Electronic Transactions (Legal Proceedings) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 December 2016.)

The DEPUTY SPEAKER: Does anyone want to speak?

Mr TRELOAR: We might need to call attention to the state of the house.

A quorum having been formed:

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:13): Again, I regret to inform the house that the—

The DEPUTY SPEAKER: Sorry, deputy leader, are you the lead speaker?

Ms CHAPMAN: I am and, I think, probably the only one. I regret to inform the house that this bill—the second on the reopening of the parliamentary year—is laced with conduct by the Attorney that I consider to be reprehensible and, indeed, a repeat of the contempt for the parliament.

In this instance, it is not a question of not giving notice of the bill coming on or wanting to advance it in any rapid manner. In fact, the Attorney introduced this bill on 1 December last year and provided the usual advice to the opposition, and presumably to other members of the parliament, as to the current situation in respect of the use of electronic transactions and the reasons why we need to change. In this case, there is a need to modernise and be able to keep up with having, as best we can, an efficient sector for the provision and communication of documents between our courts, police, defendants, lawyers and the like. All of that was going swimmingly.

Indeed, from recollection, the Attorney himself hosted the briefing on this occasion and provided certain information. I may be wrong; he may not have been present on that occasion, but I certainly recall his principal adviser, Mr Evans, and Ms Morgan from the Attorney-General's Department providing particulars on it. In the course of that briefing, which was back on 7 June last year, I asked for certain material.

Firstly, having been given an assurance that there was considerable consultation on the bill and that there had been some comment made by some of the usual suspects (if I can put them in that category), I sought some qualification of the circumstances in which someone might be electronically forwarded documents without consent. They felt it was necessary to provide a clause for the defendant, or the party receiving it, to have the capacity to read electronically and to print. Secondly, I asked that some provision be made as to the circumstances of electronic communication as it occurs in our courts to date.

Disappointingly for me, when I asked for both a list of those consulted and the examples given, on around 8 February, by a letter dated 6 February by the Attorney, I was provided with a list of all the organisations and interested parties that had been invited to comment on the draft bill, a list of all of those who had forwarded responses and a summary of what currently applies in the courts. What the Attorney did not tell us was that this letter, as late as it had been received prior to the debate being listed for this week (in fact, it was first up this morning until proceedings on the child protection matters interjected), and what he did not address, was that the consultation with this great list of people was in respect of a draft legal proceedings bill and a second bill.

One bill was to amend the Electronic Transactions Act 2000 in respect of legal proceedings, and the second was to deal with the service of proceedings. That bill was the Summary Procedure (Service) Amendment Bill 2016. Does it make any difference? Does it matter that what the Attorney sent us is simply a list of what had been presented for consultation as a draft and not the final bill? In this instance, it is not terminal to the consideration of the matter and being able to work our way through it, but the problem is that when we go to speak to some of the stakeholders in this area, we say, 'We understand you have read the bill,' and they say, 'No. Has the Attorney tabled it?' 'Yes, he did table it back in December last year. I am led to understand that you have seen the bill.' 'Well no, we haven't.' There is a search through their records, and, 'But we did get consulted on two other draft bills.'

On examination of those, we were able to identify that the government had amended the legal proceedings bill and had apparently dumped the service bill, because we have not seen it, it has not been tabled in any form. There has been no indication by the Attorney in his second reading on this bill as to what happened to that. What has happened to the other half of what is being proposed here? Why was it aborted given that the concern, always, for a number of these stakeholders was the capacity for the recipient to be able to read the data or information being conveyed and/or the capacity to print it?

On the current bill before us, it appears it has been attempted to be dealt with by adding clauses to require an assessment to be made of the capacity of the recipient, in particular in respect of the proposed sections. Whether it relates to the writing or to signatures or to the production of documents, all add a clause to this effect. The proposed subsection X provides:

…only applies if, before giving the information by means of an electronic communication, it has been ascertained that the person, or a legal practitioner representing that person, will be readily able to access or download and (if required) print, the information.

As I said, that is replicated in each of the different areas in the bill.

