8 August 2017
2nd Reading Speech
The Hon. ADAM SEARLE ( 17:41 ): I lead for the Opposition in debate on the Justice Legislation Amendment Bill 2017. The Labor Opposition does not oppose the bill. The object of the bill is expressed to be to make a whole range of minor amendments connected with the Justice portfolio. The legislation proposed to be amended by the bill includes the Bail Act 2013, the Terrorism (Police Powers) Act 2002, the Children (Criminal Proceedings) Act 1987, the Surveillance Devices Act 2007, the Confiscation of Proceeds of Crime Act 1989, the Mental Health (Forensic Provisions) Act 1990, the Court Security Act 2005, the Criminal Procedure Act 1986, the Crimes Act 1900, the Criminal Assets Recovery Act 1990, the Criminal Appeal Act 1912 and the Crimes (Sentencing Procedure) Act 1999.
Schedule 1.1 slightly expands the indictable offences to which the show cause requirement of the Bail Act applies. Schedule 1.2 allows the transfer of back-up or related offences to other courts to which substantive offences have been removed in relation to Children’s Court matters. The Court Security Act is amended to alter the maximum penalty for a person possessing a knife in court premises so that it is the same as for a person having custody, without reasonable excuse, of a knife in a public place or school under the Summary Offences Act. Schedule 1.5 amends the Crimes Act in relation to sections 47 and 193 of that Act.
Schedule 1.7 amends the Criminal Appeal Act so that the Court of Criminal Appeal may vacate a determination made by the Supreme Court in its summary jurisdiction and order a new trial in such manner as the Court of Criminal Appeal thinks fit. I note in passing that this is yet another minor amendment to the criminal appeal laws in this State. In 2015 the New South Wales Law Reform Commission delivered report No. 140 on criminal appeals, which made what seems to the Opposition to be a range of entirely sensible proposals to modernise the quite archaic structures this State has for criminal appeals. Regrettably, the Government has not yet taken up the opportunity offered by the Law Reform Commission’s report and has missed another opportunity to do so in this bill. It seems this Government never misses an opportunity to miss an opportunity.
There are some minor amendments in schedule 1.7 of the bill concerning the Child Sexual Offence Evidence Pilot Scheme. The Attorney General made a point in his second reading speech about the Government’s election commitment in this area. Neither that commitment nor its legislative action has gone anywhere near Labor’s commitment to a specialist family domestic violence and sexual assault court. On that point I note that the Attorney in the other place gave this aspect of the shadow Attorney’s speech some attention and referred to a speech given by the Chief Justice of the Supreme Court of New South Wales, the Hon. T. F. Bathurst, at the Pacific judicial conference in Papua New Guinea on 14 September 2016 entitled “Specialised Courts/Court Tracks—The Way to Go?” The effect of the extracts of the speech he relied upon was that specialist courts may fragment the integrity of the legal system and make the system susceptible to external pressures in a manner destructive to the impartiality and integrity that the community expects from its courts.
I wonder whether the Government might indicate whether this extract represents a complete hostility to specialist courts. I note that the Government brought forward legislation last year that abolished the Industrial Court of New South Wales, a superior court of record that has existed in one form or another for over 100 years. There is the specialist Land and Environment Court, not actually a separate court but a division of the Local Court. There is the Children’s Court, and I think I am correct in saying that the President of the Children’s Court is in the process of establishing a specialist Koori court dealing with Aboriginal or Indigenous child offenders. Is the Government now signalling, through the Attorney General’s comments, its hostility to those specialist measures? I ask the Parliamentary Secretary in his reply to give some assurance that those initiatives are not being put at risk.
There are also a number of amendments to the Mental Health (Forensic Provisions) Act. Schedule 1.10 replaces the current term in section 32 (1) (a) (i) and replaces it with the term “cognitively impaired”, which in turn is defined in section 32 (6). The Attorney General did not mention this in his second reading speech—as I recall, I do not think the Parliamentary Secretary in this place did in his second reading speech—but some of that looks remarkably like some, but not all, of the recommendations in chapter 5 of report No. 135 of the New South Wales Law Reform Commission, entitled “People with cognitive and mental health impairments in the criminal justice system”. With those brief observations and as I indicated at the outset, the Opposition does not oppose the bill.