STATUTES AMENDMENT (VULNERABLE WITNESSES) BILL

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:31): I rise to speak on the Statutes Amendment (Vulnerable Witnesses) Bill 2015. This bill was tabled on 6 May by the Attorney-General and it has been listed for progress today. I have appreciated the availability of Ms Amelia Cairney, Mr Stephen Brock and Fiona Snodgrass in two separate briefings on this matter, one to outline the legal amendments and the second to look at the implementation arrangements, particularly the tenders for specialty training for the new initiative in this bill, which, of course, is the establishment of communication assistance. I thank them for that, but we are being asked to progress this bill in the absence of hearing from some of the usual stakeholders.

I will qualify that by saying that, whilst we have not yet received any commentary from the Law Society or the Bar Association, two parties that are not only familiar and experienced with the Evidence Act 1929 and its application, which has been substantially amended in this bill, I do value their opinion; however, I have read the submission that they presented to the government, during the course of their consultation on the criminal justice system reforms, and the comments they made about amendments that might help support people with a disability. They raised a number of concerns at the time.

Secondly, there are parties who are well known in the field of disability advocacy, people such as John Brayley, who is the Public Advocate, and people such as the former chief executive of the Julia Farr Centre and, I think, Julia Farr Housing SA— Mr Robbi Williams, thank you, member for Morialta. They are well known advocates in this field. We are assured that they have given support to the legislation before us. I also commend the extraordinary work and continued advocacy of the Hon. Kelly Vincent MLC, who represents the Dignity for Disability party in the other place. These are tireless performers and they are demonstrably successful in their advocacy for those with a disability, so their opinions I do value. I thank also the member for Hartley and the member for Morphett, the latter of whom is the representative on disability matters in the opposition. He keeps us constantly reminded of the importance to take into account matters that will affect people with a disability in all of the areas of policy and legislation that we deal with.

So, although we are without some of the contributions that would ordinarily be expected to be received, I have had those briefings. I have the benefit of the confirmation of support that has been indicated, and I have the benefit of some material that has been provided by the Attorney in his letter late last week to answer a number of the questions on this bill.

I also recognise that the government published the Disability Justice Plan back in 2011. It formed the basis of a strategy document which was presented to cover what was also called a Disability Justice Plan for 2014-17, setting out a number of priorities that they hope to achieve for reform in this area, but in the disability justice area, specifically to uphold and protect and promote the rights of people with a disability, to support vulnerable victims and witnesses in the giving of evidence, to support people with disability accused or convicted of a crime, and continuously monitor and improve performance.

It should also be noted and I do acknowledge the work of the select committee of this parliament, which reported on 25 July 2013 on access to and interaction with the South Australian justice system for people with disabilities. I do not have in front of me the full membership of the committee, and of course they have moved off the Notice Paper as a result of concluding their work, but I do know the Hon. Stephen Wade was also a member of that committee. He has also been very active. Formerly a board member of the Julia Farr Centre prior to coming into the parliament here for our side of politics, he has also been a strong advocate for the recognition of those with disability.

The one thing that would temper my enthusiasm for the reforms in this area is that, when I met with Mr Stephen Brock, it seemed quite clear that, whilst there was going to be a period of tender process for the purposes of contracting a party to provide training to some communication assistants, the total budget for these initiatives is something like $3½ million over four years. The reality is, as he confirmed, we are only going to have a few trained up, it is going to take a very long time, and the piloting, whether that is going to be geographical or to a small group of lucky winners who get a chance to have these communication systems, is clearly going to start very small.

I remember saying this about the proposed National Disability Insurance Scheme and at the time that we were being asked to do reforms for people who had catastrophic injuries arising out of motor vehicle accidents. All around the time of that debate, my greatest concern was that we were receiving, in that instance, Productivity Commission reports saying that there needed to be billions of dollars put on the table to actually support these initiatives, even without that very expensive component of housing for people with disability.

