20 September 2016

2nd Reading Speech

The Hon. ADAM SEARLE ( 15:19 ): I lead for the Opposition in debate on the Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Bill 2016. The Opposition does not oppose the bill. The bill has two main aims. One is to provide for certain indictable breaking and entering offences set out in the Crimes Act to be dealt with summarily unless the prosecutor or person charged elects otherwise. The second and less significant object relates to minor statute law revisions. The Government presents the bill on two bases. The first is as a modest incremental change to the criminal law and, principally, the jurisdiction of the Local Court. This pace of change can be justified as a modest and rational change following proper consideration. On that basis, the Opposition does not oppose this bill.

However, the second basis put forward by the Government is to address the chronic and longstanding crisis of District Court criminal trial delays. With respect, that basis for this bill is unfounded. The way to address the District Court crisis is not by fiddling with jurisdictional issues but to provide adequate resources on an ongoing basis to that court. This Government has sat on its hands since 2011 on the issue of District Court delay. The Government is five years and six budgets late in taking action. When the President of the Law Society pointed this out, the Attorney General launched an extraordinary attack on him and his institution. The Attorney General’s second reading speech, and the second reading speech given in this place by the Parliamentary Secretary for Justice, was entirely lacking in any assessment of how many cases might actually be affected by the legislation. 

One would have thought that was a pretty basic piece of information to lay before Houses of Parliament that are being invited to enact this legislation. If the bill is intended to address District Court delay, to what extent and what is the evidence for that? There was no sign of it in the second reading speech that members have just heard. It may be that those figures are difficult to obtain. But if they are difficult to obtain, then the Government has no basis for putting it forward as a reason to enact this legislation. By asserting that it will make a contribution to reducing the delay and alleviating the crisis in criminal trials in the District Court, the Government merely draws attention to its own lack of action.

The Attorney General’s announcement last year of extra funding to address the District Court delay was to address only 640 cases. Even on the optimistic view of the Government, that would still leave a far worse situation than the one it inherited in 2011 when it took office. The Attorney General’s activity in this area is extremely belated. The NSW Law Reform Commission labelled the system as broken. Two successive chief judges of the District Court, Reg Blanch and Derek Price, warned of increased time delays. Bureau of Crime Statistics and Research material released in July this year shows that the time taken to finalise criminal trials in the District Court increased considerably during the term of this Government. The median time between committal for trial and outcome increased by 47.3 per cent, from 233.5 days to 344 days. The overall median time for trial cases from arrest to finalisation in the District Court increased by 28.1 per cent, from 502 days to 643 days. The figures cited are for between 1 January 2011 and 31 December 2015 so they are fairly coterminous with the term of office of this Government.

The longest delays in the State were at Dubbo. The average wait from committal to outcome at the Dubbo District Court increased from 304 days in 2013 to 403 days in 2014, which makes placing another full-time District Court judge at Wagga Wagga rather than at Dubbo a very curious decision. Of course, it is not just the District Court that faces funding cuts. The Government’s five-year onslaught upon the Local Court has been deep and sustained, which raises, not unreasonably, the issue of how the Local Court, having lost so many magistrates, will cope with the extra workload being pressed on it by this legislation. That is precisely the question raised by the President of the Law Society, Gary Ulman, concerning this legislation. Mr Ulman said:

… court closures and cutbacks in the number of magistrates continue to have a negative impact on access to justice. As Local Court sittings move or are reduced in number, significant increases occur in the time taken for matters to come before the courts or to be finalised. Feedback from regional Law Society presidents has provided a disturbing picture of the impact of these closures.

For example, Tenterfield police usually take defendants to Armidale for their bail hearings. If that is granted, defendants must find their own way back to Tenterfield. Wauchope sittings have been significantly reduced which means that a person charged out of Wauchope police station can wait up to two months for the first return date for their matter. Camden Local Court has had a majority of its sitting days stripped away leaving only two days per month for apprehended violence order lists. Balranald Local Court closed in December 2015. Cases that would otherwise be filed there have been redirected to Hay, which is approximately 150 kilometres away, but there is no public transport.

The Local Court resources mentioned by the Attorney General in her second reading speech will hardly deal with the problems highlighted by the President of the Law Society. Mr Ulman also went on to say about this legislation:

The purpose of the bill is to allow for offences for breaking and entering to be heard in the Local Court. It is said that this will reduce the criminal trial backlog in the District Court. This, however, begs the question does the Local Court have the resources to meet the additional workload? Based on feedback from the regions, the additional workload is going to sorely test the already strained resources of the Local Court unless more magistrates are appointed and court closures reversed.

The Attorney General’s public response to this not unreasonable commentary was to accuse the Law Society of being mean spirited and petty. I pause to make the observation that perhaps it is the first law officer of this State and her Government that is being mean spirited and petty. Fairfax Media was accurate in describing this as an extraordinary attack by the Attorney General on a body that should be—or, indeed, is—one of her main stakeholders. The Attorney General might be better advised not to shoot the messenger. Experts in the field indicate that the District Court crisis will not ease until the second half of next year, if then.

