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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-03-15 Daily Xml
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STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:59): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill makes miscellaneous amendments to Acts within the Attorney-General's portfolio concerned with the courts and the justice system, as follows:

Criminal Law Consolidation Act 1935

Section 258BA of the Criminal Law Consolidation Act 1935 currently provides for the Director of Public Prosecutions to be able, with authorisation of the court, to serve on a defendant a notice inviting the defendant to admit specified facts. If a fact is formally admitted in response to the notice, the public is saved the cost of proving that fact. The section encourages the admission of facts that are not truly in dispute, in that an unreasonable failure to admit facts can be considered in sentencing, if the defendant is found guilty. The aim of the provision is therefore to prevent the wastage of public resources that can happen in a criminal trial where the prosecution is forced to call evidence to prove facts that the defendant does not seriously dispute.

The section is underused. One possible reason for this is that the Director must apply for a court order at a directions hearing. The Bill proposes to abolish that requirement. There is no harm or unfairness to an accused in being served with a notice to admit facts. If he or she genuinely disputes the fact, then the response to the notice will indicate that the fact is not admitted and the prosecution will still have to prove it in the ordinary way. Therefore, there is no need to occupy the court's time in dealing with the question of whether a notice should be authorised. There may also be some benefit in that notices could be issued earlier.

Criminal Law (Sentencing) Act 1988

Several amendments are proposed to the Criminal Law (Sentencing) Act 1988. First, a new section 9D is proposed. This would give the Environment Resources and Development Court an express power to convene a sentencing conference, at which representatives of the neighbourhood affected by the environmental offence may express their views about the impact of the offence and may negotiate with the defendant for appropriate reparations. The results reached by the conference can be taken into account by the Court in sentencing. If an agreement has been reached for reparations, the Court may adjourn sentencing for this to be carried out and, if it is, may take account of the reparations in sentencing. It would be in the Court's discretion whether to convene such a conference in a particular case. A similar provision exists in the New Zealand Sentencing Act 2002, s. 10. Proposed new section 19D would permit the Court to defer sentencing to allow time for the defendant to carry out actions agreed at the sentencing conference.

Section 33C deals with imprisonment for contempt. A problem has been noticed in the relationship between the Criminal Law (Sentencing) Act 1988 and the imposition of a prison sentence as a punishment for contempt of court. Where a prisoner is convicted and sentenced to imprisonment for contempt of court, whilst already serving a sentence of imprisonment, a problem arises if the prisoner becomes eligible for parole for the earlier offence. If the Parole Board orders the release of the prisoner on parole he or she will not in fact be released, but will commence a new prison term for the contempt.

When the Parole Board determines whether or not to grant parole, it must take into account, amongst other things, the likelihood of the prisoner complying with the conditions of parole, the impact that the release of the prisoner on parole is likely to have on the registered victim and their family and the probable circumstances of the prisoner after release from prison or home detention. Consideration of these matters becomes an artificial process when the Board knows that the applicant for parole is likely to serve an additional term in prison for contempt immediately upon parole. In these circumstances, it is unclear whether the Board should assess the application for parole as though the applicant were to be released upon the making of the parole order, or whether the Board should assess the application by attempting to predict what the relevant circumstances of the applicant will be after he or she serves the sentence for contempt. The longer the sentence for contempt the more difficult it will be for the Board to assess that.

It is proposed to amend section 33C so that where a sentence for contempt is imposed upon a person already serving a term of imprisonment, the term imposed for contempt is to be interposed prior to the conclusion of the serving of the term of imprisonment first imposed. This will enable the Board to assess questions arising upon an application for parole to be dealt with at the relevant time.

Section 48 and 50 deal with the supervision of offenders, for example, as a condition of a bond or ancillary to a community service order. Section 50 authorises a community corrections officer to give the offender reasonable directions. One of these optional directions is a direction to obtain written permission before leaving the State. It is proposed that, rather than being an optional direction, this should be a mandatory condition of supervision, to be included among those fixed by section 48. It is considered that offenders under supervision should never leave the State without permission. It is also proposed to provide, by an amendment to section 50, that a community corrections officer must give reasonable directions to the offender about regular reporting. That is, it is not intended that in each case the officer should consider whether the particular offender ought to report regularly. It should be the rule that offenders are required to report regularly. The discretion should relate to the frequency and manner of reporting, rather than whether the offender reports or not.

