Summary Procedure (Service) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (18:20): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Today I am introducing the Summary Procedure (Service) Amendment Bill 2017 (the Bill).

The purpose of this Bill is to amend the Summary Procedure Act 1921 (the Act) to achieve efficiencies in the criminal justice sector by facilitating greater use of electronic communications in relation to documents required for court proceedings and introducing other efficiencies related to the service of documents. This Bill will have a positive impact on the community and those within the criminal justice sector. It will remove barriers and facilitate the greater use of electronic communications. Information will be able to be provided in a more timely manner, and will contribute to a more efficient use of resources.

The Bill has been drafted on the basis that it is to commence after the Summary Procedure (Abolition of Complaints) Amendment Act 2016 and Part 8 of the Statutes Amendment and Repeal (Simplify) Act 2017.

The provisions of the Act are invoked whenever a criminal prosecution is commenced in the State. At different stages of proceedings, the Act requires the filing in Court and the exchange by the parties of a number of documents. This includes the provision by the prosecution, under section 104 of the Act, of a brief of documents to the defence prior to a committal hearing.

The Bill seeks to be proactive and amend the Act generally in anticipation of current and future efficiency initiatives that would rely on electronic communications. As technology has become an integral part of everyday life, it is important that the criminal justice system be able to keep pace with the use of technology, and take advantage of the efficiencies that technology allows. There is clear public value in the criminal justice system being efficient whilst also preventing disadvantage to those without ready access to electronic methods of communication. The proposed amendments in the Bill would have the effect that general provisions in the Act for the serving or giving of documents and other material would allow electronic methods to be used, providing the method chosen is one that is readily accessible to the recipient and the document is able to be printed by them. Exclusions from particular methods of delivery, if any, are to be provided in an Act, regulations or Magistrates Court rules.

The reforms in the Bill are required to facilitate current projects being developed by the Government. One such project is to provide an electronic process for provision of committal documents to the defence under section 104 of the Act as a resource-saving alternative to SAPOL providing often voluminous hardcopies of documents to the defence.

The major provision of the Bill is the amendment of section 27 of the Act. The amending clauses are lengthy and technical. Briefly, their effect is that, subject to an Act, regulations or Court rules, any document to be given to a person (including a prosecution brief to be given to the defence under section 104 in respect of committal proceedings) can be:

1. given to the person personally;

2. left at or posted to the person's last known residential or business address, or if a body corporate, its registered address;

3. sent to a fax number or email address provided for the purpose of the particular proceedings by the person or their legal representative;

4. made available to the person by other electronic means, including:

a) sending the document to an Internet address provided for the purpose by the person or their legal representative; or

b) sending to an email address provided by the person or their legal representative a link to an Internet address from which the document may be accessed or downloaded; or

c) by means of a data storage device from which the document can be accessed or downloaded;

d) other means that may be prescribed in regulations or rules.

It will only be possible to give a document by fax, email or other electronic means if it has been previously ascertained that the intended recipient will be readily able to access or download (and if necessary print) the document. The requirement that the person must be able to access or download the document, and print if required, protects those persons who do not have ready internet access, or who may have access to the documents, but would not be able to print them for use, or who are unrepresented. This aspect of the Bill is modelled on similar provisions in the Electronic Transactions (Legal Proceedings) Amendment Act 2016.

Related amendments are made to the Electronic Communications Act 2000 (currently the ElectronicTransactions Act 2000) to change the word 'dispatch' to 'transmission' in respect of electronic communications. This aligns with language used in new section 27.

The Bill also amends section 57A of the Act to permit the defendant or their counsel to file in the Magistrates Court a guilty plea by an online process. However, they will continue to be able to file a guilty plea in writing under section 57A, should they choose.

Consequential amendments are made to other provisions of the Act to support the changes to sections 27 and 57A.

Other amendments made by the Bill are consistent with the aim to produce efficiencies in Court proceedings. Section 22 is amended by the Bill to change its current prescriptive terms and permit the Magistrates Court to make rules to provide for summonses for the appearance of defendants. The rules will enable the Court to stipulate, among other things, the form that a summons is to take, its contents, who may issue the summons and the manner in which the summons is to be given to the defendant. Consequential amendments are made to section 57. These amendments are intended to facilitate a project being developed by SAPOL and the Magistrates Court for SAPOL to be able to issue and serve a summons at the point where an alleged offender is detected and reported for an offence. It will no longer be necessary in these cases for SAPOL to obtain a summons issued by the Court, which may occur considerably later, and then attempt to locate the alleged offender to serve them with the summons. The existing process of prosecutorial oversight of offences reported and brought to court via a summons process will continue to apply where an on-the-spot summons is issued by police. As is currently the case with reported matters, the investigating officer's supervisor, the brief quality control officer and then members within SAPOL's prosecution function will provide an assessment of the matter.

