Summary Procedure (Indictable Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:46): I rise to speak on the Summary Procedure (Indictable Offences) Amendment Bill 2016 and indicate that I will be the lead speaker for the opposition on this matter and possibly the only speaker. Nevertheless, it is a bill of considerable consequence, and I propose to take some time to outline the opposition's position. Whilst we look to the improvement of the procedures in respect of the processes of the court, we consider there are some significant defects in respect of the approach adopted by the government as has been prosecuted by the Attorney-General.

In short, this bill was introduced by the Attorney-General on 16 November last year. Prior to that, there had been some consultation about a circulated draft bill to the legal community. The bill substantially makes changes to the criminal procedure and the conduct of criminal trials in South Australia. The government claims that the aim is to encourage better pre-trial disclosure from both the prosecution and the defence, that is, to be at an earlier date and to provide more options to enter a plea earlier in the trial process.

If I were to make any comment in respect of that general pronouncement, it would be that, whilst there are clearly proposed new procedures in the bill to require the defence to enter a plea earlier and to enter into disclosure requirements earlier with significant penalty if it fails to do so, it does not actually have a similar obligation, with penalty, for the prosecution. It is this lack of early disclosure that creates the fundamental flaw in the approach the government has taken in respect of this reform.

The other bill under discussion during the course of the negotiations on this bill is the Sentencing Bill 2016. I do not wish to traverse the detail of that, other than to say that it has been developed contemporaneously and was introduced also last year. The government then did not progress the debate on the Sentencing Bill on the basis that there were sentencing discount clauses, which are a feature in both of the bills, and thus the Sentencing Bill, until this week, has taken a prominent place but has now lapsed into the background.

In short, the Sentencing Bill proposes to set not just a refreshment of our sentencing laws in South Australia. It is a full rewrite of the act post the investigation by John Sulan, former judge of the Supreme Court, who kindly undertook a review in relation to this matter and consulted widely. While I am here I will thank him for his service to the parliament in conducting the same.

Until this week, the Sentencing Bill has been kept in tandem but has, as of this morning, been delegated to be dealt with behind this bill, or at least to follow this bill rather than precede it. That may require some other matters to be raised by the opposition in the joint party room on the basis of the government's decision to reverse the order of these bills. Nevertheless, we will attend to a number of those matters during the period from the end of the session today until the resumption of the parliament later in the month.

The bill before us rewrites the Summary Procedure Act 1921 to the extent that it purports to incorporate five changes. These largely reflect what the government claims, and the Attorney in his second reading contribution claims, are the areas of reform. In respect of the informations (not as in data but as in a document) charging an indictable offence, within this key area of rewriting the first is to combine the requirements from the Criminal Law Consolidation Act and the current Summary Procedure Act to detail what particulars must be included in the informations charging an accused with an indictable offence. That is outlined in clause 100 of the bill.

The second aspect of this key change is to determine in what forum a charge with multiple offences—that is major and minor—will be heard. The second key area of reform is in respect of the recommittal proceedings. The government says that this is to determine what documents and information a defendant must be given before their first court appearance in relation to their charge. That is including a copy of the charges, a description of the offending, forms for electing where the trial will be held, a notice about sentencing reductions, and the process of entering a plea. The new regimes are to be under clause 105.

Also under this area, South Australia Police may appear before a magistrate regarding an indictable offence until the DPP considers the preliminary brief provided to them by South Australia Police. This section states that South Australia Police must also provide a preliminary brief to the defendant's lawyer and file a copy for the court. That new procedure is outlined in clause 106.

Also in this pre-committal proceeding is the claim by the government—which is possibly one of the most controversial areas—that it is to introduce a section which prohibits pre-committal subpoenas for major indictable matters. This is the new regime under clause 107. Clearly this has caused much concern and is the basis of much submission from a number of the key stakeholders in the area as to how it is to apply, the lack of ill that it is to cure, and the consequential failure of the very objects of this act; indeed, to be at the severe prejudice of the defence. These are all matters that need to be traversed, and I will doing so in the course of this contribution.

The third major area of reform the government wants to deal with is the committal process. As I am sure most members would be aware, in serious matters in the Criminal Court, these cases simply do not come before a court as such to have a trial or receive a plea. There is a necessary interim step, and that is a committal hearing. Sometimes, oral evidence is given; sometimes, documented evidence is given, but it is essentially a process where the court needs to determine whether there is sufficient evidence to have a trial in the first place and to have someone committed for that purpose.

Under the new committal procedure, the bill removes the requirement for a defendant to make a plea during a committal hearing; however, they can still do this if they wish. The defendant may advise the court that negotiations are being undertaken with regard to a plea and have their sentence discount reflect this time if within one month of the committal. That new regime is in clause 110 of the bill.

Secondly, the bill requires that the prosecution file a brief, at least four weeks before the date of the hearing to the Magistrates Court, containing witness statements, copies of documents establishing guilt, evidentiary material and any other relevant material. That is outlined in clause 111. Thirdly in this area, the timing changes around the filing of documents by defendants is extended to four weeks, as outlined in clause 112.

The fourth major area of reform is the forum for trial or sentence. What is proposed here in the bill is that, for major indictable offences, if a defendant pleads guilty and both the defence and the prosecution agree for the sentencing to occur in the Magistrates Court, then a magistrate can hear the matter. That is outlined in clause 116(1).

The fifth major area of reform again attracts some significant controversial comment and response, and that relates to the procedure following the committal for trial or sentence. These are the rules upon which the trial is to progress and the obligation of the parties in respect of that lead-up to the ultimate determination, whether that is on the ultimate sentencing or, if a plea of not guilty prevails, for the trial and determination of the matter.

In this area, the bill has a new provision for magistrates to commit a date for arraignment if the magistrate has deferred the matter for trial in a superior court. That is in clause 120 of the bill. The prosecution, under the bill, must provide a case statement, which includes the information against the defendant, to the court and the defendant's lawyers no less than six weeks before an arraignment date. This is under clause 123, and I will come back to that in due course because of the concerns and the weaknesses of the application of that.

In this section, the bill also requires that the defence lawyers provide a case statement no more than four weeks after being provided with the prosecution case statement, which I have just referred to. The defence statement must include the defendant's defence, including particular defences to be relied upon. This essentially is a new regime which has been replicated from the existing New South Wales model in respect of indictable matters.

