Budget Estimates 2017: Legal Affairs Hearing

8 September 2017

Adam Searle’s questions to the Legal Affairs Panel:

  • The Hon. MARK SPREAKMAN, Attorney-General.
  • KATHRINA LO , Deputy Secretary, Justice Services, Department of Justice.
  • KATE CONNORS , Acting Deputy Secretary, Strategy & Policy, Department of Justice.
  • CHRISTOPHER D’AETH , Acting Deputy Secretary, Court & Tribunal Services, Department of Justice.
  • BRENDON THOMAS , Chief Executive Officer, Legal Aid Commission, Department of Justice.

The Hon. ADAM SEARLE: Attorney, the Royal Commission into Institutional Responses to Child Sexual Abuse has recommended that Catholic priests hearing confessions be legally obliged to report admissions made to them about child sexual assault. Will your Government legislate to implement that recommendation?

Mr MARK SPEAKMAN: About a week or so ago the New South Wales Government issued a discussion paper to elicit stakeholder feedback on the various recommendations of the Commonwealth royal commission, one of which concerns the confessionals that Catholic priests take, or indeed any priest that takes a confession. We will be considering those recommendations very closely. We will be eliciting feedback from all relevant stakeholders and, once we have done that, we will come forward with a package. But I will not pre-empt at this stage what the outcome of that consultation from that discussion paper might be.

The Hon. ADAM SEARLE: What is the time frame that you envisage for these steps to be taken?

Mr MARK SPEAKMAN: I would envisage that we would be looking at legislation in the budget session next year. That is not a promise or an undertaking, but that is my best expectation at the moment.

The Hon. ADAM SEARLE: I understood that was the position. Attorney, you have had a lot of notice of this issue coming up. In fact, in answers to questions on notice about section 316 of the Crimes Act lodged by the shadow Attorney you specifically referred in your response to the royal commission review—you knew this issue was coming. Why were you not able to do that consultation around this issue in advance of the royal commission recommendations as this is not a new issue?

The Hon. TREVOR KHAN: He was waiting for a recommendation from the commission.

Mr MARK SPEAKMAN: These are incredibly sensitive issues. The issue you just raised, on the one hand you have the Catholic Church, which regards it as fundamental that the confidentiality of the confession is respected. On the other hand, you have a terrible legacy of institutional abuse in many institutions, including the Catholic Church, and the understandable view of victims and victim advocacy groups that that confidentiality can, in the circumstances, no longer be upheld. I think it is important for the New South Wales Government, which incidentally is the first State or Territory government in Australia to respond to the royal commission, that we understand all the views of all stakeholders and come to the right decision.

The Hon. ADAM SEARLE: Section 316 of the Crimes Act requires the consent of the Attorney General for certain categories, including that clergy can be prosecuted for failing to disclose a serious indictable offence. In your short time as Attorney General, have you ever been called on to exercise that discretion?

Mr MARK SPEAKMAN: Not that I can recall, no.

The Hon. ADAM SEARLE: In what circumstances would you grant or withhold consent? Is there a policy by which the Attorney General informs himself of these matters?

Mr MARK SPEAKMAN: It has not come across my desk. I certainly have not formulated such a policy. Whether previous Attorneys General have formulated some guidelines or policies, I am not aware.

The Hon. ADAM SEARLE: Is your departmental secretary aware?

Mr CAPPIE-WOOD: No.

The Hon. ADAM SEARLE: You are not aware, or there is no policy?

Mr CAPPIE-WOOD: There is no current policy on this matter.

The Hon. ADAM SEARLE: Does the fact that disclosure was made in a confessional mean that you would automatically refuse consent to a prosecution for withholding that disclosure or how would you go about exercising that function? I am happy for you to take that question on notice.

Mr MARK SPEAKMAN: I will answer it this way: At the moment that is hypothetical because no such application or issue has come across my desk. If and when it were to do so, then obviously it would be something I would give careful consideration to.

The Hon. ADAM SEARLE: Perhaps I could ask, through you to the secretary: Has that discretion been exercised by previous Attorneys General over the past two years?

Mr CAPPIE-WOOD: Not to my knowledge.

The Hon. ADAM SEARLE: Attorney, in your comments in reply to the second reading debate on the Justice Legislation Amendment Bill you appeared to be attacking, or at least questioning, the notion of specialist courts—at least in some circumstances. Is that attitude the reason why you will not fund the Downing Centre Drug Court properly or expand it to Dubbo or Tamworth?

Mr MARK SPEAKMAN: Could you repeat the question please?

The Hon. ADAM SEARLE: I am asking why you have not funded, or will not fund, the Downing Centre Drug Court properly or expand that operation to Dubbo or Tamworth.

