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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-09-26 Daily Xml
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STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) (NO. 3) BILL

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. D.G.E. HOOD: I will not be moving my amendment, and I will give a brief explanation as to why. I have had discussions with the government which, I understand, is sympathetic to the idea but not necessarily to the way it is being suggested that it be done. Having had discussions with them, they have raised one point that is valid, so I am prepared to leave this amendment for now and have ongoing discussions with them in order to see if we can achieve this through another means.

Clause passed.

Clause 5.

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

Amendment No 1 [AgriFoodFish–2]—

Page 3, after line 6—After line 6 insert:

(1) Section 44(2)—delete 'If' and substitute:

Subject to subsection (2a), if

Amendment No 2 [AgriFoodFish–2]—

Page 3, lines 8 to 15 [clause 5, inserted subsection (2a)]—Delete inserted subsection (2a) and substitute:

(2a) The Minister for Correctional Services must, before deciding whether to waive the obligation of a probationer to comply any further with a condition requiring supervision, take into account the likely impact on a victim to which this subsection applies if the probationer is no longer required to remain under supervision.

These amendments rectify an error that was identified by the Law Society. The bill seeks to amend section 44 of the Criminal Law (Sentencing) Act 1988 so that the Minister for Correctional Services must take into account the likely impact on a victim before exercising the minister's power to waive a condition of a bond requiring supervision or to vary or revoke a condition of a bond. The minister does not have this latter power, therefore the amendments rectify that particular error.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendments carried; clause as amended passed.

Clauses 6 to 9 passed.

New clause 9A.

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

Amendment No 1 [AgriFoodFish–1]—

New Part, page 4, after line 14—Insert:

Part 6A—Amendment of Magistrates Court Act 1991

9A—Amendment of section 42—Appeals

(1) Section 42(5)(c)—after 'including' insert:

, subject to subsection (5a),

(2) Section 42—after subsection (5) insert:

(5a) The Full Court may not make an order for costs in relation to an appeal to the Full Court of a kind referred to in subsection (2)(ab).

The Statutes Amendment (Courts Efficiency Reforms) Act 2012 amended the Magistrates Court Act 1991 and the Summary Procedure Act 1921 to enable a magistrate to impose sentence in major indictable cases where a defendant has pleaded guilty in the Magistrates Court and both the defendant and the Director of Public Prosecutions consent to the matter being finalised in the Magistrates Court.

Prior to this act, all major indictable matters were sentenced in the higher courts. This meant that all appeals against sentence for major indictable matters were heard in the Court of Criminal Appeal which is a no cost jurisdiction. The changes made by the courts efficiency reforms act have inadvertently led to appeals against major indictable sentences imposed in the Magistrates Court to be to the Full Court sitting in the civil jurisdiction and therefore liable to cost orders. This was not the intent of the reform, and it is appropriate that appeals against sentences imposed in major indictable matters be treated the same and with the same cost implications. That is why we put that amendment forward.

The Hon. S.G. WADE: I acknowledge that the government did write to us in relation to this amendment. It is noteworthy that the government and the Law Society seem to be as one in terms of policy, and we do welcome the government's intention to consult the Chief Justice. However, we do not think that that is sufficient. We do not think it is appropriate to pass the legislation and then find a solution after the legislation, because after all, the consultation with the Chief Justice may well lead to suggested changes to the legislation. If we are doing the Chief Justice the courtesy of consulting him, we should be giving him the courtesy of flexibility in response.

We also do not think the Chief Justice should be the limit of the consultation. This, after all, is a change to the magistrates act. We also consider that the Chief Magistrate and the magistracy more generally should be consulted. It is not an extensive set of amendments. We believe that could happen in the next two weeks and it could be considered on the next sitting day of this council.

Let us remember we have recognised the growing status of the magistracy in the magistrates act and enhanced its jurisdiction through the courts efficiency reform bill. The opposition urges the council to give ourselves an opportunity to pause and reflect on the implications of these proposals on the magistracy. Let us remember that one of the reasons that the Law Society puts forward is the status of the magistracy. The society specifically queried whether it is appropriate for a magistrate who is not a judge to have the powers that are implied by the current bill and recommended that there should be an extra safeguard of an appeal to a single judge attracting costs.

The opposition does not support progressing the bill until these consultations have occurred and the council has been able to consider a statement as to the specific actions proposed to be taken and views on it. On other issues raised by the society, the opposition supports the government, as we did in the Statutes Amendment (Appeals) Act 2013. We will not be proposing or supporting the amendments sought by the society in that regard. Let me stress, we do not have a negative view of the amendments before us. We just believe there is value in consultation.

The Hon. G.E. GAGO: The government does not support postponing the progress of this bill for the purposes of consulting with the Chief Justice or the Chief Magistrate because we believe it is unnecessary to speak to either the Chief Justice or the Chief Magistrate about this particular matter. All appeals in the criminal jurisdiction in higher courts—it is a no-cost jurisdiction, and that is an accepted practice and has always been an accepted practice, and it is most unlikely that the Chief Justice or the Chief Magistrate would have concerns.

These matters were never captured by costs in the past. What occurred in the drafting of this bill was an anomaly to capture costs associated with them. The Chief Justice and the Chief Magistrate never raised issues of concern about these matters not capturing costs in the past, so we believe it is completely unnecessary to delay the bill any further for any further level of consultation.

The Hon. S.G. WADE: I am surprised to hear the minister say that there is no need to consult the Chief Justice, because the Attorney-General's letter to me of 23 September 2013 states:

If the Legislative Council agrees to pass the amendment I shall raise this issue the Chief Justice so that appropriate amendments to the rules may be made.

I would have thought it was better to put the horse before the cart. I also believe that in light of the comments made by the society in relation to the, if you like, status of magistrates being somehow short of a judge, it would be appropriate to engage the Chief Magistrate.

The minister's remarks related specifically to the cost issue. I want to stress again that I do not believe that the difference is in relation to costs. I think we are on the same page on that. The Law Society and the Attorney-General's discussions have related to whether appeals from the Magistrates Court are treated as civil appeals or as criminal appeals. These issues might have implications beyond costs. Feel free to call the Legislative Council a cautious place, but it has so often in the past proved to be wise.

With no objections to the current provisions, the opposition is still of the view that it would be a good discharge of our duties to leave this on the table for two weeks; certainly consider it on the first sitting day when we come back. These are not extensive issues. I move:

That progress be reported.

The committee divided on the motion:

AYES (10)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)
NOES (8)
Darley, J.A. Franks, T.A. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P.
PAIRS (2)
Ridgway, D.W. Zollo, C.


Majority of 2 for the ayes.

Progress thus reported; committee to sit again.

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