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Justice and Related Legislation (Miscellaneous Amendments) Bill 2018

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 26 September 2018

Tags: Legislation

Dr WOODRUFF (Franklin) - Mr Deputy Speaker, the Greens have a number of comments to make in relation to these miscellaneous amendments to the Justice and Related Legislation Act. We thank the staff for a hastily squished-in briefing on all sides. Thank you for providing us with some clarification on questions we have about the bill.

In substantial part we have no problems with the amendments that are being proposed to these various pieces of legislation. I note it has been three years since the last miscellaneous justice amendment bill came before the House. It is the practice, as I understand it, that the amendments to legislation that form part of these bills are non-controversial and essentially wholly procedural. It seems from my reading that that is the case, although I have some questions and points of clarification I would seek a response from the minister about.

I start by taking us to the title of the bill, which stood out to the Greens - and I commend Ms O'Connor for picking this up - because the bill's title includes reference to amending the Right to Information Act 2009 yet this bill does not make any such amendments within it. My understanding from the briefing was that that was a mistake in drafting and will need to be fixed up by the OPC so it is not carried through into the final vellum that would be tabled.

Ms Archer - I can answer that. It is a drafting error.

Dr WOODRUFF - Yes, correct, it is a drafting error. I was interested to see what aspects of the Right to Information Act might have been amended because the Greens have been vocal in our concerns about some grave deficiencies in that act. In 2015 we wrote to Mr Richard Connick, the then ombudsman, who wrote back to us in November 2015 confirming that it has been the view of the Ombudsman's office for some time that the effect of the operations of sections 43 and 44 in the Right to Information Act are as we thought, in that there is no provision within those sections for the internal review of a decision made under the Right to Information Act by a ministerial delegate, and therefore there is no avenue for an external review of such a decision.

This is a huge problem because it is constantly the case that information that ought to be available in the public domain gets sucked into a legal loophole and ends up being wholly silent to the Tasmanian community, when it really should be released under right to information so there is the possibility for an external review about the decisions that have been made by the RTI officer.

Section 24 of the Right to Information Act provides that a principal officer or a minister can delegate to a specified person any or all of their functions under the act, other than the power to delegate. Section 43 of the act provides for the internal review of a decision made by a delegated officer of a public authority but does not enable an internal review of a decision made by a minister. Section 44 provides for the external review of decisions, to which sections 43(1), (2) or (3) applies and is, as Mr Connick says, thus confined to decisions made by the delegated officers of public authorities that have been internally reviewed. Therefore if a minister's delegate makes a decision on an application for assessed disclosure, there is no avenue of review available to the applicant under the act.

That is clearly a problem because it provides an opportunity for ministers to hide their decisions and the reasons for them from public view. We have seen countless numbers of decisions being hidden from Tasmanians in all areas but particularly around the developments that are occurring in parks, in publicly owned land, wilderness areas, and also about forestry developments and approvals of land for forestry and just the developments on crown land in general. We are really concerned at the deficiencies in the Right to Information Act. They are a far cry from transparency and we will be continuing to push this Government to make those changes so that right to information is truly a right for all decisions that are made by ministers as well as public servants.

I want to turn to some other comments about things in this bill.

I had a question regarding the amendment of section 8(3)(e) of the Acts Interpretation Act 1931, which will include clause notes in the definition of 'extrinsic material'. Minister, could you tell us if there are any conventions governing the writing of clause notes, the material that must or must not be included, and the form in which they are written since they will now be included as explanatory material for each clause in a bill? I ask that question because I was looking back at Hansard at a bill that was passed in 2007. I was struck by the vastly different style of the clause notes and fact sheets for that bill - I have to say a quite lower standard than what we have at the moment.

Members interjecting.

Dr WOODRUFF - I am actually reflecting very favourably saying that there has been a big change. If you would just listen, instead of reacting so hostilely, you might hear that I am saying that there has been a big change and it has been a change for the better. However, in the future, we do not know whether that is a convention that builds on itself; whether anything is written down in guidelines about the writing of clause notes now. It is possible that they could become much less clear in the future. I look forward to your thoughtful answers on that, minister.

