Page 1671 - Week 05 - Tuesday, 3 May 2011
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374. If there is any confusion about amendments which were circulated for discussion earlier and this one, I point out that the drafters have found that there is a vacant clause 374.
By inserting a new section 374 we achieve the substantive elements of the Canberra Liberals’ approach to the amendments to the courts legislation. My explanatory statement gives a detailed outline of the effect of such elements of this amendment and I do not propose to repeat them here because I dwelt on them at some length at the in-principle stage. Suffice to say that this amendment sets out the process by which the prosecution must make an election as to whether the matter carrying a penalty of between two and five years should be dealt with summarily rather than go to trial in the Supreme Court.
If the prosecution fails to make an election in accordance with the proposed provisions then the matter returns to the default—that is, it will be dealt with in accordance with the processes as they currently stand. It also sets out the maximum penalty that the court can apply.
I pause for a moment to reflect on this aspect of my amendment a little further. It is sometimes the case that the Supreme Court will deliver a sentence that is much less than the legislated maximum penalty. This amendment limits the court to delivering a maximum penalty of two years or $5,000 or both. It is effectively a discounting of the maximum penalty that the Supreme Court might impose if a matter were heard in that jurisdiction.
Therefore, having legislated for what amounts to a discounted penalty, a couple of questions arise. Firstly, should the Magistrates Court consider any further discount at all on the two-year maximum penalty, given that the matter would have attracted a much higher sentence if it had been heard in the Supreme Court, or should the Magistrates Court consider a proportionate sentence based on what would have been imposed in the Supreme Court for the same offence? Or, further, should the Magistrates Court consider the sentence in the context of the maximum two-year penalty alone?
My amendment does not address this matter specifically, so it is a matter for the court’s discretion as to how it might deal with this particular matter when it comes before it. Nonetheless, I consider that it is an important matter and I urge the government, should it still be in office, which is unlikely, to consider this matter in the context of the review in two years time and which is also established by this amendment. Certainly, if a Liberal government is in power, we will do so.
Finally, this amendment establishes that if a matter is on foot under the existing process when the amendment becomes law, the matter continues under the current process. There is a sunset clause provision of one year for this transitional arrangement. I commend this amendment, which is the centrepiece of the Canberra Liberals’ reforms, to the Assembly.
MR CORBELL (Molonglo—Attorney-General, Minister for the Environment, Climate Change and Water, Minister for Energy and Minister for Police and
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