Statutes Amendment (Budget 2011) Bill
06/07/2011
The Hon. K.L. VINCENT (11:36): I want to speak to this bill because I believe that equal access to justice is an essential part of a well-functioning society and one section of this bill poses a real threat to that. Of course, I am talking about section 189A of the bill which has been the target of much controversy, as has already been pointed out, since the piece of legislation was introduced in the other place.
South Australia’s Magistrates Courts have always had the option to award costs in cases where the defendant is not found guilty. To me, this seems to be a perfectly logical system. If a person is dragged through an arduous, long and expensive justice proceeding only to be found not guilty of a crime, why should they pay for the inconvenience?
Of course, realistically, there are lots of reasons a person might not be found guilty and, due to the presumption of innocence which underpins our legal system, some of those reasons might not be a total lack of guilt per se. However, that is a consequence of having our model of legal system and I think it is a price worth paying to ensure everyone is given a fair go at trial. If we accept the notion of innocent until proven guilty, then we must legislate within its bounds. I believe the government has written some subtle rhetoric into this amendment which seeks to undermine the innocence presumption.
What we are looking at here is an attempt to legislatively recognise that some people are more not guilty, so to speak, than others. By adding criteria against which a case must be measured before costs are awarded, the government is seeking to establish a hierarchy of how legitimate a not guilty finding is. This is a sneaky and unfair move as, again, has already been pointed out, and one which should offend every person who truly believes in the tenets of our justice system.
As I have already mentioned, the current system does not force a magistrate to award costs to a defendant who is found not guilty. It simply gives the magistrate the option of doing so. Does the government not trust our magistrates to exercise this discretion properly? I believe that giving a wise and well-educated person the power to determine the merits of awarding costs on an individual case basis is a great system, and it has worked so far.
Apart from these bleedingly obvious social justice arguments against this section of the bill, there are a few practical arguments to be made as well. To that end, I would like to thank Tony Kerin from the Australian Lawyers Alliance for taking the time to brief me on these matters. It was he who pointed out that the potential threat of having to pay costs when a case falls over in court is one of the only checks which makes police consider whether taking a case to court is worthwhile. Mr Kerin believes (and so do many others in the legal profession) that, if this threat is removed, then it will be an open season, so to speak, on police prosecutions.
The removal of costs will amount to the removal of a reason not to prosecute, and our already clogged magistrates courts could be further backlogged with a flood of iffy police cases. The other practical matter to consider is the money the costs measure can potentially save legal aid. When a defendant who has been granted legal aid funding is not found guilty and costs are awarded, the money for payment of costs can often be used to pay the lawyer involved. This means that the money guaranteed by the legal aid is no longer required and can be put back into the funding pool and used to help another person access justice.
There is not that much legal aid funding around, and the payment of costs is propping up the legal aid system. I do not see a promise from this government to direct more funding into legal aid if payment of costs is marginalised, so I can only assume that the success of this measure will result in an even greater barrier between the poor and good representation in the justice system.
Of course, our government has argued that the higher courts in South Australia do not have the same tradition of awarding costs. This is true, but there are obviously lots of differences between these courts and the Magistrates Court; that is why we have the split courts system. The different courts have different functionalities and, while the awarding of costs might not be appropriate in some courts, I can confidently say that it is often appropriate in the Magistrates Court.
I cannot believe that the government would be happy to endanger the integrity of our justice system for a measly saving of $1.6 million annually. I will vote any way I can to stop this proposed change from becoming a reality, but I am not opposed to any of the other measures in this bill, so I hope that as a council we can agree to amend this legislation appropriately.
