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Legislative Assembly for the ACT: 2008 Week 10 Hansard (26 August) . . Page.. 3644..


MR STEFANIAK (continuing):

matters there can be forum shopping, it clogs up the court's time and it is really a waste of everyone's efforts. So I think that is a reasonable improvement to the law.

The bill enables the Magistrates Court to deal with minor examples of aggravated burglary or aggravated robbery at the defendant's election, subject to the agreement of the court, the prosecution and the defence that the matter is sufficiently minor. I am pleased to see that at least all of those parties have to agree. One of the problems in our criminal justice system—again, harking back to another jurisdiction, the Supreme Court—is that, in trials by judge alone, only the defence has to request that, and that is very different from what occurs interstate.

The bill also enables the Magistrates Court to hear ex parte matters, but only if the court is satisfied that the defendant is waiving the right to appear in person and that that decision is fully informed and made voluntarily. That, in itself, could be a problem. I am told by the officials—and I have not actually heard any complaints from practitioners or other people involved with the courts—that there are not all that many ex parte matters. These are normally traffic matters and minor offences such as that.

Some time ago, there used to be quite a considerable volume. I think it is very difficult and it highlights problems with the Human Rights Act, in that the government might say, "We have to not comply with the Human Rights Act here because of X, Y and Z,"and give a very good reason. The government seems to be reluctant to do that, and tries to say that all of its legislation is compatible with the Human Rights Act when, clearly, some of it is not, and there is probably a good reason for that.

In this case, the court has to be satisfied that the defendant is waiving the right to appear in person and that the decision is fully informed and made voluntarily. That involves a fair amount of effort. When we are dealing with minor ex parte matters, which is when the defendant does not turn up, they are convicted in their absence and notice of a fine is sent out, they can set that aside if there is a problem, or apply to have the matter heard, if there is a problem, and set it aside. To force the prosecution to ensure that the defendant is waiving their right to appear in person just adds an additional burden to something which was a very simple matter and which basically operated very effectively for many years—albeit that now we apparently do not have quite as many as we used to.

In practice, it might not be a huge problem, if what I am told is correct in terms of the number of ex parte matters, but just in pure legal terms, and in terms of how much time the court and process servers et cetera are going to have to spend, it is an additional, unnecessary burden. If the system was not broken, why try to fix it? Again, it is slavishly following a provision in the Human Rights Act which has no relationship to reality.

I am pleased to see another provision—that is, increasing the Magistrates Court sentencing threshold from two years and/or $10,000 to five years and/or $15,000, in line with the Northern Territory and Tasmania. This is something the opposition has been calling for for some time. When we first put forward draft legislation in the last


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