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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-11-26 Daily Xml
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Criminal Law Consolidation (False or Misleading Information) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:01): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I rise to introduce the Criminal Law Consolidation (False or Misleading Information) Amendment Bill 2019.

The Bill seeks to protect the integrity of important information provided to the Courts through electronic channels.

In recent years, the Courts Administration Authority has developed an Electronic Court Management System or ECMS.

In November 2018 the ECMS for Probate matters became fully operational, and the ECMS for civil matters across all courts is expected in early 2020, and for criminal matters in 2021. For probate matters, the introduction of this system has seen a vast increase in the speed of processing probate matters and is set to increase efficiencies across civil matters in the coming months.

Once fully operational, the ECMS will allow court users to lodge their court documents and interact with the Court online. Eventually, the majority of court processes will take place electronically rather than using paper forms and files.

The shift to an electronic format necessitates some changes to traditional court processes. One example of this is the use of affidavits—a common occurrence in all court proceedings. An affidavit is a formal written witness statement, sworn or affirmed before a Justice of the Peace and signed on each page. Many court applications are currently required to be accompanied by an affidavit providing supporting evidence. The requirements for physical signatures and the presence of a Justice of the Peace mean that affidavits are not well-suited to the digital format. In the ECMS, some court applications will no longer be able to be supported by a formal affidavit at first instance. Instead, the formerly sworn information will be collected through digital tick-boxes, typed information or uploaded documents.

This Bill recognises the significant reliance on truth and ensuring that the users of the system, and those providing the information, maintain the highest standards. Court processes should not be taken any less seriously purely because they take place online and without the formal trappings of an affidavit.

We must ensure the initial supporting information provided to a court is correct in the first instance, because should this information be false, it will cause difficulties and delays. Witnesses may further need to be called to contest the information, or formal affidavits required.

Accordingly, to deter ECMS users from supporting their applications with false, unsworn information, the Bill creates two new offences.

First, the Bill creates an offence of entering false or misleading prescribed information into an ECMS, whilst knowing that the information is false or misleading.

Second, the Bill contains an offence of providing false or misleading prescribed information to a person knowing that the information is false and misleading and that it may be provided to a court.

This offence is designed to cover persons who provide false instructions to a lawyer or other person assisting with the application, rather than directly entering the information into the ECMS. This offence ensures equal treatment of represented and unrepresented parties. Without an offence in relation to providing instructions, unrepresented parties who use ECMS directly will be more at risk than represented parties who act through a lawyer.

The offences proposed in this Bill, Mr President, are confined to prescribed information to limit them to the important supporting information that cannot be sworn at the time of the initial application, but that may be relied on by the court to determine the course of proceedings in the early stages of a matter. Everyday application materials, such as pleadings, are not intended to be prescribed. Categories of important supporting information will be prescribed by regulation and tailored to the needs of the ECMS as it is developed.

Mr President, the Bill is not designed to restore the prescribed information to the status of formal evidence. In any court proceedings, the prescribed information will still need to be subject to formal affidavits or testimony if contested. If the party makes the same false statement under oath or affirmation, they will be subject to the more serious offence of perjury. The offences do not include a potential penalty of imprisonment in order to create a clear distinction from perjury.

The Bill is an important step in creating an appropriate regulatory framework to support the ECMS. It supports increased efficiency in the processing of applications across our Probate Court and civil and criminal courts in the future, and represents that part of my Justice Agenda published earlier this year, that prioritises the need for policies and legislation to reflect contemporary needs.

I am pleased to say this Bill does so, and I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Insertion of Part 7 Division 2A

This clause inserts a new Division into Part 7 of the principal Act, containing new section 241A.

Division 2A—Offences relating to providing false or misleading information to a court

241A—False or misleading information entered into electronic court management system

This section creates an offence for a person to enter false or misleading prescribed information into an electronic court management system. It also creates an offence for a person to provide false or misleading prescribed information to another person knowing that the information will be, or is likely to be, provided to a court.

The Hon. I.K. HUNTER (16:02): I rise today to speak very briefly on the Criminal Law Consolidation (False or Misleading Information) Amendment Bill, and I indicate that Labor will be supporting this bill. The South Australian courts are gradually rolling out an electronic court management system, known as ECMS, I am advised. The system allows users to lodge court documents and interact with the court electronically. I think it is the thin end of the wedge myself, but others have persuaded me to go along with it.

I am advised that the ECMS has already been rolled out for probate matters and that the government expects that the implementation of the ECMS across all courts will occur for civil matters in early 2020 and for criminal matters in 2021. As a result, probate matters will be the first jurisdiction to be covered by this legislation, and we understand that civil and criminal matters will be included under this legislation at a later date.

I am advised that this bill creates two new offences: an offence for a person to enter false or misleading prescribed information into an electronic court management system and an offence for a person to provide false or misleading prescribed information to another person, knowing that the information will be or is likely to be provided to a court. Both offences attract a maximum penalty of $10,000.

What constitutes prescribed information will be specified in regulations, we hope. We are advised that the court and the Chief Justice will be consulted on the development of those regulations. This is an area that we will be watching very closely. With those very brief words, I indicate again that Labor intends to support the bill and will have an interest in watching the development of those regulations.

The Hon. R.I. LUCAS (Treasurer) (16:04): I thank the honourable member for his indication of support for the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. I.K. HUNTER: How was the need for this legislative change identified? Was it an initiative of the courts? Was it an initiative of the Crown or some other institution?

