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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-07-17 Daily Xml
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STATUTES AMENDMENT (COURTS EFFICIENCY REFORMS) BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I think it might assist the committee if I indicate what the opposition is intending to do with its amendments. By way of introduction, I thank the Attorney for a series of exchange of letters in relation to the opposition's amendments. I indicate that our amendments find their way into five clusters or five themes. As a result of discussions with the government, I will be preferring the government's amendment to one theme, I will be withdrawing two sets of amendments in relation to another theme and I will seek the Legislative Council's support for two more themes.

On the set of amendments in relation to the right of persons to be present at proceedings, we thank the government, for example, for using a form of words that it considers workable and also, in our view, respects the legal rights of people. I think I have mentioned in previous debates that the opposition finds helpful the exchange of letters approach that the Attorney-General has adopted recently.

I do not want to sound double-handed, but there is one expression of caution, which is that we have had a very late set of amendments. Considering the long gestation period of this bill, that is the only disappointment we have in the handling of this bill. We look forward to the consideration of the two sets of amendments. For those members who have running sheets, amendment No. 1 and its related amendments, and amendment No. 14 and its related amendments are the only amendments that the opposition proposes to move. We will be supporting the government's amendment, set No. 1, amendment No. 1, in relation to the right of persons to be present at proceedings.

Clause passed.

Clauses 2 to 8 passed.

Clause 9.

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

Page 4, lines 20 to 22—

Delete all words after 'by this Part' and substitute:

—

(a) do not apply in relation to the sentencing of a person following the commencement of this Part if the proceedings for the relevant offence were commenced before that commencement (and such sentencing is to occur as if this Act had not been enacted); and

(b) apply in relation to the sentencing of a person following the commencement of this Part (including the sentencing of a person for an offence that occurred before that commencement) if the proceedings for the relevant offence were commenced on or after that commencement.

This is the first of a series of amendments that seek to ensure that the bill does not apply retrospectively. It is a key principle of good legislative practice that new laws should apply prospectively only. Individuals should be able to be confident that if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed. To put it in Rundle Mall talk, it is not fair to move the goalposts.

The government says that retrospectivity is less relevant in this context because it is a procedural matter. It is true that retrospectivity is less relevant in procedural matters but we assert that it is wrong to construe these amendments as merely procedural. We should be particularly careful when it comes to making retrospective law in the criminal jurisdiction.

While the bill does not change the criminal law per se, it does change how criminal cases are managed. They mention a case involving an alleged offence that has a maximum sentence of between two and five years that is committed before the passing of this bill. That person is pleading not guilty and expects a trial by jury. Instead, by virtue of the changes proposed in this bill, that person would be tried by a single magistrate and, instead of the case being dealt with by the prosecutors from the Office of the DPP, the case is prosecuted by police prosecutors. The trial may have just been about to commence and then suddenly the nature of the trial changes. In a letter to me dated 28 April 2012, the Attorney-General stated:

Defendants may in fact benefit from the provisions in the Bill amendments operating from commencement of the Act in that a defendant charged with a major indictable offence already before the Magistrates Court may be entitled to have their matter resolved in entirety in the Magistrates Court rather than being committed to the District Court.

I stress the key words there: 'defendants may in fact benefit'. It is clear from the Attorney's comments that the retrospective provisions will in fact have an impact on cases in the courts. He asserts that the impact may be beneficial to the defendant. The fact is it may not be. Nobody can complain that they are being dealt with by rules today that applied yesterday or even that they are not to be the beneficiary of future law changes, but they have every right to complain if law changes cause detriment to them retrospectively. The Australian Lawyers Alliance (ALA) expressed a strong opposition to the retrospective provisions in this bill, saying:

None of the amendments should be retrospective in relation to any aspect. The law applicable at the time of the event occurring should apply. Retrospectivity is not appropriate...we see no reason to depart from the long standing principle.

Australian Lawyers Alliance go on to disagree with the government's advice and the drafting of the bill that states that some of the changes are procedural, not substantive. The ALA is firmly of the view that the changes are indeed substantive. I urge the council to respect the good legislative practice against retrospectivity. We should only allow retrospectivity where the fundamental policy goal would otherwise be at risk.

There has to be a very compelling reason for retrospective provisions to be adopted. The government has not provided any compelling reasons. I seek the support of members for this amendment and the related amendments.

The Hon. G.E. GAGO: The government opposes this amendment. The amendment is part of a group of amendments relating to the transitional provisions in the bill, and I will deal with the government's position and the Hon. Mr Wade's amendments on this issue as a group.

It is unclear why the operation of the bill amendments should be linked to the commencement proceedings. This amendment is likely to cause significant disruption to proceedings in the Magistrates Court should the court be required to apply different procedures pre and post amendment to criminal matters before the court. The date of the commencement of proceedings may not always be readily ascertainable on the spot or agreed between the parties and may result in adjournments, delaying and the finalisation of the matter while this is being resolved. The addition of further charges after initial proceedings were commenced would also cause confusion, leading to wasted time before the court. The effect of this amendment would simply be unworkable in practice in a busy criminal court.

The amendments in the bill are to be considered procedural. It is a long and well-established principle restated by the High Court in the matter of Rodway v R (1990) HCA 19, and there is no presumption against retrospectivity in the case of statute which affects matters of procedure. Procedural amendments ordinarily take immediate effect.

Defendants already before the court are unlikely to be disadvantaged by the transitional provisions in the bill as the defendant may be able to have the matter resolved in its entirety in the Magistrates Court rather than be committed for sentence to the District Court. The magistrate determines that the defendant should be sentenced to a term of imprisonment exceeding two years. It is for these reasons that the government opposes this amendment.

The Hon. M. PARNELL: The Greens will be supporting this amendment. We are also inclined to give credit to the submission from the Australian Lawyers Alliance; I will not read that paragraph again. In relation to the minister's reference to High Court decisions, I think there is a presumption that we avoid retrospectivity as much as we can. There are exceptions to that principle, and one of those exceptions would be if something was entirely procedural, and I think therein lies the nub of the dispute.

As a number of lawyers have said to me, this is not just procedural; it is substantive. If it is substantive, and I am happy to accept that it is, retrospectivity has no place. In any event, once a certain period has passed, these provisions will not really have much work to do; it is really just of a transitional nature. Our general opposition against retrospectivity will prevail in this case. We see no reason not to support these amendments.

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

The Hon. A. BRESSINGTON: I will be supporting the opposition's amendment as well.

Amendment carried; clause as amended passed.

Progress reported; committee to sit again.

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