Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (20:44): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

From time to time minor errors, omissions and other technical deficiencies are identified in legislation that are more efficiently dealt with in a single omnibus Bill than in separate Bills for each Act. It is timely to now introduce an Attorney-General's Portfolio Bill.

There is a particular need to ensure that the Criminal Law (Forensic Procedures) Act 2007 keeps up with technical advances and forensic procedures. The Bill makes a number of technical amendments to the Criminal Law (Forensic Procedures) Act 2007.

The Bill amends s 3 and s 14 of the Criminal Law (Forensic Procedures) Act 2007 to remove the need for the authorisation of a senior police officer to recover gunshot or other chemical residue from a suspect's hands or fingers. The delay in seeking and obtaining the authorisation of a senior police officer to recover gunshot or other chemical residue from a suspect might allow such important evidence to be lost. This is a very limited measure. It is confined to taking gunshot or other residue from a suspect's hands or fingers without the authorisation of a senior police officer.

The Bill amends s 3 of the Criminal Law (Forensic Procedures) Act 2007 to modify the definition of an 'intrusive forensic procedure' to exclude oral rinsing.

The Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act 2015 amends the Criminal Law (Forensic Procedures) Act 2007 to require an offender who bites or spits at a police officer or other emergency worker to undertake a blood test at the discretion of a senior police officer in order to test for infectious diseases. The recent Act did not include Department of Correctional Services staff. The Bill amends s 20A of the Criminal Law (Forensic Procedures) Act 2007 to address this omission.

The Bill makes a minor amendment to s 41 of the Criminal Law (Forensic Procedures) Act 2007 to change the terminology used to refer to the national DNA database to be more generic. This will promote flexibility and practical effectiveness. It avoids the Act having to be updated each time there is a change to the terminology or operation of the national DNA database.

The Bill also amends s 41 of the Criminal Law (Forensic Procedures) Act 2007 to confirm and support South Australia's involvement through the Australian Federal Police in the Interpol DNA database and to gain access to this database. The issue of South Australia's 'direct' participation in the Interpol scheme is unclear under the current wording.

The Bill makes a minor amendment to s 42 of the Criminal Law (Forensic Procedures) Act 2007 to confirm the legality of the backup DNA database system used by Forensic Science SA (FSSA).

The Bill inserts a new s 50A into the Criminal Law (Forensic Procedures) Act 2007 to allow, with the approval of a 'prescribed authority', the regulated use and disclosure of DNA samples for legitimate scientific research and scientific methodology.

There is concern that the current Act does not permit the valuable development of forensic knowledge through scientific research using samples obtained under the Act and DNA profiles derived from such samples. As scientific rigour is the foundation of forensics and expert evidence, FSSA should be able to disclose forensic data (not being personal information) obtained under the Act to enable such worthwhile scientific research and scientific methodology to be undertaken.

A specific provision in the Act to enable the use and disclosure of that material for scientific research and methodology is needed. Such disclosure will be subject to strict safeguards. No personal information that could identify the source of the DNA material would be able to be released. The Bill provides for such exchanges to be approved by a 'prescribed authority' to be defined by regulation. It is proposed that this will be the Director of FSSA who will have in place a strict internal protocol consistent with that of Australian universities.

The Bill amends s 55 of the Criminal Law (Forensic Procedures) Act 2007 to clarify and simplify the procedure for police to take DNA samples from deceased persons.

The Bill amends s 55 of the Act to simplify the relevant procedures and to allow police to request the DNA testing of samples taken during post-mortem examinations (held by FSSA), including where the analysis would assist in the investigation of an offence or the identification of the deceased such as in a natural disaster.

The Bill makes a number of changes to replace the now outdated term 'mental disability' with the preferable term 'cognitive impairment' in the Criminal Law Consolidation Act 1935 and in s 29 of the Intervention Orders (Prevention of Abuse) Act 2009.

The Bill also amends s 29 of the Intervention Orders (Prevention of Abuse) Act 2009 to update the range of specific orders that can now be made by a court to assist a vulnerable party with a cognitive impairment in proceedings under the Intervention Orders (Prevention of Abuse) Act 2009. This accords with the expanded specific orders that are now available to assist vulnerable witnesses under the recent amendments to the Evidence Act 1929 made by the Statutes Amendment (Vulnerable Witnesses) Act 2015.