Having identified that has been included, I would have thought that at the very least the Attorney would write to the stakeholders, particularly those that had identified concerns, whether they represent Aboriginal communities or people who are in an impecunious state and need financial assistance through the Legal Services Commission, whether it is the commissioner for Aboriginal matters or the Law Society or others who have an interest in the efficient management of the courts but also in the protection of the interests of anyone involved in litigation, to ensure they are fully apprised not only of whatever they are being accused of or charged with or required to do in respect of attendance or production of documents but that they actually know what is going on.

It is one thing for the Attorney, or some of the people in his department, to sit there and work through, with a microscope, every possible little area of efficiency that might be to be achieved in the department or the courts, it is another thing to balance that off against ensuring that justice is applied. That is exactly why we have a court process, why we have the institution, why we have a judicial structure, to ensure that we protect people's rights—and that includes the general population.

The critical thing to remember in the process here is that the Attorney did not do that and, one by one, the parties who raised issues said to me, 'We haven't seen the bill that has been tabled by the Attorney at all.' Fortunately, I was able to do some of his job and give them some reassurance, I hope, that some of the clauses in the bill that was tabled in the parliament—given that we have never seen the first one—did in fact appear to have clauses in them that related to that. That gave them some confidence, I think, or allayed some of their concerns that the bill had been tabled without them knowing anything about it.

Unlike the circumstances this morning, where the government pushed ahead in a political stunt in respect of child protection, in this instance it has not been full and frank in what it is doing, and it should be. At first blush, when I listened to the Attorney back in December saying that there would be electronic transactions reform, I thought that was great. It is part of the normal contemporising of how we operate in our courts. As has been identified and confirmed by the Attorney's office—in fact, under his hand by this recent correspondence—we already have a registry online website through the Courts Administration Authority. There is the capacity for people to order transcripts and various other documents online, which is all pretty normal.

The Magistrates Court uses an electronic service for filing of some of their fines enforcement related matters and for filing of documents in civil matters. The superior courts (the District Court and Supreme Court) have an electronic case management system. Like most of the government's systems, it does not always run smoothly; nevertheless, it is an important innovation that enables an electronic filing service, provision of notices and, generally, to communicate for the parties. In the criminal divisions of the Supreme Court and District Court, service of some documents can be provided via email if email addresses are provided.

Largely, I think the system operates quite well in the civil jurisdictions. In the criminal jurisdictions, where there has been a consent recorded between the relevant parties—for example, the lawyer and the Legal Services Commission—who are active participants in these matters, it is clearly known to each other, it is recorded, and provides a convenient conveying of information. That is great. If that can be enhanced, explored and extended, that is fantastic.

But the problem is that when you are dealing with criminal charges, and perhaps I will compare it to a corporate case, where XYZ company nominates a particular legal firm to handle their legal matters and, in litigation, to receive service of documents on their behalf, etc. They file a notice of address for service, and that is used between lawyers—sometimes crown law in civil matters. Unfortunately, there are hundreds of cases at any given time between the government and other people, so we do know that there is obviously a lot of litigation happening in the civil area, outside of criminal matters.

In criminal matters, however, here is the practical position: firstly, the majority of defendants are young people. That is sad enough in itself, but the biggest pool of the population who come before our criminal system are young people. When I say 'young', I am talking about those aged 30 or 35 and under; they are often aged 20 and under. There is probably an even higher profile, relative to the population, of a percentage incarcerated in criminal matters who are of that very young age.

Some would argue that is because they are poorer; they are more likely to be in a public area, they get caught more easily, they do not have the money to spend on lawyers. Whatever the explanation, the reality is that crime is not the reserve of young people, but the criminal conduct of those who are caught is certainly a very high profile. Sadly, as we know, a very high level of incarcerated young males are Indigenous, reflected in the representation of their profile in the population—way above.

I think it is reasonable to assume that the policymakers, including the people advising the Attorney, would think, 'Okay, this is a fairly young cohort. They are probably going to be pretty tech savvy. They all have a phone or an iPad, or a communication tool with which they are familiar, and can restore and communicate data electronically. Great.' But, here is where the problem comes. The problem is that the young people in this category are also frequently poor, and they do not always have an account where their data is up to date and accessible on a phone. If they are homeless, they do not have somewhere to plug it in to recharge the batteries and receive information.

