Bills

Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Industry, Innovation and Science, Minister for Local Government, Minister for Veterans' Affairs) (15:44): I move:

That this bill be now read a second time.

I am pleased today to introduce the Statute Amendment (Attorney-General's Portfolio) Bill 2025. This bill makes various amendments to several acts committed to the Attorney-General. I commend the bill to the chamber and seek leave to have the remainder of my second reading speech and the explanation of clauses in Hansard without my reading them.

Leave granted.

Part 2 of the Bill amends the Bail Act 1985 to ensure that electronic monitoring services, for people who are fitted with an electronic device as a condition of bail, must be provided by:

a public sector agency within the meaning of the Public Sector Act 2009;or

an entity acting pursuant to a contract for services approved by the Chief Executive Officer (i.e. the Chief Executive of the Department for Correctional Services).

These amendments seek to respond to concerns that have been raised about the regulation and oversight of private bail monitoring services following the recent collapse of BailSafe Australia and the implications of this within Victoria and New South Wales.

BailSafe Australia is a private company that provides electronic monitoring services using GPS devices to track people who are fitted with an electronic device as a condition of bail. While it is a standing practice in Victoria and New South Wales for persons seeking bail to be monitored by a private provider, BailSafe Australia did not alert Victorian or New South Wales authorities of its collapse.

In response to these concerns, New South Wales has recently enacted legislation to ensure that private electronic monitoring bail conditions can no longer be imposed. Victoria has also announced that it will end the use of private entities for electronic monitoring of people on bail.

Unlike Victoria and NSW, it is not an established practice in South Australia for private entities to provide electronic monitoring services to people who are on bail. In South Australia, all electronic bail monitoring services are currently provided by public sector agencies. Accordingly, there are currently no private entities providing these services in the State.

Notwithstanding, the proposed amendments to the Bail Act will assist to safeguard against any potential future risk of a similar situation occurring in South Australia by ensuring that electronic monitoring services cannot be provided by a private entity without the approval of the Chief Executive of the Department for Correctional Services.

Part 3 of the Bill amends section 16 of the District Court Act 1991 to ensure that a person who resigns from judicial office, or who resigns from their term of appointment, may continue to act in the relevant judicial office for the purpose of completing the hearing and determination of any proceedings that were part-heard before their resignation.

Unlike section 13A(3) of the Supreme Court Act 1935, there is currently no power for a Judge or Associate Judge of the District Court to continue to act for the purpose of completing the hearing and determination of proceedings that were part-heard before their resignation from judicial office. The proposed amendments in the Bill will ensure that these judicial officers can complete any proceedings that were part-heard before their retirement or resignation, as the case may be.

Part 4 of the Bill amends section 57 of the Legal Practitioners Act 1981 to allow for the Attorney-General to delegate their functions and powers in relation to the authorisation of payments from the Legal Practitioners Fidelity Fund (Fidelity Fund).

The primary purpose of the Fidelity Fund is to provide compensation to people who suffer financial loss arising from an act or omission that involves dishonesty and results in a default of a law practice.

Section 57(5) of the Legal Practitioners Actprovides that no payment may be made from the Fidelity Fund without the express authorisation of the Attorney-General.

Subject to authorisation, money in the Fidelity Fund may be applied for any of the specified purposes listed in section 57(4) of the Legal Practitioners Act.

There is currently no power for the Attorney-General to delegate their powers and functions under section 57(5), even though there may be situations where it may be appropriate for this to occur.

Accordingly, the Bill amends the Legal Practitioners Act to insert an express delegation power, similar to the delegation power that applies in relation to the Legal Profession Conduct Commissioner in section 77, to enable the Attorney-General to delegate their functions and powers to authorise payments from the Fidelity Fund.

A number of safeguards have been included to ensure that any delegation that might be made is subject to appropriate oversight. This includes a requirement for any delegation to be in writing and that any delegation can be revoked at will. There is also flexibility so that a delegation can be made on an absolute or conditional basis, for example, so that a delegate can only authorise payments of a certain kind or up to a certain monetary amount.

