Sentencing (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 September 2018.)

Mr PICTON (Kaurna) (15:58): I indicate that I am the lead speaker in relation to the opposition on the bill. Sadly, I also indicate that the opposition is forced to reserve our position in relation to the bill at this time, and that is not something that we like to do lightly. Sadly, it is something that we have been forced into doing, due to the incompetence of the Attorney-General.

This bill has been a complete shambles from the government—a complete and utter shambles. I think it was Ray Martin who once said in relation to the Deputy Premier, 'How could a politician get it so wrong?' We have yet another example of that here in the Sentencing (Miscellaneous) Amendment Bill 2018. The Attorney-General said that we need this bill because we need to fix up the Sentencing Act in relation to concerns from the federal government. The federal government want us to amend it to ensure that certain commonwealth offences do not have home detention sentences applied to them.

That sounds reasonable. That is the basis upon which we considered the matter, and that is the basis upon which we were briefed on the matter many weeks ago when this was introduced. That is the basis upon which the Attorney-General gave her speech to the parliament, outlining why she was introducing this bill, but that all crumbled pretty quickly. It crumbled at exactly 2.29pm on Friday, when we had an email from the Deputy Premier's office informing us that the Sentencing (Miscellaneous) Amendment Bill, which is currently before the House of Assembly, was likely to be debated this week. We were certainly ready for that and had considered the matter. The email read:

It was introduced on 5 September.

As you may know that Bill deals with miscellaneous fix ups since the commencement of legislation recently and also aligns with the Commonwealth home detention arrangements for specific defences.

Since that time the Attorney has been contacted by the Commonwealth DPP about their suggestions.

Therefore, this amendment removes all references to prescribed offences against the law of the Commonwealth that were to be inserted in section 71(5). This amendment was drafted in order to clarify the availability of home detention orders for certain federal offences, and is now being withdrawn—again at the request of the Commonwealth.

The situation is that the Attorney-General introduced this bill and said that it was being introduced on the basis of the commonwealth requesting this amendment to clarify matters in relation to commonwealth offences, in terms of both serious sexual offences and organised crime and serious organised crime matters, but perhaps she did not actually talk to the commonwealth as part of this, despite saying that to the parliament. Perhaps there was no actual discussion because she introduced the bill and now she is having to pull the guts out of it in an amendment before this house.

The Hon. V.A. Chapman: That's one clause.

Mr PICTON: This is the guts of the bill. You brought this bill in saying, essentially, that there is a whole series of minor amendments and then there is the significant amendment we are making at the request of the commonwealth. At 2.29pm on Friday, we had this request. Of course, between then and now we were not able to be properly briefed on the matter or to properly discuss it in shadow cabinet and in our party room.

I am sure that members of the public would want any political party to go through the proper process in considering such major amendments to a bill, yet we have had the Attorney-General say that she continues to want to progress this bill even though the guts of it are being pulled out, only minor amendments are now being dealt with and the opposition has not been briefed. That suggests to me that this is not a fact of needing to debate this legislation right now: it is actually a matter of the government running out of business to debate in the house.

We have had so many speeches on everybody's primary school teachers and the education bill—that used up a bit of time in the parliament—and now we are going to have to try to deal with this bill, even though the guts have been pulled out of it, to use up some time in the parliament. This is a government that you would think, after 16 years in opposition, would have a bit of an agenda. You would think that there would be a whole series of laws they want to see amended.

Mr Brown: Brimming with ideas.

Mr PICTON: Brimming with ideas that they have been working on for 16 years.

Mr Brown: A real action agenda.

Mr PICTON: That's right—a real action agenda. But the truth is that there is very little. The action we have been promised by the government has not materialised. The government has run out of business. Embarrassingly, the Attorney-General is being forced to pull the guts out of this bill, and she is progressing it through the parliament this week without the opposition being properly briefed on the matter for the simple reason that they have nothing else to talk about—nothing else to debate before the parliament. They have a tiny little agenda for this state after 16 years in opposition.

We are very disappointed with the attitude of the Attorney-General. You could almost open a random page of Hansard over the past 16 years and find the Deputy Premier complaining about how she was not properly given notice of things when she was in opposition. It was so common that you could almost open a random page and find that, yet her approach since being the Attorney-General is to make the situation worse. She no longer sees the importance of briefing the opposition before debating things and pushing things through the house.

Sadly, we are going to be in the situation today where the Attorney-General is going to try to push this bill through the house. The opposition has not been able to be fully briefed on the embarrassing backdown she has had to do in moving these amendments. We have not been able to properly discuss them in our party room, so we will have to reserve our position to the upper house. But I hope the Attorney-General is able to explain what seems a very mystifying series of events where she has had to back down from the reason why she said she would introduce this bill, which was supposedly on behalf of the commonwealth, yet now the commonwealth wants her to pull those sections out of the bill.

We are sorry that it has come to this. We reserve our position in relation to this bill. We will be asking a series of questions in relation to this monumental stuff-up when we get into the committee stage. We look forward to being properly briefed on it, as you would expect a government should do, and then we look forward to debating it properly in the other place.

Mr TEAGUE (Heysen) (16:06): I rise to commend the bill to the house. The Sentencing (Miscellaneous) Amendment Bill 2018 attends to a number of uncontroversial matters, and I will address those in a moment. As I have done on many occasions over recent months, I commence by observing that this is yet another piece of legislation brought before this house in the course of the new government's prosecuting its ambitious agenda in this 54^th parliament. I take the opportunity to make those observations in a rather more fulsome way in light of the observations of the member for Kaurna just now.

We will all recall that not only did the Marshall Liberal team prosecute a well-articulated and well-documented range of commitments in the months leading up to the election but it published a 100-day plan and it made a series of businesslike and outcome-driven commitments ahead of the election. It then delivered on every single one of them, and we saw that most recently expressed in the government's budget delivered on 4 September. The opposition has had the opportunity most recently to look over the excellent work displayed in that budget in the course of the recent budget estimates process.

Far from there being circumstances in which this house is anything other than fully occupied, I might further observe that, as I have sat here into the late hours week after week in the course of the early sittings in this 54^th parliament, it has impressed me very much as a new member in this place to see the diligent, professional and businesslike approach that I have had the privilege to assist my colleagues with in delivering for all South Australians as we set out to right the wrongs that this state has been left with after 16 years of chaotic, incompetent, negligent and deleterious government on the other side.

