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Courts Legislation Amendment Bill
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Page: 4797
Second Reading
Debate resumed from 31 October.
Mr ANDREW TINK (Epping) [10.21 a.m.]: Most of the Courts Legislation Amendment Bill is technical in nature and, except for one hidden provision, does not cause the Opposition any concern. The provision in question is an amendment to the Industrial Relations Act that I believe gives unprecedented powers to the Industrial Relations Commission to keep secret its proceedings and everything to do with a case before it for "any other reason". I know of no other body that has this power. No court or commission has the unfettered discretion to keep its proceedings secret. I think it is outrageous. This matter is of great importance because the scope and range of the commission's jurisdiction are expanding rapidly in ways that are causing grave concern to no less than the President of the Court of Appeal in New South Wales. When the Government seeks to move an amendment to keep secret in an unprecedented manner the proceedings of the Industrial Relations Commission, it is important for me to outline the way in which the commission's jurisdiction is expanding to the great discomfort and concern not only of many members of the Court of Appeal but of many members of the wider legal profession.
The Attorney General and I recently attended a dinner celebrating the centenary of the commercial causes jurisdiction of the Supreme Court of New South Wales. I think we both agree that it was a great night and a fitting recognition of the importance of the jurisdiction over a century in leading the English-speaking common law world in the commercial causes area. I have heard it said on many occasions not only by the Attorney General and the Premier but by others on both sides of the House that the commercial causes division has represented in the past and represents even now—when its expertise rests with the equity division—a regional resource of the first order to the extent that this jurisdiction and this city, in particular, hold themselves up as centres of excellence in financial regulation and in the legal regulation, adjudication and determination of commercial disputes. Mr Andrew Rogers, a former Chief Judge of the commercial division, said the other night that some very exciting opportunities are opening in China and in other parts of south and north Asia.
This area of jurisdiction is now under threat from the relentless expansion of the Industrial Relations Commission and, most worrying, from the bill's clauses that seek to make its proceedings secret for "any other reason"—which means for any reason. We must understand that under this Government statue law is developing in such a way as to give the Industrial Relations Commission more commercial causes. This provision is worrying for that reason, and for many others. I refer honourable members to the 2003 case of Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales & Ors in the New South Wales Court of Appeal. I have already mentioned the President of the Court of Appeal, Justice Mason, who would probably be the most respected judge in the Supreme Court of New South Wales today. In paragraph 147 of his judgment—it is worth noting that he agreed strongly with Chief Justice Spigelman on this point—Mason J said:
Like the Chief Justice, I am profoundly troubled by the march of the Commission's—
that is the Industrial Relations Commission, which is the subject of this bill—
jurisdiction into the heartland of commercial contracts that Hungerford J's decision—
Justice Hungerford was a judge of the Industrial Relations Commission—
and other single instance decisions in the Commission represent. This is a significant inroad into the effective and efficient exercise of the Supreme Court's jurisdiction in commercial causes. The matter is all the more troubling because I strongly disagree with the pattern of first instance jurisdictional decisions culminating in the one presently under consideration (while acknowledging that s179—subject to the constitutional issue—offers a significant penumbra of jurisdictional expansion to preclude this Court from doing anything about the matter, regardless of its views). The matter is also troubling because it must frankly be stated that the members of the Commission—
I remind honourable members that these are the comments of the President of the Court of Appeal, with whom the Chief Justice of New South Wales agrees—
do not generally have the experience of the judges of the Equity Division in such matters—
that is, commercial causes—
and because, on the same hypothesis, the Commission lacks the ongoing assistance of appellate and other supervision by the Court of Appeal or the High Court in such matters.
That is a comment about the Industrial Relations Commission, whose activities the Government is seeking through this bill to keep secret. It is outrageous and it puts under direct threat the commercial causes division to a greater degree even than identified by the Chief Justice and the President of the Court of Appeal. What is going on in the Industrial Relations Commission? The Mitchforce case is an interesting example. In the first paragraph of his judgement in this case, the Chief Justice says:
The first issue that requires consideration is whether or not the lease agreement is a contract or arrangement "whereby a person performs work in an industry" within the meaning of s106(1) of the Industrial Relations Act 1996.
The point is that, on any objective analysis, many matters would be considered commercial causes. However, one party decides to take a matter to the Industrial Relations Commission for tactical or other reasons that have nothing to do with the merits or the expedition of the case or the hearing and disposal of the matter—characteristics that are essential to an effectively functioning commercial court. One needs only the most tenuous link to the concept of work—in this case that someone remotely connected to a lease was employed in an office—for the case to be transferred from the jurisdiction of the commercial causes court to the Industrial Relations Commission. That is the essence of the jurisdictional problem. Also, this bill further exacerbates the problem by allowing these matters to be dealt with at the whim of the Industrial Relations Commission in Court Session in secret. This is compounded by amendments to the law made by the former Attorney General, now Justice Jeff Shaw, in 1996. Section 179 of the Industrial Relations Commission Act was amended and appears at paragraph 60 of the Mitchforce judgment, which states:
Subject to the exercise of a right of appeal to the Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission is final and may not be appealed against, reviewed, quashed or called in question by any court or tribunal.
In other words, with even the most tenuous link to work, commercial causes can be transferred from the commercial causes court to the Industrial Relations Commission, with no avenue of appeal to the Court of Appeal and, under this bill, those proceedings can be held in secret. It is a disgrace that any jurisdiction that holds itself out as being competent can take that approach, and it is in the interests of genuine litigants in the Industrial Relations Commission to stop this nonsense. Employers and employees who wish to have substantive workplace issues and disputes adjudicated do not want the Industrial Relations Commission clogged with commercial cases. Indeed, they would not want judges without the relevant expertise dealing with commercial matters. The work of the commission should focus on workplace issues.
