Magistrates’ Court Bill: court struggling due to inadequate facilities and support

Hansard: 21 June 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Magistrates’ Court and Coroners Acts Amendment Bill makes a number of miscellaneous amendments to the Magistrates’ Court Act 1989, as well as to the Magistrates’ Court (Family Violence) Act 2004 and the Coroners Act 1985.

In introducing this bill the Attorney-General claimed that it would promote efficiency across the Magistrates Court system, promote modernisation of the court’s processes and promote the need for flexibilities. However, the bill needs to be assessed in relation to those claims.

In making that assessment the conclusion has to be that the bill will have very little impact on a number of crucial issues that are facing the Magistrates Court system at present. The Magistrates Court, like other levels of the court system, is suffering from serious delays that threaten to deny justice to accused persons, to defendants, to plaintiffs and to other interested parties.

Some of those delays are a result of the courts struggling to cope with the cases that are coming before them, given the amount of support that they get from the government. Others of those delays result from shortages in other parts of the legal and judicial system, such as the processing of DNA samples or other aspects of the preparation of cases for trial. However, the Magistrates Court system is struggling under a large number of difficulties that are mainly a result of the actions or inactions of government.

It is timely that yesterday an Auditor-General’s report into the administration of non-judicial functions of the Magistrates Court of Victoria was tabled in the Parliament. In this report the Auditor-General reviewed, reported on and exposed a number of serious problems facing the Magistrates Court. As its title indicates, the Auditor-General’s report deals with the non-judicial functions of the court, and it does not canvass the issue of delays within the court system. However, the Auditor-General has exposed some serious problems even with those non-judicial functions. He identified the need to upgrade the reporting regime that the court operates under to include better disclosure of time lines, more targeted performance measures and better disclosure of resource information that is linked to strategies. In relation to asset management the Auditor-General made it clear that the court is struggling to obtain the resources to make important upgrades to the court system, including the replacement of information technology, because it is required to fund a large amount of its asset management and replacement needs out of very limited recurrent funding.
The Auditor-General has also pointed to the new bureaucratic requirements that have been imposed on the court system by the government, which are creating a very heavy workload. At page 50 he says:

… importantly from the perspective of the administration of the courts, the new practice direction places a considerable, additional, administrative burden on senior registrars. They have primary responsibility for the management of the court fund and ensuring compliance with the required administrative and financial controls.

The new practice direction that the Auditor-General refers to was introduced by the government in recent times.

Perhaps most concerning of all is the Auditor-General’s exposure of serious security shortfalls within the Magistrates Court system. The Auditor-General found that there have been 584 reported security incidents in the Victorian courts over the past two years. He reported that only two courts — the Melbourne Magistrates Court and the Children’s Court — have a proper system of electronic weapons searches and that over the past two years at just those two courts there have been 1382 weapons seizures, with more than 1 in 12 searches resulting in a weapon being seized. There have been very high levels of security incidents, particularly in the metropolitan area — Frankston, Broadmeadows, Heidelberg and Ringwood.

Despite these security threats, not all courts have a continuous police presence during court sitting times. No country magistrates courts have protective services officers, 41 courts do not have security cameras, 43 courts do not have access to electronic hand wands for the screening of people entering the courts, and 3 isolated courts do not even have duress alarms. Despite the Frankston Magistrates Court having the highest number of security incidents of any court, it does not have security cameras at the front entrance or inside the building.

Particularly in the context of recent events that have shown how vulnerable Victorians are to unprovoked and violent attacks in public places, it is absolutely imperative, as the Auditor-General points out, that the government act to ensure that security risks to staff, court users and the general public are minimised.

Despite that, the only response we have had from the government is the appointment of yet another consultant to look into the problem — issuing a tender for professional advice to assist the government in developing a safe and cost-effective solution, as the bureaucratic jargon puts it. These serious security risks are at the top of the list of the many problems that the Magistrates Court faces, and they require immediate action. The Attorney-General lauds this bill as promoting efficiency, modernisation and flexibility within the Magistrates Court system, but it goes nowhere near addressing a lot of the problems the court faces. Much more needs to be done than making miscellaneous administrative amendments such as those made by the bill.

Let us turn to the amendments made by the bill, which cover a range of topics. One of them changes the definition of ‘magistrate’ to include a reference to acting magistrates. That allows for some simplification of drafting in various places throughout the existing Magistrates’ Court Act.

The statement of compatibility under the Charter of Human Rights and Responsibilities also states that there will be amendments to allow magistrates who have been assigned to the Drug Court division, as well as magistrates who have not been assigned to that division, to make referrals from the criminal list to the Drug Court division of the court.

