STATUTES AMENDMENT (COURTS EFFICIENCY REFORMS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 March 2012.)

Ms CHAPMAN (Bragg) (16:08): I rise to speak on behalf of the opposition on the Statutes Amendment (Courts Efficiency Reforms) Bill 2012. Except for some amendments, which I will foreshadow in my contribution, the opposition will otherwise be supporting the bill. I will probably be the only speaker for the opposition, although I see the member for Fisher is here, and he may be very interested in this debate.

In summary, the bill proposes to reduce court backlogs, predominantly by extending the jurisdiction of the lower criminal and civil courts and allowing some functions of the court to be handled administratively. Very specifically, it is to make pre-trial determination to judicial officers binding on the trial judge and allow video and audio links from the present facilities to be deemed to be a person's presence at an appeal hearing.

The bill also allows courts to correct technical errors in sentencing at their own volition. It allows the minister, in addition to the court, the power to extend the time period in which a person can serve community service. It increases the sentencing jurisdiction of the magistrate from two to five years' imprisonment for a single offence and a cumulative total of 10 years, and increases the jurisdiction of the civil court from $6,000 to $12,000 for small claims and to $100,000 for general claims. They currently have limits of $40,000; motor vehicle injury and property claims are currently $80,000.

The bill also allows the Youth Court magistrate to impose sentences for major indictable offences. Under the proposed changes, the jurisdiction of the Magistrates Court will be explicitly limited so that it cannot consider charges of treason, murder or conspiracy, or intent to commit either of the two. I am not sure how many treason cases we have had in any court in South Australia in recent times; nevertheless, it does seem to be an issue, especially if one ever reads the Criminal Law Consolidation Act schedules and sees the edicts of previous kings and queens on treason. I am surprised anyone would understand it in any court. In any event, it does seem to be an area which they should not. Historically though, magistrates have been competent to hear, at first instance, murder charges. Nevertheless, this is a matter which clearly is always ultimately determined in a superior court and seems to have merit. The opposition supports most of these recommendations.

In short, the history is that seven years ago, in November 2005, the Chief Justice and Chief Judge requested that His Honour Judge Paul Rice commission a report to consider court delays and the means of improving the efficiency of the court system. The Rice report was released in 2006 and identified that court delays had resulted from a range of factors, including the length of pre-trial preparation of the office of the DPP, non-enforcement by magistrates of the Summary Procedure Act and increased penalties.

The report also identified that there was an expectation of increase in delays resulting from new child pornography, criminal neglect, instruments of crime, traffic and aggravated offences, in the ramping up of penalties and processes, and even the law, in a number of these areas. Of course, we had the Mullighan inquiry and the flow of cases from that, and there was an expectation that this would cause even more chronic delays. There were a number of solutions that were indicated. I suppose it is interesting as to what the government has picked out of this, but in any event for that which they have considered, this package seems to be mostly meritorious, although there are a couple of areas that I indicate we will be looking at for some change.

In October 2006, the former attorney-general, Michael Atkinson, formed the Criminal Justice Ministerial Taskforce to examine how the court system could be more efficient. The taskforce recommended increasing the jurisdiction of the Magistrates Court by allowing more serious offences to be heard in the Magistrates Court. However, the government has proposed that instead of offence types, sentence lengths be the determinate of the jurisdiction. So, it has not necessarily followed a number of these recommendations.

In any event, on 18 December 2010, the relatively new Attorney-General announced public consultation on the draft bill, to close on 11 February 2011. While the Law Society has expressed general support for the reforms, it has suggested that a number of clarifying amendments be made. The opposition considers that it is critical of the extension of jurisdiction of the Magistrates Court by sentencing length, rather than offence type. The Society argues that having more serious matters, like rape, cause death and manslaughter, should always be heard by the District Court to preserve the public perception of the seriousness of offences like these. Instead, the Law Society proposes that the recommendations of the CJMT relating to jurisdiction be adopted.

