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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-25 Daily Xml
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CRIMINAL LAW (SENTENCING) (SENTENCING POWERS OF MAGISTRATES COURT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2010.)

The Hon. R.I. LUCAS (12:45): I rise to support the second reading of this bill. The minister, in introducing the bill, indicated that this was consequential and perhaps the next stage of amendment in this particular area, after some amendments which were introduced in 2006, I think debated in 2007 and then came into force on 1 January 2008. Those original recommendations reflected recommendations of the SafeWork SA Advisory Committee which comprises employer, employee and government representatives.

The Liberal Party expressed some concerns with aspects of the legislation at that time in 2006-7. However, as a testament again to the benefits of having a bicameral system and, in particular, a hard-working, efficient and competent Legislative Council, significant amendments were made by, I think, all non-government members of this chamber. The government saw the good sense in those amendments and the bill was significantly amended and improved, certainly from the viewpoint of all non-government members in this chamber. As a result of those changes, the concerns initially expressed by the Liberal Party were removed and the Liberal Party supported the compromise package that went through both houses of parliament.

However, there has been perhaps, to use my words, an unintended consequence of those changes. One of the changes was a significant increase in penalties. The government advises that for many years industrial magistrates have heard the majority of occupational health, safety and welfare cases in South Australia. Whilst there might have been (and might still be) differing views from some within the business community about whether industrial magistrates should be doing all that work, nevertheless that has been the case for a number of years in South Australia. The government advises the current sentencing limit for industrial magistrates is $150,000.

One of the changes in the 2006 legislation was that the division 1 corporate offences were significantly increased to a maximum penalty of $600,000 and division 2 corporate offences were significantly increased to a maximum penalty of $300,000. The government further advises that the vast majority of convictions under the Occupational Health, Safety and Welfare Act are in fact division 2 corporate offences which attract this maximum penalty of $300,000.

As indicated earlier, the government says that the current sentencing limit for industrial magistrates is $150,000, so there is clearly, under the existing arrangements, a potential issue. What this bill seeks to do is to give industrial magistrates the capacity to hear and sentence in relation to all division 2 offences and, from the government's argument, in the wording of the second reading explanation:

...[provide] consistency for the court system, as well as for employers and employees. It should be recognised that the penalties apply only when there has been a criminal conviction where a corporation has failed to provide a safe working environment for employees and other persons engaged at the workplace.

The government went on further to argue that the alternative to this particular proposition, if we do not increase the sentencing capacity of industrial magistrates, is that these occupational health and safety matters that might attract a penalty of over $150,000 would need then to be conducted in the District Court.

We are already advised that the District Court has a large number of cases to deal with; there are timing issues and waiting-list issues there. The government argues that prosecuting occupational health, safety and welfare cases in the District Court would be considerably more time-consuming for all the parties concerned. The government further argues that if any party disputes the decision of an industrial magistrate, the option to initiate an appeal to a higher court remains available.

As I said, whilst industrial magistrates have evidently handled these cases for many years, there are some within the business community who have the view that these issues would all be better handled by the District Court rather than by industrial magistrates. That is the situation that I am advised has existed in South Australia for a while: industrial magistrates are handling them.

We do confront the alternative of leaving the situation as it is and that is we have division 2 corporate offences up to a maximum penalty of $300,000 which would mean a division 2 corporate offence up to half that maximum—$150,000—would continue to be heard by industrial magistrates and those between $150,000 and $300,000 would be handled by the District Court.

So, the government's proposition, on the surface of it, makes sense to the Liberal Party. We have had no strong representations—or to be fair, we have had no representations—to oppose this particular proposition although, as I said, there are some who have general concerns about the whole notion of industrial magistrates. On that basis, the Liberal Party indicates its preparedness to support the legislation through the parliament.

The Hon. D.G.E. HOOD (12:53): I will be brief. Like the Hon. Mr Lucas indicating the Liberal Party position, it will come as no surprise to members, I am sure, that Family First intends to support such a provision. This bill retrospectively increases the sentencing power for industrial magistrates from $150,000 to $300,000. I continue to be amazed that bills in this place do not simply have amounts that are tied to the CPI or something similar—and I know that is not necessarily what is happening here—so that we would not have to come back to a number of bills to increase penalties or dollar amounts or whatever it may be over periods of time.

The Hon. J.M.A. Lensink: Hear, hear!

The Hon. D.G.E. HOOD: I think it is just a common-sense amendment, and it seems that the Hon. Michelle Lensink agrees. That aside, I acknowledge that, on 1 January 2008, legislation came into effect that resulted in penalty increases for breaches of the Occupational Health, Safety and Welfare Act 1986 as a result of consultation and the recommendations of the SafeWork SA Advisory Committee. In short, penalties can now be as high as $300,000 for division 2 offences which involve serious breaches that resulted in a criminal conviction. However, magistrates currently have a limit to their sentencing capacity of $150,000.

Currently if magistrates were not granted an increase in sentencing capacity, then OH&S matters that may attract a penalty fine over $150,000 would need to be referred to the District Court. I should point out that this may involve many cases as the criterion is that, if a case may even possibly attract a penalty above $150,000, it would have to be referred. It would not surprise me if we see many more cases falling into this category than is anticipated.

The District Court already has a vast backlog of cases: we know that. The 2009 judges' annual report noted a worrying decrease in the clearance rate of cases. The combined clearance ratio for criminal cases before the Supreme and District Courts in 2007 was 106 per cent, that is, the number of cases finalised was 106 per cent of the number of cases lodged with the courts, and the courts were clearing some of the backlog.

