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Charles, Chris --- "The National Cross - Border Justice Scheme" [2009] IndigLawB 23; (2009) 7(12) Indigenous Law Bulletin 23
The National Cross-Border Justice Scheme
By Chris
Charles.
In October 2005, the Solicitors-General of the Northern
Territory (‘NT’), Western Australia (‘WA’) and South
Australia (‘SA’) agreed in principle that their jurisdictions ought
to cooperate to implement a cross-border legislative
scheme to address criminal
matters and jurisdictional issues arising between their boundaries (the
‘cross-border region’).
The precise delineation of the cross-border
region is to be defined according to mutually agreed regulations under parallel
legislation
introduced in each of the three jurisdictions. Roughly, it is
proposed to cover all of the Anangu Pitjantjatjara Yankunytjatjara
(‘APY
Lands’) in the north-west of SA, the WA Central Reserves and much of the
NT Aboriginal Land south of Alice Springs.
Under the proposed
legislation, essentially identical laws will be enacted by Parliament in SA, WA
and NT; this will be facilitated
by amendments to the Commonwealth Service
and Execution of Process Act.[1]
The effect will be to allow for persons who reside in, are connected with, or
commit offences in, the cross-border region to be dealt
with by cross-border
magistrates sitting in any of the three participating jurisdictions. Each Act
will specifically empower police,
sheriffs and correctional officers from the
other two jurisdictions to exercise cross-border powers in SA even where alleged
offences
have taken place outside of that
State.[2] SA police will also be given
cross border powers.[3]
At the
time of writing, the WA Government has already enacted the Cross-Border
Justice Act 2008 (WA); NT and SA Bills are currently before their respective
Parliaments.[4]
How the
Legislation Works
The fundamental concept of the scheme depends upon a
person’s connection with the cross-border region. This connection is very
broadly defined. Section 20(2) of the SA Cross-Border Justice
Bill[5] (‘the SA
Bill’), for example, provides that the legislation applies in respect of
any offence where:
a. The offence is suspected, alleged or found to have
been committed in the cross-border region.
b. If at the time of the
person’s arrest for the offence, the person was in the cross-border region
or the person ordinarily
resided in the region.
c. At the time at which the
offence is suspected, alleged or found to have been committed, the person
ordinarily resides in the region.
Section 20(3) sets out corresponding
principles that apply to the courts exercising cross-border jurisdiction in
criminal proceedings.
Of itself, s 20 does not extend the territorial
operation of SA criminal laws. That is already defined by Part 1A of the
Criminal Law Consolidation Act, which establishes that, subject to that
section, SA criminal laws only cover the geographical area of SA. An offence
committed in
the SA part of the cross-border region is a sufficient but not
necessary trigger for the legislation to apply. So an SA person resident
in
Adelaide, who commits an offence at Indulkana (a community on the east of the
APY Lands) has sufficient connection to the cross-border
region and the proposed
laws would apply to his or her offence. A person who resides at Indulkana, but
commits an offence in Adelaide,
also has a sufficient connection.
In
reality, Adelaide offences would most likely be dealt with in Adelaide in the
usual way. But what the scheme will do is to give
police, corrective services
and magistrates from WA and NT powers and jurisdiction to deal with persons who
have a relevant connection
with the cross-border region in any part of SA. The
same effect will be achieved in WA and NT by parallel sets of legislation. This
means that, if an SA resident with a necessary connection to the cross-border
region commits an offence in SA, but then flees to
WA, SA police officers may
arrest and charge that person under SA law in that State. Police may also bring
the offender before a
cross-border magistrate, who will apply SA law in respect
of the offence. This is so notwithstanding that the offender, and presiding
magistrate, are both in WA. Further, even though the relevant offence took place
in SA, if sentenced to custody, the offender is
likely to be imprisoned in a WA
prison. As a parallel legislative scheme, the same effect will be achieved in
interstate matters
being prosecuted in SA from WA and NT.
Concurrent
Jurisdiction in Practice
Courts in participating jurisdictions would
have powers to set up registries, compel witnesses, administer oaths, punish
offenders
for contempt of court, issue warrants, summons and all other court
processes in respect of courts in other participating
jurisdictions.[6] The legislation
provides for parallel principles for the enforcement of fines, the registration
of restraining orders and like
matters.[7] The scheme also makes
provision for extended police and judicial powers regarding
youths.[8]
The proposed
legislation also allows cross-border magistrates to deal with offenders under
three sets of laws. This means that, where a person with the necessary
connection with a cross-border region has committed offences in
all three
jurisdictions, the presiding cross-border magistrate can exercise each state and
territory’s jurisdiction over that
person
consecutively.[9] This could
conceivably occur if an accused person were arrested in WA on recent WA offences
and first instance warrants from SA and
the NT came to light and were executed
on the person in WA. The court would simply exercise its jurisdiction from WA,
then SA and
NT to deal with each matter consecutively. The effect is likely to
be a net widening of jurisdiction and the imposition of cumulative
sentences.
