JUSTICE LEGISLATION AMENDMENT BILL (NO 2) 2018

2nd Reading Speech

6 June 2018


The Hon. ADAM SEARLE (11:25): On behalf of the Labor Opposition, I lead in the debate on the Justice Legislation Amendment Bill (No 2) 2018. The Opposition does not oppose the bill. The object of the bill is to amend various and varied pieces of legislation relating to courts, crimes and related matters. Amendments are proposed to the Criminal Procedure Act, the Law Enforcement (Powers and Responsibilities) Act, the Mental Health (Forensic Provisions) Act, the Crime (Sentencing Procedure) Amendment (Sentencing Options) Act, the Terrorism (High Risk Offenders) Act, the Government Information (Public Access) Act, the Crimes Act, the Crime (Sentencing Procedure) Act, the Children (Criminal Proceedings) Act, the Succession Act, the Supreme Court Act, the Criminal Assets Recovery Act, the Court Suppression and Non-publication Orders Act, the Crimes (Domestic and Personal Violence) Act, the Guardianship Act, the Powers Of Attorney Act and the Young Offenders Act.

The amendments to the 17 pieces of legislation are quite diverse. In addition to amendments to these 17 Acts, which are all contained in schedule 1, an additional schedule 2 provides consequential and revision amendments in the nature of statute law revision amendments to 23 other pieces of legislation, including some that are amended pursuant to schedule 1. Schedule 1.3 amends the Court Suppression and Non-publication Orders Act. Section 8 (1) (d) of that Act currently provides that a court may make a suppression order if it is necessary to avoid causing undue distress or embarrassment to a party or to a witness in criminal proceedings involving an offence of a sexual nature, including an act of indecency.

That provision caused the Government considerable embarrassment in November last year in a District Court case at Dubbo. The identity of the defendant was suppressed in an historic sex abuse case even though the complainant was perfectly happy to have her identity revealed. Unsurprisingly, that history was not acknowledged in the second reading speech, although it is fairly obvious that that was the genesis for this amendment. At the time, the Opposition thought that the outcome was a bit silly, although the court was undoubtedly only applying the law as it then stood. The general principle of open justice is not only good but also necessary and should not be departed from without powerful and compelling reasons. The proposed amendment inserts a new subsection (3) which qualifies subsection 1 (d) by stating that there must be exceptional circumstances for a suppression or non‑publication order to be issued to avoid causing undue stress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature.

Schedule 1.4 provides amendments to the definition portions of several parts of the Crimes Act. Among other things, it makes it clear that the breasts of a female person, a transgender or an intersex person identifying as female are private parts, whether or not the breasts are sexually developed. The necessity for that amendment is said to flow from a Court of Criminal Appeal decision. The second reading speech does not identify the case. I ask that the Parliamentary Secretary in reply indicate the name of that case. Schedule 1.6 amends the Crimes (Domestic and Personal Violence) Act so that proceedings relating to an apprehended violence order against a child are to be held in closed court, as is currently the case for proceedings in which a child is a witness or a protected person. That is one of the cases where there are very good reasons for a closed court. Schedule 1.7 amends the aggravating, mitigating and other factors in sentencing set out in section 21A of the Crimes (Sentencing Procedure) Act.

An aggravating factor to be taken into account in sentencing is if the victim works at a hospital, other than as a health worker. Health workers are dealt with under new section 21A (2) (a). This amendment includes persons such as security guards and support staff.

Schedule 1.8 is also quite interesting. Nineteen of the amendments in this schedule amend the provisions of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act that have not yet commenced. That legislation passed Parliament last year. We are now midway through this year and last year’s legislation still has not been brought into effect by this Government. The Government’s legislative program and its implementation is as speedy and efficient as the construction of the central business district light rail project.

The Labor Party welcomed some of the 2017 provisions with some enthusiasm. We should have known it was too good to be true. We ask the Parliamentary Secretary in reply to indicate whether it is proposed that those provisions will commence and, if so, when? For example, will it be before the State election? It is not unreasonable that we ask for this information. This Parliament has enacted legislation; the Government has not brought it into effect by executive action. The Parliament is owed some courtesy and explanation. This lack of action demonstrates more than tardiness by the Government. It has a whiff of rank incompetence about it—requiring amendments to its own legislation within 12 months of its introduction and before it commences. We thought it would try to get it right the first time. It is a serious matter. If it was not so serious it would be comical.

