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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-02 Daily Xml
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MAGISTRATES COURT (SPECIAL JUSTICES) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: Can it be indicated when this bill will come into operation if, in fact, it passes?

The Hon. P. HOLLOWAY: My advice is that regulations will be needed particularly to deal with the question of uncontested applications and, therefore, I think it is the government's expectation that the bill will come into operation early in the new year.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. M. PARNELL: I move:

Page 3, line 1 [clause 5, inserted section 9A(b)(i)]—Delete 'any offence' and substitute:

an offence (other than an offence in respect of which the maximum penalty includes imprisonment)

I regard this amendment as a test for the other two amendments. This amendment relates to the issue that I canvassed yesterday in my second reading speech. The Hon. Robert Lawson canvassed the issue as well, and the minister also responded yesterday also. I am not proposing to go into detail again, other than to remind members that this is the amendment that the Law Society sought to this legislation, and the purpose of the amendment is to ensure that special justices do not deal with criminal offences that are potentially subject to imprisonment, notwithstanding the fact that special justices themselves will not be allowed to impose a penalty of imprisonment. I do not want to re-agitate the whole debate from yesterday and I am comfortable that members are fully aware of the implications of this amendment.

The Hon. P. HOLLOWAY: As the Hon. Mark Parnell said, I did canvass this issue in the second reading response last evening. As indicated then, the government opposes this amendment. The Hon. Mr Parnell's first amendment is consequential upon amendment No. 2 so, as he suggests, this is an appropriate amendment to act as a test case for his series of amendments.

These amendments would have the effect of removing the provision that would allow special justices to deal with prescribed offences that attract imprisonment as a penalty even though special justices are not permitted to impose a sentence of imprisonment. Arguments against this provision have been extensively canvassed in the government's second reading reply. The government does not accept the arguments for this amendment.

As explained in my reply, the Criminal Law (Sentencing) Act already foreshadows the situation where the Magistrates Court, constituted of a special justice, is required to determine sentence on a matter that carries a maximum penalty beyond the sentencing power of the special justice, providing for the special justice to adjourn the matter and refer it to a magistrate for sentencing.

The Chief Magistrate has asked for this amendment. She is well placed to determine the needs and allocation of judicial resources in court. She calls certain offences that carry a penalty of imprisonment, although it is virtually never imposed, the behavioural equivalent of vehicle offences. The Chief Magistrate is confident that the matters are appropriate to be dealt with by special justices, and she has years of experience of special justices sitting in the Magistrates Court. This provision will assist the Magistrates Court to deal expeditiously with criminal matters that come before it, and that is surely of benefit to defendants as well as victims and others in the community.

It must also be remembered that parliament has already seen fit to give special justices jurisdiction over such offences and, indeed, any Magistrates Court matter where no magistrate is available.

The Hon. R.D. LAWSON: We, on the opposition side, have considerable sympathy for the points made by the Hon. Mark Parnell and by the Law Society. In my second reading contribution I read into the record the formal objections to the government's bill on this score. The minister's response a moment ago was that the Chief Magistrate is confident that the proposal contained in the bill will work based upon her long experience of the operations of special justices. Whilst we respect the views of the Chief Magistrate, we think it hardly appropriate that legislative policy be based upon one's confidence in the views of a particular judicial officer. Notwithstanding that, we believe that the proposal in the bill ought to be given an opportunity to operate. As I say, we have reservations about that, but those reservations are not so strong that we will be supporting the Hon. Mark Parnell's bill.

In his second reading response yesterday, I believe the minister drew an analogy between the situation we are now discussing and that which currently arises where magistrates are able to determine the appropriateness of whether or not they continue to hear a particular case, having regard to the punishment likely to be imposed. The fact that a trained special magistrate with extensive legal experience can make that judgment is really no argument in relation to special justices who do not necessarily have long experience—although some may well have long experience—and who do not have the sort of training and experience that is required for a special magistrate. There is quite a difference between the two, and we do not accept the distinction that the minister seeks to draw.

Notwithstanding those reservations and notwithstanding the sympathy we have with the Law Society's position, we will not be supporting the amendment. We believe that we should let the new scheme operate. If, in fact, it transpires that the fears expressed by the Law Society are realised, the matter will have to be revisited.

The Hon. D.G.E. HOOD: In my second reading speech, I said that Family First wholeheartedly endorsed this bill. There is some risk in this legislation, but I think that, given that the intention of the Hon. Mr Parnell's amendment is to somewhat limit the reach of this bill—I understand why he would move the amendment, by the way, because we certainly are venturing into new ground with this bill—we have sufficient confidence that it is worth pursuing as is. For that reason, we will not be supporting the amendment on this occasion.

The Hon. P. HOLLOWAY: I thank the Hon. Mr Hood for his support, and also the Hon. Mr Lawson. I think I need to point out that, during my second reading response, I gave an example of giving special justices power to determine liability on a matter that is too serious to sentence on, which is an anomaly. I was just trying to point out that the situation is not unique. I certainly did not mean to suggest that special justices are equivalent to magistrates in terms of experience; I was simply pointing out that it was not a unique situation.

Amendment negatived; clause passed.

Clause 6 passed.

Title passed.

Third Reading

Bill read a third time and passed.

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