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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-07-20 Daily Xml
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STATUTES AMENDMENT (COURTS EFFICIENCY REFORMS) BILL

Committee Stage

In committee.

(Continued from 17 July 2012.)

Clause 10 passed.

Clause 11.

The Hon. S.G. WADE: Perhaps we should consult across the chamber. I understand that this is the clause where the government has an alternative amendment, which the opposition prefers. If that is the understanding of the government, I would suggest the government move its amendment.

The Hon. G.E. GAGO: I move:

Page 5, after line 8 [clause 11(1)]—After subsection (1a) insert:

(1b) However, subsection (1a) does not apply if the Court determines, on its own initiative or on application by the appellant, that the appellant should be physically present in the courtroom.

This amendment is proposed as a compromise to [Wade-3] 3, as filed by the Hon. Mr Wade. The Hon. Mr Wade has filed an amendment to the proposed new section 361(1a) of the Criminal Law Consolidation Act 1935 to insert that the appellant would have 28 days from being notified of the date of proceedings to object to the use of an audiovisual link. While the bill amendment to section 361(1a) as drafted will not restrict the ability for the court to allow or direct that the appellant be brought to the court in circumstances where the court considers that it is warranted, the government appreciates the opposition's intention with [Wade-3] 3, and has taken steps to address the concern.

The opposition's amendment would create difficulty for the court as there will not always be a period of 28 days between an appellant being notified of the date of proceedings to the hearing of the appeal itself. If a vacancy in the listings is available, the time period may be shorter. The government does not wish to interfere with the flexibility of the courts listing process for appeals or provide a different process for the applications for appearance at appeals that applies to other audiovisual link appearances.

The government has consulted with the Registrar of the Supreme Court. He would prefer that any legislation for audiovisual link appearance in appeals allows for the same procedure as is used for other audiovisual link appearances. Currently, a prisoner who wishes to object to the use of an audiovisual link has to file a notice of objection at least three days before the hearing, and this is provided for in the Supreme Court Criminal Appeal Rules 1996 and the Supreme Court Criminal Rules 1992, where a judge decides the objection.

The government therefore proposes to insert a new section 361(1b) into the Criminal Law Consolidation Act 1935 to expressly provide that the court may determine, on its own initiative or on application of the appellant, that the appellant should be physically present in the courtroom. The Supreme Court rules may provide for the processes and time frames for the appellant's objecting to appearances via audiovisual link for the hearing of an appeal and can be made consistent with the existing processes in place for similar applications. In such cases, the appeal can be listed when a custody courtroom is available, and that would be a matter for the court.

The Hon. S.G. WADE: I thank the Attorney-General, through the minister, for working through the issues involved. We appreciate the compromise that has been put forward by the government and are happy to rely on the courts to respect the rights of individuals to be physically present in courtrooms in proceedings relating to them.

Amendment carried.

The Hon. S.G. WADE: I have no further amendments to clause 11.

Clause as amended passed.

Clauses 12 to 15 passed.

Clause 16.

The Hon. R.L. BROKENSHIRE: In putting the question to the minister, I would like to place on the record my appreciation of one of the parliamentary counsel officers who drafted this legislation and, indeed, the ICAC legislation, a very difficult legislation, and that is Christine Swift. She has done a lot for me over many years and I commend her for her excellent work as parliamentary counsel for a very long period of time. Having said that, I have full confidence in the drafting but I have a question for the minister. Can the minister assure the committee that this will make a difference to community service orders from the point of view of people actually carrying them out or copping the penalty for not carrying them out, because most of the community are very frustrated at the amount of community service orders in this state that are not carried out?

Clause passed.

Clause 17.

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

Page 7, lines 14 to 16 [clause 17(2)]—Delete all words after 'section 14' and substitute:

—

(a) do not apply in relation to the sentencing of a person by the Magistrates Court 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 by the Magistrates Court 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.

My understanding is that this is consequential to the earlier amendments relating to removing retrospectivity.

