Electronic Transactions (Legal Proceedings) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 March 2017.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:24): I thank the honourable members who have spoken on this bill. I will now answer questions that were raised during the second reading stage by the Hon. Mr McLachlan and also the Hon. Ms Vincent.

Regarding the issue of printing, concerns were raised from some interested parties during the consultation period on the draft bill that consideration should not only be given to whether a person has the capacity to receive documents electronically but also that they are able to print the relevant documents. To that end, a requirement was added into the criteria for determining whether consent can be implied for prescribed proceedings that access to printing be considered. This protects the disadvantaged or unrepresented person who may be able to access a document but would not be able to access printing facilities in situations where it would be required.

It may be the case that organisations such as the Legal Services Commission end up printing documents for their clients. At this stage, the government is not concerned that this will have a large impact on their resources. However, as the Attorney-General said in the other place, if it does begin to impact on their resources, the government will maintain an open dialogue with the Legal Services Commission on the impacts of this legislation when it comes into use.

Comments were made by the Law Society in relation to printing materials. In their view, a defendant, or their representative, should receive both a hard copy and an electronic copy of any documents. This kind of approach would defeat the entire purpose of the bill, which is to reduce the use of paper and increase efficient communication through encouraging the use of electronic communications in criminal and related proceedings. There is no point sending both hard copies and electronic copies; it would be a waste of time and paper.

During the debate in the other place, the opposition indicated that they would like some information on how the provisions will be used. It is important to understand that the intention of this legislation is to remove barriers to the use of electronic communications in the prescribed legal proceedings. The bill is intended to future-proof the legislation as the world moves on from paper and the use of digital and online systems in the justice sector becomes commonplace. This is enabling legislation.

The legislation does not mandate the use of electronic communications. There is no electronic system ready to go that will commence immediately on the passage of this legislation. The use of electronic communications is constantly being improved and expanded by the courts and other parts of the justice sector, and we are assisting by removing some of the barriers to its further integration and use.

As this is enabling legislation, it is not possible to envisage all the ways that it might be utilised. Increasing the use of electronic communications is an ongoing project undertaken by the courts, and it is up to them to determine the ways in which legislation will be used. It may take the form of an agreement between the courts and the DPP, for example, whereby an arrangement is set up so that consent is implied that all types of certain documents will be sent electronically.

For a lawyer or law firm, this process could be signing up as a registered user of the online electronic case management system, currently in development by the courts. Consent could then be assumed for receiving or filing documents electronically, as managed by the system.

For an individual, there would naturally have to be an inquiry or communication from the party sending the documents as to whether that person has access to the internet and what their email address is, but it may then be that for the rest of that specific matter it can be assumed that communications will be electronic once the initial conversation has been undertaken. This is no different from any other court proceedings; there does need to be communication between the parties to ensure that everyone, especially unrepresented litigants, understands the process.

Persons in custody are easily exempted from receiving electronic documents, as it is obvious that such a person has no internet access and therefore would not fall within the terms of the provisions. Disadvantaged persons are in much the same situation. Anyone without reliable internet access would continue to receive paper documents. So, when the initial contact was made with such a person, it would be apparent that they do not have the capacity to receive documents electronically so the status quo would remain and they would receive hard copy communication.

Furthermore, the courts can address any behaviour whereby a party was attempting to circumvent service rules by sending documents electronically to an unknowing recipient. This would be no different to a party trying to circumvent service rules with hard copy documents. Natural justice and procedural fairness would always operate to protect parties from those trying to circumvent procedures in order to gain an advantage in legal proceedings.

To summarise, the operation of the provisions will, in large part, be subject to court system changes and court rule changes if necessary. The legislation is not drafted with any specific new communication process or system in mind but is designed to allow for the increased use of electronic communications in the future, and to facilitate and encourage development of new electronic communication system development by the courts. The use of the provisions will necessarily commence in a controlled fashion as the courts move matters and transactions to online formats.

The opposition inquired as to the process of drafting and consulting on the regulation that will accompany the bill. Drafting will commence once the bill has passed, which is the standard procedure. The government is mindful not to waste any of the resources of the office of Parliamentary Counsel by commencing drafting before the final form of the bill is known, unless there is a need for urgent regulations or other special circumstances. Consultation will occur once draft regulations have been prepared. The government intends there to be extensive consultation on these regulations to ensure that the proceedings that are prescribed are appropriate and that the interested parties can prepare for the commencement of the provisions.

The Hon. Kelly Vincent asked a question regarding persons with disabilities or communications difficulties. Both the Equal Opportunity Commissioner and the Department for Communities and Social Inclusion were included in the consultation process but did not provide any feedback specifically relating to those with disabilities. The increasing use of electronic communications may make the documents more accessible to those with communications difficulties or disabilities. Electronic documents could allow for large text size or easier translation into languages other than English. The government is confident that the courts will take into account the various needs of members of the public when they are developing any new communication systems.

Bill read a second time.