The delay in the hearing of cases is compounded further by the fact that proceedings can be held in secret. The Attorney General and I recently heard the proud boast of the commercial causes court that it is able to deal with complex matters within a couple of months. The turnaround time is extraordinary and is to the credit of those involved. In the Mitchforce case, Justice Hungerford delivered a judgment at first instance in the Industrial Commission on 3 November 2000. The Full Bench reserved its judgment on 10 May 2001 and handed down judgment on 30 April 2002. On 13 June 2003 the New South Wales Court of Appeal remitted the proceedings to the commission to reconsider its decision to refuse leave to appeal in light of serious errors of law.
On 22 August 2003 the Full Bench of the Industrial Relations Commission heard submissions from the parties and reserved judgment. A number of months have elapsed since the case was last before the court yet the Full Bench has yet to hand down its judgment. The appellant, whose case should be in the commercial list, sought a writ of mandamus from the Court of Appeal requiring the Full Bench to deliver its judgment. The writ is yet to be listed by the Court of Appeal. This commercial case, which has been going on for three years, should have been heard in three months in the commercial causes division. We now have the extraordinary situation that a party to the proceedings has taken out a writ of mandamus to force the Industrial Relations Commission to do its job, and this is the body that the Attorney General now wants to deal with proceedings on a whim, in secret. That position is untenable.
A person with commercial interests in China, Thailand, America, Singapore or India would not insert a clause in their contracts to have their matters judiciable in New South Wales. To do so would mean that the case could take three years to be heard by an Industrial Relations Commission judge without the relevant expertise in commercial law—on the authority of the President of the Court of Appeal, and, by association, the Chief Justice—and that court, on a whim and without recourse to appeal, can hear the matter in secret. One would be better off looking for justice in Thailand, Vietnam or India than under these arrangements.
This matter should not stand. The Industrial Relations Commission has undoubted expertise in matters relating to industrial law. Employers and employees do not wish the industrial jurisdiction to be clogged up, and those who deal in commercial litigation certainly agree. Of course, the more general question is not limited to commercial matters but to employer and employee litigants. No party to a clause in the Industrial Relations Commission would want that court to have the unfettered right to allow proceedings to be held in secret for any reason. I have received advice on this matter, which states:
The Courts Legislation Amendment Bill 2003 seeks to amend the Industrial Relations Act (1996) (NSW) to purportedly confirm the powers of the Commission to make orders prohibiting or restricting the disclosure or publication of matters before the Commission. The general principles upon which a court should approach the suppression of evidence in proceedings is well settled by the New South Wales Court of Appeal and High Court of Australia. The principle is that Courts must provide for a public hearing of matters before it in order to ensure that not only is justice done but seen to be done. This principle will only be varied in exceptional circumstances, confined primarily to occasions when to allow publication of the courts processes may have the consequence that the trial may be impaired. (John Fairfax & Sons Ltd v The Police Tribunal and Dickson v Dickson). The proposed amendments to the Industrial Relations Act 1996, which seek to insert section 164A are aimed at confirming the powers of the commission in relation to suppression of its proceedings. However, section 164A (2) goes further than just confirming the powers of the Commission—
This is the essential point—
Section 164A (2) states "The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason." The difficulty with this provision is that it provides the Commission in Court Session with that discretion to make a nondisclosure order for any reason.
They are the relevant words.
The Bill does not limit what reason may be taken into account by the Commission in exercising its power. No mention is made of the public interest in section 164A(2).
The bill should be opposed. I foreshadow an amendment to omit the words "subclause (2)" and "other than in Court Session" in proposed section 164A (3) for the following reasons. The commission already has the power to suppress proceedings before it if that is in the interests of justice. This is the subject of settled authority of the commission by reference to section 162 (2) of the Industrial Relations Act and the inherent power of the Commission in Court Session as a superior court of record. In the case of Stonham v The Speaker of the Legislative Assembly of New South Wales, which involved a member of staff of this Parliament, the former member for Parramatta originally obtained a suppression order in relation to proceedings brought by a former staffer. The order was obtained prior to the March 1999 State election and was overturned on appeal in August 1999. In overturning the order, the Full Bench, with reference to common law, found no support in the proper administration of the proceedings to suppress them.
The inclusion of the words "for any other reason" in proposed section 164A (2) creates difficulties for a single judge who is to exercise the power and the appellate court to review the decision of the judge who grants such an order because, first, the discretion is conferred in very general terms, such that the purpose of its exercise is unidentified. It will be difficult, or even impossible, for an appellate court to say that this or that consideration was irrelevant or extraneous to the power conferred to exercise the discretion. That is a reference to Justice Dixon in Water Conservation and Irrigation Commission v Browning. Second, the wide language of the discretion will give rise to differences of opinion as to what "any other reason" is referring to and may result in the departure from the settled principles concerning suppression of court proceedings which are summarised in Stonham's case.
My next point is one I have already referred to in relation to commercial causes. That is, section 179 of the Industrial Relations Act, prima facie, does not allow an appeal from any decision of the Full Bench of the Industrial Relations Commission in Court Session. It is not appropriate to give such a wide discretion as that set out in proposed section 164A (2) to a court that does not have the assistance of review of its decisions by the New South Wales Court of Appeal. The prima facie lack of appeal rights is a matter that should be given further consideration by the Legislature following the critical comments of the New South Wales Court of Appeal in the case of Mitchforce, to which I have already referred. This Parliament must revisit the issue of appeals to the Court of Appeal from the Industrial Relations Commission. The Coalition certainly believes that there should be appeals from the Industrial Relations Commission at least on points of law, and perhaps by leave. The current arrangements are totally unsatisfactory.