A minor clarification is required to section 58, to ensure that an extension of time to complete community service can be granted even if the time originally allowed has expired.

It is proposed to amend section 70I of this Act, which deals with reconsideration by the court of an order for payment of a pecuniary sum, where the defendant has been unable to pay without hardship. The Act allows the court, on reconsideration, to remit or reduce the pecuniary sum, or to convert it to community service or make other orders. The amendment is designed to make clear that the court can, if it sees fit, make different orders in respect of different portions of the pecuniary sum. That is, the court might convert part only of the sum to community service hours, leaving the defendant to pay the balance of the sum, or it might reduce the sum and also impose a disqualification from driving, and so on. This is expected to be useful where the sum is large and, for example, converting it to the maximum allowable community service hours alone would be insufficient.

The Bill also proposes to amend section 71 to allow a fine to be imposed in lieu of a community service order, in the court's discretion, when the order is not completed. Presently, this is only possible, under section 71(8), if a court is satisfied that the person's failure to comply with an order is excusable because of obligations to attend paid employment gained since the making of the order. However, there may sometimes be other cases where the failure to complete community service is not due to a person's employment obligations but there are nevertheless proper grounds for the court to consider substituting a fine. The amendment will allow the court to revoke a community service order and substitute a fine, whatever the reasons for failure to comply with the order, if the court sees fit.

Director of Public Prosecutions Act 1991

Section 6A of this Act, at present, permits the Director of Public Prosecutions to delegate his or her powers under the Act, but not the powers conferred by any other Act. An example is the power under the Listening and Surveillance Devices Act 1972 to approve the making of an application to the court by a police officer for a warrant authorising the use of devices. Another is the power to apply to a court to revoke an order for the transfer of a prisoner under the Prisoners (Interstate Transfer) Act 1982, where the prisoner has attempted to escape or has otherwise offended in the course of transfer. The Government considers that it would be convenient for the Director to be able to delegate such powers in the same way that he or she can now delegate the powers in the Act creating his office and the Bill so proposes. This provision is of general application, but it is not meant to override specific provisions in individual Acts that preclude delegation. For example, the Serious and Organized Crime (Unexplained Wealth) Act expressly provides by section 37 that the Director's functions under sections 9 and 12 cannot be delegated. This amendment is not intended to override that specific provision.

District Court Act 1991 and Supreme Court Act 1935

It is proposed to make a small change to the mediation powers of the Supreme and District Courts. At present, a judge can refer the parties to mediation whether or not the parties agree, but a master can only refer the parties to mediation if they consent. It is proposed that a master should be able to refer the parties, in the same way that a judge can do, even without consent. Referral can sometimes be useful despite the absence of consent. For example, a party might underestimate the prospects of resolving the case by negotiation. The referral will not compel anyone to make or accept any offer.

Enforcement of Judgments Act 1978

An amendment is proposed to section 7 of this Act to clarify the powers available to the sheriff when executing a warrant against land. Section 7 of this Act permits the court to issue a warrant of possession, authorizing the sheriff to take possession of real property. The warrant enables the sheriff lawfully to eject any person who is on the land and who is not entitled to be there. In the case of a warrant relating to personal property, it enables the sheriff to seize and take possession of the personal property. The section however varies in its expression. While it expressly states that, in the case of personal property, reasonable force may be used, it is silent about whether reasonable force may be used to eject persons when executing a warrant relating to land.

Probably, the better view is that the common law, which permitted such force, continues to apply and thus that it was not thought necessary to refer to this in the statute. However, an alternative argument is that the reference to force in one context could mean that the absence of such a reference in the other context discloses an intention that force should not be used. The Bill would amend s. 7(2) to remove any doubt about the authority to use reasonable force.

Environment Resources and Development Court Act 1993

Section 29 of this Act deals with costs, permitting the making of costs orders where costs have been wasted, for example, through avoidable adjournments or through the neglect or incompetence of a representative. It is proposed that the Court should also have a power to award costs where this is necessary in the interests of justice to redress unfair conduct by a party. There is an analogy with appeals to the Administrative and Disciplinary Division of the District Court, which is not ordinarily a costs jurisdiction but which may award costs if to do so is necessary in the interests of justice. The aim is to penalize parties who unfairly waste the time and costs of other parties by the way in which they conduct litigation.

