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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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CRIMINAL LAW (SENTENCING) (SENTENCING CONSIDERATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2011.)

Ms CHAPMAN (Bragg) (11:03): It is good to be back. I rise to speak on the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2011, which was introduced by the Attorney-General on 24 March 2011. This bill was presented late last year for consultation as a draft which culminated in its being introduced for our consideration.

The essence of the bill, the government claims, is to be consistent with the established judicial sentencing practices and to codify current practice, but to limit the freedoms of the court within that practice. The Attorney-General made clear in his contribution the aspirations of the government to try to address a serious problem with the delay in the hearing of criminal cases in our criminal courts and the adverse impact that has on not only the court overload but also victims of crime, inconvenience to witnesses and the like. I will be referring to those shortly.

The government faces quite a serious problem—and I will outline a number of other aspects that I suggest are supported as to how that could be remedied—but I indicate that the opposition takes the view that the government's approach on this has not been as effective, in this bill, as it should be, and that they have chosen aspects of reform which are unlikely to create the benefit which I think everyone in this parliament would aspire to view.

The bill has two primary objectives, and this sets out the government's proposal as to how they deal with the problem. One is to reduce the backlog of criminal cases coming to trial by encouraging offenders who are minded to plead guilty to do so in a timely way. In this regard it offers a series of discounts for pleas of guilty, graduating upon the timing of that guilty plea being entered or offered: the earlier the plea, essentially, the greater the discount.

It is identified by the government that in 2009-10 late guilty pleas were the cause of 35 per cent of fixed higher court trial dates having to be vacated; that is, 308 of the 883 cases. I take a different view as to what that reflects—not that it is a bad thing—but that guilty pleas have been received and that there is substantial benefit in those cases not proceeding, in them being received even though they are described as being in the category of 'late'.

The second aspect is to encourage offenders to assist the authorities in the administration of justice. For example, in the provision of valuable assistance in the context of serious and organised crime—and I will refer to that again during my contribution—here the bill provides for a graduated series of discounts for cooperation with the authorities.

Members will appreciate that there is a view of the public that is not always favourable of plea bargaining or plea negotiation at all. I am sure some members in this house would have had comment made to them from time to time, by members of their own constituencies, as to how outraged they are that someone is reported in the media as having received a lighter sentence after a plea-bargaining procedure, either for an offence which has a lesser penalty, or receiving a sentence which has been negotiated down—what maximum might be available. That plea-bargaining process is one which they see as the crooks getting a good deal, and that should not occur.

For those who work in the criminal courts—and I am sure the Attorney-General is familiar with this concept—if it were not for plea bargaining and the opportunity for counsel (both representing the prosecution and the defence) to negotiate the terms of settlement in criminal cases (and in that exchange there is an acknowledgement by the prosecution that they will secure a prosecution without having to go to court, without having to expend money on trial: on witnesses, forensic evidence and the like)—there would be a benefit back to the defendant on the basis of there being a reduced sentence or the entering of guilty to an offence that attracts a lower sentence. This is an important instrument in the resolution of cases that is active and necessary to enable our courts to function with any capacity to advance.

There has been some academic reference to this, as well, in that plea bargaining is a rather crude form and is something that has certainly been criticised. One article in 1997, 'Sentence discount for a guilty plea: Time for a new look', published in the Flinders Journal of Law Reform (pages 123 to 143) in respect of plea bargaining stated at page 124:

It puts an inappropriate burden on the accused's choice to plead guilty, undermines proper sentencing principles, risks inducing a guilty plea from the innocent, undermines judicial neutrality and independence, and does not directly address the problems of time and delay which motivated its introduction by the courts.

I do not agree with that; I do not think even the Attorney would agree with that. There is a place, and a necessary place, for plea bargaining to be undertaken. I do not think our criminal justice system would function—it would explode with overwork—if this was not an important instrument in the resolution of cases. It is fair to say that, of course in the civil jurisdiction, the negotiated, mediated and compromised outcomes for compensation claims and the like are equally the beneficiaries of being able to be resolved, sometimes with a compromise, sometimes (as in that jurisdiction) with the applicant and respondent both being disappointed, but, nevertheless, it is an important instrument in the resolution of cases.

I think some would say (and it is fair comment) that a resolved agreement precipitates less opportunity for one party in the end in a court case to be angry or to feel as though the issue has been unresolved or that they have been unfairly treated in some way. I am an advocate for it, for the basis upon which it operates, and from time to time for scrutinising the rules which apply surrounding guilty plea processes, including bargaining and, in this instance, the question of discounting for early offers of guilty pleas to deal (one would hope) with not just reduction of court workload but all the other aspects that have been considered. In fairness, I think the Attorney-General has set out the adverse aspects of proceeding with trials to a number of parties concerned, including the victims and witnesses, not to mention the cost to all parties concerned. He set that out in quite a lot of detail in his contribution.

The government supports discounting for early guilty pleas, and so do we. However, the government claims that the courts are not maintaining a sufficient difference between the reduction of truly early guilty pleas and those closer to trial. It says that reductions of 20 per cent and 25 per cent are not uncommon for pleas entered into within weeks of a trial, and some defendants even receive significant discounts for a guilty plea on the day of trial.

Can I say that, in the course of considering this bill, the Attorney-General offered a briefing shortly after his introduction of the bill, for which I thank him. Mr David Plater, a senior legal officer, attended that briefing. I understand Mr Plater has had some experience in the DPP's office here and, prior to that, as a public prosecutor in England.

That briefing confirmed to us that this bill had not emanated from any election promise, which seems to be the basis of many of the bills which the Attorney-General has introduced, but was something that has been motivated by the fundamental assumption that too many defendants were pleading late in the process. That was a significant factor—not the only one, but a significant factor—in the problem that the Attorney now faces, that is, a clogged-up court system with obvious delays in the proper process, advancement and conclusion of those cases.

I think in his contribution the Attorney-General repeated the oft quoted, 'Justice delayed is justice denied,' and I agree with that; it makes it difficult. Sometimes, witnesses are dead, or not available, or cannot remember. This affects the clarity upon which evidence can be presented and, in turn, relied upon. There is an extra cost to all concerned—not just the courts and the taxpayers but also, of course, counsel in both the prosecution department within the police or in the DPP's office.

These are expensive processes. It was presented to us that this late plea occurrence was a significant cause of the problem we have. Largely, what was repeated by the Attorney-General in his contribution was confirmed by Mr Plater as the basis upon which this bill was introduced, having been out for consultation.

What was also presented on that occasion was, again, confirmation in the second reading contribution of the Attorney-General that there had essentially been a long gestation period for this concept and that the initial recognition that had been given, according to the Attorney-General and supported by Mr Plater, was that His Honour Judge Rice of the District Court had some years ago—in fact, back in 2006—undertaken an investigation and provided a report, commonly known as the 'Rice report', outlining recommendations that he presented for government's consideration as to how it might address delays in courts. We are grateful that Mr Justice Rice has undertaken this exercise.

Secondly, the Attorney-General, supported by Mr Plater, stated that there had been the Criminal Justice Ministerial Taskforce, which was chaired by the then solicitor-general, now Justice Chris Kourakis QC, and comprised a number of representatives from law enforcement, victims, the legal profession and the like. I think representatives of Courts Administration Authority sat in in an observer capacity, and there was a spectrum of representatives in the legal world who sat on this taskforce to deal with this issue.