Section 106 of the Summary Procedure Act 1921 presently provides that a victim of a sexual offence or a child under the age of 12 years (to be increased to a child of or under 14 years when the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into force) cannot be required to provide evidence at a preliminary examination unless the court is satisfied that the interests of justice cannot be adequately served except by doing so. The Bill extends the procedure in s 106 of the Summary Procedure Act1921 to a witness with a cognitive impairment that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. This change is consequential to the recent changes in the Statutes Amendment (Vulnerable Witnesses) Act 2015.

The Bill makes further consequential amendments to the definition of a 'sexual offence' in the Child Sex Offenders Registration Act 2006, the Criminal Law Consolidation Act 1935, the Criminal Law (Sentencing) Act 2008 and the Summary Procedure Act 1921.

The Bill incorporates a recommendation from the former South Australian Ombudsman and amends s 75 of the Civil Liability Act 1936 to give full legal protection in any civil proceedings to any form of an apology. On 20 November 2014, the former Ombudsman provided a Report titled 'An Audit of State Government Agencies' complaint handling'. It was noted that the present s 75 is worded ambiguously as to the extent to which the Act intends to afford legal protection to those who express regret for the occurrence for an incident that may form the basis of civil proceedings in tort.

There is continued frustration from complainants to the Ombudsman that their original disputes with various agencies are usually unnecessarily lengthy, expensive and frequently result in avoidable emotional distress. Such incidents could have been more effectively and efficiently resolved by an apology or acknowledgement by the agency that an adverse event has occurred which has caused upset to the aggrieved party. Such a frank apology can also produce benefits in the context of wider civil litigation and reduce unnecessary lawsuits.

Recommendation number 4 in the South Australian Ombudsman's 2014 report provided:

'That the State government consider amendment to the Civil Liability Act 1936 to clarify that the provisions afford full legal protection to an apology made by any party. Ideally, legislation should specifically provide that an apology does not constitute an admission of liability, and will not be relevant to a determination of fault or liability in connection with civil liability of any kind. Furthermore, the amendment should state that evidence of such an apology is not admissible in court as evidence of fault or liability. In conjunction with this, agencies should also consider creating policies regarding apologies.'

Section 75 of the Civil Liability Act 1936 currently provides that: 'In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.'

The underlying policy of the present s 75 and the specific provision received bipartisan support when it was originally introduced. However, there is a strong view that the current section 75, despite its good intentions, as the 2014 report noted, is unduly limited in scope and also is not as clear as it should be.

The Bill implements the 2014 recommendation and gives full legal protection in any civil proceedings to any form of an apology made by a party.

The Bill applies whether or not the apology admits or implies an admission of fault in connection with the matter. The Bill makes it clear that an apology is not relevant to a determination of fault or liability in respect of civil liability of any kind. The Bill only expressly excludes defamation. Other forms of civil liability beyond defamation can be excluded by regulation.

The Bill amends s 353(4) of the Criminal Law Consolidation Act 1935 to simplify and clarify the power of the Court of Criminal Appeal to remit a case for re-sentence as noted by the Court of Criminal Appeal in R v Ainsworth [2008] SASC 68 and R v Kreutzer [2013] SASCFC 130. The Bill promotes judicial flexibility in this regard and will enable the Full Court to quash a sentence and remit a case for resentencing without having first to form the view that a different sentence should have been passed.

The Bill amends s 54 of the District Court Act 1991, s 51 of the Magistrates Court Act 1983 and s 131 of the Supreme Court Act 1935 to increase the protection given to sensitive or private records held by a court to require the parties in the proceedings to be informed and given the opportunity to be heard upon a third party seeking access to such material.

Section 54 of the District Court Act 1991, s 51 of the Magistrates Court Act 1983 and s 131 of the Supreme Court Act 1935 provide a procedure for a third party to the proceedings in a criminal case with the consent of the court to gain access to private or sensitive material not in the public domain held by a court. Though in practice they tend to do so, there is no current requirement for the court to give notice of an application by a third party to the parties in the proceedings, namely the prosecution and the defence and to allow the parties to be heard on an application.