Far be it for the member for Kaurna to stand up in this place and give the Acting Premier or anybody on this side of the house a lecture and commentary on the agenda of this new government. It is an agenda that I am very proud to be part of debating as we go about delivering on each and every one of the commitments we made to the people of South Australia over the course of the last year and, indeed, in the time since we were fortunate to be delivered government by the people of South Australia on 17 March.

Let there be no doubt that, in debating the Sentencing (Miscellaneous) Amendment Bill 2018, we are very much in the context of a government program. If the member for Kaurna or any other members on the other side of the house would care to do any work on—

Mr Picton: Do you want to talk about the bill? What is in the bill? Do you know what is in the bill?

Mr TEAGUE: The member for Kaurna interjects and asks: do we want to debate the bill?

Members interjecting:

The ACTING SPEAKER (Dr Harvey): Order!

Mr TEAGUE: Having address the question of the agenda of this government, I would ask him to cast an eye over the index of bills, for example, to 19 October, which is readily available on the parliament website. He will see there a very ambitious agenda indeed.

Mr PICTON: Point of order: I think it would be nice if at least once the member for Heysen could talk about the actual bill we are debating.

The ACTING SPEAKER (Dr Harvey): It is a wideranging debate. I would call the member for Heysen more closely to the substance of the bill, but it is indeed a wideranging debate.

Mr TEAGUE: Thank you, Mr Acting Speaker. As is plain to all of us on this side of the house—it is obviously not quite so plain to the member for Kaurna—the Sentencing (Miscellaneous) Amendment Bill 2018 is but one of the very many pieces of legislation that have been—

Mr Picton: What's in it?

The ACTING SPEAKER (Dr Harvey): Order!

Mr TEAGUE: —efficiently prosecuted in the course of this new government. The Sentencing (Miscellaneous) Amendment Bill 2018 contains a number of uncontroversial and orderly reforms to the Sentencing Act.

Members interjecting:

Mr TEAGUE: I welcome participation on the other side, even in the form of interjection. I would simply ask that it be expressed coherently. I would invite any of those two members who are paying attention to the debate this afternoon who wish to participate in the meaningful exchange of views on this legislation, or indeed any other, to engage in a meaningful way and not to gratuitously hop up and complain about what this government is doing to address the mess and mayhem that we were left with after 16 years under Labor rule in this state.

The bill contains a number of amendments and reforms to improve on the situation that stands under the Sentencing Act 2017. We see that there is an amendment to the definition of an intervention program manager. An intervention program manager, for the benefit of those opposite, performs an important role pursuant to the act and an important role for the purposes of section 29 and section 30 of the act in particular. The new definition makes it clear that for certain purposes, that person will be employed by the Courts Administration Authority, and for others:

…an employee of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Correctional Services Act 1982.

It is far from controversial. It is simply a necessary refinement of the definition as is appropriate and in line with the requirements for the management of the intervention program by an intervention program manager.

The bill further provides for better particularisation around an arraignment date for the purpose of the relevant discount. For those who are interested in following the detail of what is being amended—and perhaps for the benefit of the member for Kaurna, who appears to have decided to be present for the course of this debate simply to score some cheap political points—I make the following observation. As it is presently set out, in reference to the date of the arraignment appearance, section 40(3)(d) of the Sentencing Act provides that a sentence for a guilty plea may be reduced by up to 15 per cent where the plea is made immediately after the arraignment appearance of the defendant.

The issue addressed in clause 5 of the bill is for the purpose of better particularising what that date needs to be and not letting it drift. As might be apparent when one turns one's mind to the language that is used there, as presently expressed, the arraignment appearance of the defendant in a superior court is a date to be fixed. In some circumstances, the arraignment may be adjourned so that the appearance does not occur until a later date, after the arraignment might have been listed.

So as to avoid circumstances being in play in which there is somehow an artificial incentive for the purposes of that reduction regime, which is potentially an inappropriate procedural incentive, as it perhaps might be seen or described as—and no-one would wish that on parties or the courts administration process in the system of justice—so as to avoid a situation in which there is the potential for an incentive to cause or seek to have that arraignment appearance of the defendant in the superior court adjourned to a later date for the reason of preserving the level of the reduction that is referred to in section 40(3)(d) of the act as it presently stands, the amendment would delete the words 'arraignment appearance' and would substitute in their place the words 'first date fixed for the arraignment'.

That puts the question of the timetabling for the application of that element of the reduction back in the hands of the court, as opposed to causing there to be, even if inadvertently, some perverse incentive in the terms of the act itself for there to be some adjournment or other irregularity in the course of moving through the arraignment process. Clause 5 of the bill provides for an amendment in those terms in relation to section 40(3)(d) of the act and, in like terms, also so far as it relates to section 40(3)(e) where, in the same way, the words 'defendant's arraignment appearance' are deleted and the words 'first date fixed for the arraignment of the defendant' are substituted in their place. Those are the amendments to section 40 that are contemplated by clause 5.

In the short time that is still available, I propose to address, albeit briefly, clause 6 of the bill dealing with section 71, and also clause 7, dealing with section 79 of the act. Firstly, clause 6 deals with the relevant definition for the purposes of home detention orders and the definition of 'serious and organised crime offence'. Once again, for the benefit of those who are interested in following and understanding the course of the amendment, the effect of the amendment, the subject of clause 6, is to expand the definition of 'serious and organised crime offence' to include attempts to commit any of the relevant offences there described.

In relation to section 71(5), as presently described, 'a serious and organised crime offence' means offences under the Criminal Law Consolidation Act 1935 that are there described, all of which are offences under that act. The amendment in clause 6, firstly in relation to section 71(5)(a), inserts a new subparagraph (iv), being an attempt to commit any of the offences referred to in any of those subparagraphs, and in like terms, in relation to the offences pursuant to the Controlled Substances Act 1984 that are specified under section 71(5)(b), similarly an attempt to commit any of those offences. Those are the amendments that are the subject of clause 6, and are all readily able to be understood, including by those opposite.

