Bills

Criminal Law Consolidation (Foster Parents and Other Positions of Authority) Amendment Bill

Committee Stage

In committee.

Clause 1.

Ms STINSON: Attorney, when did the government first become aware of what I am going to refer to as the loophole, which is the essential matter that this bill tries to resolve?

The Hon. V.A. CHAPMAN: I will have to check the date; I am happy to get that. It was three months ago that we introduced the bill, in the latter part of November. My recollection is that the bill was introduced on 28 November, so it would have been shortly before that that we were advised of it. Obviously, we had to go through the process of approval, but we were advised of it.

I am happy to find out specifically which of the agencies brought it to our attention. My recollection is that it was Legislative Services, but we will try to find that out in the meantime. Having been alerted to the potential issue that could allow somebody to escape prosecution, we consulted with the Department for Child Protection, South Australia Police, the Director of Public Prosecutions, the Law Society of South Australia's, the SA Bar Association, the Guardian for Children and Young People and the Commissioner for Children and Young People. I am advised that the first advice came on 2 November 2018, which I think was 26 days before we brought it to parliament.

Ms STINSON: Just to clarify that, did you clarify on 2 November which agency gave you that advice? Was it Legislative Services or someone else?

The Hon. V.A. CHAPMAN: Parliamentary counsel.

Ms STINSON: Was that the agency that advised you, or did it come through some other agency?

The Hon. V.A. CHAPMAN: No, it came from parliamentary counsel to my office. Then somebody tells me about it and we then say it looks like a matter that is an oversight in the drafting they have done previously on this bill. This has the potential for an opportunity for a smart defence counsel to be able to say that this particular person is not within the definition of a person of authority and therefore this particular person escapes.

As I think I explained during the course of the second reading, primarily this relates to the change of definitional use and, accordingly, for the reasons we have explained, the reinsertion of the term 'foster-parent'. It is specifically having a definition to be an 'approved carer' and any other person under one of the acts so that we capture that and obviously also deal with the variety of personnel who may be in charge of children in a residential care facility.

Clause passed.

Clause 2.

Ms STINSON: In a previous answer, the Attorney mentioned a number of government agencies and statutory bodies that were consulted on this amendment bill. Were any non-government agencies consulted at all? If so, could she tell me who they are?

The Hon. V.A. CHAPMAN: Yes, I did indicate two that are not government agencies. For the education of the member, the Law Society of South Australia is not a government agency and the South Australian Bar Association is not a government agency. They were both consulted.

Ms STINSON: Is the Attorney aware of any cases that may take advantage of the loophole that this bill seeks to remedy?

The Hon. V.A. CHAPMAN: I have not been briefed on any pending cases about which the argument had been raised. It was put to me in the prospective; that is, there is a possibility that this could be a loophole rather than there being any pending cases.

Ms STINSON: To be clear, have you inquired about there being any cases that your agencies might be aware of at this point in time, or indeed agencies in other parts of government, this might affect?

The Hon. V.A. CHAPMAN: I cannot recall specifically on this case. Usually when a matter is brought to my attention, and sometimes it is with specific information about a case which is pending to which there may be application of the law that is proposed, it is brought to my attention.

In this instance, it is generally my practice, when somebody comes to me and says, 'We need to tidy up something. There is a bit of a loophole,' to make a general inquiry—that is, is there any reason why we need to deal with this expeditiously?—and ask whether it can be incorporated in one of these Attorney-General bills we have every now and again to mop up any small matters. Generally, I make inquiries as to whether there is any basis for the matter to be expeditiously processed, that is, through the process of government and the party process.

In this case, I do not recall specifically asking that question, but I also do not recall there being any reason to expedite it, other than the fact that the legislation had just come into effect in October a few days before we were alerted to it, so we did need to come back to the parliament to deal with it. It had just started to be operative. It was not fast-tracked, to the extent that it was put through as expeditiously as it would be without jumping over other matters.

Clause passed.

Clause 3.

Ms STINSON: Following on from the Attorney's previous answer in relation to parliamentary counsel providing advice about this, can the Attorney shed any light on how that came about? As she mentioned, the legislation came into effect on 22 October. I am interested in why it was not picked up until after the 22^nd and the sequence of events that might have detected the loophole.

The Hon. V.A. CHAPMAN: In short, no. When I was advised by the Office of Parliamentary Counsel of the identified potential deficiency, there was advice given on how they thought that could be remedied, which I can tell you is, in general terms, what is currently before us, and a general discussion about progressing that in the parliament. So, no, there is no identified indicator, other than to say that we identified a need to amend some provisions.

Ms STINSON: Could the Attorney take that on notice and find out how it came about? I know that sometimes these things are detected when the law is applied in a certain circumstance. I am interested in whether some sort of event happened that meant that people detected this, or whether it was part of, say, a regular review that people conduct of new acts. I would be interested to know if the Attorney would be happy to take that on notice.

The Hon. V.A. CHAPMAN: I am advised that it is probably because of the implementation, effective as of 22 October, which was really 10 days before, that the matter would have been viewed and of course reviewed in that sense. It would have been checked for the operation. I am advised that that is likely to be the reason that they then picked up this potential error.

Ms STINSON: I think that might be my three questions, but I have one final question, if you would indulge me.

The CHAIR: Yes, you can have another question.

Ms STINSON: Attorney, you obviously mentioned a number of government and non-government organisations that were consulted about this. Would you be able to produce those submissions?

The Hon. V.A. CHAPMAN: Consistent with practice that has been identified by the government, submissions received directly from agencies of the government are not released. The Law Society submission should be available online, if the member has not already viewed it, and similarly the Bar Association’s, both of which are accessible to the opposition.

Can I just say that, although there was an issue initially alerted to us from the Guardian for Children, it was a mistaken understanding of an aspect of the bill, which was remedied, but there has been no objection identified from these parties who made a submission. Whilst we do not as a practice give you those of the government agencies for obvious reasons (they are advising within government), I can indicate to you that there has been no objection to the passage of this bill.

Clause passed.

The CHAIR: Member for Badcoe, we have had general questions on general clauses.

Ms STINSON: I have no further questions, Chair, other than to thank the staff for staying back. I know they have been delayed quite a lot.

Remaining clauses (4 to 8) and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:06): I move:

That this bill be now read a third time.

Bill read a third time and passed.