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

Second Reading

Adjourned debate on second reading.

(Continued from 6 July 2011.)

The Hon. T.A. FRANKS (15:34): I rise very briefly to address the Statutes Amendment (Budget 2011) Bill. I leave the commentary of the Greens on the changes to court enforcement fees to my honourable colleague who holds the attorney-general portfolio; however, I wish to congratulate the government on their turnaround from their treatment of public sector workers in this state budget.

As we know, in the previous budget the then treasurer Mr Foley waged an attack on our public sector that was unprecedented by a Labor government and, of course, that has been seen as a role for the current New South Wales Liberal government to adopt. Both former treasurer Foley and the O'Farrell government in New South Wales have found that public support for valuable public sector workers is high in Australia, a country which values the valuable work that our nurses, our firefighters, our teachers, our health professionals and our child protection workers, among so many others, do for our social capital in this country.

I welcome the backdown by Treasurer Snelling to ensure that some legal entitlements are reinstated. I hope that is one step towards a more productive way of working with the public sector in this state from this Labor government, although I am concerned that there are several hundred more jobs to go and that certainly the 'no forced redundancies' policy which the Rann government took to the last election has been put on the table for the 2014 election by Treasurer Snelling.

We know that at every election issues are fought and won on the value that people judge what the different political parties put forward, but the idea of having a bash at the public sector as some sort of fat cat institution when we know that, in fact, those cuts have hit 44 workers in the poverty unit of the Social Inclusion Unit and those 44 financial counsellors are now no longer able to help the poorest of the poor in our state, yet nobody is there to pick up the pieces, because it is rightly the work of the public sector. The reason we have public services and the reason we have government is that we do not have a society that leaves people behind in Australia.

With those words I say that it is at their own peril that a future premier would take a similar tactic in the treatment of public sector workers and, in terms of a Labor government or opposition, it is the party of the workers, so taking things out of the realm of the Industrial Relations Commission is an act that it takes at its own peril; it is almost white-anting its own party from the very core of what it should stand up for.

As I say, however, the Labor Party is no Robinson Crusoe in its approach to public sector workers and the New South Wales O'Farrell government will also learn at its peril that to take such a step is not something that is, in the long term, popular with people. While they might like the idea of some budget cuts, they do not like the idea of service cuts.

With that, I commend the step forward by the current Treasurer Snelling and I commend the bill, with the exception that we will address the court costs issue as we further debate the bill in our second and third reading.

The Hon. J.A. DARLEY (15:39): I rise briefly to speak on the Statutes Amendment (Budget 2011) Bill and to add my support to some of the comments made by other honourable members including the Hon. Stephen Wade, the Hon. David Ridgway, the Hon. Ann Bressington, the Hon. Mark Parnell, the Hon. Kelly Vincent and the Hon. Tammy Franks. As we all know, the bill proposes four main changes.

The first is the phasing out of the First Homeowner's Grant, the second is the introduction of new fees for holders of liquor licenses, the third is the reversal of arrangements to public servants' recreation leave loading entitlements announced in 2010, and the fourth is the introduction of a cap on court-awarded costs against the police through chances to the Summary Procedures Act.

Like many of my colleagues, I welcome measures in relation to public servants' recreation leave loading entitlements; however, I too am opposed to changes to the Summary Procedures Act with respect to the issue of cost, and in particular clause 189A of the bill.

The President of the Law Society, Mr Ralph Bönig, and the South Australian President of the Australian Lawyers Alliance, Mr Tony Kerin, have been extremely vocal about this matter, and I share the concerns they have raised with members of parliament through their written submissions.

The Hon. Stephen Wade has already placed on the record much of the detail in those submissions, and I will not repeat what has already been said, other than to refer to one quote by Mr Kerin which I think sums up the reason for opposing these measures. In his submission, Mr Kerin states:

The ability to claim costs holds the police prosecutions accountable. Firstly because it is taxpayers' 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.

