Page 2883 - Week 08 - Tuesday, 5 August 2008
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I am not sure whether this amendment is the result of some silly court decision that has gone against what was best practice in the common law, which was eminently sensible. Whether a person was reckless or actually knew at the end of the day are much the same. This makes it simpler for the prosecution and less traumatic for victims. We think that is crucially important. It is also much more time effective and less costly. Also, it can ensure that justice is done speedily without unreasonably interfering with the legitimate rights of an accused person. It is very much consistent with the common law; it is very much consistent with the Criminal Code and other acts that have been around for many years.
The Crimes (Restorative Justice) Act is amended to remove a referring entity’s obligation to explain restorative justice to eligible victims or parents before the entity refers the offence for restorative justice. It is claimed that referring entities do not have the financial resources to properly train staff in restorative justice matters, and instead the obligation will rest with the chief executive of the restorative justice unit. There is an amendment to ensure that a non-lawyer convenor only needs training sufficient to be able to advise participants of their rights and duties in relation to the restorative justice process, not their rights and duties at law. Indeed, it would be quite improper to have a non-legal person try to advise people of their rights and duties at law. That could lead to problems. That is again a reasonable amendment.
The Discrimination Act is amended to restore a vicarious liability provision erroneously removed in 2005—that a person whose employee or agent engages in unlawful conduct is taken to have engaged in the conduct unless they took all reasonable steps to prevent the conduct from occurring.
The legal practitioners act is amended. New sections will empower a disciplinary tribunal to require witnesses to attend and give evidence at a hearing and to issue warrants where they fail to appear. That again is sensible. If these things are going to work, it is crucially important that people do appear. If they do not appear, the normal course is to issue a warrant for their arrest—to bring them to the court or a tribunal to give their evidence. Again, that is a normal operating procedure and it is very sensible to empower a disciplinary tribunal to do that.
There is an amendment to replace numerous definitions of government agency and government lawyer throughout the act, with a single definition in the dictionary section. Again that does not seem controversial. There is a consequential amendment regarding the definition of government agency in the Legal Profession Regulation 2007.
The Magistrates Court Act is amended to allow the court to remand a convicted person in custody where bail has not been granted in cases where the convicted person has lodged an appeal. Having done quite a number of cases for the Crown, albeit probably 20 years ago or so, I always thought they had that right—that where people were convicted and sentenced to a term of imprisonment, if they indicated that an appeal was going to be lodged and bail was not granted, they would be remanded in custody. I am not quite sure what happened to have the need for this amendment actually put in, but, again, it follows what I would have thought was a normal natural procedure. If there is any glitch in the law there which made it difficult for a person to
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