The opposition accepts that the majority of changes will help the courts be more efficient. I will summarise the areas of concern. The first is the appearances in court by CCTV. Audiovisual links could be an effective way of reducing costs and time required to conduct hearings for persons in custody. However, the technical capacity to appear by audio or video link may not satisfy the person in custody's desire to be present at the hearings. Technical problems may mean a person cannot see or hear proceedings, yet there is no requirement for a court to ensure that an audiovisual link is fully utilised or functional. While we support reforming the law to allow the person to appear by audiovisual link, should they consent to doing so, we consider that a person should always have the right to appear in person, should they wish to do so, as the current law provides.

Next, is the area of community service order time extensions by the minister. This is a proposal in the bill that a person who wishes to seek an extension of time of up to six months should be able to apply to the Minister for Correctional Services. Currently, the minister can apply to the court for an extension to be made, but they cannot make the variation themselves. Such a change might be considered to usurp the court's power by way of an administrative function and, in doing so, offend the separation of powers, and therefore be unconstitutional. It is also inappropriate for a minister to second-guess—and indeed potentially even politicise—the determination of a court. The minister would be held accountable for a decision previously made by a court and, for these reasons, this change is certainly opposed.

Then we come to the small claims court jurisdiction. The government is proposing to increase the small claims court jurisdiction from $6,000 to $12,000. The threshold has not increased since 1991. Such a change is long overdue and follows the private member's bill of the member for Norwood, which proposes an increase to $25,000. This proposal was endorsed by the opposition and we are very keen to continue to support the proposed threshold of $25,000, which is consistent with the current Queensland position.

In essence, yes, it is important that we update and contemporise the thresholds for the South Australian jurisdiction. It is now some 20 years or more since this was reviewed and it clearly needs to be increased. We, however, think that the member for Norwood was on a good thing (and, as the commercial says, stick to it) and that the $25,000 should be there. We will introduce an amendment in another place to cover that.

Finally we have retrospectivity. The government is proposing that changes to the jurisdiction of the Magistrates Court in relation to criminal proceedings should be retrospective. In other words, the sentencing powers of magistrates would be extended even for those cases already before the courts. Retrospective provisions should be opposed on principle and may cause disruption and confusion for cases already being heard which may have otherwise been heard in a superior court.

The government has provided no justification for the retrospectivity other than, it seems, to suggest that dealing in this manner with all of the cases in the pool would be appropriate. That is a principle, just like the separation of powers, which the opposition suggests should not be offended and, accordingly, we oppose the retrospectivity aspect.

In short, we say: protect the person's right to attend a hearing in person if they so wish; remove the proposed ministerial power, which is clearly a breach of the separation of powers in having the executive interfere with a judicial function; increase the proposed small claims jurisdiction from $12,000 to $25,000; and remove the retrospective transitional provisions. With that contribution, I indicate that we will otherwise be supporting the passage of the bill in this house.

The Hon. R.B. SUCH (Fisher) (16:18): I will make some brief comments. I think this bill has a lot of very good components. There are some aspects that I think, down the track, could be included as part of a reform package.

I have mentioned before the issue of the selection and training of magistrates, in particular post-appointment training. I have come to realise that the Magistrates Court is the most important court. Judges probably think their courts are more important, but I believe the Magistrates Court is the most important because, if matters are resolved there or dealt with there, that is generally the end of the matter. However, the whole basis of our court system is predicated on having suitably qualified and appropriate magistrates, and in particular that their post-appointment training is relevant to some of the new technology that arises from time to time. I think that needs to be addressed.

I think the system is very cumbersome in the Magistrates Court. I can only go on my own experience. That is the only time I have ever been there, apart from taking students. I think I attended about eight times in the lead-up to a three-day trial. I think the whole concept and the amount of time involved, for what is a relatively minor traffic offence, is ridiculous, such as the number of adjournments because the prosecutor wants to go to Europe and all this sort of thing.

I think the court system needs to be a lot stricter on people having matters adjourned. It is a bit like private members' time here: there are so many adjournments that, by the time the magistrate has dealt with those, there is not much time left to do anything else. I think it was the visiting thinker in residence who suggested that lawyers who delay should be penalised in some way. I think that should apply to the prosecution, too.

The Magistrates Court in particular, I believe, is increasingly bogged down with what I would call minor traffic matters. I was talking to someone who approached me in the street yesterday, who said he was going to contest something in court. The police had followed him through five intersections. Finally, he pulled over and then they pulled over and he said, 'Are you following me?' They said, 'Yes, you went through an amber light four intersections ago.' He is going to contest that in court. What an incredible burden on the state. You are going to have a magistrate and all the court processes tied up with that.

