Legislative Assembly for the ACT: 2008 Week 10 Hansard (Tuesday, 26 August 2008) . . Page.. 3648 ..
and understands that the court can hear the matter in his absence. As a practical matter, I do not see how a magistrate could be satisfied about this unless there has been personal service, which seems to me to require a change in the rules for serving the summons. It does not make sense to me to allow a summons to be served in other ways and then require the Magistrates Court to be satisfied about something that it can only be satisfied about if there was personal service. For this reason, I will be voting in support of Mr Stefaniak’s amendment to omit this change.
The bill also changes the rules for committal hearings to accord with the existing practice of using written statements rather than oral examinations in chief. The explanatory statement notes that this change merely reflects existing practice in committal hearings, which has departed from the legislative provisions currently applying. This, of course, was a matter recently raised by Ken Archer in his criticism of the sexual and violent offences bill, and I am glad to see it is receiving attention. It was a matter that I addressed during that debate last week. It is certainly important to ensure that the law as written reflects the actual practices being used in ACT courts. New provisions still allow a witness to be called for cross-examination so that evidence can be tested. I think this is an important protection for defendants.
The bill makes other changes, and I am satisfied that these changes in the latest amendments are a sensible means of encouraging efficient and effective use of court time. I will be supporting this bill, with the caveat that I will be voting in support of Mr Stefaniak’s amendment to the bill.
DR FOSKEY (Molonglo) (5.13): I consider that this bill is another example of the government’s end-of-term haste to pass various amendments before it risks losing its majority at the next election. While many of these amendments would, presumably, receive tripartisan support regardless of the make-up of the next Assembly, others would not. While it is hard to discern exactly what the main drivers behind these amendments are, their effects are reasonably obvious.
These amendments are justified partly on the basis that they will increase efficiency. They will certainly reduce court costs and tilt the playing field in favour of the somewhat beleaguered DPP. Whether or not this will achieve a proper balance between defence and prosecution is a moot point. Perhaps the present system is unfairly tilted in favour of the accused, perhaps not. But these arguments have not been put.
Merely to state that other jurisdictions have adopted these practices is not an argument in itself. It is disingenuous not to engage with these issues and to pretend that the primary strategic effect of these amendments will not be to limit the options available to defence counsel in the prosecution of their client’s case.
I am glad that the government has seen fit to retain some judicial discretion with these amendments in that both prosecution and defence counsel retain a limited capacity to apply to the court for permission to cross-examine a witness. The explanatory material for this bill claims that making hand-up committals the default process:
… will reduce stress to victims, avoid unnecessary examination of witnesses, and save time and costs for the court, the witnesses and the counsel.