: WA legislation in flux

WA legislation in flux

Steven Castan
Western Australia

With the WA election looming in March 2017, there has been a lot of activity in the Parliament leading up to caretaker mode. During this period efforts are made to ensure that decisions are not taken that would bind an incoming government and/or limit its freedom of action. This has resulted in some Bills passing and others being blocked or held over indefinitely.

In October, a Bill which sought to remove the statute of limitations of six years on sex abuse claims was shut down by the Liberal Party that had originally introduced the legislation to Parliament. WA victims of child abuse had expected that the Bill would be passed next year. They shed tears in Parliament and accused the state parliamentarians of protecting paedophiles. The Private Members Bill introduced by Graham Jacobs would have meant that child victims could have sued for damages after the six-year limitation period, this is still current Liberal Party policy. Labor wanted the Bill to be debated during a recent parliamentary session and brought the matter to a vote; it was defeated, despite Liberal and National MPs crossing the floor to side with the Opposition.

Premier Colin Barnett said that the government would introduce its own legislation next year. The debate became highly personal with Mr Barnett booed and shooed away by victims he attempted to address, and Independent MP Rob Johnson labelling the Premier a ‘disgraceful turd’.

In the meantime, with only a few weeks of sitting time left, a ‘turf war’ has broken out between the two houses of parliament in Western Australia, over the powers and rights of the Legislative Council after legal advice sought by Greg McIntyre QC described rulings by the Lower House as ‘incorrect in law and contrary to the Constitution’. This raised the prospect of resolving what was described as an ‘apparent historical impasse’ in court.

The dispute arose over two Bills which originated in the Upper House and which the speaker deemed amounted to an appropriation of money. Lower House Speaker Michael Sutherland had ruled the legislation out of order on the basis that such Bills much originate in the Lower House. One Bill related to an attempt to pass legislation sparked by a damning inquiry into child sexual abuse at state-run hostels; the second was a National Party Bill to expand the Lower House from 59 to 61 seats. The Speaker’s view was not backed by Mr McIntyre’s QC advice to the Upper House which found the ruling of what was an appropriation Bill appeared to be incorrect.

The dispute could be resolved by application to the courts for a ruling but outgoing Legislative Council president Mr Barry House played down that possibility, saying he would sit down with Mr Sutherland and staff from both chambers to reach a resolution. ‘Parliaments are the master of our own destiny and it will be a very, very last resort in my view if we go to a court for an interpretation of this’, Mr House said. ‘We need to just get together and sort it out ourselves.’

Meanwhile, the Custody Notification Service (‘CNS’) — that WA Aboriginal advocacy groups such as the Deaths in Custody Watch Committee of WA have been arguing for in Western Australia over many years — has finally been funded, albeit by the federal government. This service has been active in NSW for 20 years and is credited with the reduction of deaths in custody in that state. The CNS has been in place in NSW for almost 20 years, with the cooperation of police who place a call to lawyers from the Aboriginal Legal Service when an Aboriginal person is taken into custody.

The WA government to date has refused to fund such a service, The WA government rolled out a limited version of the scheme in February 2016 to be run by the Department of Corrective Services, but not an independent Aboriginal-run organisation. As a result its effectiveness was considered limited because Aboriginal prisoners were not likely to use such a voluntary process which was considered interlinked with the justice system.

Advocates for the national system have welcomed the news of the CNS. It is hoped the new system will reduce rates of deaths in custody in Western Australia as has been the case in other states such as NSW.

STEVEN CASTAN is a barrister, accredited mediator and family dispute resolution practitioner in Western Australia.

(2016) 41(4) AltLJ 290
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