Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Bill

Second Reading

I thank members for their contributions and, from the opposition, for the indication that the bill will be supported. I would like to reflect on a couple of things that have been raised.

Firstly, for the member for Heysen, and his acknowledgement of the Legal Services Commission and the work that is done by them, I noted his commendation of Michael Abbott QC, who is a former chair of the commission, and his successor from late last year, Jason Karas, who has taken on this responsibility. Gabrielle Canny was also recognised as a director, and she is the chief executive of the commission.

I would like to acknowledge that contribution because all too often we fail to recognise the significance of those who give. Sure, there is a payment made and so on for the work that is undertaken, but it is a lot of work, it is important work and it is work that not everyone rushes to do. Since the establishment of commissions all around the country so that we might have independent agencies to deal with legal representation for those in need—and largely it is a means-tested process for the bulk of the work in criminal and in family law—and whilst it provides many other excellent services, this is the bulk of the work undertaken in jurisdiction work by the Legal Services Commission, and the private sector supplements significant work in this area.

Since 1992, and since the Dietrich v The Queen High Court decision, we are under an obligation to deal with the payment of legal representation because that court made it very clear, and this has been the prevailing law since, that people who are charged with serious criminal offences are entitled—all of them—to legal representation for the trial. Quite clearly, they have held that if a person is charged with a serious criminal offence and unable to gain legal representation, then the trial should be adjourned and stayed until he or she can find such representation.

That was a groundbreaking decision at the time, but it is imposed on us as a government with the Legal Services Commission to provide that and to fill that gap. We cannot have a situation where people are charged with serious crimes and they are not dealt with. They have to be dealt with. People have to have representation, and obviously as the taxpayer we have to pay for it if they do not have the financial means to obtain that legal representation. This is not an optional extra. This is not a non-urgent, 'we will do it when we feel like it' sort of approach.

When it comes to the tightening of the legislation that we have in place to deal with this, I want to explain to the parliament what the consequences are if we do not deal with it, or if there is a case that remains haemorrhaged into stagnation as a result of our not dealing with it; i.e., there is a dispute about who is getting paid what, for the purposes of a multi-defendant case; they are all languishing in gaol pending their trial being brought on; and they get the stay because the Legal Services Commission has not sorted out what funding arrangement they are going to have. This is just not acceptable. The public would be outraged if we had the way of the member of Kaurna, who thinks this is just some kind of elective piece of legislation. No, it is not. It may not have the urgency—

Mr PICTON: Point of order: the Deputy Premier in her speech is implying improper on my behalf and actually misquoting what I said as well.

The Hon. V.A. CHAPMAN: Mr Deputy Speaker, can I put this to you—


Mr PICTON: Perhaps he can rule on the point of order first.

The Hon. V.A. CHAPMAN: I can speak on that issue.

Mr PICTON: He can decide if you get the call or not.

The Hon. V.A. CHAPMAN: He can decide on it, but I would like to make a contribution.

The DEPUTY SPEAKER: Thank you, member for Kaurna. You have raised the point of order and I am in the Chair at the moment. Given what you have raised, the Attorney probably can have the opportunity to address that, and be cautious in her remarks, and she is making a contribution at the moment on the bill.

The Hon. V.A. CHAPMAN: Thank you, Mr Deputy Speaker. I think I have made the point of the significance of this legislation. I want to also explain that the public would be very unhappy if we left people at large who were charged with serious offences, who could not get legal advice issues sorted out and they were just not progressed. The people who claim to be victims or witnesses, or who are outraged by the conduct that is allegedly committed by this person or persons, are seemingly on the face of it getting away with it because there is an indefinite stay of proceedings.

It is a very important principle that has been enunciated by the High Court, and we have a direct obligation to make sure that we provide for it. We have a structure—certainly in a recent case I dealt with with the Legal Services Commission—that does not really cover the circumstances. Sometimes you need a particular case to actually work out what you are going to do with it. Sometimes they are a little bit extraordinary.

I will use a past case, such as the Snowtown murders case, with multiple defendants, multiple victims, people who had killed different victims but who were all involved in the same conspiracy to murder. It was obviously a shocking case that everyone is familiar with. I remember attorney-general Atkinson coming to the parliament and answering questions on that case at estimates—I know, because I was asking him questions about it—and the extraordinary costs; special arrangements were made in the budget for the cost of that case. That is one that is in the past.

Another situation now before us in serious criminal cases is that quite often an extraordinary amount of documentation is provided in discovery, in the initial disclosure of material, which may make the committal process more complicated and therefore need a lot of extra attention. It is these types of things which come to the attention of both the government and the Legal Services Commission—in this case, it is the Legal Services Commission that brought the matter to our attention—and which we need to address to make sure that we comply with the obligation imposed on us in relation to dealing with people charged with serious offences and their legal representation.

Two things were brought to our attention by the Legal Services Commission—as I said, it was certainly a direct case that came before me for consideration, as I have to sign these agreements with the Legal Services Commission—and highlighted the need for us to sort out this issue. One was to allow the commission to include prearraignment costs when calculating the legal assistance costs incurred in a matter subject to a case management plan.

For members not aware, we have those in relation to these cases under the Expensive Criminal Case Funding Agreement. The second was to deal with related trials to be combined under the same case management plan where appropriate, and that is usually where there are multiple defendants.

These are key things that we need to sort out. I appreciate the opposition's indication that they will support the bill. They are important matters. They have been fully consulted on. I would urge the parliament to consider them appropriately. It took a little while, even in the consultation period, even going back to the Legal Services Commission when they wanted to make some adjustments to the bill. Obviously we worked with them to try to bring this to a conclusion. We have endeavoured to bring the matter to the parliament.

I also wish to acknowledge the Treasurer, which I do not usually, because not only has he been consulted in this process (he is not always supportive of a lot of things) but he has personally advised me of the support for the proposed changes.

Members interjecting:

The Hon. V.A. CHAPMAN: In acknowledging the interjection, there was not to be a material cost consequence apparently from his assessment. That is fine—wait until he gets the bill through. In any event, I appreciate the fact that the Department of Treasury and Finance obviously had a good look at this as well as to how we might manage this. Management plans, just so people are aware, set out an agreement between the Legal Services Commission and myself as Attorney-General as to how much there is going to be for a capped provision for a particular trial.

We will continue to pursue the current practice, but this legislation will help us to deal with the types of issues that I have just raised and make sure that we properly prosecute cases that need to be dealt with, particularly for the benefit of the victims and the community generally and, secondly, to ensure that we have a fair trial and, probably thirdly and not insignificantly, ensure that the court processes are not overburdened by having an unrepresented party attempting to defend himself or herself, and the cost of litigation or court time then being taken up perhaps unnecessarily.

That is just a practical consequence of having people attempting to deal with a matter which is really beyond their expertise. With that, I acknowledge the contributions and seek that the bill be read a second time.

Bill read a second time.