The Hon. G.E. GAGO: This amendment is similar in principle to amendment [Wade-3] 1 and is opposed. The government considers the bill amendment to be procedural in nature and a long-established exception to the presumption against retrospective operation. Provisions affecting the scope of the jurisdiction of a court have previously been found by courts to be procedural, as stated by the High Court in Rodway. A person who commits a crime does not have the right to be tried in any particular way, merely a right to be tried according to the practice and procedure prevailing at the time of the trial.

The amendment bill to section 19 does not affect any existing rights of a defendant. A defendant already before the Magistrates Court where the offence charged carries a maximum penalty above two years could not have been in expectation of only receiving up to a maximum of two years' imprisonment. Currently, if the court determines that a person found guilty of an offence should be sentenced to a term of imprisonment that exceeds the limit in section 19(3), the court may remand the person to the District Court for sentence. In the District Court a much higher penalty may be imposed, up to a maximum penalty set for the offence.

The Supreme Court has made it clear that the maximum set by section 19 imposes a limitation on the court's power to imprison and not a limitation on the appropriate penalty for the offence. In all cases the court is bound to impose a penalty which, having regard to the maximum penalty set by parliament by the factors specified in section 10 of the sentencing act and other relevant sentencing provisional guidelines, is appropriate to the offence in question.

The government reiterates its concern that the opposition's amendments to the transitional provisions requiring the court to apply different procedures pre and post amendment to criminal matters before the court are likely to cause significant disruption and confusion in proceedings before the Magistrates Court and lead to delays in the finalisation of matters.

The Hon. S.G. WADE: I am surprised to see the government not treating this as a consequential matter. On a couple of points the minister just raised in her most recent comments, she quoted a court in relation to the principle of retrospectivity applying differently in relational procedural matters. That is an issue that was canvassed in this council when we considered [Wade-3] 1, on the basis of which I assert that this is consequential.

The council was persuaded at that time that, whilst procedural matters are more likely to be retrospective provisions that the parliament is likely to tolerate, we had before us, and I quoted from, very strong advice, particularly from Mr Kerin of the Australian Lawyers Alliance—and I think the Hon. Mr Parnell might have quoted from another lawyer. Both Mr Kerin and Mr Parnell's constituent asserted that it was wrong to characterise these particular provisions as procedural. I would urge the council to maintain its position and that in relation to this legislation at least the parliament considers good law is not retrospective law.

The Hon. M. PARNELL: The Greens will be supporting this amendment. I think the Hon. Stephen Wade is correct. It is consequential to the amendment that the Legislative Council has already passed. We believe that this redresses the retrospective issue and as a result we will be supporting it.

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

The Hon. D.G.E. HOOD: I think clearly this amendment is consequential. We did not support it last time and we will not this time, but I think the numbers will prevail.

The Hon. K.L. VINCENT: Support.

The Hon. A. BRESSINGTON: Support.

Amendment carried; clause as amended passed.

Clauses 18 and 19 passed.

New clauses 19A and 19B.

The Hon. G.E. GAGO: I move:

New Part, page 7, after line 28—After Part 6 insert:

Part 6A—Amendment of Magistrates Act 1983

19A—Amendment of section 6—Appointment to administrative offices in magistracy

(1) Section 6—after subsection (2) insert:

(2a) A person is not eligible for appointment as the Chief Magistrate unless he or she is a legal practitioner of at least 7 years standing.

(2b) For the purpose of determining whether a legal practitioner has the standing necessary for appointment as the Chief Magistrate, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account.

(2) Section 6(3)—delete 'the Chief Magistrate or'

(3) Section 6(4)—delete 'shall' and substitute:

(other than an appointment as the Chief Magistrate) will

19B—Insertion of section 6A

After section 6 insert:

6A—Chief Magistrate to be magistrate and District Court Judge

(1) The Chief Magistrate will be taken to have been appointed as a magistrate and as a Judge of the District Court of South Australia (if he or she is not already a magistrate or a Judge of the District Court of South Australia).

(2) Section 6 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 applies to the Chief Magistrate and, for that purpose, the office of Judge of the District Court of South Australia will be taken to be the primary judicial office of the Chief Magistrate and service as Chief Magistrate will be regarded as if it were service as a Judge of the District Court of South Australia.