Mr MARK SPEAKMAN: You are not asking me about my comments in the second reading speech in reply, but rather a standalone question about funding the drug court in Dubbo?

The Hon. ADAM SEARLE: As to the views that you expressed in reply, are they the reasons why you will not fund these measures, because you have queries or reservations about so-called “specialist courts”?

Mr MARK SPEAKMAN: I think this is what you are referring to. In reply, I quoted from the Chief Justice about some remarks that he made at the Pacific Judicial Conference, where he observed that specialist courts:

… run the risk of creating insularity, jurisdictional overlap and fragmentation … There is a risk that specialised courts will ‘evolve into a kind of archipelago of islands of expertise separated by a sea of unknowing’.

The Hon. ADAM SEARLE: I read that speech too.

Mr MARK SPEAKMAN: In evoking those comments, I was not suggesting some absolute or invariable rule that we should not be looking at specialist courts, but rather observing that you should approach that very carefully and cautiously lest the problems that His Honour identified emerge. That said, in the case of the Drug Court, we know that the Drug Court that we have at the moment, principally at Parramatta but also in the city and at Toronto, appears to work pretty well.

The Hon. ADAM SEARLE: It does.

Mr MARK SPEAKMAN: We know from NSW Bureau of Crime Statistics and Research analysis back in 2007 that those who go through that process appear to have a lower rate of reoffending than others. That said, I do not understand that the Bureau of Crime Statistics and Research analysis involved a cost-benefit analysis of a separate Drug Court. In other words, it identified the efficacy and the benefits of a standalone Drug Court to not just the legal process involved but also counsellors, drug treatment programs and others. I am interested in whether or not we can expand the operation of the Drug Court. I will consider any possible expansion—for example, in Dubbo—when I can.

The Hon. ADAM SEARLE: The Downing Centre Drug Court is restricted only to defendants who live within the boundaries of the City of Sydney, and I think it is restricted to about 40 participants at any one time. Given the undoubted need for that kind of service, that restrictive nature is absurd, is it not? Given those positive outcomes, the case for expansion is overwhelming, is it not?

Mr MARK SPEAKMAN: You have to look at that in this context: If an accused does not go through the Drug Court it is not as if they are dealt with in some sterile, legalistic way. There are other things we do— for example, we have invested $197 million in drug and alcohol services, including prevention and harm reduction programs across New South Wales. Commonly, those who are dealt with by the judicial system and have a drug and alcohol problem will be put into diversionary programs such as the MERIT scheme. The Drug Court is one way of approaching an offender’s drug and alcohol problem, but it is not the only way of doing so.

The Hon. ADAM SEARLE: No, but as you indicated, the evidence to date shows that it does have a good set of outcomes and in many respects they are better than those of the general criminal justice system. What kind of indicia or evidence would you need to be persuaded of to expand it to places such as Dubbo, Tamworth or Wollongong, where there is also undoubted need?

Mr MARK SPEAKMAN: As I said before, you have to look at not only the benefit of a drug court compared with some other approach but also the cost. It is an intensive approach in terms of the physical resources you need, as you do not just need a courtroom. It is an intensive approach in terms of the professionals involved, such as drug and alcohol counsellors. In weighing up any decision to expand the Drug Court the Government would take account of those factors but also look at the efficacy of current programs such as the MERIT program I referred to—the Magistrates Early Referral Into Treatment program—which deals with, among others, offenders with drug problems who are eligible for bail and helps them address drug problems that may contribute to their criminal behaviour. Under that scheme their progress and treatment can be considered during final hearing and sentence.

The Hon. ADAM SEARLE: What discussions, if any, have you had with the member for Dubbo about the Drug Court opening in Dubbo?

Mr MARK SPEAKMAN: The member for Dubbo is a very vocal and strong advocate for his community on many fronts and I understand he is quite supportive of at least some sort of pilot drug court in Dubbo.

The Hon. ADAM SEARLE: Have you had any discussions with the member for Tamworth about the Drug Court opening in Tamworth?

Mr MARK SPEAKMAN: I may have but I cannot recall at the moment.

The Hon. ADAM SEARLE: Do you recall if you have had any other discussions with any of your parliamentary colleagues about drug courts?

Mr MARK SPEAKMAN: I have to take that on notice.

The Hon. ADAM SEARLE: I am happy for you to do so. The Government has had a proposition before it for over a year from the District Court to establish a Koori court. When do you envisage responding and what is causing the delay?

