HON GIZ WATSON (North Metropolitan) [8.09 pm]: The Greens (WA) will also support the Cross-border Justice Bill 2007. We note the bill provides for the criminal justice systems of South Australia, the Northern Territory and Western Australia to operate across their mutual borders in certain circumstances without having to rely on formal extradition under the current process, which is provided under the commonwealth Service and Execution of Process Acts 1992. The population distribution suggests that the main impact of this bill will indeed be on Aboriginal people. As the Deputy Leader of the Opposition has said, it is an interesting bill and a novel bill in what it is attempting to do. It is to be applauded that we are attempting with legislation to recognise that certain boundaries create significant problems to not only the justice system but also other systems of governance if the bulk of the population does not reside solely in one or other of the states or territories.
The central area is one area. In many ways, the Kimberley/Northern Territory area is not dissimilar. The Greens (WA) are supportive of the bill and are keen for it to achieve its objectives. The bill will serve as a model for South Australia and the Northern Territory, both of which will have to legislate before the cross-border scheme can become effective. Western Australia is the first cab off the rank in that regard. The bill has been a long time in the making. It arose from concerns expressed by the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council about offending, particularly violent offending, in the lands area. The then Department of Justice issued a discussion paper and, in 2005, the Aboriginal Legal Service of Western Australia was invited to make a submission, which it did. I note that it supported the concept of the bill, but not necessarily the mechanics proposed to implement it, particularly due to concerns about certain practical and administrative matters that would negatively impact on Aboriginal people. It seems that the bill addresses only some of those concerns. Having said that, the Greens remain supportive of it.
The bill was referred to the Standing Committee on Uniform Legislation and Statutes Review, and its report was tabled on 19 February this year. I was slightly concerned when I read that the committee took evidence from the Department of the Attorney General, parliamentary counsel and the police without consulting any Indigenous representative body. With the abolition of the Aboriginal and Torres Strait Islander Commission and other such bodies, the Aboriginal Legal Service is the only large funded and organised body that can provide considered input into complicated legal matters of this nature. It might have been useful for the Standing Committee on Uniform Legislation and Statutes Review to have sought the Aboriginal Legal Service’s response to the bill, particularly given that it had input during the original round of submissions in 2005.
Hon Simon O’Brien: It often happens that the committee’s reporting date—and, in this case, we had Christmas as well—makes it difficult for us to advertise widely and to get the input we would like. On the day that we took evidence from witnesses about this bill, we also took evidence from witnesses about two other bills. We interviewed the prime authors of the bill, because we would not have been able to do it justice if we threw it open to everyone. The member is right. It was our disappointment that we could not do that.
Hon GIZ WATSON: That is a perfectly reasonable explanation. I was not necessarily being overly critical of the committee, because I realise that it is constrained by the 30-day requirement. I have always thought that that 30-day requirement is too restrictive.
Hon Simon O’Brien: Your comments are appreciated.
Hon GIZ WATSON: My criticism is that here we are, dealing with a piece of legislation which came about at the request of an Indigenous organisation and which will largely impact on Indigenous people because they comprise the bulk of the population in the area concerned, yet there has been no specific feedback about the bill from the only Aboriginal body that has the legal capacity and resources to thoroughly scrutinise it. Having said that, I had some difficulty getting a response from it too. That is probably indicative that it is also —
Hon Simon O’Brien: It was a difficult time of year. The bill was lobbed on us in the last sitting week, when everyone was starting their holidays.
Hon GIZ WATSON: The Aboriginal Legal Service is often completely inundated, and dealing with specific cases whilst providing comment on legislation is difficult.
In dealing with the issues raised in the bill, I will borrow the words contained in the ALS’s 2005 submission to the then Department of Justice. The aim of improving justice outcomes for residents of the cross-border region and the underlying principle that all Western Australians are equally entitled to justice are laudable aims. The provisions relating to the repatriation of people not charged, which is dealt with in clause 36, and to the registration of interstate restraining orders are particularly useful. The opportunities that exist for improvements in our criminal justice system, for example, to imprison those people who are required to be imprisoned nearer to their families are also very good initiatives. I will repeat my often made comment that the incarceration rate for Aboriginal Australians is appalling. Imprisoning people closer to their families provides the greatest chance that a person has of successfully reintegrating back into a community and of reducing his chances of reoffending, because he is able to maintain strong contacts with family members and friends. That is the golden thread that provides an incentive for people when they leave the prison system to reintegrate into the community and to not be a recidivist.