It is also proposed to insert a new section 40A dealing with custody of litigants' funds. In the Magistrates Court Act, the District Court Act and the Supreme Court Act, provisions already exist giving responsibility to the Registrar for the custody of such funds and giving a guarantee of their safety, such liability to be satisfied from general revenue. In practice, the ERD Court has not received litigants' funds, but with the growth in the mining industry, there is a possibility that in future this might occur, for example, in a case under the Mining Act 1971 for compensation in a native title matter, and accordingly a comparable provision is proposed.

Judicial Administration (Auxiliary Appointments and Powers) Act 1988 and Youth Court Act 1993

Section 3(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 provides that appointments may be made to a 'specified judicial office … on an auxiliary basis.' Section 2 of the Act provides that 'judicial office' means, amongst other things, 'Judge of the Youth Court'. This Act would, therefore, appear to allow for auxiliary appointments to be made direct to the Youth Court.

The operation of section 3(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act however sits somewhat uneasily with the scheme for appointments to the Youth Court set out in the Youth Court Act 1993. Section 9(3) of the Youth Court Act provides that, '[t]he Judges of the [Youth] Court are District Court Judges designated by proclamation as Judges of the Court.' This provision casts some doubt on how an appointment of an auxiliary judge to the Youth Court should be made.

The object of providing for auxiliary appointments is to promote flexibility, so the appointment of auxiliary judges to the Youth Court should not be restricted to those who are already appointed to the District Court but should include those who are eligible for appointment. The Bill would amend the Act to remove any ambiguity.

Justices of the Peace Act 2005

A justice of the peace may be appointed as a special justice, who may sit in the Magistrates Court or the Youth Court to hear minor matters. Such a person is bound by the Code of Conduct in the Regulations to notify the Attorney-General and the Court if charged with an offence (other than an expiable offence). Failure to do so may lead to disciplinary action. This notification would, for instance, enable the Court to decide not to roster the special justice to hear cases until the charges are disposed of.

The Bill proposes to go further and amend section 11 so that a special justice is automatically suspended from office upon being charged with an offence (other than an expiable offence) and ceases to be a special justice upon conviction for such an offence. This will mean that the special justice is not to hear any matters pending the disposition of the charges. If, however, this happens, the result of the proceeding is not to be affected.

The Bill proposes that the special justice could, however, apply to the Attorney-General to have the suspension lifted or to be reinstated in office. The Attorney-General will then be able to consider the gravity of the offence and, if persuaded that the person should be able to continue in office, to impose conditions.

Magistrates Act 1983

In the 2007 case of O'Donoghue v Ireland, there was a High Court challenge to an extradition, on the ground that the Commonwealth Extradition Act 1988 could not validly impose a duty (in this case, the function of deciding whether a person is eligible for extradition) on state magistrates. The challenge failed, because the High Court found that it did not impose a duty, but rather conferred a power. It is proposed, however, to amend the Magistrates Act to insert a new Part 7 to make clear that the Governor has authority under this Act to enter into an agreement with the Governor-General for the purposes of the Extradition Act 1988.

Magistrates Court Act 1991

Section 42(1a) of the Magistrates Court Act 1983 limits appeals against interlocutory judgments. It was substituted in its present form in 2005, after the decision in Police v Dorizzi (2002), in which the prosecution tendered no evidence following a ruling by the magistrate that CCTV tapes of the offence were inadmissible. The Supreme Court held that the prosecution had no right to appeal against that decision. It is clear from the Hansard debates about the 2005 amendment that the amendment was intended to enable the prosecution to make such an appeal, because the evidentiary ruling destroyed the prosecution case. However, in the case of McIlvar v Szwarcbord (2008), the Supreme Court held that the amendment did not achieve this effect. The Bill proposes to further amend section 3(1) to achieve what the Parliament intended. The new definition of ‘interlocutory judgment' is designed to make it clear that an order or ruling relating to the admissibility or giving of evidence is a judgment and as such is appealable, subject to the constraints on appeal contained in section 42(1a).

Young Offenders Act 1993

Section 41A of the Young Offenders Act 1993 specifies the process for conditional release of a young offender from detention, which varies according to whether or not the youth is a recidivist. The young offender must have served the required fraction of his or her sentence, being 2/3 for most young offenders but 4/5 for recidivists. The question has arisen whether the application can be made and considered before that period has elapsed, in anticipation that it is about to do so, enabling eligible youths to be released immediately on having served the required fraction of the sentence.

