:

from $6,000 to $12,000 for small claims; and

from $40,000 (general claims) and $80,000 (motor vehicle injury and property claims) to $100,000 for all such claims.

A potential negative impact on the ability of parties to represent themselves in the enlarged small claims jurisdiction (in which the default rule is that parties represent themselves) must be weighed against the positive impacts of reduced cost of litigation and improved access to justice, with parties seeking to enforce their rights where otherwise the costs of doing so would outweigh the relatively small value of their claim. The impact on the parties as a result of lack of legal representation is ameliorated in any event by the Magistrate taking on an inquisitorial role in exploring the claim.

Allow expiation of offences in section 24 of the Summary Offences Act 1953

Section 24 of the Summary Offences Act 1953 provides that a person who urinates or defecates in a public place within a municipality or town, elsewhere than in premises provided for that purpose, is guilty of an offence. The maximum penalty for the offence is currently a fine of $250. Offences against section 24 are summary offences and presently an accused person must be brought before the Magistrates Court for the charge to be dealt with.

Court statistics show that, for example, in 2008 there were 349 matters before the Magistrates Court where this offence was the major offence charged. There were findings or pleas of guilt in 335 of those cases, with the remaining matters withdrawn, dismissed or discontinued as the prosecution tendered no evidence. These matters are clearly non-contentious and it is unnecessary to devote valuable court resources to the finalisation of offences against section 24. Offences against section 24 are also relatively clear-cut offences, meaning it will generally be evident to police whether or not the offence was committed.

This Bill will amend section 24 to make the offences contained therein expiable. This avoids the need for police to bring a person accused of infringing section 24 before a Magistrate. The availability of expiation to dispose of this offence should be more cost effective and efficient for both the accused person and the court system.

Of course, a person issued with an expiation notice under section 24 may choose to be prosecuted for the offence instead.

Allow Youth Court Magistrates to sentence for major indictable offences

The Youth Court Act 1993 is amended to allow Youth Court Magistrates to impose sentence for major indictable offences.

The Senior Judge of the Youth Court has argued strongly for this change. This issue is not one of reducing Youth Court waiting lists, which are not currently a cause of concern, rather of increased efficiency and reduced transportation costs. It is argued that it is a waste of court resources to send a Judge to a regional or remote court to deal with a guilty plea, even where this is a major indictable offence. If the parties do not need to wait for a Judge to be sent on circuit, uncontested cases could be disposed of earlier, increasing the effectiveness of the sanction imposed on the youth and saving youths, and potentially victims, the time and cost of travelling to the Youth Court in Adelaide or the nearest circuit court location.

In the case of Youth Court Magistrates, they will have the power to impose sentence for a major indictable offence where a defendant young person pleads guilty without requiring the consent of the prosecution or defendant. A different approach to the issue of parties' consent is justified in the Youth Court. The concern is of youths refusing consent because they do not like a particular magistrate or to delay their matter, in the circumstance where the difference in sentencing power between Youth Court Magistrates and Judges is only one year, i.e. two years and three years, respectively. A different approach is also warranted because in the case of the Youth Court there is no remittance of a matter from a lower to a higher court, rather the matter stays within the Youth Court.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure is to commence of a day to be fixed by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Building Work Contractors Act 1995

4—Amendment of section 40—Magistrates Court and substantial monetary claims

Section 40 of the Building Work Contractors Act 1995 provides that if proceedings before the Magistrates Court involve a monetary claim for an amount exceeding $40,000, the Court must, on the application of a party to the proceedings, refer the proceedings to the Civil Division of the District Court. This clause amends section 40 by changing the Magistrates Court limit to $100,000.

5—Transitional provision

The amendment made to the Building Work Contractors Act 1995 will only apply to proceedings commenced following the commencement of the amendment.

Part 3—Amendment of Controlled Substances Act 1984

6—Amendment of section 32—Trafficking

7—Amendment of section 33B—Cultivation of controlled plants for sale

8—Amendment of section 33C—Sale of controlled plants

Under each of these sections of the Controlled Substances Act 1984, certain offences involving cannabis are to be prosecuted, and dealt with by the Magistrates Court, as summary offences. However, if the Court determines that a person found guilty of the offence should be sentenced to a term of imprisonment exceeding 2 years, the Court is required to commit the person to the District Court for sentence. Under the sections as amended by these clauses, the Court will be required to commit a defendant to the District Court for sentence if it determines that he or she should be sentenced to a term of imprisonment exceeding 5 years.

