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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-05-13 Daily Xml
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CROSS-BORDER JUSTICE BILL

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2009. Page 2260.)

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (21:28): I thank the Hon. Mr Lawson for his contribution to this debate, and I understand that other members support the bill but did not wish to make a contribution. The Hon. Mr Lawson raised some questions yesterday that I will address. The honourable member asked whether the Northern Territory has either introduced or passed legislation which will enable it to participate in the proposed scheme. The Northern Territory parliament passed its legislation on 12 February this year and the Cross-Border Justice Act 2009 received royal assent on 13 March this year.

The scheme requires modifications by regulation to a number of acts and the settling and signing of the service level agreements and protocols that are being developed by the agencies involved in the scheme, such as the police, community corrections, prisons, youth justice and the courts.

Amendments to the commonwealth Service and Execution of Process Act are also required to enable the scheme to operate. I am happy to report that the Senate Standing Committee on Legal and Constitutional Affairs released its report on the Law and Justice (Cross-Border and Other Amendments) Bill 2009 yesterday, recommending that the bill be passed.

Schedule 1 of that bill facilitates the establishment of a cross-border scheme by ensuring that CPA will not override arrangements prescribed under the scheme where those arrangements would be inconsistent with arrangements under CPA. The key provision is that CPA will not apply where the cross-border justice scheme or another scheme established under the legislation prescribed under regulations under the act would otherwise operate.

The honourable member also asked how the Kimberley region could be incorporated in a scheme of this kind, given its prime location within the state of Western Australia. The scheme and legislation are designed to allow participating jurisdictions to prescribe further cross-border regions by regulation.

Clause 19 of the South Australian bill provides the prescribing of a cross-border region being one that straddles the border between the state and one or both of the other participating jurisdictions. The Western Australian and Northern Territory acts contain identical provisions. This means that the participating jurisdictions can agree to prescribe any area that straddles a border between them. Initially, the scheme will apply to the region that straddles all three participating jurisdictions, being the area of concern raised by the NPY women's council.

No consideration is being given to prescribing any other areas at this stage; but, as I have said, the legislation does allow for this to happen, and, as participating jurisdictions become familiar with the scheme and it is refined and developed over time, it is likely to expand not only into other regions but also to cover other areas of law such as health and guardianship. Other jurisdictions will no doubt be following the unrolling of the scheme with a view to becoming involved at some point. The addition of a participating jurisdiction would require amendment to the relevant act.

I now move to the Law Society's concerns outlined by the honourable member. The Law Society criticises the legislation as being too far-reaching because it will include someone who commits an offence anywhere in Western Australia or Northern Territory and who happens to be arrested in a cross-border region. The Law Society suggests that clause 20, which sets out the requirements for a person to have a connection with a cross-border region, should be restricted to people suspected of committing offences in the cross-border region.

The first point to be made about that comment is that there may be a misunderstanding that the legislation will allow South Australian police to deal with offences committed in Western Australia or the Northern Territory. The act provides for Northern Territory, Western Australian and South Australian police to exercise their powers in the region, but only in respect of an offence committed under the law of their respective jurisdictions; that is, West Australian police deal with Western Australian offences, Northern Territory police deal with Northern Territory offences, and South Australian police deal with South Australian offences. It does not allow all police to deal with all offenders or offending. Police can and will be able to travel throughout the region to deal with offenders from their home jurisdictions but not to deal with offenders from each other's jurisdictions unless the officer is appointed to that other police force.

The other point is that a major reason for extending the scheme to offences outside the cross-border region is the transient nature of the region's population. Residents of the area frequently travel outside the region to centres such as Alice Springs, commit offences there, and then return to the region. Often, the victim and witnesses to those offences are also from the region and return there. Once the offender has returned to the region, the same problem arises: the offender can easily evade arrest by moving over the border. So, the legislation allows for an offender who has offended outside the area or who ordinarily resides in the area to be arrested and dealt with. It must be remembered that, although police from the three jurisdictions may deal with offenders in the region, police can deal only with offences and offending from their own jurisdiction.

The Law Society also queries the operation of clause 18, which allows the cross-border laws to apply in relation to an offence committed or alleged to have been committed before the commencement of the act. The provision simply allows the government to streamline the justice system in the region. It will allow the court to hear and deal with any outstanding offences when a cross-border matter is being heard. Courts already do this. The ability to deal with matters under the cross-border legislation means that one sentence can be imposed and that sentence can be carried out in any of the participating jurisdictions. In some cases, that will mean an offender is able to serve his or her sentence closer to home and family than would otherwise be the case.

The Law Society was also concerned about the use of the word 'suspected' in the bill, suggesting that it should be appropriately defined. It is an ordinary word and it has ordinary meaning. The term is used throughout the criminal law and is not defined in any of the existing legislation. There is no reason why it should be given different treatment in this bill.

The last matter raised by the Law Society is that there should be no reverse onus provisions in this bill. Like the concern about retrospectivity, this appears to be a fear that the bill offends the rights of the accused. The provisions do not relate to the substantive offence; they relate only to questions of place of arrest and place of residence. These are threshold questions to establish jurisdiction.

There are three ways to establish a connection with a region. One is substantive (place of the offence) and the others (residency and place of arrest) are procedural. The procedural matters are threshold questions. They do not go to the guilt or otherwise of the alleged offender, nor do they affect whether the offender will be charged. It would, of course, have been inappropriate and unnecessary to reverse the onus on the Crown to prove all the elements of the events alleged beyond reasonable doubt.

The scheme is trying to redress the balance that currently exists in favour of alleged offenders because of the existence of the borders. Arguments about jurisdiction will frustrate the object of the legislation which is to deal with offending in the region and prevent offending in the region as effectively as possible. Police will present to the court, as they do now, details of the arrest and of the alleged offence. If the alleged offender challenges the jurisdiction he or she must prove, on the balance of probabilities, that there is no connection with the region.

This is innovative legislation that will address many of the difficulties and risks associated with justice delivery in the cross-border region. It is the result of a long and complex project involving many people and organisations from South Australia, Western Australia and the Northern Territory. I look forward to its commencement and the benefits that it will bring to the communities in the region.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: Can the minister indicate when it is intended that this bill will come into operation? The minister may well have mentioned that in his second reading response but I am afraid that I did not hear all of it.

The Hon. P. HOLLOWAY: My advice is that the executive group responsible for this have met only recently and they have decided that 1 September would be an appropriate time to start the scheme.

The Hon. R.D. LAWSON: Could the minister indicate whether the passage of this bill will require training of officers or any other educational programs; and, if so, what is involved and what is the likely cost of implementing this?

The Hon. P. HOLLOWAY: A lot of work has been undertaken, but I understand that today magistrates from all three jurisdictions were at a training session, I suppose we could call it, in relation to the new measures. I have also been advised that SAPOL has prepared training packages and has in place almost all of its protocols in relation to this scheme. The courts of higher jurisdiction are developing a bench book for the magistrates and other practitioners who will, I guess, be operating under this new legislation.

The Hon. R.D. LAWSON: I thank the minister for those indications. There will be no further questions.

Clause passed.

Remaining clauses (2 to 147), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.


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