Chauvel Charles: Criminal Procedure Legislation Bill — First Reading 
Text is incorporated into the Bound Volume 
Chauvel Charles: Criminal Procedure Legislation Bill — First Reading 
[Sitting date: 04 December 2012. Volume:686;Page:7067. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 The Associate Minister of Justice consulted the Opposition about the Criminal Procedure Legislation Bill and we indicated on the basis of his undertaking that it would contain only technical amendments in the nature of a statutes amendment - type provision that we would support the legislation and we will do so. 
May I just take this opportunity to talk a little bit about the history of the legislation to which this amendment bill relates because that is an approach to criminal justice that we have attempted to show in good faith in this Parliament and in the last Parliament also. The Minister referred to the history of the substantive legislation the Criminal Procedure Act and he made reference to the amendments that had been made in the select committee—he will remember those well because he chaired that select committee—but also in the Committee of the whole House. It is at the Committee of the whole House that I think the House needs to just remind itself of what was done with this legislation because I think there are some lessons and if Government members want to learn them they can so that we can avoid this sort of thing happening again and again where we have to come back and repair legislation that was passed within only the last 12 months. 
The history that I refer to is this. The original legislation was a big reform to criminal procedure. I am a little unsure of the grandiose claim that it is the largest reform to criminal procedure in 50 years but I do not blame the Minister for making that claim—I see he was reading his notes and I have heard his predecessors make that claim. It certainly was though a major reform and members of the Opposition agreed in principle that we could do better in terms of the processes of our criminal courts. 
Where we were concerned was with the very sweeping nature of the original substantive reform proposals. In particular we were worried about the restrictions on the right to trial by jury and also to alterations to the presumption of innocence where essentially the original legislation would have required the defence to cooperate with the prosecution in a way that would offend that principle. I think it is instructive to remember that the Law Society was on board with those concerns as was much of the legal profession and many of the civil rights groups and eventually the opposition to the measure because of those particular proposals grew so great that the Minister of Justice at the time Simon Power lost his majority in the House as to the measure progressing. That was because the ACT Party in particular which was better represented in the previous Parliament—at least as far as numbers are concerned—withdrew its support for the legislation. It was concerned about the jury trial and presumption of innocence erosions in particular. I want to pay tribute to Rodney Hide for the way in which he dealt with the matter. Once he realised the extent of the concerns and the erosion of those fundamental liberties that the original bill would represent he did withdraw that party’s support and that did force the Minister to the negotiating table. 
As a result of that negotiation the changes that were mentioned by the Associate Minister of Justice were made in the Committee of the whole House. They followed on from some changes in the select committee process as well. 
But if we had had a process from the beginning where the Government had been willing to sit down and say: “Look this is the aim here. We want to reform criminal procedure. The current procedures are clumsy and we think we can do better.” we would have cooperated. We would have talked about the principles we could have avoided the excesses of the original bill the Minister would not have lost his majority midway through the process and we probably would not be in the position that we are in now. 
I am not saying this because I like to get up and say: “I told you so.” I am saying it because I think that if we do want to achieve some certainty in justice policy generally and in criminal justice policy in particular then we ought to try to treat this legislation as a bit of a learning exercise. It was not as if this was not foreseeable. I want to read out to the House what the president of the Law Society said to the Justice and Electoral Committee when the Associate Minister of Justice was its chair at the time it was considering the substantive legislation. He said first: “Cross-party agreement is needed on criminal justice instead of the continued politicisation of a matter that requires coherent cross-party agreement.” He went on to predict that the bill as introduced would last only around a year before Parliament would be required to review it again. So it was critical in his view that we give careful consideration to a very important piece of legislation and actually provide certainty going forward. That is pretty instructive when you think about the time that amending legislation of this nature requires to be devoted to it. 
This is not a matter where there is particularly significant political disagreement. Speeding up the criminal process while maintaining basic human rights is not something that I think is taken issue with across the House but because the Minister of Justice at the time was just determined to pursue his agenda and did so until the very last moment when he lost political support we are now in the position where the hasty amendments that had to be made as a result are now having to be repaired. 
If we are trying to learn some lessons from this then we should also think about another thing that the president of the Law Society said at the time that he made his submission and that is that we have got this process round the wrong way. We are dealing with procedure which sits in the middle of any sort of ideal reform process not at the start. There are two substantive Acts of Parliament the Crimes Act 1961 and the Summary Proceedings Act 1957 that are ancient. They have been amended many times. They need re-enactment not only because they are a minefield to try to read and construe but because they are out of date with contemporary social conditions. Anyone would think that if a criminal law reform project were being pursued in good faith if it were to live up to the claim to be the greatest reform for 50 years a Government might actually start with the substantive legislation rather than leaving Acts that are over 60 years or 70 years in vintage on the book without reform. 
They might even think about looking at the drivers of crime on a non-partisan basis. That was an invitation that my colleague and friend Lianne Dalziel made to the previous Minister of Justice particularly in respect of alcohol law reform to no avail. She received no positive response to that and if we want to consider the whirlwind that is being reaped as a result of that we need look only as far as the botched alcohol law reform exercise that this Parliament is scheduled to complete in the next 4 sitting days. 
But as I said the Law Society said this: start with the drivers of crime deal with the substantive statute and then you might be able to get coherently and rationally to criminal procedure issues. You might even then look at the evidence rules and the other rules of court that are applied. But for some reason we had this process start right in the middle on the procedural points. We had as I described earlier the political fiasco that resulted when the Minister was not able to push through the erosion of fundamental rights that he wanted to achieve and the resulting amendments which were not made in a coherent fashion which bring us back to the position that we are in tonight where we are having to do a rushed fix-up job in Parliament now. 
This approach is not limited in the justice field to criminal procedure. I mentioned alcohol law reform. I could talk about legal services and legal aid where the Opposition has always accepted that efficiencies and rationalisation should be made not on the basis of fiat not on the basis of the Minister of Justice telling the profession and consumers of legal services that she knows best but actually through sitting down and negotiating changes. We had the Family Court reform legislation read a first time today and that is another classic example of a position where the family law practitioners came up with efficiencies and a plan to reduce costs in the Family Court. They were simply ignored by the Minister who thought and still thinks that she knows better because she has the advice from the officials that she seems determined to bulldoze through. 
This is not a coherent way to run justice policy and if the Government continues this way we will simply be back here again dealing with these fix-up jobs ad infinitum.