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- 18 November 2003
Evidence (Audio and Audio Visual Links) Amendment Bill
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Page: 5099
Second Reading
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [8.16 p.m.]: I move:
That this bill be now read a second time.
I seek leave to incorporate the second reading speech in Hansard.
Leave not granted.
I refer honourable members to the second reading speech that was delivered by the Minister in the other place on 12 November.
The Hon. GREG PEARCE [8.18 p.m.]: The Opposition does not oppose the Evidence (Audio and Audio Visual Links) Amendment Bill, which will amend the Evidence (Audio and Audio Visual Links) Act 1998—the principal Act—to clarify the discretion of the court to order the use of audiovisual links in certain criminal proceedings where serious security concerns have been identified. It will also amend the Evidence Legislation Amendment (Accused Child Detainees) Act 2003, which made uncommenced amendments to the principal Act. The Evidence (Audio and Audio Visual Links) Act 1998 provides that if an accused detainee is appearing to give evidence in a substantive criminal matter such as a trial, committal or appeal, he or she will be entitled to make a physical appearance in court unless the court orders otherwise. The court may make an order requiring appearance by audiovisual link only if it considers that it is in the interests of justice to do so.
As I said earlier, the Opposition does not oppose this bill. It is important to note the scandalous way in which this bill was introduced by the Government and debated in the other place. The Government introduced the bill in the Legislative Assembly at approximately 10.22 p.m. on 12 November and debate on the bill was resumed at 10.00 the next morning. The shadow Attorney General, the honourable member for Epping, quite rightly complained about the fact that the Government had taken that course without allowing proper and appropriate time for the Opposition to consult the Law Society or the Bar Association on the implications of the bill. Members were also deprived of the good work done recently by the Legislation Review Committee. Many honourable members recognise the useful work that is done by that committee. However, the report of that committee was not available when the Government rammed the bill through the lower House.
There is no reason why the Government should have rammed this bill through the lower House. It reflects an arrogance and a spin doctoring by the Government—issues on which Opposition members have commented on many occasions—and it does no justice to a Government in a State as important as New South Wales. We now have the report of the Legislation Review Committee on this bill—a report dated 18 November 2003. I refer honourable members to that report, which gives useful background to the bill and describes its purpose. It also discusses in detail the amendments to the bill. The bill will preserve the right of an accused detainee to make a physical appearance in substantive criminal proceedings by retaining the presumption in favour of physical appearance as the default position in most cases.
The amendments in the bill will make sure that the court is equipped to meet community expectations that court proceedings will be conducted in a secure environment that will ensure the physical safety of all court users. That appears to be the major issue in this bill. I refer honourable members to paragraph 9 of the Legislation Review Committee report, which lists a number of factors that a court must take into account in determining whether it is in the interests of the administration of justice to direct an accused detainee, other than an accused child detainee, to appear in criminal proceedings. It mentions in particular personal security, the risk of an accused detainee escaping or attempting to escape, the behaviour of the accused detainee and the conduct of the accused detainee while in custody.
The bill is not particularly controversial so it is very difficult to understand why the Government rammed it through the lower House without giving the Opposition and other interested parties the usual opportunities for consultation. The bill involves issues of procedural fairness that are important to the health and safety of the legal system as we know it. The Opposition does not understand the reason for the Government's appalling behaviour in the other place in relation to this bill but we do not oppose the bill.
The Hon. Dr PETER WONG [8.24 p.m.]: I support the Evidence (Audio and Audio Visual Links) Amendment Bill, which amends the Evidence (Audio and Audio Visual Links) Act 1998. I think this is very good legislation that enhances court security.
Reverend the Hon. Dr GORDON MOYES [8.25 p.m.]: The Christian Democratic Party supports the Evidence (Audio and Audio Visual Links) Amendment Bill. The bill requires an accused who is in custody in a correctional centre, a detention centre, a police station or another place of detention to appear physically before a court unless the court directs otherwise if satisfied that it is in the interests of justice that the accused detainee appear by audiovisual link before the court. I am sure that we have all read stories about how violent or deranged detainees in American courts have managed to get hold of weapons and attacked the judiciary, court officials and others. The judicial process is constantly threatened by people who believe violence is the way to get their own back on the community.
This bill will clarify the discretion of the court to order that an accused person appear in court by audiovisual link in a criminal hearing when serious security concerns have been identified. The usual process involves a person appearing physically in court unless there is an apprehension that his or her physical presence may lead to violence. The bill makes a number of other minor technical amendments to the Evidence (Audio and Audio Visual Links) Act 1998 and consequential amendments to the Evidence Legislation Amendment (Accused Child Detainees) Act 2003. The 1998 Act facilitates the use of audio and audiovisual technology in the courts and allows New South Wales to participate in a substantially uniform interstate scheme. Honourable members may be aware that in a recent case before the court it was claimed that a person had fled to Dubai in order to avoid incriminating himself. However, the court ordered that his evidence be given by an audiovisual link from Dubai and then accepted that evidence. A number of recent high-profile criminal matters have put at risk the security of some officers of the court so we commend the Government for introducing this bill. The bill retains the presumption that a person will appear in court physically but that an audio or audiovisual link may be established if necessary. We commend the bill to the House.