Of course, the Attorney-General, in his contribution, claimed that the CJMT's first report highlighted the need to reform and rationalise the recognition to be given to offenders for guilty pleas. It talked about having a graduated series of sentence discounts, again with the direct purpose of inducing, I suppose, or providing incentives for the accused person to plead guilty at an early stage. There was also the review, as I said, on 15 October. The government put out a draft bill. It had a press release that identified that it was putting out for consultation a draft bill on these issues and that it would receive submissions on that.

At that meeting on 30 March, not surprisingly, the opposition said, 'Well, if this is what you are relying on, then surely we can have a look at it. If these high-powered, high-representation parties and well-regarded people had prepared these reports and then, on the review, significant players put in submissions that supported this initiative, then let us have a look at them.' This seemed to be the logical thing to secure the opposition's support for this initiative. It would have given us some confidence in knowing that these people had comprehensively and carefully examined the options that were available, looked at the challenges that were faced and would be providing us with that confidence to come into this chamber and support this initiative.

However, at the end of that briefing, the Hon. Stephen Wade in another place followed this up in writing to confirm the documents that we would like to have a look at. We have the Rice report and related submissions, the CJMT report and related submissions, the submissions received by the Attorney-General relating to the court efficiency reform review which I have referred to, the case law demonstrating the shift away from traditional common law sentencing precedents—and there had been some reference to that in the meeting—statistics demonstrating the effect of the late pleas on court proceedings and the DPP's statistics listing reasons for the late withdrawal of cases.

Now, with the last three, can I say that some of that has been provided. Firstly, the Attorney's office made it clear that the DPP's statistics were already available as late as June 2010. They did not offer anything more recent than that; they may not have had it. We were simply advised that that is available in that report and that the statistics demonstrating the effect of the late pleas had been provided in a schedule more recently by a letter of the Attorney dated 6 June 2011. Again, I do not think it actually supports what he suggests but, nevertheless, those are the statistics he relied on. To some degree, we have looked for the case law ourselves because it was not forthcoming.

The first three—which are the very first three things that the Attorney-General reports to this parliament as being the basis upon which he is taking up this initiative, and that our supporting this will be a demonstrably valuable exercise so that we can progress to the ultimate objective to cut down on the criminal case list—have not been produced at all. One has to ask the question why. The usual answer that used to come from the former attorney-general was, 'You can get your own. You can get your own copies. We do not have to do that work for you; that is up to you. If you want to progress this thing in a timely way, we have given you plenty of time. You can do your own research and get this information yourself, but we are not going to give it to you.'

Of course, we are left with an opportunity to do that in the time provided. So, the Hon. Stephen Wade, to his credit, to ensure that the opposition did have an opportunity to consider this carefully, did follow up with some other people in the time that we had. One of them was to progress a freedom of information application on the government—that is, on the agency at the Attorney-General's office—to produce a copy of the Rice report. If this is the Bible upon which we are being asked to make a decision—meritorious as it may have been before we had seen it, and we did not know that—we needed to see it. I am here to tell the parliament that we got it, and I am also here to tell the parliament that it says a lot more than the Attorney-General tells us.

I think it is very important that members of this parliament hear what the Rice report recommends and why, because the Attorney-General has missed the mark. Setting out a regime of discounting, with periods of no discounting, is not the answer. That is not, I suggest, consistent with his recommendation, and we need to hear for ourselves what he did recommend. May I say that His Honour Judge Rice is someone who had an extraordinary amount of experience as a barrister before taking his position on the District Court, and is, I suggest, eminently qualified to have undertaken this exercise for the government.

I now refer to the summary that has been put together on the recommendations. I cannot, of course, repeat the whole report and I do not expect members to go and read it from the time that we are expected to debate this matter. He says:

One of the major delays in the Supreme and District Courts is caused by the Office of the Director of Public Prosecutions using the time from arraignment to commencement of the trial for preparation (often 12 months). This means that a person may not see the case against them (and therefore cannot adequately prepare a defence), making it difficult for defence counsel to advise their client. Magistrates have not been 'rigorous' in enforcing compliance with the Summary Procedure Act.

That is the gist of his recommendation about what the problem is and what needs to be remedied. This bill does not deal with that issue at all. When the DPP presents late evidence, the defence needs to be afforded time to consider it, meaning a further delay of 12 months until the next sitting, unless given priority. All of these factors mean that the trial lengths cannot be accurately estimated. Here is another important observation he makes:

Changes to legislation, in particular the introduction of aggravated serious criminal trespass and non-aggravated serious criminal trespass (1999, CCLA), the scope of robbery and aggravated robbery (2003), offences against the firearms act (2003), abolition of the time limit for sexual offences (2003), and the increase in length of trials, (5.1 days in 2000 to 6.6 in 2005) all contributes to longer delays.

I am not here to present a case—and I would not anyway—to suggest that some of the reforms in these areas of the law were meritorious; in fact, they were, and they had our support. Sadly, I do not think that they have demonstrated the benefit espoused by then attorney-general Atkinson as to the panacea of good that would come from them. However, we supported the government in initiatives which we felt would actually advance greater protection to the community and which we needed to define as criminal behaviour in an expanded way to protect the community and properly bring those who conducted themselves in that manner to account.

But what I do say is that the government needs to be aware that there are consequences when you expand the law and the definition of what is now criminal. When you expand those who can be caught by criminal conduct, there are direct consequences. What that means is there is every likelihood that more people will be charged and brought through the criminal justice system.

It is supposed to be one of the ways (and I think to some degree, one of the effective ways) of modifying people's behaviour in the community to act in a way respectful of other people in the community, whether it is of their property or their person. It is an important instrument—a tool in the toolbox, or whatever you want to say—in keeping people's behaviour civilised to ensure that we protect the community, particularly those who are vulnerable.

What I do say is that, whilst a number of these amendments are meritorious, they have direct consequences. The consequences are that you probably need to have more law enforcement agencies, you certainly need to have more people in the DPP and you certainly need to have more people in the court system who are expected to try and sentence these people. You probably need to have more people managing the corrections level, not always necessarily in prison but there are parole components, prison accommodation, supervision of community orders, of course, and so on.

Recovery of fines is of course right at the forefront of the Attorney-General's mind at present because he is owed millions and millions. I thought that the last time we discussed this issue it was pretty clear that a lot of these people were never going to pay and they were not being chased, but I did listen with interest to the recent media announcements by the Attorney about all the gung-ho ways he is going to lasso these people in and lash them to something to ensure that they pay, like garnishment of wages. I don't know where he has been, but we have had that for about 175 years, but things like insisting—

The Hon. J.R. Rau: No, not wages.

Ms CHAPMAN: Not wages? Oh, pensions or something perhaps. Of course we have had effective garnishment of pensions in child support cases for a long time: $5 maximum. Anyway, there is a whole list of things that he is going to do to ensure that these people pay their fines. I don't know whether he is going to tip out the women who are currently occupying the old debtors' prison at the back of the women's prison there, the life sentence women who occupy those facilities that used to accommodate the old 10-day orders where you were arrested for not paying fines and given 10 days' imprisonment. You did not actually pay off your fine; you still owed the money.