I support getting a lot of those minor issues out before someone—whether you call them a traffic ombudsman, or like New South Wales that has an independent assessment panel that looks at these issues. More and more people are saying, 'I've got the right to go to court.' You are going to bog the system down. You are paying magistrates a significant income, and all the support that goes with running a court, and you are bogging them down. I get the feeling—I could be wrong—that magistrates get annoyed and resent having to spend a lot of their time on whether Johnnie had his tail light on or not.

I believe there are some sensible alternatives. As I say, New South Wales has a system for minor traffic matters—we are not talking about hit-run and things like that—such as whether a person had the numberplate correctly displayed on their bikes on the back of the car. That sort of thing should not end up in court. It is just nonsense; it is ridiculous.

I know it is not part of this bill, but I would urge the Attorney to look at that as a way of promoting greater efficiency and effectiveness in the court system to get a lot of those minor traffic matters before a technically-qualified panel. You could have some JPs who have technical expertise in road engineering, a retired police officer, or whatever, to have a look at the matter, rather than the current system where the person in effect appeals to Caesar, who issued the expiation in the first place. Not only is it bad practice to have the people who issued it assessing it—I think that is really bad and fundamentally wrong—but I think it would be a lot more efficient in terms of the court process to keep a lot of those traffic matters out of the court system.

I have canvassed in the past the idea of having a specialised traffic court. I think a better approach is to have either a person or a body outside of the court that can look at contested expiations and minor traffic matters. I think it would be a good investment. There are a few other things. Even to this day I am not sure whether in my case we even had a pre-trial conference. I know the magistrate got cross, because he said, 'Why wasn't this particular matter raised in the pre-trial conference?' I am not aware that we even had one. If we had one, it was so invisible that I have never seen a trace of it. I think that the processes of the court need to be tightened up to make sure that matters are not suddenly brought up or sprung on people in a trial; they should be dealt with.

It is really an extension. It is not quite a mediation approach, but a lot of these matters, surely, could be sorted out before you tied up the court for three or four days on a trial issue relating to a relatively minor traffic matter. The other thing that I find frustrating is that you have three or four different magistrates all with a different view on an issue, and you do not have any continuity because you get all these adjournments because someone wants to take a holiday, or whatever.

I think that there needs to be a bit more rigour, a bit more discipline, in the way in which the system operates, and I do not think that would in any way take away from a person's right to be heard in court or the prosecution to put a case. I think that, at times, the current system is sloppy. When I turned up on what I thought was the day of the trial there was nothing on the notice board. I asked at the office of the Magistrates Court in Adelaide and they said, 'Oh, no, it's been cancelled.' I thought, 'That's a bit strange.' She said, 'Haven't they told you?' I said no. I then had to find out. I eventually made contact with the magistrate's chambers and was told, 'Oh, no, it's on. It's on shortly.' So, even basic administrative things were pretty slapdash.

I think that there is a case for some reforms, some of them very simple, even to the point of making sure that what is put up on the list for the day is accurate and current, because, if I had decided, 'Oh, well, it's been cancelled,' and went away, I could have had a judgement made in my absence. It might have turned out to be a better judgement, but we will never know.

With those few words, I believe that this bill has a lot of good points to it, but I would urge the Attorney not to come to the conclusion that his reforming passion needs to end. I think that it has only just begun. As I say, if he picks up on some of the suggestions to keep some of the minor traffic matters out of court, I think that not only will we have a fairer system but he will save the taxpayer a lot of money.

Mr MARSHALL (Norwood) (16:27): It is my pleasure to rise to speak on the Statutes Amendment (Courts Efficiency Reforms) Bill introduced by the government last year and recently reintroduced to this house. I indicate that, as my colleague the member for Bragg has indicated in her speech, the opposition will be supporting this bill, subject to amendments in another place.

This bill proposed by the government seeks to reduce court backlogs, predominantly by extending the jurisdiction of the lower criminal and civil courts and allowing some functions of the courts to be handled administratively. I strongly support the move of the government to change the very low threshold of the current minor civil division of the Magistrates Court as is proposed here by the government.