One has to search hard and long to find some very limited point for this amendment relating to the Child Protection (Prohibited Employment) Act 1988. I accept that it is a very important issue but I do not accept that the secrecy provision in this bill needs to be nearly as wide as it is to deal with the child protection issue. There has to be a way in which the very specific and real concerns relating to child protection can be identified and isolated with particularity in this bill for appropriate orders to be made about the suppression of proceedings. But it is no excuse to then drive a massive wedge into this whole issue of secrecy of court proceedings and justify a test that refers to "for any other reason". There is no basis for that, and the second reading speech contains no justification for it. The speech covered a number of issues because the bill amends a number of Acts. The speech referred to the contempt power and stated briefly that the bill:
… amends the Industrial Relations Commission Act 1996 to confirm that the Industrial Relations Commission has the power to make non-publication orders at any time, where it is necessary for the proper administration of justice. The need for non-publication orders is especially important in Child Protection (Prohibited Employment) Act 1998 cases to protect the identity of individuals alleged to have been convicted of a "serious sex offence", the employer, such as a school, and/or other associates, such as a teacher's former students.
Obviously all members on this side of the House agree with the need for non-publication orders in those cases, but we do not see a need for an amendment in this form to aid in achieving that outcome. The second reading speech contains no reference whatsoever to the words "for any other reason", which are the great problem. Yet they are the words that the Opposition thinks are offensive in terms of providing an unfettered, unappealable discretion to this court. There is no defence and no mention of them at all. The closest the second reading speech comes to referring to them is by reference to the making of non-publication orders at any time where it is necessary for the proper administration of justice. The problem is that that is not the test.
There is no test in this legislation in relation to the Commission in Court Session considering "the interests of justice". Yes, there is, in relation to the commission, but it is made clear that it is the commission other than in Court Session. The real fly in the ointment, subsection (2) of proposed section 164A, does not relate to that test at all. Therefore, the second reading speech does not even address the words that are so problematical. I have taken the advice of Parliamentary Counsel and I foreshadow an amendment to delete subsections (2) and (5), and in subsection (3) to delete the words "(other than in Court Session)". The instruction has been to just deal with this problem about the unfettered power of the Commission in Court Session.
I want to assure the House that the test in relation to this vital issue of the Child Protection (Prohibited Employment) Act 1988 remains in the legislation. My foreshadowed amendments do not affect the power of the commission in relation to proceedings under that Act. We have been very careful to take the best advice we can to leave that in the bill because that is a vital public interest issue. But subsection (2) is not needed or required to do that, and there is no explanation as to why it is required at all. Even if I heard a reason I cannot imagine circumstances in which it would be necessary, but we have not even reached the threshold issue of the reason for the inclusion of those words.
The provision that I am concerned about, and the advice I have received from experienced counsel, is that it is unprecedented, unnecessary and dangerous for the traditional and most important litigants in the commission, namely, employers and employees. It is difficult and dangerous also for litigants whose cases are increasingly, against their will, being taken to the Industrial Relations Commission out of the commercial causes list. For those reasons, whilst I will obviously not oppose the bill, I will move that amendment.
Ms VIRGINIA JUDGE (Strathfield) [10.47 a.m.]: I support the Courts Legislation Amendment Bill. The series of amendments in this bill seek to improve the efficiency of the courts and provide an improved and, in many ways, more accessible service for legal practitioners and most importantly the public, particularly those who live in rural areas. A number of Acts are proposed to be amended, but I will briefly focus on two areas in relation to the proper administration of justice and the accessibility of that justice, that is, the equity of those services to the public.
This bill amends section 68 (1) of the Jury Act 1977 to increase the penalties for wilfully disclosing the address or identity of a juror to a maximum fine of $250,000 in the case of a corporation, and two years imprisonment or an equivalent fine of 50 penalty units in other cases. The bill also amends the Local Courts (Civil Claims) Act 1970 to increase the Local Courts general civil jurisdiction from $40,000 to $60,000, providing better access to justice for rural residents, as mentioned earlier, and also those on lower means. Farmers and workers who live in the bush are always subject to the perils of the wonderful and good things of nature but also of bushfires, droughts and floods, and they are often struggling. Whatever we can do to make services accessible to those who live in rural Australia must be a step in the right direction. The increase will reflect approximately the consumer price index and real wage changes since 1991, when the limit was set.
Schedule 3 will amend the District Court Act 1973 by extending the number of locations where the District Court may sit. The amendment will allow the court to conduct sittings at venues that are closer to where parties and witnesses live, and closer to where the cause of action arose. It will allow the court to arrange special sittings in rural or remote locations where there are sufficient cases, most likely utilising a Local Court. As I said, it is about convenience. It is about saving people who must appear before a court the extra expense of having not only to travel but also to pay for accommodation, meals and transport. All these things add up, particularly when we all know that, unfortunately, having sufficient funds or disposable income is ever diminishing these days.
Schedule 5 amends the Jury Act by increasing the penalty for disclosing the identity or address of a juror or any information likely to lead to the identification of a juror or former juror in a trial or inquest. The current maximum penalty is a fine of 50 penalty units for a corporation and 20 penalty units for a person. This is grossly inadequate as a sufficient disincentive to discourage publication and protection of the identity of jurors. I am advised that the penalty unit is currently set at $110. This amendment therefore is in line with comparable provisions in other Australian jurisdictions.
It is proposed to increase the penalty provisions in section 68 (1) of the Jury Act 1977 by providing for a fine of $250,000 in the case of a corporation and two years imprisonment or an equivalent fine—50 penalty units or $6,500—in the case of an individual. It is an integral and essential principle of the criminal justice system that the anonymity of jurors be preserved. Women and men who are called upon to perform this important task should be able to do so without fear, interference and harassment. They need to know that they exercise their civil right in a democracy to participate as a juror without worrying that someone will identify their name, address or perhaps family members. They must be absolutely free and not have any threat of that happening. The same applies to big corporations. Often we must make it hurt in the hip pocket, and such a fine says that we mean business. If people break the law they must pay.