In any event, it seems as though he is going to have some great enforcement processes that he is going to introduce, and we will look forward with interest to how effective that is going to be, given that we have had previous statements from the Attorney-General's office that clearly a lot of these people are never going to pay and they probably could not even pay the fine when it was first ordered. In any event there are going to be some real questions about whether there is going to be a priority given to these fines over and above their rent to the Housing Trust, food for children, provision of medicines and the like for other members of their family, etc. We will look with interest at what priority is given to these, how this is going to be implemented and how effective it is going to be.

However, I get back to the point that there are a number of other consequences when you expand the criminal law process and they are costly. For the government to, I think, effectively ignore these consequences by not providing the extra resources that need to go to the systems to implement what we process here through the parliament is not only ignorant, it is stupid, because of course we are going to end up with the problem that we have today. These are all factors which Justice Rice clearly identified which have not been addressed by this government. There is a direct cause and effect which the government has had an opportunity to address but which it has not. Nothing is going to resolve until we actually get to some of these core issues.

The other thing that Justice Rice pointed out is that there were a number of other changes at that time that had not actually come into effect which he felt were going to have another ballooning effect on the court system and court delays, which the government also has not addressed. Again, some of these new laws that were introduced came in with the support of the opposition but with a clear understanding—and this was repeatedly said in this chamber by me and others who represented the opposition in these areas, and I remember the Hon. Robert Lawson in another place clearly making this point many times—that none of this is going to be effective unless you put the resources to it to make it happen.

The new areas which Justice Rice identified are the new child pornography offences, which were introduced in 2005; the new offence of criminal neglect (in April 2005); the new offence of dealing in instruments of crime (in February 2006); the increased penalties for causing death and failing to stop and render assistance (in June 2006); the increased penalties for various sexual offences, including life imprisonment (in June 2006); the creation of other aggravated offences bringing matters into the superior courts more often creating a reluctance to plead guilty and therefore creating more trials; the broadening of some offences, such as assault, which now includes physical or mental harm, whether temporary or permanent; and, finally, the increases in general penalties, some of which I have referred to before and which were operating in new areas which were being put in place.

These have direct consequences, and the consequences are very clear: you have to have somebody to enforce these laws when we pass them, and you have to have somebody to investigate, prosecute and undertake the trials and, as I have said, the correctional ends that follow. I can remember the time when the former attorney-general came into this place and said words to the effect, 'I'm going to reopen a court in Sturt Street.' We had some comment to make about how there was going to be some difficulty in getting prisoners from vehicles in which they were being transported from the prisons, etc., and how witnesses might be exposed to this and so on. We did not think that he had thought it through very carefully. But the energy with which he put this emphatic announcement was really to say, 'We have expanded the opportunity for people to bring up old sexual abuse cases against children, from pre-1981 or 1982—'

An honourable member interjecting:

Ms CHAPMAN: —1983—'and we are going to need some extra court space to do that, so I'm going to reopen the Sturt Street facility for that to happen.'

I cannot think of any time in the former attorney-general's entire period of office when he came into this place and told us how he was going to add to the resources of the court system to deal with all this. Quite properly, Justice Rice, in this report, made it quite clear that it had to be done, that there were direct consequences from this, and that this would cause further delays unless it was addressed.

Now we come to what Justice Rice recommended as short-term measures to address this problem. The first is that the prosecution should provide a brief that is ready for trial at committal, as per the obligations under the Summary Procedure Act; secondly (and this fits in with this requirement), that additional time should be given to magistrates, prosecutors and defence counsel (four weeks was suggested by SAPOL and two weeks by Justice Rice) before the committal to prepare their case, which, as I said, would be necessary to support the first recommendation; and, thirdly, that a document outlining the guilty plea and sentence should be presented to the defendant. To some degree, they are some of the aspects that are being looked at in this bill; I do not think it covers it fully, but there is a little of that in it.

In addition, the Office of the Director of Public Prosecutions should make its best offer for resolution prior to the first directions hearing, which would require all trial information to be already prepared. The importance of this is that, at this stage, only full preparation will be necessary for them to put forward their best offer. Here is where perhaps Justice Rice and I are a little apart in our thinking. I will say that I have never known counsel ever to put forward their best offer at any first meeting. I think that is fantasy land. I will say this: the opportunity for them to put their best offer forward—even if it is not quite the best offer, but a reasonable offer—is frustrated completely unless that information is there; unless that preparatory work has been done and is available for the defence counsel to advise their client as to what would be in their interests to consider or negotiate as far as a plea bargain were to go.

The other aspects that he suggested as solutions were to ensure adequate resourcing of the DNA forensic sciences, so that quicker turnaround times could bring a resolution sooner. We have discussed in this parliament on a number of occasions changes of law to accommodate advances in forensic assessment and investigation. As the opportunity arises to use procedures such as DNA testing in the supporting of forensic evidence that is brought together for the successful prosecution ultimately of offenders, they have been important; and again the opposition has supported when we felt that that could help in the detection of persons who had committed a criminal offence.

We have even gone further than that and supported the government in initiatives at a national level to keep databases and have information available for the cross-referencing of that information. That is important for modern law enforcement agencies to have access to and be able to facilitate. We have been proud to make that contribution, and there are important procedures now that can be undertaken to be able to more quickly identify and hopefully arrest and bring to justice persons who have committed crimes.

I seem to recall—and I say that because I cannot be clear on this—that there was an initiative in one budget (I do not think it was the last one) in which some extra funds were allocated for forensic—

The Hon. J.R. Rau: There was one in the last one.

Ms CHAPMAN: It was the last one. In any event, in recent times the government has put some extra funding towards forensic science resources. It may just have been for DNA, I cannot recall now, but I think there is some acknowledgement that cases were being held up and nobody could negotiate anything. Even prosecutors were hamstrung in being able to proceed to lay charges, because this type of testing was under such pressure, and the delays were so strong.

We have seen already in the testing they do, not for criminal behaviour but for deaths where there is a coronial inquiry, the enormous delay that relatives face—it is the relatives who are facing the distressing delays in coronial inquiries—not just to have what is commonly called the closure of cases but in some instances the opening, so that they can actually progress to get some justice in other ways, not just criminal; there may be other compensation claims that hang on this evidence. The timely processing of forensic science requests is critical to the progressing of the number of cases through our courts system and also in a number of other fields; so there are lots of pressures on them.

Apart from that, we hear—and I am sure the attorney gets them too—plaintive cries from forensic service people to say, 'Look, we are overloaded; we need more personnel; we need more scientists; we need more funds to actually do these diagnoses and assessments and for the testing and reports to be sent off to the relevant authorities.' Justice Rice made this very clear. This was a key element, short-term, that could be introduced to help deal with the problem. Next was the further training that could be provided to the Office of the Director of Public Prosecutions' prosecutors. He said they should also be briefed earlier to get a greater contact with the defence in relation to evidence of witnesses. That is quite interesting, because I think Her Honour Justice Trish Kelly has some management of this; of course, she was also formerly in the Director of Public Prosecutions' office.

This concept of having management of a case from an early time is something that I think has at least been trialled. I am not sure how far it has been advanced, but surely we should give that some opportunity to see how it is progressing. I am sure the Attorney could get some information about that, about whether that trial needs to be expanded or whether it has already been expanded—it may have been already—and, if so, whether it is working or not and helping to address that aspect. Certainly, there are eminent people now in the courts who have worked in these areas and who can see the benefit of early management and allocation of briefs.