Some significant issues in the bill need to be addressed. The first point is the retrospective application of the bill, which is dealt with in clause 18. The bill extends the application of the act to offences, court orders and requirements arising under the law dating from before the commencement of the act as well after it. The Greens are fundamentally opposed to retrospective legislation. I note that often the Parliament takes a similar view. I will be interested to hear the minister’s explanation for why a retrospective provision is required. I will pursue it more during the committee stage. It is arguable whether it will achieve very much.
The second matter, which Hon Simon O’Brien spoke about, relates to clause 19, which defines the cross-border areas. The clause provides that the cross-border regions are regions that straddle the border and regions that are prescribed by regulations. Recommendation 1 of the committee’s report suggests that a cross-border region should be prescribed in the bill itself rather than being left to a regulation. I was briefed on this matter yesterday, and some of my concerns have since been alleviated. It is an interesting question. We are treading onto novel territory. The indicative boundaries, as I read them in the appendix in the committee’s report, clearly follow pastoral boundaries, so there are still straight lines. I do not know how to define the Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara regions. I make the point that even though a straight line can be defined somewhere else, there is still the problem of people crossing that line. Fundamentally, I am willing to give this provision a go, because it is a useful initiative.
The question of exactly how those borders will be prescribed will be a very tricky one. I assume that police operating in these areas must operate with a global positioning system on all the time so that they know exactly when they have crossed the boundary, which is not apparent when driving down a dirt track.
I will talk to the issue raised in the standing committee report of the application of the bill to only Aboriginal and Torres Strait Islander people. The committee raised in its report the question of whether the bill is limited in application to Aboriginal and Torres Strait Islander people, and recommended that the minister advise the council on this. It is my understanding that the bill will formally apply to any person with a geographical connection to the region, irrespective of race, but will, in substance, impact mostly on Aboriginal and Torres Strait Islander people because of the population distribution in those relevant areas. I am again satisfied with the response that I received on that. It would seem that it would have been a very significant consideration to not draft the bill in a way that only applied to Aboriginal and Torres Strait Islander people because that might well fall foul of racial discrimination legislation as well.
I will raise the reversal of the onus of proof, clause 27 and clause 28. Those clauses place on the defendant the onus of proving his or her whereabouts at the time of arrest, and of proving his or her residency on the balance of probabilities. The principle of onus of proof is one that the Greens have held a consistent position on, no matter what the legislation. This particular provision does cause us concern and we consider that it is inappropriate for the following reasons: in criminal law proceedings, generally the onus is on the prosecution to give all the elements of the offence. People are presumed innocent unless they are proven guilty—in most laws in Australia! As most defendants are likely to be Aboriginal, given the locality, the clause is discriminatory in its effect. Defendants in these matters are likely to be disadvantaged in court by not speaking standard Australian English as their first language. Western Australia does not have an interpreting service covering the whole area—and I remind the government that there is still a need for a statewide Aboriginal and Torres Strait Islander language interpreting service to be established. It is very fundamental to the provision of justice if people cannot access interpreting services appropriate to their language throughout the state. People who are already struggling with the language of the courts should not be further disadvantaged by having the onus placed on them to prove certain matters.
Finally, defendants may not have a legal representative due to poverty and if a grant of legal aid is not available. There is a lower number of lawyers and court officers in the regions than in Perth, and under the relevant professional laws, a lawyer cannot assist a person—in this case, the defendant—if he or she has previously provided legal help to the other party—in this case, the prosecution witness. The low number of legal representatives in the region suggests that this is likely to happen more often in the remote regions than in Perth. I am certainly aware—again from conversation with the Aboriginal Legal Service—that there is a real problem, particularly in cases of domestic violence, which I think is one of particular areas that this legislation is hoping to provide some justice for, and certainly more speedy and effective justice, that often the defendant approaches the Aboriginal Legal Service for aid in the first instance, which means that the other party cannot use that service. There is also a dearth of other legal services in these remote Aboriginal areas. It is a significant issue that the women in these cases often find it hard to get legal representation, which is a very good argument for the establishment of a separate Aboriginal women’s legal service, to deal with that very problem. It is not only these remote areas, but statewide. The committee stated in its report that it was also concerned by this provision and recommended that the minister advise the council why the reversal onus is necessary.
Clause 73 deals with legal representation interstate. The bill provides for a WA court to sit at a location in the Northern Territory or South Australia and vice versa. This means that legal representatives, including Aboriginal court officers holding a certificate under section 48 of the Aboriginal Affairs Planning Authority Act 1972, must be sufficiently trained in the law of all three jurisdictions, which differ substantially in significant respects, to represent people prosecuted under interstate law in the legal representative’s home jurisdiction and/or have sufficient access to video link to ensure people’s prosecution interstate under the law of the legal representative’s home jurisdiction. Video link would need to include time for the defendant and the legal representative to communicate privately for the purpose of giving advice and receiving instructions. When necessary, hearings would also need to be able to travel to WA courts located in the Northern Territory or South Australia. In the case of Legal Aid WA, the Aboriginal Legal Service WA and community legal centres, they should be permitted, by the terms of their various funding contracts, to appear in WA courts located interstate, and/or to represent people in South Australia or Northern Territory courts sitting in WA.