In 2008 the number had fallen below the crucial 100 per cent figure to 98 per cent. Last year saw a very worrying clearance ratio of just 88 per cent, that is, the court cleared only 2,402 cases of the 2,749 cases lodged with it, and the backlog was again increasing, despite comment to the contrary. The courts are only just keeping up, and in fact in the last reported year were not keeping up with the work presented to them. The Courts Administration Authority annual report for 2006-09, the latest report available, notes regarding the District Court:

Total disposals in 2008-09 increased by 98 (5 per cent) from the previous year, significantly less than the increase in lodgements. The net effect is an increase in the total matters pending and deterioration in the rate of clearance.

So the courts themselves have acknowledged the problem: they are simply not keeping up. People say that they need more resources, which is possibly true, but they can be more efficient as well, and that is something that never seems to be levelled at them. I have a close acquaintance with a number of people in the legal profession who claim they wait inordinate amounts of time for decisions to be handed down, and there seems to be very little scrutiny of the efficiency of that whole process. The report also goes on to note:

The increasing trend in lodgements and the increasing backlog has also placed pressure on the staff of the District Court Registry.

Again, the courts are acknowledging that there is a problem. There are certainly issues in need of addressing in the District Court. It is appropriate to move matters that can be moved to the Magistrates Court, which operates with far less backlog and far lower cost per case on average. Our industrial magistrates are acknowledged to have the requisite skills to deal with these matters. There are benefits in timely administration of justice, and an option to appeal matters to a higher court remains open under this bill.

In short, Family First sees this as a sensible and fairly non-controversial bill. More must be done to clear the backlog of the courts, and it is not just simply a matter of more resources. Governments of both sides are often accused of not giving courts enough resources. Perhaps there is truth in that, but it is hard to measure those sorts of things. But there is also such a thing as efficiency. You can pour endless resources into anything, but if they do not use them well you will not get a good outcome.

There are two sides to the equation: the first is whether they have enough resources. The government and opposition are in agreement to try to do the right thing and give them the resources they need, with which Family First agrees, but it is up to the courts to be efficient with those resources. There is no measurement: we do not know whether or not they are efficient. There is no way of determining whether we are getting value for money in terms of the throughput in these situations. That being said, Family First supports the bill.

The Hon. P. HOLLOWAY: I thank the Hons Mr Lucas and Mr Hood for their indications of support. The Hon. Mr Hood talked about the possibility of penalties being indexed or changed in some way in legislation. If I recall, we had some years ago divisional penalties that were adjusted, but a change was made to that a decade or so ago. I gather that the reason for doing that was to make the penalties more clear because often, if you look at an offence and it is a division 6 fine, it was not necessarily obvious what that related to. It may have been the previous government that changed that system. Whereas we had that system in the past, for whatever reason with which I am not familiar we moved away from it. I put that on record to say that something had been done in the past, but for whatever reason it has been changed. I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. M. PARNELL: I did not make a second reading contribution, but I will just say now that the Greens support this legislation. My question is a simple one; it applies specifically to this legislation but it is a question I have had in relation to other legislation as well. It relates to what the minister said in his concluding contribution to the second reading, that when it comes to penalties in legislation we have this arrangement for divisional penalties. My understanding of why we have divisional penalties is that it enables penalties to change over time, perhaps with inflation, without having to change the penalty in each individual act.

In his second reading speech the minister said that the vast majority of convictions under the Occupational Health, Safety and Welfare Act are division 2 corporate offences attracting a maximum penalty of $300,000, so it makes sense for the magistrates to deal with those as a jurisdictional limit. However, my question is quite simple: why do we put in legislation offences with divisional penalties yet, when it comes to the jurisdictional limits of our courts, we put in a dollar amount? It seems to me that if the intention were to limit the jurisdiction of the industrial magistrates to division 2 offences, why do we not say that in the legislation? Why do we actually nominate the amount of $300,000, which we will have to change if we subsequently change the divisional penalties that apply across the statute books?

The Hon. P. HOLLOWAY: I am not sure why we have moved away from the trend towards putting divisional penalties. I think it might have been when the Hon. Mr Lucas was in government. I am not sure when the change was made; it was a long time—

The Hon. R.I. Lucas: You can't blame me for everything.

The Hon. P. HOLLOWAY: I am not saying that, but I think it happened then. There may actually be good reasons, in the sense that when you have in the act that it has a divisional penalty it is not necessarily clear what that might be. It has the advantage that you could index it; and, of course, in some cases it related prison terms with a financial penalty, so you could adjust it. There may have been very good reasons, but I am simply not aware—

The Hon. R.I. Lucas: Why don't you take it on notice and get advice on it.

The Hon. P. HOLLOWAY: We will do that, because it is probably a legal matter. There is a complication because they are talking about penalties for magistrates. There has been an agreement with the Chief Magistrate; as I understand it, we try to keep the penalties for industrial magistrates in line with the penalties that can be imposed by magistrates in the other legal stream. If division 2 penalties were to increase dramatically then a defendant should have the right to elect to go to the courts. I guess there are a lot of complications behind this, but as for the actual history of it, it is probably something that is best taken on notice.

I would be happy to write to the honourable member when we can put together the history of it. I would be interested myself to know what were the actual arguments at the time by whichever government it was that tended to move back towards putting monetary amounts into acts. However, I will take that on notice.

The Hon. D.G.E. HOOD: Would the minister table that response when he gets it, because I would be interested in it as well?

The CHAIR: Perhaps he can write to both of you.

Clause passed.

Remaining clauses (2 to 4) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.


[Sitting suspended from 13:05 to 14:17]


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