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Justice Miscellaneous (Court Backlog and Related Matters) Bill 2020


Rosalie Woodruff MP

Rosalie Woodruff MP  -  Tuesday, 22 September 2020

Tags: Supreme Court, Legislation

Dr WOODRUFF (Franklin) - Madam Speaker, I indicate that the Greens welcome this bill which seeks to fix the substantial delays in the court system that continue to lead to the backlog of cases in the Supreme Court. It comes on the back of substantial work that has been undertaken since the Magistrates Court and consequential amendments legislation from last year and has had a very significant collaborative steering committee overseeing this process for a number of years. These formal and informal discussions have been in the making for many years. We are pleased to support the bill today. I have a number of comments to make about what it contains and what it enables.

In relation to preliminary proceedings reforms, currently an application for a preliminary proceedings order can be made in the Supreme Court and if an order is made the matter is returned to the Magistrates Court. At the conclusion of the preliminary proceedings hearing the matter is returned to the Supreme Court. To anyone standing outside the system and looking in, that is clearly not an efficient process and is leading to unnecessary delays. That an application for a preliminary proceedings order can now be made in the Magistrates Court means that process is simplified. We very much support that and it will still enable the scope and form of the hearings to be described and then a preliminary proceeding, if one is found to be appropriate, would follow on in the Magistrates Court.

Another aspect of the bill we strongly support is the consistency and terminology which has been introduced. The policy intent of the Evidence (Children and Special Witnesses) Amendment Bill 2020 has been continued throughout this bill to ensure there is a widening of a cohort of witnesses in the 'affected witness' category for the purposes of preliminary proceedings. It introduces a rebuttable presumption to ensure that during a preliminary proceeding an affected person will be given access to provision of evidence by audiovisual link and clarify that this should not prevent an affected person from giving evidence in the courtroom if they choose to.

At this point, I digress and thank the minister for making staff time available and organising the trip through the tribunal courts. It is a fantastic new place where all the tribunals will be able to do their work together. I noticed the very sophisticated audiovisual setup. This has really stepped up a big notch with COVID-19 and it is clear that for so many reasons, for physical access and geographical access but also to maintain safety and security for different witnesses -

Ms Archer - It is state of the art.

Dr WOODRUFF - Yes. To have those facilities is great. I certainly hope they are replicated in other court jurisdictions -

Ms Archer - We hope to.

Dr WOODRUFF - and if they are not there now that some money will come for that to happen sooner rather than later because it is really important.

The bill also includes amendments to bail provisions to improve efficiencies in the bail process and to avoid unnecessary hearings for bail in the Supreme Court. The individual's right to bail is not affected but it will ensure that bail applications are heard in the appropriate place.

The Australian Lawyers Alliance put in a submission on this bill. They were concerned that the imposition of a 21-day limitation period on the filing of applications would unfairly bar defendants from appealing against a refusal to grant bail after that period passed. They felt that the legislation we are looking at is silent on the power of a judge to hear the application if it is filed later than 21 days. I understand that a person can apply for bail at any time, either orally or through the court processes, and that they can make an appeal after that time has elapsed, so I do not understand that this is the concern that they were raising. It does not seem to be the case that a person can apply for bail at any time, but if the minister could speak to their concern that the bill is silent on the power of the judge to hear the application if it is filed later than 21 days I would appreciate that.

Another general question raised about this bill that is not about the contents of the bill but really about what is not in the bill was also from the Australian Lawyers Alliance surrounding the disclosure of police evidence. They have said the bill does not address the ongoing systemic problems associated with the disclosure of evidence by Tasmania Police which, in their view, is the primary cause of delay in the Supreme Court. Consequently, they say the Magistrates Court will become congested with cases that cannot proceed to preliminary proceedings in a timely manner due to insufficient disclosure. The bill also fails to address the problem of defendants being committed for trial without complete disclosure and in effect, the disclosure problem that has congested the Supreme Court they say will proceed unabated.

This is an issue the Australian Lawyers Alliance raised in their submission for the Magistrates Court bill last year. I met with members of the alliance and had some long conversations with them about that. There are few issues here. When they are talking about the disclosure of evidence, the evidence that should be available for a prosecution to determine whether a case should be made - and I am reading here now from the DPP's Prosecution, Policy and Guideline, is that -

A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by an identifiable person.

The guidelines also say that a prima facie case is necessary but not sufficient condition for launching a prosecution. Given the existence of a prima facie case it must be understood that a prosecution should not proceed if there is no reasonable prospect of a conviction being secured before a hypothetical reasonable jury or a magistrate in the case of summary offences. The decision requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact and the admissibility of any alleged confession or other evidence.

The reason I am reading this is because it was the concern that disclosure is only now for indictable cases and the majority of cases are not indictable so that disclosure is not currently required. At least that is my understanding of where we are at.

The bill that was passed last year on the Magistrates Court bill does mandate more disclosure. It will require more disclosure to occur so that legal defence and people who are defendants can have information in advance about the level and extent of the evidence that the prosecution has mounted.