Schedule 6 amends the Local Courts (Civil Claims) Act 1970 to increase the jurisdictional limit of the General Division of the Local Court from $40,000 to $60,000. There has been no increase in the jurisdictional limit of the Local Court since it was last adjusted in 1991. It was not just yesterday; it was some time ago. The jurisdiction of the District Court has twice increased during this time. The District Court has also assumed unlimited jurisdiction in respect of motor accident claims. Taking into account consumer price index increases and the rise of average weekly earnings, the value of the Local Court jurisdiction has significantly diminished in real terms over the past 12 years. It might be interesting to know that the Local Court sits in 156 locations throughout the State, making it accessible to urban dwellers as well as people living in the most remote areas of the State. The Local Court provides a cheaper, quicker, simpler and more accessible forum for resolving civil disputes.
A series of practice notes introduced 12 months ago by the former Chief Magistrate has seen more matters dealt with more quickly in the court's General Division. The gradually diminishing value of the jurisdiction has forced rural litigants to travel further to access District Court registries and sittings. As I said, it has forced those with limited means to pay the higher fees that are applicable in the District Court for a relatively small dispute. This adjustment will restore the value of the jurisdiction to what was intended in 1991—as it should be—enhancing the services provided by the Local Court, particularly for rural litigants. I congratulate the Minister and his hard-working staff on bringing this timely bill before the House. It is great that the Government has an opportunity to do something to ensure that the law in this country is accessible to all, no matter where they live, without fear or favour. I commend the bill to the House.
Mr PAUL LYNCH (Liverpool) [10.55 a.m.]: I support the Courts Legislation Amendment Bill. I commence by responding to comments made by the honourable member for Epping in relation to the jurisdiction of the Industrial Relations Commission [IRC] and a case called Mitchforce. I have no idea whether the Attorney or caucus will eventually agree with me, but it seems a very dangerous course to allow full appeals on points of law from the Industrial Relations Commission to the Court of Appeal. My understanding of the history is that that was in fact allowed under the 1991 legislation of the previous conservative Government. This Labor Government removed that option for litigants in the IRC.
Frankly, the objection to it is that the big end of town, with a lot more money and much deeper pockets, will use appeals to the Court of Appeal from the IRC to make life considerably more difficult for unions. Lots of appeals will be pursued as simply another negotiating tactic by bosses. Because they have a lot more financial and legal resources, in my view that will unfairly advantage them in industrial disputes with unions. Having said that, if there is a problem with Mitchforce—while I have not had a look at the judgments, from what I have heard from the honourable member for Epping and other people there may well be a problem with Mitchforce—there would seem to be other ways of resolving it than by simply reinstituting the right of appeal on a point of law, with or without leave, either through amendments to the IRC legislation or a much narrower right of appeal.
I suspect that there is probably a degree of agreement that there is an issue that needs to be resolved. I am simply not sure that a proper, appropriate response from this side of the House is a carte blanche right of appeal on points of law to the Court of Appeal. Having made those comments, I turn now to other provisions in the legislation. Schedule 3 deals with venues at which the District Court sits. Currently the District Court Act provides for the Chief Judge of the District Court to determine where the court may sit, but the legislation restricts that to proclaimed places. As the term suggests, "proclaimed place" is a place proclaimed by the Governor. The legislation introduces a new definition of what is called a "sitting place". These are established simply by a direction of the Chief Judge, which is a simpler and easier process, I apprehend, than having a place proclaimed by the Governor.
Presumably, as a matter of theory, in principle it provides great power to the court to control its own affairs and separates still further the exercise of judicial functions from the Executive or the Legislature. The Parliamentary Secretary, on behalf of the Attorney, argued in his second reading speech that this would allow the court to conduct sittings at venues much closer to where parties and witnesses live, and where the cause of action arose. It is assumed that the venues will most likely be the Local Court. I am delighted to hear this, although I find it more than a little ironic. It is dramatically opposed to the experience in Liverpool, where the District Court used to sit. First its civil jurisdiction and then its criminal jurisdiction were removed from Liverpool. When its civil jurisdiction closed I was advised that this was because it had too much criminal work to do. Then its criminal jurisdiction was removed.
Honourable members can no doubt imagine my cynicism at that course of events. Indeed, I have spoken about it in this place previously. It seemed to me at that time, and continues to appear to be, unfair to both parties and practitioners based in Liverpool for the District Court not to sit there. However, I am delighted to learn from the Parliamentary Secretary that there has been a change in attitude in the District Court. Schedule 5 makes significant amendments to the Local Court jurisdiction. This bill increases the jurisdictional limit of the General Division of the Local Court from $40,000 to $60,000. It does not apply to proceedings commenced before the amendment to the relevant section of the Act. The justification put forward for this amendment is that the jurisdictional limit of the lower court has in real terms decreased over 12 years.
In practical terms, this means cases that have had to be brought in the District Court can now be brought in the Local Court. Because the Local Court sits at far more venues than does the District Court, this has the benefit of convenience, despite the previous section of the bill that I dealt with. Court fees and probably legal fees are less in the Local Court, and that is an added financial benefit to the parties if cases are litigated in the Local Court rather than in the District Court. As I understand the anecdotal evidence, proceedings are probably quicker in the Local Court.