There is an added danger that police and prosecutors may use the
legislation as a means of ‘forum shopping’; that is,
they may pursue
and arrest defendants not in the jurisdiction in which the offence was
committed, but rather in the jurisdiction
that is most convenient for the aims
of law enforcement. Major indictable offences of all kinds would, in the usual
course, be dealt
with by extradition; but it is likely that committals could be
carried out under the cross-border procedures. If so, a committal
for an SA
offence would commit the person for trial to a superior court of SA, albeit the
committal might actually take place interstate
and be done by a cross-border
magistrate.
Further to these extended procedural powers, judicial
officers, correctional officers and police would receive substantially the same
protection and immunity as that provided by their own states, when operating in
a cross-border jurisdiction. But it is not clear
that legal practitioners would
receive equal or sufficient protection as officers of the
court.[10] Such protections are
important for the administration of justice because they protect magistrates
from personal liability in respect
of actions done in the exercise of
jurisdiction. Similarly, lawyers need protection against defamation suits for
things they might
say in open court. Lawyers need this protection so that they
may be fearless in the pursuit of their clients’ interests.
Concerns about the Proposed Legislation
The proposed
legislative scheme is extraordinarily complex. It comprises 147 sections and
covers some 58 pages. It might be described
as a sledgehammer to crack a walnut.
The scheme, radical in scope, seems excessive to address jurisdictional issues
better resolved
by means of expedited extradition procedures. Its extensive
reach, in reordering the operation of the criminal justice system in
the
cross-border region, gives rise to significant concerns.
Drains on
Existing Infrastructure and Resources
The Aboriginal Legal Rights
Movement (‘ALRM’) is concerned about the resource implications of
the legislative scheme on
its already stretched legal services. ALRM and the SA
Legal Services Commission provide legal services to the APY Lands. As such
they
would potentially be appearing in cross-border courts sitting on the APY Lands
from WA and NT, as well as in cross border courts
in WA and the NT. This would
require extra training and resources for ALRM legal practitioners and field
officers in respect of relevant
substantive, procedural and evidential law of
both jurisdictions. This is equally true of practitioners working for Aboriginal
and
Torres Strait Islander Legal Services (‘ATSILS’) that service WA
and NT communities within the cross-border region. The
cost of providing and
maintaining adequate and accredited training in these fields, and the time and
effort required for the practitioners
concerned, would be enormous.
Further, the scheme has made inadequate provision for cross-admission of
practitioners appearing in matters outside their ordinary
jurisdiction. So,
while SA practitioners might be able to practice in WA and NT, they would be
limited by their status as ‘Interstate
Practitioners’. They would
not have the same status as fully admitted practitioners working in those
external jurisdictions.
Uniform Application of the Law
Central
to the concept of 'connection to the cross border region’ is the legal
concept of ‘residence’. This is a
is very elastic common law
concept; the legislation is intended to apply to nomadic peoples who attend
ceremonies, spend time with
family, work, attend funerals and sorry camps and
seek entertainment both within and without the cross-border regions. There is
the
potential for real incongruity in the application of the common law concepts
of ‘residence’. Indeed, without a statutory
definition to clarify
the meaning, it is likely that common law interpretations could be applied
differently by the superior courts
of each jurisdiction, even though the
legislation is to be substantively the same. Incongruity and differences of
interpretation
could occur because appeals from each cross-border magistrate
will go to their respective Supreme Court. The only court able to impose
uniformity of interpretation is the High Court of Australia. There needs to be
uniformity of interpretation and a kind of Cross-Border
common law needs to be
developed also.
As the scheme is presently constituted by the
cross-border Justice Bills and legislation, there seems to be limited scope for
consistent
application of common law across all affected jurisdictions.
Anomalies and injustices will inevitably result. It is unclear, for
instance,
whether WA Magistrates, sitting in SA, exercising WA and SA jurisdiction
consecutively over the same defendant, would be
obliged to apply Frank v
Police,[11] in determining a
matter concerning a breach of WA law. That case establishes that, where
defendants’ command of English is
so poor that they cannot understand the
criminal proceedings in which they are appearing, the court is obliged to stay
those proceedings
and grant immediate bail, until such time as a competent
interpreter is made available. But Frank v Police is not binding
authority on WA or NT Magistrates Courts. Would there be different results for
consecutive WA and SA matters if no
interpreter were provided? ALRM has
recommended that a cross-border appellate jurisdiction be set up with Supreme
Court judges from
each participating state and territory to encourage the
development of a tristate common law. Consistency is essential to the scheme;
all defendants are entitled to equal treatment before the law.
Compulsory Custody Notifications
SA police are required to
notify ALRM whenever there has been an arrest of an Aboriginal person in SA.