Very briefly, in clause 7 there is the expansion of the application of an intensive correction order to include sentences that would otherwise have been up to two years, rather than confining it to sentences that would have otherwise been for up to 12 months. The balance of the bill attends to other matters in an orderly way, and I commend the bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:27): I thank the member for Kaurna and the member for Heysen for their contribution to this debate. It is fair to say that it has had a strange history, but it is important that I explain its gestation and, to some degree, partial abortion at present. I think the member for Kaurna will be pleased to hear that this relates to amendments to an act passed by the parliament under the former Labor government and correspondence that was sent from the Commonwealth DPP to the former attorney-general, now member for Enfield, Mr Rau SC. Although the former government did not pick up this matter, or indeed any of the minor matters that were starting to show through as a weakness in respect of the legislation they passed, the new government this year did so.

Having done so with an indication of support of other eminent people—and I am going to name a few of them—we agreed to progress the bill with the support and advice from the state Director of Public Prosecutions, Mr Adam Kimber—a man also appointed by the previous Labor government. I make no direct defence of that in any way. He is an excellent Director of Public Prosecutions. He continues to serve this state very well, and I would urge members to read his annual report that was presented to the parliament this week. He, too, joined in the chorus of debate to ensure that the new sentencing law that the previous Labor government introduced—with its shortcomings—be remedied and be as good as it could be.

Another great advocate of the presentation of this bill in its current form was the former victims of crime commissioner, Mr Michael O'Connell.

Mr Picton: Before you sacked him.

The Hon. V.A. CHAPMAN: Well, of course, the member for Kaurna calls out that this is before he was sacked. As he well knows, he continued his employment pursuant to the terms of his contract. He, too, wrote to us on 2 July this year endorsing the approach that had been presented because, whilst there had been some anticipated, at least, change of employment, he was the Commissioner for Victims' Rights at the time of invitation to make a contribution to the reforms proposed, and I have a letter from him of 2 July 2018, which says, and I will just quote a few of his paragraphs:

I concur with the federal DPP's request and support the Attorney-General's proposed amendment. It is important to have consistency, or at least some harmony in criminal law, and in seeking to achieve such that victims' interests are considered fairly, justly and equitably in relation to the state's and defendant's interest.

He then goes on to explain that in his view:

Home detention is not home incarceration as is often suggested in the rhetoric. Instead it is better likened to a community service with a home-based curfew.

He goes on to indicate support for the other amendments, which have been referred to as minor amendments but which are important corrections to the new Sentencing Act regime, which is operating but with current defects and clearly does need to be remedied.

I will not go on to read the entire contents of Mr O'Connell's submission. It has scribbles all over it, but I am happy to provide a copy to the member. Similarly, I come now to the correspondence from the then chief magistrate, Dr Andrew Cannon (as he was then, acting chief magistrate), by letter of 22 June 2018 thanking me as Attorney-General for the opportunity to comment in relation to the matter, and he confirms that he has no difficulty in supporting the bill that is there.

He also identified examples where there had been a need to clarify whether or not a court ordering that the suspended sentence be carried into effect under section 114 can be an order served on home detention and so alerted us to other matters. I had not proposed to publish this, which I would not do of a judge, but I indicate to the parliament his endorsement of it. Similarly, of course, we had submissions from the Law Society and the Legal Services Commission, all of which, I am sure, would be available to the member.

However, let me say this: when the Commonwealth Director of Public Prosecutions, under the hand of Megan Voller as the assistant director, wrote to the former government, she did so pointing out from one independent statutory body to the former attorney-general in letters, dated 7 July 2017 and 26 October 2017, that we as the new government do not have access to those two letters. They were letters sent to the former government and they are somewhere or other in storage, presumably under the State Records Act for ultimate filing and identification for indexing in some way for the purposes of storage.

We on this side of the house were quite prepared to look at the work that had been undertaken—and on the advice we received from the independent advisers to government, that is, our legislative services and in this instant one of the senior legal advisers who had the conduct of this matter—to ensure that if there was any deficiency in our Sentencing Act law, especially as it was a new model and we needed obviously to make sure that it was going to be operating as effectively as it could even without sighting the original letters by our new government, we were prepared to accept that there was a continuation of work being undertaken to actually bring that into fruition.

We prepared a draft bill and sent it out for consultation. You have heard some of the endorsements by those some would describe as the usual suspects, who agreed that this was an important thing to do; that is, someone who is being prosecuted in South Australia under federal jurisdiction for a federal offence should not be able to avail themselves of home detention options, as might apply in similar legislation under state law.

Let's consider what has happened since then. The new government, having accepted that it was important and genuine in respect of the Commonwealth DPP's presentation to the Attorney-General's Department and to the former attorney-general, decided that we would progress this. By letter of 11 October 2018, received last week, the Commonwealth DPP wrote to me as the Attorney-General in respect of the aspect of amendment that they had sought. I am going to read the letter—only because my copy has writing all over it—so that the position is clearly on the record as to why they have withdrawn their invitation to the Attorney-General of South Australia to make the amendments, as originally sought.

The only thing I could add to the contents of this letter is that I am informed (and I have no reason to believe that this is inaccurate) that, as other jurisdictions around Australia were being asked to look at this measure to make sure that they had some consistency with their serious and organised crime penalty options in sentencing, a matter covering this scenario had gone before the New South Wales Courts and that the complications in relation to how that matter operated were exposed by that. New South Wales had been in advance of South Australia in acquiescing to the request of the Commonwealth DPP and had passed their legislation some time ago. The weakness in it had been exposed and, I assume, had firstly been brought to the attention of the Commonwealth Director of Public Prosecutions and ultimately to us here in South Australia.

I will attempt to read this letter, in its original form, as quickly as possible. This is from the Office of the Commonwealth Director of Public Prosecutions on Victoria Square in Adelaide and is dated 11 October 2018:

The Hon. Vickie Chapman MP

Attorney-General

GPO Box 464

ADELAIDE SA 5001

Dear Attorney,

Home detention orders for federal offences

I refer to my letters of 7 July 2017 and 26 October 2017 in relation to the Sentencing Bill 2016 SA ('the bill'), in which this Office invited the then Attorney-General to consider amendments to the provisions regarding the availability of a home detention order in relation to certain federal offences.