(3) However, the Chief Magistrate may resign from the office of Judge of the District Court of South Australia and from the office of the Chief Magistrate without simultaneously resigning from office as a magistrate and such a resignation will not give rise to any right to pension, retirement leave or other similar benefit.

(4) The Governor may, by regulation, make provisions relating to existing entitlements, and recognition of prior service, of the person holding the office of the Chief Magistrate on the commencement of this section or a person appointed to the office after that commencement, including by making modifications to the application of an Act that deals with superannuation or pensions.

Long title—After 'the Domestic Partners Property Act 1996, ' insert:

the Magistrates Act 1983,

This amendment will insert a new section 6A into the Magistrates Act 1983. The effect of proposed new section 6A is to provide that the Chief Magistrate is, upon appointment to the office of the Chief Magistrate, also appointed as a District Court judge. The current Chief Magistrate would become a District Court judge on commencement of the proposed new section 6A.

It is also proposed to amend section 6 to lift the period of legal practice necessary for the qualification as Chief Magistrate to at least seven years, in line with the requirement for appointment as a District Court judge. The government is of the view that the responsibilities and workload of the position of the Chief Magistrate are such that the holder should be entitled to the status and conditions of a District Court judge.

The Hon. S.G. WADE: I have a series of questions on this clause but, by way of preface, I put on the record the request that the opposition has made to the government and to crossbench colleagues. The opposition will be seeking a commitment from the government that, at the end of the committee stage, progress will be reported. We will also be seeking a commitment from the government that an opportunity will be given to members of the council to raise any issues in relation to this clause when the matter is next considered on the next sitting day.

The context of that is the lateness of the amendments. The Attorney-General wrote a letter to me dated 9 July, received on 10 July. The day of 9 July was actually the last joint party room sitting meeting of the Liberal opposition. I appreciate that other crossbench MPs have different processes according to their nature, but the Liberal Party does rely heavily on its collective wisdom. Perhaps we do not have the capacities of some of our crossbench colleagues to cover the field, but I am very humble. I always look forward to the wisdom that is conveyed in joint party room meetings. I should stress that we were given notice of those amendments after our last joint party room meeting, but they were not tabled until 16 July and here we are debating them on 20 July.

I stress that we do not have any immediate concerns. The government makes a civilised argument, but we think that it is our duty as legislators to take what opportunities we can to consult both within our party and also with the wider community. It has not been possible to do what we would normally do in terms of consultation on important matters such as this—matters which, I stress, are important because they relate to the judiciary. Considering the separation of powers, we need to be particularly respectful when we are affecting the rights and entitlements of members of the judiciary and the structure of courts.

We appreciate the government is eager to continue with its legislative program, but considering that the House of Assembly adjourned on Wednesday until 4 September and considering that completion of the committee stage with merely the possibility of recommittal will not unduly delay the progress of this bill, I must say I thought it was bizarre for the Attorney-General on this morning's radio to indicate that the non-government elements in the parliament were delaying the progress of this bill. It has not been a priority for the government. They are responsible for its progress through this parliament, not us.

In fact, let us be clear: we have actually urged the government to not postpone its further consideration until later in the year. This is not a move to delay consideration. We are very happy to consider the issues and, if you like, to let it stand in the bill and confirm that enactment when we return. We appreciate we have work to do this afternoon; let us get on with it. I will start asking my questions. I ask the government: who was consulted about this particular amendment?

The Hon. G.E. GAGO: Firstly, I just want to put on the record that the government has given a commitment not to proceed to the third reading stage of this bill today. We have already given that commitment. In relation to the consultation, I have been advised that discussions occurred between the Attorney-General and the Chief Justice and Chief Judge.

The Hon. S.G. WADE: I do not thank the minister for her commitment because that is not the commitment I was seeking. The government postponing the third reading stage to the next day of sitting would not give the committee an opportunity to recommit a clause. So, before I further progress to questions, I seek a commitment from the government to report progress at the conclusion of the committee stage and not finalise the committee stage of this bill today.