There is to be an obligation recorded in the legislation of continual disclosure applying to both parties' case statements. This reinforces in a statutory manner the intent to ensure that that obligation is known not only at the time of the obligations to file but as a continuing obligation for disclosure of material facts, etc., in relation to the matter.

The other area in this section relates to the expert evidence details, which, as proposed, must be provided to the court and prosecution at the same time as the filing of the defence case statements. There is also provision, and it is by a new provision which is inserted into the legislation, to allow a judge to make an adverse comment to the jury if the defence has failed to file their defence case statements within the prescribed time. This is clause 125. A new provision is also inserted which provides that subpoenas may only be issued by a master of the court upon application to them by party. Subpoenas will not be issued if the party applying has not lodged a case statement, and that is incorporated under the new clause 126(2).

It is fair to say that under this section, as to the procedure following committal for trial or sentence, comes the most contentious area that has attracted the most comment, as I have said. The rules that are to apply, firstly, to the prosecution and the defence are not equal, and that highlights that there are a number of problems in relation to that. I think it is going to be arguable that they are even fair, but certainly they are not consistent with providing just and equitable access to a trial process to protect the interests of the innocent.

It is a sobering reminder, when I look at this type of legislation, of how important it is to remember that we have a legal system which respects the rule of law which recognises the separation of powers and understands the importance of having a system which has a strong and independent judiciary and court system to protect against the excesses of executive government, or indeed anyone else, to protect the interests of our members in the community and to maintain a standard in a civil society.

I place that on the record in the context of this piece of legislation because it is not entirely unremarkable legislation. It is just that it does not, in my view, necessarily achieve what it is supposed to be doing. Secondly, I am not certain that there is an ill to reverse that needs remedying from which the change of the procedure in relation to indictable matters is going to offer some comfort or resolution or a better system.

Let's consider for the moment what is the problem. The Attorney, when he outlined his contribution to the parliament, claimed that the changes were necessary and designed to enable courts, police, forensic services and prosecutors to focus their resources where they are most needed and ease the pressure on our court system.

The Attorney set out in his second reading contribution that of the annual reports to the parliament, some are public including the Report on Government Services, which is often known as RoGS. In 2016, he claimed he indicated that notwithstanding the South Australian District Court had the second highest rate of criminal finalisations, that 22 per cent of outstanding matters had been pending for over 12 months. He also went on to say that the annual report of the Office of the Director of Public Prosecutions for 2014-15 showed that the reasons for vacated trials in Adelaide across the Supreme and District courts included 35 per cent that were vacated due to late guilty pleas. In addition, 14 per cent were discounted by the DPP, while almost 20 per cent were vacated because there was no judge or courtroom available.

The clear inference of the information outlined by the Attorney in his second reading speech was that the problem here was the vacation of trials in the superior courts due to late guilty pleas. Of course, he has taken out a very small portion of that from the report, but what is interesting to me is that when one looks at the Courts Administration Authority Annual Report 2015-16, which may or may not have been available to the Attorney when he actually tabled this legislation, bearing in mind that that was on 16 November last year, just before the parliament rose, it appears that it had been completed.

It was tabled this week in the parliament, not last year. I am pleased to say that at least we had the Attorney-General's Department's annual report, but others were missing and this was one of them. But I do not doubt for one moment that the data from it was available to the Attorney, and I suggest that that should have been brought to the attention of the parliament, not conveniently quote the data from the preceding financial year.

There is some very interesting information in this report, much of which I will be highlighting in other debates but, for those who follow the concerns raised by the Chief Justice as to the difficulty in management of a court system in providing a report on the courts for which he is responsible overall as the Chairman of the Courts Administration Council, in respect of the facilities they utilise, he said:

The poor building condition of many of our [courtrooms] continues to be a serious concern. Storm rain breached fragile, old box guttering and flooded two chambers on two levels of the Supreme Court, forcing judicial officers and staff to evacuate. A subsequent investigation of the roofing led to the discovery of a sizeable pocket of pigeon waste in the roof space.

I assume that to be pigeon poo, not dead pigeons. He continues:

Pigeon waste poses health risks equivalent to asbestos exposure. It required immediate removal. Scaffolding [was] stood at the front and side of the Sir Samuel Way Building for months this year to allow workers to stabilise its crumbling facade.

It is not beyond the wit of anyone reading that to understand that, to start with, the infrastructure in which the courts operate has considerable deficiencies, so much so that the Chief Justice has reported to us this week in this report the need to in fact evacuate some of the judiciary and staff during the operation of their business.

It is hardly surprising that you start to get a picture of some of the other factors, and possibly more pressing factors, that are referred to by the Chief Justice as to why there is such a delay in respect of the administration of justice in the court, why there is such a problem in respect of how quickly they are able to progress their work and provide for timely outcomes of criminal matters.

The annual report also highlights the other initiatives that of course have been undertaken during the year, in the hope of being able to progress the court system in an efficient manner and undertake its business. It tells us that it has achieved a $2 million reduction in expenditure, which it has been obliged to find as some kind of efficiency measure. That savings target of $2 million was met within the year.

So far, we have pigeon poo in the gutters, a poor and decaying court structure and an efficiency dividend of a cut of $2 million. We are starting to see a picture of some of the challenges that the Chief Justice is facing, as the head of the court, in being able to manage the workload. In the superior courts—and this is where we are talking about indictable offences being dealt with—there are 12 judges in the Supreme Court and 20 judges in the District Court in South Australia.

In respect of the Supreme Court, the Chief Justice identifies several factors as to why there has been a delay in the 'smooth progress' of the court dealing with the criminal workload. Interestingly, it is the same for the District Court as it is for the Supreme Court. On page 16 of the annual report, he states:

Several factors affected smooth progress of matters. These included a shortfall in numbers of judicial officers available for rostering, availability of courtrooms, increased complexity of cases, availability of specialist reports to the court and decisions by defendants to change pleas to guilty shortly before or on the day of trial.

The basis upon which the Attorney has brought to the attention this reform and asks us to support it is only one factor that the Chief Justice has identified. Without going into the detail of the other factors, I hasten to add that none of the other factors has been addressed. That is not to say that the Attorney and the government have not been on notice of these matters, because the Chief Justice made the point in last year's annual report as well as in this year's annual report on page 19, where he states:

In particular, the Supreme Court sat regularly in three courtrooms each week, which reduced the number of courtrooms available for the District Court.

He then outlines the sick leave of some of the judges. He continues:

At present, there are 100 matters older than two years, which is an increase from 88 matters in this category in the previous reporting period.

