Legislative Assembly for the ACT: 2009 Week 09 Hansard (Thursday, 20 August 2009) . . Page.. 3443 ..
right to liberty for members of our community if they are arrested on a warrant for failure to attend court and held in custody for a matter which ordinarily would not attract a custodial sentence.
On that basis, and because the government is committed to ensuring that all rights of our community are protected in a proportionate manner, the bill amends this procedure so that the courts can once again deal with charges in the absence of a defendant without proof that the defendant has made an informed choice not to attend court. The bill provides a clear avenue for a defendant who is convicted in their absence to have their matter reopened and dealt with as a fresh case if they are able to show that they did not know about the case, had a reasonable explanation for not attending court or did not understand what the consequences of not attending court were. The government has consulted with stakeholders on this amendment and believes that this provides a good balance in protecting the rights of our community.
The bill contains other amendments of a more technical nature, many of which will serve to ensure that the existing legislation operates as effectively and efficiently as it can. I am grateful for the detailed input provided by stakeholders such as the Director of Public Prosecutions, magistrates, judges of the Supreme Court, representatives of ACT Policing, and Legal Aid, to ensure that these technical issues were raised and to ensure that the reforms made last year are fully and effectively implemented.
These technical amendments include ensuring that the Supreme Court can find alternative verdicts when the alternative verdicts relate to charges that are now summary in nature, following the amendment to the indictable offence threshold. They also include rephrasing the test used by magistrates to assess whether a matter should be committed for trial. This is not a change in the policy behind the committal test but a rephrasing, so that the manner in which a magistrate makes his or her decision about committing a matter to the Supreme Court is consistent with the traditional test, although the process has been amalgamated into a one-step process.
The bill also makes a number of technical amendments to the Evidence (Miscellaneous Provisions) Act 1991 to ensure that the amendments made to the act by the Sexual and Violent Offences Legislation Amendment Act 2008 will operate as intended.
The bill amends the offence provision in new section 40M, which deals with the unauthorised use of audiovisual recordings. The amendment clarifies that it does not apply to those people who are exercising any function considered necessary for the purposes of the investigation, prosecution and defence of the offence which is the subject of the recording.
The bill also replaces particular references to “disability” in the act with references to “vulnerability”, to remove confusion and more accurately reflect the intended scope. It also clarifies that pre-trial hearings are not mandatory, and explains the circumstances in which the CCTV room is considered part of the courtroom. This will remove the possibility that a witness will be removed from the CCTV room when restrictions on the viewing and presence of the witness in the courtroom apply.