Further Right to Appeal Bill in Tasmania: Now Passed in Lower House
Yesterday I attended Parliament to observe the debate around the introduction/passage of the new further right to appeal Bill through the Legislative Assembly. The Bill was introduced by the Premier, the Hon. Will Hodgman. The Bill was supported by all parties and following debate there were no actual amendments to the Bill. There was a very powerful speech given by the Shadow Attorney-General, the Hon. Lara Giddings. The former Premier posed a number of important questions to Mr Hodgman in order to clarify Parliament's intent in making an amendment to a crucial provision of the Bill which meant it was different to, and possibly more restrictive than, the SA model (s.402A(6) (b)). Ms Giddings argued that the bar may have been set too high as proving "fresh and compelling" evidence and a "substantial miscarriage of justice" could be very onerous for some wrongfully convicted persons. She also referred to a range of other issues that could lead to a miscarriage of justice which were not necessarily "fresh and compelling" evidence. She also raised the very important human rights issue and possible non-compliance with our obligations in this regard, as raised by the AHRC in the SA consultative process for its legislation.
The Premier assured the Parliament that Government would not tolerate an innocent person languishing in gaol. He also assured Parliament, whilst not intending to interfere at all with the role of the courts in interpreting the legislation, that there was no intention to make the Tasmanian provision more restrictive than the SA model and that the whole of the case would be considered upon any substantive appeal. Tasmania would also be assisted by the persuasive case law from SA (which includes the cases of Keogh and Drummond). It appeared that the latitude provided by the SA court's more flexible approach in the case of Ratten (as to what might constitute "fresh" evidence) would be available in Tasmania upon the substantive appeal. The Premier also stated that based on the relevant case law, elements of a "tainted conviction", such as inappropriate conduct by police or prosecutors, may constitute "fresh and compelling" evidence.
The Bill may soon be debated in the Upper House. The Premier also made the point that there was no reason to delay the commencement of the Act, once it was passed and that commencement could possibly occur within several weeks.
Around 15 supporters of Sue Neill-Fraser were present in the public gallery for the debate. It was an historic moment for criminal history in Tasmania given this is a vital reform to the criminal appeal provisions in this State and in Australia. Tasmania is demonstrating strong leadership in this area after the initial lead was taken by South Australia several years ago. It is hoped that other Australian jurisdictions will follow shortly and that some degree of national consistency may be possible.
The significant work of Dr Bob Moles of Networked Knowledge and Ms Bibi Sangha from Flinders University in SA was acknowledged during the debate with a number of references by the Shadow Attorney-General to their submission to Government on this topic. Ms Giddings also quoted from recent papers and comments by the Hon. Michael Kirby AC CMG (from the foreword to the recently published book on Miscarriages by Moles and Sangha) and the Hon. Malcolm McCusker ACCVO QC (the former Governor of WA).
(Please note that I have paraphrased aspects of the Parliamentary debate to the best of my ability/recollection. I will put up a reference to Hansard once available).