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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-06 Daily Xml
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STATUTES AMENDMENT (BUDGET 2011) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 June 2011.)

The Hon. S.G. WADE (11:05): I rise on behalf of the opposition to address the Statutes Amendment (Budget 2011) Bill 2011. This bill amends, amongst other things, the Summary Procedure Act 1921 to establish a presumption that costs will not be awarded against police in a summary prosecution even though the prosecution has been unsuccessful, and seeks to increase court enforcement fees from $25 to $100. As shadow attorney-general, it is those two aspects of this bill that I propose to address.

I will address section 189B first, that is, the court enforcement fees matter. The opposition does not offer any comment on that fee increase. We note that it is clearly a budget measure and should appropriately, therefore, be treated within the conventions as a matter with which the opposition will defer to the government. However, section 189A is a totally different kettle of fish. Section 189A of the bill reduces the Magistrates Court's discretion to award costs against police. The changes were proposed by the 2010-11 Sustainable Budget Commission report, and the estimated savings at that time were $1.6 million.

A bit like Loch Ness, this monster reared its head unexpectedly in the 2011 budget bill. It was very sneaky of this government to embed it in a budget measures bill rather than in separate legislation. In fact, notes in the budget papers about the delay in the Attorney-General's Department's savings suggest that the government at the last budget was intending that it be a separate piece of legislation. I think it is very sneaky for the government to try to embed it in a budget measure and then seek to, if you like, distort parliamentary conventions by expecting us to let it through without a squeak.

A squeak there has been, and the unity of the non-government members who I have heard address this issue and the broad concern of the legal community and the wider community have shown that this community is extremely sensitised to this tired, arrogant and now sneaky government; we will be alert to this sort of move. The rising of the monster is particularly offensive because the measure, therefore, turns up in this parliament without the key stakeholders having had an opportunity to provide input to the government in the structure of the measure.

The advice from all of the key legal stakeholders is that none of them were consulted about this matter, so in considering this matter in the House of Assembly my colleagues in the other place did not have the properly considered view of the stakeholders in debating the matter, and the government itself chose to not take advantage of the wisdom of the legal community. Therefore, I think it is appropriate for me to put on record the key concerns of the legal community. I propose to do that by quoting from letters from that community, primarily so that I cannot be accused of gilding the lily.

The passion with which the legal stakeholders have commented on this bill is a salutary clarion call to this house that, as a house of review and as a house that traditionally stands up for the well-established rights of South Australians, particularly in the legal area, it is very important that we give this bill all due consideration. As this council has often reflected, it is extremely indebted to the support it gets from legal stakeholders, particularly bodies such as the Law Society and the Australian Lawyers Alliance. Their advice is, more often than not, of an exceptionally high quality.

As I read these excerpts of letters that were sent to me as shadow attorney-general, members will see that the passion with which they are conveyed is a strong indication to this house of how important these issues are. It might look very simple for the Treasurer to say, 'Okay, let's just remove the right for police costs in the Magistrates Court.' It might have seemed like an easy take for Treasurer Snelling but, considering that there was no consultation with the legal stakeholders, it has been an extremely reckless decision of Treasurer Snelling, one which we believe this council should take the opportunity to address.

As I said, I will let the legal stakeholders convey their wisdom to us in their own words. In the first instance, I propose to quote from a letter to me dated 29 June from the President of the Law Society of South Australia. In part, it says:

The proposed amendments seek to severely restrict the current discretion in a Magistrate to award costs in favour of a successful defendant in a police prosecution. The Government has sought to justify the proposed amendment on a number of grounds including that it is appropriate to bring the practice in the Magistrates Court into line with the superior courts. Why then are the proposed amendments limited to police prosecutions? It does not include criminal proceedings prosecuted by the Crown; the Director of Public Prosecutions; any other instrumentality, agency or servant of the Crown; any Local Government Authority or any private individual. The Bill is purely designed to accommodate police prosecutions prosecuted by a police officer and, as such, any arguments in its favour relating to practices in other jurisdictions are without merit.

There is a long, historical and proper rationale as to why summary proceedings should attract orders for costs. That is the price that the State must pay for the purposes of summary proceedings. That is the price that the State has had to accommodate for the purposes of sacrificing a person's right to trial by jury. That is the price that the State must accommodate for the purposes of having summary disposition of matters in the Magistrates Court. It is the summary nature of proceedings which are cost effective, summary in nature, not liable to the dictates, practices and procedures of the superior court, whether as to the conduct of the trial, the conduct of pre-trial matters and appeal rights. It is fundamental to justice and the rights of an individual to have their opportunity to go to court and to obtain an order for costs. That is what exists in this State and has existed for many years.