The Hon. G.E. GAGO: The honourable member is being completely pedantic about this. The government gave a commitment earlier today to progress this bill as far as honourable members were prepared to go. I gave an indication that we would definitely not be progressing until the third reading and that we would be progressing the bill as far as honourable members willed it to go. That commitment was given, and the honourable member is just being completely pedantic about this. Does he want it in blood?

Members interjecting:

The CHAIR: Order!

Members interjecting:

The CHAIR: We will get on with the amendments and leave the politics out of it.

The Hon. D.W. Ridgway: The minister is obviously tired.

The CHAIR: The minister has given a commitment that they will go as far as honourable members want. You cannot do much more than that. The opposition are not the only people inside these walls.

The Hon. S.G. WADE: I would like to make it clear that, contrary to suggestions, I am not playing politics. All I am seeking to do is to maintain my rights as a parliamentarian to consider a bill. I have indicated to the government that I have no intention to let this bill go to the end of the second reading stage. Honourable members will, as you say, consider that at the time. I think it is far from fair to say that maintaining my rights to consider a bill is playing politics. Minister, how will this clause impact on the salary and conditions of the Chief Magistrate?

The Hon. G.E. GAGO: I have been advised that it is likely to result in a salary increase of about $20,000.

The Hon. S.G. WADE: Can I ask about the other conditions of the Chief Magistrate?

The Hon. D.G.E. HOOD: I have a supplementary question to the Hon. Mr Wade's question. May I just add on?

The CHAIR: The Hon. Mr Hood.

The Hon. D.G.E. HOOD: Thank you, Mr Chairman. Specifically, minister, does the Chief Magistrate then qualify for a so-called judge's pension?

The Hon. G.E. GAGO: I have been advised that, no, not necessarily automatically. It would depend on whether they met the criteria in the Judges' Pensions Act, and there are time specifications around that, so they would have to fulfil those. I am also advised that other District Court conditions would also apply in these circumstances.

The Hon. S.G. WADE: I have a supplementary to the Hon. Mr Hood's supplementary. Does the application of the judicial pensions act to the Chief Magistrate apply in the same way as it would apply to any other District Court judge?

The Hon. G.E. GAGO: I am advised: yes, that is correct.

The Hon. S.G. WADE: Given that the Chief Magistrate will be taken to be both a magistrate and a judge and the retirement age for judges is 70 and the retirement age for magistrates is 65, what retirement age will apply to the Chief Magistrate?

The Hon. G.E. GAGO: I am advised: 70.

The Hon. S.G. WADE: Given that the Chief Magistrate's status as a judge will be taken to be their primary judicial office, will they be answerable to the Chief Judge?

The Hon. G.E. GAGO: I am advised: yes.

The Hon. S.G. WADE: So the Chief Magistrate will be answerable to the Chief Judge in relation to all matters, or only matters in relation to District Court matters?

The Hon. G.E. GAGO: I am advised: just District Court matters.

The Hon. S.G. WADE: Is the government considering any other changes to the retirement age for magistrates?

The Hon. G.E. GAGO: Not that I am aware of.

The Hon. S.G. WADE: I would ask the minister to take that on notice because it is not consistent with an answer that the Attorney-General gave in estimates. If she could take that on notice, it would be appreciated. The opposition would appreciate an update on progress in the government's consideration of the change of retirement age of magistrates. Is the government intending to introduce any other reforms to change the relationship between the District Court and the Magistrates Court?

The Hon. G.E. GAGO: Not that I am aware, but I am happy to take it on notice.

The Hon. S.G. WADE: Is the government aware of any other arrangements in similar courts in other states and territories where the Chief Magistrate is also a member of the relevant court similar to our District Court?

The Hon. G.E. GAGO: I am advised: yes, New South Wales and Queensland.

The Hon. M. PARNELL: I thought I might put the Greens' views on the record in relation to these amendments. First, we have no reason not to support them but we are supportive of the approach that the shadow attorney-general put forward, which is that, out of an abundance of caution, if we were able to report progress at clause 43, being the last clause in the bill, it would make sense.