Next is the funding arrangement for the Legal Services Commission.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney interjects—and I thank him—to indicate that he is looking at that. This is important. Offering a payment of $200 to a defence counsel to take instructions, read briefs, try to look at all the evidence, speak to witnesses, negotiate with the relevant parties, appear in court and give a guilty plea is just a nonsense. I think if even a plumber came out to someone's house for one visit these days, to inspect the pipes, you would not get much change from $200, not to mention if he had to deal with a plumbers' association, buy all the product, come back and negotiate, etc., and install the things in the end to actually make it work. So this is just a nonsense; it is no incentive. Judge Rice picked this up, so I am pleased to hear the Attorney say that he is looking into this.

The other thing he suggested was that prosecutors should file and serve the list of witnesses it proposes to call at trial four weeks before the follow-up directions hearing. Again, the prosecutors would be required to submit a certificate of readiness outlining all the evidence the prosecution intends to present, and not be allowed to introduce new evidence unless the court gives leave in exceptional circumstances. We already have a whole lot of laws to cover that latter aspect. The important thing here is that they have ticked off that they are ready and that serious discussions can actually take place.

I hope that legislative change to provide for binding rules in relation to joinder, separate trials, some admissibility questions, subpoenas, etc., to allow those decisions to be made well in advance of the trial is under consideration by the government, because, again I think that is something directly in our court. I would have been very much happier if we had been looking at those aspects today rather than this bill.

In any event, the time for filing rule 8 and rule 9 notices should be amended to require them to be filed within one month after the date on which the matter is ordered to be set for trial, and the culture of defence solicitors and counsel should be changed to ensure that they take the initiative in resolving matters rather than relying on the courts or the DPP. That is fair comment; it is a good idea. I do not suggest, though, that this bill actually does that. That is the problem. There is no connect between the objective and what is likely to happen. Two more courts should be able to use the CCTV and, finally:

One of the obvious means of reducing the number of outstanding trials and thereby reducing the time between arraignment and trial, is for there to be more courtrooms which cater for juries with proper security.

Following on from that, of course, we had the Chief Justice come in during estimates this year to talk about the shabbiness (and I think that is a kind description) of the Supreme Court in this state; the worst in the nation, I think—not in his words, but in the words of another recently retiring judge. It is not just a question of the standard of accommodation and whether it fits with occupational health and safety: it is also the amenity providing enough facilities for personnel to be appointed to actually do the job.

I think that is Judge Rice's point here. It is not just a question of whether you have comfy chairs: it is a question of having fit premises. Courtrooms are a bit like hospital beds; you can easily wheel in a hospital bed, but that is not the cost. It might be a couple of thousand dollars for a hospital bed (I don't know how much they are these days) but the cost, of course, is in having the nursing, medical and allied health services that go with the patient in that bed, to support them while they are in it. This is exactly what Justice Rice is saying.

So, it comes as no surprise to the opposition—having received under freedom of information the Rice report and having considered the recommendations and identified the comprehensive failure of the government to act on most of them—that the government did not provide us with this report in the first place. But we have it, and it starts to cast a shadow over what has been presented in other submissions.

I was shocked, given that taxpayers have paid a lot of money to receive it, by the complete omission, or lack of reference, to the Smart Justice report of Judge Peggy Hora in this presentation of the Attorney-General. Members will recall that she is a retired United States judge. She may have sat in some other superior courts but her expertise was particularly in juvenile justice. She came here, like other Thinkers in Residence, courtesy of the taxpayer and she had some great ideas.

I attended a number of her public presentations and read her report. She reported to the government, as is appropriate, for the government to consider what good ideas there might be in that report and then bring it to the parliament if we need legislative reform or introduced programs that are consistent with it. That is the whole idea of bringing in these people.

I know we have an army of people, including ministers, who trot around the world. There has been Monsignor Cappo and people in other departments who have travelled around the world looking into juvenile justice. Judge Hora had given, I think, two reports to the government, but the final report is the one that I am going to refer to. I am disappointed that the Attorney has not at least referred to, or acted upon, some of her recommendations in this area because she also looks at the question—

The Hon. J.R. Rau: This pre-dates her. She is being looked at independently. She is being looked at.

Ms CHAPMAN: The Attorney suggests that her report is being looked at independently. That may be so, but this does not pre-date her being here. She was here two years ago. This is not new—well, her recommendations are—and it seems to me that, along with Justice Rice, if the government was serious about dealing with this issue then it would be looking at the pointy edge of what has to be dealt with. Judge Peggy Hora made a number of recommendations in her Smart Justice report to encourage early guilty pleas, recognising that the sooner you get them out of the court system the less time might be taken up with other processes. We all understand that.

The Hon. J.R. Rau: We agree on that aspect.

Ms CHAPMAN: We agree on that point. We disagree on how you get there. She says that it is important to formalise sentencing discounts. So, she actually supports the concept of doing that. If that were the only aspect, then we would say, like the Law Society, that we could live with that, if it was genuinely a codification of what the current position is. But this is an exclusion, it is alienating from the courts the opportunity to use discounting after a certain date, and that is what we will not accept.

I think that we are on the side of the angels with that, as far as support goes. Of course, if the Attorney had taken the time to consult with members of the profession who deal with these cases on a daily basis, as defence counsel, then he might have got a bit further down the track, he might actually have had a better understanding of it.

The Law Society, the Bar Association, I think, and criminal barristers have looked at aspects of this and they have come to us to indicate what their position would be. Again, supporting meritorious ideas that would help but which have so far been ignored by the government. Let us get back to Judge Hora. She states that, in addition to formalising sentencing discounts for guilty pleas:

Consider legal aid funding of cases which rewards early disposition rather than encourages pleas on the first day of trial.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney says he is going to look at that.

The Hon. J.R. Rau: No—are looking, and have been for about six months.

Ms CHAPMAN: If you have been looking at it for six months, heavens above, why do we not have something before us now? If you have been looking at it for six months, it would have predated the budget. We should have had something in this year's budget, which was disgracefully delayed as it was.

The Hon. J.R. Rau: I can't tell the commission what to do.

Ms CHAPMAN: The Attorney says he cannot tell the commission what to do. The commission is entirely funded by taxpayers—entirely. The commonwealth and state governments allocate taxpayers' money to do good work. I am sure many members here would support what they do. However, a bill was presented to us just recently via the Attorney to remedy some fate they might suffer—which would best comply with their operations—which we have considered. Happy to help. However, the Attorney says he can't tell the commission what to do when it comes to what the allocations will be. If the funding is made available and the direction is made, we can make provision right here and now in the parliament, if the Attorney is serious about introducing that aspect.

The Hon. J.R. Rau: I am.

Ms CHAPMAN: Get the bill in to us and we will certainly look at legal aid funding for cases that have a direct benefit of rewarding early disposition. Judge Hora also recommends a sentence indication scheme:

...where a judicial officer, having received a summary of the facts agreed to by the prosecution and defence, provides information on the sentence likely to be imposed if the defendant enters a guilty plea during the pre-trial process.