The Attorney is on clear notice that there are a number of other factors that are frustrating and impeding the smooth and timely progress of matters through the court system, but none of those is being dealt with in this instance by this legislation. To the best of my knowledge, there have not been any announcements of new judges, how to deal with the complexity of cases or the availability of courtrooms. I certainly would have noticed if they had announced a new court. They have done that several times before, so I have a very thick file on it. Of course, sadly, it is usually followed a few months later with an announcement that it has been cancelled, so we are still waiting for that to be remedied.

In respect of the availability of specialist reports to the court, although the Chief Justice does not elaborate, from what I can see in the content of his last report this usually relates to professional witnesses, forensic testing and things of that nature, where we know there is a very substantial delay. Forensic Science SA is a major area within the Attorney-General's Department, which I think has a budget of about $200 million. In fact, I think it has a bigger budget than the Director of Public Prosecutions has. In any event, it is a very substantial and important part of criminal justice because it undertakes a number of forensic assessments and is most valuable in the negotiations between prosecution and defence and also in the administration of justice, if the matter progresses through the court.

It is well known that there is a very significant delay in the availability of DNA sampling that is tested for forensics for a number of our cases. Bear in mind that Forensic Science SA does not just have a responsibility to do work for criminal trials. There is other work that is to be done by their division, not the least of which is sometimes necessary in respect of deceased persons, and that may not be as a result of any criminal conduct but testing needs to be undertaken.

Most of us here in this parliament will have had letters from family members of a deceased person who are anxious to have a ceremony, burial or cremation, but it has been held up, sometimes months and months, because of the delay in forensic assessment. Again, that is no direct reflection on Forensic Science SA. I do not wish in any way to be critical of them. I make the point, though, that they have a huge workload and they are simply not able to get to this.

In the criminal law world, in the prosecution of these cases, where people have been charged with major indictable offences—these are the pointy end of the pencil so to speak—quite often those accused are waiting in our prisons, held in custody until their committal and/or trial. Sometimes they can be bailed for a period of time but usually, once committed to trial for serious offences, they are kept in custody. They can languish away in gaol for two years and even longer if, of course, their case is listed and they are not reached, and I am going come to some examples of those shortly. This is a very unsatisfactory situation if they are guilty, and absolutely unconscionable if they are innocent, because of the time spent in custody deprived of all the freedoms we currently enjoy.

The government has, through the Attorney-General in this bill, presented to us a new procedure that they say is to deal with late guilty pleas that therefore cause some impediment to the smooth progress of cases. The inference, might I say, is that the government is saying that we need to penalise particularly the defendant or their lawyers because it is their fault. I will come to the provisions outlined in this bill as to how the government says it is to be achieved. If we look at the bald assertion that the decisions by defendants to change pleas to guilty shortly before or on the day of trial, implicit in that is that it is their fault that they have taken all the time of the court for a prolonged period unnecessarily and that if they had pleaded guilty earlier that would have saved a lot of time, money and resources for the court administration and therefore that would be a better system.

But even in that statement, it is not difficult to imagine a number of cases where a defendant's opportunity to enter a plea of guilty, either to a different or lesser charge because there had been fruitful negotiations preceding it, or the disclosure of material that otherwise had been kept undisclosed resulting in discussions that then culminate in a plea of guilty being entered into, could have been entirely the fault of the prosecution.

The prosecution may say, 'It's not really our fault because we are in the police prosecution unit, or we are in the DPP,' (Director of Public Prosecutions office), and, 'We've tried to do everything we could to get our professional witness available and his report done, or her forensic assessment done, but we are held up by the delays in these other services,' many of which are either provided by or paid for by the Crown, by the government, under the responsibility of the Attorney-General.

The Attorney-General needs to address the deficiencies that are there before he starts to implement what is a regime of punishment, mostly for the defendant, to try to remedy a problem. The Attorney has this on his desk. How does he fix it? He goes to the most vulnerable. He takes the cheap option, and that is to say to the people of South Australia, 'I'm going to fix this. I am going to implement legislative and statutory obligations for the confinement of the terms upon which a case is to be operated. The case plans are to be restricted in time. The opportunity to explore defences are to be confined. The defendant is able to be punished if there is a failure in a time limit.'

We are not talking about a road traffic offence. I want to remind members that we are talking about major indictable offences. We are talking about serious crime. We are talking about treason, murder, robbery, acts of terrorism, all of which are heinous crimes if the offender is found guilty or ultimately confesses to being guilty. They are also the subject of imposition as charges on members of the public who are innocent.

As I have said before, not only is it the responsibility of the South Australian government to provide a service to protect against that, to have a court system and to fund it, but it is also the obligation of this parliament to make sure that we do not crush or diminish or extinguish the very rights that protect people against the inappropriate or unlawful conduct of others in their quest to save money rather than follow the pursuit of justice.

Can I then address the matters of great concern to the stakeholders in this matter who have, over a number of months, been involved in the discussions and contributions to try not only to assist the Attorney to come up with a procedure, if there is opportunity for improvement in the procedure in relation to criminal cases, but also to not unfairly act to protect others.

In respect of the sentencing reductions, some significant changes have been introduced in respect of the incentives for people to enter an early guilty plea. I can say from this side of the house that we supported the government in following up significant amendments to legislation back in 2015, I think, though may be wrong. I recall that Hon. Brian Martin AO, QC reviewed an operation of the guilty pleas act and provided a report in late 2015. Consequent to that, this parliament considered how we would reform and adopt the recommendations of that review by providing for a graduated scheme of percentage of penalty—that is, time for imprisonment terms—if you plead early.

It was a significant reduction in the sentence, up to about 40 per cent, on the basis of the earlier someone pleaded, the greater the relief they could apply for. The eligibility for that was really time based. There was also an addition in that legislation to give a reward, I suppose, of a reduction in sentence for someone who might assist the prosecution or the police in their inquiries in respect of other offences and other offenders. It is commonly known as the 'supergrass law'. In that latter area, to the best of my knowledge, it has been used extremely rarely.

There had been an informal procedure that the courts, defence and prosecuting counsel had undertaken in the past that seemed to work quite well. Nevertheless, the government put into statutory form a procedure for how to reward someone—who was either awaiting sentence or had been sentenced and was in prison—who was looking to receive some remission or reduction of their time. This was to 'grass' (a colloquial term) on another case so that their evidence might assist the ultimate detection, prosecution and conviction of another party or parties.