It goes to the availability and the witnesses and any other material that would be germane to the defendant or the representor mounting the defence. If the minister would not mind addressing this, I understand from the briefing I had the rules and regulations that are to be prepared following the Magistrates Court Act from last year are in the process of being written and they are not finalised yet. It will address some of the concerns the Australian Lawyers Alliance has raised about disclosure of evidence. The Justice Connect website or database will be connected with the Police database and other ICT mechanisms will be established. These have not yet happened and they are in the process of being rolled out. If the minister could speak to the timing of that, that would be useful.

That would still in itself only erase part of the concern that the Australian Lawyers Alliance is arguing here about disclosure of evidence. They are not happy that the Magistrates Court bill did not mandate complete disclosure by the DPP to the defendant or their legal representative prior to a plea being entered. That is a fundamental argument that they are making, which has not been satisfied by the Magistrates Court Act, as I understand it, and is also not addressed in this act, which it was intended too. They were raising this in passing as an issue which is relevant and remains outstanding.

In addition, another element to this bill is it enables a number of new minor summary offences that mirror more serious crimes. These enable the prosecution to exercise discretion and to make sure that the matter is dealt with in a way that is appropriate for the nature and the scale of specific offending.

I draw the discussion to the mirror summary offence for trafficking in a controlled substance and for cultivating a controlled plant for sale. Part of the problem here is that we have a manifestly unreasonable, unjustifiable and socially unacceptable level of penalties and potential maximum sentences that can be imposed on a person for extremely minor amounts of personal drug use.

The problem in this state is that we have a complete ideological blindness to the failings of this Government's approach to dealing with drug-related crime. The effort, instead of being placed as it should be, on the trafficking and cultivation of drugs, it is placed instead - the majority of the arrests and the charging and court time is taken up not with people who are trafficking and cultivating large amounts of drugs for sale but on people who are there for personal drug use.

That is unjust. It is appalling that the failure of the war on drugs is playing out still in Tasmania with a Liberal government continuing to push this, filling our prisons with people who have been charged, convicted and sentenced sometimes for no more than very small amounts of illicit drugs that are for their own personal use. It should be a crime to not treat this as a health issue, which is what it really is.

I draw the minister's attention again, in case she has forgotten because she was not the minister for corrections at the time, to the wonderful work that was done by Ben Bartl from Community Legal Centres Tasmania. The report titled, The Case for a Health Focused Response to Drug Use in Tasmania's Legal System, was a very important report. It was launched by a previous magistrate at the Law Society a couple of years ago now and Mr Bartl's work makes it very clear that almost half of all offenders in Tasmania sentenced to minor drug-related offences receive a fine but almost 15 per cent of offenders who are sentenced for minor drug offences are actually sentenced to a term of imprisonment, including suspended sentences.

His finding - and the finding of so many other people who do this research around the world - is that we cannot arrest our way out of illegal drug use. That is known at the state and Commonwealth level. There is a massive amount of support from ex-police commissioners and other people with expertise in criminology, but it is also reflected in the reality of the diversion programs that are offered by the police and by the courts in Tasmania.

Both the Police Drug Diversion and the court mandated diversion confirm that, at least for some offenders, personal drug use should be treated as a health rather than a criminal justice issue. We should remove the crime of drugs for personal use and instead put the money and the resourcing into both the rehabilitation of people who are using personal drugs and who come into the remit of the police and, of course, into trafficking and cultivation. You cannot pretend that the police resourcing and the court time that goes into dealing with personal drug use matters are not a resource that should not be better spent in some other way. That is the bottom line. If we want to look at efficiencies and effectiveness and we want to have a safer community, then that is what we need to be doing.

Madam Speaker, on that note, I acknowledge the inspection of adult custodial services in Tasmania report tabled last week, titled Rehabilitation and Reintegration Inspection Report. That was the inspection of Custodial Services 2018. The report identifies and reinforces a wide range of significant issues in our correction system and the minimum list is that education programs in the prison services are being cut; that prisoners are receiving no assistance to prepare for release, utterly shameful - and that the foundation and case management plans are not being reviewed as per the director's standing orders. The Custodial Inspector also found the need for more training for Tasmania Prison Service staff; inadequate resourcing to meet the needs of prisoners with disabilities; the lack of a drug and alcohol program for women prisoners; the need to increase prisoner employment; and health and safety concerns across the industry, food and other parts of the prison.

The Custodial Inspector acknowledged that prisoners have basic rights that have to be met at all times by the correction system, and the system is failing to deliver support to prisoners that would reduce the risk of reoffending. Surely that would be the very basic purpose of having a person in prison, so that they can return to the community in a state with the skills and the capacity to enable them to not reoffend again.

The Ron Barwick Prison has also been reclassified under this Government, from minimum security to a medium security facility.

Nineteen per cent of our prisoners in Tasmania are Aboriginal Tasmanians and that is a rate four times higher than the non-Aboriginal population. The rate of incarceration for those Aboriginal Tasmanians is unacceptable as is the rate of incarceration of young people, young children.

