Page 1603 - Week 04 - Thursday, 7 April 2011

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The singular purpose of this bill is to relieve pressure on the Supreme Court. It is another band-aid approach to reform of the court system because the Attorney-General failed to get his beloved district court up—something he proposed off his own bat and without consultation.

This Attorney-General is too proud and too egotistical to accept the expert advice of the legal fraternity in relation to court reform. He has come up with his own idea in this case. I am sure that he will claim that this was a suggestion made by the Bar Association and the Law Society, but in fact what the minister proposes in this bill in relation to indictable offences is exactly half of the suggestion made by the Bar Association and the Law Society. Without the two components of that proposal in this bill, my understanding is that there is a general belief amongst the legal fraternity that they cannot support this legislation.

This bill seeks to change the way the Magistrates Court operates. It changes its criminal and civil jurisdictions and, as I have said before, establishes the Galambany court and the family violence court. Under this bill, an indictable offence will be redefined so that it now carries a maximum sentence of five years or more. This means that offences carrying a maximum penalty under five years will be dealt with summarily by the Magistrates Court, with no option available to a defendant to elect to go to the Supreme Court. The current threshold is two years, with an option available for defendants to elect for summary or indictment hearings for offences carrying a maximum penalty of two to five years.

The approach proposed by the government is cumbersome and convoluted and sets out amendments to 22 other acts and regulations, because there are a large number of specific offences and circumstances that relate directly to indictable offences. For instance, a number of offices that can be held can be barred to people who have been guilty of an indictable offence. The current definition of that is punishable by a term of imprisonment of more than two years. With the government’s changing of the definition of indictable offence, it means that it has to go back and recast all of those barriers to people in a quite cumbersome way.

More importantly, the government’s bill represents a significant diminution in the right of an accused to have their matter heard before a jury. This derogation of human rights was the centrepiece of considerable discussion in report No 32 of the scrutiny of bills committee, and it is worth summarising the position put by the committee. It is interesting that in many ways the position put by the committee and the adviser to the committee was reflected in many of the discussions that I had with members of the community about this, including the historical references that I will allude to.

It may be surprising to some that the ACT Human Rights Act does not necessarily confer a right to a trial by jury. The minister and his officials in their comments have gone out of their way to make the point that they do not believe that they are derogating from the human right of a right to a fair trial by diminishing a right to a jury trial. The early stages of development of the ACT Human Rights Act did contemplate enshrining a right to a jury trial, but over time that changed. The scrutiny of bills committee noted in report 32:

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