I accept that the formalisation of something like that is going to be difficult. At the moment, just in offering discounting, some judicial discretion is left in how these things are managed. I for one, and probably the Attorney, have appeared before courts from time to time, and the judiciary—wise men and women as they are—often have a very clear capacity to make crystal clear what is going to happen if a settlement is not brought before them. They have a way of generating that information, which has precisely the effect of what is there. The formalisation of this may be difficult. We are happy to look at it, but, sadly, we have heard nothing more.

Judge Hora also recommends adopting the rules of reciprocal discovery and disclosure. Some attempt has been made at this over the years, but I think it is still a bit of a dog's breakfast. There are so many other laws and balances of protection that need to be taken into account. There are some difficult aspects of this, but we cannot be asked to make a decision on sentence discounting, and the formalisation of it, without there being rules to ensure that both the prosecution and the defence are in that disclosure position, and that the prosecution presents its material before that happens.

Finally, Judge Hora recommends a review of all cases by a senior prosecutor from the DPP at the Magistrates Court level. This is an interesting component. I am not sure why this has not been followed up. It seems to me that those at the DPP's office are the experts in relation to what evidence is required for a successful prosecution. They are clearly very qualified people. Some of the Magistrates Court prosecutions deal with matters at a summary level. Of course, the prosecutors are good men and women who come forward, and they are supported by police enforcement to prosecute those cases.

But clearly the DPP are experts, and I think Judge Hora has a point here that we need to have somebody senior have a look at these cases and go through them and say, 'Look, this is not going to fly. You are not going to get a prosecution on this. You need more witnesses on this. If you don't get this, it is going to fail,' and deal with this in a professional way to make sure that we do not clog up the cases in courts. This includes those that are being prosecuted that do not have a wing or a prayer of a chance of being successful.

Some would say that they are being persecuted under these processes rather than objectively prosecuted, and there may be some of those cases, but I am sure there is also a reasonable category of cases in there that are just being progressed because there has not been someone more senior come in and make an assessment about the likely failure of that case being advanced. So, we need to clean out those that are clearly not going to fly as far as successful prosecution goes.

I am disappointed that the Attorney has not brought in initiatives that the experts are telling us actually need to be done to make a scrap of difference and make an effective hole in the problem that we have. So, the opposition's position remains: we do need to have a look at all this material if we are going to have any aspect of support for this bill before we go any further. I remain concerned—especially having read some of the notes and spoken to counsel, who are actually out there working with these cases at the moment and who the Attorney says he has also spoken to (or someone in his office has spoken to)—that these other aspects have not been considered.

One group that has the resource and the expertise and has made a contribution in this debate has been the Law Society of South Australia. Shortly after the introduction of this bill, the Law Society provided a submission to the Attorney identifying some defects in the bill, for which they set out the case for amendment, not all of which we agree with.

The opposition agree that there are some aspects that ought not be followed, but there are other aspects that are very important to be considered. I think there are others in the category that if they are not considered, then this bill should fail in respect of the sentencing discounts and particularly in respect of the publication aspects of the cooperation recommendations. I will quickly summarise here the Law Society's proposals, which are:

1. to provide an opportunity for a discount above the proposed 40 per cent maximum for cases where people confess during an investigation phase, before a charge—that is a pre-charge discount—

2. to change the timeframe for maximum discounts to:

2.1 for indictable matters—by the answer charges date;

2.2 for minor indictable matters to be dealt with summarily—eight weeks after the defendant's first court appearance, being the time within which the defendant must elect; and

2.3 for summary matters—four weeks after full disclosure (as certified by the prosecution) or such other period as the court directs;

3. to make a discount available in the 'no discount' period, at the discretion of the sentencing court, where a guilty plea saves the state time and resources and reduces the burden on those involved in the trial (e.g. victims and witnesses);

4. to make allowance within discounts for:

4.1 amendment of the substance of charges within the laying of fresh charges;

4.2 adjournment of a trial that is taken out of the trial list;

4.3 allowance of adverse ruling in a pre-trial hearing;

4.4 a sentence discount in a re-trial ordered following an appeal against conviction;

4.5 to make allowance for a stay application under rule 8;

5. to promote the attractiveness of discounts by setting a range (upper and lower);

6. to allow the 40 per cent maximum to be exceeded where there has been both cooperation and an early guilty plea;

7. clarification of the application of the discount to the application of the non-parole period for life sentences;

8. to clarify the time period within which the DPP can review compliance with an undertaking;

9. to broaden the scope of retribution that can justify a discount for cooperating with the authorities;

10. to remove the reference to the rehabilitation prospects of the offender, given that it is a general sentencing principle;

11. to clarify notification requirements; and

12. to remove the capacity for time frames to be changes by regulation.

I indicate that I have read the letter of the Attorney-General in response to concerns raised by the Law Society by letter of 6 June 2011 in which he sets out the case that the government wishes to maintain. In relation to item 5, which is to promote the attractiveness of discounts by setting a range (upper and lower), the Attorney indicates that there should not be a lower range, and we agree with him and therefore do not press that from the Law Society's list of recommendations.

In relation to No. 10, to remove the reference to the rehabilitation prospects of the offender, given that it is a general sentencing principle, we agree that that can remain and is not something we would press. I will say that we do look forward to the government reconsidering this matter and, if it is not prepared to introduce amendments, we will, to support recommendations 2, 3, 9, 12, 1, 4, 6, 7, 8 and 11. When the Attorney reads these I am sure he will look at what we are putting. I do not think I need to repeat what they are. I think the Attorney is probably very clear, and I am sure others who are following this debate in detail will know what we are talking about there.

We seem to be fundamentally apart. I think the Attorney's description is that these are matters on which reasonable minds may differ, to quote his reference—which is at least something, I suppose, but, clearly, we are not always going to agree on a number of things. In a nutshell, we are not satisfied that the government has done other things that would, on the expert's recommendation, remedy some of these problems, and they should be remedied.

The information that has been provided on statistics we do not suggest actually supports the argument of there being a problem with guilty pleas. They are guilty pleas. They are described in the data as late guilty pleas but they are guilty pleas, nonetheless, and they do actually have a discounting benefit whenever they are received. I think it is a long bow and one that should not be drawn to suggest that that is the answer. Setting the no discount period is just a complete nonsense, and I think the Law Society certainly supports that. So, we will look at a number of those things.

I will briefly refer to the question of the cooperation with the police and the prosecution. The concept of giving some leniency in sentencing ('discounting', as we refer to it in modern terms) for cooperation is not new to the criminal justice system, and it is an important instrument in the resolution of cases. I was surprised to read in March this year when the government made its announcements about this bill that the headline was 'Shorter sentences for crooks who talk' and 'Shorter sentences for crooks who dob in mates.' Clearly, there was a presentation by the government to the media—in whatever crude fashion it might have described it in headlines—about giving some reduction in sentences to criminals who snitch on their co-conspirators, etc.

The fact is that it has been around for a long time. It is an important matter to be preserved. The Law Society has raised issues that place some of the disclosure of confidential material at risk under these rules. I think that the minister indicated that he would be presenting some amendments to help remedy some of that, and we will have a look at them. Some have already been presented to us. I am not sure that that will actually resolve the whole matter, however we will have a look at them because this question of confidentiality of information, or any interference with it, could completely undermine the whole purpose of why we are here.