The Custodial Inspector's report makes it really clear that the approach to justice and crime in this state, under a Liberal Government, is a disaster. It is failing the community and it is continuing to place

Ms Archer - It does not say that at all.

Dr WOODRUFF - No, I clarified that that is what I say the Custodial Inspector's report clarifies. It makes the point very clearly, he does not say it, but it is apparent in all of the things that he -

Mr Jaensch - You are saying it for him, on his behalf.

Dr WOODRUFF - No, I am saying it for myself, after having read the report. What he has raised is very clear, Mr Jaensch, and you should read it. It is extremely clear.

Ms Archer - He acknowledges that it is two years out-of-date.

Madam SPEAKER - Order please.

Dr WOODRUFF - Madam Speaker, nothing has improved over the last two years and the minister has chimed in and said that it is two years out-of-date, yes, and I would be horrified to read what he has to say for 2020. If he gets to go through and have a look at what is happening now, all the information we are seeing is a prison on the brink of a catastrophic explosion -

Mr Jaensch interjecting.

Madam SPEAKER - Order please, Mr Jaensch.

Dr WOODRUFF - Madam Speaker, just last week we had a welcome announcement on the horizon, things like this happen very few and far between in Australia, but there has been the establishment of a new national body called the Justice Reform Initiative. This is a very important step. They have launched themselves across the country simultaneously in all states and nationally, with their report Jailing is Failing. It is failing as a deterrent, it is failing as the method of community safety, it is failing as a form of rehabilitation, and it is failing taxpayers who are paying through the nose for a system that is utterly unjust and does not keep them safe.

The Justice Reform Initiative is a welcome alliance from people across the political spectrum who have longstanding professional experience or knowledge in the justice system and who understand there is an urgent need to reduce the number of people in Australian jails. We are not going to do it if we keep on with this rubbish 'tough on crime' mantra because that has been shown to fail and the alternative is there in black and white. It is there in countries like the United States where they have made huge strides in this area. From being the country that is the most incarcerated nation on earth, they have started a big rethink on prisons. The reforms in Texas since 2007 have seen that state close four prisons. They have saved their own state an estimated $3 billion a year and that has cut the crime rate and the costly incarceration rates over the past 10 years in seven other states in the United States.

There is another way. If it is the only way to try to get yourself re-elected as a political party that is a really sad and sorry place to be as a political party. How about the Liberal Party have a look at what is happening in the United States, if you cannot bring yourself to have a look at Scandinavia that has been doing this stuff for ages, just go to the United States. Have a look at what is happening in Texas, it is all there; the experiment is being worked on now. We have the evidence and we know what needs to be done.

Ms Archer - I thought you were telling me to go to Texas.

Dr WOODRUFF - There are many ways to go to Texas; you can go there virtually. The Justice Reform Initiative has more than 100 of the most eminent Australians who are finally standing up to call out this rubbish approach to dealing with the high crime rates in the country. The patrons are two of the most distinguished Australians: the Honourable Sir William Dean and the Honourable Dame Quentin Bryce.

It has people from all around the country and we would have to mention Lara Giddings, former premier and attorney-general of Tasmania; Jim Wilkinson, former president of the Legislative Council; the Lord Mayor of Hobart; Christine Milne AO; Associate Professor Therese Henning; Greg Barns SC; and a number of other luminaries around the country. Elizabeth Evatt; Michael Kirby; Mary Gaudron; Mick Palmer, former commissioner of the Australian Federal Police; and Pat Turner, former CEO of ATSIC.

There is no doubt that they are on a roll and all power to them. We in the Greens will do everything we can to stand with the Justice Reform Initiative to speak up for the people who are the some of the most voiceless people in our society and to stand up for community safety, justice, and stand up for money being spent in a way that is going to produce an outcome which is going to make our communities healthier and happier. We really hope that the Minister for Corrections and the Minister for Justice will meet with members of the Justice Reform Initiative if she has not done so already, and will listen seriously to their arguments and think again about the push for a northern prison.

It is interesting that Lara Giddings, former Labor premier, has come out against her own party who are also in lock-step with the Liberals on the determination to build a northern prison. She says, and quite appropriately, is a waste of taxpayer's money investing $270 million into capital works infrastructure and the ongoing costs of a northern prison is not going to make for a safer community. You do not invest in more prison beds. You invest in community rehabilitation, housing, health, drug and alcohol counselling and support services, and you invest in the health system. That is how you do it. If you want to make a community safer that is what you do, but you do not build another prison. Yes, we need to retrofit the remand centre. It should be upgraded or replaced; there is no doubt it is not fit for inmates to housed there. We totally support Grant Herring from the criminal justice advocacy group, JusTas, when he said that building prisons does not solve crime problems but they tend to create them.

Madam Speaker, we call on the Labor and Liberal parties to get rid of their crazy idea of a second northern prison, not just for the people of Westbury but for the people of Tasmania, to invest in the justice system where it ought to be, where we know it has an effect and where it is going to create a more humane justice system and help reduce the backlog in the courts by not getting people there in the first place.