Tuesday 16 June 2009
Hansard of the Legislative Council
Mr FINCH (Rosevears) - Madam President, there are some concerns about this bill that I would like to put before the House.  In fact, the Law Society has written to the Attorney-General suggesting some amendments here.  I received legal advice, personally, which I have drawn to the attention of some colleagues and I would like to read this advice as it contains some strong reservations about parts of the bill.  I quote:

'This Bill is to validate complaints that are invalid. 

Members of the Legislative Council will need to think carefully whether it is appropriate to take away the right of an individual to have a charge dismissed because the whole process by which he is brought before the Court was not only defective but illegal. 

The Leader in his Second Reading Speech makes much of the fact that there are "Approximately 5000 complaints that are at risk unless this Validation Bill is passed". 

The Leader does not give any consideration as to whether this Bill is an attack on the Rule of Law, in that a person should only be brought before a Court and his personal freedom and financial well being put in jeopardy only if proper legal processes are followed. 

The Leader says that some of the complaints relate to the offences of stealing and assault and that the alleged offenders will "avoid facing the consequences because of such a technicality."'

This is my advice:

'I am of the view that the Crown could still use other criminal jurisdictional processes to bring the alleged offender before a Court as there is no time limit within which to prosecute a crime. 

As to the statutory offences of drink driving, etc. there is a time limit of 6 months. 

What is the more serious? 

(a)     A few alleged offenders possibly avoiding conviction? or

(b)     An attack made on the Rule of Law that a person's freedom is not to be infringed unless proper legal steps are taken to bring that person before a Court? 

          The Leader refers to "approximately 5000 complaints". 

          What is the true number of complaints and what are the categories of those complaints? 

          It appears the whole shambles has been brought about by the making of "a rule" by the Rules Committee of the Magistrates Court. 

          Parliament never had an opportunity of debating the "rule". 

          Is the Rules Committee a competent body when it makes a rule which is blatantly wrong and is overruled, not by a superior Court, but a member of the same jurisdiction as made the rule?'

Mr Parkinson - Are these your words or your adviser's?

Mr FINCH - This is the advice that I am reading to you.

Mr Parkinson - Who is your adviser?


'The Leader is seeking a political expediency to try to make good a fundamental error and in doing so he is ignoring its effect on a fundamental Rule of Law, that the freedom of the individual should only be prejudiced when proper judicial process is followed. 

Have the views of the Law Society been sought as to the provisions of this Bill and has it been made aware of its sudden listing in Orders of the Day in the Legislative Council? 

The provisions of this Bill must be carefully scrutinised. 

This Bill is a blatant piece of retrospective legislation. 

Retrospective legislation should not be lightly approved in any circumstances. 

Underlying the Bill - Is there concern by the Treasury that it may have to refund fines already paid on improper convictions? 

The implications of the provisions of this Bill go far beyond the words of the Bill. 

The Legislative Council will do well to fully debate the Bill and not give it cursory consideration before approving it as the Leader seems to be asking the Council to do.'

A notification went to the Law Society -

Mr Parkinson - Madam President, that amounts to a considerable attack on the Magistracy as well as anybody else.  If you are quoting that advice from somebody, you should at least name the person who is being quoted.

Mr FINCH - Yes, I can do that.  I do not think there is any issue with that.  It is Jim Anderson, a lawyer who advises me on legislation.  He then subsequently contacted the Law Society to clarify situations with them and the Law Society have sent him a copy of the letter that they have sent to the Attorney-General with some suggestions as to an amendment to section 27.  I just make the suggestion to the Leader that perhaps we might have an adjournment here to get some clarification from the concerns by the Law Society.

Mr Wing - Before the honourable member resumes his seat, could he read the letter of the Law Society?

Mr FINCH - Yes, I can do.

Mr Wing - And the response?

Mr FINCH - I will read the first one back to Jim Anderson:

'I refer to the copy of the Second Reading Speech for Bill No. 41 faxed by you to the Law Society and advise that it was considered by the Executive Committee meeting at its meeting today.'

