Resumed from 21 November 2007.
HON GIZ WATSON (North Metropolitan) [ 5.57 pm]: This omnibus bill comprises 26 parts, and seeks to amend about 30 pieces of legislation. It is quite a substantial bill. I put on record that the first I knew that the debate would occur this week was on Friday, at about five o’clock in the afternoon. I give full credit to my research staff for their extraordinary efforts in assessing this bill in the past few days.
The Greens have no problem with, and are more than happy to support, the majority of the bill. I understand from the Minister for Child Protection’s second reading speech that the bill before this house today is based on a comprehensive review of the Magistrates Court reform that included an extensive consultation process. The main aim of the review was to improve the effectiveness of the legislation. I am unsure whether the review report is a public document, and I ask the minister if she would indicate whether that is the case by way of response to the second reading debate. As we are about to break for dinner, if that information is available, I would be interested to have the opportunity to look at it then. I am particularly interested in comparing the outcomes of the review with the proposed amendments. It is classic: I am asking for this information on the day when the bill is being debated, due to the fact that the bill came onto the notice paper quite suddenly. However, in the same vein as the Deputy Leader of the Opposition’s comments, the Greens are mindful to keep this bill moving through because it is largely uncontentious. The Greens are happy with the government’s aim to improve any procedures.
The bill provides for 104 technical amendments to 29 acts. The minister has told the house that the bill is an integral part of a reform program that delivers on commitments to provide faster, less expensive and more consumer focused courts, tribunals and justice services, which are objectives the Greens wholeheartedly support. I comment, though, that on a closer look at this bill, those aims are not necessarily reflected in all parts of the proposed legislation. These issues were also raised by the member for Nedlands in the debate on the bill in the Legislative Assembly. It appears that some of the amendments will change the intention of the legislation; namely, the way it is to be applied and the way that agencies of the courts administer the acts, so there are some reservations.
My main concern is part 15 of the bill, clauses 70 and 72; especially the proposed changes to section 33 of the Magistrates Court Act 2004, which deals with access to court records. The proposed amendments will further restrict access to records by anyone other than the parties involved in any particular case.
Sitting suspended from 6.00 to 7.30 pm
Hon GIZ WATSON: I believe I was just beginning my remarks on this bill.
Hon Ken Travers: Very similar to Simon’s, I believe!
Hon GIZ WATSON: We will not go there!
Hon Simon O’Brien: I heard that!
Hon GIZ WATSON: I am just not going to comment on it; I am not making any comment one way or the other!
Before the break I was commenting on part 15 of the Acts Amendment (Justice) Bill 2007, particularly with regard to clauses 70 and 72, which encompass the main concerns the Greens (WA) have with this bill. The clauses deal with access to court records and proposed changes that will further restrict access to records by anyone other than parties to a particular matter. The Greens (WA) do not support this proposal, and I would like the minister to explain why it should be made more difficult to access court records and transcripts, rather than the decisions of the court remaining transparent and access to court data being facilitated.
The changes relate to access to court data by anyone other than the parties to a case. The bill proposes to repeal section 33(5) of the Magistrates Court Act 2004, which states —
In respect of criminal proceedings in the Court, where a conviction or order is made, or a charge is dismissed, any party interested therein is entitled on request —
(a) to receive a copy of —
(i) the prosecution notice containing the charge;
(ii) the record of proceedings;
(iii) any statement of the accused’s convictions that is tendered in the proceedings; and
(iv) the conviction or order,
from the officer who has custody thereof, subject to payment of an amount calculated in such a manner as is prescribed by regulations; and
(b) to view any exhibit in the proceedings that is in the possession of an officer of a court and that is not reasonably capable of being copied, at a time and place appointed by that officer.
That subsection of the act will be repealed by this bill. The right of the media or other interested members of the public—such as victims’ support groups, prosecution witnesses who wish to progress their own compensation claims, or community legal centres—to access court records will be restricted, and access will be made available only if the court agrees to the release of the information. The proposed amendment to section 33 of the Magistrates Court Act needs to be seen in its historic context. I remind the house of the background to this provision. The Magistrates Court Bill 2003 was debated in the Committee of the Whole on 19 October 2004 after a detailed scrutiny by the Standing Committee on Legislation. Subsections (5) and (6) of section 33 were included in the Magistrates Court Act, following recommendation 2 of the Standing Committee on Legislation. At that time, I was a member of the standing committee, as I am now, and I remember the discussion. Recommendation 2 from the committee, which was agreed to unanimously, reads —
The Committee recommends that clause 33 of the Magistrates Court Bill 2003 be amended to allow wider access to the court record in criminal proceedings. The statutory amendments required to effect this change are set out in Appendix 3.