Can I say from the opposition that we do not present any argument to say that discounting for those who spill the beans on others is not a useful tool and should be continued, but perhaps I will give the benefit of the doubt to the Attorney to say that we wanted everything to be transparent and open with all this process and it has been mucked up. It needs to be remedied, otherwise it is going to be a serious impediment to having the opposition's support.

We remain keen to see the material which the government has relied on and which has not been made available via FOI. Some of it we have, but that does not fill us with confidence that the government has done other things that ought to be introduced for that purpose. However, at this stage I indicate that the opposition will not be supporting the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (12:11): I thank the honourable member for Bragg for her contribution. Can I say that I possibly offered her contributions across the floor that prolonged things a little. I was attempting to shorten them, but I apologise for that. It was very short, anyway, and concise, succinct, clear and many other favourable words.

Can I just start in a general way and then work my way towards the particular in this? First of all, whatever the genesis of this concept might have been (and it was, in effect, Judge Rice's report which now I understand the honourable member has had a look at and has had time to consider), it was then the subject of some consideration in the Attorney-General's department before my time and for which I cannot speak.

However, since my time it has been under very active consideration by me and by those who advise me. That active consideration involved, as is indicated in the report, discussions which involved at various times the Criminal Justice Ministerial Task Force, the former solicitor-general (the Hon. Chris Kourakis, who is obviously a judge of the Supreme Court now), the Commissioner for Victims' Rights, the DPP, SAPOL, the Law Society and the Bar Association. I will not read them all out, but the fact is that all the main players who have a stake in this have been consulted on this bill.

Whatever the genesis of it might have been, the product has been out there, given to people and they have been given an opportunity to comment on it in its own terms. What I would like to say about that is something which, I guess, in particular the member for Bragg would appreciate perhaps more than other members. When we are talking about something like sentencing, and if I can use an analogy (and it is always dangerous and I come up with bad ones quite often and, hopefully, this is not as bad as some), imagine a cheesecake, say, a nice round one, and you cut it into quarters, halves or whatever, that is probably not a bad analogy for looking at the way the legal community approaches this subject.

One of those pieces could have the label 'courts' on it; another piece could have the label 'Law Society' on it; another piece could have the label 'defence bar' on it; another piece might have 'Director of Public Prosecutions' written on it; another piece might have 'SAPOL' written on it, and so on. The point is that each one of those particular pieces brings a different perspective to the issue of what the whole solution is, and none of them sees it from the other one's point of view—they see it from their point of view.

For example, the Law Society has been consulted extensively about this bill, but—and this is no criticism of the Law Society—I make plain here that the Law Society has no idea at all what it takes to be John Doyle, or what it takes to be the Chief Magistrate or the Chief Judge of the District Court, because they do not have to manage court lists; that is not their job. Their job is to turn up in court and say what they want to say on the day they are suppose to be there, and they are good at it.

As far as they are concerned it is a bit like a puppet show where all this magic is happening behind the screen, you walk into court, there is a bloke or a woman sitting there, you chat to them for a while and then you go away; it just happens by magic. Well, it does not happen by magic. The judges of those courts have to list things, and they know what the dynamics of their court are a lot better than does the Law Society, and they were consulted about this and that is why we have the time frames in here that we have in relation to things.

I take the member for Bragg's point (out of order, of course) about all the things the Law Society had to say about changing this from four weeks to two and this from eight to 10, and whatever. With all due respect to the Law Society, on that particular topic it might suit defence counsel, but it completely ignores the impact on the courts. The important point is this: if the courts do not get notice in time enough for them to do something about it, it does not have any effect on the list.

For instance, if the Magistrates Court requires eight weeks notice (and I am making up this number) in order to pull a judge out, put another case in and have everybody ready to go, if we make the law that they only get four weeks, on the basis of what the Law Society says, we have achieved nothing because that four weeks is not enough to be eight weeks. I am giving an example here of where the Law Society, through the best of intentions but through the perspective of the Law Society, thinks it would be more convenient if certain things were different. It might be, but they are not running the court.

The bill, in as much as it has time frames and everything else, was the subject of extensive consultation with all the courts, and they moved around several times. I remember the District Court one started off at something like four weeks before trial, and I had at least three or four meetings with the senior judge because he said, 'Look, that's not going to work because of this.' We went back and had another version, and he came back and said, 'No, that won't work' because of whatever else. Those things are not just thrown up by me on the basis that this looks okay, because they were originally; the judges told me that they were not going to work and that we will get no dividend out of this if we did it that way. That is why we are doing it from that point of view.

That comment or illustration I am trying to give the honourable member about those discrete recommendations from the Law Society play out similarly in other areas. I will come to them briefly in a moment. Keep that pie analogy in the mind because everybody is okay talking about their bit, but they are not necessarily so okay talking about other people's bits. When we come to some of the recommendations made by Judge Rice, he of course is sitting in the court. He has a very good perspective on what is going on in the court.

In as much as he is talking about what should be happening in the DPP, again, all due respect to Judge Rice, he is not the Director of Public Prosecutions. It might be for purely practical reasons, which are best known to the Director of Public Prosecutions, complying with the proposals put up by Judge Rice, and it may be a lot more difficult and a lot more impractical than one would assume when one stands outside of the Director of Public Prosecutions' office.

If the honourable member wants to know whether I am prepared to take these matters up and whether these have been taken up with the director, the answer is yes. But, the director is an independent statutory officer. The Director of Public Prosecutions, subject to the situation in extremis, is not subject to direction from me. Quite frankly, for me to start directing the Director of Public Prosecutions—I am not even sure if I am lawfully able to in terms of management issue; I do not think I am—but even if I were, the idea that I would be heavy-handed enough to go to the DPP and tell him how to manage his office is just not going to happen.

The position of the DPP periodically comes up, and it may be that one of the matters that might be set as a priority for those who wish to apply for that position is addressing some of—

Ms Chapman interjecting:

The Hon. J.R. RAU: Michael?

Ms Chapman: Atkinson.

The Hon. J.R. RAU: I am not sure he is eligible.

Ms Chapman interjecting:

The Hon. J.R. RAU: I was talking about eligibility. I think it is seven years standing, or something. Anyway, back to the flow of things. I am in favour of the Director of Public Prosecutions trying to accommodate the requests made, or the suggestions made, by Judge Rice. I endorse that, and I agree with that, but I just make the point that I cannot tell him what to do. I am almost positive that I cannot tell him at all what to do in a managerial context. I am able, I believe, to override him in respect of a decision to prosecute or not prosecute, or appeal or not appeal. Again, in my view, that is a power that should be used only in extremis. It is not a day-to-day thing. The idea that I should be going in there and managing the DPP's office is obviously nuts. That is the little DPP bit.

When we come to SAPOL, again, the police minister has some opportunity to give direction in extremis to the commissioner. Again, I am not going to get into these internal workings. But do I endorse, in general terms, what Judge Rice has had to say about better cooperation between agencies and the provision of earlier material? Absolutely I do.

DNA funding? Yes, we put more money into DNA funding, and it is very important, although I draw the distinction between DNA and PM funding, because the whole process is quite different, the requirements are different, and the time lines are different. Yes, I agree with you about DNA funding; it is important, and we are doing something about it. In terms of case management, again, I agree with you. Things are being done about it. They are being done about it now as a trial in the Magistrate's Court, and we are working on some trialling the District Court as well. So, we are on the page about that.