The section intends that this must be possible, as otherwise young offenders would have to remain in detention after having served the required fraction, while waiting for the Board to determine the application. To avoid doubt, however, it is proposed that the section should expressly state that an application can be determined within the last seven days before the youth is potentially eligible for conditional release.

These amendments are of a technical nature and are designed to overcome procedural or technical problems or to improve the operation of legislation affecting the courts.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 285BA—Power to serve notice to admit facts

Section 285BA currently provides a scheme for the DPP to serve on the defence a notice to admit specified facts. The court must currently authorise the DPP to do so and may, in granting such an authorisation, fix a time within which the notice is to be complied with.

The amendments provide a more flexible system allowing the DPP to serve such a notice without obtaining the permission of the court except in a case where the defendant is unrepresented. A right to ask the court for an extension of time within which to comply with the notice is provided.

Part 3—Amendment of Criminal Law (Sentencing) Act 1988

5—Insertion of section 9D—ERD Court sentencing conferences

New section 9D makes a new procedure available to the ERD Court—a sentencing conference designed to negotiate action that the defendant is to take to make reparation for any injury, loss or damage resulting from the offence, or to otherwise show contrition for the offence.

6—Insertion of section 19D—Deferral of sentence following ERD Court sentencing conference

New section 19D contemplates an adjournment of the ERD Court following a sentencing conference to enable the defendant to take the action negotiated at the conference.

7—Insertion of Part 3 Division 4—Effect of imprisonment for contempt

New section 33C clarifies the effect of imprisonment for contempt. It provides that if a person is imprisoned for contempt of court—

any sentence of imprisonment that the person has not yet begun to serve (and any non-parole period in respect of that sentence) will not commence until the expiry of the period of imprisonment for contempt; and

any sentence of imprisonment that the person is then serving (and any non-parole period in respect of that sentence) ceases to run for the period of imprisonment for contempt.

8—Amendment of section 48—Special provisions relating to supervision

If a person is to be subject to the supervision of a community corrections officer, this amendment standardises the requirement that the person must not, during the period of supervision, leave the State for any reason except in accordance with the written permission of the CEO. Currently, section 50(1)(a)(iii) allows the community corrections officer to give reasonable directions to the person requiring the person to obtain the officer's written permission before leaving the State.

9—Amendment of section 50—Community corrections officer to give reasonable directions

The requirement to report to the supervising community corrections officer is made a statutory requirement rather than one left for the officer to impose.

10—Amendment of section 58—Orders that court may make on breach of bond

Currently section 58(3)(b)(i)(B) allows the court in appropriate cases to extend, by not more than 6 months, the period within which any remaining hours of community service under a bond must be performed. The amendment contemplates the court allowing a further period for the performance of community service even if the initial period within which the community service had to be performed has expired.

11—Amendment of section 70I—Court may remit or reduce pecuniary sum or make substitute orders

Section 70I deals with the powers of the Court faced with a debtor who has no means to pay a pecuniary sum. As currently constructed section 70I(3) contemplates the Court either remitting or reducing the sum, deferring payment or substituting an order for community service, disqualification or cancellation of licence. The substituted subsection provides the Court with the flexibility to divide up the pecuniary sum and deal with different amounts in different ways. This will enable the Court, for example, to impose a community service order for a portion of the pecuniary sum and defer payment of the remaining portion.

12—Amendment of section 71—Community service orders may be enforced by imprisonment

Currently, section 71(8) allows the court to convert a community service order into a fine (rather than imprisonment) on the basis that the person has the means to pay a fine without the person or his or her dependants suffering hardship only if the court is satisfied that the person's failure to comply with the order is excusable on the ground of the person's obligations to remunerated employment gained since the making of the order. The amendment removes that limitation.

Part 4—Amendment of Director of Public Prosecutions Act 1991

13—Substitution of section 6A

Section 6A currently allows the DPP to delegate to any suitable person any of the director's powers or functions under the Act. The substituted section also provides for delegation of functions or powers under any other Act. It also expressly contemplates subdelegation. This provision is subject to any Act expressly prohibiting delegation such as the Serious and Organized Crime (Unexplained Wealth) Act which expressly provides by section 37 that the Director's functions under sections 9 and 12 cannot be delegated.

Part 5—Amendment of District Court Act 1991

14—Amendment of section 32—Mediation and conciliation

Section 32(1) currently contemplates a Master appointing a mediator only with the consent of the parties. The amendment removes the requirement for consent.

