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3 Aug 2017

Summary Procedure (Service) Amendment Bill

The Hon. A.L. McLACHLAN (16:00): I rise to speak to the Summary Procedure (Service) Amendment Bill 2017. I speak on behalf of my Liberal colleagues and indicate that the Liberal Party will be supporting the second reading. The bill amends the Summary Procedure Act and the Electronic Communications Act to enable greater use of electronic communication within the criminal justice system. It follows from the Electronic Transactions (Legal Proceedings) Amendment Bill, which found approval in this chamber earlier this year.

The bill contains a number of technical changes to enable the service and provision of documents via electronic means. The bill will enable any document, including the prosecution brief, to be provided via a variety of methods, including personal service, leaving it at or posting it to the person’s last known residential or business address, sending a fax or email to a number or address provided for the purposes of the legal proceedings, or making it available to people via electronic means such as:

sending to an internet address;

sending to an email address provided by the person or their legal representative a link to an internet address from which the document may be accessed or downloaded;

by means of a data storage device; or

other means that may be prescribed by the regulations or court rules.

The bill contains the same safeguards as the previous Electronic Transactions (Legal Proceedings) Amendment Bill, namely, that it will only be permissible to send a document by fax, email or other electronic means if it has been previously ascertained that the recipient will be readily able to access, download or print the document. Additionally, the bill also introduces measures to enable defendants to enter their written guilty pleas, which is currently permitted electronically.

It will enable the court to sentence a defendant at the time of the conviction with or without their presence in court. This provision was introduced at the request of the Chief Magistrate, given that often, if a court delivers a guilty verdict, it must adjourn, issue a notice to attend and then sentence at a later date.

The government has advised that, to ensure defendants are not unfairly prejudiced by this, the original summons will inform defendants that, if they fail or refuse to attend court, a sentence can be ordered in their absence. The government claimed when introducing the bill that it will ‘have a positive impact on the community and those within the criminal justice sector’. However, in my opinion this grand statement will only be realised if great care is taken in the administration of these measures once the bill is enacted.

I note the Law Society provided a submission in respect of a draft version of the bill, which repeated some of the concerns they raised in relation to the earlier Electronic Transactions (Legal Proceedings) Amendment Bill. I will just quote briefly from that submission before asking some questions of the minister. I would appreciate if they could be answered at the second reading summing-up. Paragraph 4 of the submission of the Law Society states:

There are a variety of practices currently being adopted for the service of a Summons. In some cases, defendants are telephoned or contacted by SMS and asked to collect a Summons from a police station. Some defendants are sent the Summons by email. In other cases, the Summons is hand delivered to their address. If the defendant is not home, a calling card is left with no explanation except the police officer’s name. Many defendants report anxiety and concern about what the card means and why police attended at their home. I am advised by the Criminal Law Committee that despite an investigating officer being aware that a defendant is legally represented, the investigating officer will often bypass the lawyer and contact the defendant to arrange collection of the Summons.

I ask the minister in his summing-up of the second reading to indicate whether there is any merit to this concern raised by the Law Society and, if so, to explain why investigating officers are bypassing legal representatives.

When the Electronic Transactions (Legal Proceedings) Amendment Bill was debated, I asked some important questions on ensuring that defendants who do not have access to computers or the internet are not unfairly prejudiced by these measures. In response to my questions at that time, the minister indicated that organisations such as the Legal Services Commission end up printing documents for their clients. The minister also said:

At this stage, the government is not concerned that this will have a large impact on their resources.

However, the Attorney-General said in the other place:

…if it does begin to impact on their resources, the government will maintain an open dialogue with the Legal Services Commission on the impacts of this legislation when it comes into use.

I ask the minister whether the government maintains that commitment in relation to the provisions contained in this bill before the chamber. The minister also indicated at the time that the increase in the use of electronic communications was an ongoing project undertaken by the courts, and that an online electronic case management system was currently in development by the courts. Can the minister advise whether the online case management system is up and running or is still under development? I look forward to receiving the answers to these questions at the committee stage.

Debate adjourned on motion of Hon. J.E. Hanson.

See full session on Hansard

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