It is of concern that a court might grant access to private material to a third party, including the press, without notifying the parties in the proceedings of any such application and giving the parties an opportunity to be heard on an application. This amendment also supports the recent amendments in the Statutes Amendment (Vulnerable Witnesses) Act 2015 to strengthen the protection given to sensitive material involving vulnerable witnesses.

The Bill makes amendments to Part 13A of the Electoral Act1985 to:

exclude electorate allowances paid to Members of Parliament under s 6A(1) of the Parliamentary Remuneration Act 1990 from the definition of 'political expenditure' in s 130A of the Electoral Act 1985. This will mean that expenditure from the Global Allowance will not be political expenditure within the meaning of Part 13A; and

change the donation disclosure threshold for donors to political parties, associated entities and third parties to $5,000 (indexed) per financial year. This will make it consistent with the donation disclosure threshold for political parties, associated entities and third parties which receive donations.

The Bill addresses an unintended omission in the recent Statutes Amendment (Vulnerable Witnesses) Act 2015. The Bill amends the Summary Offences Act1953 to provide that the new procedure for the audio visual accounts of vulnerable victims or witnesses (namely children of or under 14 years of age or persons with a cognitive impairment) to be used as a substitute for the witness's examination in chief at trial applies to cases of murder, manslaughter, the offence under s 14 of the Criminal Law Consolidation Act 1935 of criminal neglect where a or a dies or suffers as a result of an act and the offence of intentionally or recklessly causing harm under s 24 of the Criminal Law Consolidation Act 1935.

The Bill provides a definition of 'complex communication needs' for when a vulnerable party will be entitled to communication assistance (if reasonably available) in a court context. There will be a supplementary provision included in the forthcoming Regulations for a consistent definition of 'complex communication needs' for when a suspect, witness or victim with complex communication needs is similarly entitled to a communication partner (if reasonably available) for outside court. All parties, whether working in or out of court, will be assisted in approaching the Statutes Amendment (Vulnerable Witnesses) Act 2015 with an explicit definition of 'complex communication needs'.

A 'complex communication need' in the Bill refers to an impairment that significantly affects a person's ability to communicate. It may due to various causes. It is wider than a cognitive impairment or an intellectual disability but it is not so wide or expansive as to render both the concept of 'complex communication needs' and the communication partner role unworkable. It is not a mere communication need. For example, a mild stutter, would not amount to a 'complex' communication need. It is not due to language alone as this falls within the linked but the quite distinct and separate role in s 14 of the Evidence Act1929 of a language interpreter.

The Bill clarifies the transitional arrangements for the commencement of the Statutes Amendment (Vulnerable Witnesses) Act 2015 in respect of all offences and it especially clearly provides for the continued admissibility and use of the audio visual interviews conducted with vulnerable victims of sexual offences under the old s 34CA of the Evidence Act 1929 after the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into operation. The Bill makes it clear that these interviews remain admissible after the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into operation and will be subject to the new statutory criteria and admissibility will be at the discretion of the court.

The Bill amends the Jurors Act 1927 to remove the current maximum age of a juror of 70 and to allow any person to automatically opt out of jury service if summoned after attaining 70 years of age.

In South Australia, a person aged 70 years or more is presently not eligible to serve as a juror.

Many Australian jurisdictions have a system of voluntary excuse which recognises that while a person who has reached a certain age may not be willing or able to serve as a juror and should on that basis be excused if they so indicate, the person should not be automatically deprived of the opportunity to serve as a juror if that is their choice. These jurisdictions also allow them to claim exemption from jury service as of right. In each of these jurisdictions, the exemption must be claimed in writing to the relevant authority and on receipt of such written claim (and subsequent verification of age) a person is automatically excused from any future jury service. New South Wales, the Australian Capital Territory, the Northern Territory and Tasmania allow a person over a particular age (between 60 and 70 years) to opt out of jury duty. The Bill draws on these models.

Persons over the age of 70 who choose not to opt out of jury service, may still if summoned, also apply to be excused for good cause because of illness, mental or physical incapacity (including mobility, hearing or vision impairment) or undue hardship.

