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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-06-17 Daily Xml
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 29 April 2008. Page 2484.)

Clause 1.

The Hon. S.G. WADE: When the committee last met the government undertook to give the opposition a briefing on issues raised by members of the judiciary. The government provided that briefing, for which we are grateful, and we will support the government amendments in the context of that briefing. However, I raise some issues with the government in relation to judicial consultation on legislation. At the end of committee when it last met there was a general comment, which I understood to mean that there is no formalised procedure for consulting with judges, the Courts Administration Authority or similar, that it was dependent on the bill. I do not dispute that as it sounds quite appropriate.

It did raise the issue, however, that here we had the parliament becoming accidentally aware of concerns of the judges in relation to bills that were being consulted on with the executive. I am not reflecting on the process, and let us for the purposes of this case assume that the process for this bill was impeccable. The fact that the Chief Justice's comments became available after the bill was submitted might raise questions, but that is not my focus. My focus is on clause 1 in relation to the potential for the executive to be a filter for the judges' views on matters in relation to a bill.

In that respect I think it is important to stress that judges in particular have a unique status in our system of law (I am differentiating between the Courts Administration Authority and other parts of the judicial administration hierarchy), and it is very important that the judges maintain their independence from the executive. We could assume that the executive will give due respect to the views of the judges and would take the opportunity to raise any concerns that the judges might have with the parliament so the parliament could consider the merits or otherwise of the judges' submissions, but recent events would raise concerns in my mind as to whether that, in fact, would happen. I refer specifically to comments attributed to the Attorney-General last week in The Australian in relation to sentencing principles put on an internal Courts Administration Authority website by Deputy Chief Magistrate Andrew Cannon. The Australian article reports this exchange in the following terms:

South Australia's Attorney-General has denounced the state's second-most senior magistrate as 'daft' and 'delusional' for calling for prison overcrowding to be factored into criminal sentencing.

The ferocity of the criticism from Michael Atkinson, South Australia's first law officer, of deputy chief magistrate Andrew Cannon yesterday stunned the Adelaide legal community.

Mr Atkinson's office was on the back foot last night to justify [the Attorney-General's] language, and some of the grounds he had used to blast Dr Cannon, who is an adjunct professor of law and the state's senior mining warden.

[The Attorney-General] launched his broadside after Dr Cannon's set of 'generic' sentencing principles were posted on an internal Courts Administration Authority website accessed by other magistrates and judges.

Mr Atkinson said Dr Cannon was 'delusional', misunderstood his place in the legal hierarchy and had demonstrated a 'daft misunderstanding of the law.'

'I would be astonished if any...competent magistrate would pay any attention whatsoever to this so-called statement of principles.'

I will ignore some intervening remarks, but the concluding remarks go specifically to my point about the relationship between the executive and the judiciary. The article continues:

Asked last night to point out where Dr Cannon had used the terminology Mr Atkinson had attributed to him, the minister's spokeswoman said it was implicit to the argument Dr Cannon had advanced. She did not respond to a request for further details.

Asked if he retained confidence in Dr Cannon, Mr Atkinson said: 'I am awaiting an explanation of what has been uploaded to the magistrates' information system.'

So we have an Attorney-General referring to a deputy chief magistrate in our courts as delusional, misunderstanding his place in the legal hierarchy, and having a daft misunderstanding of the law. Then, when the media ask whether the Attorney-General has confidence in the magistrate, he says, 'I am awaiting an explanation of what has been uploaded to the magistrates' information system.'

I remind this government that, repeatedly, we have insidious undermining of the courts and the judges. Judges are not always right, but society is weakened when its institutions, specifically its judicial institutions, are undermined. In relation to judicial independence, the Premier and the Attorney-General can play their media games and undermine the judges on case work, and I think it is reprehensible.

However, when you are involving judicial consultation on bills, that specifically relates to the rights of this parliament. I think it is an issue that this parliament should explore further, and I would like to ask some questions of the minister in this context. It may well be that he will need to seek further advice, but I think it is an issue that we need to be mindful of. This is not about whether or not a particular case should be appealed: it is about judicial consultation on bills. I think it is especially important where we are talking about matters that are relevant to judicial expertise—for example, laws that relate to procedure, evidence or sentencing.

Let us remind ourselves of the context in which the Attorney-General made his bizarre remarks. It was in the context of an internal Courts Administration Authority website talking about sentencing principles, which is completely within the province and expertise of the Deputy Chief Magistrate and far less so the province of the Attorney-General. However, the Attorney-General saw fit to make what was, I think, an extremely inappropriate attack on a member of the judiciary. Does the government accept that when judges have been engaged in consultation on bills, particularly in relation to areas of judicial expertise rather than matters of policy, this parliament should be informed of the views of the judges?

The Hon. P. HOLLOWAY: The point that needs to be made is that this parliament makes legislation. There is a process, which I outlined during the previous debate, whereby the government can seek the views of a number of interested parties. However, at the end of the day, it is up to the government to decide which bills it puts forward and it is up to this parliament to decide whether or not we accept them. It then becomes the role of the judiciary to adjudicate on matters that are subject to the act that this parliament passes.