I understand Ms—

I will not name the person in the department, but it is a senior person in the department—

of your Department is presently working on potential amendments to the Sentencing Act 2017 (SA) ('the State Act') and the associated Regulations to include certain federal offences within the definitions of 'serious and organised crime offence' and 'serious sexual offence' in s 71(5) of the State Act.

The purpose of this letter is to withdraw this Office's invitation to amend the State Act to preclude a home detention order being made for certain federal offences. This Office has had cause recently to reconsider this issue. For the reasons that follow, we now consider it is likely such an amendment would be invalid due to the inconsistency with the federal law. Home detention orders for federal offenders

By way of background, in South Australia a home detention order ('HDO') is made available as a sentencing alternative for a person sentenced for a federal offence, pursuant to s 20AB of the Crimes Act 1914 (Cth), which expressly picks up and applies certain State sentencing alternatives that are either expressly listed in s 20AB, or via regulation.

The extent to which a HDO can be made in respect of the federal offence is the subject of a Crown appeal recently heard by the Court of Criminal Appeal (CCA). That appeal related to HDOs under the former Criminal Law (Sentencing) Act 1988 (SA). The CAA has reserved judgment. The CAA will hear a second Crown appeal on 21 November 2018 in relation to the ability of a HDO for a federal offender pursuant to the current State Act.

The abovementioned appeals focus on whether a HDO can be made simultaneously with a recognizance release order, which is the federal equivalent of a 'suspended sentence'.

A further issue, which is unlikely to be addressed by the present appeals, is whether a HDO can be made in respect of a federal sentence of imprisonment that exceeds 3 years. This Office's position is a HDO cannot be made in respect of such a sentence, as a federal sentence exceeding 3 years cannot be 'suspended', pursuant to ss 19AB and 19AC of the Crimes Act 1914 (Cth) ('the Crimes Act').

The validity of the proposed amendment

Where a sentencing court imposes a HDO in respect of a federal offence, the court is exercising federal jurisdiction. Through s 20AB of the Crimes Act, the Commonwealth Parliament has made HDOs available as a federal sentencing alternative in South Australia.

Section 20AB does not limit the availability of a HDO to any particular federal offence, nor does it preclude a HDO from being made for any particular federal offence. Rather, s 20AB(1)(b) provides that inter alia a HDO can only be imposed for a federal offence if the court would be empowered to make such an order 'in respect of a State offender in corresponding cases'.

In the event that the State Act were amended to preclude a HDO from being made for particular federal offences, the State Parliament would be purporting to command a court exercising federal jurisdiction as to the manner in which the court could exercise the power vested in it by section 20AB of the Crimes Act. Put another way, the State Parliament would be purporting to limit when a HDO could make for a federal offence in circumstances where the Commonwealth Parliament has made a HDO available without any such limitation.

On reflection, this Office considers that, were the State Act amended as proposed, the amendment would likely be beyond the legislative power of the State Parliament and would therefore be invalid.

Similarly, such an amendment to the State Act would be inconsistent with s 20AB of the Crimes Act, which makes comprehensive provision for the circumstances in which a HDO may be imposed for a federal offence. Section 20AB reflects the Commonwealth Parliament's intention to cover that field. The amendment would therefore also likely be invalid pursuant to s 109 of the Constitution.

The corresponding case

In the absence of the proposed amendment, this Office, nevertheless, considers a HDO will not be available for any federal offence that is analogous to a 'serious organised crime offence' or 'serious sexual offence', as defined by s 71(5) of the State Act. That is because s 20AB(1)(b) of the Crimes Act only makes a HDO available for a federal offence if a HDO could be made for a State offender in a 'corresponding case'.

Whilst this issue is yet to arise in any matter prosecuted by this Office in South Australia, our position is that a HDO cannot currently be made for a federal offence that is analogous to a State offence for which a HDO is precluded. For example, certain State drug trafficking and manufacture offences, punishable by life imprisonment, are prescribed as 'serious and organised crime offences'. This Office considers such offences represent the 'corresponding' State case to a number of federal offices in the Criminal Code (Cth).

I note this Office has not identified any judicial consideration of the phrase 'corresponding case'. Whether the appeals presently before the CAA provide authority as to the proper construction of that phrase remains to be seen. In the absence of authority, the position adopted by this Office to date is that the phrase should be interpreted to mean the 'similar or analogous' State case.

Conclusion

For the forgoing reasons, we invite you not to include any federal offences in any amendment to s 71(5) of the State Act, or the associated regulations.

Thank you for considering the above submission.

If you wish to discuss the above submission with this Office, please don't hesitate to contact John Clover (A/Principal Federal Prosecutor)…

A number and email address are provided.

Yours faithfully

Megan Voller

Assistant Director

I think that the opposition should be reassured, as the government has been, that the former government was requested to undertake this matter. It had been investigated by the legal minds of the state department and, presumably, the former attorney-general. Much consideration was given, and we are grateful for the complimentary indications from a wide variety of stakeholders on this matter. Until we had this letter in mid-October, apparently received last week, there was nothing to suggest that there was any reason why legislation would not be progressed.

If the opposition want to take that further, then of course they are entitled to make that inquiry themselves. I heard the plaintive pleas of the member for Kaurna about not being kept sufficiently apprised or informed on this matter, that somehow or other he was being denied access to a reasonable consideration with the support of briefings. This is a bill to amend a principal act to deal with the issue that is the subject of the invitation of the Commonwealth DPP and three other minor amendments, which have been referred to. The member for Kaurna and members of the opposition were provided two briefings. They took them up and had the opportunity to make statements.

Furthermore, upon receipt of this letter and the indication of what had occurred, an email was sent on Friday last week to the opposition representative. It may also have gone to the Hon. Kyam Maher; I am not sure. He is the official opposition spokesperson for legal matters, although I think even the Premier said to me the other day, 'Who is the opposition spokesperson for legal matters?' I think he thought it might have been you.

Mr Picton: I think you digress.

The DEPUTY SPEAKER: Not me, Attorney. It was not me, Attorney.

