Criminal Law Consolidation (False or Misleading Information) Amendment Bill

Second Reading

I rise to introduce the Criminal Law Consolidation (False or Misleading Information) Amendment Bill 2019 with the second reading contribution as follows. The bill seeks to protect the integrity of important information provided to the courts through electronic channels. In recent years, the Courts Administration Authority has developed the Electronic Court Management System (ECMS). In November 2018, the ECMS for probate matters became fully operational and the ECMS for civil matters across all courts is expected in early 2020, and for criminal matters in 2021.

For probate matters, the introduction of this system has seen a vast increase in the speed of processing probate matters and is set to increase efficiencies across civil matters in the coming months. Once fully operational, the ECMS will allow court users to lodge their court documents and interact with the court online. Eventually, the majority of court processes will take place electronically rather than using paper forms and files.

The shift to an electronic format necessitates some changes to traditional court processes. One example of this is the use of affidavits, a common occurrence in all court proceedings. An affidavit is a formal written witness statement, sworn or affirmed before a justice of the peace and signed on each page, initialled for any alterations. Many court applications are currently required to be accompanied by an affidavit providing supporting evidence.

The requirement for physical signatures in the presence of a justice of the peace or otherwise authorised person means that affidavits are not well suited to the digital format. In the ECMS, some court applications will no longer be able to be supported by a formal affidavit at first instance. Instead, the formally sworn information will be collected through digital tick boxes, typed information or uploaded documents.

This bill recognises the significant reliance on truth and ensuring that the users of the system, and those providing the information, maintain the highest standards. Court processes should not be taken any less seriously purely because they take place online and without the formal trappings of an affidavit. We must ensure the initial supporting information provided to a court is correct in the first instance because, should this information be false, it will cause difficulties and delays. Further witnesses may need to be called to contest the information or formal affidavits required.

Accordingly, to deter ECMS users from supporting their applications with false, unsworn information, the bill does two things and indeed creates two new offences. First, the bill creates an offence of entering false or misleading prescribed information into an ECMS whilst knowing that the information is false or misleading. Secondly, the bill contains an offence of providing false or misleading prescribed information to a person knowing that the information is false or misleading and that it may be provided to a court.

This offence is designed to cover persons who provide false instructions to a lawyer or other person assisting with the application rather than directly entering the information into the ECMS. This offence ensures equal treatment of represented and unrepresented parties. Without an offence in relation to providing instructions, unrepresented parties who use ECMS directly will be more at risk than represented parties who act through a lawyer.

The offences proposed in the bill are confined to prescribed information to limit them to the important supporting information that cannot be sworn at the time of the initial application but may be relied on by the court to determine the course of the proceedings in the early stages of a matter. Everyday application material, such as pleadings, is not intended to be prescribed. Categories of important supporting information will be prescribed by regulation and tailored to the needs of the ECMS as it is developed.

The bill is not designed to restore the prescribed information to the status of formal evidence. In any court proceedings, the prescribed information will still need to be the subject of formal affidavits or testimony, if contested. If the party makes the same false statement under oath or affirmation, they will be subject to the more serious offence of perjury. These offences do not include a potential penalty of imprisonment in order to create a clear distinction from perjury.

The bill is an important step in creating an appropriate regulatory framework to support ECMS. It supports increased efficiency in the processing of applications across our probate court, civil and criminal courts in the future and represents that part of our justice agenda, published earlier this year, that prioritises the need for policies and legislation to reflect contemporary needs.

I wish to acknowledge the advice and information provided by the Courts Administration Authority and, in particular, the Hon. Chief Justice Chris Kourakis. In conclusion, I indicate that I am pleased to say that the bill is now commended to all members of the house for their favourable consideration. I seek leave to have the explanation of clauses inserted without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Insertion of Part 7 Division 2A

This clause inserts a new Division into Part 7 of the principal Act, containing new section 241A.

Division 2A—Offences relating to providing false or misleading information to a court

241A—False or misleading information entered into electronic court management system

This section creates an offence for a person to enter false or misleading prescribed information into an electronic court management system. It also creates an offence for a person to provide false or misleading prescribed information to another person knowing that the information will be, or is likely to be, provided to a court.

Debate adjourned on motion of Ms Cook.