Second Reading

Resumed from 13 June

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [3.52 pm]: I rise on behalf of the Greens as the lead speaker on the Court Jurisdiction Legislation Amendment Bill 2017, and indicate that the Greens will be supporting this legislation. I note that the bill follows a review by the Solicitor-General. The review was not tabled, but I was advised post the briefing that it was in fact a memo between the Solicitor-General and the Chief Justice and, as such, it is privileged. I want to confirm whether that is indeed the case.

What the bill is doing is quite sensible and will assist the courts to manage their workloads far more effectively. It will give the District Court jurisdiction over offences that carry a penalty of life imprisonment, except for homicide or unlawful killing–type offences. The District Court is largely a criminal trial court, so it already has the necessary expertise, especially in relation to drug offences. Importantly, its trials are ordinarily shorter than Supreme Court trials, because it does not deal with homicide cases. I am pleased to note that the District Court now has two new judges to help meet the increased workload. I also note that the Attorney General said in June this year that this is still not enough, and it is likely to need another one or two. I note that it has been suggested that, ideally, we would have 10 judges to reduce the District Court waiting time to two months. In any event, the second reading speech states that the proposed division is also consistent with the approach already taken in other states.

The second thing the bill will do is to increase the monetary limit that can be dealt with in the Magistrates Court from $10 000, which was the amount set back in 1996, to $50 000 for some property offences, so that the Magistrates Court can deal with some cases that would otherwise have to go to the District Court. I note that the number of magistrates has also been increased by two.

Thirdly, the bill permits, but importantly does not require, unlawful threats to kill to be dealt with in the Magistrates Court, where the penalty will be up to three years’ imprisonment and a $36 000 fine. I note that the second reading speech indicated that this charge is most often associated with other domestic violence–related charges that are being dealt with in the Magistrates Court, resulting in proceedings both in the Magistrates Court for those charges and in the slower District Court for the unlawful threat charge. We know that this is very often not ideal, particularly for victims of domestic violence. This is an important reform that has been specifically requested by domestic violence advocates. I note that the Chief Justice, the Chief Judge, the Chief Magistrate and the Director of Public Prosecutions have all been consulted on the bill. Again, the second reading speech stated that the first three are happy with it, and I understand from the briefing that the DPP is also happy with the bill and in fact suggested the changes regarding unlawful threats.

Clause 2 provides that different parts of the act may come into operation at different times. That is obviously to allow for regulations to be drafted regarding the matters to be prescribed.

I refer to the offences that are now going to be able to be dealt with in the District Court instead of the Supreme Court. Currently under the District Court of Western Australia Act, the District Court has no jurisdiction over indictable offences with a maximum penalty of life imprisonment, with the exception being serious meth crime. Clauses 4 and 5 of the bill propose that now only certain life-imprisonment offences will not fall within the jurisdiction of the District Court and will remain exclusively within the jurisdiction of the Supreme Court. As has been said, these are the most serious offences against the person—murder; manslaughter; attempt to unlawfully kill; to procure suicide; to prevent the birth of a live child as a woman is about to deliver; and a number of other prescribed offences, most notably homicide-related commonwealth offences. The District Court will be able to deal with non-homicide-related commonwealth offences, such as trafficking or cultivating commercial quantities of drugs. I note that regulations will define the commonwealth offences by subject matter rather than by reference to specific offences. This is because WA does not always know exactly how the commonwealth is going to enact or prescribe the offence. The change means that these life-imprisonment offences will now fall within the jurisdiction of the District Court unless otherwise prescribed. We are talking about perjury if done to procure another person’s conviction of a life-imprisonment offence; armed robbery; armed assault with intent to rob; arson; and committing, preparing, planning for or financing a terrorist act. I understand from the briefing that the Supreme Court is also not going to lose its jurisdiction over those offences. It is going to be up to the prosecution to choose whether to file in the District Court or the Supreme Court, and an application for transfer to the other court will be possible. Terrorism cases that do not involve the death of a person and can be brought in either court will, in practice, probably be brought to the Supreme Court, which is appropriate. Thankfully, WA has to date had very few terrorism cases, and I hope this remains the case. It is important to note that the Supreme Court will continue to deal with cases that are on foot within its jurisdiction.