What is often referred to as the small claims threshold is currently set at $6,000. This was the original threshold set by the Magistrates Court Act when it was originally assented to back in 1991. There has been no change to it in this time, and this has caused, I believe, major inefficiencies in our courts administration in South Australia—and it has been a major disadvantage to the small business sector, the sector which I represent here in this house.

In fact, this point was made very clearly by the government's very own Thinker in Residence, Judge Peggy Hora, who published her report in which she made the comment:

Where there is a dispute involving a large sum of money only the wealthy or corporate bodies can afford to have it resolved in a court of law.

This is because, of course, the small claims jurisdiction threshold of $6,000 meant that anything above $6,000 would need to go into the general division where both parties, generally speaking, are represented by lawyers. This pushes up the costs, and it means, really, that not only are costs increased but often justice is not served. Judge Hora was correct, and we are very pleased that the government has taken up this suggestion.

The opposition brought this matter to the attention of the parliament last year; in fact, I think it was in June or July of 2011 that I introduced a private member's bill to change the threshold for the Magistrates Court minor civil claims division from $6,000 to $25,000. When we were sitting at $6,000 it was the lowest in the country. The most recent jurisdiction to move was Queensland, and it moved that threshold to $25,000, for very good reason.

Currently, the government has seen fit to move the threshold from $6,000 to $12,000. It is a movement in the right direction, but we would put the point that we do not think it is enough. There is no mention in this bill that is put forward by the government of any mechanism to update this threshold. Given that it has not been updated for 21 years, I hope we will not get ourselves into the situation of not quite catching up to Queensland. After another 21 years we will be left right out of any real relevance with that threshold.

As I said, the low threshold does have cost impacts on the private sector and, in particular, small businesses. I believe that, by raising the threshold to $25,000, we will be allowing more small businesses, more family businesses, and individuals to achieve justice and cut down on the backlog in the general division of the Magistrates Court. I believe that by having people representing themselves instead of being represented by lawyers, this will be more cost effective and a fairer and more expedient way of resolving disputes here in South Australia. I would urge the Attorney-General to consider the threshold, and go with his party colleagues up in Queensland and set our threshold at $25,000.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:32): I thank all the contributors for their words in relation to this legislation. I just want to say a couple of things in particular. First of all, in relation to the foreshadowed matters that the member for Bragg dealt with in her contribution, I am trying not to sound like a broken record, but it would be handy if we had them in here because it would be an opportunity for us to specifically address the particular wording that the opposition would like to be considered.

What is happening is that this chamber of the parliament is being ignored, and I do not think that is helpful for anybody, quite frankly. It is very disrespectful of this chamber, particularly with legislation that commences here. I can understand if it commences elsewhere, but, if it commences here, I do not think it is unreasonable that all of us on both sides of the chamber, and the Independents, should have the opportunity of debating the particular provisions that are being suggested. I do not think that is unreasonable.

Again, I am not singling out the member for Bragg, because I am sure it is not her fault, but this happens all the time. As I said, it is disrespectful of the chamber as a whole. All it involves is somebody getting off their—

Members interjecting:

The ACTING SPEAKER (Hon. M.J. Wright): Order!

The Hon. J.R. RAU: Just let me finish. It is the parliamentary counsel who does the work. The material could be made available in this chamber. Those on the crossbenches who do not have counterparts elsewhere are completely shut out by this process—completely shut out—and they do not have the benefit of any informed debate down here about these important measures; all they get is a general sense of unhappiness about particular provisions and a general sense of acceptance of others.

I think we should also be considering the crossbenchers because they want to make up their minds about these things too, and it is not assisting their job to have that information unavailable in this chamber. That is something that I have said before, and I will continue to say it because I think it is wrong.

The next thing to say is that the member for Bragg mentioned something about serious offences in the Magistrates Court. If I correctly understand the member's point—and, again, I am handicapped because I do not know exactly what amendments are being proposed—where she has a problem is that we have said that in certain instances where an individual pleads guilty to an offence, and the prosecution and the defence are both content with it, that the Magistrates Court should be able to sentence.

