28 Feb 2017
Electronic Transactions (Legal Proceedings) Amendment Bill
The Hon. A.L. McLACHLAN ( 16:57 :28 ): I rise to speak to the Electronic Transactions (Legal Proceedings) Amendment Bill. I speak on behalf of the Liberal opposition. I indicate that the Liberal opposition is supporting the second reading of this bill.
An honourable member interjecting:
The PRESIDENT: Order!
The Hon. A.L. McLACHLAN: Thank you, Mr President, for your protection. This bill seeks to amend the Electronic Transactions Act 2000. Firstly, the amendments remove current barriers to enable communications between courts, police, legal representatives and the public to be provided electronically. The Attorney-General and the minister, in both their second readings, which are mirrored, state that the aim of the bill is to achieve greater efficiencies in the criminal justice sector by further facilitating the use of electronic technologies for communications between, as I said, courts, police, legal representatives and members of the public.
The government’s intent is to focus on criminal proceedings and proceedings closely related to the criminal justice sector. However, the drafting of the bill is broader than purely criminal matters. The opposition understands that the bill has been drafted in such a way as to enable future technological advances to be utilised in the justice system without the need to keep coming back to the parliament for legislative consideration.
In practical terms, in order to permit court documents to be provided electronically, the bill amends the current consent provisions contained in the act. Currently, documents can only be provided electronically if prior consent has been given by the parties. The bill relaxes these provisions. Instead, consent will be presumed if it is ascertained that the person or their legal practitioner can readily access or download, and if required print, the information.
The government has stated in its second reading that this caveat will protect those without reliable internet access as well as those who may have access to a document but would be unable to print the document if they needed to. The government states that this will protect those in custody as well as those people in rural areas where internet access may not be adequate to download large documents. We are advised that in these circumstances production of hard copy documents will still occur.
I query whether the current drafting of the bill provides an adequate level of protection for those people, as claimed by the government. For example, exactly how will it be ascertained that the person has access to and is able to download the information? Further, if printing is required, how will it be established that a party has access to printing? What is the process for making these assessments? What is the threshold required to establish, for example, that someone has access to and is able to download documents electronically? I ask the government to set out responses to these questions in the summing-up of the second reading.
The legal proceedings to which this bill is to apply are to be prescribed by regulation. I understand that consultation on the regulations will be undertaken. Nevertheless, the government has given an indication in its second reading explanation that it is intended that the prescribed legal proceedings will consist mainly of criminal proceedings, including bail proceedings, sentence enforcement proceedings and those related to intervention orders, as well as paedophile and child protection orders in the Summary Procedure Act.
The government has also indicated that non-criminal proceedings are likely to include fine enforcement and recovery, as well as recovery of expiation fees. The government has indicated that the benefit of this approach is to control the uptake of the new provisions to ensure agencies and the legal profession are equipped to make the best use of the new provisions, as well as allowing new types of proceedings to be added over time. I ask the minister whether this consultation has commenced and when it is likely to conclude.
I alert members of the chamber to a submission by the Law Society of South Australia dated 16 February 2017. I ask the government to set out in its summing-up of the second reading and specifically address those matters raised by the Law Society in its letter.
The Law Society has some concerns with the provisions of this bill. It says that the amendments do not allow a person or legal practitioner to choose to receive information and documents in hard copy. The amendments do not make it clear how it will be ascertained that a person or their legal practitioner is able to access electronic information, and presume that a legal practitioner will print material for a client.
The society is concerned about the cost of printing and photocopying, setting out once again their comments, which they had included in an earlier submission in July, concerning the government’s draft Electronic Transactions (Criminal Proceedings) Amendment Bill. It is the society’s view that a defendant or a legal practitioner representing a defendant ought to be provided with information or documents electronically as well as in hard copy.
In light of the expense in printing material, particularly for those in custody who are indigent, the society does not support the provision of information solely by electronic means. As I have indicated to the chamber, I would like the government to address specifically those concerns as set out by the Law Society. I also alert the chamber, as I have done on previous occasions, that I am a member of the Law Society and have been so for the whole of my practising life as a lawyer.
There are a number of other submissions, but one I draw to the attention of honourable members is from the Commissioner for Aboriginal Engagement. Whilst he gave in-principle support for the bill, he highlighted that the bill assumes or implies that recipients have access to electronic communication. He rightly points out that many older South Australians do not. He further noted the following:
I am personally aware of many Aboriginal people who have a mobile phone but they are not connected to the internet or they may be encountering difficulties in paying their phone bill, so they do not have access to such information.
He goes on to strongly encourage the Attorney-General to put in place safeguards in the bill that do not disproportionately impact on or prejudice Aboriginal recipients.
I was reminded of a speech given by the Hon. Malcolm Turnbull to the Sydney Institute: Magna Carta and the Rule of Law in the Digital Age. He gave a powerful quote as follows:
There are powerful arguments that existing laws need to be constantly reviewed and updated to ensure they are still relevant and effective as new technologies emerge and the old ways of intelligence gathering become outdated.
He then went on to add:
…but the rule of law imposes on legislators and judges a conservative caution when making new laws — the idea that in general new laws , to quote Dyson Heydon , ‘should only be changed by a process of gradual development, not by violent new advances or retreats by revolution or ruptures’.
Whilst the intent of this bill is supported by the Liberal opposition, it could have quite significant effects for those facing legal proceedings in the criminal justice system. Therefore, we will support the second reading but will seek to explore in the committee stage whether the provisions of this bill may have unintended consequences.
Debate adjourned on motion of Hon. S.G. Wade .
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