These are the sorts of things that affect some young people, particularly in the cohort of poor or homeless or who are at large, who do not have access to that electronic communication. It is all very well for us, any one of us, as we all have these things, and we can all afford to have them plugged in and connected to the world 24/7. We are talking about a group in the community that does not necessarily have the benefit of that, so we as policymakers, or the government as legislative sponsors of reform, need to understand what they are doing in the real world.

Secondly, there is every likelihood that that young person, as an offender who has been arrested, charged or whatever, is unrepresented at the initial part of the proceedings and certainly does not have a notice of address for service advising that XYZ company is their nominated lawyer for the purposes of receiving documents on their behalf, or getting information which might detail the particulars of the charge, the number of offences and accounts of the charge, etc.

This is back in the real world, and we are saying to the government, and I think it is certainly reasonable for some of the stakeholders to say, 'Understand that you are dealing with a population of people who are largely unrepresented, who may have had no experience with the court processes in the past, who do not have a nominated solicitor they know at the District Court they can get in touch with to deal with the matter and who may be in financial circumstances that minimise their capacity to receive this information and be assured that they are capable of receiving it.'

In a way, if we were to be perfectly frank about it, it is not a question of quicker service or identifying that you can transfer information across town more quickly electronically and do not have to have a clerk to deliver it from one chambers to another, or from the DPP's office across to a lawyer's office. We experienced this with fax machines and we now have electronic transactions—we are in the real world. The truth is that when you send documents electronically it does not mean that the recipient is in a position either to receive them and to store them, or to immediately retrieve them for the purposes of conducting their defence or putting in their responding material.

Why do I say that? Because the fundamental aspect of this legislation is about saving time and money because, in the end, someone else has to maintain the electronic equipment to receive and store it—not just read it but receive it and store it—and/or have the facilities to print it out and make the necessary copies for others, etc. Why do I say this? Let me give you a classic example of how unelectronic we are in the real world in our courts. Yesterday, I was at the Supreme Court listening with interest to the Full Court submission in a case of interest to most of us. The parties included the Electoral Boundaries Commission. It went all day in submissions and judgement was reserved.

In that case, which is a civil case, unsurprisingly a lot of the pleadings of the notice of appeal and so on filed by the ALP, etc., were electronically filed and served—easy. The first thing to happen when the Full Court came into courtroom 11 yesterday and sat down, counsel having identified who they were representing, was that the Senior Counsel for the ALP handed up five copies of the part of the constitution that was going to be argued . Even though we had all the appeal books, all the notices, all there electronically, and every judge had a monitor in front of them, they all said, 'Yes, that would be most helpful to have a hard copy.'

I do not doubt for one moment that that is the way it is. They do not have two screens. There is not a situation where you can have two screens in front of you, either at the bar table or on the bench, with both the statute and the other. Some are really clever because they can put in a little pocket of inserts, like you do on the screen. Most judges, let me tell you, cannot do that, and probably most at the bar cannot do it. I make the point that hard copies have to be found.

The next thing I see is that full reports of the select committee of the parliament from 1991, preceding the 1991 constitutional referendum and amendments in respect of electoral redistribution laws, were not conveyed electronically, but a large wad of them was handed out to all the parties and people on the bench.

What happens in the real world in most cases, even in civil cases, where there has been some significant advance in the use of electronic material—the recording of witness statements, affidavits, pleadings and obviously exhibits and the like—is that there is still a heavy reliance on the printed document. We all thought 20 years ago that we were going to move into a paperless world. What a joke! I do not know about you, but my office is wall to wall with paper. It is not because we do not use electronic devices; it is because we cannot always rely on material being easily retrievable, accessible or marked up.

The DEPUTY SPEAKER: You also have to have power.

Ms CHAPMAN: The Deputy Speaker reminds me, of course, that you also have to have power to operate these things, which is another problem, but we will not go there today. What I am trying to point out is that there is the ideal, there is the fantasy world and there is the real world. In the real world, we still are very dependent on hard-copy documents. Again, picture the 20 year old who has been charged with an offence. He is sent the material on his iPhone, and he goes into the lawyer's office and says, 'Can I plug the phone in for the first two hours to recharge it and show you what I've been charged with?' 'Yes, that's fine,' and tick, tick, tick, goes the lawyer's bill.