If I am thinking the wrong thing please let me know, but if that is what the honourable member is talking about, that provision was there to help people in the more remote parts of the state where a District Court judge is not in town all the time. If you do have a person who has decided to plead guilty, and you do have agreement between the defence counsel and the prosecution that the magistrate who happens to be in the town all the time can deal with the matter, then that provision enables people in remote parts of South Australia not to have to wait and wait, or travel to Adelaide or a regional centre like Port Augusta or Mount Gambier or somewhere when there is a Superior Court on circuit. If that is what—

Ms Chapman interjecting:

The Hon. J.R. RAU: No? Okay; perhaps I did not understand what the honourable member was objecting to there. In relation to the small claims jurisdiction—and I think I said this last year to the honourable member for Norwood—I agree with the thrust of the private member's bill that the honourable member put up. I think I said to him that we were already working on that and he would see something, and here it is. You saw it last year and you are seeing it again this year. I was not being flippant about that.

There is no right or wrong answer about where you cut that number; it is a matter of judgement, I suppose. However, given that we all agree that $6,000 is way out of date, our judgement was that to double that would be a fair start in terms of keeping pace with community expectations. I do agree that we should obviously review it more frequently than every 21 years and I can say that if, in five years' time, I am still occupying this office I will be doing that.

I can also say this: the honourable member for Norwood is absolutely right that the amount of work created by matters in that range between $6,000 and $12,000 being in the mainstream, should I say, rather than in small claims is considerable, and this will make a substantial impact on resource allocation in the Magistrates Court. I think it will be very good for the Magistrates Court, and it is strongly supported by the Magistrates Court. However, it is not all beer and skittles because—as I am sure the honourable member for Bragg would be able to tell you—self-represented parties are not always the easiest people to manage. Sometimes something that might take 10 minutes with competent lawyers can take considerably longer with self-represented people who have read a couple of text books—

Mr Marshall interjecting:

The Hon. J.R. RAU: Possibly so, but there are some people out there who think they are pretty good at this stuff. Indeed, and without naming anyone, the honourable member for Bragg would know that there are certain serial litigants out there in Adelaide who keep the courts tied up and who keep on just the right or the wrong side of being vexatious. They are quite good at it, and they do occupy a lot of time. Anyway, it is not all fun and games. As I said, the broad thrust is that I am very pleased that the opposition endorses the idea of increasing the threshold. I think that for a first step the jump from $6,000 to $12,000 will be very useful, and I think that is helpful.

I think there was also mention by the honourable member for Bragg of Judge Rice's report and of a number of things having been lifted out of that. It is true that most of what is in this bill has been the subject of reports to government, in particular the Rice report, so this is not party political in any sense. It is a person who is an operator within the system trying to provide government with his insights as to how we can improve the mechanism. That is really where it has come from.

As a matter of interest, given what happened yesterday in another place, I should say that another recommendation of Judge Rice, which apparently has not found favour, was legislation to provide for fast-track guilty pleas attracting significant discounts and to encourage greater awareness within the profession of graduated discounts that sentencing judges apply on guilty pleas. That was also one of his recommendations that was also reduced into a bill. We are not talking about that presently, but I just thought I would mention it. Judge Rice says many things, and we are trying to advance all of them, even though sometimes we come into heavy weather.

The honourable member for Fisher raised a number of things about the Magistrates Court. Some of the stuff he is talking about there is a reasonably complex problem to solve. It is not that hard to articulate the problem, but finding the solution sometimes is. It might be—and I just say this in general terms—that some of the work we are presently doing in relation to a civil and administrative tribunal may offer some alternative resolution pathways that will accommodate some of the issues the honourable member was raising today.

That is something that, hopefully, I will be able to bring to the parliament in the not too distant future. We are certainly looking at that because there is no doubt that keeping people out of the formal court process is good, obviously, for the people involved, but it is also saving resources for those cases that do need to be in the courts and it is also, obviously, saving people money.

As I said, inasmuch as I understand there is general support for the bill, I thank the opposition. Just to touch on it again, I think it is unhelpful—I will put it in a neutral term—that we are not able to have a more particular discussion about the changes the opposition would wish to see in the legislation, because I would like the opportunity to place on the record my view about those things so that people are informed one way or the other about that. In any event, I think I have probably canvassed enough.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.