The Bill amends the Subordinate Legislation Act 1978 dealing with the expiry of regulations to exclude prescribed National law scheme regulations by allowing the prescribing of a list of excluded regulations by regulation under the Act. This amendment will promote practical and drafting efficiency.

The Bill makes various technical amendments to the Summary Offences Act 1953 to update the various references to the now outdated term 'video tape' with the more modern concept of an audio visual recording.

The Bill amends clause 37, Schedule 1 of the Intervention Orders (Prevention of Abuse) Act 2009 to resolve a transitional issue and make it clear that an intervention order continued in force under this clause, that includes a term fixing an expiry date, will expire on that date unless the court has varied the order prior to that date to make the order ongoing.

The Bill finally contains a clause to clarify the operation of the recent Youth Justice Administration Act2016.

Clause 33 of the Bill is an amendment to section 79A of the Summary Offences Act 1953 consequential to the passage of the Youth Justice Administration Act 2016.

Clause 33 is in the same terms as the relevant clause in the Youth Justice Administration Act2016. By way of background, the amendment was, and is, part of a series of amendments consequential to the commencement of the Youth Justice Administration Act2016 which, broadly speaking, transfers powers and responsibilities undertaken by the Minister and Chief Executive within the meaning of the Family and Community Services Act 1972, to the Minister and Chief Executive within the meaning of the Youth Justice Administration Act 2016.

Clause 33 of the Bill, as clause 2(7) of the Bill provides, will not come into operation before Schedule 1 of the Youth Justice Administration Act2016 is proclaimed. So, this commencement clause has the effect that:

if Schedule 1 of the Youth Justice Administration Act2016 is proclaimed prior to this Portfolio Bill receiving Royal Assent, section 33 will commence on Assent;

if Schedule 1 of the Youth Justice Administration Act 2016 has not been proclaimed when this Portfolio Bill receives Royal Assent, then section 33 will not commence until that proclamation of the Youth Justice Administration Act 2016 (specifically, Schedule 1) occurs.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Child Sex Offenders Registration Act 2006

4—Amendment of Schedule 1—Class 1 and 2 offences

This clause amends Schedule 1 to—

(a) include in the definition of sexual offence an offence against section 51 of the Criminal Law Consolidation Act 1935 (sexual exploitation of person with a cognitive impairment); and

(b) define an offence against section 51 of the Criminal Law Consolidation Act 1935 (sexual exploitation of person with a cognitive impairment) involving sexual intercourse if the victim was a child as a Class 1 offence; and

(c) an offence against section 51 of the Criminal Law Consolidation Act 1935 (sexual exploitation of person with a cognitive impairment) involving indecent contact if the victim was a child as a Class 2 offence.

Part 3—Amendment of Civil Liability Act 1936

5—Substitution of Part 9 Division 12

This clause repeals Part 9 Division 12 and substitutes a new Division 12 containing section 75 which provides that an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person does not constitute an express or implied admission of fault or liability by the person in connection with that matter and is not relevant to the determination of fault or liability in connection with that matter. The new section further provides that such an apology is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

New section 75 will not apply in relation to the tort of defamation or in relation to civil liability of a kind that is excluded by regulation.

Part 4—Amendment of Criminal Law Consolidation Act 1935

6—Amendment of section 5AA—Aggravated offences

This clause amends section 5AA to include a definition of cognitive impairment and substitute that term for 'mental disability'. Cognitive impairment is defined to include:

(a)a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);(b)an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);(c)a mental illness.

7—Amendment of section 14—Criminal liability for neglect where death or serious harm results from unlawful act

This clause amends section 14 to include a definition of cognitive impairment and substitute that term for 'mental disability'. Cognitive impairment is defined to include:

(a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

(b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);

(c) a mental illness.

8—Amendment of section 278—Joinder of charges

This clause amends section 278 to include an offence against section 51 of the Criminal Law Consolidation Act 1935 (sexual exploitation of person with a cognitive impairment) in the definition of sexual offence for the purposes of the section.