The Hon. V.A. CHAPMAN: In any event, I informed him, of course, that the Hon. Kyam Maher is the official spokesperson. I hardly ever hear from him, actually. The member for Kaurna obviously has the carriage in this house of parliamentary matters. It was appropriate that, as soon as the government became apprised of the withdrawal of the invitation on this particular issue, the opposition should be informed. Furthermore, the terms of the proposed amendment to this bill were simply to withdraw the legislation relating to it, that is, one clause to remove the words to implement the original invitation. There is nothing new other than to say that, of the four things we want in this bill, we are just taking one out.

Notwithstanding that, just in case the opposition had some questions about the drafting, the timing or anything else, a further briefing was offered this week, as soon as possible, so that they could ask questions and presumably tease out whether there was some genuine request or the like. I think it is quite reasonable that, if a government bill is before the house and any member of the parliament has questions in relation to it—after all, it is a government bill—we need to be able to put our case as to why it should be accepted by the parliament. Members should have available to them full and comprehensive briefing advice, and that has been offered in this case. The withdrawal of one portion of it is pretty simple.

We are not saying we are withdrawing this and we are introducing some new model or some other new formula or some other substantive change: we are just taking it out. As to the bit that the previous commonwealth DPP wanted in order to ensure consistency of home detention in these serious offence circumstances where a commonwealth law is being prosecuted in a state court, there is no change to that and no substitute proposed. Quite frankly, I would have thought the member for Kaurna's crocodile tears on this evaporate from any consideration because that is completely absurd.

He has all his colleagues here in the parliament. Why could he not ring up Mr Maher and say, 'The government has had a late request from the Commonwealth DPP. You remember he wrote to our previous government about this. They are letting us know that they do not need it anymore; in fact, it is complicated by the fact that it might cause a constitutional challenge; therefore, we need to note that. But we will just agree with the government with the other three minor amendments'? After all, we are fixing up their act that they passed under their regime in 2017.

No, he did not do that. He has come in here and given his whole crybaby speech about not being able to have another briefing about one clause which he has been provided with which states: 'Amendment No. 1—Delete subclauses (3) and (4).' That is it. I find it extraordinary that here we are trying to fix up a major piece of law reform by the former government for which we had round tables to work it out with all the people who have to deal with sentencing in this state—the Parole Board chair, corrections department, police representatives, the Law Society, barristers, judges. We had the whole lot. There needed to be a very clear new approach.

There were aspects of that law reform that, as an opposition at the time, we did not agree with to which we moved amendments and the like. But at the end of the day, we have proposed a new model of sentencing and a complete new act in relation to sentencing law, which I should acknowledge had some support at the time from Mr Sulan QC, a former judge of the Supreme Court and chair of the then sentencing council. There has been a lot of work put into this, so on balance it was a good initiative. Sometimes you just need to do it, a bit like the education bill currently before us. You need to rewrite these things to make them contemporary and effective.

That is exactly what we worked on with the former government to do. Even the best people, even Mr Rau SC, get it wrong sometimes. But I cannot even really blame him. Clearly sometimes only by the implementation of a new law, especially when it is a new model, does it expose some of the weaknesses. Cases come before courts. Magistrates then find some inconsistency. Our state DPP raised some concerns as to the implementation of this new model. So we need to come back to the parliament and ask the parliament to remedy that, and that is what this bill is all about.

To suggest that the opposition in some way has been deprived of information about this matter I find galling. Nevertheless, the information has been conveyed. The offer of a briefing has been made. Now, at the very least, I have put on the record the full letter. As I said, I cannot offer to put on the full letter of their original request because they are tucked away in the John Rau SC records of the former attorney-general's department and are presumably on their way to somewhere out north to be put into storage forever.

If necessary, we could try to retrieve them or the member for Kaurna could ring up the former attorney and ask, 'Is this right? Is this what you got last year? A couple of letters apparently were sent to you.' He could authorise their being released and bring them out of storage as the former attorney-general if he wants to, if the member for Kaurna is in some way sceptical about either his word or the reliability of the independence of the Commonwealth Director of Public Prosecutions.

He may have those concerns, but we do not. We are satisfied that the events that have occurred in the development of this reform and the tidying up of the legislative amendments that are proposed were reasonable requests at the time, are still necessary and, except for one element, is sought to be progressed by the parliament today. Of course, if we need to go into committee then we are happy to do so.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: Did the Attorney-General, her department or her office send a copy of the draft bill to the Commonwealth DPP before its introduction into parliament?

The Hon. V.A. CHAPMAN: Yes.

Mr PICTON: On what date was that sent to the Commonwealth DPP?

The Hon. V.A. CHAPMAN: On 30 May this year.

Mr PICTON: What was the response that you had from the Commonwealth DPP at that time?

The Hon. V.A. CHAPMAN: Apparently there was a response in June. I am advised that apparently a copy of it was sent to our office. The adviser just told me that, and I think the bill was in order. They confirmed the request to proceed.

Mr PICTON: So no other comments? They just said 'proceed'?

The Hon. V.A. CHAPMAN: I do not know. I do not have the letter in front of me. I am indicating that I am advised by the senior adviser from the Attorney-General's Department that a letter was received. It was dated 21 June 2018—my birthday; you should remember that next year—confirming the request to proceed. It seems consistent with that because I also received a letter from the Hon. Chris Kourakis, Chief Justice of the Supreme Court of South Australia, dated 5 June, received on 7 June. He confirmed that he had no comments to make in respect of the proposed amendments, so everyone is ticking off on it except the opposition.

The CHAIR: Member for Kaurna, we are still on clause 1. You have had three questions and a supplementary so far. This is your last one.

Mr PICTON: Thank you, Chair. So everyone has ticked off on it except the Commonwealth DPP, I think the Attorney meant to say.

The Hon. V.A. CHAPMAN: No, they did. They accepted it.

Mr PICTON: No, they wrote to you and said they did not like it.

The Hon. V.A. CHAPMAN: For the record, as at 21 June 2018, the commonwealth, having received the bill, confirmed their request to proceed with the amendment. The letter I have read out today in response was dated 11 October 2018. I am sure the member for Kaurna was listening intently. It not only sets out their opinion but, obviously, cases that have been progressed in jurisdictions which related to these matters.