Unfortunately, it has been rarely used under this new statutory regime. That is probably unsurprising. We raised some concerns about formalising it in this way, requiring it to have an application in the court rather than the informal way it was dealt with. Unsurprisingly, we do not have any serious criminals come forward to make an application because, of course, they know that the people who are fearful of them telling of their circumstance may well hunt them down and cause them some injury. This is what I would call a fairly blunt and clumsy approach to the sentencing reduction from that aspect. It is of no surprise to me that it has hardly ever been used.

Nevertheless, regarding the rest of the bill at the time, I have to say that we strongly supported the government looking at a system of benefit, that is, to have a carrot instead of a stick in relation to encouraging early guilty pleas. I know there has been some review of that, probably a bit prematurely. I think even the reviewer made the comment at the time that it was premature to make that assessment because no more than one full year—I think it was only a part of a year—had been reviewed. Even though further statistical information was available in the following period before we received the report, none of that was taken into account or reviewed.

We are still not really much the wiser as to how effective that has been. Nevertheless, in the course of the review of sentencing law, which, as I say, is now within another bill, this bill purports to improve the operations of the criminal justice system, they say, by reducing those current delays and backlogs by again reviewing the incentives to get people to plead guilty early. Whilst we have looked at that, there is probably not much justification to change what we have. What is important is that we make sure that what we have is being implemented, rather than interfere with that process again.

When Mr Martin reviewed some of the sentencing reduction law, apparently he identified four other areas of the sentencing act where amendment was needed, and that is in this bill. They include:

amending the timing and quantum of sentencing reductions applicable in consequence of the reform package;

introducing a maximum 10 per cent reduction as an incentive for complying with pre-trial disclosure and for cooperative conduct of the defence case;

ensuring that the court has regard to the timing of negotiations where those negotiations result in a different charge being laid to replace an earlier charge in respect of the same conduct; and

setting out the process for applying the available sentencing reductions.

They have been incorporated in the bill. I go back to the five areas of substantial reform that the bill otherwise hopes to set out in its new regime which, as I said, is flawed. It is not terminal, to the extent that it does not mean that the whole of the bill should fail, but it seems to me that there needs to be some significant amendment.

It would probably be remiss of me, and even the whole of the parliament, not to recognise the new appointment of the Attorney-General and his position of Senior Counsel. I think he appeared before the Supreme Court to hear the wise words of the Chief Justice. The role of Attorney-General is a very interesting one, and it compelled me to look back at some comments made by the Attorney-General, not at that hearing but at the time that he was appointed as Attorney-General. On 5 May 2010 in the Supreme Court, having been appointed Her Majesty's Attorney-General, he said:

The role of the Attorney-General in the contemporary Australian setting is a different and somewhat complex one. In South Australia—

Mr PICTON: Point of order: I fear that we may have strayed from discussing the bill at hand.

The DEPUTY SPEAKER: We may have.

Ms CHAPMAN: The Attorney-General is quite happy to hear it.

The DEPUTY SPEAKER: I do not know that that is true; you are misleading the house now. He is not happy to hear it at all. I will listen very carefully. I know you would not put my position in any further danger, would you?

Ms CHAPMAN: Thank you. The quote continues:

In South Australia the Attorney-General is a member of cabinet, and so is bound and constrained by cabinet rules in exactly the same way as any other cabinet member. This much is clear.

He goes on later in his contribution, having reflected on the assessment by the late Chief Justice, His Honour Len King, when he said:

A strong, fiercely independent judiciary and legal profession is essential for a viable democracy and the rule of law. Anyone who doubts this might care to reflect on the comparative social and political histories of Australia and Argentina since 1990.

He goes on to talk about the significance of judicial independence and his concept of civil society. I reread that in the light of what we are being asked to consider in this bill. The new and novel approach to punishment, particularly to allow for adverse comment when there had not been the formality of compliance of a formal proceeding or a time, I found an extraordinary inconsistency.

I should not have really been surprised because the Attorney has surprised me a bit this week in legislation that he has brought into the parliament, including the child protection reform which is now before us. I am not going to reflect on the detail, but the capacity and the apparent appetite that the government has for reversing onus of proof, for removing ministerial responsibility and transferring it to executives, has come to a new level, and that is reflected in this bill and others.

I find it quite disturbing, actually, and I find it inconsistent with what I think the Attorney had committed to when he took on the position of Attorney-General. If that was not clear enough, it is grossly inconsistent with the commitments he made as a newly honoured Senior Counsel late last year. Back in October, I think, when the Attorney-General received silk, there being a special sitting of the Supreme Court, His Honour the Chief Justice said:

The independence of the legal profession buttresses the independence of the judiciary…together, they are supporting pillars of the rule of law.

Other arms of government sometimes act inconsistently with the rule of law [through] needless legislative abrogation of common law rights [and] executive interference with the court procedure and process. As leaders, it's a responsibility of an SC [Senior Counsel] to defend the rule of law against encroachment of this kind.

Along with other members receiving appointment as Senior Counsel, the Attorney-General stood and said, 'I respectfully accept my appointment and confirm I will maintain the standards and observe the undertaking.'

However when we look at this bill, which was tabled within weeks of that special sitting, it was very concerning to see what was proposed in the introduction and the penalties that would apply if there was a failure to deal with case statements. If that was not bad enough, the attempt to exclude the defendant or their representatives from rightful access to material which is necessary for them to consider in the protection of their rights, consistent with the right to be recognised as innocent until proven guilty, has been offensive.

I, for one, am quite concerned at the approach the government, spearheaded by the Attorney, is now prepared to undertake to try to justify the management of the criminal law system, a court process, which is under severe pressure. The government does have other options and could have looked at reform of this area—that is, the procedural area—not by cherrypicking out the little cheap and easy bits from the New South Wales or Victorian systems, or any other system, but by looking carefully at where it might be improved without impeding or impinging on the rights of an accused person.

However, the government did not do that. I suggest that the government took the cheap option and is proposing to introduce what could be a brutal regime of exclusion, placing a person who is accused of a serious criminal offence in an impossible position. The Attorney does not have to take my word for it, there are plenty who have pointed this out to him and to those advising him. There was every opportunity to have some reform, even to look at some improvement and models that may not have been very expensive but that could have worked.

In short, one option was to look at the whole of the Victorian system and how they operate the procedure in respect of indictable offences but, quite clearly, the government, even if they looked at the Victorian system, had made an assessment that, if they were to adopt that approach, which was fair to all parties in respect of a proceeding, then they would have to introduce and inject significant extra resources into the prosecution resources, whether that is the DPP, the police who undertake a prosecutorial role or the other very important support services.