We have not had the opportunity to get any feedback from constituents. At face value, it seems to make sense that the Chief Magistrate should be on an equivalent ranking to a District Court judge in the judicial pecking order. There may well be some unintended consequences that none of us have had the opportunity to explore yet, so we will be supporting this amendment at this stage and I think if we adopt the approach the shadow attorney-general suggested earlier we will be adding no more than one minute, maximum, to the time it takes for this legislation to eventually pass when we come back in September.

The Hon. R.I. LUCAS: I support the comments that have been made in relation to this provision. Being a natural-born cynic, I advise that the recent addition to the magistracy of one Nick Alexandrides has led me to be cautious in terms of what this change might be entailing. Is it the government's intention, with these changes, for the Chief Magistrate's prior service to be retrospectively applied to the judicial pension?

The Hon. G.E. GAGO: We are advised that it is currently not considered a service for those purposes and there are no amendments within this bill proposing any change to that.

The Hon. R.I. LUCAS: Just to clarify the minister's advice: when and if this bill passes the parliament and is proclaimed, the issues in relation to eligibility for the judicial pension will start from that day onwards for the person holding the position and only service from the day onwards when this act commences will count as eligibility towards a judicial pension?

The Hon. G.E. GAGO: I am advised that, yes, that is correct.

New clauses inserted.

Clause 20.

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

Page 7—

Line 35 [clause 20(2)]—Delete '$12,000' and substitute '$25,000'

Line 38 [clause 20(3)]—Delete '$12,000' and substitute '$25,000'

These amendments were first proposed by the member for Norwood, Steven Marshall, in the other place on 28 July 2011; that is almost a year ago. They were put forward in that place in the form of a private member's bill. The opposition welcomes the fact that the government is addressing the issue of what is a highly out-of-date threshold but believes that we have not gone far enough.

The jurisdiction of the minor civil division of the Magistrates Court currently stands at $6,000 for small claims; it has not been increased since 1991. When a proposal was put forward by the member for Norwood in the other place, the government opposed the change. The threshold proposed in this amendment is $25,000, which is the same as the Queensland jurisdiction. Queensland is the latest state to update its threshold, and the opposition believes that the same threshold is warranted for South Australia.

Legal costs have more than doubled over the last 10 years, as was reported in The Advertiser on Monday of this week. Over the same period, general costs have increased by only a third. There is growing concern in the community at the narrowing access to justice. The Thinker in Residence Judge Peggy Hora recommended that the jurisdiction of the small claims court be increased, saying that:

Where there is dispute involving a large sum of money (over $5,000)...only the wealthy or corporate bodies can afford to have it resolved in a court of law.

Realistically, someone with a claim under $50,000 is unlikely to find private counsel to represent him or her. This may mean that people have to represent themselves or reduce their claim in order to fit within the small claim limits. Making the process open and understandable could better support self-represented litigants.

As Judge Peggy Hora highlights, we could well have looked to increase the jurisdiction even higher, double in fact what we are proposing, so that justice was accessible and affordable but instead we have taken a more modest approach. The benefit for reform is clear: it would free up resources for the magistrates court general division and reduce the backlog of proceedings. Secondly, it would ensure that claimants would be able to save money when resolving small disputes such as minor contractual disagreements between small business and conflicts within families. We believe that $25,000 is a sensible increase that will ensure justice is accessible for individuals and small businesses.

The government has expressed concerns that the proposed threshold is too high. It reminds me of the government's attitude to the Victims of Crime Fund which, again, has capped compensation payments of $50,000 with no increase since 1990. The government is more than two decades out of date on both these limits. It is a typical response for a government that has little regard for the justice system for small business and for victims. I urge members to support this common-sense increase in jurisdiction for the minor civil division to the benefit of small business, families and individuals.

The Hon. G.E. GAGO: The government opposes this amendment. The small claims limit has already been doubled by the bill amendment. The $12,000 figure provided in the bill was arrived at in consultation with the Chief Magistrate. The $25,000 claim is likely to be a matter of greater complexity than the small claims jurisdiction was designed to deal with. The small claims jurisdiction should not be overloaded with long and complicated matters which could lead to delays in people with smaller claims—which are obviously better suited to the jurisdiction—having their matters heard. Increasing the threshold to $25,000 is a substantial increase to the current jurisdiction and could have marked workload implications for the court.