9—Transitional provision

The amendments to the Controlled Substances Act 1984 apply to the sentencing of a person following the commencement of Part 3 whether the relevant offence occurred before or after that commencement.

Part 4—Amendment of Criminal Law Consolidation Act 1935

10—Insertion of section 285AB

This clause inserts a new section.

285AB—Determinations of court binding on trial judge

Proposed section 285AB makes it clear that a determination or order made by a judge of the court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of proceedings, discontinuance of an earlier trial or an appeal. This principle does not apply if the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or if the determination or order is inconsistent with an order made on appeal.

11—Amendment of section 361—Right of appellant to be present

Section 361 of the Criminal Law Consolidation Act 1935 provides an appellant with the right to be present on the hearing of an appeal, despite the fact that he or she is in custody, unless the appeal is on a ground involving a question of law alone. The section as amended by this clause will provide that an appellant's entitlement to be present at the hearing of an appeal will be satisfied if there is an audio visual link between the appellant and the court.

12—Transitional provision

The amendments to the Criminal Law Consolidation Act 1935 are procedural rather than substantive.

Part 5—Amendment of Criminal Law (Sentencing) Act 1988

13—Amendment of section 9A—Rectification of sentencing errors

Section 9A of the Criminal Law (Sentencing) Act 1988 authorises a court that imposes a sentence on a defendant, or a court of coordinate jurisdiction, to make any orders required to rectify an error of a technical nature made by the sentencing court in imposing the sentence. The court may also make orders necessary to supply a deficiency or remove an ambiguity in a sentence. Currently, such orders can only be made on application by the Director of Public Prosecutions or the defendant. Under subsection (1) as recast by this clause, the court may also make the required orders on its own initiative. The subsection as recast also explicitly allows for such orders to be in respect of the purported imposition of a sentence.

14—Amendment of section 19—Limitations on sentencing powers of Magistrates Court

Under section 19 of the Criminal Law (Sentencing) Act 1988, the Magistrates Court cannot impose a sentence of imprisonment that exceeds 2 years. As amended by this clause, section 19 will allow the Court to impose a maximum sentence of imprisonment of 5 years for a single offence and 10 years for more than 1 offence.

An amendment is also made to subsection (4) to reflect the fact that, as a consequence of proposed amendments to the Summary Procedure Act 1921, the Magistrates Court will have the power to sentence a person for a major indictable offence if the offence is admitted by the defendant.

15—Amendment of section 50A—Variation of community service order

The amendment made to section 50A by this clause gives the Minister for Correctional Services the power to extend the period within which a person is required to complete the performance of community service. The Minister can do this if satisfied that the person will not complete the community service in the time required under the order or bond and that sufficient reason exists for the person not being able to complete the community service in the required time.

There is currently a power under section 50A for a court, on the application of the Minister or a person sentenced to perform community service, to vary the terms of the order or vary or revoke any ancillary order.

Under the section as amended, the period within which community service must be performed cannot be extended by a period of more than 6 months, or periods that, in aggregate, exceed 6 months.

If the Minister extends the period, the order or bond will be taken to have been amended accordingly. The Minister is required to notify the probative or sentencing court if he or she exercises his or her powers under the section.

16—Amendment of section 70L—Community service orders

Under section 70L, an authorised officer who is satisfied that a youth required to pay a pecuniary sum does not have, and is unlikely to have within a reasonable time, the means to satisfy the debt may make a community service order. The officer must also be satisfied that the youth or her or his dependants will suffer hardship.

The section as amended by this clause will allow a person required to perform community service in accordance with the order of an authorised officer to apply to an authorised officer for an extension of the period within which the community service is to be completed.

17—Transitional provisions

The amendments to sections 9A, 50A and 70L of the Criminal Law (Sentencing) Act 1988 are procedural rather than substantive.

The amendment to section 19 applies to the sentencing of a person by the Magistrates Court following the commencement of Part 5 whether the relevant offence occurred before or after that commencement.