Mr MARK SPEAKMAN: I had a proposal from the Chief Judge in relation to that. There is, of course, a Youth Koori Court in Parramatta, part of the Children’s Court. The Chief Judge has proposed a hybrid between how that Youth Koori Court operates, on the one hand, and the Drug Court, on the other hand. It is not only looking at a specialist way of proceeding between a guilty plea and sentence but also looking at judicial intervention post sentence. We are considering that proposal at the moment. I have discussed it with the Chief Judge. I have also discussed it with Judge Yehia, who is a vocal advocate for that from the District Court. I have had a discussion with the Bar Association about it as well. We are looking to evaluate that proposal and see whether it can be piloted. I cannot put a definitive time frame on when that might be but my intention is to make a decision in time for the next financial year.

The Hon. ADAM SEARLE: I do not want to put words in your mouth, but do I understand that your view is generally a positive one, subject to things stacking up?

Mr MARK SPEAKMAN: In principle, I can see the merits of that approach. We have not yet had a formal evaluation from Western Sydney University on the Youth Koori Court, but all the indications from stakeholders are fairly positive. In terms of engaging the Indigenous community in the judicial process, it is pretty positive that they can feel some confidence in what happens. I am very interested in the proposal and hopefully will be able to make a decision in the first half of next year.

The Hon. ADAM SEARLE: Do you have a time frame as to when you expect to receive the evaluation? I am happy for you to take that on notice. These are not trick questions.

Mr MARK SPEAKMAN: Imminently, in my understanding, but I will take it on notice.

The Hon. ADAM SEARLE: With the Koori court in the Children’s Court at Parramatta, as I understand it Judge Johnstone developed that process himself—

Mr MARK SPEAKMAN: Yes.

The Hon. ADAM SEARLE: —using the existing resources of his court. What additional assistance, if any, has your Government provided to that Children’s Court?

Mr MARK SPEAKMAN: Among other things we have provided, in June 2017 I announced a $220,000 funding boost for Marist Youth Care to assist young Aboriginal offenders who appear before the Youth Koori Court. It is funded from Children’s Court resources but I do not believe there is any problem or issue with that.

The Hon. ADAM SEARLE: Your Government referred the issue of a statutory cause of action for serious invasions of privacy to a Council of Australian Governments [COAG] working group. At the October meeting of that council a working party led by New South Wales was established but there was no reference to that idea in the communiqué of the council’s last meeting, which I think was in May. Does that mean that proposal or that reference from New South Wales is now dead at a national level?

Mr MARK SPEAKMAN: I do not know that it is dead.

The Hon. ADAM SEARLE: It is not very healthy.

Mr MARK SPEAKMAN: My perception is that there does not seem to be a lot of enthusiasm from other jurisdictions for it.

The Hon. ADAM SEARLE: It is only South Australia and Tasmania that exhibited any interest apart from New South Wales. Is that correct?

Mr MARK SPEAKMAN: I cannot recall precisely which jurisdictions—

The Hon. ADAM SEARLE: Could you take that on notice?

Mr MARK SPEAKMAN: I could take that on notice. I accept the general proposition that support was underwhelming.

The Hon. ADAM SEARLE: That reference was an effort by your Government to kill that idea off by kicking it into touch, was it not?

Mr MARK SPEAKMAN: Not at all. I think that reference preceded my appointment as Attorney General, but we do not refer things to COAG with the intention of kicking them into touch. We aim to score goals but it is a team effort. If you only have a couple of players on the field, you do not necessarily get a try— or a goal, depending on your football code.

The Hon. ADAM SEARLE: Given that the prospects for a national scheme do not appear to be very healthy, will you now support the findings of two Law Reform Commission reports and the unanimous report of a New South Wales parliamentary committee and introduce a statutory cause of action for serious breaches of privacy in New South Wales?

Mr MARK SPEAKMAN: Before I became Attorney General, the view taken by the Government was that if there were to be such a statutory cause of action it ought to be a national or a Federal one, or uniform rather than New South Wales going it alone. But I am happy to take that question on notice.

The Hon. ADAM SEARLE: The Government has introduced legislation that in a sense creates a criminal offence. That is a pretty serious step to take, and the Opposition supported that.

Mr MARK SPEAKMAN: Are you referring to intimate images?

The Hon. ADAM SEARLE: Yes, the intimate images legislation. In one sense, you have not waited for a national scheme. You are obviously convinced that some kind of action was required. Why the differential for a civil cause of action?

Mr MARK SPEAKMAN: There are guidelines for State and Territory laws in that respect that were agreed at the Law, Crime and Community Safety Council meeting back in May, I think. We did not jump the gun and go ahead unilaterally with our own legislation; we waited until there was a consensus across jurisdictions about the framework within which each State or Territory would legislate. Once that framework was agreed, within a couple of days we announced what we were doing.

The Hon. ADAM SEARLE: One of the features of that legislation is that post conviction there is a statutory power to take down the offending material, but in a sense that is putting the cart before the horse. That is long after the damage has been done. The unanimous recommendation of the parliamentary inquiry was that it is important to be able to intervene early and swiftly without putting a victim through the trauma of any kind of legal proceeding to take down that material. Your package has not done that. Will you at least revisit that one aspect?