So, what ends up happening is that we pass laws, everyone is gleeful at the prospect of there being reform and that there will be initiatives outlaid, but then we find that it drip-feeds out and that only a select few get access to this for quite some time. That has come true of the NDIS arrangements, which are sort of ballooning out in time before people got access to it. I, for one, do not want to raise expectations for a parent, sitting out there waiting for the progress of this bill, to think that their child who might be a witness, victim or potentially defendant in court proceedings is going to be assured of having the protection of these measures and the support of a communication assistant. That may be a very long time coming, and I do not want there to be an unrealistic expectation of that. Certainly, the government will be singing the praises of this reform. One stark omission from this reform is in their own document when they say, and I quote at page 7 of the Disability Justice Plan:

Ensure that new infrastructure developments across the justice system including the courts precinct are accessible and disability friendly.

Well, we all know what happened to that plan. That has bitten the dust. The courts precinct project, which has been on the drawing board for years, which has had funding for its development, which has even been out to tender, was recently aborted by announcement of the Attorney-General. The courts precinct project had been developed with I suspect hundreds of thousands of dollars already spent, if not millions. Certainly, if one added all the parties other than the taxpayers, it would probably be millions that have been spent in developing courts precinct project preliminary documents, and it has all gone pear-shaped. The government has announced that it is not value for money, whatever that is. Presumably, it is too expensive for the scope they have got.

I speak to the objection because, at page 7 of the government's Disability Justice Plan, which lists its priority actions, some of which have been incorporated in this bill and some of which have not, I am highlighting 1.6 which specifically says:

Ensure that new infrastructure developments across the justice system including the courts precinct are accessible and disability friendly.

Ms CHAPMAN: I will. I do not intend to spend a lot of time on this, but let me say this: last year at estimates, I asked the Chief Justice whether he was aware of a mattress at the end of the stairway that was there to help people in case they slipped down the stairs and banged into it, as an illustration of how bad the state of the Supreme Court house was. He could not recall it, actually.

I was amazed to view it on television just recently in a segment I think on the Today Tonight program, in which there were various people espousing how appalled they were that the government had abandoned this project. They had filmed various areas of shocking salt damp, rickety staircases, etc., and there before me on the screen was the mattress, so I know that it exists—that is how bad it is.

That is for able-bodied people who are ambulant to get up and down stairs, but what is worse is our former chief justice, chief justice Doyle, could not even get into his own courtroom when he was in a wheelchair as a result of having an accident whilst overseas. The highest judicial officer of the state was denied access during his period of infirmity. I was gleeful to see in the justice plan, when my attention was diverted to it as a result of this bill, that this was there, but of course it is finished, it is dead, we do not have a court precinct project at this point.

It is just sick. It is terminal. It has actually been terminated. The government have announced that they are now working on another idea, which presumably is the skinny version where we are going to get one tower instead of two towers, it might not be as high, it is going to have less in it. We might have smaller courts, we might have mini pews, I do not know what is going to be in it. The jury boxes might be tinier, I do not know.

However, it is just incredible how the government will say, 'We will fix this up.' We recognise there is a major accessibility issue in our courts. The former chief justice could not even get into our most senior court in the state. I am disappointed. With that rider, I am indicating that the opposition will be supporting this bill.

Can I say, however, when I get back to the select committee of which the Hon. Mr Wade was a member, and I was commending his great contribution of service to this area of advocacy, both before and in the parliament, that its chief recommendation has not been taken up. The chief recommendation is that we have disability justice advocates. During the course of briefing on this, I was advised that Victoria has developed quite a sophisticated advocacy model where they have trained up volunteers. They call it their Independent Third Persons scheme. It is part of their Office of Public Advocate. It has been operating 25 years or so. It was considered by the committee to have merit and that it was something that needed to be followed up.

They have a pool of about 90, apparently, operating over there now. I think that it is disappointing that that had not been taken up, particularly, as on the information from Mr Brock, that it is going to be months, if not years, before we actually have a significant pool of communication assistants (without wishing to be disrespectful to this other program), which is the most novel aspect of this bill, who are to have a more professional role, if I can say, as extended, trained interpreters particularly able to provide reliable information to a sister court in the expressions that are made by the person with a cognitive disability or who is 14 years or younger.