Mr PICTON: Will the Attorney-General either table or provide to the opposition between the houses the three pieces of correspondence from the DPP that she has referred to today—one that she said was from last year, one from the middle of this year and one from the last couple of weeks?

The Hon. V.A. CHAPMAN: I am advised—and I think that this is alright—that there are actually four. I will be clear about this. I mentioned a letter that we just received dated 11 October. We will see that a clean copy of what I have read out will be made available. That refers to two letters from last year, dated 7 July 2017 and 26 October 2017.

Originally, there were two letters requesting that this be done. There was a letter dated 21 June confirming the progress, and then there is this final letter. I do not think there is any impediment to providing that once I have a copy of the two 2017 letters. They were addressed to the former attorney-general so, subject to any advice I might have received saying that I am not allowed to give them to you, they will be made available.

Mr PICTON: You already have them.

The Hon. V.A. CHAPMAN: No, I do not have them here at all. I have since made the point that we acted on this without them. Apparently, they are on their way. You are asking me whether I will table them between the houses. I am advised that I can, so a copy of all four will be made available as soon as practicable.

Clause passed.

Clause 2.

Mr PICTON: I was wondering whether the Attorney-General can outline the urgency of debating this matter this week.

The Hon. V.A. CHAPMAN: The Sentencing Act 2017 is obviously over a year old. We have been alerted to the amendments that have raised some questions, largely in the minds of judges and I think the state DPP, whether there is a weakness—for example, in relation to the issue of recommendation to amend the terminology in a provision relating to sentencing reductions to ensure it is not interpreted in a way that allows a defendant to adjourn their arraignment hearing purely to preserve the maximum sentencing reduction.

In other words, the fact that someone might use the current law to seek to subvert the processes to achieve a higher discount that they should not otherwise be entitled to has been brought to our attention. We do not want people to get away with this or access things to which they are not entitled. We want this fixed up, and until this parliament says that is the case there is a risk that people will get away with it.

Secondly, another recommendation was clarification of the maximum length of a sentence of imprisonment applicable for an intensive corrections order. That clearly needs to be identified to ensure that we do not fall foul of it and end up with laws we cannot enforce. We need clarification of the application of the definition of 'intervention program manager' to be defined, and we also need to amend the reference to a 'case manager' to instead refer to a 'community corrections officer'.

These are in relation to the provisions relating to conditions that may be imposed on bonds. The wrong job description was put in the act. We need to clarify that so that again these things do not become the basis of an appeal for some QC who takes a technical point and is able to subvert the clear intent of the legislation. Clearly, we need to be able to remedy these things. There is also the deletion of an obsolete reference relating to the term of bonds. As I said, it is obsolete, so it is probably not going to offend anyone, but we are cleaning that up while we are there.

I will say this in order for members to appreciate the significance of progressing these things. We set out sentencing laws to give people a fair process so that they receive an appropriate sentence in a reasonable manner. If a weakness in this law is identified, there is a risk that a person might benefit, in an unscrupulous way, from something they are clearly not expected to access under the intent of this legislation. I submit to the parliament today that we cannot stand by and allow that weakness to prevail so that people get that unfair advantage.

That is why when the bright minds of prosecuting officers and courts come to us and say, 'In relation to the legislation you gave us last year, these are the weaknesses and the inconsistency here, or the error, or the apparent need of clarification, that expose us to being exploited,' then frankly, yes, we do have an obligation to sort these matters out. This legislation was introduced into the parliament on 5 September 2018. The opposition had two briefings on it.

Mr Picton interjecting:

The Hon. V.A. CHAPMAN: I am advised there were two separate briefings on the bill. There may have only been one at which the senior adviser here was present, but I am advised that there were two. It may have been that the member for Kaurna had a briefing and then someone else came along from the opposition and said that they wanted to ask some more questions, so we provided a second briefing.

Mr Picton: It is still the parliament.

The Hon. V.A. CHAPMAN: But, in any event, it is still the parliament, obviously. As I said before, we think it is reasonable for the parliament to be properly apprised. When we take a bit out, we do not expect some obtuse, juvenile behaviour of the opposition saying, 'Mummy, I can't do this because I haven't been told.' That is just not acceptable, for goodness sake.

Mr PICTON: Point of order.

The CHAIR: Attorney, there is a point of order, and I accept the point of order.

Mr PICTON: Point of order: I refer you to the mountain of times the Deputy Premier complained when she was in opposition.

The CHAIR: Thank you, member for Kaurna. I accept the point of order. Attorney, could you come back to your answer, which I think is coming to an end, is it not?

The Hon. V.A. CHAPMAN: I think so. If he wants me to refer to the mountain of times that I complained, I can very clearly recount to the parliament where we were expected, by the government of the day, to deal with matters expeditiously—

Mr PICTON: Point of order.

The CHAIR: There is a point of order, Attorney.

Mr PICTON: No-one invited the Deputy Premier to go on a rant about her time in opposition. We were merely asking a question about the bill. I ask her to be succinct in relation to the bill.

The CHAIR: I uphold the point of order. Attorney, have you finished?

The Hon. V.A. CHAPMAN: I have finished.

The CHAIR: We are still on clause 2. Member for Kaurna, do you have a second question?

Mr PICTON: No, let's move on.

Clause passed.

Clause 3 passed.

Clause 4.

Mr PICTON: Can the Attorney outline the genesis of this amendment; that is, who requested it and how the Attorney-General believes that this will clarify matters?

The Hon. V.A. CHAPMAN: I am advised that our understanding is it was the Courts Administration Authority, the agency that attends to the administration in relation to the courts, that advised us of this weakness. What is occurring by this proposed amendment is to delete the current definition of 'intervention program manager' and make it absolutely clear what their responsibility is in relation to different sections of the act because they are different, and that is why it is clarified in that way.

Mr PICTON: Is the response that the Attorney-General has had from the Courts Administration Authority, having sighted the bill, supportive of this change?

The Hon. V.A. CHAPMAN: I do not have a copy of any response from the CAA, but my understanding is that all the agencies as such were supportive of this. What I do have is the Chief Justice's letter, which I have referred to. I also have here, at the parliament, the Law Society's submission and the Legal Services Commission response. Apparently there was no response from Mr Ian Robertson SC, who was then the president of the SA Bar Association, and I do not have anything here from Ms Axleby, who is from Aboriginal Legal Rights, but I am told she also did not send a response back.