However, that statement does not fully explain the reasons for this second area of alteration being made by the bill, because quite frankly it is to correct an error that occurred when the original provisions were inserted in legislation in 2002 relating to the establishment of the Drug Court division. The error that occurred then was that where a magistrate had been assigned to the Drug Court division but was sitting to constitute a court outside the Drug Court division, the way the provision was worded meant that that magistrate was not able to refer a person to the Drug Court division.

That oversight is now being corrected, and it is being made clear that whenever the court is constituted other than as the Drug Court, regardless of which magistrate is presiding, it will be possible for the court so sitting to refer a defendant to the Drug Court division, if the court sees fit.

The Drug Court division is able to deal only with persons who live within a postcode area as specified by the government — by the minister — and therefore the operation of the Drug Court is very geographically restricted. However, if the defendant lives within the relevant postcode, any court not sitting as a Drug Court is now able to make that referral of proceedings to the Drug Court.

The next area of amendment being made by the bill is to insert the express power for the Chief Magistrate to assign duties to judicial registrars, and clearly that ought to be the case. The bill also gives registrars greater powers to adjourn criminal proceedings and to extend bail. The bill achieves that by amending section 3 of the Magistrates’ Court Act in relation to the mention system to make it clear that a registrar may, on application of a defendant, adjourn proceedings not only prior to the mention date, as applies at present, but on the mention date or on the return date. That is intended to give greater flexibility to allow bail to be extended where appropriate.

Opposition members were informed during the helpful briefing on this bill with which we were provided by officers of the Department of Justice that registrars would be empowered to make these decisions about extending bail only in circumstances where the prosecution did not object to the extension and that, if there was such an objection by the prosecution, the issue would be referred to a full hearing within the court and a decision would then be made.

We certainly hope there are administrative arrangements in place to make sure that the prosecution is properly and sufficiently alerted to applications for renewal and extensions of bail that are coming up, because clearly the granting of bail is a very sensitive matter in both directions — not only, of course, from the point of view of the person who has not been convicted of an offence and of wanting to minimise impositions on their liberty, but also, and very importantly, from the point of view of ensuring that people whom it would not be appropriate to have out in the community on bail pending their trial are not granted bail and that the potential for accused persons to abscond is minimised.

We have seen in recent times the difficulties that can be encountered when bail is granted to someone who then absconds, including in very high profile cases. That is not necessarily an error of judgement on the part of the judicial officer who makes that decision.

A judge, magistrate or other judicial officer can often be placed in a very difficult position where there have been long delays in matters coming to trial because, for example, DNA samples have not been processed on time due to resource constraints within the forensics laboratories and a backlog of samples need to be tested, and in that situation a judge or magistrate may think it is unfair to keep a person in custody for such a long length of time.

That is a dilemma that the magistrate, judge or other judicial officer should not be faced with, because trials should be able to come on in a timely manner and it is the responsibility of the government to make sure the administrative services supporting the court and the prosecution process are able to function efficiently.

But I emphasise that these greater powers to adjourn criminal proceedings and extend bail need to be exercised carefully, and we need to make sure that the administrative arrangements are in place so that the prosecution is notified in good time and has an opportunity to object and that in controversial and sensitive cases these decisions are made very carefully.

We have seen reports in the press in recent times of the practice of bail shopping, where people who get rejected on a bail application before one magistrate manage to go off and find another magistrate, make a fresh application and keep on trying until they succeed. It is said that there are administrative arrangements in place to prevent that happening and that the practice rules of the court should also prevent that happening by requiring that fresh bail applications come back, if at all possible, before the magistrate who heard the first application.

But there was a well-publicised case in the media recently where that did not happen, and the person who was released on bail then went on to commit quite an horrific crime, or at least it is so alleged. This emphasises the importance of the way these bail applications are handled. There may well be a large number that are uncontroversial, but there are also some very sensitive ones, and they need to be handled extremely carefully.

The next provision being inserted by the bill is to increase the number of public sector officers in various organisations who are authorised to witness statements that are to be tendered in criminal proceedings. Many of the various entities that are listed in the bill are commonwealth bodies that have prosecutorial roles, and the opposition understands that these bodies have all made specific requests to be included on the list of those whose officers can authorise witness statements.

It seems that the inclusion of these bodies will enable the more efficient and effective preparation of witness statements, and therefore this provision seems a sensible one.