The Government has allowed this crisis to go on for too long and has dedicated far too few resources to deal with it. Unreasonable delays inconvenience all parties, add stress for victims and delay defendants being able to proceed with their lives. The reliability of the memories of witnesses is less precise, and accordingly the value of justice is less certain because of those delays. I note that when the former Labor Government took office in the mid-nineties it also was left with significant, and indeed chronic, delays in the District Court, which it addressed by investing significant resources in that court through some permanent appointments but also through appointing acting judges to break the backlog that had built up during the Greiner and Fahey terms of government.

But this Government has not heeded history and has simply allowed backlogs to build up, creating a crisis in the District Court. I note the observations of the Parliamentary Secretary extolling the many virtues of the efficiency of the Local Court—and of course it is a great court—but all of that will be jeopardised by pushing ever more cases and workload onto that court without matching resources.

The bill proposes four offences relating to breaking and entering offences that will be designated as table 1 offences. Those offences include section 109 (2) of the Crimes Act, which is the offence of section 109 (1) in circumstances of aggravation. The second is section 111 (2) which is, in circumstances of aggravation, entering any dwelling house with intent to commit a serious indictable offence therein. The third is section 112 (2), which once again is the aggravated offence, but this time of section 112 (1). The final offence is section 113 (2), which is the aggravated offence of breaking and entering any dwelling house or building with intent to commit any serious indictable offence therein. The situations that constitute circumstance of aggravation include being armed, being in company with a person or persons, the use of corporal violence, the intentional reckless infliction of actual bodily harm, the deprivation of a person’s liberty, or knowing that there are people present when the offence is alleged to have been committed. 

The bill provides that these become table 1 offences only if the following conditions are met: first, the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property; secondly, the value of the property or the value of the damage does not exceed $60,000; and, thirdly, the only circumstance of aggravation is that the alleged offence is in the company of another person or persons. Making these offences table 1 offences means inserting them into table 1 of schedule 1 to the Criminal Procedure Act. These are offences that are to be dealt with summarily unless the prosecutor or the person charged elects otherwise. I note that in the fifth paragraph of her second reading speech the Attorney General is reported in Hansard as saying this about the bill: 

Therefore prosecutors will be able to choose which court—either the Local Court or District Court—is the most appropriate forum to hear and determine these cases. 

In fact, that is not accurate. That seems to be a description of table 2 offences, not table 1 offences. This bill does not leave the election exclusively to the prosecutor but also to the defendant, which is precisely the point of table 1. The Attorney General has identified the origin of this bill in a report of the Sentencing Council. In her contribution in the other place she said it was a 2011 report, but it is dated December 2010—almost six years ago now. The report is entitled “An examination of the sentencing powers of the Local Court in NSW”. This, in turn, seems to have arisen from a request by the then Attorney General in April 2009. Specifically the then Attorney General, now Judge Hatzistergos of the District Court, sought advice on increasing the maximum property value for indictable break and enter offences that can be dealt with summarily from $15,000 to $60,000. 

In June 2010 the monetary limit for section 112 (1) offences was increased to $60,000. The Sentencing Council also considered whether there should be a general increase in the Local Court jurisdiction. Honourable members would be interested to learn that that has been the subject of discussion for some time and is still the subject of submissions by those advocating that change at every possible opportunity. It quite often involves allowing significantly increased jurisdiction in the imposition of penalties by the Local Court—that is, the maximum penalty could be increased significantly. The Sentencing Council’s approach was recorded at paragraph 4.8 of the report as follows: 

The council is of the view that the sentencing statistics do not support the need for a general increase in the Local Court’s jurisdiction. Additionally it accepts that there are sound policy reasons for preservation of the status quo. 

Labor’s lack of opposition to the very particular and limited increases in jurisdiction in this bill should not be confused with support for any broader increase in the Local Court jurisdiction, especially in relation to maximum sentencing. On this point, at the present time and on currently available information we think the Sentencing Council’s observations were correct. The council did, however, make this recommendation: 

The council recommends that a general review of the Crimes Act be undertaken to determine whether any additional offences should be included in the Tables, and whether any offences currently included in the Tables should be re-categorised as strictly indictable offences. 

The Attorney General says that after a review of these provisions the Government will consider whether they should be expanded to further offences. Given the slow pace of review by this Government and the even slower pace of action, that is likely to be another half decade away at least. However, it should not be used as the basis for an indiscriminate increase in Local Court sentencing jurisdiction simply to deal with five years of scandalous underfunding of the District Court on this Government’s watch. 

The jurisdiction of the different courts should be dealt with sensibly, rationally and on a principled basis, not on an opportunistic basis of saying one court is overworked and has a backlog and therefore that work will be foisted on a court that is equally strapped for resources and we will hope for the best. The resourcing of the administration of criminal justice—indeed, justice generally in this State—is a serious and weighty matter. It should not be treated in the cavalier way in which this Government has addressed the matter. With those observations, as I said at the outset, the Opposition does not oppose the bill.