The judges of each of the relevant courts that deal with criminal matters obviously—the Magistrates Court, District Court and Supreme Court heads of jurisdiction—the Legal Services Commission, Law Society, Bar Association, ALRM, and then the Director of Public Prosecutions, Commissioner for Victims' Rights, and the assistant director of the Commonwealth Director of Public Prosecutions. I have just found a copy of the email of 21 June 2018, which shines out at me as being my birthday. I am happy to read that, but I have indicated that I am happy to provide a copy of it in any event.

The CHAIR: Thank you, Attorney, and your birthday is now in Hansard—congratulations. Member for Kaurna, do you have another question on clause 4?

Mr PICTON: Thank you, Chair. I assure her that I will not be providing any presents. I am happy to move on to clause 5.

Clause passed.

Clause 5.

Mr PICTON: In relation to clause 5, I understand that the issue is that there is a concern that the act, as currently drafted, potentially provides a stacking effect of discount for pleading guilty at a certain time. I wonder if the Attorney-General can clarify if that is the issue that this is trying to address, and how does this amendment address that?

The Hon. V.A. CHAPMAN: I thought I had made that clear before, but if I have not, yes is the answer to what you describe as a 'stacking' process to get access to sentencing. The redrafting basically prohibits the defendant from being able to adjourn their arraignment to get the benefit of that discounting.

Mr PICTON: Is there any evidence that this supposed loophole has been abused at all?

The Hon. V.A. CHAPMAN: I am not aware of any cases, but this in particular was an issue raised by the state Director of Public Prosecutions in his correspondence to me in relation to some of the weaknesses in the legislation. He may have thought that this was something that someone got away with; it might have even been inadvertently, but he clearly did not want it to be a practice that was going to be adopted as a means of circumventing the legislation to be able to still get discounting.

As the member may be aware, under the sentencing law up to 40 per cent discounting is available for an early guilty plea, and then it pares down according to the length of time after the initial arraignment that can be sought by counsel or the defendant and taken into account by the sentencing judge. In theory, this law is there to give some incentive to encourage people to enter a plea of guilty early to save the resources of the court. There is the difficulty for witnesses and problems for the victim, etc.

It is currently under review by Mr Brian Martin QC as a result of a review initiated by me, so it is an important area of the legal process. It is also one about which the public in recent times, not to mention historically, have expressed their considerable disquiet at people even getting access to the discounting. If there were cases starting to be applied for or manipulated to enable people to get further discounting when they do not deserve it, and they are going to manipulate the rules so that they get the benefit of something they should not have, then I imagine the public would be very angry. We on this side of the house want to make sure that this is fixed up before anyone attempts to exploit it, if they have not already.

Mr PICTON: The Attorney-General sometime then was beginning to answer my question and said that this was in relation to advice that she had from the DPP. Is she able to table that advice from the DPP or otherwise provide it to the opposition to consider between the houses?

The Hon. V.A. CHAPMAN: No. I think I have made this clear in previous bills, and I will repeat it again for the benefit of the member for Kaurna. In respect of our statutory officers and/or departmental advice that we receive, as a matter of course that is not available, and we would not make it available. We do not expect to have either advice, legal or otherwise, from within our department or from other departments to which it is relevant—for example, the Courts Administration Authority—unless we had their specific permission to do so or there was some merit in doing that.

In respect of judges writing to us, no, same thing. In respect of what we would call stakeholders in respect of the criminal law world—and they might be barristers, solicitors, legal service commissions, community legal commissions, Aboriginal Legal Rights Movement, the Law Council of Australia—these are all bodies of interested parties who present arguments to government in respect of draft bills. It is quite reasonable, I think, for any member of parliament to view these submissions, and most often they are available on the websites of the various associations or entities.

There may be a union, for example, because it might affect the workplace entitlements. These are all people who have a stake in the development or advancement or amendment of laws. I think that their views are important, and I think that all the members, if they are following these debates, should take the opportunity to inform themselves on them, speak to them if they wish to and be able to contribute to the debate here. So, no.

Clause passed.

Clause 6.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [DepPrem–1]—

Page 3, lines 22 to 27 [clause 6(3) and (4)]—Delete subclauses (3) and (4)

This amendment removes the reference to prescribed offences against the law of the commonwealth that was to be inserted in section 71(5). This amendment was initially proposed at the request of the commonwealth in order to clarify the availability of home detention orders for certain federal offences. It is now being withdrawn, again at the request of the commonwealth, on the grounds that it may be invalid due to inconsistency of a federal law.

Deletion of this provision from the bill does not mean that home detention will become available for those federal offences. The position will be that the court may only impose home detention where ‘under the law of the state or territory the court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases’. I refer to section 20AB of the Commonwealth Crimes Act.

Mr PICTON: I am wondering whether the Attorney-General can outline, in the past financial year, how many offences under the federal law were made in South Australia for offences in particular that were originally going to be covered by this section? When we did have a briefing, when this was going to be part of the legislation, there was some information being provided by the Attorney-General and her office in relation to what those offences were likely to be under the commonwealth offences.

They were quite a long list in terms of the number of issues, whether it be using a carriage service for child pornography material, aggravated use of a carriage service for child pornography material or using a carriage service to engage in sexual activity with a person under the age of 16. That is just a sample of some of the sexual offences, and then in relation to serious and organised crimes, there were issues such as traffic a commercial quantity of controlled drugs, manufacture commercial quantity of controlled drugs, import/export, border-controlled drugs and plants, etc.

There was a whole range of particularly drug offences, and also committing an offence for the benefit or at the direction of a criminal organisation. So, there was a wide range of offences. I wonder whether the Attorney can outline how many of them happened in the past year in South Australia.

The Hon. V.A. CHAPMAN: Unfortunately, I am advised that a request was made and that the information is not available. That is because the justice analytics does not currently have it and the courts do not have that information. So, in answer to your question, I cannot answer it, but it is fair to say that obviously we had not even reached the stage of identifying what the overlapping offences were going to be. That raises another question as to what was going to be in the regulations for that purpose.

