Statutes Amendment (Attorney-General's Portfolio No 3) Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:57): Obtained leave and introduced a bill for an act to amend the Bail Act 1985; the Construction Industry Long Service Leave Act 1987; the Guardianship and Administration Act 1993; the Legal Practitioners Act 1981; the Magistrates Act 1983; the Second-hand Dealers and Pawnbrokers Act 1996; and the Young Offenders Act 1993. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:58): I move:

That this bill be now read a second time.

The Statutes Amendment (Attorney-General's Portfolio No 3) Bill 2017 makes miscellaneous amendments to various acts to address a number of minor outstanding issues in legislation that have been identified by affected agencies and interested parties. Tantalisingly, I seek leave to have the remainder of the explanation inserted in Hansard without my reading it.

Leave granted.

Bail Act 1985

The Bill amends the Bail Act to authorise the manager of a youth training centre to witness a bail agreement or a guarantee of bail. This is consistent with the existing authorisation in the Act for the person in charge of a prison to witness these documents. Currently, when a youth is released on bail from a training centre following a successful application via video link, staff at the training centre are required to seek specific authorisation from the court on each occasion in order to witness the youth entering into the bail agreement. It is more appropriate and efficient for the manager of a training centre to have standing authority to witness bail agreements and guarantees of bail.

Construction Industry Long Service Leave Act 1987

The construction industry long service leave scheme allows certain workers to qualify for long service leave based on their service to the industry rather than just one employer. The amendment will bring work that involves the construction, erection, installation, extension, alteration or dismantling of data and communication cabling and security alarm equipment within the operation of the Act. This will mean that workers who undertake these types of work will have fairer access to entitlements in line with the rest of the construction industry. It is appropriate that the scheme be adapted to reflect the evolution of technology in buildings and structures over time.

The Bill also clarifies the crediting of effective service where a person transitions in or out of the construction industry long service leave scheme. This may occur due to a change of occupation with the same employer or due to changes in coverage of the Act. The amendment makes clear that only service with the employer at the time of transitioning in or out of the scheme is preserved for the purpose of ongoing long service leave accrual with that same employer. The amendment will not otherwise affect the preservation of effective service entitlements when an employee changes to a different employer within the scheme.

Guardianship and Administration Act 1993

An amendment is made to the Guardianship and Administration Act to remove the mandatory requirement for the State Coroner to hold an inquest into the death or apparent death by natural causes of a person who is subject to an order under section 32(1)(b) of the Guardianship and Administration Act.

The death of a person who is detained under section 32(1)(b) usually relates to an aged person with a mental incapacity who needs to be detained for their own health or safety. The State Coroner has reported that in most cases, under this type of detention, the person dies due to natural causes. An inquest into a death in custody is often a long and drawn out process which, in cases where the person has died or appears to have died due to natural causes, results in unnecessary distress to surviving family members.

A death in these circumstances will remain a 'reportable death' under the Coroners Act 2003, meaning that it must be reported to the State Coroner. An inquest is still required to be held if the State Coroner considers it necessary or desirable to do so, or at the direction of the Attorney-General.

The amendment will apply to all deaths by natural causes of persons detained under section 32(1)(b), including deaths that occurred before the commencement of this Bill.

Legal Practitioners Act 1981

The Bill makes minor changes to the Legal Practitioners Act.

The definition of 'corresponding law' in section 5 is amended. The existing definition requires a proclamation to declare the corresponding law of another State each time its relevant legislation relating to the regulation of legal practitioners changes. The Bill adopts the definition provided by the Model Legal Profession Bill; a definition which is more efficient and is consistent with other jurisdictions.

The Bill also amends Schedule 3 of the Legal Practitioners Act to permit the use of conditional costs agreements in proceedings under the Migration Act 1954 (Cth). A conditional costs agreement is an agreement between solicitor and client that provides that the payment of some or all of the legal costs in a matter is conditional on the successful outcome of the matter. The use of conditional costs agreements is prohibited for some types of legal matters, such as family law matters, where pursuing a win is not necessarily consistent with the policy objectives of the governing legislation. There is no reason why a successful outcome should not be rigorously pursued in proceedings under the Migration Act. It is, however, necessary to protect clients, who can be particularly vulnerable in these cases, from the inclusion of uplift fees. The Bill, therefore, permits the use of conditional costs agreements in matters relating to proceedings under the Migration Act but clarifies that the inclusion of uplift fees is not permitted in these cases.

Magistrates Act 1983

An amendment is made to the Magistrates Act to vary the manner in which the Deputy Chief Magistrate is appointed. The amendment is designed to provide for greater flexibility and to better suit the needs of the magistracy. The amendment will enable the Chief Magistrate to appoint a Deputy Chief Magistrate to assist with the administration of the magistracy and exercise the powers and functions of the Chief Magistrate in his or her absence. The term of appointment will be determined by the Chief Magistrate, but may not exceed 5 years.

The Bill expressly provides for this provision to come into operation on 8 July 2018, after the retirement of the incumbent Deputy Chief Magistrate.