Part 5 of the Bill inserts new section 19A into the Legislation Interpretation Act2021 to provide that an amending Act or instrument is to be construed as part of the amended Act or instrument.

The amendments are intended to provide certainty regarding the validity of the 'listing technique', which is a common drafting method used by Parliamentary Counsel to give effect to declarations and designations made under relevant legislation.

The validity of the listing technique was considered by the Federal Court of Australia in Deripraska v Minister for Foreign Affairs [2024] FCA 52. In that case, the Federal Court affirmed the validity of the listing technique and noted that it is a common and useful drafting technique.

In confirming the validity of the technique, the Federal Court relied upon the operation of section 11B(1) of the Commonwealth Acts Interpretation Act 1901, which provides that 'every Act amending another Act must be construed with the other Act as part of the other Act'.

There is currently no equivalent provision in South Australia. Accordingly, the Bill amends the Legislation Interpretation to insert a new provision, modelled on s 11B(1) of the Commonwealth Acts Interpretation Act, to ensure that an amending Act or instrument is to be construed as part the amended Act or instrument.

Part 6 of the Bill proposes to repeal the offence in section 35 of the Summary Offences Act 1953, which restricts certain newspaper reports on descriptive material or legal proceedings relating to sexual immorality, unnatural vice or indecent material.

The original version of this offence was enacted in 1929 under the repealed Indecent Reports (Restriction) Act 1928. The offence was then later consolidated into the former Police Offences Act 1953, which is now known as the Summary Offences Act 1953.

It appears that the purpose of the original offence was to protect the public from material which, at the time, was considered to be capable of corrupting public morals due to its obscene or immoral nature. In particular, Parliamentary debate from the time suggests that that the offence was historically intended to restrict newspaper reports on activities of an illicit sexual nature, such as homosexuality and sexual relationships outside of marriage.

South Australia and Victoria are the only two jurisdictions to retain an offence of this kind. All other jurisdictions, including South Australia, have laws which restrict the reporting and publishing of certain material in connection with legal proceedings more broadly.

In South Australia, Part 8 of the Evidence Act 1929 contains a number of offences which restrict reporting on legal proceedings, including offences that restrict reports relating to sexual cases as well as media reporting on the outcome of criminal proceedings generally. These offences carry significant financial penalties of up to $10,000 in the case of an individual and $120,000 for a body corporate. In addition, section 33 of the Summary Offences Act 1953 makes it an offence to produce, sell or exhibit indecent or offensive material.

Given the existing restrictions that already apply to certain reports on sexual cases and legal proceedings, the Government considers it appropriate to repeal the historical offence in section 35 of the Summary Offences Act 1953.

Part 7 of the Bill amends section 31 of the Surrogacy Act 2019 to postpone the requirement to undertake a statutory review of the Act by a further two years so that it must be completed by the eighth anniversary of the commencement of the Act—i.e. 1 September 2028.

The Surrogacy Act commenced operation on 1 September 2020. It repealed Part 2B of the Family Relationships Act 1975 and created a standalone Act to recognise and regulate certain forms of surrogacy in South Australia.

Section 31 of the Surrogacy Act requires the Minister to cause a review of the operation of the Act to be conducted and submitted after the fifth, but before the sixth, anniversary of the Act (i.e. between 1 September 2025 and 1 September 2026).

The Australian Law Reform Commission (ALRC) is currently undertaking an inquiry into surrogacy and is due to report to the Commonwealth Government by 29 July 2026.

As part of its terms of reference, the ALRC has been asked to identify reforms, including proposals for uniform or complementary Commonwealth, State and Territory laws, that:

are consistent with Australia's obligations under international law and conventions; and

protect and promote the human rights of children born as a result of surrogacy arrangements, surrogates and intending parents, noting that the best interests of children are paramount.

It is anticipated that the South Australian statutory review will likely canvass similar issues and engage similar stakeholders to the ALRC inquiry.