9—Amendment of section 353—Determination of appeals in ordinary cases

This clause amends section 353 to change the test for the Full Court, on an appeal against sentence, to quash the sentence and either substitute another sentence or to remit the matter to the court of trial for re-sentencing. Currently, the Full Court is required to think that a different sentence should have been passed. The new test proposed in this clause is that Full Court thinks that the sentence is affected by error such that the defendant should be re-sentenced.

Part 5—Amendment of Criminal Law (Forensic Procedures) Act 2007

10—Amendment of section 3—Interpretation

This clause amends section 3 as follows:

(a) a definition of gun shot residue procedure is inserted meaning a forensic procedure consisting of the taking of samples by swab or other similar means of the hands and fingers of a person for the purposes of determining the presence of gun shot residue;

(b) for the purposes of the definition of intrusive forensic procedure, reference to a forensic procedure involving intrusion into a person's mouth is deleted and substituted with a reference to the taking of a dental impression;

(c) a definition of simple forensic procedure is inserted meaning a forensic procedure consisting of a simple identity procedure, a gun shot residue procedure or a forensic procedure prescribed by regulation for the purposes of this definition.

11—Amendment of section 14—Suspects procedures

This clause amends section 14 to substitute the reference to a simple identity procedure with reference to a simple forensic procedure. This clause proposes that simple forensic procedure may be carried out on a person suspected of a serious offence.

12—Amendment of section 20A—Interpretation

This clause amends section 20A to include in the definition of prescribed employment for that section, employment as an officer or 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.

Section 20A is to be inserted into the principal Act on commencement of the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act 2015 at which time it is proposed that this clause commence (see clause 2).

13—Amendment of section 41—Commissioner may maintain DNA database system

This clause amends section 41 to substitute a general reference to a national database in the place of references to the NCIDD (the database that is known as the National Criminal Investigation DNA Database and that is managed by the Commonwealth).

This clause also amends section 41 to permit the Minister to enter into an arrangement under the section for the transmission of information recorded in the DNA database system for an additional purpose of any other thing required or authorised to be done under the corresponding law or otherwise authorised by law.

14—Amendment of section 42—Storage of information on DNA database system

This clause amends section 42 to insert a new paragraph permitting the storage of a DNA profile of a database in accordance with directions of the Commissioner of Police for the sole purpose of preserving a backup copy of the DNA profile.

15—Insertion of section 50A

This clause inserts a new section 50A to allow a person authorised by regulation to authorise the release, disclosure and use of forensic material and information obtained under this Act for the validation or development of forensic methodologies and the furtherance of forensic research and methodologies. This will not apply to forensic material or information obtained by carrying out a volunteers and victims procedure if the DNA profile of that person is contained only on a volunteers (limited purposes) index.

Forensic material and information released, disclosed or used under the section may only be released, disclosed or used in a manner such that it is not possible to identify the person from whom the material or information was obtained or to whom the material or information relates.

16—Amendment of section 55—Power to require forensic procedure on deceased person

This clause amends section 55 to broaden the circumstances in which a senior police officer may authorise the carrying out of a forensic procedure on a deceased person. The clause provides that the officer may authorise the procedure if satisfied that the evidence obtained from the carrying out of the procedure is likely to assist in the investigation of a serious offence or in the identification of the deceased person.

Part 6—Amendment of Criminal Law (Sentencing) Act 1988

17—Amendment of section 19A—Intervention orders may be issued on finding of guilt or sentencing

This clause amends section 19A to include in the definition of sexual offence an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935.

18—Amendment of section 33—Interpretation

This clause amends section 33 to include an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935 in the definition of sexual offence for the purposes of Part 3 Division 3.

Part 7—Amendment of District Court Act 1991

19—Amendment of section 54—Accessibility to Court records

This clause amends section 54 so that a member of the public who wishes to inspect or obtain certain material must apply to the Court for permission to inspect or obtain that material and, on such an application, both the applicant and any party to the proceedings are entitled to be heard in respect of the application.

Part 8—Amendment of Electoral Act 1985

20—Amendment of section 130A—Interpretation

This clause expands the definition of political expenditure in section 130A.

21—Amendment of section 130ZH—Gifts to relevant entities

This clause makes a number of minor technical amendments to section 130ZH.