Or he goes into the Legal Services Commission, and asks them to print it off so that they can then enter into electronic correspondence with the relevant parties, and then says to the lawyer, 'Well, okay, you've printed them off. That's great.' He can now be charged $1.90 a page, or whatever it is for photocopying these days, if he is not on legal aid. If he is on legal aid, who is going to pay for it? The Legal Services Commission presumably will absorb the bill, if they have in-house counsel or solicitors handling the matter, and it costs no extra money.

At the end of the day, these things are dressed up with, 'Let's be contemporary, modern, blah, blah, blah.' The truth is that it is a cost-shifting exercise because we still rely on paper, we still rely on documents, we still require amongst the parties to convert the documents in order to have some capacity to record on. Even the instruction from the lawyer to the person we are using as an example needs to leave the office with an identification of what he is or is not to do, what his conditions of bail will be, what has been negotiated, and that in some way has to be recorded. Sure, he or she can put that in the notes section of their iPhone but, again, it has to be retrieved in order to rely upon it.

Most importantly, we are still living in the twilight zone, where we have the benefit of some electronic conveyancing, but we do rely heavily on the written document, and I expect we will for some time. In reality, whilst this is a cost-shifting exercise, I expect that the Attorney will ensure that in this year's budget, before the implementation of this legislation, there will be some provision for the Legal Services Commission in particular to be covered for the costs of dealing with printing material. You might think that it is insignificant, but it involves thousands and thousands of pages and it is operating electronic equipment. The courts still demand it, the client is still entitled to it and the prosecution needs it.

I just say that, if they want to go into this era of requiring people to have to sign up or to opt out rather than opt in now, it does come at a cost. Someone is going to have to pay for it, and I think the Attorney should ensure that the estimated costs attached to that will be budgeted for and reimbursed. It may need to be done on that basis for the first year but, thereafter, there is some provision for that to occur, otherwise we just alienate people via the cost of justice in yet another way but in this case to the most financially vulnerable—those who are charged with criminal offences.

The position from the opposition is that we will not oppose the bill. Obviously, there are good aspects to it in the sense of its objective, but if it comes at a cost to the people who are most vulnerable then that needs to be remedied. It appears that, at this stage, those stakeholders we have been able to identify, at least by telephone communication, are accepting of the provision by virtue of the additions to the bill that we have read out to them. If there is any further comment formally put to us between now and the deliberations in the other place, we reserve the right to consider any further amendments; otherwise, we support the passage of the bill.

Ms COOK (Fisher) (16:41): I rise to speak in support of the Electronic Transactions (Legal Proceedings) Amendment Bill 2016. In speaking in support of the bill, I note the significant work that the Attorney-General has taken to reform and modernise the criminal justice system. We have heard how electronic communications have the ability to modernise the justice system, and I would like to give a couple of examples of how such a reform has already made an impact.

If you go into a courtroom today to view criminal proceedings, especially preliminary hearings such as directions hearings or bail reviews, often you will see audiovisual technology in use. This means that the accused will appear in the courtroom via the audiovisual hook-up from their place of incarceration. This means that someone in the Yatala Labour Prison, for example, can appear in court from the prison itself, and it means that the prisoner does not have to be physically transported to the courtroom.

The audiovisual technology allows the prisoner to be present in the courtroom to observe the proceedings without the need for physical transportation The transportation of prisoners to and from court is a complex logistical exercise and it is not without its risks. Prisoners need to be discharged from prison, transported by secure vehicle to the court and held in the court cells while awaiting their matter to be managed by the sheriff's officers of the court. Following the conclusion of their matter, the whole process is repeated in reverse to get them back into prison. Avoiding this process for short interlocutory proceedings makes sense.

Since beginning to use audiovisual technologies in the courtroom, usage has now increased to a point where 57 per cent of all attendances are done in this way. This represents significant efficiencies in the criminal justice system. Another example of efficiency being created through the use of technology is the Legal Services Commission's Legal Chat program. Legal Chat enables members of the public to engage in online conversation with staff at the Legal Services Commission. This does not necessarily mean that complex pieces of legal advice are being given through an SMS-style chat window.