Given this, the Bill proposes to delay the requirement to conduct the statutory review of the Surrogacy Actfor a further two years so that it must be completed by 1 September 2028. This will ensure that any reforms that are proposed by the ALRC to improve the operation of surrogacy laws in South Australia can be taken into consideration as part of the South Australian statutory review.

Parts 8 and 9 of the Bill amend the Terrorism (Police Powers) Act 2005 and the Terrorism (Preventative Detention) Act 2005 to delay the effect of the expiry and sunset provisions in those Acts by a further 10 years, i.e. until 8 December 2035.

The Terrorism (Police Powers) Act provides authority for police officers to prevent and investigate terrorist acts. The Terrorism (Preventative Detention) Act provides authority for the temporary detention of terror suspects in order to prevent the occurrence of a terrorist act, or to preserve evidence of, or relating to, a recent terrorist act.

Without legislative amendment to extend the operation of these Acts, the Terrorism (Police Powers) Act will expire, and the operative parts of the Terrorism (Preventative Detention) Act will cease to operate, on 8 December 2025.

The extension of these Acts will ensure that South Australia can continue to use the powers provided for in those Acts to prevent and respond to potential terrorist acts and to keep our community safe.

Mr Speaker, that concludes the matters that are the subject of this Bill. I commend the Bill to the chamber.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Bail Act 1985

3—Amendment of section 3—Interpretation

This section amends the definition of Chief Executive Officer in section 3 of the principal Act to align with changes to the terminology in the Correctional Services Act 1982.

4—Insertion of section 11AA

New section 11AA is inserted into the principal Act as follows:

11AA—Certain electronic monitoring must be conducted by public sector agency etc

The proposed section provides that, if a grant of bail is made subject to a condition requiring the applicant to be fitted with a device for the purpose of monitoring compliance with the bail agreement, any electronic monitoring services in respect of the device must be provided by a public sector agency, or by an entity acting pursuant to a contract for services approved by the Chief Executive Officer for the purposes of the section.

Part 3—Amendment of District Court Act 1991

5—Amendment of section 16—Retirement of members of judiciary

This clause amends section 16 of the principal Act to allow a person who resigns from judicial office to continue to act in the relevant office for the purpose of completing the hearing and determination of proceedings part-heard before their resignation.

Part 4—Amendment of Legal Practitioners Act 1981

6—Amendment of section 57—Fidelity Fund

This clause amends section 57 of the principal Act to empower the Attorney-General to delegate their functions and powers under the section to a person, including a person performing particular duties or holding or acting in a particular position.

Part 5—Amendment of Legislation Interpretation Act 2021

7—Insertion of section 19A

New section 19A is inserted into the principal Act as follows:

19A—Amending Act or instrument to be construed as part of amended Act or instrument

The proposed section provides that an amending Act or legislative instrument must be construed with the Act or legislative instrument it amends as part of that amended Act or instrument.

Part 6—Amendment of Summary Offences Act 1953

8—Repeal of section 35

This clause deletes section 35 of the principal Act.

Part 7—Amendment of Surrogacy Act 2019

9—Amendment of section 31—Review of Act

This clause amends section 31 of the principal Act to require a review of the operation of the Act to be completed after the seventh, but before the eighth, anniversary of its commencement (rather than after the fifth, but before the sixth, anniversary).

Part 8—Amendment of Terrorism (Police Powers) Act 2005

10—Amendment of section 31—Expiry of Act

This clause amends section 31 of the principal Act to provide for expiry of the Act on the thirtieth anniversary of its commencement (rather than the twentieth anniversary).

Part 9—Amendment of Terrorism (Preventative Detention) Act 2005

11—Amendment of section 52—Sunset provision

This clause amends section 52 of the principal Act to prevent the continued operation of, or making of, preventative detention orders and prohibited contact orders at the end of 30 years after the commencement of the Act (rather than the current 20 years).