One concern expressed to me is that Local Court magistrates may not have the expertise required to deal with the larger and more expensive claims. I am not persuaded to the legitimacy of that concern. Simplistically, I am inclined to think that if one can adjudicate on a claim worth $40,000, adjudication on a claim of $60,000 is no great jump. Certainly, a fairly impressive array of skills are available amongst the many magistrates now on the bench. That is certainly so from my experience of some of them. Concerns about the expertise of magistrates were raised many years ago when jurisdictional limits for the Local Court were significantly increased. I think they were related to magistrates hearing third party personal injury claims, which historically they had not done and therefore would not have had much expertise in. In practical terms, that is no longer a live issue, granted that we have effectively decimated personal injury claims.
The other change that I would briefly mention is contained in schedule 5 to the bill, and particularly the penalty increases under section 68 of the Jury Act. The amendment will increase the penalty for wilfully disclosing the address or identity of a juror to a maximum fine of $250,000 for a corporation, and two years imprisonment or 50 penalty units for individuals. Those of us who defend the institution of the jury also have an obligation to protect the process. This provision enhances the privacy of jurors and will save them from the excesses of the tabloid media. That is important, not just for individual jurors but also for the institution of the jury. So, whilst in a sense this is a comparatively small amendment, it is nonetheless important in principle. I commend the bill to the House.
Mr WAYNE MERTON (Baulkham Hills) [11.01 a.m.]: I support the position adopted by the shadow Minister and member for Epping, Mr Andrew Tink, and the Opposition on the Courts Legislation Amendment Bill. In essence, the Opposition does not oppose the bill. However, the shadow Minister has foreshadowed that he will move to amend parts of the bill. I believe those amendments are vitally important to ensure the transparency and openness of the operations of our court system. The Opposition has some grave concerns that, if the bill passes in its present form, those concepts will not exist in the Industrial Commission of New South Wales. I will not deal further with that issue at this stage. I now turn to some of the specific provisions of the bill. In some respects, the bill proposes some quite admirable amendments relating to the administration of justice in New South Wales.
In that respect I refer to the amendment to the Crimes (Local Courts Appeal and Review) Act 2001 to "confirm the power of an appeal court under that Act to take into account any period of suspension of a driver licence under section 34 of the Road Transport (General) Act 1999, and any other periods during which the defendant was or was not licensed to drive, when deciding whether to backdate the commencement of a disqualification from holding a driver licence that it confirms or varies on appeal". In other words, in the event of an unsuccessful appeal, the power of the court to backdate the commencement of any disqualification is confirmed. Many years ago, when I was practising in magistrates courts, certain problems arose where a person had been prohibited from driving a vehicle in the period leading up to an appeal. If the result of the court proceeding was dismissal of the appeal, the question arose as to whether or not the period of suspension should in fact start on the day that the magistrate dismissed the appeal, or whether it should be backdated to commence from the day the person ceased driving. Clarification of that question is very much worthwhile. This is a question that has caused concern to many people over many years.
I note that the Criminal Procedure Act 1986 is to be amended to extend the classes of person who may take depositions from dangerously ill persons in order to preserve evidence of indictable offences for court proceedings. That is an important mechanism, because quite often potential witnesses are in a life and death position. Tragically, on occasions there is little time in which to obtain that evidence from a person facing inevitable and imminent death. It makes sense to preserve the testimony of such persons by making it easier for their depositions to be obtained. If that evidence is unable to be obtained because a presently defined class of person is not available to take that deposition, that evidence could be lost forever. Thus, further down the track, when it comes to the court proceedings relating to the relevant matter or any other matter on which the person could have given evidence, justice would be denied for the want of a statement, by way of deposition of a deceased person, that is admissible in court.
The District Court has served New South Wales admirably for many years. The District Court probably is one of the most important courts for the people of New South Wales because the scope of the cases it deals with is more extensive than cases in the Local Court, though not as great as those in the Supreme Court jurisdiction. However, in my view, in recent years commendable steps have been taken to increase the jurisdiction of the District Court to ensure that jurisdiction is more accessible to the people of New South Wales. The District Court has the advantage of sitting in a number of places. Indeed, some years ago, when the District Court hit town it was a big day for the town; people who were waiting for their cases to be heard would have them determined by the judge without having to travel to Sydney. Justice was being brought to their doorstep, in their own regional centre.
It makes sense that this legislation allows the Chief Judge of the District Court to make arrangements to enable that court to sit in places, even if they are not proclaimed places within the meaning of the Act. This is a move forward in dealing with the contingencies of litigation in the year 2003 and thereafter. The learned shadow Attorney General foreshadowed an amendment to the provisions of the bill relating to the Industrial Relations Act. I support the foreshadowed amendment. I am concerned, in particular, about proposed section 164A (2), which provides:
The Commission in Court Session may make any non-disclosure order if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.
Quite clearly, one has to anticipate that from time to time there will be circumstances in which courts will take evidence in camera. However, to have such an open and unfettered right as is proposed by the bill, without any criteria being set or without any justification being given, is fundamentally wrong. It is a basic concept of our courts in Australia—indeed the whole Westminster British judicial system, which we have inherited with great pride—that they should be open and transparent. In most cases, people should be entitled to go to court, listen to the evidence and find out how justice works. It is as true in 2003 as it was many years ago that justice must not only be done it must appear to be done. We oppose the amendment in the legislation to allow the industrial court, without any criteria, justification or circumstances enunciated in the legislation, to rule that evidence is confidential and that it not be disclosed. The shadow Attorney General will move an amendment in that regard.
Amendments to the Jury Act are appropriate. Recently, disclosure of information about members of the jury has been a problem. The concept of a jury has to be considered in the context of life in 2003 and thereafter. There is no doubt that we are living in a violent age when people's privacy and security have been undermined by communication and accessibility of addresses. Anyone who is called to serve on a jury is discharging a community service. The charm, fascination and success of the jury system is that juries consist of normal Australian people who are taken out of their secure family environment and brought into court to deal with serious and often brutal crimes. People who are doing their civic duty as a citizen of New South Wales certainly deserve every security measure and protection the Government can offer. Previously when people applied to be excused from jury duty, the response was that it was their duty as a citizen to participate in the jury process. Such a duty cannot be denied, but jurors must be protected. We support increased penalties for disclosing the address or identity of a juror. We have a strong commitment to protecting jurors.