At the request of the Chief Magistrate, amendments were inserted in the Bill to sections 27C, 62B and 62C of the Act, as well as other consequential amendments. Sections 27C, 62B and 62C deal with the powers of the Magistrates Court to sentence a person who has been convicted, or has pleaded guilty, but is not currently before the Court. Currently, under these provisions, there are certain penalties that the Court cannot impose in the defendant's absence, including disqualifying the defendant from holding a driver's licence, and under section 27C the Court cannot take unproven prior convictions into account, without the Court first adjourning the hearing to permit the defendant to be served with a notice. The amendments inserted would permit the Court to avoid having to adjourn the proceedings if the defendant had been previously personally served with a summons that contains information as to the consequences that may follow if the defendant is convicted of the relevant charge, and consequential amendments are made to section 22 to facilitate this. This measure will introduce efficiencies in the Court without prejudicing a defendant who is not before the Court during sentencing. These amendments will apply to any offence capable of being dealt with by the Magistrates Court where the proposed sentence or penalty is either a term of imprisonment, disqualification from holding or obtaining a driver's licence or a payment of compensation greater than the amount specified in the relevant information.

The Bill also amends the Act to enable the Magistrates Court, where proceeding in a defendant's absence under section 27C of the Act, to order payment of compensation if SAPOL have specified the amount of compensation sought in the information served on the defendant.

An amendment is made to section 99E of the Act, which is a provision regarding service of paedophile restraining orders and child protection restraining orders made by the Magistrates Court under sections 99AA and 99AAC. Under section 99E, these restraining orders must currently be served personally on the defendant in order to be binding. Under the proposed amendment, where reasonable efforts to effect personal service of the restraining order have failed, the Court can order service in such other manner as it thinks fit. Also, if the order as amended or varied is more favourable to the defendant, the Court may declare that the amendment or variation is to be binding on the defendant as from the day of the declaration or such other day as the Court specifies. These proposed amendments align section 99E with similar provisions in section 81 of the Act regarding non-association and place restriction orders. A further amendment to section 99E aligns section 99E with as yet uncommenced provisions of the Intervention Orders (Prevention of Abuse) Act 2009 and deems a restraining order to be served if the defendant were present in Court when the order was made. This will avoid the expense and effort of serving the order on individuals, some of whom may no longer be in the Court precincts, but who are already aware that the orders have been made against them.

The opportunity has also been taken to amend sections 99A, 99AAC, 99C, 99G and 99J relating to paedophile restraining orders and child protection restraining orders so that they may be commenced by the making of an application to the Magistrates Court rather than the laying of an information. These amendments are technical only and do not alter the operation of the provisions.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Procedure Act 1921

4—Amendment of section 4—Interpretation

It is proposed to amend this section to insert a new subsection that provides that, subject to the rules of the Magistrates Court, for the purposes of the principal Act—

a reference to a summons, notice or other document, or documentary material, being served personally includes service by means described in section 27(1)(a) and (b); and

a reference to a summons, notice or other document, or documentary material, being served by post includes service by means described in section 27(1)(c), (d) and (e).

5—Substitution of section 22

It is proposed to repeal section 22 and replace it with a new section (Rules in respect of summonses) that provides that the Magistrates Court may make rules to provide for summonses for the appearance of defendants.

6—Substitution of sections 27 and 27A

Sections 27 and 27A are to be repealed and replaced with a new section 27.

27—Service

The substituted section 27 provides for the means by which a summons, notice or other document required or authorised to be issued, given or sent to, or served on, a person may be served, including by being given personally or by post to the person or, in the case of particular proceedings, by various electronic means.

7—Substitution of sections 27B and 27C

As a consequence of proposed new section 27, current sections 27B and 27C are to be repealed and substituted.

27B—Hearing on a written plea of guilty

New section 27B provides that, if an information and summons in the form required by the rules under section 57A is served on the defendant named in the summons in accordance with the rules and the defendant fails to appear in obedience to the summons but pleads guilty in writing to the offence to which that summons relates, the Magistrates Court may proceed to deal with the matter in the manner provided by sections 62B and 62C.

27C—Hearing if defendant fails to appear

New section 27C provides that, subject to the section, if a summons is served in accordance with section 27 on the defendant named in the summons and either the defendant fails to appear in obedience to the summons or the defendant fails to plead guilty in the manner provided for under section 57A to the offence to which the summons relates. In that situation, the Magistrates Court may proceed in the absence of the defendant to the hearing of the information to which the summons relates (and, despite section 62C, adjudicate the matter as if the defendant had personally appeared in obedience to the summons) or order that the information be heard in the absence of the defendant and adjourn the hearing (and, on the adjourned hearing, proceed in the manner provided for in paragraph (c) of subsection (1)).

