Resumed from 16 August 2018.
HON ALISON XAMON (North Metropolitan) [10.19 am]: I rise to continue the remarks that I last made on this bill on 16 August last year. The delay between contributions on this bill is not remotely the fault of Hon Aaron Stonehouse, who introduced it. It is the unfortunate reality of the difficulty in finding time to give appropriate attention to private members’ bills. It is unfortunate, because as the Greens indicated the last time this bill was debated, we are highly in support of this proposed legislation, and certainly its policy intent, and we recognise further areas in which it will be useful to get further clarification and possibly look at amendments. In terms of its policy intent, however, we absolutely support the bill.
The last time I contributed to this debate, I talked about the things that the bill will not change. There is a range of things that the bill will not interfere with. I went through some of the issues that will enable a person to choose a trial by judge alone as opposed to a jury. I talked about the possible extra burden on judges, which is a concern that has been raised with me, and about some of the ways in which that could easily be resolved. I talked about the possibility that it will increase the acquittal rates, and drew members’ attention to evidence that that is not a particular concern. I also talked about the increased transparency that this will provide, because it will require a judge to give reasons for their decision, as opposed to a jury, which is not required to give reasons for its decision.
I now want to continue my contribution by talking about some other issues that may arise. The first is the need to ensure the informed consent of the accused. The judge-alone provisions in the South Australian, New South Wales, Australian Capital Territory and Queensland legislation include protections against uninformed consent by the accused. Those protections include requiring proof that the accused has received legal advice about the effect of the proposed order, and that the court is required to satisfy itself, before making the order, that the accused properly understands the effect of the proposed order. Neither section 118 of the act, nor the bill, contain such a protection. This protection is particularly important for people who do not speak English as their first language; people from culturally and linguistically diverse backgrounds; Aboriginal people; and people who have mental health issues or are cognitively impaired in some way. I would argue that such a protection is also appropriate for people for whom English is their first language, because although they may understand the meaning of the order, they may not fully appreciate its effects. I have raised this issue with Hon Aaron Stonehouse, and he has indicated that he has considered this issue but was persuaded during consultation to omit it in order to keep the bill simple. However, that is a different approach that has been at least contemplated.
Various of the judge-alone provisions in other Australian jurisdictions also refer to jury tampering. We know that in a jury trial the impartiality of the jury is imperative. The New South Wales law contains a specific provision for the court to make the order without the accused’s consent if, in the court’s opinion, there is a substantial risk of jury tampering and that risk cannot be reasonably mitigated by other means. This bill provides a sensible protection. There is some merit in providing such a protection. However, as I have said, neither section 118 of the act, nor the bill, contain such a protection.
Another concern that has been raised is the possibility that a judge-alone trial may whittle away an accused’s right to a jury trial. The papers by New South Wales public defenders to which I referred in my previous contribution stressed the importance of an accused’s right to a jury trial, and expressed concern that if the accused were to voluntarily forgo that right, it might increasingly be removed. Mark Ierace, SC, addressed this concern well in his paper. His comment was —
However, to not advocate for sensible changes to criminal procedure where it is clearly warranted, for fear of facilitating an attack on fundamental rights at some indiscernible future point, is to submit to current poor policy by default, which would be a sad day for law reform. The remedy for such fears is a solid foundation in fundamental principle for the changes advocated, and vigilance.
I concur with that commentary. If, in the future, a bill were introduced that would narrow the accused’s right to a jury trial, I think Parliament can, and will, scrutinise that. My more immediate concern is that if we find that accused people are taking up the new option of a trial by judge alone in droves, there might be such an impetus for a reduction of legal aid funding for jury trials that the accused will come under pressure to consent to a trial by judge alone for fear of being unrepresented or inappropriately represented. We need to be vigilant and ensure that those sorts of pressures are not brought to bear. The purpose of this bill is to increase options in the administration of justice, not limit them. Therefore, it is important that we continue to monitor any reduction in the availability of legal aid for those accused who want a jury trial.
The Greens WA absolutely support the bill, in principle. We have some proposed amendments to it, but we have not put them on the supplementary notice paper as yet. I have had discussions with Hon Aaron Stonehouse behind the Chair and he has indicated that as this is a very important issue—with which I completely agree—and in order that the bill not be left languishing on the notice paper, it is his desire that it be referred to the Standing Committee on Legislation to look at both the policy and structure of the bill. I am confident that if such a referral is agreed to, it will provide an opportunity for the concerns that I have put on the record to be canvassed and be reported to this house in a subsequent report.
Discharge of Order and Referral to Standing Committee on Legislation — Motion
HON ALISON XAMON (North Metropolitan) [10.27 am] — without notice: I move —
(1) That the order of the day for the Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 be discharged and the bill be referred to the Standing Committee on Legislation for consideration and report not later than 12 May 2020.
(2) The committee has the power to inquire into and report on the policy of the bill.
It is important to note that I have moved that amendment to the motion with the consent of Hon Aaron Stonehouse.
Comments and speeches from various members
Question put and passed.