I just think that we will be some time away because remember the two aspects of this bill, which are perhaps the most controversial: one is how the application of these communications assistants is going to work. What we understand is that the amendments will give people with the complex communication needs the right to have one of these communication assistants. The whole process of their being allowed and under what terms, and the like, will be under the management of a judge.

It essentially is claimed to be an extension of the role of an interpreter, as we frequently use in courts. They have to be sworn in. They have to swear that they are going to give a correct translation—in that case of a language. Here it is going to be a more extended role. There will be explicit powers allowing for the use of a communication assistant. It will also provide for the use of a communication device.

Apparently there are regulations as to who can provide the communication assistant in court and during an interview and will provide for two classes of persons to give assistance to the court: one a communication partner as approved by the minister, and that maybe on a volunteer basis; and, two, a person appointed by the court to act as a communication assistant in the court.

The other perhaps more controversial area of reform is the proposed amendments to the Evidence Act to repeal section 34C and replace provision to allow the admissibility in a limited exception to the hearsay rule. In the time I have been here in the parliament we have had a number of attempts to try to change these exemptions to the hearsay rule for often very meritorious reasons. The Court of Criminal Appeal had some concerns about how we have done that and has sent us back a few times. It has more recently raised concerns as to the interpretation by the courts and its application because it has been so problematic.

The Attorney has claimed in his contribution that the new section 34LA will resolve this. It certainly goes to extending the admissibility of evidence, including to prove the truth of the facts which is the most controversial aspect of this bill. There has to be some level of understanding, but it will be allowing for the admissibility of out-of-court statements of a young child or witness with a disability in sexual cases where the witness is unavailable to be called to testify about the events in question owing to age or the disability.

So, we are yet to see whether this is going to work. We have to rely on the indications of the government that this will help to remedy some of the defects that have been highlighted. It is a complicated and controversial area of the law. We have a general rule which says that hearsay evidence should not be admitted, it is not reliable, it is not in the first person. We have some statutory provided exceptions to it for reasons that have been added over the years, and this is one to which it is going to be extended a little and we hope it works. Our reassurance comes in the supervision of that by the judge who is hearing the case.

I will just quickly summarise that the bill otherwise provides for the definition of 'cognitive impairment' and essentially we are talking about vulnerable persons as a result of their having an intellectual developmental or acquired disability or mental illness or, indeed, because of their age. Historically, we have provided for 12 years and under, apparently to be consistent with other jurisdictions; that is now going to be 14 years or under.

Secondly, there is allowing for the admission into evidence of audiovisual records of interviews as the evidence of victims or vulnerable witnesses—hopefully that situation will assist—and special hearings for pre-trial taking of evidence from children 14 years and under with a disability or persons with a disability who are victims or witnesses in trials involving sexual or violent offences. That, we understand, will allow evidence to be taken as near as possible to the laying of charges to assist memory and avoid reliving the experience months later. However, members should be aware that this does not mean that it will be without some pain to the victims particularly, or witnesses, because they still will be interviewed and it will still be transcribed or videoed.

Also, there is to be a priority of sexual assault trials where the complainant is a child or where the complainant has a disability, and we have no objection to this. For children this is already in the courts act. We do not have any objection to this, but we have raised this concern along with the Law Society and others and that, if you are going to fast track these cases through the courts, we have no idea of how many there might be that come out of the woodwork that think this might help to progress the successful prosecution of the case and, therefore, what had otherwise been a barrier to proceeding via the DPP's office, for example, will be relieved. So, whether these come thick and fast we are yet to see but at present our courts, particularly the District Court, are under enormous pressure having already had child sexual abuse cases, and the law which reformed the pre-1982 complaints which have been given priority, taking up a lot of court time.

We are concerned that the government understands that the passage of this legislation and the prioritising of these cases will mean inevitably further delay for all the other people who are waiting to have their cases heard—some criminal—and then the poor people who have civil litigation pending who are already years away from the opportunity to have a trial. That is years away from people getting their compensation, years away from people getting relief in respect of liability for something, years away from being able to get part of their mother's estate. There are all sorts of reasons why people go to court who are not criminals or witnesses or defendants.