Quite obviously, we are talking about the high end of serious and organised crime and the high end of sexual offences that need to be captured by this. Remember, the whole essence of this was to say, 'Whether you are being prosecuted under a state law in a state court or under a federal law in a state court, if a South Australian had done these really bad things, they would not get access to home detention as a sentencing option.' That is what we were trying to deal with here, at the time. As you know from the letter from the Commonwealth DPP, it could be frustrated by being unconstitutional and therefore invalid. Secondly, it is their view that it is already covered by the existing provisions that overlap with our Crimes Act application.

Mr PICTON: Could the Attorney-General clarify her answer. She referred to the fact that there had not even been thought given, in terms of—

The Hon. V.A. Chapman: Not thought given—they were not finalised.

Mr PICTON: I do not think that is what the Attorney-General said. She is now saying that they were not finalised. At the time, the opposition was provided with a list, which, as I said, was quite lengthy in terms of the number of offences under the Commonwealth Criminal Code that would fall under these sections. We were given it on the basis that these were being proposed to be included in the sentencing regulations. I wonder if she can clarify whether she and her office considered these, or whether that was incorrect and was not considered as the proposed list of offences.

The Hon. V.A. CHAPMAN: I cannot allow there to be some kind of mischievous interpretation of this, so I will try to be absolutely clear. The list of offences that this was going to apply to had been identified, as best could be worked out, for the purposes of the law that was foreshadowed here, but they are not in the act. They were going to be identified on a regulatory basis, so it is impossible for me to say that that is a complete list because, as the member well knows, we pass the statutes. Very often, we do not even start drafting the legislation until after—well, previous governments used to do this, and I used to be critical of it because I used to think that they should get off their backsides and actually get the drafts going.

Mr Picton: Yes, I remember.

The Hon. V.A. CHAPMAN: Anyway, you will be pleased to know that in this case they were getting going. You were given a list of what had been prepared at that stage, which identified, as best as could be at that stage, the offences that were intended to be captured in drug and sexual offences, and serious and organised crime, to ensure that people who are convicted of these offences are not going to get eligibility for home detention. You heard the words of the then victims of crime commissioner that I read out. He thoroughly endorsed that concept.

So everyone has ticked the same box about what should happen here and what these people should not be able to get. The brightest brains in the Commonwealth DPP have said, 'We don't want our endeavours to do this to fall foul by virtue of invalidity as an unconstitutional piece of state legislation. In any event, in withdrawing our invitation for you to do that, be alert to the fact that we consider that it's already covered.' I am comforted by that. I do not know why the member for Kaurna is not.

Mr PICTON: This is yet another proposition by the Attorney-General that I do not support. In any case, I am wondering, following the Attorney-General's receipt, in the last couple of weeks, of the letter from the Commonwealth DPP that she read out, whether there was any other analysis of the constitutional position of the state and of this legislation. That is, did she go to the Solicitor-General or did she go to any outside counsel to consider this matter, or is it just that the Attorney-General accepted the advice of the DPP and decided to withdraw the guts of this bill?

The Hon. V.A. CHAPMAN: To make the amendment that we are currently discussing, having received the correspondence last week, I am advised that the Crown Solicitor's Office reviewed that matter. I did not ask any other person to do that. I did not specifically ask the Solicitor-General to consider the matter. Sorry, I meant Legislative Services, not the Crown Solicitor's Office.

Legislative Services, of course, is the particular unit that attends to all these matters. I think you are familiar with who they are. As Attorney-General, I did not say, 'I don't accept this,' or, 'I don't accept your assessment of members of the Legislative Services that this is the better way to deal with it by acquiescing to their invitation.' I did not demand that the Solicitor-General come in and say, 'I need your opinion on constitutional law on this matter.' No, we did not do that. We were satisfied, based on the material that we had.

The CHAIR: I will allow one last question on this amendment, member for Kaurna.

Mr PICTON: You are very kind, Chair, as I have always said. In relation to that, given that there was no subsequent advice that the Attorney-General sought or received, other than her departmental officials looking at it—and this is something that we will pick up whenever we are deemed able to have that briefing between the houses—is the Attorney-General able to assure this house that, regarding the list of offences that her office has provided us, in terms of serious sexual offences, child pornography and the like, as well as serious and organised crime offences and, in particular, a large number of drug offences, none of those offences could possibly have home detention applied to them in South Australia without any change to the Sentencing Act?

The Hon. V.A. CHAPMAN: I think the process is important here because, as was alluded to in the Commonwealth DPP letter in respect of the corresponding case process that we would go through, the corresponding cases for the purpose of sentencing and home detention would be precluded in any event, which is what they are saying.

Essentially, instead of having a statutory bar, by virtue of this proposed amendment to the Sentencing Act, what would be required, I am advised, is that commonwealth prosecutors will need to make sentencing submissions in each individual case on how a commonwealth offence and state offence are similar to satisfy the court that they are a corresponding case; that is, while it may have been neater to have offences set out in the regulation as intended by the bill in an attempt to avoid this case-by-case approach, the same offences are expected to be precluded by operation of the existing provision in the Crimes Act in any event.

I just want to make two points. We could have listed them and then deemed them by statute to be corresponding cases and therefore no judge needs to be able to say, 'This commonwealth trafficking law is similar to the state trafficking law and we would be able to accept that.' But it is true that if the judge says, 'No, they are not corresponding cases in respect of these matters,' it is open to the sentencing judge to then deal with the commonwealth law sentencing as they would have. I am getting a nod from my adviser.

Mr PICTON: It is up to the judge.

The Hon. V.A. CHAPMAN: It is up to the judge to determine if it is a corresponding case and then, of course, the submissions would go to the judge if that is accepted, and he is she is bound to then comply with the statutory law which is there, which has been outlined neatly in the Commonwealth DPP's letter, which would require them to then take into account the state law for the purposes of sentencing. So the issue for determination by the judge is: is it a corresponding case? If it is, it is effectively automatic. Does that make sense?

Mr PICTON: Sort of.

The Hon. V.A. CHAPMAN: Thank you.

Mr PICTON: So you are happy?

The Hon. V.A. CHAPMAN: I am very happy.

Amendment carried; clause as amended passed.