The letter continues. I quote further:

This amendment has the potential to clog up the Magistrates Court and significantly hamper the delivery of cost effective justice. Cases involving unrepresented litigants invariably take longer.

The proposed amendments will have an impact on the Legal Services Commission, Community Legal Centres and similar organisations who provide representation on limited budgets. The inability to recover some of the costs incurred will have a negative impact on the already strained financial resources of these organisations, which in turn will curtail their ability to provide representation for those in need.

The proposed amendments have not been costed and are likely to impact adversely to a far greater extent than the $1.6M estimated annual saving.

I will pause in my quote and reflect on the point that the Law Society makes.

The fact is that a significant proportion of defendants in the criminal jurisdiction are represented by the Legal Services Commission. In the estimates committees the opposition members of the other place questioned the Attorney-General as to what would be the impact on the Legal Services Commission if the commission was not able to recover costs in summary proceedings. The Attorney-General took that on notice. I find it very concerning that not only has this government failed to consult with legal stakeholders in relation to the impact of this bill but it seems that the government has not followed through the impact on other budget-funded agencies as a result of these changes.

The Law Society president then takes the opportunity over two pages to outline specific concerns with particular clauses in the bill, and he does so with great wisdom. At the conclusion of that section he returns to the general points. He says:

The attempt to preserve some discretion in s189A(2)(a)-(h) does not in reality provide any realistic prospect of any costs order in favour of a successful defendant. This is mere window dressing in an attempt to water down the injustice that the proposed amendments create.

The proposed amendments will have the effect of removing the accountability and propriety by which police prosecutions are to be conducted. Without costs sanctions there are no external measures in place to ensure that this accountability remains.

Later in the letter, the President continues:

The Society was not consulted on these proposed amendments and as you will note from the above they seek to effect a fundamental change to a defendant's position. What is the origin of this proposal and why was there no consultation? A self-serving, cynical response may well be that the authors of this proposal realised how unacceptable, repugnant and unpalatable it is. This is not a 'budget measure' and it should be defeated.

I can do nothing more than agree with Mr Bonig: indeed, it was sneaky and deserves to be defeated. I turn now to one of the submissions I received from the Australian Lawyers Alliance. Again, in the interests of the time that the house needs to consider this matter, I will read only excerpts. This is a letter sent to me by Mr Tony Kerin from the Australian Lawyers Alliance dated 17 June. It reads, in part:

1. Consultation—ALA has certainly not been consulted and from what I have gleaned from the Law Society, neither were they. This is a bill which changes fundamentally the rights of citizens in this state and should have been a matter that was raised for transparent discussion and not form part of the budget process.

The letter continues, at point 2, in outlining what Mr Kerin calls 'the current situation', as follows:

The law in South Australia regarding costs is governed by the Summary Procedures Act 1921 as amended. Section 189 provides the courts and all Magistrates with an unfettered discretion to award costs as it sees fit. The ordinary principle and the ordinary rule is if you succeed in defeating a charge against you, you obtain costs in the Magistrates Court. This only applies to summary matters, not to matters heard in the District or Supreme Court. The rule has existed for most of last century and up until currently. Before that there were common law considerations. The rule exists for good reason. The obligation of prosecuting someone is not a light one. Police need to be held accountable if they make errors. That includes prosecutions that proceed in bad faith.

Later in the letter, Mr Kerin says, at a point called 'Costs Awarded':

The costs awarded are awarded now in accordance with a general scale which is produced under the rules of the Magistrates Court. They are not a statutory legislative amendment as this would be. Those rules do not detract from the unfettered discretion of the court to award costs at large if it sees fit.

Subsequently, Mr Kerin says:

The ability to claim costs holds the police prosecutions accountable. Firstly, because it is tax payers funds that launch the prosecution and carry it through and secondly because costs are a deterrent to prosecutions that should not be brought. It is also an essential tool in the administration of justice. Matters resolve because of a threat of costs on both sides. To remove it from one will cause significant imbalance to the ability to resolve matters at that level in an expeditious, fair and just manner.