They would have to have a lot more money in relation to forensics. They would need to be able to afford to train and/or consult with the private sector in respect of expert evidence, and they are just not prepared to do it. So, regrettably, we have a situation where they have taken out parts which, as a whole, reflect poorly on the government and produce an outcome which I suggest is dangerous.

Let's look at those who have made a contribution in this area. I will start with the President of the South Australian Bar Association, Mr Ian Robertson SC. He has made a very significant submission to the government in an attempt to persuade them to review the matter. I will refer to a contribution that came to him from one of the most senior at the criminal bar, Lindy Powell QC, who presented her consideration, which was forwarded to the Attorney:

Thank you for forwarding me a copy of the South Australian Bar Association response to the Summary Procedure (Indictable Offences) Amendment Bill 2016. I wholeheartedly endorse the submissions made on behalf of the Association.

There is then an apology in relation to the delay in her response and reference to her personal experience of collapsed trials during the calendar year of 2016, similar to 2015 and 2014, providing some detail in respect of why that had happened. She goes on to say:

I am firmly convinced that the problem is a procedural one and it is an appalling mistake to deal with it by altering the substantive law and particularly the right of individuals to a fair trial.

I have been agitating for many years for procedural changes which could overcome the now longstanding problem. Given that my experience is that it is the last minute briefing of trial counsel by the Office of Director of Public Prosecutions which is the most serious cause of the problem (as manifest by my 2016 experience), that problem should be first addressed before any change is contemplated of such drastic nature as contemplated by the Bill. In the early 1990s I was on the Duggan Committee which first introduced directions hearings. The Committee determined that directions hearings should all take place before 10.00am each week day morning, specifically to allow trial counsel who would be capable of identifying the real issues in the case to attend. Over the years and perhaps for budgetary reasons, junior members of the ODPP [Office of the Director of Public Prosecutions] now attend at almost all directions hearings. They have no, and certainly no detailed, knowledge of the issues in the case, and are incapable of any proper discussions to resolve the matter. Indeed, in my experience, they will often object to a suggested trial date on the basis of an absence on holidays of a police officer who did no more than to convey an exhibit from the Police Property Section to the Forensic Science Centre. I doubt that intervention by the Court can solve this problem.

Further, it is my experience on many occasions solicitors employed at the ODPP will neither negotiate an appropriate alternative plea to resolve a charge or charges (emotively and wrongly, in my view, often referred to as plea bargaining), agree facts for trial or reduce the number of witnesses to be called by the Crown at trial for fear of binding the prosecutor eventually briefed for trial just days before commencement to a course with which he or she does not agree.

Over and above these problems is the longstanding problem of the failure of investigating authorities and the ODPP to make proper and timely disclosure of the case against the accused addressed in SA Bar's submission and that of David Edwardson QC, which I read and also support.

I have suggested, in discussion and in writing over several years, that a trial should be immediately undertaken of a rolling list in at least two of the criminal trial courts in Sir Samuel Way Building. The trial could be limited at first to matters where the accused is legally aided. It could also be limited to trials for accused who have not elected for trial by judge alone. This would enable the DPP to brief or to allocate, say, three prosecutors for each of the two courts. The Legal Services Commission could do likewise for the defence. (This may not be necessary from the defence point of view as I have no doubt the defence counsel could respond to a rolling list in the way that they already do to circuit lists in the District Court in Port Augusta and Mount Gambier. The prospect of a rolling list for a month must be more palatable than the constant refrain of 'not reached'.) When each jury retired to consider its verdict, the next jury could be empanelled and the trial commenced. It is my experience that this approach was often adopted by experienced criminal judges in the past and I have seen many verdicts taken with the jury simply lined up in front of the jury box where the fresh jury were sitting. There is no doubt that there would have to be some economic projections undertaken to establish that this would be a more financially advantageous way of running prosecutions and defences but, personally, I have no doubt the advantages would be very real.

I think consideration also should be given to criminal matters being managed via a docket system as occurs in the Federal Court. If cases, and particularly cases which involve multiple accused or complex issues—

which I interrupt to say has been identified by the Chief Justice as an area of concern for the delay—

were allocated to a single judge from the first arraignment, then I believe that early resolution of these matters would inevitably occur if the DPP could be persuaded to brief counsel in those matters from the time when a trial judge was appointed. I have utilised the recently granted ability under the Rules to bring applications well in advance of the listed trial date for a stay of proceedings with success in two matters in the last 12 months. The early applications in both of my matters have not been resolved by Court order, but rather the bringing of the proceedings and the listing of the applications before the Court drove the DPP to brief counsel in the matters who, upon proper analysis of the prosecution case, determined that a nolle prosequi should be entered. I have not included either of those matters in my attached 2016 experience. All seven of the included matters are matters which have not gone to trial as a result of something happening immediately before a trial was listed to commence.

I add one final comment. I doubt the Attorney or indeed the Premier while acting for injured workers or plaintiffs in their previous professional lives would have tolerated a situation of no judge or court room being available to hear their clients' trials on a day set many months and sometimes a year in advance of that trial. They, too, like criminal solicitors and barristers would have been left in a dilemma as to what they could possibly do about charging those clients for the costs thrown away in getting the matter up for trial and the days set aside for the hearing of it, given that the adjournment is through no fault of the client. Nor would the Shadow Attorney tolerate such treatment of her family law clients. My view is that, of course, they would be entirely justified in being intolerant of a system that allows the current injustice to be perpetrated.

Yours sincerely

Lindy Powell

Ms Powell is not the only one with an extraordinary amount of experience, but it is fair to say that in all of my career she has been Senior Counsel and has had a very substantial role in dealing with the most serious of criminal cases. Of course, she is famously known for her work in relation to the war crimes cases that were started but seemed to be aborted in the end largely because of the age of the accused. However, her view on this matter should weigh on the Attorney's consideration. If he gets it wrong or he wants to jump to the easy, cheap option, then he has to understand that there are very real consequences of what he is proposing. Furthermore, she does not just criticise but adds helpful and practical ways in which there could be some improvement.

I recently received correspondence from Mr Jon Lister, dated 18 October 2016, which he sent to the Hon. John Rau. I am not sure if that was just before or just after he had been appointed as Senior Counsel but it does not give him the SC title, so I am assuming it was days before he actually accepted his appointment. The letter states:

Dear Attorney-General

I am writing to express my disgust with proposals contained in the Summary Procedure (Indictable Offences) Amendment Bill 2016, particularly with respect to the effect of sections 107, 123, 125 and 126.