Section 77(2) of the Classification (Publications, Films and Computer Games) Enforcement Act makes some changes which seem very important. Section 77(2) now enables material that is provided to the court to make an order for an electronic medium that contains materials of child exploitation for a bestiality product can be destroyed. I have a question about what happens now. I inferred from the minister's comments that the electronic material is deleted. Is it the case then that the item is returned to the person? I guess that is the point, but if you could clarify that what will happen is that the device that carries the item will be disposed of. I guess the question goes to copies of that material: where are they, given the nature the internet? How do we deal with that in real terms when material has been posted online? I suppose, terribly, the answer is that we cannot. I am interested to know what work is happening in that space. In this case, it is where a person is not convicted of an offence; it clarifies just for a person not convicted. I assume it is the case that a person who has been convicted already forfeits electronic media. What happens in situations when the material is discovered?

Section 27 of the Corrections Act 1997 gives the correctional officer or police officer power to take someone into custody once a judicial officer pronounces a sentence of imprisonment. Under section 27, this amendment is to provide security officers with the power to take a person into custody when they have had a sentence of imprisonment pronounced, or bail revoked or has been ordered to be taken into remand. I have some questions about how that operates. Court security acts in other jurisdictions do not seem to tackle this issue. Perhaps the minister could inform us whether security officers are empowered in the same fashion in other jurisdictions. Is this the current practice operating in the Magistrates Court? In other words, is this amendment a catch-up to what is already occurring or will it signal a behaviour that is a departure from what is already happening?

The Greens have spoken previously in relation to other bills about the role of security officers in the Magistrates Court. Our concern is to make sure that people who are private contractors are governed by suitable guidelines and codes of behaviour, given they are not police officers. I want to be clear about what a security officer will be doing in what circumstances. It sounds to me the court is making an order and therefore the security officer is being empowered to undertake that task. If the minister could provide some information about whether there are any codes of behaviour for security officers in relation to that matter.

I am pleased to hear that section 4(a) of the Police Offences Act 1935 is being inserted to ensure that there is a requirement for people who are drunk, out of it or intoxicated, to be cared for when they are in custody. It is sadly the case that people have died in custody, usually from vomiting, fitting or going into heart failure as a result of drugs or alcohol they have consumed. We want to make sure that never happens. I suspect the reason it is here is because some sad incident like that may have happened in the past. It is a bit like fixing up the roads. It usually only happens after the fact. We do our best to try to predict things but it is rarely the case that humans work that way. If that is what has happened, it is good to hear that people in future will be protected by a requirement that they are cared for. I ask the minister to also elaborate on what care means in that context. Does it mean looking in on them at after a certain amount of time? Does it mean giving them some sort of a medical check? What form of care does it take?

My final question relates to the Evidence (Children and Special Witnesses) Act 2001. The Tasmanian Law Reform Institute has written a report, Report No. 23, which they published in January this year called Facilitating Equal Access to Justice: an Intermediary/Communication Assistant Scheme for Tasmania? In that report they asked for an amendment to section 7(c) of the Evidence (Children and Special Witnesses) Act 2001 to allow access to videotaped evidence for children and special witnesses for the purpose of research.

We understand from a conversation with the TLRI that it was indicated to them that the next Justice miscellaneous amendment bill would contain that particular fix, which they have argued strongly would be valuable to provide us with some data and information for research purposes that would fundamentally benefit children and special witnesses in the future. We contacted the minister's office on Monday last week and were advised that we were likely to hear something in the next couple of days. We expected this miscellaneous amendment bill, when it was tabled, to contain this amendment but it does not. I raised it in the briefing I received earlier, and I understand that that particular amendment will be coming shortly. Perhaps the minister could qualify what 'shortly' means? Will it be addressed in a standalone bill which has some amendments to that act, presumably other amendments? If that is the case, that is great news.

With that we are happy to support what is in this bill.