Within a section on the bill, I quote Mr Kerin in the following terms:

Sub Clause (d) and (e) in section 189A(2) are clearly erosions to the presumption of innocence. You are either acquitted or not, whether it is technical grounds or on some other basis. If the prosecution has been brought about incompetently then that is a matter for prosecutions. It should not be a matter for a defendant to be concerned about. Bringing someone to court on a criminal charge is one of the most serious things that can happen to a citizen. Suggesting that because a matter is dismissed on technical grounds that that can be taken into account as a proper matter making order for costs is reprehensible. Similarly, the suggestion of whether a defendant brings suspicion on himself or herself by conduct engaged in after the events constituting commission of the offence also erodes the presumption of innocence. It is up to the prosecuting authority to prove all elements of the offence beyond reasonable doubt. The actions of a defendant after a charge may or may not be relevant to the matter before the court. They can in no way be relevant to the issue of the costs if the charge is defeated.

Most disturbingly, in clause 2(f), it says that 'where a defendant unreasonably declines an opportunity before a charge was laid to explain his version of events or produce events to exonerate him and that could have avoided a prosecution' then that can be taken into account in awarding costs. Currently the law in Australia in every jurisdiction is that there is a right to silence and the right against self incrimination. Prosecutions have to prove every element of the case. What this does is impose a potential costs penalty for so doing and this will erode one of the purposes of the rule.

Later in the letter, Mr Kerin continues:

This bill is not an attempt to cap fees, it is an attempt to erode a long standing and worthy right of every member of the community. That is that you are innocent until proven guilty and that if you succeed in your challenge you should be able to obtain costs for the prosecution that is being brought and that has been not sufficient to find the charge against you.

In a section entitled 'Access to Justice', Mr Kerin says:

In many cases where costs are awarded, claims against the Legal Services Commission [Fund] does not occur. Accordingly, those funds are then put to another case. You are going to therefore reduce the pool of funds available for defendants to utilise in defending themselves.

In the section headed 'The Complexity of the Law', Mr Kerin says:

The law is so complex now due to decades worth of law and order amendments to the Criminal laws that it is absolutely brazen to now take away the right to costs which are necessary to incur to defend oneself in most cases. To be charged with an offence can be financially devastating, devastating to family units and relationships and can result in loss of employment, all on the basis of allegations, which if defeated are very hard to remedy. No government should be responsible for making that position even harder for those who succeed in defending their charges.

That ends the quotes from Mr Kerin. I would suggest to the council that those are two very strongly-worded pieces of advice from highly-respected legal stakeholders in our state. They have highlighted to us the very severe impact that this proposal, simple though it may look, would have on the rights of South Australians.

The Liberal opposition has filed an amendment. I know that that was merely a matter of timing because there were a number of crossbench MPs who had joined the Liberal Party in making public comments in opposition to this proposal, and it is another example of crossbench MPs and the opposition finding common ground in invasions of traditional rights by this government.

In concluding to my second reading contribution, I would reflect on the lack of contribution by the Attorney-General. The Attorney-General, soon after his appointment, chose to highlight publicly the duty of an attorney-general to defend the administration of the justice system even if that meant, from time to time, being in opposition to his political colleagues. This is clearly a very significant issue in relation to our justice system, and I think it is incumbent on the Attorney-General to break his silence. He needs to make clear to his cabinet colleagues that they have crossed a bridge too far.

This bill will be considered by this council and, in due course, the council will consider the opposition amendment to section 189A. It will then go to the other place. The Attorney-General has an opportunity to put on the record what his views are. He has studiously avoided it to this point and I would ask him to consider his responsibilities as the chief law officer. I would indicate that the opposition will be supporting this bill, but we will certainly not be doing so without having amended it to remove new section 189A.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (11:24): I rise to make a few brief comments in relation to a couple of aspects of this particular Statutes Amendment (Budget 2011) Bill and particularly the first home owner bonus grant. As members would be aware, the first home owner bonus grant, which is currently available for eligible first homebuyers who have purchased or built a newly-constructed home, will be reduced from $8,000 to $4,000 from 1 July 2012 and then be abolished from 1 July 2013. The phased-out abolition of the First Home Owner Grant will save this government $21.3 million over the next four years. The government is doing it as a budget saving measure.

It is interesting to note that other states offer some significant incentives. I was recently made aware that Western Australia, in particular, provides a $10,000 bonus for young families that relocate to Western Australia to take up employment in the mining sector, which, of course, we know is booming, unlike ours here, which we have been told will boom but, as yet, has not.

As members would also be aware, I recently went on an overseas trip with a number of South Australian property experts. Certainly one of the things we frequently saw overseas was the real benefit in providing first home owners an opportunity to become first home owners—getting them into the property market, into some sort of wealth creation, and giving them some sense of home ownership and some sense of belonging.