Another provision of the bill extends until 30 October 2009 the operation of the Family Violence Court intervention project. As with the extension of the Koori Court provisions that we considered in another bill a short while ago, this is a project that has been set up on a trial basis. The government now wants to extend that trial to allow further evaluation, and that is something that seems worthwhile also.

The final matter to which I refer is the amendment to the Coroners Act 1985 that inserts provisions relating to gaining access to coroners records into the Coroners Act, those being provisions that were previously contained in the Coroners Regulations 1996.
When one compares the 1996 provisions that were contained in regulation 24 with the provisions that are now being inserted into the bill, one sees they are substantially identical, save that there are a number of cross-references to other sections within the Coroners Act that qualify the general statement. Those cross-references seem to be reasonable ones. There are references to section 30E and to section 58 of the act. Section 58 refers to a general power of the coroner in relation to not releasing information if the coroner believes it would prejudice a fair trial or not be in the public interest, and section 30E refers to inquests relating to deceased children.

New section 51(3) makes clear that a number of the powers the coroner has to make information available to relevant parties who may have a sufficient interest, to various public bodies or to the Attorney-General are not limited by the general principles that are set out in new section 51.

Public access to Coroners Court information is a very important part of our judicial system, as is public access to information about proceedings in other courts. It hardly needs to be said that one of the greatest strengths of the common-law system has been that, unless a particular case is made in particular circumstances to the contrary, proceedings of court and the production of relevant facts in relation to judicial and quasi-judicial proceedings should take place in open court — in other words, that people are not subject to secret trials or secret hearings and that any member of the public is able to observe what is going on and hear and be aware of the evidence.

Of course that is particularly important in relation to coroners because coroners are investigating deaths, and there is a particular public policy interest in understanding why a death has occurred in any particular case and what can be done in future to prevent avoidable deaths.

Clearly there are some aspects relating to details of individuals that may or may not be relevant to that general public interest, but the overall principle should be that as far as possible, unless there is a good and specific reason to the contrary, the full facts and circumstances of cases that come before the coroner should be available for public access, and that is something that is being continued under the amendments that are contained in this bill.

In this context I want to make some comments about the statement of compatibility made under the Charter of Human Rights and Responsibilities that has been presented to this house by the Attorney-General.

As with so many of these statements of compatibility, the language is tortured and convoluted, as public servants strive to fulfil the bureaucratic requirements that have been imposed on them by this legislation. The way in which the statement in respect of this bill is worded is particularly revealing of one of the serious problems that underlie the so-called Charter of Human Rights and Responsibilities Act, because the statement of compatibility identifies as a human rights issue to be considered in relation to this bill the charter provision about a person having a right not to have his or her privacy, family home or correspondence unlawfully or arbitrarily interfered with and not to have his or her reputation unlawfully attacked. The statement goes through very convoluted language to reach the conclusion that this right is not being unlawfully or arbitrarily interfered with and that the provisions contained in the bill are reasonable.

We on this side of the house certainly do not disagree at all with the conclusion that is reached, but the point I make is the fact that the statement of compatibility goes to so much trouble to address the right of privacy and yet is totally silent on the other equally important principle that I referred to earlier — namely, the public interest in being able to access what is going on within the court system or, in other words, the longstanding common-law tradition that judicial proceedings take place in open court. That principle or that right is not even mentioned in the statement of compatibility.

In order to try to justify the provisions in the bill, the statement has to invoke references to freedom of expression and the right to seek, receive and impart information and ideas. In a sense that is a related right, but I would have thought the blindingly obvious point should be that there is a public interest in proceedings taking place in open court, and that is not even recognised in the statement of compatibility.

Once again that demonstrates the point that the trouble with the Charter of Human Rights and Responsibilities is that it singles out a handful of rights for special statutory recognition but leaves aside a whole lot of other rights that are equally important to the proper functioning of our democratic system under the rule of law. Those rights go totally unmentioned, so we get a lopsided emphasis on those particular rights that are singled out in the charter. I think that demonstrates yet again the serious institutional and other ongoing problems that this Charter of Human Rights and Responsibilities Act is causing.

Notwithstanding that, as I have indicated, the opposition does support the bill’s amendments relating to the continuation of the 1996 regime for access to records. We also support the other provisions in the proposed legislation, subject to the caveat that I have mentioned about ensuring that the bail provisions are properly administered so that bail is not inappropriately extended.
However, as I said at the outset, the crucial and serious issues facing the Magistrates Court at the present time, particularly the issue of inadequate security, are not ones that are addressed by this bill, and the government needs to do a lot more than what is in this legislation to achieve the objectives it refers to of promoting efficiency, modernisation and flexibility in our Magistrates Court system.