Ian Gilfillan: Australian Democrats in the SA Parliament

	Extract from Hansard Legislative Council 6 July 2001

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 2001 Autumn Sitting Index Browse by Subject Search all Democrats material About the SA Parliament Hansard on line
		Attorney General News

The Hon. IAN GILFILLAN: I do apologise to the committee, but the pace of change from one subject to another has left me floundering. There was some debate as to whether I would contribute to the second reading debate-I thought that I had but, in fact, I had not. In effect, I am now using clause 1 as an opportunity to speak rather critically to the bill as a whole. We believe that the bill is a phoenix. It was originally unveiled by the Attorney- General in August 1998, and after savage criticism in September 1998 was withdrawn. At that time it apparently died a quick and painless death and was cremated. But now in 2001, it has risen phoenix-like from the ashes but, unfortunately, it appears not to have been any better thought through than it was in its first incarnation.

The Law Society's criminal law committee has produced a comprehensive catalogue of complaints about this bill to which I will refer shortly. Although I do not share all of the Law Society's concerns, I certainly share one of them. In fact, I would put the Law Society's last concern first. I can do no better than quote what I said about this bill when it was released for consultation more than three years ago. At that time, I issued a news release headed `Ex-wives liable for former husbands criminal law fees', in which I said:

Men who commit serious crimes may soon be able to get their ex-wives to pay their lawyers and court costs.

The State Government's proposed new Criminal Law (Legal Representation) Bill contains draconian provisions which may produce some of the harshest effects on women this century.

The Bill treats the assets of a spouse, as `belonging' to the defendant in a criminal trial.

That sort of presumption was abolished decades ago, in all civilised countries, but this Bill goes much further than that.

Anyone who was in a relationship, even up to five years ago, may be ordered to contribute to the costs of an ex-partners criminal trial. Even someone who receives child support, from an ex-partner now charged with a crime, is at risk from this Bill.

And anyone who bought or sold property, borrowed or loaned money in deals with such a person would be at risk of having the transaction set aside. At the very least, these people would have to prove to a Court why they should not be targeted.

The Bill is designed to stop defendants falsely claiming they are too poor to be legally represented in a criminal trial, thereby postponing the trial indefinitely. However there have only been 8 cases in five years where successful applications have been made to stay a trial, and the Government is not suggesting now that any of these applications were fraudulent. In these circumstances, the Government's proposed `solution' is gross overkill.

In the very rare cases where defendants cannot get Legal Aid, are too poor to defendant themselves, and have not intentionally diminished their assets for that purpose, then the government should simply pay for an adequate defence.

The South Australian Government currently contributes less to Legal Aid, per capita, than any other State or Territory Government in Australia. It now wants to make up the shortfall from those who are unfortunate enough to be the partners, spouses, children and business associates of alleged criminals.

That was the news release issued in my name on 15 September 1998. I have not had the opportunity to check whether the figures quoted in 1998 are still accurate in 2001. However, I note that the Attorney- General in his second reading speech does not even suggest that there has been any rise in the number of trials that have stayed indefinitely because of a lack of legal representation. Indeed, the Attorney has cited no figures at all to justify this massive intrusion into the rights of persons who are not charged with any crime.

The Law Society says `very few' trials have been stayed. In view of the Attorney's lack of information on this matter, I can only assume that the Law Society is correct. Why, therefore, is the government proposing to force innocent people into court to protect their assets when former associates or partners are charged with a crime? The old metaphor `using a sledgehammer to crack a nut' is inappropriate in terms of this bill which proposes a bulldozer to crush a problem the size of an ant. The bulldozer will crush the lives of innocent people alongside the ant sized problem.

Apart from the bill's savage effects on those who are unfortunate enough to have been associates of alleged criminals, the Law Society has identified more problems with this bill. For the sake of brevity, I shall paraphrase the Law Society's other concerns. This bill does not protect those who are facing up to two years' gaol on a charge of a non-indictable offence brought in the Magistrates Court. No matter how poor they are, this bill would take away the Dietrich presumption that they are entitled to a fair trial. This bill perpetuates the present `funding cap' problem, whereby legal aid is not available for appeals, no matter how meritorious an individual appeal might be. The bill requires lawyers at a very early stage of proceedings to give an undertaking that the accused will be represented `for the duration of the trial', and this is an undertaken that cannot be given at that stage.

It is not possible for a lawyer to guarantee to continue to represent an accused. There are many reasons why representation might need to end. Under the arrangements in the bill, an accused is not entitled to a lawyer of his or her choice. Forcing an accused to accept an unwanted or not trusted lawyer will not assist justice or even the chance of obtaining a guilty plea. Clause 18 (which on my copy of the bill has been crossed out) raises issues of conflict of interest for the Legal Services Commission and the Attorney-General in relation to `case management plans' for particular defendants. Defendants have no rights to appeal against any unfavourable decision of the Legal Services Commission. Clause 11 fetters the discretion of the courts in considering whether a trial has been unfair.

Finally, the Law Society goes into greater depth than I have done in examining the potential unfairness of targeting persons who are deemed to have been `financially associated' with an accused. On this point, I quote from the Law Society's submission, as follows:

There are a number of problems in relation to the power to set aside transactions entered into by either the defendant or any financially-associated person on the one hand, with any third party on the other hand.

The number of such transactions that may be entered into during the specified 5 year period is of course vast. To require an innocent third party who has entered into a normal transaction to establish-no doubt at his or her expense-that the transaction was entered into in good faith and for value has the potential of considerable unfairness and inconvenience to numerous third parties.

Accordingly the Law Society considers that the burden of proof should be as normal-namely the person asserting that such a transaction should be set aside should bear the onus of establishing that it was NOT entered into in good faith and for value.

In summary, the bill is ill thought out. As I said before, it is using a bulldozer to crush a problem the size of an ant and it has a potential to expose, particularly women-but not exclusively women-to draconian penalties and assumptions which were displaced in South Australia many decades ago. So, it is our intention to oppose the bill. I will not be involved in the committee stage, as it is my opinion that the bill is so obnoxious that there is no point attempting to amend it, and I will oppose it and seek to divide on the third reading.