Building Better Communities is about people actually having a stake in their community, having some ownership in their community. So, every incentive offered to first home owners should be applauded and, likewise, every incentive that is withdrawn, should not be applauded but booed and discouraged.

Members would also be aware that, last week, the Leader of the Opposition made a speech to the Urban Development Institute of Australia, South Australian Division, outlining a range of areas where the next government—the Redmond Liberal government—will offer some incentives to get people back into the CBD and back into home ownership. This is particularly targeted at first home owners because, as I said earlier in my contribution, the Liberal Party recognises the real importance of people having a stake in our communities, having some home ownership and having some ability to create some wealth. The earlier they do that in their life—as soon as they enter the workforce—the better, and it is to be applauded.

I note that, in my local hometown of Bordertown, one of my neighbour's grandsons bought his first home at the age of 19. There was quite a big feature article about him, not because it was a particularly special allotment but that, at the age of 19, he had recognised the importance of home ownership. It was his first home. He had a secure job, and he was able to use the $7,000 First Home Owner Grant as well as the subsidy that is provided. He used the two grants to set himself up.

I think it would be a tragedy if we saw young people now starting to walk away from home ownership and from the housing market. Delaying putting their toe in the water of home ownership delays their wealth creation and, in the long run, it puts a greater burden on our society.

It is also interesting to note that, in discussions with people in the development industry, the housing market at present is going through a 60-year low—the worst it has been in 60 years. The government said that, because of this phasing out, there would be a rush for the First Home Owner Grant and that this should stimulate the market. I suspect that that may have a stimulating effect, but what happens after that stimulation? Are we likely to see a further softening of the housing market, which really is one of the big components in driving the economy?

I saw a magazine yesterday called Smarter Business Ideas July 2011. It has just reprinted some information that was published by the Institute of Public Affairs last December. It rated all of the states in relation to their tax burden. It is titled, 'Your tax burden. Which state are you in?' Interestingly, the best state or territory in the whole nation is the Northern Territory and, sadly, the worst in the overall ratings is South Australia.

A number of independent bodies have done the assessment and can see that we are the highest taxed state in the nation, and that will continue to have a very negative impact on our economy. I think that, coupled with measures such as this, it is a particularly negative step and really shows that the government has no real understanding of the things that drive this economy and provide young people—and I think this is really the important thing—with an opportunity to get into the housing market to create some wealth.

The government just does not see that as being an important component of managing our state's economy. A couple of the other measures in this bill are the increased fees to raise $3.6 million per annum in liquor licensing fees. The revenue from these will cover the cost of providing liquor regulatory services. Again, this is an indication of how the government has lost its way in relation to our hospitality industry as one of the areas that benefits from tourism.

It also drives our economy; the night and evening economy in South Australia is particularly important, and our government is taxing those who provide that service, which in turn flows on to more expensive drinks, more expensive meals and more expensive service at licensed venues, and if people have an expensive experience they probably will not return. It indicates just how out of touch they are.

Also this morning it came to light, in relation to tourism, that the new tourism centre that has been shifted from King William Street—

The Hon. T.J. Stephens: And privatised.

The Hon. D.W. RIDGWAY: —and privatised, as my colleague the Hon. Terry Stephens just interjected from behind me. I know interjections are out of order, but it was a particularly important one. It has been moved from a street level, main street frontage on King William Street to a side street, Grenfell Street, and we learnt this morning that is in a basement, below ground.

That gives you an indication of the sort of intellect of the current minister, who has spent eight years on the backbench reading novels. He should have spent eight years out in the community looking at how things work and actually operate. How on earth he can justify that it benefits our tourism industry to shift from a main road street level office to a side street basement office is beyond me. I hope he is asked to explain today in relation to that, because it is a joke.

If Mr Rau thinks he is a contender to be premier of this state when the current Premier decides he has had enough (or when your friends, Mr President, decide that he has had enough and they shaft him) and he becomes premier, it is an indication of the sad state of affairs this state will be in if he sits there as minister and thinks it is a good idea to go from a main street to a side street and go below ground.

The other matter I will quickly touch on in this contribution, which is not specifically covered in this bill, but given that I my get a little distracted in my appropriation speech in a week or two's time, is the South-East drainage levy. As members would know, I was on the ERD Committee for some time, which oversaw the management of the South-East drainage system and the construction of the drains.