Usually in a small claim, parties are not entitled to legal representation. Matters involving unrepresented parties can add an additional burden on the court and this could be exacerbated by dealing with more complex trials in a more informal setting. The Courts Administration Authority has advised that an increase to $25,000 would also impact on the workload of court registrars dealing with minor civil claim directions hearings, with an increase in the number of matters listed. Obviously, we do not wish to overload the work of the small claims jurisdiction and undermine its effectiveness. In most other states, small claims jurisdictions are limited to claims of $10,000—Queensland is the only jurisdiction with a small claims jurisdiction of up to $25,000.

The Hon. M. PARNELL: This amendment is one that I have discussed with the original mover, being the member for Norwood, but I have also had some correspondence which suggests that it is actually not the way to go. What we have to balance here are two things: we have the cost of justice and, really what we are talking about is the cost of employing lawyers to help you with your case—that is the biggest part of the cost of justice—and you also have the question of fairness, where you do not want people who are unrepresented up against people who are effectively lawyers or pseudo lawyers, so that is the balancing act.

The question is: where do we draw the line? Below what limit do you go along and represent yourself with lawyers being banned and what should the limit be for the normal rules where you have lawyers? Certainly, the Australian Lawyers Alliance has said that the $25,000 limit is too high.

The Hon. D.G.E. Hood: There's a shock!

The Hon. M. PARNELL: The Hon. Dennis Hood interjects and says, 'There's a shock.' I think it is an easy call to make, that lawyers will always support anything that involves lawyers being part of the action but I do think that the Australian Lawyers Alliance makes a point. In saying that the proposed $25,000 limit is too high for minor civil claims, in their letter to the Hon. Stephen Wade of 16 May, in fact, they go on to outline the experience of their Queensland members.

What they say is that that experience shows that, where you have a higher limit and you have 'frequent fliers', for want of a better word, they do manage to develop a fair amount of in-house expertise so, effectively, you are up against lawyers, even though they might not be officially qualified as such.

The Australian Lawyers Alliance refers to them as 'sophisticated claims officers and representatives'. What they say is that, even with lower amounts, people are probably going to have to get some legal advice anyway. So, really, the question is: is it enough for the state government to have doubled the jurisdictional limit for the small claims jurisdiction from six to 12 or should it be quadrupled to 25?

On balance, the Greens' view is that Queensland is an outlier. Their jurisdictional limit is far higher than the other states. We are happy for the jurisdictional limit to be doubled to $12,000, but we think it is going to a little far to put it to $25,000 given that we do not have a great deal of experience other than the Queensland experience, which appears to have some negative implications, so we will not be supporting this particular amendment.

The Hon. D.G.E. HOOD: Family First will be supporting the amendment. We believe that $25,000 is a reasonable amount of money as do, apparently, the legislators in Queensland under which people defend themselves, but the real issue is that the extremely high costs of being represented in court is absolutely unaffordable for most people—even people on what may be regarded as reasonably good incomes—and $25,000 in the scheme of things today is not an enormous amount of money. It is a modest new car, perhaps, and barely that.

I think the Hon. Mark Parnell made the arguments well. My only disagreement with him is where that line should be drawn and, in the case of Queensland, they have said $25,000. I think the problem we have—and I have raised this matter in this place before—is that, for whatever reason, we do not index the amounts that are put into legislation. If we did index these, we would not need to constantly come back to change the amounts on an ongoing basis. Anyway, we could talk about this for a long time. At the end of the day it comes down to whether or not you think that is about the right place where the limit should be drawn and, in this case, we do.