Mr MARK SPEAKMAN: The package does include take down powers—

The Hon. ADAM SEARLE: But only post conviction.

Mr MARK SPEAKMAN: —where a court can order an offender to take reasonable steps to have material taken down. The difference is that if material is on the Internet it is not only in New South Wales. If you can see it anywhere in the world, the service provider or host computer could be anywhere in the world. Those issues are best dealt with at a national level.

The Hon. ADAM SEARLE: Of course, but when the offender is here in New South Wales they are subject to court orders here.

Mr MARK SPEAKMAN: As you probably know, the Commonwealth has announced that it is looking at its own civil penalties and related regime, and we expect that those take down powers will be dealt with in the Commonwealth legislation. It is best done at a national level rather than using a piecemeal approach.

The Hon. ADAM SEARLE: I think we can all agree that national action is desirable where you can get agreement to do so. However, does that mean that it is your view as Attorney General or the view of the Government that where you cannot secure a national consensus you will just put it into the too-hard basket and say that you do not need to do anything?

Mr MARK SPEAKMAN: No. My expectation is that there will be national laws dealing with this, and therefore there will not be a gap that needs filling.

The Hon. LYNDA VOLTZ: There is already.

Mr MARK SPEAKMAN: If, contrary to my confident expectations, that were not to happen, I would certainly revisit it.

The Hon. ADAM SEARLE: I understand there is no provision in the legislation that allows for a justice of the peace whose appointment has lapsed to be reappointed, even if the lapse is due to an error by the department. Is that correct?

Mr CAPPIE-WOOD: I will have to check the technicalities. I will take that question on notice.

The Hon. ADAM SEARLE: Okay. As I understand it, when somebody’s appointment comes up for renewal, the department sends them some paperwork. However, where the department fails to do so and the appointment lapses, they have to go back to the bottom of the deck and play from scratch.

Mr CAPPIE-WOOD: We have introduced a number of online options, including the capacity to seek reappointment online, obviating the need for us to send out additional paperwork. Enhancements recently brought into play should overcome some of these constraints.

The Hon. ADAM SEARLE: I have a case of a person who was a justice of the peace [JP] for some decades and whose appointment lapsed due to an admitted error by your department. If I provide you with the details, could you look into that to see whether or not the situation can be remedied?

The Hon. TREVOR KHAN: You did not have to wait until budget estimates to do that, did you?

The Hon. ADAM SEARLE: It was a good opportunity.

The Hon. SHAOQUETT MOSELMANE: A good approach.


The Hon. ADAM SEARLE: Returning to section 316 and the discussion paper and the child abuse royal commission recommendations, does your discussion paper specifically canvass the issue of the confessional?

Mr MARK SPEAKMAN: Not in terms.

The Hon. ADAM SEARLE: How is that responsive to the recommendations of the royal commission?

Mr MARK SPEAKMAN: It is because the question is whether there is an obligation to report, and whether that obligation to report will override any privilege or confidence that attaches to the confessional.

The Hon. ADAM SEARLE: You see it in that context?

Mr MARK SPEAKMAN: Absolutely.

The Hon. ADAM SEARLE: Even though it does not specifically canvass the confessional?

Mr MARK SPEAKMAN: I do not recall the discussion paper using the word “confessional”. It is clear, and from public discussion everyone understands what we are getting at. A question will be raised as to whether a duty to report will override any confidence or privilege attaching to a confession.

The Hon. ADAM SEARLE: Your predecessor, Ms Upton, told a Jewish Board of Deputies event in October 2015 that section 20D of the Anti-Discrimination Act does not work and must be changed as no prosecutions have been brought since it was created. She was not able to deal with that in her term as Attorney. Will you act on the well-recognised shortcomings of section 20D of the Anti-Discrimination Act, given there has been a parliamentary report and the Opposition has brought forward a private member’s bill?

Mr DAVID SHOEBRIDGE: And unanimous recommendations of the Law and Justice committee.

The Hon. ADAM SEARLE: I acknowledge that interjection.

Mr MARK SPEAKMAN: I am aware of those recommendations. Since I became Attorney General we have been consulting broadly. I had Dr Kerkyasharian consult—do not hold me to this figure—with approximately 40 community groups on section 20D. Indeed, it is analogous in the Anti-Discrimination Act to other forms of discrimination. I have met the Jewish Board of Deputies, the Gay and Lesbian Rights Lobby, the Catholic Archbishop. I met an Orthodox minister this week. We want to ensure that we get this right. It is an incredibly sensitive area. We want to get the balance right between protecting our community’s safety and cohesion on the one hand and freedom of speech on the other hand.