Part 6—Amendment of Enforcement of Judgments Act 1991

15—Amendment of section 11—Authority to take possession of property

This is a technical restructuring of the provision allowing the sheriff to execute a warrant to take possession to ensure that the sheriff can enter land for the purposes of ejecting from the land any person who is not lawfully entitled to be on the land and use appropriate means and such force as may be reasonably necessary in the circumstances.

Part 7—Amendment of Environment, Resources and Development Court Act 1993

16—Amendment of section 29—Costs

This amendment adds to the power of the Court to make an order for costs, so that if the Court considers that a party to proceedings before the Court has engaged in misconduct, it may make an order for costs against that party in favour of any other party to the proceedings, but no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.

17—Insertion of section 40A—Custody of litigant's funds and securities

This amendment replicates a provision in the District Court Act dealing with the same matter. It includes a Treasurer's guarantee for money or security in the Court's custody in connection with proceedings.

Part 8—Amendment of Judicial Administration (Auxiliary Appointments and Powers) Act 1988

18—Amendment of section 3—Appointment of judicial auxiliaries

Section 3 enables the Governor, with the concurrence of the Chief Justice, to appoint a person to act in a specified judicial office on an auxiliary basis. The person must be eligible for appointment to the relevant judicial office on a permanent basis or so eligible except for the fact that he or she is over the age of retirement. In some cases a person is only eligible for appointment to a judicial office if the hold some other judicial office. This amendment deals with that chain to ensure that eligibility to be appointed to that other judicial office is enough.

Part 9—Amendment of Justices of the Peace Act 2005

19—Amendment of section 11—Disciplinary action, suspension and removal of justices from office

This amendment adjusts what is to happen if a justice or special justice is charged with an offence. Currently under subsection (3), the Governor may, if of the opinion that conviction of the offence would show the justice to be unfit to hold office, by notice in writing, suspend the justice from office until proceedings based on the charge have been completed. The amendment provides that in addition, in the case of a special justice, if the charge is for an offence other than an expiable offence there is an automatic suspension from office unless the Attorney-General, on application, cancels the suspension. The Attorney-General is empowered to impose conditions specifying or limiting the official powers that the special justice may exercise.

Under subsection (5) currently if a justice is convicted of an offence that, in the opinion of the Governor, shows the convicted person to be unfit to hold office as a justice, the Governor may remove the justice from office. The amendment extends this to a case where the justice is found guilty but not convicted. The amendment provides that, in addition, in the case of a special justice found guilty or convicted of an offence other than an expiable offence the special justice is automatically removed from office unless the Attorney-General, on application, reinstates the special justice. Again, the Attorney-General is empowered to impose conditions specifying or limiting the official powers that the special justice may exercise.

Part 10—Amendment of Magistrates Act 1983

20—Insertion of Part 7—Exercise of powers under Commonwealth Acts

New Part 7 allows the Governor to make an arrangement with the Governor-General of the Commonwealth in relation to the performance of functions or the exercise of powers by a magistrate under a Commonwealth Act.

Part 11—Amendment of Magistrates Court Act 1991

21—Amendment of section 3—Interpretation

Judgment is defined to include interlocutory judgment. Section 42 deals with appeals against judgments and places certain constraints on appeals against interlocutory judgments. The new definition of interlocutory judgment is designed to make it clear that an order or ruling relating to the admissibility or giving of evidence is an interlocutory judgment and as such is subject to the constraints on appeal set out in section 42(1a).

Part 12—Amendment of Supreme Court Act 1935

22—Amendment of section 65—Mediation and conciliation

Section 65(1) currently contemplates a master appointing a mediator only with the consent of the parties. The amendment removes the requirement for consent.

Part 13—Amendment of Young Offenders Act 1993

23—Amendment of section 41A—Conditional release from detention

Section 41A(2) sets out provisions that apply to the release from detention of a youth other than a recidivist young offender. The amendment adds to these provisions that an application for release of the youth from detention may be determined by the Training Centre Review Board no earlier than 7 days before completion by the youth of at least two-thirds of the period of detention in a training centre to which he or she has been sentenced. A similar provision is added in respect of a recidivist young offender (except that the period is four-fifths rather than two-thirds because that is the period that must have been completed before release).

Debate adjourned on motion of Hon. J.M.A. Lensink.

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