One of the concerns I had as the network developed was who would actually pay for the management of this particular investment. At no time were we told during the time I was involved with the ERD Committee that it would be back again on the landowners. The landowners have made significant contributions and members would be aware that I was a levy payer in the upper reaches of the Tatiara Creek before I came to this place and sold my property to my father.

The Hon. G.E. Gago: And became a city slicker.

The Hon. D.W. RIDGWAY: The Hon. Gail Gago says that I became a city slicker. I might live in the city, but I still understand the pressures and the problems and lies that you lot have told to the people down in the South-East. The only thing I will say is that the Hon. Gail Gago did, as minister, continue to dig the drains, and I am pleased that she did.

The Hon. T.J. Stephens: Personally!

The Hon. D.W. RIDGWAY: I do not think she did it personally. There were tough decisions to be made and I commend her for those decisions. However, the landowners, who have paid dearly for these drains, were never advised that additional revenue would be collected via increased levies for the management of this system.

The management is quite complex, because there are two outcomes. First, it is the Upper South-East dry land salinity and flood management. Sadly, it floods, but not often enough, but it is managing salinity, which gives you an environmental benefit and an economic benefit, and flood management is also more about an environmental benefit.

I would hope that the government, through the NRM committee, is publishing the guidelines for the management and negotiating with the landowners. The landowners have spent all this money, their money—while the state and federal governments have put some money towards it, it is the biggest landowner contribution to a drainage scheme I think in Australia's history, certainly, South Australia's history—and I hope that guidelines are established in such a way that there is some balance between the environmental benefits and the economic benefits. Clearly, the farmers and the landowners were happy to pay the levy to get an economic benefit, their land having become unproductive. I hope now that there is some balance.

Most of the farm owners I know, perhaps with the exception of one or two in the South-East, are very mindful of the environment, and it is a balance between the environment and economic returns. I hope, now that the guidelines that have been established for the management of this scheme and the fact that we now see an increased burden upon farmers with increased levies, there is some balance struck between the environmental and economic outcomes.

I will not speak any further. My colleague the Hon. Stephen Wade has already spoken about the components of this bill that we will be opposing. I indicate that we will not be opposing the others but we do not think they are particularly sensible. We do not support them but we will not be opposing them.

The Hon. K.L. VINCENT (11:36): I want to speak to this bill because I believe that equal access to justice is an essential part of a well-functioning society and one section of this bill poses a real threat to that. Of course, I am talking about section 189A of the bill which has been the target of much controversy, as has already been pointed out, since the piece of legislation was introduced in the other place.

South Australia's Magistrates Courts have always had the option to award costs in cases where the defendant is found not guilty. To me, this seems to be a perfectly logical system. If a person is dragged through an arduous, long and expensive justice proceeding only to be found not guilty of a crime, why should they pay for the inconvenience?

Of course, realistically, there are lots of reasons a person might be found not guilty and, due to the presumption of innocence which underpins our legal system, some of those reasons might not be a total lack of guilt per se. However, that is a consequence of having our model of legal system and I think it is a price worth paying to ensure everyone is given a fair go at trial. If we accept the notion of innocent until proven guilty, then we must legislate within its bounds. I believe the government has written some subtle rhetoric into this amendment which seeks to undermine the innocence presumption.

What we are looking at here is an attempt to legislatively recognise that some people are more not guilty, so to speak, than others. By adding criteria against which a case must be measured before costs are awarded, the government is seeking to establish a hierarchy of how legitimate a not guilty finding is. This is a sneaky and unfair move as, again, has already been pointed out, and one which should offend every person who truly believes in the tenets of our justice system.

As I have already mentioned, the current system does not force a magistrate to award costs to a defendant who is found not guilty. It simply gives the magistrate the option of doing so. Does the government not trust our magistrates to exercise this discretion properly? I believe that giving a wise and well-educated person the power to determine the merits of awarding costs on an individual case basis is a great system, and it has worked so far.

Apart from these bleedingly obvious social justice arguments against this section of the bill, there are a few practical arguments to be made as well. To that end, I would like to thank Tony Kerin from the Australian Lawyers Alliance for taking the time to brief me on these matters. It was he who pointed out that the potential threat of having to pay costs when a case falls over in court is one of the only checks which make police consider whether taking a case to court is worthwhile. Mr Kerin believes (and so do many others in the legal profession) that, if this threat is removed, then it will be an open season, so to speak, on police prosecutions.

