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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-18 Daily Xml
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STATUTES AMENDMENT AND REPEAL (BUDGET 2012) BILL

Final Stages

Consideration in committee of the House of Assembly's message.

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

That the council do not insist on its amendment.

It was evident, after the failure of section 189A to pass through the upper house in 2011, that costs against police in summary courts was a contentious issue. However, as costs were substantially impacting on the SAPOL budget an attempt to limit costs in summary courts was again made in 2012. The proposed legislation in the Statutes Amendment and Repeal (Budget 2012) Bill 2012 is different from the 2011 proposal. The 2012 drafting was designed to limit costs that could be awarded against any prosecuting authority relating to indictable offences only, both minor indictable and major indictable.

It was primarily drafted as a budget measure to address the anomaly where costs are not imposed against the prosecution in superior courts on both minor and major indictable offences, however, costs could be imposed on the same offences in summary courts. Minor indictable offences are heard and determined in summary courts, however, if the defendant elects to be tried before a jury the minor indictable offences are determined in a superior court. Costs against police on indictable offences are not banned by the proposed legislation.

To ameliorate concerns raised by members in the upper house in 2011, the draft of 2012 does not exclude costs being awarded against a prosecuting authority on summary offences or expiable offences. The 2012 proposal will also continue to allow costs to be awarded against police prosecution in the summary courts on any indictable offences if a delay in court proceedings is through the neglect or incompetence of the prosecutor or the prosecution has unreasonably obstructed the proceedings.

The Hon. S.G. WADE: I thank the minister for her comments. In response, I would say that in terms of ameliorating our concerns relating to this provision in the bill, it is actually not possible. One of the fundamental objections that a number of members of this place had is that it has no place in a budget bill. It is particularly offensive when this place is currently considering a courts efficiency reform bill, which would be the logical place to put this sort of provision.

As I have said in this place before, I would urge the government to return to the well-established conventions of the parliament and limit budget bills to budget matters. I will not regale the committee with the arguments yet again because this council has shown its strong commitment to those values. The correspondence from the Treasurer yesterday indicates that the government expects to see this in a deadlock conference.

What I might do is deal with some correspondence I have received since the council last made its second stance (two years in a row) to remove these provisions. As a member of parliament, I am not used to receiving thank you letters, so, especially as it was not just addressed to me, I thought I would put them on the record. The first is from the Law Society of South Australia, dated 17 July 2012. Its topic is 'Grateful thanks':

I am writing on behalf of the Members of the Law Society of South Australia to sincerely thank you and your Parliamentary colleagues for voting against the provisions of the Statutes Amendment and Repeat (Budget) Bill 2012 in the Legislative Council on 17 July 2012.

The Society is delighted with the result. Removal of the Courts' discretion to award costs against the prosecution in a matter in which a defendant was successful would potentially deny parties the ability to defence police prosecutions. It was therefore an 'access to justice' issue.

We are extremely grateful that common sense has prevailed.

Yours sincerely

Ralph Bonig

President

The Australian Lawyers Alliance chose to comment by way of press release. I will take thanks any way it comes. The release, dated Wednesday 18 July, under the heading 'ALA applauds SA parliament knock back on unjust laws', states:

The Australian Lawyers Alliance applauds members of South Australia's Upper House in banding together to defeat laws which would have stripped successful defendants in the Magistrate's Court to be awarded legal costs. The laws were defeated for the second time in two years. Australian Lawyers Alliance South Australian President, Patrick Boylen said, 'Parliament has spoken loudly on this issue now on two occasions and it's to be hoped that we don't face it again in a year's time. The right to your legal fees is long standing and is one of the factors that underpins our justice system, and that should not be eroded in any circumstance.' If passed, the proposed laws would have meant the defendants, if successful in defending themselves in the Magistrate's Court, would have been deprived of their costs. 'This is a great day for justice in this State,' said Mr Boylen. 'We applaud the members of the Upper House for making a correct and fair decision.'

I urge members of this committee to maintain that position.

The committee divided on the motion:

AYES (8)
Brokenshire, R.L. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Wortley, R.P. Zollo, C.
NOES (13)
Bressington, A. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)

Majority of 5 for the noes.

Motion thus negatived.

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