Legal Chat is particularly beneficial when a client's inquiry can be answered by sending a link to a website or an online form. Legal Chat operates alongside and was a natural progression of the Legal Services Commission's legal advice hotline where members of the community can ring up for preliminary legal advice. In the 2014-15 financial year, the legal advice hotline received over 80,000 calls. Legal Chat is a simple online measure that responds to a growing public demand for legal assistance.

We heard another example of the Legal Services Commission embracing technology in The Advertiser on Monday with a report that the commission will be accepting online application for grants of aids. This is a national first. The Legal Services Commission should be applauded for its willingness to embrace new technology and to find new and effective ways to make justice accessible for the South Australian community. This bill represents another opportunity for the justice system to embrace this modern technology and modern means of communication. I commend the bill to the house.

Mr ODENWALDER (Little Para) (16:44): I rise to speak in support of the Electronic Transactions (Legal Proceedings) Amendment Bill. I do so on the basis that it provides efficiencies and savings over the next few years and into the future. In 2015, the South Australian budget allocated $20.3 million over four years for the courts to develop and install a modern electronic case management system. This was a positive step in the modernisation of court processes in this state and will present great benefits, not only to the courts but to all users of the justice system in this state.

An advanced electronic case management system will mean that the courts can more effectively and efficiently manage their information. Not only will this result in efficiencies for the courts but it will also make things easier for the police, lawyers and members of the public who use the courts. It makes sense then, as the court processes are modernised through the development of an electronic case management system, that any legislative barriers to electronic exchange of information are removed. This bill removes one such barrier.

The South Australian community has well and truly adopted modern means of electronic communications; we use it all the time. Most people have smart phones, use email, send texts and so on, and we should be giving the courts the best chance to capitalise on the efficiencies to be derived from this type of electronic communication. The budget allocation for the development of an electronic case management system is one such opportunity, and this bill is another, and as such I commend it to the house.

Bill read a second time.

The Hon. S.E. CLOSE: Madam Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: Attorney, could you explain what happened with the sister bill that was consulted on with this matter, namely, the Summary Procedure (Service) Amendment Bill 2016? Why has that not progressed with this bill, and is it going to be? If so, when?

The Hon. J.R. RAU: I am advised as follows. There was consultation with interested groups, as I call them, because I do not like that other word. There was consultation with interested people on this and the other amending bill to the Summary Procedure Act. That bill has not been abandoned, but it is presently still being talked about and drafted. So, it has not gone away; it is just that it is not ready. Although it is a related subject matter, I am advised that the two are not interdependent, so it apparently will not cause any great harm if this goes forward and precedes the other one.

Ms CHAPMAN: You may not have been immediately attentive to this in the course of the debates—only because I am sure you were working on other important matters—but the question was raised about stakeholders being consulted on the two original drafts of the bills, which you confirmed in your letter eight months after I had asked for it. Why were the stakeholders not consulted on the apparent amendments to this bill, which included the capacity to assess receipt and printing of the person receiving the material?

The Hon. J.R. RAU: This is one of those situations where you put out a proposal, you consult on the proposal, you listen to the consultation, you come back, you agree with some things, you perhaps do not agree with all of them and then you put in your outcome. If you then take that out again, what you are basically saying to those people who have an interest in these matters is, 'Here's an opportunity to relitigate things that we have already dealt with.'

Yes, we do consult on things. Yes, we consult on proposals. In this case, there has been quite a lot of consultation but, ultimately, after the consultation, the government makes a determination in light of that how it wishes to proceed and goes forward. You do not then start the consultation again because you might wind up in a situation where you are just chasing your tail to some degree. I am also advised that the eight-month period mentioned by the deputy leader was not quite right. I am advised that the material that was asked for was asked for in December and it would have arrived earlier this month.

Ms CHAPMAN: Why then were the stakeholders not at least advised that the bill was progressing even though they were continuing to negotiate the second service bill?

The Hon. J.R. RAU: I am sorry if I—

Ms CHAPMAN: You said you were still negotiating.

The Hon. J.R. RAU: Negotiating internally—I should have been more specific. It is still being drafted. It is not as though the other one has gone back out. There has been feedback on the other one and the feedback on the other one is now being worked on. That has not yet got to the point where we have a settled draft. I am advised that it is still being worked through in the department. It is not our intention to go out on that one again either. The intention is that we have done all that conversation bit and now we are trying to get the final product.