The amendment to the Local Court (Civil Claims) Act to increase the jurisdictional limit of the Local Court from $40,000 to $60,000 is a necessary and sensible change. The limit has increased over many years, as it should. There is no doubt that local courts presided over by learned magistrates are the coalface of the judicial system. If Australians have anything to do with justice, in the first instance they will deal with the Local Court. Many claims that previously would have gone to the District Court, which by its very nature and structure incurs additional legal costs, should be dealt with conveniently at the Local Court. Further down the track consideration should be given to increasing the limit even further. Justice administered by magistrates is quick and efficient. A dispute involving $60,000 is a big dispute—not as heavy as many commercial disputes—and would cover the greater number of Australians engaged in litigation. Car accidents, damages to motor vehicles and similar disputes should be dealt with in the Local Court by a magistrate. Increasing the jurisdictional limit of the Local Court from $40,000 to $60,000 is an excellent idea.
An amendment to the Oaths Act will authorise barristers, as well as solicitors, to witness statutory declarations, and take and receive affidavits. For many years solicitors have been able to fulfil the role of a justice of the peace to administer oaths and affidavits, et cetera. However, for many years solicitors were unable to witness a document if the document was part of the solicitor's practice or if the document was part of a case in which the solicitor was a litigant. That rule has now changed. It is only logical to include members of the bar. I am surprised that they were not included in the first instance. We support the amendment. It will be convenient for barristers who, at 5.30 at night, have to find a justice of the peace in chambers or somewhere else in the building to witness an affidavit that has to be filed either that night or early the next morning. The bill certainly introduces a number of worthwhile changes. However, we have grave concerns about the matters raised by the shadow Attorney General, such as transparency and other matters that are dealt with in his proposed amendments.
Mr BOB DEBUS (Blue Mountains—Attorney General, and Minister for the Environment) [11.16 a.m.], in reply: I thank honourable members for their contributions to the debate. At this time it is necessary to respond only in anticipation of the amendments concerning the Industrial Relations Commission and the non-disclosure orders referred to in the bill. I thoroughly endorse the complimentary remarks made by the honourable member for Epping about the Commercial Jurisdiction of the Supreme Court. However, for the purposes of this debate they are entirely beside the point. I have paid a good deal of attention to the case of Mitchforce and its implications. It is a matter about which there will be more discussion as time goes by. But, again, it is entirely beside the point in the present matter. In this respect the honourable member is barking up the wrong tree. There is no way that the powers proposed in the bill are without precedent.
Members opposite have sought to suggest that, in some way or other, this small amendment introduces a measure that is extraordinary, but that is not so at all. More to the point, the Opposition's amendment would limit the power of the Industrial Relations Commission [IRC] in Court Session to make non-disclosure orders in circumstances concerning Child Protection (Prohibited Employment) Act issues. In other words, as I read the amendment, it would contradict the alleged purpose for which it had been introduced. The Opposition's amendments would severely restrict the scope of the Government's proposal by limiting the existing power of the IRC in Court Session to properly protect the identity of a person in circumstances when such protection is warranted by the confidential nature of the information. It is well established law that higher courts, including the Industrial Relations Commission in Court Session, have the power to make a non-publication order when that is necessary to secure the proper administration of justice. I find it extraordinary that it should be suggested that that power should be undermined.
The purpose of the Government's amendments is, first, to confer limited power on the commission when it is not sitting in court session to make non-disclosure orders, but to confer power that is wide enough to deal appropriately with child protection matters and, second, without affecting the existing powers of the court in session, to clarify that it has the power to suppress confidential information. The kinds of non-publication orders that I am talking about might include orders to protect the identity of a police informer and orders made in the interests of national security. There is no doubt that the Industrial Relations Commission has that implied power when it sits in court session, but the authorities are less clear with respect to tribunals. New section 164A (2), which the Opposition seeks to remove from the bill, is identical in its wording to section 75 of the Administrative Decisions Tribunal Act 1997. I emphasise that point. Far from it being some kind of unprecedented power, we are just introducing a kind of power that already exists in respect of another tribunal.
The Administrative Decisions Tribunal and the IRC share jurisdiction under the Child Protection (Prohibited Employment) Act 1998. It is essential that both tribunals should have the same power to make non-publication orders. I emphasise that, with this small amendment, we are giving the IRC powers that already exist in respect of the Administrative Decisions Tribunal. Proceedings under the Child Protection (Prohibited Employment) Act 1998 involve applications by individuals who have been convicted of a serious sex offence and are seeking exemption from the prohibition imposed on them by the Act on undertaking child-related employment. Non-publication orders may be necessary in these proceedings to protect the identity of the individual's employer, such as a school, and the identity of other persons about whom evidence may be given, such as former or current students or victims of sexual offences. They are the kinds of circumstances in which non-publication orders might be necessary. In fact, if an application for exemption is successful, the success is substantially undermined if the identity of the applicant cannot be suppressed.