Appendix 3 lays out the clause I have just read out. The recommendation to the committee was the outcome of extensive consultation with a wide section of views from interested stakeholders in the community, including the Chief Justice; Chief Magistrate, Magistrate Wager, who is now the District Court Judge; the Director General of the Department of Justice; and the Law Society. Hon Peter Foss, who was also a member of the standing committee had the following to say before the amendments to clause 33(5) and (6) of the Magistrates Court Bill were passed in the Committee of the Whole. I refer to Hansard of 19 October 2004 in which he states —
We cannot spend our time endlessly trying to guess what words the minister would prepare for us. These words were taken from the Justices Act. The committee assumed that the words worked because they have worked since 1902. It is not for us to pre-empt the minister’s wording. Each of the points raised by the minister are not really valid. The first matter has been resolved by the Titelius case. On the second matter, the Government is going the wrong way if it aims for some form of uniformity. The third matter is the minister’s problem, not ours.
In my view the access to court records must be seen in the same light as access to other public records, especially the records of the administrative and executive arms of government. I remind the house of recent discussions about the independence of the Freedom of Information Commissioner and the Public Sector Standards Commissioner. In my view the government needs to ensure that transparency and accountability of administrative and executive actions is guaranteed at all levels. The same should be true for the judiciary.
On 24 October 2004, against the wishes of the committee, the opposition and the Greens, the government wanted to restrict access to court records. I do not see that anything has changed here. I would like the minister to explain what inconsistencies are to be removed through this proposed amendment as stated in the explanatory memorandum; why the proposed changes are necessary; what submissions were received in support of and requesting the proposed amendments; and what strategies the government uses to ensure accountability of the judiciary. A very talented intern and law student, Miss Roxanne Moore, was recently working in my office on a matter that is relevant to this debate. I raised with her the question of whether Western Australia needed an independent judicial commission. We sent a copy of her intern report to the Chief Justice and to the Attorney General. That report found that there was no formal system for collating sentencing data and very little public confidence in that area. The report also found that there is a need for such an independent body due to the lack of a current binding process and the lack of public confidence and to facilitate open justice and to increase public awareness and transparency of the justice system. This question of the public’s capacity, whether they be interested parties, the media or any other member of the public, is a relevant matter, and Parliament should not be moving amendments that will restrict access to the records of the court. I remain unconvinced that the government has put up a good argument that this deletion is necessary. I do not anticipate that accountability will be served by the proposed amendments. Instead, we should contemplate whether more transparency and accountability could be achieved by making all transcripts and judgments available to the public. The Greens will continue to oppose any move to restrict access to court records, and would rather see the availability of court records widened.
I bring to the attention of members a report released on 31 October 2007, commissioned by the organisation Australia’s Right to Know. In examining people’s access to judicial, administrative and executive records the report revealed some disturbing trends. The committee compiling the report was chaired by a former chair of the New South Wales Independent Commission Against Corruption, Ms Irene Moss. It contained an entire chapter on the justice system, providing details on the difficulties of obtaining court records encountered by media organisations, and the difficulties experienced by other parties not directly involved in the case. The chapter in the report goes beyond the large number of suppression orders increasingly being sought and details the culture of secrecy and obstruction that appears to be impeding public scrutiny. I quote from a 2006 submission by the Press Council of Australia to the New South Wales Attorney General on access to court records. It states —
The principle of open justice is one of the cornerstones of our legal system. The notion that justice must be done in public has prevailed in the common law for centuries. In Australia , the ideal of open justice has ensured that the courts have enjoyed the confidence of the public. With regard to the value of this ideal the institutions of the law and the media are in agreement. But for open justice to be real and not merely an abstract ideal it is essential that the courts facilitate the media’s role of informing the public as to the court’s activities.
The media is a particular subsection of the community that has not only a particular interest in, but also an imperative to have access to court records. Otherwise, among other things, apart from the whole question of the role of the media in bringing information to the public, it leads to a much higher probability that the media might not get the most accurate information. Often in areas of justice and criminal law the media coverage is patchy, if not inaccurate, on occasions. That in itself leads to a misdirection of the public debate on a lot of issues, and can have long-term consequences in accelerating attitudes within the community that are not based on fact, and can lead to a lot of ridicule and criticism of the judicial system, which I think is unwarranted. The question of the media having access to the accurate court records is a very serious one, and the reason the Greens cannot support the amendment contained in this bill.
As noted in the decision in Titelius v Public Service Appeal Board [1999] WASCA 19, at page 216 —
Court orders made in open court are public documents which members of the public have a common law right to inspect . . .