The removal of costs will amount to the removal of a reason not to prosecute, and our already clogged magistrates courts could be further backlogged with a flood of iffy police cases. The other practical matter to consider is the money the costs measure can potentially save legal aid. When a defendant who has been granted legal aid funding is found not guilty and costs are awarded, the money for payment of costs can often be used to pay the lawyer involved. This means that the money guaranteed by the legal aid is no longer required and can be put back into the funding pool and used to help another person access justice.

There is not that much legal aid funding around, and the payment of costs is propping up the legal aid system. I do not see a promise from this government to direct more funding into legal aid if payment of costs is marginalised, so I can only assume that the success of this measure will result in an even greater barrier between the poor and good representation in the justice system.

Of course, our government has argued that the higher courts in South Australia do not have the same tradition of awarding costs. This is true, but there are obviously lots of differences between these courts and the Magistrates Court; that is why we have the split courts system. The different courts have different functionalities and, while the awarding of costs might not be appropriate in some courts, I can confidently say that it is often appropriate in the Magistrates Court.

I cannot believe that the government would be happy to endanger the integrity of our justice system for a measly saving of $1.6 million annually. I will vote any way I can to stop this proposed change from becoming a reality, but I am not opposed to any of the other measures in this bill, so I hope that as a council we can agree to amend this legislation appropriately.

The Hon. A. BRESSINGTON (11:42): While there is much to be said of this year's budget, and more broadly of the priorities of this government, I shall save that for another time. Instead, I rise today to add my objections to the reforms of costs orders in criminal proceedings and the Magistrates Court as proposed in the Statutes Amendment (Budget 2011) Bill.

Surely I have seen since my time in here this government try to get away with some pretty dodgy legislation, but in my mind this one takes the cake, because it has been done in a sneaky and arrogant manner. It just shows a government that has little or no respect for the justice system, for the law in general or for the people who elected them.

As has been outlined, the government seeks to remove the magistrate's discretion to award costs to a defendant who has successfully defended charges against them. Currently, the Summary Procedure Act 1921 enables magistrates to award costs as they think fit. Subject to consideration of incompetence or negligence of a defendant's legal practitioner or prosecutor, or the obstruction by a party or witness to proceedings, proposed section 189A, however, will see a magistrate restricted to awarding costs to a defendant only where it is proper to do so.

What is 'proper' is guided by section 189A(2), which details eight scenarios to which a magistrate must have regard, three and arguably four of which relate to the incompetence of the prosecution. As the President of the Law Society of South Australia has submitted, many of the scenarios, even if they have occurred, will be difficult to demonstrate, and in some cases will necessitate a trial within a trial.

Further, one such scenario is where a defendant is unreasonably declined an opportunity before a charge was laid to explain the defendant's version of events; that is, they have exercised their right to silence, a fundamental cornerstone of our criminal justice system and a right they are informed of on being cautioned when arrested. Will the caution not be amended to inform the accused that if they do exercise their right to silence then, they may not be awarded costs if successful in court?

The restriction on the awarding of costs where it is proper, particularly with regard to these scenarios, will, by intent, severely restrict the number of cases in which costs are awarded. As the Law Society submitted:

…the attempt to preserve some discretion in s 189A(2)(a)-(h) does not in reality provide any realistic prospect of any costs order in favour of a successful defendant.

Adding that, as the Hon. Stephen Wade quoted, section 189A(2) is 'merely window-dressing in an attempt to water down the injustice that the proposed amendments create'.

The effect of this will be to restrict the ability of people accused of a summary offence from accessing the court to defend themselves. Access to justice has long been a concern of mine and it is disappointing that we find ourselves debating a measure that will see our constituents, particularly those for whom the budget is tight, less likely to be able to defend themselves. Let us not forget that we can all be accused of a crime and it is to the courts that the innocent look to defend themselves.

An unintended consequence of the proposal is the impact it will have on community legal centres and the Legal Services Commission that currently provide representation on limited budgets. The inability to recover costs where they have successfully defended a client will mean that that additional source of revenue will no longer be available to assist other people who would otherwise be unable to procure legal representation.

The Treasurer, presumably revealing that the Legal Services Commission had not been consulted on the bill, attempted to argue that legal aid lawyers do not, as a rule, pursue costs in the Magistrates Court. Having spoken to the Legal Services Commission, I can inform the Treasurer that the commission, and lawyers acting on its behalf, vigorously pursue costs.