Ms LEE RHIANNON [8.28 p.m.]: The Greens do not support the Evidence (Audio and Audio Visual Links) Amendment Bill. We recently supported a bill that regulated how child detainees can give evidence via audio and audiovisual links but this bill goes a step too far in dictating evidence procedures to the courts. The Evidence (Audio and Audio Visual Links) Act 1998 has already trampled on the common law and the traditional practices of the court. The common law says that accused people have a right to appear in court to face charges against them, but that was changed by the 1998 Act. Because of that Act, there is now no automatic right to appear in court in preliminary proceedings. In fact, in those cases there is a presumption in favour of using an audiovisual link.
With substantial criminal matters the presumption is still in favour of physical appearance, that is, accused people have the right to appear in court. But the bill makes further changes. The new rules would allow the court to use audiovisual links for an accused person if that person's physical attendance might threaten the security of the courtroom. This provision might sound reasonable to many members, but it is unnecessary. The courts are capable of making a decision whether an accused would threaten security, and there is no need for a law to spell that out. The courts are capable of assessing security threats and taking steps to deal with them, including the use of audiovisual links, and they have the authority and power to do so.
The bill is not just unnecessary it also creates new problems. Under proposed subsection 5BB (5) (d), one of the factors that might cause the judge to order the use of an audiovisual link is the accused's behaviour in custody. But the accused's behaviour in custody may be no guide to how they will behave in court. And it is not clear who will decide whether that behaviour might recur in court, or might threaten the court. Who will give a judge or a court the evidence about the accused's behaviour in detention and what it means for the courtroom's security? Will it be the Department of Corrective Services? If so, what will the procedures be for this? The Greens are concerned that the bill gives to the Department of Corrective Services considerable power over the rights of accused people to appear in court.
The Hon. John Hatzistergos: It is a great thing.
Ms LEE RHIANNON: The interjection of the Minister shows that he is one more Minister for Corrective Services who has gone the Woodham way. We urge the Government to remove this provision from the bill. The courts are the best arbiter of when and how audiovisual links should be used, and the matter should remain in their hands. It should not be in legislation, in regulations that we have not seen yet, or in the hands of the Department of Corrective Services.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [8.32 p.m.], in reply: I thank honourable members for their contributions in this debate. The bill contains amendments to the Evidence (Audio and Audio Visual Links) Act. The primary purpose of those amendments is to clarify the existing discretion of the court to require an accused detainee to appear in court by audiovisual link in proceedings where serious and credible security concerns have been identified. If the Hon. Lee Rhiannon read the bill she would find that the answers to many of the speculative questions she posed in her speech are responded to.
Under these amendments there is, in fact, no change to the presumption that accused persons should physically attend court for all substantive criminal matters. The amendments simply refine the discretion of the court by making it clear that there is an option to order appearance by audiovisual link where there are security concerns identified, and such an order is considered to be in the interests of the administration of justice. However, in practice it will only be in unusual and extreme circumstances that courts will make such an order.
The bill reflects the Government's continuing commitment to improving court security to ensure that we have a justice system that is safe and accessible to all users. I believe that the current proposals achieve an appropriate balance between the right of accused persons to be present at trial, and the need to ensure that the physical security of individuals involved in the judicial process is an overriding priority in the rare circumstances where such an approach is warranted. I have had occasion at many correctional centres to speak to inmates who have accessed this material. The satisfaction rate has been extremely high. They are able to follow the procedures extremely well. Many of them, in fact, have commented to me that they prefer to be able to access an audiovisual link in preliminary proceedings, in particular, rather than have to be taken to court, with all the security and other arrangements that that involves.
The proposals in the bill reflect this Government's ongoing commitment to enhancing court security and meeting community expectations concerning the physical safety of all court users. The Hon. Greg Pearce raised a number of these issues relating to the way the bill was handled. To some extent the answer was contained in his own speech when he indicated that the bill was not particularly controversial and, therefore, did not require the level of attention that perhaps other bills might require. In any event, I point out that there was extensive consultation. The matter was canvassed with the courts, the professional associations—the Law Society and the Bar Association—the Legal Aid Commission and the Office of the Director of Public Prosecutions, all of whom have had input and made responses to the proposals in the bill. The bill very much reflects the outcome of those consultative processes. I think that is an adequate response to the concerns raised by the Hon. Greg Pearce. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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