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Justice and Related Legislation (Further Miscellaneous Amendments) Bill 2023

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 17 October 2023

Tags: Justice, Legislation

Dr WOODRUFF (Franklin - Leader of the Greens) - Mr Speaker, the Greens are pleased to support this bill and the amendments to a whole suite of acts that it contains. I do not have comments to make on most of the amendments to those different acts, but I will speak in relation to the Criminal Code Act, Dangerous Criminals and High Risk Offenders Act and the Ombudsmans Act. The rest of the bill contains what we view to be uncontroversial corrections.

We have some questions regarding the recommendations by the Community Legal Centres Tasmania's Ben Bartl, who made that submission. That appears to be the only stakeholder that made a submission to the draft bill. Can the minister clarify if that is the case? We can address these questions that I have now from our point of view and we do not need to go into committee.

The Community Legal Centres Tasmania submitted that although the proposed amendment is positive in relation to the Criminal Code Act, they viewed it provides parties with more time to make a decision about a judge-alone trial than the act currently allows, their preferred approach would have been the model used in New South Wales. They make a number of comments in their submission about the context for that view. They say:

Requiring a decision about a judge-alone trial to be made within three months of the accused having first appeared before the Supreme Court continues to place unnecessary pressures on both the prosecution and the defence.

In many cases the prosecution's brief of evidence may not be finalised and as a result an accused may not fully understand the case against them. As well, in cases involving co-accused there may be not consensus amongst the parties of a trial by judge alone.

They also note the significant delays in Tasmania's Supreme Court.

The most recent report on government services for the state shows that we have the second highest percentage of criminal cases not finalised within 12 months of any Supreme Court in Australia. We have the largest number of criminal cases not finalised within two years of any jurisdiction in the country. The Chief Justice of the Supreme Court, Mr Alan Blow, has observed on many occasions, including recently in the Supreme Court of Tasmania's annual report, that the backlog problem remains very serious.

Further, the Community Legal Centres noted that there have only been two reported decisions in the Supreme Court in which a successful application for a judge-alone trial was heard. Both of those cases relied on psychiatric evidence and were ultimately concerned with the mental state of the person that was accused.

Anecdotally, the Community Legal Centres are aware that specialist psychiatric reports for Supreme Court trials are difficult to obtain and psychiatrists are not readily available to provide evidence under oath. It was for those reasons that they strongly recommended the adoption of the New South Wales model, which provides that parties must make an application to be tried not less than 28 days before the date fixed for the trial. The CLC strongly believes that adopting the New South Wales model will provide parties with greater flexibility as to when the decision is made for a judge-alone trial or not.

At the same time it would minimise the risk of parties applying for a judge-alone trial once the identity of the trial judge is known. It is obviously important not to leave it to late. In their view New South Wales has landed with their legislation in the right place.

They believe the deadline for an application for a judge-alone trial of 28 days before the date fixed for the trial is better than 30 days after the person first appeared before the Supreme Court in respect of the crime. Minister, could you explain if the Community Legal Centres' proposal was considered? What were the reasons for not adopting the approach they have proposed?

My second comment relates to the Dangerous Criminals and High Risk Offenders Act 2021. The CLC's Ben Bartl made comments in relation to these amendments. The CLC's proposition was that the language should be changed from 'may' to 'must', requiring the Supreme Court to order a report from a psychiatrist, a psychologist or a medical practitioner before making a high-risk offender order, given the disproportionately high number of people with cognitive and or psychiatric impairments in prison and the increased risk of an indefinite detention as a result of either of those impairments.

Their view is that because of that it is imperative that comprehensive medical, psychiatric and physiological evaluations are carried out and provided to the Supreme Court before an order is made declaring a person is a high-risk offender. They make that comment in relation to evidence from the New South Wales Law Reform Commission about the numbers of people in prison with cognitive and psychiatric impairments. We expect in Tasmania that it would be at least as high as in New South Wales.

The CLC's submission also suggested the author of the court ordered report should be able to identify whether there were less restrictive options available. They say:

No-one should be imprisoned indefinitely. At a minimum, as well as the factors as noted above, the author of the assessment report should be required to address whether there are less restrictive options, including the identification of appropriate supports in the community that could be imposed instead of indefinite detention.

It is the view of the Greens that these proposals seem eminently fair and sensible. It is difficult to imagine a scenario where this report or such reports would not be valuable and indeed, important. Attorney-General, can you please tell us why those recommendations were not taken up? Are you able to tell the House how many high risk offender orders have been made where such a report has and has not been ordered by the Supreme Court?

My final comments relate to the Ombudsman Act 1978. These were the final recommendations made by the Community Legal Centres Tasmania, where they supported the amendment to section 21 of this act that empowers the Ombudsman to make preliminary inquiries into an own motion investigation. They recommended that a further amendment to allow the ombudsman to discontinue an own motion investigation after preliminary inquiries are made, should be included in this bill.

I have to be honest and say that I do not quite follow their recommendation. As I understand it, the amendments to section 20A allow for preliminary inquiries prior to an own motion investigation commencing. I assume that the discontinuation of an investigation consequent to that would not be necessary, but could you please, Attorney-General, respond to that and to the recommendation more broadly. I would appreciate it.

I have a final query in relation to the amendments to section 20A. A concern was raised about the inability of a family member to raise the complaint on behalf of another person. This was subject to some media. In the case of that report, it was on behalf of a son in lockdown on remand. It is a concern if a person is not able to raise a complaint on behalf of a family member. In those circumstances, would this amendment to section 20A of the Ombudsman Act allow the Ombudsman, after an issue is raised by a family member, to elect to conduct preliminary inquiries with a view to initiating an own motion investigation?

Mr Barnett - I will try but I may not have the full answer tonight on that particular matter. I am happy to follow up.

Dr WOODRUFF - Thank you, Attorney-General. With that, on behalf of the Greens, we are happy to support this bill and we do not need to go into committee.