The Hon. S.G. WADE: I would like to respond to the comments of the Hon. Mark Parnell. He indicated that there was a risk of a disparity of justice in increasing the threshold. I would remind members that section 38(4) of the Magistrates Court Act provides:

(4) The following provisions govern representation in minor civil actions:

(a) representation of a party by a legal practitioner will not be permitted unless—

I pause to stress 'unless'—

(i) another party to the action is a legal practitioner; or

(ii) all parties to the action agree; or

(iii) the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;

It goes on to make a series of other exemptions. The legislation is already structured to facilitate legal representation if it is necessary in the interests of justice. I remind honourable members, too, that this court is somewhat special in our judicial system, in that it is one of the inquisitorial courts, rather than adversarial courts. Again, I would remind honourable members of section 38(1) which provides that:

(a) the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;

(b) the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;

It goes on to provide that the court may examine witnesses and so forth. It is an inquisitorial court; there is much less need for judges. When Judge Peggy Hora, the government's own adviser on justice issues, says that you cannot get a lawyer for less than $50,000, what the opposition is proposing to do is to reduce the gap of injustice. Instead of being a gap between $12,000 and $50,000, we are only talking about a gap between $25,000 and $50,000.

The Hon. M. PARNELL: I have a question of the mover of this amendment. He referred to the Magistrates Court Act, which effectively said that if it is not going to be fair then it is possible for someone to get a lawyer, but the test is that both parties have to agree or you have to convince the judge that the unfairness is of such a nature that you should be able to have your lawyer there.

My question of the mover is: is he aware of the experience in Queensland and is he aware of whether unrepresented litigants have successfully been able to convince the claims management agents or the magistrates that they should have a lawyer, because the person they are opposing in court is someone who is in there every single day and has a great deal of expertise? Is there any evidence that they have a similar provision in Queensland, firstly; and, secondly, are people finding that they are able to make a special case for being entitled to a lawyer notwithstanding that the default position is self-representation?

The Hon. S.G. WADE: I am not aware of the details of the Magistrates Court Act or the relevant act in Queensland. I think the point the Hon. Mark Parnell raises in terms of observing the development of a jurisdiction as threshold changes are made is a very valid one, but the government and the parliament will need to be on alert, whether we double it from six to 12 or whether we quadruple it to 25. I do not know what the provisions in Queensland are. It may be that we need to come back as we see the impact on the thresholds flushing through.

The fact is this bill and the Attorney-General's portfolio bills before it are a reflection of the lived experiences of the court on a day-to-day basis. I have received the letter that the honourable member referred to from the Australian Lawyers Alliance, but I have not been receiving representations that people do not feel they are getting justice from our small claims jurisdiction at this stage, and this is the legislation they are working with.

The committee divided on the amendments:

AYES (12)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
NOES (9)
Finnigan, B.V. Franks, T.A. Gago, G.E. (teller)
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Wortley, R.P. Zollo, C.

Majority of 3 for the ayes.

Amendments thus carried; clause as amended passed.

Clauses 21 to 22 passed.

Clause 23.

The Hon. A. BRESSINGTON: Unlike other clauses in the bill, which seek solely to expand the role of magistrates, this clause also seeks to remove the right to appeal a sentence imposed by a magistrate for a major indictable offence, and instead an appellant must seek the permission of the full bench of the Supreme Court, and that is special leave to appeal.

I seek the minister's explanation as to why such sentences have been singled out for the requirement for special leave regardless of the grounds for appeal. My reading of section 352 in the Criminal Law Consolidation Act is that an appellant has the right of appeal without the requirement to seek leave on a point of law and only requires leave on other grounds. In answering, can the minister also try to clarify where else an appellant is required to have special leave before being able to appeal regardless of the grounds, other than to the High Court, of course?

The Hon. G.E. GAGO: I have been advised, in respect of this provision, that consultation occurred with a number of interested parties, including the DPP, the Crown Solicitor, the Law Society and a number of others. In respect of your other questions, they are fairly detailed and it is probably easier if we take those on notice and bring back those levels of detail in one go.

Clause passed.

Clause 24.

The Hon. S.G. WADE: I imagine I am about to ask the same question that the Hon. Ann Bressington is about to ask. Considering that we are in the latter stages of the bill, when exactly does the minister intend to come back with those answers? I just want to stress that I think all members of the council are interested in the answers to the Hon. Ann Bressington's questions, not just the asker.

The CHAIR: I understand that the minister indicated that we were going to adjourn at some stage, at the wishes of the council; she indicated that earlier. I would imagine that when we come back the answers will be provided.