Second-hand Dealers and Pawnbrokers Act 1996

The Second-hand Dealers and Pawnbrokers Act contains a negative licensing scheme. This means that a license is not required to carry on a business as a second-hand dealer but it is an offence for a person to carry on such a business if he or she has been disqualified by the Commissioner of Police. An amendment to the Act, which commenced on 1 July 2016, inserted provisions to allow the Commissioner of Police to disqualify a person from carrying on a business as a second-hand dealer without providing reasons for the decision if the decision was made because of information that is classified as criminal intelligence.

The Bill makes consequential amendments to the Act that were overlooked when the 1 July 2016 amendment was passed. The amendments will bring the provisions relating to the disqualification of persons based on criminal intelligence in line with other licensing schemes in the State.

Young Offenders Act 1993

Part 2 of the Young Offenders Act enables diversionary measures to be utilised where a youth commits a minor offence that results in a person suffering loss or damage. As an example, the youth may be required to attend a family conference, where he or she may be required to enter into an undertaking to give an apology or pay compensation to the person.

The existing provisions only allow for these diversionary measures to be utilised where a person has suffered physical or mental injury as a result of an offence committed by a youth. The Act does not permit police or a family conference to require a youth to enter into an undertaking to give an apology or pay compensation to a person who has suffered loss or damage as a result of an offence. This is remedied in the Bill.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 3—Interpretation

This clause inserts the definition of training centre - the term has the same meaning as in the Young Offenders Act 1993.

5—Amendment of section 6—Nature of bail agreement

This amendment will ensure that the manager of a youth training centre is authorised to witness bail agreements.

6—Amendment of section 7—Guarantee of bail

This amendment will ensure that the manager of a youth training centre is authorised to witness guarantees of bail.

Part 3—Amendment of Construction Industry Long Service Leave Act 1987

7—Amendment of section 4—Interpretation

This amendment expands the definition of electrical or metal trades work to include—

data and communication cabling; and

security alarm equipment.

8—Amendment of section 15—Crediting effective service under this Act and the Long Service Leave Act

This clause amends section 15 of the principal Act to clarify the parameters of the portability of long service leave for persons moving in and out of different positions with the same employer, 1 of which is construction work. In both cases (ie where a person moves out of construction work and into another position with the employer, and conversely where a person moves into construction work from another position with the employer), portability of long service leave is retained, but only in relation to the work undertaken with that employer.

Part 4—Amendment of Guardianship and Administration Act 1993

9—Insertion of section 76A

This clause inserts new section 76A into the principal Act. The new section enables inquests to be held, at the discretion of the State Coroner or the direction of the Attorney-General, into the death or apparent death (whether before or after the commencement of the new section) of a person from natural causes while subject to an order under section 32(1)(b) of the principal Act.

Part 5—Amendment of Legal Practitioners Act 1981

10—Amendment of section 5—Interpretation

The definition of corresponding law is amended to correspond to the model provision taken from the Legal profession—model laws project Model Bill (Model Provisions).

11—Amendment of Schedule 3—Costs disclosure and adjudication

This clause excludes conditional costs agreements relating to proceedings under the Migration Act 1958 of the Commonwealth from the ambit of clause 26(1) of Schedule 3 of the principal Act.

Part 6—Amendment of Magistrates Act 1983

12—Amendment of section 6—Magistracy

This clause gives the Chief Magistrate (rather than the Governor) the power to appoint a Deputy Chief Magistrate. Such an appointment may be for a term (not exceeding 5 years) specified in the instrument of appointment.

Part 7—Amendment of Second-hand Dealers and Pawnbrokers Act 1996

13—Amendment of section 3—Interpretation

This clause inserts provisions relating to criminal intelligence that will make the principal Act consistent with provisions in the Tattooing Industry Control Act 2015.

14—Amendment of section 5A—Criminal intelligence

This clause inserts provisions relating to criminal intelligence that will make the principal Act consistent with provisions in the Tattooing Industry Control Act 2015.

Part 8—Amendment of Young Offenders Act 1993

15—Amendment of section 3—Objects and statutory policies

The statutory policies are extended to encourage the provision of compensation and restitution, where appropriate, for persons who have suffered loss or damage as a result of offences committed by youths.

16—Amendment of section 4—Interpretation

These amendments clarify that loss or damage includes costs and expenses but does not include injury, and that a reference in this Act to a person who has suffered loss or damage includes a reference to a body that has suffered loss or damage.

17—Amendment of section 8—Powers of police officer

The amendments under this clause extend the benefits of section 8 to persons who have suffered loss or damage as a result of an offence.

18—Amendment of section 10—Convening of family conference

The amendments under this clause extend the benefits of section 8 to persons who have suffered loss or damage as a result of an offence.

19—Amendment of section 12—Powers of family conference

The amendments under this clause extend the benefits of section 8 to persons who have suffered loss or damage as a result of an offence.

20—Amendment of section 13—Limitation on publicity

This amendment is consequential.

21—Amendment of section 26—Limitation on Court's power to require bond

This amendment is consequential.

22—Amendment of section 64—Information about youth may be given in certain circumstances

This amendment is consequential.

Debate adjourned on motion of Mr Treloar.