We will also ensure that offences can now be dealt with in the Magistrates Court instead of the District Court. Notably, the Criminal Code provides at the moment that threats to kill a person cannot be dealt with summarily, and clause 7 of the bill changes this to provide a summary conviction penalty of imprisonment for three years and a fine of $36 000, as I mentioned. Section 5 of the Criminal Code deals with charges that can be brought in either court, and also sets out the circumstances in which a court can decide that the murder must be tried on indictment, rather than summarily. To quote section 5(3)(a), these include —

that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused;

This effectively means that threats to kill can still be tried in the District Court if the circumstances are such that if the defendant were convicted, the summary conviction penalty that has been prescribed would be woefully inadequate.

I also note that there is a higher ceiling for property matters. Currently, burglary and fraud cannot be dealt with summarily if the property is worth more than $10 000. This will increase to $50 000, which is a more appropriate figure. The property value ceiling for summary proceedings for certain stealing offences and fraudulent dealing by a judgement debtor will also be increased from $10 000 to $50 000. I think this will have a positive impact. I agree that it will be a positive reform through the impact of the changes on the number of cases appearing before the courts.

I note that in 2016, the Supreme Court had 314 cases and 49 of those were homicide cases; this is not considered a particularly unusual figure. Defendants usually plead not guilty to homicide offences and homicide trials can take 7.7 days on average. The Supreme Court also had 265 non-homicide cases that could have been dealt with in the District Court had this bill then applied. That includes 179 robbery cases and other non-homicide trials, which usually take 2.9 days on average. As it is, the District Court tends to double-list its cases, because about half its cases that are listed for trial either adjourn or the defendant ends up changing their plea to guilty. In 2016, the District Court had 2 515 cases. Had the bill applied, it would have been dealing with 2 780. It is not known how many of these could have been dealt with in the Magistrates Court if this bill had been applied because, as I understand it, the data warehouse does not capture the information to this level. But, in any event, the number of cases lodged in the Magistrates Court will not change, but more of them may be completed in that court, rather than being committed to the District Court.

To deal with the bill’s changes, as I mentioned, the number of judiciary has already been increased by two in the District Court and by two in the Magistrates Court. I have been given undertakings that the government will be monitoring the number of judiciary, and it anticipates, as has been mentioned, a further increase in the number of District Court judges. I am interested to receive a bit more information on how that is likely to be undertaken. Separately from the bill, the government is also considering extending the infringement process to public order offences. If implemented, this would increase the number of cases going to the Magistrates Court.

I refer to the issue of ramifications around legal fees. I understand from the briefing that much criminal work is subject to legal aid and that legal fees for matters in the Supreme Court and the District Court are approximately the same. Little change in legal fees is likely to result from the proposed increase in jurisdiction of the District Court, other than the fact that the length of the court cases will be reduced more generally; therefore, hopefully, that will have a positive impact. Successful defendants in the Magistrates Court can get cost orders; hence, the increase in the proposed jurisdiction of the Magistrates Court may result in more cost orders. Really importantly, shorter remand periods because of shorter waiting times for trial in the Magistrates Court will be a saving for the community. I remind members that the Department of Corrective Services’ last annual report indicated that it costs approximately $297 a day to keep an adult in prison. Anything that expedites that process is very welcome, as far as I am concerned. If, in the future, the infringements process is extended to public disorder offences so that fewer of them proceed to court, that will be a further saving.

I am hoping that, overall, this legislation will result in matters being expedited in a far more time-sensitive way; people being kept out of our prisons for longer periods; and some flexibility and commonsense starting to apply in the way that particular matters can be heard and in which appropriate court. The second reading speech says that the government is committed to ensuring that it will continue to maintain the resourcing issues. As such, I really hope that we are keeping a close eye on this. Ultimately, I think this is a sensible reform. I am hoping that it will enable swifter justice for everyone who is concerned with these processes and it will be more cost-effective, so the Greens will most certainly be supporting this legislation.

[Speeches and comments from various members]

Debate interrupted, pursuant to standing orders.


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