Another unintended consequence is that the bill removes a disincentive from proceeding with improper prosecution. The awarding of costs is not itself compensation for improperly brought prosecutions, given that prosecutions fail for a variety of reasons, not simply because an innocent person is in the dock—a crucial witness may withdraw their support, for example. However, the potential imposition of costs does act as a deterrent to police from proceeding with doubtful or dubious charges. This, with this amendment to this section of this bill, will no longer be the case

As has been raised previously, this will also have the effect of acting as a further deterrent to a person challenging what they believe to be a wrong or unjust expiation notice. While other members have raised examples of motorists wrongly accused of speeding, I would like to raise an example of a constituent who was given an expiation notice after being pulled over by the police for driving without a numberplate.

This young woman went to her car late at night after finishing a late night shift and had no idea that she was missing her rear numberplate and (short of the two screws holding it in place coming loose simultaneously and the numberplate falling off) is convinced that it had been stolen the night before. The two police officers who, realising she was the victim of a crime, could have exercised their discretion and focused on the theft of her numberplate whilst also informing the woman on how to have it replaced, instead wrote her up for a $577 fine. Clearly they were yet to reach their quota for the day.

This woman is yet to take legal advice on how best to proceed, but if she does elect to challenge the expiation notice, under this bill, even if she is successful, she will still face the financial penalty of her legal and associated court costs, a sum likely to far exceed the original fine. I remind members that she is a victim of a crime. The person who brought this to my attention was a retired police officer and he was absolutely disgusted with the conduct of police in this matter. There was no intent by this young person to drive without a numberplate. She had obviously no idea why she was pulled over, yet slapped with a $577 fine.

To impose a financial penalty on an individual when they have been found not guilty of an offence is plainly unjust. That the government would consider doing so when they only stand to supposedly save $1.6 million per year for the police is an indictment of the Labor Party, its values and its lack of concern for justice for the people of this state. I say 'supposedly save $1.6 million', for I am at a loss as to how this figure has been calculated.

As was made clear in another place by the Treasurer, the total value of costs being awarded in the Magistrates Court against the police has been steadily increasing. On the figures provided, this is seemingly due to an increase in the percentage of cases in which costs are awarded, but primarily due to the increase in the amount awarded, a reflection on the broader increases in the cost of legal representation.

Given that the total amount awarded each year has been increasing, how the government can suggest that it will save the police a stable figure is beyond me. Further, if it is as the Law Society suggests, that very few defendants will be awarded costs if this bill passes as it stands, then how did the government reach the conclusion of $1.6 million and not the near $3 million awarded last financial year?

I pose these as questions, but I believe the answer was inadvertently given by the Treasurer himself in another place, who revealed during the committee stage that the figure is calculated on the total amount awarded against the police in the 2008-09 financial year. Answering a subsequent question by the member for Davenport about the average cost of each file, the Treasurer stated:

In 2008-09, there were 755 files. In 1.06 per cent of files, costs were awarded against police. It came to a total of $1,660,351 and the average cost per file was $2,199.

So the projected saving of $1.6 million is based on the 2008-09 financial year in which just over $1.6 million was awarded against police. So members are clear, this is a clear confirmation of the Law Society's position that few if any defendants will be awarded costs and that the attempt at preserving some discretion is mere window dressing.

One final point I seek to make relates to the debate about whether this is a money bill or not. In my opinion, it is frankly irrelevant. While such considerations may be of importance in another place, here in the Legislative Council, the house of review, the issue should simply be whether or not it will be good law. This, I note, is the position of the assistant commissioner Tony Harrison who, in an attempt to distance SA Police from responsibility for this so-called reform, in an interview with Today Tonight stated:

This is a piece of legislation before parliament and it is really up to the parliament now to determine if that legislation gets passed or not.

The point to be made in relation to this, however, is that the government sought to fundamentally undermine access to justice without consultation or public debate by inserting it in the budget bill and using its money bill status as cover. No doubt the government assumed that the Liberal opposition would raise its objections but, on the premise that it is a money bill, allow its passage. I am ashamed that the government would attempt this, and I commend the opposition and the crossbenchers for proving them wrong and not allowing this abuse of power to eventuate.

I have one more line here from an email that I received today from a constituent that I believe is quite pertinent to this particular debate. The closing line is: 'When injustice becomes law then it is time to fight the law'. Thank you.

The Hon. M. PARNELL (11:54): The Statutes Amendment (Budget 2011) Bill introduces four main changes to various legislative regimes. The first is the phasing out of the First Home Owner Grant, the second is an amendment to liquor licensing arrangements and the third is the very welcome decision to reverse the decision made last year to abolish leave loading for public servants. The Greens have no objections to these moves, but that is not the case in relation to the fourth tranche of amendments, and that is to the Summary Procedure Act.

