JUSTICE LEGISLATION AMENDMENT BILL 2018

2nd Reading Speech

6 March 2018


The Hon. ADAM SEARLE ( 15:20 ): I lead for the Opposition in debate on the Justice Legislation Amendment Bill 2018. The Opposition does not oppose the bill. The bill proposes miscellaneous changes to 11 different Acts. What is slightly unusual in this bill is that some of these provisions are not the comparatively minor items that are usually found in such omnibus bills. A number of the provisions of the bill are of greater import than usually is the case. The first of the amendments is in schedule 1.1, which amends the Anti-Discrimination Act and makes changes to section 25 so that two exemptions from the general prohibition on discrimination on the ground of sex are removed. The exemptions that are removed allowed an employer to not offer a pregnant woman a job or to dismiss a pregnant woman from her job if the woman was pregnant at the time she applied for or was interviewed for the job. I think the Attorney was correct when he argued in his second reading speech that those exemptions are inconsistent with current community standards. It is a great shame that similarly sensible amendments were not made to section 20D of the Anti-Discrimination Act. The Government has said that it will not introduce those amendments, including unanimous recommendations from a cross-party parliamentary committee.

Mr David Shoebridge: It is only four years old.

The Hon. ADAM SEARLE: I acknowledge that interjection. If the Labor Opposition is elected to government in March next year it proposes to introduce legislative proposals within 100 days of election. Schedule 1.2 makes amendments to the Civil and Administrative Tribunal Act. These introduce comparatively minor changes to the NSW Civil and Administrative Tribunal [NCAT]. The tribunal can now appoint a person to act as a separate representative or guardian ad litem for a child in proceedings that significantly or directly affect the child where the child is not a party to the proceedings. Parties in the administrative and equal opportunity division of the tribunal are now entitled to be represented by a lawyer without seeking leave. The rules are changed in the guardianship division dealing with written reasons by three tribunal members. Whilst mentioning this division, I ask the Government to advise when the report of the KPMG review of the Surety Bond Scheme will be released and when there will be a government response to the report. I also ask the Government to advise whether there is any actual or proposed litigation between the State, the NSW Trustee and Guardian and/or Aviva and/or Willis Towers Watson.

There are also some comparatively minor changes to the Crime Commission Act. The requirement of the commission to seal a thing or document that is produced to it as part of an investigation is removed. This will bring the commission into the digital age. In a similar vein, the commission can now serve documents by email. There is also capacity now for the commission to waive the usual financial information disclosure requirement for staff seconded from another New South Wales government agency or police officers seconded from outside New South Wales.

Schedule 1.4 amends the Crimes Act. This includes statute law revision changes to section 94, which deals with stealing or robbery from a person. The other amendments to the Crimes Act are among the most significant provisions of the bill. These involve changes to section 73 of the Crimes Act, dealing with sexual intercourse with a child between 16 and 18 years of age under special care. The bill deletes section 73 (3) (b), which presently defines the victim as being under the special care of the offender if the offender is a school teacher and the victim is a pupil of the offender. A recent court decision interpreted those words to mean exactly what they seem to mean: A victim had to be a pupil of that teacher for the offence to be made out and the victim had to be between the ages of 16 and 18. Section 73 (3) (b) becomes: The offender is a member of the teaching staff of the school at which the victim is a student. That, in turn, is defined in the new section 73 (6) to include a teacher at the school, or the principal, or a deputy principal at the school, or anyone else employed at the school who has students at the school under his or her care or authority. I note the comments the Attorney made in his second reading speech about the categories of school employees likely to be caught by this provision. This will be dependent upon the circumstances of each case as determined by the court in accordance with the new provision.

The Criminal Records Act is amended to update a reference to section 73 of the Crimes Act. The Evidence Act is amended to acknowledge the melancholy decline in Australia Post’s delivery of mail. I note what the Parliamentary Secretary said about that. Schedule 1.9 amends the Land and Environment Court Act so that various specified proceedings can be dealt with under class 4 of the court’s jurisdiction. The Law Enforcement (Powers and Responsibilities) Act will be amended so that a court that finds the offence of driving with illicit drugs in a person’s oral fluid, blood or urine under section 111 of the Road Transport Act to have been proven, may make an order requiring the person to attend a police station to have that person’s fingerprints, palm prints and photograph taken.

The bill includes amendments to the Succession Act that are said to result from a review of the Act. The statutory review was tabled recently in the Parliament. The review made six recommendations; five of those seem to be contained in schedule 1.10 to the bill. The second recommendation of the review appears not to have been implemented in this bill. I ask the Government to indicate in its reply if this is indeed the case and, if so, the reason for its omission.

The last set of amendments deal with the Criminal Procedure Act, particularly a number of criminal offences that can at present be dealt with only on indictment—that is, before a judge and, if contested, before a jury. The proposal in the bill is that in some circumstances they can be dealt with summarily—that is, before a magistrate and to completion. That is achieved by including them as table offences in one of the two tables in schedule 1 to the Criminal Procedure Act. The specified offences will be heard summarily unless either the prosecutor or defendant elects to have the matter heard in the District Court. The offences concerned in this amendment are: robbery under section 94 of the Crimes Act, perverting the course of justice under section 319 of the Crimes Act, recklessly dealing with the proceeds of crime under section 193B (3) of the Crimes Act, and supplying a prohibited drug against section 25 (1) of the Drug Misuse and Trafficking Act when the quantity of the prohibited drug involved is less than a commercial quantity.

We do not have a problem with the logic of this proposition; just as the Criminal Procedure Amendment (Summary Proceedings for Indictable Offences) Bill 2016 also made some strictly indictable offences into table offences. There are several practical implications of the bill’s amendments. The sentencing options—that is, the maximum length of the sentence that can be imposed—are significantly less for a magistrate than for a judge. However, if a likely sentencing outcome is within the sentencing jurisdiction of the Local Court, then it seems sensible to have the matter finally determined in the Local Court. In the case of each table offence, the prosecution retains the right to elect to have it dealt with in the District Court under its greater sentencing jurisdiction. Provided that the prosecution is performing its functions efficiently, this seems a sensible arrangement. Being dealt with summarily means matters will be completed more speedily to the benefit of everyone, including the defendant, victims and witnesses. It will also mean fewer resources being utilised.

Those who are cynical may be entitled to think this type of amendment is more about the crisis of delays in the District Court. There have been recent government announcements, an allocation of funding and the very successful rolling list program initiated by the Chief Judge of the District Court, but as the incoming President of the Law Society, Mr Doug Humphreys, reminded everyone at his speech at the opening of law term recently, there is still significantly more to do. The Opposition does not think that the solution to District Court delays is to give more matters to the already overworked Local Court. Since this Government came to office, eight magistrates positions have been cut. The Government can find $2.5 billion to knock down and rebuild stadiums in Sydney but not enough to properly fund the criminal justice system.

The Hon. Daniel Mookhey: Hear, hear!

The Hon. ADAM SEARLE: I acknowledge that interjection. The Chief Magistrate has repeatedly warned of the problems of underfunding of the Local Court system. It defies logic to keep giving extra work to the Local Court without providing commensurate additional resources.

This is an attempt to reduce pressure on the District Court by increasing pressure on the already stressed Local Court system. The inclusion of these offences as Table offences makes sense; however, doing so without adequate resourcing for the Local Court does not. With those comments, I indicate that the Opposition does not oppose the bill.