That is yesterday.

'The Committee did not feel there were any matters of principle in the Bill about which they were concerned but resolved to write to the Attorney-General suggesting amendments to ensure the efficacy of the Bill.  I enclose a copy of that letter for your information.'

This is the letter to the Attorney-General:

'I refer to the above Bill which I understand is before the Parliament tomorrow.  Although the Law Society did not receive the proposed amendments for comment, a copy has been provided to the Society and the following comments provided. 

As the Society understands it, the amendment is intended to cure a technical error which has resulted in a number of complaints becoming a nullity.  In that regard the Society suggests the following amendments … to ensure the efficacy of the Bill.'

That was in section 27 (4) and then it added 'If a matter purporting to be a complaint'.  So rather than it be 'If a complaint has been made by a public officer', it says 'a matter purporting to be a complaint' and in (4)(a), 'the matter is taken to be a complaint; and'.  They are the additions that the Law Society would like to see to this bill.

[11.30 a.m.]
Mr WILKINSON (Nelson) - Madam President, I have had the opportunity to look a the comments that were made by Mr Anderson who is a lawyer of over 40 years' experience.  One of the issues with this, as is stated by the Law Society, is that they have no real problem with the principle.  The issue, as the member for Rosevears was talking, which came to mind is that it is a bit different from when we look at retrospective legislation where the actual law has changed surrounding the offence or crime in question.  In other words, what has to happen in relation to a stealing, it is probably best to put it this way, is that there has to be a taking and the taking has to be without the consent of the owner with an intention to permanently deprive the owner.

That is the raw criteria as amounting to a stealing charge.  If the law had changed and they took away the 'intention to permanently deprive the owner', so there only had to be the 'taking' and that 'taking' had to be without consent, there is a difference because the actual law itself has changed and, that being the case, if a person is charged earlier on in particulars amounting to that crime and part of those particulars have been taken away, there should not be retrospective legislation.

It is different here because we have the law being the same and the only difference is that that person who laid the complaint has changed.  In other words, it was the department that laid the complaint in relation to the matters as spoken about by the member for Rosevears and the Leader, and they did that as a result of a rule that would seem was made in the Magistrates Court.  They continued on with that and they found, as a result of a decision that was under Mr Justice Porter, that it is wrong; it should not be the department, it should be the individual.

Therefore, the law has not changed, it is who is the complainant that has changed. The contents surrounding the crime remain the same so I cannot see a difficulty with it.  I did think originally an adjournment would help to confirm what I am saying but I think that I am hearing the member for Rosevears saying that what I am saying is correct.

It was always an individual.  It was often the prosecutor whom a matter would come before.  The prosecution would look at the particulars surrounding a crime and then they would lay that complaint.  When I first started it was a fellow, Bob Lowe, who sued to make the complaint.  The Leader would remember that it was Lowe against Parkinson or Lowe against Ritchie or Lowe against Rattray-Wagner.  I will not forget Graeme Wood, and you would know Jonathon Wood, but when he first became an apprentice at law at Lawrence Wilkinson and Webster, I sent him down to the court and thought that I would make a practical joke so I said to him, 'Can you act for a fellow by the name of Bob Lowe', and Bob Lowe was the complainant on every one of the 107 complainants that were before the court that day.  He went before the magistrate pretty nervous because it was his first appearance and said, 'Your Worship, I appear on behalf of Mr Robert Lowe.  Could you call Mr Robert Lowe?'.  Everybody broke down and he did not know what had happened.  It was the complainant not the defendant.  So he owed me one.

That is what it was then, it was a complaint that was laid by the individual.  This has changed now as a result of the rule.  It was a complaint that was being laid by the department.  They have found as a result of Mr Justice Porter's decision that that should not be the case.  The law has not changed, the crimes have stayed the same, it is only who was the individual or agency that put their name as being the complainant.

Even though it has been a mistake, I do not think that there are any real problems to agreeing with what the Leader is saying.