Ms CHAPMAN: If, in fact, I am in error and 7 June is actually 7 December, which is quite possible, and it is seven weeks and not seven months, I apologise if that has been the case. It makes it all the more puzzling, though, why, when I did receive the letter dated 6 February last week, it referred only to those who were consulted on the draft bill, rather than saying, 'We did consult widely on the draft bill, but we have not consulted at all on this bill,' for the reasons you have just said. The letter is silent on that and purports to present to me, and therefore to the opposition, that the bill has been widely consulted on and that there have been responses from a number of people.

I place on the record that I expect that when we are briefed, which is designed to encourage members of the house to support the government's view on a matter to enable it to have its passage, we are provided with information that is accurate and up to date and not in any way misleading, even if that was not intentional.

The Hon. J.R. RAU: I completely accept the proposition being advanced by the deputy leader. Obviously, it is in everyone's interests that we are as informative as we possibly can be about this. I can assure the deputy leader that I have no interest, in this bill or any other, in obfuscating about what we are doing. As far as I am concerned, the basic objective here is transparently sensible, which is to bring what is now ever-increasing electronic interaction into the world of the law.

We already have a situation now where people can buy and sell homes using electronic means. We have electronic means of identifying people through a whole range of reforms that have gone on. I can assure the deputy leader that I am not trying to cause any difficulty or confusion. If I have inadvertently, that is certainly not my intention.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Ms CHAPMAN: Clause 5 proposes the addition of new subsections (2a) and (2b), and I refer to (2b), which is to be added to section 8. This is what I would call the qualifying clause to ensure that the recipient of the document has a capacity to receive and print data electronically. It states:

…before giving information by means of an electronic communication, it has been ascertained that the person…will be readily able to access…

Who assesses that?

The Hon. J.R. RAU: I would assume it is the person seeking to engage with the other party. This is the sort of provision they would probably invoke if they were dealing with me, thinking, 'There is no point. He doesn't know how to use one of those things. We will have to use a more conventional method.' This would be incumbent on the court or whoever it is who is trying to engage with that party.

This raises something that concerns me a bit, where you find people, particularly in businesses—and I am thinking here, without being too particular, about businesses like banks or Telstra—which, of their own motion, decide that they are going to start communicating with their customers by email. They send the customer an email—and this is hilarious—saying, 'In future, we will communicate with you by email unless you contact us by email within the next couple of days to say no, thanks, you don't want to be communicated with by email.' My mother, for example, is not on email, and I am not really either. I have wondered why I have not been getting bank statements for years.

Ms Chapman: You haven't got any money.

The Hon. J.R. RAU: That is part of it.

Ms Chapman: You have spent it all.

The Hon. J.R. RAU: That is part of it but—

Members interjecting:

The CHAIR: Order! Do you need my protection, Attorney?

The Hon. J.R. RAU: I am wondering, Madam Chair, when my mum is going to have her phone cut off because she has not paid phone bills, only to discover that, unbeknown to her, she has been receiving emails for the last couple of years warning her to hurry up and pay her phone bill. I think it is very important that we avoid that sort of behaviour and, hopefully, that is what (2b) does.

Ms CHAPMAN: That answer does not fill me with comfort, I have to say. Obviously, this is replicated in all the different forums, whether it is writing, signatures or for production of documents under a similar clause, so I think it is reasonable that the parliament has, at least before we get to the other place, particulars of how this is going to operate, how that assessment is done, whether it is subjective or objective, and what the guidelines are going to be, if there are going to be any, as to how that is identified.

Again, as I said in my contribution, it is not just a question of having the technology or the equipment to receive something. It has to be stored, it has to have the capacity to print, and there are going to be costs attached to that. Obviously, that could be a difficulty with someone who is in an impecunious state. If they are in gaol, at least I suppose someone will be there to receive it, but if they are at large, homeless or poor, these are all circumstances in which they may not have the capacity to qualify for that.