I take the example of a 15-year-old male who unfortunately gets his 15-year-old girlfriend pregnant and is convicted of the serious sexual offence of having sex with a minor. The pair gets married and go on to teachers college, later go on to have successful teaching careers and then a new law is introduced that threatens his unblemished career. That is the type of case that would warrant an exemption, but the exemption would surely not be worth much if the tabloid newspapers have spread his name about in connection with having committed a serious sex offence. As the courts have said, "if the very openness of the Court proceedings would destroy the attainment of justice in the particular case ... or discourage its attainment in cases generally" then it is necessary to restrict that openness with a non-publication order. By mirroring the language that is presently in the Administrative Decisions Tribunal legislation in section 164A (2) and providing in section 164A (5) that these provisions will not detract from any implied power that the Industrial Relations Commission, as a superior court record, may have at common law, the Government is ensuring that the IRC in Court Session may, without any doubt, make non-disclosure orders as required for the effective operation of the Child Protection (Prohibited Employment) Act 1998.
As is appropriate for the commission when it is not sitting in court session, section 164A (3) puts beyond doubt the circumstance that the commission may, like the courts, make non-disclosure orders when necessary in the interests of justice. In addition, it grants the wider power necessary for the effective operation of the Child Protection (Prohibited Employment) Act 1998, but confines that power to the prohibited employment jurisdiction. As the Commission in Court Session has the same status and implied powers as has the Supreme Court, it is critical to include a provision such as section 164A (5) whenever there is any legislative tinkering to clarify these powers. Without such a provision, the legislation could be read as confining the powers of the Commission in Court Session which would result, particularly if the Opposition's amendments to subsections (2) and (3) of section 164A were adopted, in significant stripping away of the Industrial Relations Commission's current powers. The Government's amendment is essential to remove any doubt that the court and the tribunal might make non-publication orders if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or for any other reason. It is appropriate that that power be removed. Therefore, I urge honourable members to reject the amendments that have been foreshadowed by the Opposition.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 3 agreed to.
Schedules 1 to 3 agreed to.
Mr ANDREW TINK (Epping) [11.27 a.m.], by leave: I move Opposition amendments Nos 1 to 3 in globo:
No. 1 Page 10, schedule 4 [4], proposed section 164A (2), lines 20-23. Omit all words on those lines.
No. 2 Page 10, schedule 4 [4], proposed section 164A (3), line 24. Omit "(other than in Court Session)".
No. 3 Page 10, schedule 4 [4], proposed section 164A (5), lines 35-39. Omit all words on those lines.
As I foreshadowed during my contribution to the second reading debate, the amendments go to the issue of the Industrial Relations Commission's power to prohibit disclosure of matters before it. I emphasise that the intention of the amendments is not in any way to ease up on the court's power in relation to suppressing any necessary matters under the Child Protection (Prohibited Employment) Act. I can deal only with the bill that is before the Committee. I can deal only with the bill in the form in which the Government has presented it to the Parliament. I can deal only with it in relation to concerns I perceive on advice of the Parliamentary Counsel. The Parliamentary Counsel's advice in relation to this amendment is that this is what is necessary to do away with the special power proposed for the Commission in Court Session to effectively exercise a suppression power for any reason it likes.
I noted carefully the Attorney General's comment that the Administrative Decisions Tribunal has this power under the 1998 Act. I do not doubt that is true. If it is true, frankly I do not think it should have that power. Its power ought to be constrained in a fashion similar to the constraint proposed in the amendments. I do not think that every tribunal or court in this State or in this country ought to have unfettered power for any reason it sees fit to make its proceedings secret. I just do not believe that every tribunal in New South Wales should have that power, perhaps with the exception of the Crime Commission—although perhaps even not in that case. Even the Crime Commission has to provide reasons for the exercise of such powers, or at least I would like to think so. Some reason must be given that is based on some type of test. On examination of this bill I noted, for example, that the Independent Commission Against Corruption has broad powers to suppress proceedings before it under section 112 of the Independent Commission Against Corruption Act, but there is a public interest test.
What I find so wrong about this proposal is that no test has been set out against which one could say that a decision to suppress is right or wrong, because any reason will do. If that is the wording, if that is the test of the Administrative Decisions Tribunal [ADT], it ought to be changed. I carefully noted that the Attorney General said, basically, that the Commission in Court Session ought to have the power where necessary to serve the proper administration of justice, or words to that effect. I agree with that; it is exactly right. However, the trouble is that that is not what the bill provides. The bill does not set out that test. If the bill set out a public interest test or a test about the proper interests of justice, the Opposition would support it.
Proposed section 164A (3) (b) in item [4] of schedule 4 provides that the commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice. The Commission in Court Session is treated separately, because that provision is not included in proposed section 164A (2). It cannot be argued that there is any sort of flow-on power to the Commission in Court Session, because it simply is not there. The words are "The Commission (other than in Court Session)". That reinforces the idea that the necessary-in-the-interests-of-justice test does not apply to the Commission in Court Session. If it did, I would not be taking part in this debate; I would save the Mitchforce argument and all the questions of the vexed issues on appeal rights for the Industrial Relations Commission for another day. The reason we are talking about this today is because of some sort of misconception in the drafting of the bill.
The bill has enormous knock-on consequences to a host of related jurisdictions, not the least of which is the commercial jurisdiction, where there is an unfettered power to run secret hearings. That is very wrong. I agree with the Attorney General that the test is correct, where it is necessary to make a non-disclosure order in the interests of justice. But that is not the power given to the Commission in Court Session by this bill. The power is totally unfettered. If that is the power for the ADT—and I accept that the Attorney General said that it is—it is wrong. The ADT needs to have some justiciable test about its power to undertake secret hearings. For those reasons I commend the amendments to the Committee.
Mr JOSEPH TRIPODI (Fairfield—Parliamentary Secretary) [11.32 a.m.]: The Government rejects the Opposition amendments for the reasons given by the Attorney General in his speech in reply.