Such notifications were introduced
in SA pursuant to judicial
recommendation[12] and
recommendation 224 of the 1991 Royal Commission into Aboriginal Deaths in
Custody (‘RCIADIC’). It is unclear at this stage what
effect the cross-border legislation will have on compulsory custody
notifications, since none of
the Bills comprising the regime have yet made
mention of this essential feature of Aboriginal legal representation. Ideally,
SA police
would also advise the ALRM of interstate arrests of cross-border
persons who are arrested by SA Police but, without specific legislative
provision, this cannot be taken for granted. Further, there is no indication as
to who is responsible for notifying interstate ATSILS
when an interstate arrest
occurs in SA. Clearly, it would be desirable for the legislative scheme to
adhere to a uniform standard
in this
regard.[13]
Further, there
will be cases where an arrest requires more than simple phone advice from the
local ATSILS; some matters will require
either a field officer or a legal
practitioner to be present at the police interview. In such cases, ATSILS may
need to consider
inter-jurisdictional resource sharing. These practical
considerations need to be the subject of proper consultation with ATSILS.
There
is a clear need for appropriate protocols to be arranged.
Human
Rights Issues
For reasons that have been inadequately explained, the
proposed scheme is set to operate retrospectively; police and prosecutors will
be able to use the legislation, once enacted, in respect of offences committed
before its commencement. This is inconsistent with
a fundamental principle that
laws must operate prospectively; it is unfair for the state to expect citizens
to be subject to the
effect of laws that are not yet in existence.
Further, the scheme reverses the onus of proof in relation to facts
connected with the cross-border
region.[14] If there is an arrest,
and the arrested person disputes being present in the cross-border region at the
time of the arrest, or ordinarily
residing in the cross-border region at the
time of the offence, the onus is on that person to prove these matters. Police
should
always have to prove the facts of an arrest.
Equally concerning is
that, under the scheme, persons remanded in custody, or imprisoned as a result
of the scheme, could be imprisoned
a long way from home. Former Coroner Chivell
recommended that a small scale correctional style institution be built on or
near the
APY Lands;[15] SA
Government has not yet implemented this recommendation. This means that an SA
cross-border resident could be sentenced to imprisonment
under SA and WA law in
WA and be held in a prison in Perth. This tendency toward imprisonment at a
place remote from the prisoner’s
home is contrary to Recommendation 168 of
RCIADIC, but is a consequence of the fact that correctional authorities - not
magistrates
– decide where a correctional prisoner is to be
held.[16]
Conclusion
ALRM has concerns that this complex legislation will have the effect of
singling out Anangu, the people who live on the APY Lands.
They are
predominantly Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara people. Although
the legislation is expressed in terms of
geographical operation, its effects
will be primarily be felt by these groups. This is because the cross-border
region of SA is defined
in terms of the area over which they have been granted
land rights.[17] Allowing
magistrates sitting in the cross-border regions to deal with matters from each
of the three jurisdictions will mean that
many more criminal files can be
aggregated and dealt with at the same time. ALRM greatly fears that the
legislation has the potential
to increase the imprisonment rate on the APY Lands
and also to cause significant social and family disruption to these
communities.[18] Further, it will
impose enormous extra strains on already chronically under-resourced ATSILS and
Legal Aid Organisations. Ultimately,
this issue might have been more effectively
– and efficiently – resolved by rationalising the law of
extradition.
Chris Charles is General Counsel for ALRM.
[1] 1992 (Cth).
[2] Cross-Border Justice Bill
2009 (SA) (‘SA Bill’), Part
4.
[3] Ibid, Part 3 Division 1.
[4] Ibid, Cross-Border Justice
Bill 2009 (NT).
[5]SA Bill, above n
2.
[6] Ibid, Part 6 Division
1.
[7] Ibid, Part 5 Division
4.
[8] Ibid, Part5 Division 2, Part
10 Division 1, subdivision 4 and part 11 Division
1.
[9] This will be possible
because of mutual cross-appointment of magistrates and other ‘secondary
officers’, ibid, Part
13.
[10] Ibid, s 85(2).
[11] [2007] SASC 288, confirmed
by the Full Court of the Supreme Court [2007]SASC418, appeal refused.
[12] R v Williams [1976]14
SASR1.
[13] See Crimes Act
1914 (Cth), ss 23H, J. The Commonwealth model should be a benchmark
for the States and
Territories.
[14] SA Bill,
above n 2, s 17.
[15] See South
Australia’s Coroner’s Court, Finding of Inquest into the Deaths of
Kunmanara Hunt , Ken and Thompson
<http://www.courts.sa.gov.au/courts/coroner/findings/findings_2002/kunmanara_ken.finding.htm>
see also Findings of the Deaths of Kumanjay Presley,
Kunmanara
Coulthard and Kunmanara Brumby [2005] NTMC 034, where
the same recommendations were repeated
verbatim.
[16]
Correctional Services Act 1982 (SA), s 22.
[17] Pitjantjatjara
Yankunytjatjara Land Rights Act 1981 (SA);see also Gerhardy v Brown
[1985] HCA 11; (1985) 159 CLR 70.
[18] For
discussion of imprisonment and impact of detention in an alien environment for
Anangu, see South Australia’s Coroner’s
Court, Finding of Inquest
into the Death of Kunmanara Cooper, at <www.court.sa.coroner/findings/2005
Kunmanara Cooper>.
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