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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-15 Daily Xml
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STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) (NO. 3) BILL

Committee Stage

In committee.

(Continued from 26 September 2013.)

New clause 9A.

The Hon. S.G. WADE: Just to remind the council where we were, the aim of the government's original amendment was to equate appeals from the Magistrates Court on major indictable matters to appeals from a single judge in the Supreme Court in its original jurisdiction or the District Court in its criminal jurisdiction. The Law Society queried whether this was appropriate on the grounds that as a magistrate is not a judge the extra safeguard of an appeal to a single judge attracting costs, as it does now, appears warranted.

The society recommended consequential amendments to the rules of court to make the appeals 'criminal appeals' to the Court of Criminal Appeal. The government accepted the society's point and has said that if the Legislative Council agrees to pass the amendments as is the Attorney will raise the issue with the Chief Justice with a view to appropriate amendments to the rules.

On 26 September the opposition received the support of the council to hold over further consideration of this bill to allow the opposition to consult with the magistracy. I would like to put on record excerpts from a letter I received from the Magistrates Association. The letter is dated 3 October and it states:

The response provided by the Law Society is disappointing. The assertion that Magistrates are not judges raises the very issues that are the subject of the correspondence addressed to you on 22nd July 2013. Magistrates, like the judges of the District Court, are creatures of statute. We have no inherent powers but have been given specific powers by legislation. The Courts Efficiency reforms gave magistrates the power of sentence in a very wide range of matters classified as major indictable and increased the length of sentence that can be imposed by the Magistrates Court.

Later the letter goes on to say:

There is clear evidence and support from superior courts that magistrates carry out identical duties and must deal with all matters with the same care and attention that is required of the members of the superior courts. The parliament has seen fit to give magistrates the power to sentence for major indictable matters that have until recently been within the jurisdiction of the superior courts only. The penalties remain the same. For example, a person sentenced by the District Court for trafficking in a particular substance is likely to receive a sentence of 2 to 3 years imprisonment which may or may not be suspended. The same person who appears in the Magistrates Court is highly likely to receive a similar sentence. On behalf of the magistracy I now keep a record of District Court sentences to ensure that there is a level of consistency.

To suggest that magistrates are not carrying out identical responsibilities when sentencing as that required of District Court judges is unsupportable. Given that situation, it would appear incongruous to suggest that there should be a different order of costs when the appeal is from the Magistrates Court or that the convention in relation to costs in major indictable matters should be any different.

I put the Magistrates Association's views on record. That letter was forwarded from their President, Magistrate Kitchin. The association has indicated that they do not seek an amendment of the bill, but would remind the parliament of the status which the parliament itself has recognised in the magistracy in recent amendments to bills. So, the Liberal opposition will not oppose the government's amendments to this bill, but we do express our concern at the lack of consistency in the government's treatment of the magistracy.

New clause inserted.

New clause 9AB.

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

Amendment No 2 [AgriFoodFish–1]—

Page 4, after line 15—Part 7—before clause 10 insert:

9AB—Amendment of section 5—Interpretation

Section 5(1), definition of Full Court, (b)(ii)—delete subparagraph (ii) and substitute:

(ii) the Chief Justice has made a determination under—

(A) section 357(3) of the Criminal Law Consolidation Act 1935; or

(B) section 42(2a) of the Magistrates Court Act 1991; or

(C) section 22(2a) of the Youth Court Act 1993;

This new clause will provide that the discretionary power of the Chief Justice conferred in the Statutes Amendment (Appeal) Act 2013, to determine that a Full Court may be constituted by two judges, will include appeals arising from the Youth Court. The purpose of this amendment is to ensure consistency across jurisdictions.

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

New clause inserted.

Clauses 10 to 12 passed.

New clause 13.

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

Amendment No 3 [AgriFoodFish–1]—

Page 4, after line 31—Insert:

Part 9—Amendment of Youth Court Act 1993

13—Amendment of section 22—Appeals

Section 22—after subsection (2) insert:

(2a) The Chief Justice may determine that the Full Court is to be constituted of only 2 judges for the purposes of hearing and determining an appeal to the Full Court of a kind referred to in subsection (2)(ba).

(2b) The decision of the Full Court when constituted by 2 judges is to be in accordance with the opinion of those judges or, if the judges are divided in opinion, the proceedings are to be reheard and determined by the Full Court constituted by such 3 judges as the Chief Justice directs (including, if practicable, the 2 judges who first heard the proceedings on appeal).

I believe this is consequential to government amendment No. 2 in the first set of amendments.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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