Part 6—Amendment of Domestic Partners Property Act 1996

18—Amendment of section 3—Interpretation

Under the definition of court in the Domestic Partners Property Act 1996, 'court' means the Supreme Court or the District Court or, if an application under the Act relates to property valued at $80,000 or less, the Magistrates Court. This clause amends the definition by increasing the relevant amount from $80,000 to $100,000. This means that if an application relates to property valued at $100,000 or less, 'court ' will mean the Magistrates Court.

19—Transitional provision

The amendment to the Domestic Partners Property Act 1996 will only apply to proceedings commenced following the commencement of the amendment.

Part 7—Amendment of Magistrates Court Act 1991

20—Amendment of section 3—Interpretation

Under the definition of minor statutory proceeding in the Magistrates Court Act 1991, an application under the Retail and Commercial Leases Act 1995 is a minor statutory proceeding unless it involves a monetary claim for more than $12,000. This clause amends the definition by increasing the relevant amount to $24,000 so that, under the definition as amended, an application under the Retail and Commercial Leases Act 1995 will be a minor statutory proceeding unless it involves a monetary claim for more than $24,000.

This clause also amends the definition of small claim so that a small claim is a monetary claim for $12,000 or less. Currently, a small claim is a claim for $6,000 or less.

21—Amendment of section 8—Civil jurisdiction

Section 8 of the Magistrates Court Act 1991 provides that the Court has jurisdiction to hear and determine an action for a sum of money where the amount claimed does not exceed $80,000 in the case of a claim relating to the use of a motor vehicle or $40,000 in any other case. Under the section as amended, the Court will have jurisdiction to hear and determine an action for a sum of money where the amount claimed does not exceed $100,000.

22—Amendment of section 9—Criminal jurisdiction

Under section 9 of the Magistrates Court Act 1991 as amended by this clause, the Court will have jurisdiction to determine and impose sentence on a defendant who admits a charge of a major indictable offence. However, the Court cannot sentence a person who admits a charge of treason, murder or an attempt or conspiracy to commit, or assault with intent to commit, treason or murder.

23—Amendment of section 42—Appeals

An appeal in relation to a sentence passed on the conviction of a person of a major indictable offence is to be to the Full Court of the Supreme Court with the permission of the Full Court.

24—Transitional provision

The amendments made to sections 3 and 8 of the Magistrates Court Act 1991, which affect the civil jurisdiction of the Court, do not apply in respect of proceedings commenced before the commencement of the amendments.

The amendments to sections 9 and 42 of the Magistrates Court Act 1991, relating to the Court's criminal jurisdiction, apply in relation to the sentencing of a person by the Court following the commencement of Part 7 whether the relevant offence occurred before or after that commencement.

Part 8—Amendment of Mining Act 1971

25—Amendment of section 67—Jurisdiction relating to tenements and monetary claims

Under section 67 of the Mining Act 1971, the Warden's Court currently has jurisdiction to determine a monetary claim for up to $40,000. Under the section as amended by this clause, the Court will have jurisdiction to determine a monetary claim for not more than $100,000.

26—Transitional provision

The amendment to the Mining Act 1971 will only apply to proceedings commenced following the commencement of the amendment.

Part 9—Amendment of Opal Mining Act 1995

27—Amendment of section 72—Jurisdiction relating to tenements and monetary claims

Under section 72 of the Opal Mining Act 1995, the Warden's Court currently has jurisdiction to determine a monetary claim for up to $40,000. Under the section as amended by this clause, the Court will have jurisdiction to determine a monetary claim for not more than $100,000.

28—Transitional provision

The amendment to the Opal Mining Act 1995 will only apply to proceedings commenced following the commencement of the amendment.

Part 10—Amendment of Retail and Commercial Leases Act 1995

29—Amendment of section 69—Substantial monetary claims

Section 69 of the Retail and Commercial Leases Act 1995 requires the Magistrates Court to refer a proceeding involving a monetary claim for an amount exceeding $40,000 to the District Court if a party to the proceeding applies for the referral. Under the section as amended by this clause, the Court will be required to refer a proceeding to the District Court on application if the amount claimed exceeds $100,000.

30—Transitional provision

The amendment to the Retail and Commercial Leases Act 1995 will only apply to proceedings commenced following the commencement of the amendment.