All I can say in relation to the process that was followed here is that it was appropriate and consistent, as I understand it, with past practice; that is, the comments of the Chief Justice, the Chief Judge, the Chief Magistrate, I think, the DPP and a number of others are sought. However, that does not necessarily mean that the government or this parliament is obliged to accept them.

The Hon. S.G. WADE: I should stress that I am not criticising the minister or the officers or anyone else in relation to this bill. It is the fact that we became aware of the comments from the judges that raised the issue in my mind. I want to stress that this is not about this case. The minister has chosen to misunderstand my point, which is about the awareness of this parliament of comments by the judges. I think it is important, and I will try to discipline myself to make sure that, whenever a piece of legislation comes before us, I will ask the government whether or not it has received comments from the judges that the parliament should be made aware of.

I refer in particular to matters that relate to judicial process. I think it is something that the government should turn its mind to. Perhaps it is something that is more appropriately dealt with by correspondence with the Attorney-General. However, I think it is an issue that we as a parliament should be mindful of, because I do not think it is appropriate for the executive to tell us what advice we are worthy of considering. I do not propose to pursue the matter further than that.

The Hon. P. HOLLOWAY: My understanding of the way in which this works is that the Chief Justice does not speak on policy matters (and I assume the same would apply for the other judicial officers whose views are sought). However, he has the option to speak on matters of legal technicality and procedures and, if necessary, resources, and that is the way it should be.

The honourable member can if he likes keep raising those matters, but if he makes it a matter of political controversy I would imagine that the judiciary would be less likely to comment on aspects that could become matters of political discussion. I think if that happened it would be most unfortunate and the development of legislation would be all the worse for it.

The Hon. S.G. WADE: I think it is a bit rich for this government to talk about plebiscising judiciary.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. P. HOLLOWAY: I move:

Page 3, line 19 [clause 5, inserted section 331(1), definition of acquittal, (b)]—Before 'discretion' insert:

direction or

The bill defines 'acquittal' to include an acquittal made on appeal or an appeal made at the discretion of the court. This was intended to include an acquittal by a direction, most obviously after a successful no case to answer submission, and an acquittal in other circumstances such as an acquittal entered by verdict on trial by judge alone. The Chief Justice thought that 'discretion' was a misprint for 'direction'. That was not so, but given the comment, I think it is useful to make the distinction clear.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, line 28 [clause 5, inserted section 331(1), definition of administration of justice offence, (e)]—

Delete 'an offence against' and substitute:

a substantially similar offence against a previous enactment or

Page 4, line 12 [clause 5, inserted section 331(1), definition of category A offence, (h)]—

Delete 'an offence against' and substitute:

a substantially similar offence against a previous enactment or

These amendments do precisely the same thing. They are in the same clause and may be considered together. A late submission from the DPP was received by the government. The effect of the submission was that the legislation was rightly expressed to apply to offences committed in the past, but the list of offences to which the various methods to retrial were drafted only referred to recent manifestations of the relevant offences and not to versions of those offences as they existed in the past. The modern versions of the offences did not exist then and so the object of the legislation would be hampered significantly. The criticism is quite right, it should be fixed, and that is what these amendments seek to do.

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): I inform the committee that there appears to be an amendment that the table have not received but which the minister has addressed. However, until the table receives the amendment, we find it difficult to proceed. The one with which we are dealing is listed as 'Amendment No. 1 [Police—2]'.

The Hon. S.G. WADE: We have not seen these amendments, and I would ask the minister to explain the source. Do these relate, as set one does, to comments by the judges?

The Hon. P. HOLLOWAY: As I indicated, these come as a result of a late submission from the Director of Public Prosecutions. The effect of the submission was that the legislation was rightly expressed to apply to offences committed in the past but the list of offences to which the various methods to retrial were drafted referred only to recent manifestations of the relevant offences and not to versions of those offences as they existed in the past. The modern versions of the offences did not, of course, exist then, so the object of the legislation would be hampered significantly.

I apologise to the honourable member. It was my understanding that these were on file but, if the honourable member has not seen them, we can report progress. I suggest they are fairly straightforward. It just comes as a result of the DPP, but if you want time to consider them—

The ACTING CHAIRMAN: The Hon. Mr Wade, before you address that, if we proceed, the minister has moved them together, I think.

The Hon. S.G. WADE: The opposition indicates that we are not aware of the second set of the minister's amendments nor is it in our table set. We ask the government to agree to report progress so that these can be given consideration; also, we would like to raise our concerns that this is the second set of responses to the bill from beyond the Justice Department, and it further raises questions about the process the government is going through in terms of consultation on bills.

The Hon. P. HOLLOWAY: In relation to the latter one, the bill was sent out. This was a very late submission. The bill has already been through the House of Assembly and this council last considered it in April, and I understand that these amendments came through in May. It was our understanding that they had been on file, yet that is obviously not the case, so I apologise to the chamber for that and I am happy to report progress. But, in relation to the honourable member's comments about process, I indicate that if comments are made, however late, that raise important issues in relation to the bill, they ought to be considered and the government would always do that, and that is what we have done here. I believe that they were supposed to be filed on 16 May but they probably have not been added for whatever reason. Let's not waste any more time on it. I appreciate that the opposition needs time to consider them but they have come as a result of suggestions from the DPP. They are reasonable suggestions. Unfortunately, they were late but I suggest better late than never.

Progress reported; committee to sit again.

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