In the case of WA’s Aboriginal court officers, the Northern Territory and South Australia do not have court officers permitted to represent clients in court. South Australia and the Northern Territory will need to legislate to allow the court officers to represent people in WA courts sitting in South Australia or the Northern Territory to ensure that Aboriginal people in WA courts located in South Australia or NT have the same rights to legal representation as within WA borders, and perhaps also allow court officers to represent people in South Australia or NT courts sitting in WA. This is one of the practical matters that perhaps the minister can give some indication of whether this has been considered, particularly the funding for this additional work.
Training relevant staff in the laws of three jurisdictions, or alternatively paying for travel and/or video link, including time for private communication between defendants and legal representatives who are giving advice and receiving instructions, will be expensive. To ensure people appearing in WA courts have no less access to legal representation when the court is physically located interstate, the WA government needs to confirm that, if sought, it will provide sufficient funding to Legal Aid WA, community legal centres and the ALS if the federal government does not do this. This will enable these organisations to represent people in WA courts sitting at interstate locations. I ask for some assurance that the government is actually intending to do this.
The next issue I raise is about after-hours and urgent bail applications. I understand that in WA, justices of the peace normally deal with after-hours or urgent bail applications, but this is not the process in either the Northern Territory or South Australia. In the Northern Territory, after-hours or urgent matters can be dealt with by telephone or video link before a magistrate. Clause 68 provides that bail proceedings under the WA law may be heard and determined in a court in a participating jurisdiction. Clause 92 provides that the WA Bail Act 1982 applies to people held in custody under WA law at an interstate location. I ask the minister what practical mechanism is in place for such people to access a WA JP for after-hours applications? For example, will there be a JP on roster to deal with these matters by telephone?
I raise the issue of watchdog, or monitoring, functions. This is a practical issue that has also been raised by the Aboriginal Legal Service, prison reform action groups and the standing committee in its twenty-fourth report.
The bill provides for people to be placed in police custody, or serve custodial terms under WA law, interstate. I understand WA laws apply to police custody—clause 34(3)—but interstate laws apply to the carrying out of custodial orders interstate. I note that this is discussed in the section of the explanatory memorandum pertaining to clauses 106 to 108. There are substantial differences between WA, the Northern Territory and South Australia in the government and community watchdog processes that help to protect the welfare of defendants and prisoners. The monitoring processes in Western Australia include the processes in the Office of the Inspector of Custodial Services, the coronial process, follow-up to ensure that any coronial recommendations are implemented, the police complaints process, the Corruption and Crime Commission process, the Ombudsman’s process and the role of the Aboriginal Legal Service of Western Australia, the Deaths in Custody Watch Committee WA, prison reform action groups and others in drawing to Parliament’s attention the areas in which improvements are needed in our criminal justice system.
The Office of the Inspector of Custodial Services is an example of the differences that exist between Western Australia, South Australia and the Northern Territory in monitoring. In Western Australia, the inspector and his office provide a level of systematic protection to people in Western Australian prisons. My understanding is that currently there is no equivalent in the Northern Territory or South Australia. Clause 139 of the bill states that the Office of the Inspector of Custodial Services will not have a role with people held in custody under WA law in South Australia or the Northern Territory. Likewise, the Aboriginal Legal Service of Western Australia’s 2005 submission, oral advice from the Prison Reform Group of Western Australia and the committee’s report have all raised concerns that other of this state’s monitoring or watchdog bodies and processes will also have limitations on their roles in relation to people dealt with interstate, albeit as a result of conviction under WA law. For example, if a person dies interstate while in police custody under WA law, or while being transported, what power does a WA coroner, the ALS or the Deaths in Custody Watch Committee realistically have to achieve the implementation of coronial recommendations that relate to government and non-government facilities or people interstate? I would suggest perhaps not much.