The proposed fetters upon the Accused's right to subpoena relevant and important material will have two significant effects: more unfair trials occurring and an increase in, rather than a reduction of the trial list—it is often the case that subpoenaed material causes a prosecution to be discontinued or resolved by a plea to a less serious charge.

A subpoena is the only mechanism by which an Accused can compel prosecution authorities to comply with disclosure obligations. Moreover, it is the mechanism to compel the production of relevant evidence at all stages of the criminal process both at summary and superior court levels. This often has the effect of ensuring that relevant dates, including trial dates, are not vacated.

Frankly, I am astonished that you have proposed ss123-126. They carry no sanctions whatsoever for non-compliance by the Prosecution and, alarmingly, derogate from both the fundamental right of an Accused to silence in an adversarial process and the critical importance of any civilised legal system of the principle of legal professional privilege. In short, these are scandalous and shameful proposals which diminish the dignity of your Office.

I have practised the criminal law in this State for over 40 years. I believe I can offer a number of suggestions which would have the effect of reducing the number of defended cases while ensuring that the needs of the community for a fair and rational criminal justice system can still be met. I would welcome the opportunity to discuss these if that would be of assistance.

Please re-consider the bill and remove the repugnant provisions proposed.

The Law Society and the SA Bar Association have put in powerful and lengthy submissions. I do not propose to go through all of that today, but it is fair to say that they say there are really four areas that are just not acceptable. One is this restriction on the capacity to subpoena or, in some instances, to remove the right to be able to subpoena at all. The second is in the area of the process to be undertaken for the obligation of the prosecution to provide a case statement within a certain time and then for the defence to provide a case statement within a certain time, without any penalty whatsoever for the prosecution if they do not do the right thing. Nevertheless, that is totally offensive.

Probably the most puzzling of the reforms proposed by the Attorney is that the new provision allows a judge to make an adverse comment to the jury if the defence, but not the prosecution, has failed to file their defence case statements within the prescribed time. What is going on here? In that regard, I went straight to our side of politics to say that that provision, in the absence of it being equal to both the prosecution and the defence—which, even if it was, would have been inappropriate—is absolutely unacceptable as a tool where there can be adverse comment by the judge, which of course then is put to the jury, who are the determinants of the substantive matter as to guilt or innocence. That is just extraordinary.

I took it to our party room and explained to them that I had had a meeting with the Attorney-General in respect of a briefing on this bill, together with Ms Mellor, who is the Chief Executive of the Attorney-General's Department, and other important people who are familiar with the drafting of the bill. In the course of that meeting I said to the Attorney, 'Why would you possibly want to add in a provision where there could be adverse comment that could be made by a judge in a circumstance where there has been a failing on behalf of the defence but not the prosecution?'

The answer to that was that it was not necessary because the prosecution had an obligation in respect of compliance. I do not think he used the sort of model litigant explanation that is usually a wraparound for all the things he says that have anything to do with the government. I said, 'If that's the case and the prosecution is already under that obligation, what is the problem with putting it in there?' I think the gist of the response to that was that they would obviously look at that aspect.

Meanwhile, I went to meet with the Director of Public Prosecutions, because of course he is under an independent commission, to ask him his view in relation to aspects of the bill, including whether he would consider that it would be reasonable that the prosecution be also inserted into this new and novel way of bringing people to account for compliance in relation to filing their case statements.

Sitting extended beyond 17:00 on motion of Hon. J.R. Rau.

Ms CHAPMAN: Unsurprisingly, he said no. I said, 'If you felt that you were not able to identify from here what you would be obliged to do and how it would work, it is probably reasonable to assume that the defence would not know about what the extent would be, what comment could be made, the detail of it or the subject matter in it.'

We had a general discussion about the potential—even worse really—of a situation prevailing where adverse comment was made, creating a situation where there would be an appeal and/or a retrial. Because the judge is also completely in the dark about what is to be applied here, what they could say and how far they could go, it might create the opportunity for an appeal, which could lead to possibly having to start all over again.

His clear position was that, whilst he was not able to particularise how this would work and what the restrictions would be for the defence, he did not want to be in it. He certainly was not prepared to say, 'That's reasonable. Just put us in the same; we will both be in the same boat. If neither of us does the right thing—if neither of us complies with our case statement obligations either in time or content—then we are both facing the wrath of the judge and potential adverse comment to the jury.'

I do not blame him. It is not unreasonable for him to say, 'Why would I want to get into something when I've got no idea how it's going to work?' We do not want to be part of a situation where we might trigger that position, but I say to the Attorney: how can you possibly justify having a provision for some kind of penalty that could fracture the whole progress of the case in an orderly manner and, in fact, cause it to be redone and cost more money and take more time and take up more court space without there being some equitable approach?

Personally, I do not see any justification for it at all. I assume that this is what is left after the Attorney attempted to introduce other regimes of punishment for not complying with a strict regime of timing. The current position, and probably the most effective way of dealing with the inadequate compliance by any party to proceedings, is to direct that they pay the legal costs of the other party, obviously having to carry their own legal costs at the same time. Sometimes there is an opportunity to order that they pay the costs of the court and costs that might be thrown away of witnesses who have had to travel from interstate and all those sorts of things. There are ways of introducing cost orders from one party to another.

At one stage, I seem to recall—and I stand to be corrected if it was not in this bill—there was a provision in one of the drafts for the counsel for the defendant to pick up the bill. As the Attorney may have already found out, there are certain circumstances where a court can direct legal representatives to be personally responsible for legal costs. Usually it has to be for very good reason, in particular if there was conduct on behalf of the practitioner that was totally out of order and for which their client should not be punished by having to pick up a court order.

In fact, I was reading just yesterday the legal practitioner annual disciplinary report (now under the stewardship of Commissioner May) and, coupled with that, the legal practitioners' tribunal annual report, which was tabled in the parliament this week. There were two cases that I noted had been referred back to court for penalty by the Supreme Court in regard to two practitioners who had either deliberately misled, or recklessly given misinformation to, a court. That is reprehensible. I do not know the particulars of those cases. It may be that the punishment will not just be cost orders: it may be that a suspension or disqualification of their practising certificate may follow.