The Hon. A. BRESSINGTON: If the minister comes back with the answers to the questions, and members do not see that that is appropriate and see the need to draft an amendment, would we be able to recommit this clause?

The CHAIR: Yes.

The Hon. G.E. GAGO: I think numerous briefings have been offered in relation to this; it has been on the table for some time and there were ample opportunities for members to raise specific and very detailed questions on a number of occasions. I find it fascinating that now, at the eleventh hour, members are clamouring for recommittals and all sorts of things. That is their right, if they want to recommit they can, that is available to them.

There have been ample opportunities, particularly in relation to this matter, for members to have raised questions. Briefings have been offered on numerous occasions. The Attorney-General's Office has bent over backwards in terms of providing assistance of additional information and, wherever possible, cooperating to find mutual positions. I just find it remarkable that this level of clamouring is going on at this eleventh hour.

The Hon. S.G. WADE: My comments are in response to the minister's comments.

Members interjecting:

The Hon. S.G. WADE: No, honestly, how can—

The CHAIR: That's okay. Don't be upset by the interjections from the government side. I'm not.

The Hon. S.G. WADE: How can she claim that this government is lily white about proper consideration of amendments to this bill when we have had two pages of amendments tabled four days ago? That is my first point. My second point is: has the minister ever sat in this parliament when we have had detailed questioning on bills? It is all well and good to get the advice of a minister's adviser in the informality of a ministerial briefing; it is another thing altogether to get a government to put on record what it intends for the legislation. I commend the Hon. Ann Bressington for doing her job as a parliamentarian.

In relation to the government's bullyboy tactics, trying to push this through, I think it is hardly surprising that this parliament is sensitive considering the way that it was treated in relation to graffiti legislation. I warn the government that it is going to have a much more cautious opposition, a much more cautious crossbench, after some of the recent displays from the government.

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

Page 8, lines 30 and 31 [clause 24(2)]—

Delete 'whether the relevant offence occurred before or after that commencement' and substitute:

(including the sentencing of a person for an offence that occurred before that commencement) only if the proceedings for the relevant offence were commenced on or after that commencement

I regard it as consequential to [Wade-3] 1. I seek the support of the council.

Amendment carried; clause as amended passed.

Clauses 25 to 37 passed.

Clause 38.

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

Page 11, lines 26 to 29 [clause 38(2)]—

Delete all words after 'sections 33, 34 and 35' and substitute:

—

(a) do not apply in respect of the procedure to be followed after the commencement of this Part in proceedings commenced before that commencement (and such proceedings are to proceed as if this Act had not been enacted); and

(b) apply in respect of the procedure to be followed in proceedings commenced after that commencement.

I believe it is consequential to [Wade-3] 1 and I seek the support of the council.

Amendment carried; clause as amended passed.

Clauses 39 to 42 passed.

Clause 43.

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

Page 12, line 22—

Delete 'whether the relevant offence occurred before or after that commencement' and substitute:

(including the sentencing of a person for an offence that occurred before that commencement) only if the proceedings for the relevant offence were commenced on or after that commencement

As members would have noticed, this is the last clause in the bill; my understanding is that it is the last clause in the bill. It was suggested by the Hon. Mr Parnell that this might be an appropriate place to report progress. I aim advised by the Clerk that—

The CHAIR: Good advice, too, I might add.

The Hon. S.G. WADE: And the Chair. Given I am anticipating further consideration of an amended clause, it would provide more flexibility if we complete the committee stage and the opposition, depending on the research and consultation we undertake, may be seeking recommittal of the second reading at the next day of sitting. In that context, I am mindful of the fact the Hon. Ann Bressington will have questions outstanding, so I seek clarification from the Chair whether, if the bill was recommitted, that would also allow the minister to provide answers to the honourable member's questions. I believe this amendment is consequential to [Wade-3] 1 and I seek the support of the council.

The Hon. G.E. GAGO: It is consequential.

Amendment carried; clause as amended passed.

Long title.

The Hon. G.E. GAGO: I move:

Long title—After 'the Domestic Partners Property Act 1996,' insert 'the Magistrates Act 1983,'

Amendment carried; long title as amended passed.

Bill reported with amendment.

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