Part 11—Amendment of Summary Offences Act 1953

31—Amendment of section 24—Urinating etc in a public place

The offence of urinating or defecating in a public place is not currently expiable. This clause amends section 24 of the Summary Offences Act 1953 by inserting an expiation fee of $80.

Part 12—Amendment of Summary Procedure Act 1921

32—Amendment of section 76A—Power to set aside conviction or order

Section 76A of the Summary Procedure Act 1921 authorises the Magistrates Court to set aside a conviction or order on its own initiative or on application of a party. An application to set aside a conviction or order must be made within 14 days after the applicant receives notice of the conviction or order. Subsections (1) and (2) are recast by this clause to remove any perceived ambiguity as to whether the 14 day limit applies in relation to the Court exercising the power to set aside a conviction or order on its own initiative.

33—Amendment of section 103—Procedure in Magistrates Court

Under section 103 of the Summary Procedure Act 1921 as amended by this clause, if a defendant charged with a major indictable offence admits the charge before it proceeds to a preliminary examination, the Magistrates Court may either determine and impose sentence on the defendant or commit the defendant to a superior court for sentence. The Court's discretion operates subject to new section 108(1), which provides that if a defendant admits a charge of a major indictable offence, and the Director of Public Prosecutions for the State or the Commonwealth and the defendant consent, the Court is to determine and impose sentence itself unless the interests of justice require committal to a superior court.

34—Amendment of section 105—Procedure at preliminary examination

Section 105 of the Summary Procedure Act 1921 deals with the procedure to be followed at the preliminary examination of a charge for an indictable offence. Currently, if a defendant admits the charge, whether in writing or in person, the Magistrates Court is to commit the defendant to a superior Court for sentence. Under the section as amended by this clause, the Court may determine and impose sentence on the defendant (in the same way as a charge of a summary offence) or commit the defendant to a superior Court for sentence. The Court's discretion operates subject to section 108(1), to be inserted by clause 35, which provides that if a defendant admits a charge of a major indictable offence, and the Director of Public Prosecutions for the State or the Commonwealth and the defendant consent to the defendant being sentenced by the Court, the Court is to determine and impose sentence itself unless the Court is of the opinion that the interests of justice require committal to a superior Court.

35—Amendment of section 108—Forum for sentence

This clause inserts a new subsection into section 108. Under the proposed subsection, if a defendant admits a charge of a major indictable offence, and the Director of Public Prosecutions for the State or the Commonwealth and the defendant consent to the defendant being sentenced by the Court, the Court is to determine and impose sentence itself unless the Court is of the opinion that the interests of justice require committal to a superior Court.

36—Amendment of heading to Part 5 Division 5

37—Amendment of section 114—Procedural provisions of Criminal Law Consolidation Act

The amendments made by these clauses are consequential on the proposal to give the Magistrates Court the power to determine and impose sentence where a defendant has admitted a major indictable offence.

38—Transitional provisions

The amendment to section 76A of the Summary Procedure Act 1921 applies in respect of convictions and orders made before or after the commencement of the amendment.

The amendments to sections 105 and 108 of the Summary Procedure Act 1921 apply in respect of the procedure to be followed if a defendant admits a charge of a major indictable offence following the commencement of Part 14 whether the relevant offence occurred before or after that commencement.

Part 13—Amendment of Unclaimed Goods Act 1987

39—Amendment of section 3—Interpretation

This amendment to the definition of Court in the Unclaimed Goods Act 1987 has the effect of increasing the jurisdiction of the Magistrates Court so that it can determine a question affecting unclaimed goods of a maximum value of $100,000. The current maximum is $80,000.

40—Transitional provision

The amendment to the Unclaimed Goods Act 1987 will only apply to proceedings commenced following the commencement of the amendment.

Part 14—Amendment of Youth Court Act 1993

41—Amendment of section 14—Constitution of Court

Section 14(3) of the Youth Court Act 1993 provides that the Court, when constituted of a Magistrate, may not impose a sentence of detention for more than 2 years. Under the section as amended by this clause, the Youth Court may be constituted of a Magistrate when sitting to determine and impose sentence on a defendant who has admitted a charge of a major indictable offence.

42—Transitional provisions

The amendments to the Youth Court Act 1993 apply in respect of the sentencing of a person by the Youth Court following the commencement of Part 14 whether the relevant offence occurred before or after that commencement.

Debate adjourned on motion of Mr Pederick.