The sender of the material may make a reasonable assumption, for example, if they had been provided with an email address, that someone would have the equipment to receive it—not necessarily to print it. I am not sure how they are possibly going to make that assessment, especially if they are not physically able to identify it, unless they have had a written consent from the party. Remember, this whole procedure is being imposed on people with an opt out, a bit like your mother's situation. If she finally realises she has an email, has the capacity to open it, reads it and then has any capacity to communicate with the person sending it to her, she has to have all of those skills and capacity to do that.

Just having an email is not an open invitation to the world that all notices are to be served in that manner. We have been through the issue of how we might make it easier for the Legal Services Commission, the Crown Solicitor's Office, the DPP, police prosecutions, etc. My next question is in relation to the costs. Who is going to meet the extra cost for printing the material now that there is an obligation to have the capacity to print?

The Hon. J.R. RAU: First of all, this legislation is not seeking to mandate the use of electronic methods. What it is seeking to do is to remove impediments to the use of electronic communication. Ultimately, it is not mandating it, although—

Ms CHAPMAN: No, it is.

The Hon. J.R. RAU: It is basically saying that these things can be—

Ms Chapman interjecting:

The Hon. J.R. RAU: I am advised that the way the scheme is intended to operate is that, if they are not convinced there is capacity for a person to do this, then the default position is they are back on paper. I think it does necessarily presuppose that there is a communication between the agency and the individual at an initial point just to establish the initial capacity of the individual. I am happy to talk more about this because I share that concern. I do not want anybody to be in the position where they are deemed to have received something and they have no actual knowledge of it. That would not be appropriate. As I said, I am personally quite affronted by the behaviour of telcos and banks for doing exactly that. I would not want to see that happen.

Ms CHAPMAN: I have some reassurance from that, Attorney, but before we get to the other place I would certainly like to know how this is going to work. At the moment, we have a fairly simple procedure. One party advises the other that they have documents to serve or information to convey. 'Do you wish us to forward this by courier pigeon, camel, post, email?' Obviously, many people who have the service tick the box and say, 'Please forward future correspondence or documents by email'—happy, fine, easy. That is what we have at the moment.

What we are doing here is introducing it on the basis that the party who is going to be forwarding the material is going to make an assessment. I am not quite sure how. If it is only on the basis that somebody has supplied them with an email address, and it is then presumed that they are capable of receiving and have that available to them, then that is not a threshold that is acceptable to me, and from what the Attorney is saying it is not acceptable to him. So, let's get this right before it gets started.

The Hon. J.R. RAU: Can I just say, and I cannot emphasise it enough, that I find some of the presumptions that are afoot in the world about technology and people's technological literacy quite offensive, because they are all directed at me—that I know what I am doing in this area. I am very sympathetic to the position that the deputy leader is putting forward. I would be happy for us to continue talking between the houses, because I cannot think of anything more unreasonable than a person being confronted with this Buckley's choice type of situation, if indeed the person is not just being clever.

That is another situation, where the person is being a bit cute and wants people to jump through hoops just so they can make their lives difficult. That is another counterbalancing situation. The unfairness of this has been the subject of television programs. I think the first episode of The Hitchhiker's Guide to the Galaxy commences with this very problem. I am on board.

Ms CHAPMAN: Finally, if there are costs associated with the printing (for example, to the Legal Services Commission) is it the intention of the government to underwrite those extra costs? I would expect they and the DPP, for example, are going to be the worst hit, at a legal services level, as will the courts. The judiciary will need to have extra copies of documents other than electronically. Any of those agencies are going to say that if they have extra costs in paying people to stand there and copy material or print them off, then they are going to need to have that. Anyone who thinks it is just a simple exercise of pushing a button needs to go and put a brief together for a Supreme Court appeal and you will soon know what I am talking about.

The Hon. J.R. RAU: My understanding is there may have been, with the legal services people anyway, some discussion of potential costs, but I think it is one of those things where it does mean some consumables, ink and paper, essentially—

Ms Chapman: And time.

The Hon. J.R. RAU: —and time, yes, sure. As I am presently advised, in and of itself that is not such a monumental issue that it is likely to be a great problem. If it does turn out to be a problem then obviously they will feed that back to me and we will deal with that.

Clause passed.

Remaining clauses (6 and 7) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:07): I move:

That this bill be now read a third time.

Bill read a third time and passed.