Any departmental instruction to treat such a document as confidential which was issued without the authority of statute or an order of the court would be invalid and unlawful;
Further restricting access to court records would be unauthorised interference in the administration of justice. In the debate on this matter in the Legislative Assembly on 20 November last year, the Attorney General, in response to a question from the member for Nedlands on whether people had a right to know about certain matters and should have access to court documents, said —
I still remember vividly, as no doubt everybody in the house does, the leaking of a violence restraining order, obtained I think against Noel Crichton-Browne, to a leading figure in the Liberal Party by a court officer. I guess that might well condition the internal thinking in the courts on the correct approach.
I do not agree with that assessment. If a public figure is involved in a violence restraining order or some other criminal matter, the public has the right to know about it. The court officer in the Perth Magistrate’s Court did not leak the document. I understand that he released it to someone who had demonstrated to him his interest in the proceedings according to the legislation, departmental policy, practices and procedures.
This was emphatically confirmed as a fact by the 3-0 decision of the Full Court of the Supreme Court on 19 May 1999. Did the media make a pariah out of this officer for leaking this document? Not at all. As stated in the editorial in The West Australian of 22 May 1999, headed “Titelius case a win for openness”, Richard Titelius is a determined champion of principle to many Western Australians. Why does the media need to jump through so many hoops to gain access to court information of a routine nature when court records are public records to which all should be given access?
It would appear also that the Chief Magistrate has made an order through section 27 of the Magistrates Court Act that any request by the media for access to court records must be made to him. It is not clear to me why such a decision should be made by the Chief Magistrate. In my view, such a decision should fall within the duties of the registrar. In other courts, court records should be made available by leave of the registrar of the court.
We also need to keep in mind that the courts are currently moving towards a regime that is based on the presumption of providing maximum access to court records. They are also moving towards an expanded use of new electronic and online technologies, as mentioned by the then New South Wales Privacy Commissioner, Chris Puplick, in his 2002 speech titled “Justice: Now Open to Whom?”. It is interesting to note that the Standing Committee on Legislation is conducting a review of the State Administrative Tribunal. The State Administrative Tribunal is very much moving towards the use of very sophisticated electronic systems to convey its decisions. I realise that is a tribunal, not a court. However, the technology and the systems exist. There is, therefore, no technical reason that all transcripts from decisions made in public courts and tribunals cannot be made fully available to all those who wish to access them.
I have been told that the practical effect of the current law is that on occasions the media give up on their requests because the process takes too long, the moment has passed and the news interest has gone. That may have serious consequences because it may compromise the transparency and accountability of the judiciary. It may also create the potential for inaccuracies and inadequacies in the reporting by the media. Suitably trained court officers are able to make judgements about access to court records on the same day that an application is received. There is certainly no need, particularly in courts of summary jurisdiction, for a judicial officer to be required to turn his or her mind to whether to grant access to court records. Such a decision is very simple. The underlying criterion is the principle of providing open justice and a public record. It was confirmed in the Titelius case that if the record is created in an open court, it is a matter of public record, with the intention that the public should be given access to that record. That was put more eloquently by Justice Ipp in that case, when he stated —
As Malcolm CJ has demonstrated, it has long been accepted that an order of the court is a public document to which any member of the public may have access. This rule is part of the fundamental principle that generally, court proceedings shall be conducted publicly and in open view.
A number of eminent legal cases are then quoted in that decision.
For the sake of transparency in the courts, I ask the house to reject the changes proposed in part 15 of the bill. As an alternative, I suggest that the bill be split and that part 15 be referred to the Standing Committee on Legislation for scrutiny. This vital matter is embedded in an omnibus bill that covers a lot of areas. From my reading of the bill, the amendment sought in part 15 is at odds with the decision in the Titelius case. It is also at odds with an earlier recommendation from the Standing Committee on Legislation that was largely championed by Hon Peter Foss. I have a great deal of respect for his understanding of court matters. I am slightly anxious that members may not be aware that this provision is included in what is a substantial bill. I urge all members to look at section 15 carefully to understand its effect. In my view, it is an unnecessary amendment and one of which we should be very suspicious. I would be fascinated if someone could explain exactly why the government is pushing for this change. In recent times questions have been raised about freedom of information. Although this amendment is not deliberately hidden, it is embedded in a very substantial omnibus bill, which, despite having been on the notice paper for a while, has come up for debate relatively quickly. The bill raises significant issues. Do we as a Parliament think that the records of a public court should be available? I believe they should. Members would have to make a very strong case to convince me that access to such records should be restricted. If we allow this bill to pass unamended, we will undo some of the good work done in this place in 2004 with the support of all the parties, except the Labor Party. It would be a shame if this slipped under our noses. With those comments, the Greens (WA) support the bill, but we will seek to have part 15, particularly clauses 70 and 72, deleted.