Before I go into detail as to why the Greens object to these changes, I would like to reflect very briefly on the procedure that has been followed by the government. The first thing we have to note is that there has been no consultation with key stakeholders on these changes. As other members have pointed out, we now know, but only after the bill was introduced into another place, that this part of the bill does not have the support of key professional organisations: it does not have the support of the legal profession, the community legal centres or other key stakeholders.

I would also like to comment briefly on the inclusion of this measure in a budget bill. Normally, including something in a budget bill gives it some degree of precedence; it gives it some additional gravitas, because it is no small thing to vote against appropriation to give effect to budget measures. But this measure does not belong in a budget bill. It is a measure that affects, guides and, in fact, directs magistrates as to how they can exercise their judicial discretion. It is a bill that is primarily related to the administration of justice rather than the budget.

However, the government's attempt here is to use this mechanism of directing judicial discretion in a hope, and I think a well-founded hope, that public funds will be preserved by, in effect, ordering the judiciary not to award costs to successful defendants. So, rather than being a proper budgetary measure, the Greens see this as a sneaky attempt to make fundamental changes to the administration of justice and, for that reason, we oppose it—and the government, as I have said, has done it without the normal and respectful consultation with stakeholders that would be expected. I hope that when this provision comes back, if it does, it will be following a respectful consultation.

I would like at this stage to thank, as other members have, the President of the Law Society, Ralph Bonig, and also the South Australian President of the Australian Lawyers Alliance, Mr Tony Kerin, for their considered and very reasonable submissions, which they have sent to us. These are submissions that the Greens overwhelmingly agree with.

I would now like to go to the substance of these measures. At the heart of it is a fettering of magistrates' discretion to award costs in favour of successful defendants in criminal cases. The mechanism built into this bill is that the magistrates are obliged to have regard to a range of criteria, many of which, I would say, cannot be defined and are, in fact, unworkable in practice.

The result of requiring magistrates to have regard for and to comply with these criteria is that it will be very difficult for people to have costs awarded in their favour if they win a criminal case in the Magistrates Court. That is unfair of itself, and that would be reason enough to oppose this measure, but what I think is even more insidious is the impact that measures such as this will have on the choices defendants will be forced to make and also the integrity of the legal system itself.

The result, I think, is clear to all who have had a look at these amendments, and that is that the pressure will be on to plead guilty even if you are not. The process that defendants will go through is that they will have to do a mini economic analysis. They will, first of all, work out what the maximum fine might be. They will have to work out what it would cost them to get legal representation, bearing in mind that the legal-aid system is underfunded and rarely, if ever, are defendants in summary matters able to get legal aid.

So, they would have to work out the maximum fine, what would their lawyer cost and then: what is the chance that I will get my costs reimbursed even if I win? Once you have done the sums, the pressure is on defendants to plead guilty even if they are not, because that is the cheapest way out.

I would say that an innocent person who is convicted wrongly, even if by their own voluntary action, is still an injustice, and it is an injustice that this bill will bring into effect in many cases. The Greens will be supporting the status quo in relation to the discretion of magistrates to award costs, but I think it is important to note also that, in doing so, we are not seeking in any way to punish the police. The police are generally doing a fine job. They are serving the community. This is not about criticising or punishing the police.

We can all understand that even a police prosecution that was conducted impeccably with no criticism able to be levelled against it at all can still collapse through no fault of the police or the prosecutor. We just have to accept that that is part of the reality of a criminal justice system. It does not mean that, in those circumstances, the cost burden should be shifted to the defendant.

We know that the criminal justice system is expensive. It costs a lot of money to investigate and to prosecute and to judge cases. If we lived in a totalitarian regime, a cheaper option would be that anyone who the police thought may have committed an offence would be lined up against the wall and shot. That would, by far, be a cheaper option, but we live in a democracy and we live under the rule of law, and it is unacceptable for the rule of law to be subverted in the way intended by this bill.

The price we pay for living in a democracy is that sometimes things will go wrong in criminal cases and, when that happens, the just response is for those who are acquitted to receive their costs or at least for the magistrate to have an unfettered discretion in deciding whether or not they should receive their costs. So, the Greens will be voting to take the proposed section 189A out of the bill, and we invite the government to bring back the remaining provisions of this bill which, as I have said, the Greens will not oppose.

Debate adjourned on motion of Hon. I.K. Hunter.

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