The Legal Services Commission is a very important element in the whole equation. Again, the honourable member for Bragg hit the nail right on the head when she asked why someone should, in effect, be paid less than a plumber coming to fix a tap up, to take instructions, read a brief, work their way through the whole thing, have extensive negotiations possibly with prosecutors, talk to their client, and then give advice to their client, and then turn up on a day, all for $200. You have no argument with me about that—none at all.

The point I wanted to make about that is that during last year the Legal Services Commission was granted additional funds. You might recall that there was an additional amount of money injected into the Legal Services Commission on, I think, a three-year time frame to give them additional funds to get on with what they are doing. That was a conditional payment. The condition was that the Legal Services Commission agreed to have people that we, in the Attorney-General's Department, wished to have go into their computer systems, have a look at what they are doing, pull out all of the data we can about where the money is going, who is paying what for what, a comparison between private professional suppliers and in-house suppliers, and a consideration of whether there was room for a public defender's office to somehow occupy some of that space and be a benefit to the public.

That is actually underway, and it has been going on for months. One of the reasons for that being underway is to address the front-end loading point that you articulated so well a while ago, because I agree with you. Every bit of common sense that I can muster says front-end loading is a no-brainer. I have said this on a number of occasions to the commission, but the commission wants to see how that is going to work, and we need to get the figures to be able to establish it.

I can tell you something that, incidentally, is coming up because of this debate. We have some figures out of the commission about this—and it has been extremely cooperative, I might add, and all of the people working in that group with the commission have been working very well together and it is a credit to all of them what they have done. As a matter of interest, just to show you how seriously this project is being taken, the commonwealth wants to be involved in this as well, because of course they are spending money through our commission. They are interested in what is happening and they have become participants in the process. So, it is a very serious investigation.

One of the problems we are confronting at the moment is that an enormous amount of data is being held by the commission. However, that data is not necessarily recorded in chunks that correspond with the questions we wish to ask. For instance, a hypothetical question may be, 'How many cases are finalised on the first day of trial by way of a guilty plea as opposed to more than four weeks out?' Again, this is a hypothetical example, but their recording of data may not distinguish between a resolution by way of a judgement and a resolution by way of a plea. The data is helpful in as much as it tells us what it tells us, but it is unhelpful in as much as what it does not tell us.

What we are trying to do now is work our way through that so we get a sharper picture of exactly where the movements are in the commission, where people are pleading guilty, where they are not pleading guilty, at what point, and so on. We are right onto that, and I agree with you entirely. The honourable member made another point about subpoenas and other ancillary matters. That is part of a bill which will be coming here shortly, which we have also been working on for a long time, called—it is a fantastic title; you will love this—the courts reform bill.

Ms Chapman: Oh!

The Hon. J.R. RAU: Yes; isn't that scintillating? There is another one too. There is one called a courts package, which will sit beautifully with the reform bill. At risk of quoting my own report, on page 5 (at least in what I have) I have said this—

Ms Chapman: 'I said myself.'

The Hon. J.R. RAU: 'I myself said.' I say this because the honourable member has said things today that suggest I am not aware of the complexity of the problem, but when this bill was introduced I said:

The problem of court delays is acute and complex. There is no simple answer. It is clear that additional resources, (even if available), would not, of itself, solve the problem. The Government has already increased the number of District Court Judges and provided additional courtrooms in an attempt to alleviate the problems. It is timely and appropriate to consider other avenues such as—

not exclusively—

encouraging early guilty pleas through this Bill and other linked measures to improve court effectiveness.

Now, hold the pie in your head; we are now getting a Rubik's cube. We are moving the Rubik's cube around and there are about eight or 10 articulating bits. I do not know how many squares there are in a Rubik's cube, but there are about eight or 10 articulating bits. The honourable member is saying to me, quite fairly, 'You have moved one articulating bit and you haven't solved the problem.' Correct. Absolutely correct. However, if we are going to solve the problem, does this piece have to be moved? Yes, it does.

The other pieces include things like the DPP looking at the way they organise themselves and the courts having appropriate case management in place. Again, can I say the courts are not subject to my direction. I meet with them and talk with them, but I do not have a managerial prerogative to tell them what to do. I can encourage them. We could, it is quite true, legislate here to say courts will have case management, but then who is going to put the flesh and detail on that? Not me; probably not even the member for Bragg. So, some of this has to be done by cooperation and ongoing things.

Again, DNA: we are putting more money into that. Legal Services Commission: we are doing the most thorough review of the Legal Services Commission that has ever occurred, with the commonwealth, with a view to being able to say at the end of that process, 'Guess what, Legal Services Commission? We, now, using your data, are able to demonstrate for you that you would actually get more bang for your buck and at the same time de-clutter the courts of unnecessary people who are going to plead guilty if you front-end-loaded your payment structure.' We are working on that: the subpoenas and the other things, they are coming.'

The member for Bragg's criticism of the government bill—that this does not solve the whole problem—is completely fair. But, equally, the problem will not be solved if we do not do this in addition to other things. So it is one bit of a whole. If you don't like Rubik's cubes, maybe a jigsaw puzzle is better.

Members interjecting:

The Hon. J.R. RAU: Thank you; I am corrected. There are nine articulating pieces, so it is very complicated.

That really leaves one point of difference between the government and the opposition—and the Law Society—a fundamental point of difference, which is a matter of principle. The principle is: if you are really late with your guilty plea, like on the day of trial, or, to put it another way, so late that the courts cannot backfill your spot in the court and therefore you might as well have left it to the last day—if you do that you do not get any discount on account of the plea only. You may get a discount for your personal circumstances, you may get a discount because of cooperation with the prosecuting authorities or any number of other things, but the element of your discount that might be attributable to a plea is zero.

I know there are some people who do not like that, and it is evident from the comments made by the honourable member for Bragg, and Mr Wade in another place, that they are amongst them. Well, we have a difference of opinion. If you are going to actually put a disincentive in the system, it is no good it being a Clayton's disincentive: it is either a disincentive or it is not. So, what we have put up is a genuine disincentive.

There are members of the legal profession who do not like that; there are some members of the judiciary who do not like that. Ultimately, it is not their call: it is the parliament's call. If we want to send a clear message to people who are going to clutter up the courts and plead guilty belatedly, how do we do it? The answer is we do not have a Clayton's penalty for sitting on your hands, waiting for the last minute, hoping that all the witnesses die so you get off. So, that is why we are doing what we are doing.

I am more than happy to have a conversation with the opposition about some of the particular matters that have been drawn to our attention, although, for the reasons I have already explained, I think many of the Law Society's comments, though well-intended and probably well-researched from their perspective, do not take into account the practical managerial requirements of the courts system. Therefore, their contributions, to that extent, are unhelpful.

In relation to the questions raised by the Law Society—'What about if someone only gets the evidence late in the piece?' or 'What about if the trial goes off because somebody is not there or whatever?'—we thought of that, and there is a provision in the bill which talks about—and I am paraphrasing this—where a person does not plead guilty early on, for reasons not of their own making, then the clock, in effect, stops at the 30 per cent and starts again once the process moves on.