Protection should not be stripped away from one category of people who are subject to WA law, bearing in mind the recommendations of the Royal Commission into Aboriginal Deaths in Custody and that Aboriginal people are still dying in custody today. Aboriginal people, in particular, must not be deprived of this protection. At the same time, however, there may sometimes be benefits that flow from holding a person in custody interstate. For example, in some situations the location of an interstate prison might enable a prisoner to have more frequent contact with his or her family—I should note that that was considered most desirable in recommendation 168 of the Royal Commission into Aboriginal Deaths in Custody—or reduce the time a prisoner needs to spend being transported, or an interstate prison might be more suitable than a WA prison for a particular prisoner for some other reason, such as the availability of a rehabilitation service or program. The Office of the Inspector of Custodial Services does not propose that this jurisdiction be extended to South Australia or the Northern Territory, but supports the development of interstate or federal custodial services roles in those regions, informed consent and also review of the effect of the bill on prisoners.
This brings me to my next point about the laudable objective of being able to consider that a prisoner might be best imprisoned in a particular location, even though it is not where the offence was committed, for reasons largely, I assume, to do with proximity to family. However, there might be other advantages. The point that I make is that, in my view—I had this conversation when I had a briefing on this bill yesterday—as it stands at the moment, it is up to the court to determine where the person will be imprisoned. As I understand it, it was put to me that the magistrate or the judge would automatically give consideration to which was the most favourable location for the prisoner. If this is an attempt to provide an opportunity for the best outcome for the prisoner—I guess the person is a prisoner once he has been convicted—I argue that the prisoner is in the best position to decide which is the best location, if the outcome is to improve the chances of connection with the community and rehabilitation. I will say on the record that I made a comparison. In not dissimilar legislation—I do not think it has been first read yet, but it is in train, whether it is a draft bill or whether it has just not been tabled in the Parliament—the Prisoners (Interstate Transfer) Amendment Bill 2007, it specifically notes that when transferring prisoners between states or territories, it is a requirement that the consent of the prisoner be sought. I argue that this is a similar situation. At the very least, the default position would be that the prisoner would be detained in the prison at the place where the court decision was made. Therefore, if the court case was heard in Western Australia —
Hon Sue Ellery: What is the name of the bill?
Hon GIZ WATSON: It is the Prisoners (Interstate Transfer) Amendment Bill 2007. That is the default position as it stands at the moment. If the person was convicted in WA and it was considered that it would be a better outcome for that person to be imprisoned in South Australia or the Northern Territory, that person should have to consent to that decision.
Hon Sue Ellery: There is a difference between asking for the person’s view and taking that into account and a system under which a prisoner must consent to whichever prison he is allocated to. I am sympathetic to a view that we ought to take into account the prisoner’s own views about things, but whether we hand over the decision of which prison anybody goes to might be taking it a step too far.
Hon GIZ WATSON: Certainly, a clear provision that that would be a consideration in the judgement would go some way to addressing the concern that I have raised. In any event, I will leave that with the minister to consider.
The final point I want to make is that this bill does indeed break new ground and presents opportunities for the three jurisdictions to both cooperate and cost shift, which I am sure has potentially been considered. The difficulty it poses for monitoring and watchdog activities by the usual WA bodies means that both the advantages and disadvantages of the scheme may be invisible, and that is one of the concerns about, for example, the capacity of the Inspector of Custodial Services to have any role. I appreciate that it is a difficult legal question. The difficulty pointed out is that some corrective service functions are carried out by private contractors, not by the government. The recent death in custody tragedy means that the issue of prisoner transport comes to mind immediately. Another difficulty also raised is that the harmony between the laws in the different jurisdictions causes its own difficulties. Each jurisdiction has its own approach to sentencing options for adults and juveniles for different offences. A particular offence might attract mandatory sentencing in one jurisdiction compared with a non-custodial alternative with a rehabilitative focus in another jurisdiction. Of course, the mandatory sentencing provisions that are still on the statutes in WA are an example of that.
Another potential area of difference is spent convictions. Multiple offenders in the cross-border region may experience a multiplicity of approaches. This lack of consistency may reduce their rehabilitation prospects. The Prison Reform Group of Western Australia strongly suggests that this bill should operate in a context of working towards greater universality and harmony between the three jurisdictions. I wonder whether this has also been considered in terms of the ultimate aim of having more consistency in the penalties and the approaches to matters of justice in the states and territories.
The fact is that this is novel legislation and has quite complex processes and applications. I will recommend that the bill be subject to a review after three years, and I am pleased to see that the minister has indicated that the government is supportive of this amendment. It seems to me that there are question marks over what regions the new legislation will apply to, not least the question I raised about possible cost-shifting and the issue of harmonising between penalties in the different states and territories. I am sure that the bill will be reviewed anyway, but it is very important that it is a requirement that the bill be reviewed after three years. The Greens (WA) think that this will improve the final outcome. With those comments, the Greens (WA) support the bill.