Part 9—Amendment of Evidence Act 1929

22—Amendment of section 4—Interpretation

This clause amends section 4 to include a definition of complex communication needs.

Part 10—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

23—Amendment of section 3—Interpretation

This clause amends section 3 to include a definition of cognitive impairment which is defined to include:

(a)a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);(b)an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);(c)a mental illness.

24—Amendment of section 29—Special arrangements for evidence and cross-examination

This clause amends section 29 to add to the list of orders that may be made under this section. Firstly, the clause provides that extra allowance be made for breaks during, and time to be given for, the taking of evidence. Secondly, the clause updates reference to mental disability to cognitive impairment and, the case of a person with a cognitive impairment with complex communication needs, includes reference to communication assistance as may be specified by the Court under section 14A of the Evidence Act 1929.

25—Amendment of Schedule 1—Transitional provisions

This clause includes amendment of clause 37 in Schedule 1 for clarification of the operation of transitional provisions under that Schedule.

Part 11—Amendment of Juries Act 1927

26—Substitution of section 11

This clause substitutes section 11 to effectively delete paragraph (b) which makes persons above the age of 70 years ineligible for jury service.

27—Insertion of section 17

This clause inserts new section 17 to give persons above the age of 70 years a right of exemption from jury service. This right of exemption may be exercised on application to a judge or the Sheriff after summons for jury service.

Part 12—Amendment of Magistrates Court Act 1991

28—Amendment of section 51—Accessibility to Court records

This clause amends section 51 so that a member of the public who wishes to inspect or obtain certain material must apply to the Court for permission to inspect or obtain that material and, on such an application, both the applicant and any party to the proceedings are entitled to be heard in respect of the application.

Part 13—Amendment of Statutes Amendment (Vulnerable Witnesses) Act 2015

29—Amendment of Schedule 1—Transitional provision

This clause amends Schedule 1 to ensure that there are transitional arrangements in place in relation to the amendments to the Evidence Act 1929 provided in the Statutes Amendment Act.

Part 14—Amendment of Subordinate Legislation Act 1978

30—Amendment of section 16A—Regulations to which this Part applies

This clause amends section 16A to include regulations made pursuant to an agreement for uniform legislation between this State and the Commonwealth or other States or Territories of the Commonwealth and prescribed for the purposes of the section in the list of regulations to which Part 3A (Expiry of Regulations) of the principal Act does not apply.

Part 15—Amendment of Summary Offences Act 1953

31—Amendment of section 33—Indecent or offensive material

This clause amends section 33 to substitute a reference to video recording for the current reference to video tape.

32—Amendment of section 74EA—Application and interpretation

This clause amends section 74EA by adding to the list of offences in the definition of serious offence against the person.

33—Amendment of section 79A—Rights on arrest

This amendment is consequential to the Youth Justice Administration Act 2016.

34—Amendment of section 81—Power to search, examine and take particulars of persons

This clause amends section 81 to substitute references to audio visual recording and audio visual records for the current references to videotape and videotape recordings.

Part 16—Amendment of Summary Procedure Act 1921

35—Amendment of section 4—Interpretation

This clause amends section 4 to include a definition of cognitive impairment is defined to include:

(a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

(b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);

(c) a mental illness.

This clause also amends the definition of sexual offence to include an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935.

36—Amendment of section 99AAC—Child protection restraining orders

This clause amends section 99AAC to include in the definition of child sexual offence an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935 committed against or in relation to a child under 16 years of age.

37—Amendment of section 106—Taking of evidence at preliminary examination

This clause amends section 106 to provide that a the Court must not grant permission to call a person with a cognitive impairment, where that cognitive impairment adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions, as a witness for oral examination unless satisfied that the interests of justice cannot be adequately served except by doing so.

Part 17—Amendment of Supreme Court Act 1935

38—Amendment of section 131—Accessibility to court records

This clause amends section 131 so that a member of the public who wishes to inspect or obtain certain material must apply to the Court for permission to inspect or obtain that material and, on such an application, both the applicant and any party to the proceedings are entitled to be heard in respect of the application.

Debate adjourned on motion of Hon. J.S.L. Dawkins.