The DEPUTY SPEAKER: Member for Heysen, do you wish to adjourn the debate?

Mr TEAGUE (Heysen—Deputy Leader of the Opposition) (15:44): I think the bill is coming down from the LegCo, so I think we are continuing on—is my understanding.

The DEPUTY SPEAKER: Okay, go ahead.

Mr TEAGUE: Yes, and I commend the minister for taking the opportunity this time that he might have taken last time and saved us all a bit of time in the evening.

The Hon. J.K. Szakacs: The ball was in your court, Josh.

Mr TEAGUE: It is not, so much, because I do not have that privilege to seek leave to incorporate my remarks, but I certainly—

Members interjecting:

The DEPUTY SPEAKER: Order! Members, can I suggest we just stick to the subject matter of the bill?

Mr TEAGUE: The member for Elizabeth might not want to really embark on setting that precedent—but feel free. I appreciate that the bill has been introduced by the Attorney in another place, and that was the subject of debate not all that very long ago. I can indicate that I am the lead speaker for the opposition and, in making some brief remarks in the second reading stage, indicate the opposition's support for this 2025 portfolio bill. As the name suggests, the bill is amending several pieces of legislation within the Attorney's responsibility. Just for the sake of the house I will briefly walk through them.

There are amendments to the Bail Act that will require that electronic monitoring of a person on bail is undertaken by a public sector agency. That is standard practice, but this amendment, like some others that have perhaps been in a more broadly policy driven area in anticipation of certain trends that are going on interstate, is anticipatory rather than responsive to any particular concerns in this state. There has been the collapse of a private provider that operates in the eastern states—I think in Victoria and in New South Wales—which, as a result of their sudden closure, left those states in an invidious position. So those changes will just ensure the practice in South Australia remains that way.

Clause 5 of the bill is operating so as to ensure that a resigning judge can continue on to conclude cases to which they are assigned. That is going to have the effect of bringing the District Court Act in line with the relevant provisions of the Supreme Court Act. Clause 6 is about providing for the Attorney-General to be able to delegate authority to make payments from the Fidelity Fund. Clause 7 is going to make a change to the Legislation Interpretation Act that is responsive to some recent authority in the Federal Court, the case of Deripaska v Minister for Foreign Affairs, that is making its way through the appellate process.

I note that, as I was most recently advised, the High Court has granted special leave to Deripaska to appeal against a decision of the Full Court of the Federal Court. That litigation is not complete, but the matter of legislative interpretation that it raised at the first instance is nothing so far as the matters before the High Court are going to turn on the matter that is the subject of clause 7. That litigation has thrown up the issue, but even while it is continuing, that matter, so far as legislative interpretation is concerned, can be dealt with.

Clause 8 is dealing with a historical matter in the Summary Offences Act that is restricting certain newspaper reporting. That is in the category of obsolescence and in circumstances where there is a whole suite of law that is dealing with restrictions, suppression and otherwise in relation to reporting. Clause 9 is extending the mandatory review period of the Surrogacy Act. That is to align with the current Australian Law Reform Commission national inquiry into surrogacy.

Finally, clauses 10 and 11 extend the length of sunset clauses for the two terrorism acts from 2005, the police powers act and the preventative detention act respectively. Both of those acts would cease to operate 20 years after their commencement, and that is later this year. These amendments are going to extend that period for an additional 10 years to 2035.

The combination of the government's speech and hopefully that outline on the record will certainly at least, I hope, explain why the bill is titled as it is and addresses those several matters supported by the opposition. I commend the bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Industry, Innovation and Science, Minister for Local Government, Minister for Veterans' Affairs) (15:53): I thank the member for his contribution and commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

The Hon. J.K. SZAKACS: I move:

That clause 6, which is printed in erased type, be inserted in the bill.

Clause inserted.

Remaining clauses (7 to 11) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Industry, Innovation and Science, Minister for Local Government, Minister for Veterans' Affairs) (15:55): I move:

That this bill be now read a third time.

Bill read a third time and passed.