It is a sad state of affairs that this government should consider it fair and just to attempt to erode the rights of South Australians in the name of savings, and to undermine the justice system in such a blatant and impalpable manner. I indicate that I will be supporting the proposed amendments of the Hon. Stephen Wade on this issue, and I commend him for his efforts.

Lastly, and although not dealt directly related to this bill, I might also make mention of my opposition to the government's proposal to license SA Lotteries to a private operator. Not only does this budget measure have the potential to lead to an increase in gambling addiction through more aggressive marketing and promotions of gambling but it also threatens to destroy the economic viability of South Australian newsagents.

My office has received numerous complaints from newsagents who are concerned about the damaging effects that this measure would have on their businesses, particularly given that so many are already struggling to survive. I will certainly be raising this issue further on their behalf, and opposing any government proposal to license SA Lotteries. With that, I support the Budget Bill.

The Hon. J.M.A. LENSINK (15:42): I will make a few remarks in relation to the liquor licensing aspect of this particular bill (it being the companion to the Appropriation Bill which we are debating at the same time). I just point out to honourable members and readers of Hansard that this initiative, if it can be called that, is really just another way for the government to put a tax on licensees, and was rather sneakily put into this particular bill, rather than have it as part of other liquor licensing 'reforms'. The government, being aware that the opposition has honoured the convention that it does not block budgetary measures, has therefore placed it into this particular piece of legislation.

I would like to have the government provide to us an update on what the status of that is, and whether they have an indicative level of what the different fees are. We have been advised that there will be different levels of fees for licensees, and that smaller licensees will have fairly minimal fees which, to me, indicates that, given the government is raising some quantum of several million dollars from this measure, larger licensees will therefore have larger annual fees. So, I would like a reasonable thorough update on what the status is in terms of timing of how those negotiations are going, and if we can get some indication of what those fees are for the different licence classes.

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (15:45): There being no further second reading contributions, I take this opportunity to thank honourable members for their contribution to the second reading debate of this bill. It is clear that the chief area of controversy relates to clause 18, the proposal to amend the cost provisions of the Summary Procedure Act. Several members have expressed the view that costs should ordinarily be awarded to a successful defendant in a police prosecution.

I point out that South Australia is not the first state to propose legislation along these lines. The amendments proposed here are similar to the law in three other states. As members would realise, the provisions in this bill are modelled on the Queensland Justices Act 1886. A comparable provision exists in New South Wales under the Criminal Procedure Act, and in Tasmania under the Costs in Criminal Cases Act.

Consideration of whether the accused was acquitted on a technicality, to which some members objected, occurs under the Queensland provisions. Similarly, the Tasmanian law takes notice of whether or not the accused established that he was not guilty of the offence. It is also a statutory consideration in the Northern Territory whether, despite evidence of guilt, the defendant was entitled to acquittal because of a minor procedural irregularity.

Although it is fair to say that different law reform bodies have reached different conclusions on this question, I point out that the Western Australian Law Reform Commission, in 1999, published a report in which it recommended that Western Australian law should be amended to stop the awarding of costs in summary prosecutions.

The commission noted that, at common law, the state, in criminal matters, neither pays nor receives costs and that this position is altered only by legislation. The commission found that the distinction between costs in summary matters and in the higher courts was artificial and could not be justified. The commission said:

Our reference to this Report was to make recommendations which would assist in making the justice system comprehensible, certain and reasonably expeditious, while not sacrificing fairness nor justice, nor overlooking the special considerations which need to be brought to bear in criminal matters...We are now of the view that these ends are best achieved by making all criminal jurisdiction 'no cost'.

I feel sure that no law reform commissioner in Australia would have been recommending a change to the law that would, as some members sought to suggest, cut down the presumption of innocence, or any other fundamental right, of an accused person. Although the legal profession in this state raises the alarm, its colleagues in three other states are already working with comparable systems. The proposals are defensible, as the WA Law Reform Commission report shows.