As I said, I do not know the details of the cases, but we take very seriously circumstances where a legal representative, by their own conduct, acts in a manner that is unacceptable or even unlawful, for which their client should not have to meet the burden of any costs or consequence. We have a process for that, so I was a bit surprised to see an attempt to demand of the defendant certain commitments on the basis that, if it did not happen, then the lawyer was going to have to pay and it would be a personal cost, as though this was some automatic position. I am pleased to say that that did not survive some of the earlier drafts.

The new provision in relation to the subpoena process is very much more restricted—in fact, you have to go off to a master under this regime, on an application, to have the opportunity to issue a subpoena for the production of documents. In short, this is to direct the person who receives the subpoena that the items referred to in it have to be produced either to the court or to the person. Sometimes, there are subpoenas for people to turn up, but it is usually in relation to documents. The subpoena power is critical in the need to protect defendants to be able to make an informed choice about their guilt or innocence in respect of a certain charge.

Sometimes, we see a situation where the late production of material by the prosecution results in informed discussion—sometimes, a plea is entered in relation to the charges; sometimes the charges are reduced, the plea is entered and the case is over. Great. However, to have a situation where you cannot get a subpoena at all if you have not filed your case statement completely defeats the purpose of having a subpoena. The purpose of having a subpoena is to know fully what the position is and then be able to consider whether there is any defence for that position and be able to outline in the case statement for the defence what the outline of the case is and what defences are going to be relied upon.

This is criminal law 101. I just do not understand why the government, through the Attorney, is so hell-bent on curbing the subpoena power, especially when, if the documents are produced early, it is so valuable in an early resolution of matters to clarify what the case is. We had a situation last week where a case regarding a workplace matter was pulled two years and seven months after the death of the worker in the workplace. It related to Workplace Health and Safety prosecutions, presumably in relation to either the failure or recklessness of the employer, in this case, with regard to the protection of employees (in this case, an employee on a scissor lift) and, indeed, on a broader level, all those workers in that environment.

A matter of days before the trial, the case was pulled out on the basis that they were not progressing; that is, the prosecution made a decision not to enter a case against the defendant—'a nolle entered', as they used to say—and basically everyone goes home. We do not know all the details of what happened there, but what I do know is that whatever happened behind the scenes that persuaded the prosecution at the last minute to pull out the case would have to be pretty good, because it still leaves this very puzzling situation of why it sat in the courts for two years, having interlocutory hearings, requiring evidence to be gathered, witness statements to be taken, photographs to be made and briefs to be prepared.

These are not small single appearances: they are multiple appearances in court. They involve an enormous number of court staff, and obviously the industrial court in that case had to allocate judicial time and other time to it. Barristers are reading briefs and people are conducting interviews. These are complex matters. They did not go on for five minutes: this is two years.

I find it incredible that the Attorney does not appreciate the significance of what is actually going on out there and that there are good, experienced people who are prepared to say to him, 'Look, there is always room for improvement. In fact, there are some good aspects to the bill you have presented us, but in these four key areas you are going to cause a major harm to the fairness of trials and the proper access to justice for those who are charged with serious criminal offences. And in doing so, you are not going to remedy other major problems; you are going to take away the tools for early disclosure that exists, and you are going to give a licence to those who do not comply with an early and continuous disclosure obligation and every opportunity to get away with it every time.'

The position from our side is that the subpoena rules, which are incorporated in clause 126, will be opposed by the opposition. I will vote against them today. The reason we had not formally prepared an amendment to oppose the clause was that perhaps foolishly I had accepted, after discussions with the Attorney, that some common sense and basic wisdom would prevail and the government would remove the subpoena restrictions that were to be imposed.

We had instructions to oppose that if the government did not turn up with amendments, and that appears to be the case, because I have read some amendments that were sent through to my office this morning, which have now been tabled, and there is no reference to that. So, we will be opposing that and formally lodging an amendment in the other place to discharge those clauses. I further give notice that we will be opposing the clause in respect of adverse comment, which is clause 125 of the bill in the form of amendment No. 1 outlined in the amendments standing in my name. I do not think I need to repeat all the details about them, but that is clearly the case.

I have outlined the concerns that we have raised about the case statement procedure. Again, we do not have an amendment to try to remedy that, and the reason is that we were hopeful that the government would have listened and that there would be some amendment to this to bring it into some order. We are not averse to having a reasonably structured regime of case statement lodgement, that is sensible, but there must be a process by which there is some penalty. If there is going to be a penalty applying to one, there has to be a penalty applying to the other. That is the first issue.

Secondly, simply having a provision in the act which says that there is an obligation of continual disclosure applying to both parties' statements after you have already allowed them to get away with filing an inadequate case statement in the first place is not sufficient to remedy that defect. We are happy to work with the government to find a practical way around that. If they are not interested in talking to us about it, then we will draft our own and consider the presentation of that in another place. As I have indicated, I do not propose to speak at length on the very lengthy submissions of both the Law Society of South Australia and the South Australian Bar Association, but I will simply summarise because I do not want to ignore their very wholesome and, I think, persuasive arguments. Anyone reading those submissions would be wondering why we are even discussing this bill today.

They made some significant comment about the sentencing bill and the discounting, and I only mention that because, again, there is reference to the current discounting regime, which is something they consider should remain. In respect of the subpoenas, to which I have referred, they are very clear about that remaining available in the pre-committal stage, and that it is, from their perspective, quite inconsistent with the intent of the bill, which is claiming to facilitate early access to information.

Similarly, in relation to the matters of concern that I have already put and those expressed, they too raised queries about the case statement requirement and its effect on the accused having to prove their defence. They were quite clear on the reference to the adverse comment clause, to which I have referred in detail, and that it should be removed entirely. The SA Bar Association was particularly strong on the three areas that I have outlined, namely: the case statement regime; the adverse comment to the jury for defence only; and, the subpoena restrictions.

Finally, in respect of the material that has been presented to the government, I thank other members of the profession who have really tried to offer to the government an opportunity to remedy the defects of this approach. Most recently, in fact just yesterday, I received a letter from David Edwardson QC, also an experienced barrister in the criminal law area. He wrote to the Attorney-General as, I think, a final plea to try to see some common sense in the approach taken, bearing in mind that in previous submissions, like the SA Bar Association's general submission, he had commented about the importance of reform and preparedness to have some review of that.

He felt that there are aspects of the bill that certainly are worth a try, even if they were not completely agreed to, but he confirmed his resolute opposition to the proposals in clauses 107, 123, 125 and 126: suffice to say they cover the matters that we have referred to.