On conviction after a hearing under subsection (1), the Magistrates Court must not—

(a) impose any penalty other than a fine; or

(b) disqualify the defendant from holding or obtaining a licence to drive a motor vehicle; or

(c) treat the offence as other than a first offence unless the informant proves that the defendant has previously been convicted of such an offence; or

(d) make an order for payment of compensation of an amount that exceeds an amount specified in the information,

unless—

(e) the summons was given personally to the defendant; or

(f) —

(i) the Court has first adjourned the hearing of the information to a specified time and place; and

(ii) the defendant is personally served, not less than 14 days before the time to which the hearing has been adjourned, with a notice informing the defendant of—(A)the conviction; and(B)the time and place to which the hearing has been adjourned; and(C)the provisions of section 76A; and

(iii) the defendant does not, within 14 days after the date of service of the notice on the defendant, apply in accordance with section 76A, for an order setting aside the conviction.

8—Amendment of section 57—Issue of summons by Magistrates Court

The proposed amendments to this section 57 are consequential on the changes proposed by new section 22 which will allow for the Magistrates Court rules to provide for the manner in which and by whom a summons may be issued.

9—Substitution of section 57A

It is proposed to repeal current section 57A and substitute a new section.

57A—Rules may make provision for written guilty pleas

New section 57A provides that the Magistrates Court may make rules to provide for a person against whom an information has been laid for an offence that is not punishable by imprisonment (either for a first or subsequent offence) to elect to plead guilty to the offence without appearing in the Court in obedience to a summons.

A defendant who returns a form in which the defendant pleads guilty in accordance with the rules need not attend the Court as directed by the summons.

If a defendant who has been served with forms of information and summons in accordance with the rules fails to return a form pleading guilty in accordance with the rules, and fails to appear in obedience to the summons, the Court may, subject to section 62B, proceed to exercise its powers under section 62(1)(a) or (b).

This section does not apply in relation to a defendant who is a child within the meaning of the Young Offenders Act 1993 except where the defendant—

(a) is of or above the age of 16 years; and

(b) is charged with an offence under the Road Traffic Act 1961.

10—Substitution of sections 62B, 62BA and 62C

It is proposed to repeal current sections 62B, 62BA and 62C and substitute new sections.

62B—Powers of Magistrates Court on written plea of guilty

New section 62B sets out the powers of the Magistrates Court that apply when a defendant fails to appear in obedience to a summons but has given the Court, in the manner and form prescribed by the rules made under section 57A, a form pleading guilty.

62BA—Proceedings where defendant neither appears nor returns written plea of guilty

New section 62BA sets out how the Magistrates Court may proceed if, in any proceedings under the Act—

(a) an information has been laid against a defendant; and

(b) the defendant has been duly served with a summons but—

(i) does not appear at the time and place appointed for the hearing or determination of the information or at a time and place at which the information is subsequently heard or determined; or

(ii) in the case of an information and summons served under section 57A—the defendant neither appears nor pleads guilty in the manner provided under that section.

The section provides that the Court may proceed to adjudicate on the information in the absence of the defendant in accordance with current section 62, and in so doing regard any allegation contained in the summons, or information and summons, (as served on the defendant) as sufficient evidence of the matter alleged.

62C—Proceedings in absence of defendant

New section 62C sets out the powers of the Magistrates Court where a defendant fails to appear in obedience to a summons and is convicted (whether on a plea of guilty under section 57A or after a hearing in the defendant's absence).

11—Amendment of section 99AA—Paedophile restraining orders

12—Amendment of section 99AAC—Child protection restraining orders

13—Amendment of section 99C—Issue of restraining order in absence of defendant

All of the amendments proposed to sections 99AA, 99AAC and 99C are of a technical nature only and relate to, or are consequential on, the commencement of proceedings to obtain from the Magistrates Court a restraining order by making of an application to the Court rather than by laying an information before the Court.

14—Substitution of section 99E

99E—Service

The amendments proposed in new section 99E in relation to service of a restraining order on a defendant are consistent with changes proposed to be made in relation to the service of intervention orders under the Intervention Orders (Prevention of Abuse) Act 2009 and will deem that service on a defendant occurs if—

(a) the order is served on the defendant personally; or

(b) the order is served on the defendant in some other manner authorised by the Magistrates Court; or

(c) the defendant is present in the Magistrates Court when the order is made, amended or varied (as the case requires).

15—Amendment of section 99G—Notification of making etc of restraining orders

16—Amendment of section 99J—Applications by or on behalf of child

The amendments proposed to sections 99G and 99J are of a technical nature only and relate to, or are consequential on, the commencement of proceedings to obtain from the Magistrates Court a restraining order by making of an application to the Court rather than by laying an information before the Court.

17—Amendment of section 104—Preliminary examination of charges of indictable offences

These proposed amendments are consequential.

Schedule 1—Related amendments to Electronic Communications Act 2000

1—Amendment of section 4—Simplified outline

2—Amendment of section 13—Time of transmission

3—Amendment of section 13B—Place of transmission and receipt

Each of the amendments proposed in Schedule 1 will substitute 'transmitted' or 'transmission' for 'dispatched' or 'dispatch', consistent with the amendments proposed to the Summary Procedure Act 1921 in Part 2 of the measure.

Debate adjourned on motion of Hon. T.J. Stephens.