The Hon. R.I. LUCAS: I am advised it was a letter from the Chief Justice, who identified the issue.

The Hon. I.K. HUNTER: Just to follow up then, as is normal practice, a group of stakeholders would be consulted on the development of the bill. I am very happy for the Treasurer to take this on notice. Could the government advise who was consulted as part of that stakeholder consultation and whether any submissions are available to be provided to the council?

The Hon. R.I. LUCAS: I can provide a list of people who were consulted: the Chief Justice, the Chief Judge of the District Court, the Chief Magistrate, the Judge of the Youth Court, the South Australian Bar Association, the Law Society of South Australia, the State Courts Administrator, the CAA ECMS project director, the Crown Solicitor, the Acting Director of Public Prosecutions and the Commissioner of Police.

I am advised, as with normal practice, that we do not publicly provide copies of the submissions that are made. If a particular agency wishes to, such as the Law Society, which on a number of other bills and things, I know, occasionally publishes its submissions, we leave that decision to them but, from the government's viewpoint, we are not publishing or making them available.

Clause passed.

Clause 2.

The Hon. I.K. HUNTER: As I said in my second reading contribution, we understood, on advice from the government, that civil and criminal jurisdictions will be included under this legislation at a later date, and we were given indicative times. The question for us is: how will that happen? Is it an automatic rollout under this legislation, or will additional legislative or regulatory change be required to do these additional jurisdictional rollouts?

The Hon. R.I. LUCAS: I am advised that it would require regulatory change, which is, of course, subject to potential disallowance by either house of parliament.

Clause passed.

Clause 3 passed.

Clause 4.

The Hon. I.K. HUNTER: I refer the Treasurer to the amendment of section 5—Interpretation questions. The opposition understands that the definition of 'prescribed information' will be developed in consultation with the court and the Chief Justice. What regulations are currently under development in anticipation of this legislation? Is there a definition of 'prescribed information' that is currently in use in South Australian statute, or even interstate, that will be used for the development of this regulation?

The Hon. R.I. LUCAS: I am advised that there is no draft regulation yet. Officers will commence work on that, should the bill pass the parliament. In relation to prescribed information, there is no definition, other than the normal parliamentary or legal usage of the term 'prescribed information', that is, it will vary depending on what is prescribed under various pieces of legislation. I cannot assist the honourable member any further than that.

The Hon. I.K. HUNTER: I have a further question on the same subject. The opposition has been advised—and please correct me if we are wrong—that no other jurisdiction in the country has an offence for entering false or misleading information into an electronic management system. If that is the case, why do we in South Australia need these provisions and other states do not or, indeed, are other states considering going down the same track?

The Hon. R.I. LUCAS: I am advised that it is correct that we are the only state, but the reason we have moved in this direction is based on the advice of the Chief Justice. In his view, there was a deficiency in the law in relation to this particular area and the government ought to address it. The government has listened to that advice, taken its own advice, agreed with that advice and proceeded with the amendment.

My advice is that we are the only jurisdiction at this stage. We are not in a position to advise whether any other jurisdiction is considering the move. Clearly, as the honourable member will know as a former minister, once one jurisdiction moves in a direction, other jurisdictions will at least consider it and decide whether or not they think it is relevant to their jurisdiction, but at this stage I cannot advise as to whether anyone else is considering it or not.

The Hon. I.K. HUNTER: I find it is always nice when the government takes its own advice and agrees with it. Could you answer how we arrived at the penalty provisions that are in the bill? Are they commensurate with other penalty provisions in other legislation or are they new for this legislation?

The Hon. R.I. LUCAS: My advice is that it was judged that the penalty should be set at a level just below or below the level of the penalty for perjury. Perjury can involve terms of imprisonment and the view was that this offence should be pitched at a level beneath the level of the penalty for the offence of perjury.

The Hon. C. BONAROS: Can I confirm if that penalty is the same as what applied without the electronic court management system? Is the penalty the same as what would apply if it were a paper document?

The Hon. R.I. LUCAS: This is getting quite complicated. I will let you lawyers talk amongst yourselves. It is different but there are other offences, such as forgery, in terms of paper documentation, but the view was that that particular offence would not apply to an electronic case management system. So the answer to your question specifically is, no, it is not exactly the same, but there are other offences which apply to falsification of hard copy or paper records, such as forgery.

The Hon. C. BONAROS: To confirm then, if I were to submit an affidavit in hard copy—

The Hon. R.I. LUCAS: If you were to what?

The Hon. C. BONAROS: If I were to submit an affidavit in hard copy, as opposed to an electronic copy, the penalty would not be the same or it would be?

The Hon. R.I. LUCAS: If you had falsified it?

The Hon. C. BONAROS: Yes, a falsified document.

The Hon. R.I. LUCAS: I am advised that an affidavit would be a sworn testimony, a sworn document, which might be seen to be evidence before a court and, therefore, the offence of perjury might apply because it is sworn testimony. We understood the honourable member's question to be that these offences are in terms of an electronic case management system, then the member's question was in relation to the falsification of paper records, but then the member narrowed it down to something which was sworn testimony which was an affidavit. So in relation to an affidavit, my advice is as I have just given it. In relation to other documents, which are not sworn testimony but which are paper documents which have been falsified, my advice is that the offence of forgery or something like that might be applicable to that range of offences, but they are different to this one.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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