Mr Edwardson did say that, whilst he had raised the detail previously, he considered that the approach that was now being taken was a strike at the heart of the fundamental principal that 'the Crown has no right to notice of the issues which an accused proposes actively to contest'. He says:

These provisions undermine the right to silence and the right against self-incrimination. I have already referred you to the well known High Court decision of Petty v The Queen (1991) 173 CLR 95.

In light of the Chief Justice's remarks which you embraced at the Special Sitting—

he is referring to your acceptance as senior counsel—

I sincerely call upon you to adhere to your responsibility as an SC 'to defend the rule of law against encroachment by arms of government that act inconsistently with the rule of law through needless legislative abrogation of common law rights and executive interference with court procedure and process'. These provisions fairly and squarely fall within that category.

In my earlier submission I identified what I regard as the most critical problem that lawyers in the criminal law face and that is the failure of the prosecuting authorities to make relevant disclosure in a timely fashion. Late disclosure has the inevitable consequence of matters being taken out of the trial list. I provided you with very clear examples in October and November 2016 where I lost two months of my work without consequence to the Crown because of the late disclosure by both the State and Commonwealth DPPs.

I can inform you that the same thing has happened this year with my trial listed for the whole of March being vacated again because of late disclosure by the Commonwealth and consequently I have lost three out of six months work for this reason.

I have just been advised by a fellow barrister that on 6 February he was compelled to apply to vacate a trial that was listed to commence on 7 February due to late Crown disclosure. This was an AFP—

that is Australian Federal Police—

Commonwealth matter and he was instructed by a private firm of solicitors. He received an expert e-crime report late on Friday 6 February 2017 annexing over 200 pages of internet history records that significantly changed the Crown case. The new evidence was such that almost all of the work completed to prepare the defence case fell away. This type of late disclosure happens every day and without any consequence to the Crown.

Last year, I applied unsuccessfully for a conditional stay of a prosecution until the CDPP—

that is the commonwealth DPP—

paid costs thrown away, consequent upon late disclosure. The Court was not persuaded that the conduct of the Commonwealth was sufficiently serious to justify such an order.

The Bill requires defence disclosure without committing the DPP to full disclosure before the case statement is provided and without committing them to the case to be presented against the accused.

I have already addressed the consequence of the defence being denied the opportunity to issue subpoenas at any stage in the course of criminal proceedings (a right which is fundamental to the obtaining of relevant evidence and defending any charge and which the Crown remain entitled to deploy as and when it considers it appropriate). The Bill does not even give power to a magistrate or judge to make disclosure orders. This Bill seems to cherry pick procedures that exist in other jurisdictions (Victoria and New South Wales) without embracing the whole package of procedural reforms which have evolved in those States and certainly without binding, or penalising, the Crown in the same way the Bill seeks to bind and penalise those accused of serious criminal offences. It is another example of South Australia providing 'justice on the cheap' without any regard for the consequences of the rights of individuals.

I note that Michael Evans QC was recently appointed by the Government as the Chief Judge of the District Court. Chief Judge Evans has enormous respect in the profession and I am sure that his appointment will provide a massive change to the way in which the Court previously operated.

Mr Attorney SC, I earnestly invite you to reconsider your position in respect of the provisions that the South Australian Bar and those of us who are experienced in this area of practice, are so offended by.

Yours faithfully

J D Edwardson QC

That is up to yesterday. They are still trying to say to the Attorney, 'Please, wake up and understand what is at risk here. We are still prepared to talk and discuss amendment. What you are doing is going to introduce a major fracture to what has been centuries of developed protection through our legal system.' All laws are open for review and all laws can be improved—there is never any question about that—but this bill imposes a strict regime on the defence and punishes them, yet it does not place a similar provision on the prosecution or provide them with the resources they might need to ensure that they can operate as efficiently as possible and ensure that their material is produced. In the absence of either of those options, or both, those provisions in the bill should fail.

As I said when I began my remarks on this matter, I consider the conduct of the government and the Attorney-General to be dangerous, particularly in relation to the bills this week where they have taken reform in criminal procedure, protection of the Crown and ministers, and the reverse of onus of proof. This has crystallised my view that the Attorney-General seems to be plagued with some form of madness, afflicted with a false sense of self-importance, consumed with a determination to be insincere in what is really to be remedied here, or all of the above.

This is a new paradigm. We might be just over a year out from the next election, but if we have a continuation or a perpetuation of this type of approach, asking this parliament to tear down the very fundamental principles of the rule of law and separation of power in this state, then you can rest assured that I will be a warrior every day against it.

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) (17:25): I thank the deputy leader for her remarks. Unfortunately, there are a number of things that were said with which I disagree, many of them because they are demonstrably incorrect, many because they do not indicate a balanced understanding of what we are trying to do, and I will try to go through those in an orderly fashion. The first point relates to the process.

This package has been worked on for a considerable period of time and has been the subject of an enormous amount of consultation. At the end of the day, there are a number of interests here to be balanced up. There is the public interest in having an effective justice system (and that interest is an overarching consideration), and there is the interest in having fair and reasonable opportunities for the prosecuting authorities of the state to be able to do their job in a reasonable fashion. There is a reasonable expectation that people charged with criminal offences in this state will receive a fair trial; and, last but certainly not least, there is the reasonable expectation on the part of victims and their families that matters that come before the courts will be dealt with efficiently and, hopefully, in a way that does not expose the victims to further traumatisation by having to go through unnecessary trial procedures. The importance of considering the impact of all of this on the victim and their family is something that should not be lost in the conversation.

The deputy leader has quoted from a number of letters that she has received. If my memory serves me correctly, those letters have universally come from people who speak on behalf of the defence bar. Of course, they are entitled to speak on behalf of the defence bar, but when you look at all the interests that we are attempting to balance, the defence bar is but one of a number. They are not the only interest, they do not speak for everybody and, quite frankly, they have a professional self-interest in seeing things remain pretty much exactly as they are.

We have listened very carefully to comments made by a number of people, including the defence bar, and we have modified the original proposal in light of their submissions. The proposal that we put forward now is a balanced proposal that takes account of submissions made by them, but the test as to whether or not we have listened to them is not whether we have accepted and adopted, unquestioningly, every proposition they have advanced; the question is whether we have considered them and, where appropriate, taken them on board, and where not we have said, 'We do not agree with you.' Basically, that is the position in which we find ourselves. I seek leave to continue my remarks.

Leave granted; debate adjourned.