If the opposition wants to have a discussion with me about whether that provision, which appears in a number of places in the bill, is effective to achieve that, I am up for that conversation, because that is what it was always intended to achieve. If what they are saying is, 'We think that provision could be better,' I am very comfortable having a talk about that because that provision is not meant to be tricky. It is meant to mean that, where an accused person, through no fault of their own, finds themselves running up against the timelines and losing discount possibilities (when it is not their fault) they should not be penalised.

We do not have an argument with the opposition if that is their point—we agree. If the opposition is saying that our wording is not good enough to cover all the possible circumstances that give rise to that, fine, we are happy to have a talk about it; we are happy to be improved upon by the opposition if that is what they are on about because we have no difference of opinion about that at all. That leaves us really, when you strip away all the icing and get down to the bottom, with one philosophical point of difference.

If a person is going to plead guilty and they leave it to a point where it is so late in the piece that the courts cannot backfill the time they were supposed to be occupying the court and, therefore, the court has down time which is not used but still costs the public tens of thousands of dollars a day to be open with nobody in it—the judge sitting in his or her room probably reading erudite works and writing judgements or whatever but certainly not dispensing justice—and if we are happy to have people who want to run the gauntlet right to the end and then plead on the day of the trial because they are hoping that one of the witnesses will change their mind or their lawyer, for whatever reason, has not had a chance to give them appropriate advice until the very end, or they just want to have a lucky dip sort of experience and decide at the end that they will back out, whatever the reason is (provided they are not caught by surprise about something, which I have already mentioned) the philosophical difference is this: the government says, 'You, defendant, pleading guilty now has meant the state has wasted tens of thousands of dollars and somebody else has not had their case dealt with because you were wasting everyone's time.'

That is what we are saying. We are saying that, if you do that, you get no concession for pleading guilty. Now, the point is to make these people think, 'Hey, if I'm going to plead guilty, it's better for me to do it a little bit earlier,' so the court says, 'Thank you very much, defendant, you have saved everyone a lot of trouble and you have saved the state tens of thousands of dollars in not having an empty courtroom with nobody in it, we will give you 20 per cent or 30 per cent knocked off what you would have got.' That is fine, no problem.

The difference between the opposition and the government on this point is quite simple. You are saying people who drag the chain, not through being caught by surprise at the end or anything else, but people who drag the chain trying to max out the system right to the end, even though that means the courts are going to be empty when there are thousands of people wanting to occupy them, you do not care; you are happy with that. You want the courts to be empty because you think it is more important that that person, who is wasting public time, the court's time, and public money, and aggravating the case list, deserves a 10 per cent knock off because they have belatedly decided that they are going to get with the program. Sorry, we have a different point of view.

These characters are not getting with the program and we want to make it clear to them that if they leave their decision too late then the community might as well have them in there for the money it costs. The only money that gets saved is by not using the recording people—we would probably save a few bob on them. The court is empty, the judge is still there, and everyone is ready to go. Of course, I am only mentioning the courts, but what about all the witnesses who have had to be organised to come to the case? What about all of the police officers who had to proof all of these people and have them ready for court? What about the prosecutors who have spent a long time reading and preparing for the case? What about them and all their wasted time? Completely wasted. Instead, those witnesses need not have been troubled, and those prosecutors need not have been preparing their case. They could have been doing another case which did need to go to court.

What the opposition is saying is, 'Well, we actually don't care about that. We don't mind prosecutors spending a lot of time and effort preparing for cases that are never going to be heard. We do not mind courts being idle, with nobody in them, even though there is a big queue waiting to get in. We don't have a problem with that because it is more important that some fellow who won't get with the program, who is swinging the lead, should be able to get a concession by pleading guilty on the first day of trial because it suits him.'

Hang on—there a difference of opinion. You people go out there and you sell that. You tell the public why it is in the public interest to have prosecutors (who are well-paid people but cannot do 50 things at once) prioritising cases that should never ever be heard. Tell them why courtrooms should be empty and why judges should be sitting up in their rooms perhaps reading the latest law report or something useful—and public benefit on that one in a direct sense is pretty tangential. So, that is the question.

I actually look forward to going out there (if you persist with the way you are going with this) and explaining these points in public. The public needs to know that you can talk as much as you like about saving court time, saving money, tight budgets, efficiency and all of that and that we make a move which, as I have said, is not the whole solution, but is part of the solution, which is designed to introduce greater efficiencies into the court system to maximise the benefit we get out of our prosecutors, to maximise the benefit we get out of our courts, and to minimise the amount of time people who are swinging the lead on guilty pleas get to wiggle around and frustrate the system, and you folks are opposing it.

I can understand why the Law Society does—because they represent these people. Fair enough, it is their job, and if I were on that Law Society committee I would probably say the same thing, but I am not looking at it from that point of view. I am looking at it from the point of view of how it is going to impact on the whole justice system, not on whether my particular client likes it. The Law Society's contribution is predicated on that perspective they have, which is, 'Look, we are all here as lawyers. We represent people, and we think it is not very nice for some people.'

Okay, fine, I accept that; absolutely true, but it is not their responsibility, as it is the parliament's, to say, 'How can we get the most efficient use out of our courts and our Director of Public Prosecutions—both services which cost this state a great deal of money? Why should we have them do things that are completely useless?' We might as well have the Director of Public Prosecutions sending staff out to dig holes and fill them in again. That is how useful preparing for a trial that is never going to go on is. But, prepare for them they must because they just might go on.

If all we do is put a little bit of lead in the saddlebags of the people who refuse to get with the program, I do not think that is the end of the world as we know it. I would urge the opposition to please give some further thought to this matter. I have acknowledged all the points the member for Bragg made in her contribution, and I have said that most of her points (though not all of them) were quite good points, and we agree with her.

This is not a single piece of the jigsaw puzzle, or one of the nine panels in the Rubik's cube. This is an integrated solution to a very complex problem, but if you take out one of the elements of the integrated solution you do not get a solution. So, I do not know whether the opposition has amendments that they have filed or are intending to move. I think we probably understand each other across the chamber as best we can, and I think I have probably exhausted my well of material.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Page 2, line 17—After 'sentence' insert:

, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced

Amendment carried.

The Hon. J.R. RAU: I move:

After line 17—Insert:

(1a) Nothing in subsection (1) requires a court to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency.

Amendment carried; as amended passed.

Clause 5.

The Hon. J.R. RAU: I move:

Page 3, lines 1 to 35 [clause 5, inserted section 9AA]—Delete the clause

Amendment carried; clause deleted.

Clause 6.

The Hon. J.R. RAU: I move:

Page 8—After line 6 [clause 6, inserted section 10C(2)]—Insert:

(ba) less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30 per cent;

Amendment carried.

The Hon. J.R. RAU: I move:

Line 28 [clause 6, inserted section 10C(4)]—Delete 'under this section' and substitute:

in respect of a guilty plea made within a particular period

Amendment carried.

The Hon. J.R. RAU: I move:

Page 9, lines 1 to 4 [clause 6, inserted section 10C(4)(e)]—Delete paragraph (e)

Amendment carried.

The Hon. J.R. RAU: I move:

Page 10, line 31 [clause 6, inserted section 10D(4)]—Delete 'under this section' and substitute:

in respect of a guilty plea made within a particular period

Amendment carried; clause as amended passed.

Clause 7, schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (12:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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