Schedule 1.10 [14] amends the Criminal Procedure Act relating to what it calls terrorism evidence. This evidence is designated by the prosecuting authority to be terrorism evidence. This designation can be applied even if material has been handed over. Legal representatives can be given a copy of the material with the restrictions as to how it can be seen by their clients. An unrepresented defendant can obtain reasonable access to view or to listen to but not to copy the material. Schedule 1.10 [15] inserts new section 298A in the Criminal Procedure Act, which provides that in criminal proceedings a person cannot seek to compel by subpoena, or otherwise, a victim of a sexual assault offence to reveal the identity of the victim’s counsellor.

This is an important provision. Being a former legal practitioner like me, Mr President would remember the controversy that occurred in the mid to late 1990s when the protections for sexual assault counsellor’s notes had a hole punched in them by a decision of the Court of Criminal Appeal, necessitating further amendment by the Parliament. While I am not critical of the courts for applying the law as they understood it to be, nevertheless, the policy outcome was undesirable and the Parliament had to patch up the legislation. We welcome this provision, which is travelling in that same direction to protect victims of sexual assault and their privacy.

Schedule 1.13 amends the Government Information (Public Access) Act by providing it to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any document prepared for the purposes of the High Risk Offenders Assessment Committee. Putting things in the conclusive presumption against disclosure is a significant step but, again, given the nature of the legislation involving high-risk offenders, members on this side of the House do not oppose that provision.

Schedule 1.15 applies the Civil Procedure Act to proceedings by the Local Court before the Chief Industrial Magistrate. This is achieved by amendment to the Industrial Relations Act. There is no longer a Chief Industrial Magistrates Court in New South Wales, although I understand that as a matter of practice all persons commissioned as magistrates are commissioned as industrial magistrates. Chief Industrial Magistrates Courts performed an important role in work health and safety prosecutions and award enforcement and underpayment cases under State and Federal awards and agreements. It was an important part of the industrial relations system, but some time ago its jurisdiction was effectively folded into the Industrial Court, which was abolished and is now reposed in the Supreme Court. I understand the reasons behind the necessity for this amendment. We do not oppose it. It keeps the infrastructure of a Chief Industrial Magistrates Court in this State alive legally while waiting for further jurisdiction to be conferred upon it by the next Labor government to be elected in March next year. We also welcome this amendment.

Schedule 1.17 amends what is known as the Law Enforcement (Powers and Responsibilities) Act, the so‑called LEPRA legislation. It removes part 4 division 2 and creates a new section 23. The existing power of the police requires a person in a public place or school to submit to a search if the police officer suspects, on reasonable grounds, that the person has a dangerous implement. That does not give police the power to search on one view. This amendment clearly gives them that power. As to whether it is a clarification or a substantive change to the law, I suspect it is the latter, but we do not oppose this provision.

Section 198A is amended so that when a police officer gives a so-called “move on” direction to a group of intoxicated persons in a public place, the police officer is not required to repeat the associated warning to each individual person in the group. This applies the existing provision about warnings to persons in a group under part 15 of the Law Enforcement (Powers and Responsibilities) Act to a warning under section 198 (6). The Supreme Court Act is also amended to take account of the decision ofMorgan v The District Court of New South Wales [2017] NSWCA 105. While mentioning amendments to the Supreme Court Act, I ask the Parliamentary Secretary in reply to indicate what progress, if any, has been made in implementing the recommendation of the Law Reform Commission report in the Court of Appeal.

Schedule 1.22 has items running to several pages amending the Terrorism (High Risk Offenders) Act which passed through the Parliament last year. Yet again we have the Government amending its own legislation a short time after it was introduced to Parliament. This is the second example in the bill before the House of this happening. It is beginning to look like more than coincidence. It is more evidence of questionable competence or, indeed, incompetence of the Berejiklian Government in this State. Section 60 of the principal Act is entirely replaced. With those comments, as I indicated at the outset, we do not oppose the legislation.