Again, I thank honourable members for their contribution. If there are any questions which have been raised to which I have not responded at this point in time, I assure members that I am happy to do that through the committee stage of the bill.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 17 passed.

Clause 18.

The Hon. S.G. WADE: I move:

Page 9, lines 14 to 37 and page 10, lines 1 to 32 [clause 18, inserted section 189A]—

Delete inserted section 189A

I do not intend to speak for long. I explained the opposition's position in great detail at the second reading stage. However, I think it is appropriate to remind members of the basic tenet of the opposition's argument, which is that this provision is an inappropriate amendment of the proceedings for summary proceedings in our criminal jurisdiction. I remind members of the very strong arguments put by the Law Society and the Australian Lawyers Alliance, and I remind honourable members to reflect on the advocacy of those bodies.

It is not unusual for members to receive representations and for them then to be left to lie, but I have been impressed with the passion of the law stakeholders and in particular I acknowledge the advocacy of Mr Ralph Bönig, the President of the Law Society, and Mr Tony Kerin of the Australian Lawyers Alliance. Far from sending out a letter and waiting to see what Hansard showed some months later, these two individuals, plus a range of legal stakeholder bodies, have been vociferous in their advocacy, alerting us at any point where they feared that there were concerns in relation to the progress of this discussion.

We are doubly convinced that the points that the Law Society and the Australian Lawyers Alliance made are valid. I took the liberty of quoting their letters at length in my second reading contribution, and for the minister on behalf of the Attorney-General to remind us that a law reform body 13 years ago thought that it was a good idea and that some other jurisdictions have comparable legislation—whatever that means; it was a fairly late briefing, I thought—is hardly a convincing rebuttal of the substantive points that the legal stakeholders have made.

I remind the council that we believe it is not only a significant infringement on the legal rights of South Australians but it also risks what I would call cost-shifting within the public sector. In my view, considering that a significant number of defendants in the criminal jurisdiction are represented by lawyers appointed and funded by the Legal Services Commission, there is a risk of the police, if you like, making a saving at the expense of the Legal Services Commission. I draw the attention of honourable members to the Hansard of the estimates committee where an opposition member raised this very point and the Attorney-General was not able to answer.

We also believe that it is not in the interests of the police for this reform to be made because we believe it undermines the incentives towards quality prosecution services. As the Law Society highlighted in its correspondence, it undermines a number of fundamental rights, including the right to silence, and there is the risk—I do not know if the Law Society made this point but I understand that there is also an increased risk of civil actions against SAPOL from lawyers seeking costs. I speak briefly just to remind members of the substantial arguments that have been put before us by legal stakeholders, to thank them on our behalf for their representations and to urge honourable members, in the light of the wisdom of those bodies, to support the amendment that I have moved.

The Hon. G.E. GAGO: The government rises to oppose this amendment. This amendment would delete proposed new section 189A, being the provision that would reduce the courts' present discretion to award legal costs to a successful defendant. The government intends that costs should no longer simply follow the event in summary prosecutions and, instead, costs should only be awarded where the court is satisfied that it is proper to make an order, having regard to all relevant circumstances including those listed in proposed new section 189A(2).

Further, where proper reasons do exist, costs should normally be limited to the applicable scale of costs only. This is not an unreasonable proposal; it is similar to the law already operating in Queensland and comparable with provisions in New South Wales and Tasmania, as I have already put on the record. It is consistent with the practice in our higher courts, where costs are normally awarded in criminal cases, and the government's proposal is something that SAPOL supports. That is because it supports an equitable cost regime within the inferior and superior courts, so SAPOL is in support of the government's position. With those few words, the government opposes the amendment.

The Hon. M. PARNELL: The Greens are supporting the amendment for all the reasons I set out in my second reading contribution.

The Hon. J.A. DARLEY: I will be supporting the amendment.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (15:57): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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