Mr CHRIS HARTCHER (Gosford) [11.32 a.m.]: The Industrial Relations Commission [IRC] is well established and well recognised and I have the highest regard for its President, Lance Wright, and for the other members of the commission; they are well respected throughout New South Wales. That ancient body has been in existence for 100 years; it celebrated its centenary in 2002. Along with the Supreme Court it is one of the oldest and most august bodies in the State. Nonetheless, like all courts and commissions, the Industrial Relations Commission needs to be part of a system in which appropriate correction is available, if necessary. It has become clear to the Opposition that there is a great deal of concern in certain economic sectors that the Industrial Relations Commission should be more accountable. The appropriate way to bring that about is to allow a right of appeal to the Court of Appeal. That is what is set out in the amendments moved by my colleague the honourable member for Epping.
The amendments are in no way a reflection on the role of the IRC and should not be seen as such. The fact that the Court of Appeal is oversighted by the High Court of Australia is no reflection on the Court of Appeal; it simply ensures a structured system in which there is review of decision making. The final decision is achieved after an exhaustive process. While the IRC is a specialised body, it nonetheless operates within the legal framework of the rule of law. It is important that the principles of the rule of law are maintained and upheld. That, of course, is the primary role of the Court of Appeal. That was demonstrated only yesterday—
The TEMPORARY CHAIRMAN (Mr Lynch): Order! I have shown discretion in allowing the honourable member to continue, but the arguments he now raises are for another day. The points he raises are not covered by the amendments and are, therefore, out of order. Perhaps he may wish to check with the honourable member for Epping.
Mr CHRIS HARTCHER: Yes, that is an argument for another day, and that argument will be put by the Opposition. I abide by the ruling of the Temporary Chairman on that matter. I was going to commend him for a letter he recently co-signed with a number of other people, but I will not go into that. Recently, the secrecy clauses contained in the Act were used in a case involving a member of Parliament and a electorate staffer employed by that member. It is my understanding that the member of Parliament had no real problem with those matters being heard in open court; she had nothing to hide. The member was vindicated by that hearing but the processes were conducted in secret. Closing doors simply creates enormous speculation as to what is happening. The only time secrecy is needed is when the public interest is paramount.
One would not think that matters involving the IRC are best conducted behind closed doors. The paramount public interest is, of course, in ensuring that justice is done, that everyone is given a fair hearing and that the result is in accordance with law. That is for the benefit of the community as much as for the benefit of the litigants. That is why the Coalition, through the honourable member for Epping, has taken the stand it has. I am not aware of what arguments the Parliamentary Secretary, the honourable member for Fairfield, used to reject the amendments. He simply read the little note that was handed to him, which he does well. I give him full marks for that; he is probably one of the best readers of ministerial advisers' notes in the Chamber.
The TEMPORARY CHAIRMAN (Mr Lynch): Order! The honourable member for Gosford will return to the substance of the amendments.
Mr CHRIS HARTCHER: I am speaking to the bill.
Mr Joseph Tripodi: You are wasting time. We have got other legislation. Get on with it!
Mr CHRIS HARTCHER: I am making the pertinent point that the Government has not outlined its reasons in any comprehensive fashion, despite the interjection by the honourable member for Fairfield, as to why it is not prepared to accept the amendments moved by the honourable member for Epping. The Opposition would be interested to know why a political party wants secrecy to be maintained when that political party has used the secrecy provisions when the staff of members of Parliament are involved, and made sure that a particular matter was not ventilated before the public prior to the 2003 election. No matter what veneer is put on it, members opposite always have that self-interest lurking underneath the surface.
The honourable member for Fairfield is the last person who should want to talk about the results of inquiries being made public. The Temporary Chairman would rightly pull me up if I ventured down that path, so I will not. The Chairman and the honourable member for Fairfield are members of the same faction and strongly support each other every time there is a factional fight. I know all about that: the honourable member for Liverpool runs to the honourable member for Fairfield, saying, "Give me 50 members for the next branch meeting". So what is the rationale for the provision in the bill? We simply do not know. For those reasons we need to make clear that we support the amendments moved by the honourable member for Epping.
Question—That the words stand—put.
The Committee divided.
Ayes, 47
Ms Allan
Mr Amery
Ms Andrews
Mr Bartlett
Ms Beamer
Mr Black
Mr Brown
Ms Burney
Miss Burton
Mr Campbell
Mr Collier
Mr Corrigan
Mr Crittenden
Ms D'Amore
Mr Gaudry
Mr Gibson | Mr Greene
Ms Hay
Mr Hickey
Mr Hunter
Mr Iemma
Ms Judge
Ms Keneally
Mr Knowles
Mr McBride
Mr McLeay
Ms Meagher
Ms Megarrity
Mr Mills
Mr Morris
Mr Newell
Ms Nori | Mr Orkopoulos
Mrs Paluzzano
Mr Pearce
Mrs Perry
Mr Price
Ms Saliba
Mr Scully
Mr Shearan
Mr Stewart
Mr Tripodi
Mr West
Mr Whan
Mr Yeadon
Tellers,
Mr Ashton
Mr Martin |
Noes, 32
Mr Aplin
Mr Armstrong
Mr Barr
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Debnam
Mr Draper
Mr Fraser
Mrs Hancock
Mr Hartcher | Ms Hodgkinson
Mrs Hopwood
Mr Kerr
Mr McGrane
Mr Merton
Ms Moore
Mr Oakeshott
Mr Page
Mr Piccoli
Mr Richardson
Mr Roberts | Ms Seaton
Mrs Skinner
Mr Slack-Smith
Mr Stoner
Mr Tink
Mr Torbay
Mr J.H. Turner
Mr R.W. Turner
Tellers,
Mr George
Mr Maguire |
Pairs
| Mr Debus | Mr Brogden |
| Ms Gadiel | Mr Hazzard |
| Dr Refshauge | Mr O'Farrell |
Question resolved in the affirmative.
Amendments negatived.
Schedule 4 agreed to.
Schedules 5 to 8 agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
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