Bills

Statutes Amendment (Attorney-General's Portfolio) Bill

Committee Stage

In committee.

Clauses 1 to 7 passed.

New clause 7A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 6, after line 15—After clause 7 insert:

7A—Insertion of section 62A

After section 62 insert:

62A—Attorney-General must consent to minor being charged with offence against this Division

(1) A minor may not be charged with an offence against any provision of this Division unless the Attorney-General consents to the prosecution by notice in writing.

(2) In this section—

minor means a person under the age of 18 years.

This amendment is proposed by the Liberal Party based on a submission provided to the Attorney-General by the Law Society of South Australia. It relates to another bill that is currently for consideration by the chamber, the Summary Offences (Filming and Sexting Offences) Amendment Bill. The Law Society suggested that there be an extra protection to ensure that young people were not unnecessarily charged with serious offences for activities that can impact their life thereafter due to a moment of foolishness.

The Hon. P. MALINAUSKAS: I rise to say that this amendment, which proposes to amend part 3, division 11A of the Criminal Law Consolidation Act 1935, containing the child exploitation material and related offences, is opposed.

First of all, these provisions are not being amended by the portfolio bill. The amendment seeks to provide that a person under the age of 18 years can only be charged with child exploitation material offences with the consent of the Attorney-General. This amendment is inspired by a submission of the Law Society on another bill. The Law Society argues that it is appropriate to require the consent of the Attorney-General to prosecute a person under the age of the 18 years with child exploitation material offences, as such offences are serious and can lead to registration on the child sex offenders register.

With respect to both the Law Society and the Hon. Andrew McLachlan, this amendment is misconceived and both unnecessary and undesirable. It is not for any Attorney-General to seek to interfere in the exercise of police and prosecutional direction, whether in relation to charging child exploitation offences, or other offences. It is simply not a role for the Attorney-General to get involved in charging decisions, and it is not clear what value this would add to the already independent and robust process of charging and prosecution.

There are also individuals under the age of 18 whose offending is of such a serious nature that they should be properly charged with the child exploitation material offence. Police should not be prohibited from charging a young person with child exploitation material offences, as was suggested by the honourable member in his explanation for the amendment. If the circumstances of the offending warrant such a charge, such serious cases would properly arise.

The criminal justice system relies upon the sensible exercise of discretion by police and prosecutors. There are already special considerations that apply in the prosecution of offenders aged under 18 years. It should also be emphasised that placement on the child sex offenders register in South Australia is purely discretionary for an individual under 18 years who is convicted of a child exploitation material offence.

There is nothing to indicate that the current system in South Australia is not working in respect of the decision to charge an offender with child exploitation material offences. This is a decision that can, and should be, wholly left to those whose proper roles it is to make those decisions—the prosecuting authorities. They have the expertise to decide such issues. It is unhelpful and unnecessary to seek to involve the Attorney-General or any minister in the exercise of such discretion. Further, it is arbitrary in nature. Why is it that the Attorney-General should be involved in prosecutional decision-making with respect to child exploitation material offences involving young people, but not in relation to murder or sexual assault? These offences also carry serious consequences.

This amendment also ignores the fact that the offence must be proved by the prosecuting authority before a court beyond reasonable doubt, which is surely yet a further check on the exercise of the prosecutional power. Prosecutors prosecute; politicians should not. The government opposes this amendment.

The Hon. M.C. PARNELL: The Greens do not take the technical point with which the minister started his contribution. This is an omnibus bill and, having opened up a range of issues, we don't object to the Liberals putting this so-called unrelated measure in. However, that does not mean we are going to support it, because I do agree with the minister and what he said in relation to the appropriate role of prosecuting authorities compared with the Attorney-General.

Issues of the separation of powers do arise. Where we do agree with the Liberals is that decisions to prosecute in cases such as this must be taken very carefully and have regard to all of the situation, all of the circumstances and any unintended consequences. But at the end of the day, that judgement call, we believe, should be made by prosecuting authorities. It should not be made by a politician, albeit the first law officer, so the Greens will not be supporting this amendment.

The Hon. J.A. DARLEY: I indicate that I will be opposing this amendment.

The Hon. D.G.E. HOOD: I think that means—we will be as well, is what I was trying to say. I think the amendment has merit, to be frank, but I am persuaded by the government's position to remove the Attorney-General from this process.

The Hon. A.L. McLACHLAN: Whilst we pursue the amendment, I see where the numbers lie so I will not be calling a division.

New clause negatived.

Clauses 8 to 18 passed.

Clause 19.

The Hon. A.L. McLACHLAN: The Liberal opposition opposes this clause and seeks to delete part 7. It is consistent with other amendments coming, Nos 4 and 5, which, consistent with my second reading speech, is to keep the existing provisions of the law regarding access to court materials as they are.

The Hon. P. MALINAUSKAS: Section 54 of the District Court Act 1991, section 52 of the Magistrates Court Act 1991 and section 131 of the Supreme Court Act 1935 presently draw a distinction between material in the court file that is of a public nature and material in the court file that has not and indeed may never enter the public domain. Such material can often be of a highly sensitive and personal nature.

The portfolio bill draws on the distinction and its effect is that the court will not need to contact the parties in the proceedings about a third party seeking access to material that has entered the public domain, but the bill proposes that the court will have to notify the parties in the proceedings about a third party seeking to access material in the court file that has not and may never enter the public domain. This will enable the parties in the proceedings to make submissions, if they wish, about whether inspection should be permitted.

The change was originally requested by the DPP and is supported by the Legal Services Commission and the Law Society. It is consistent with the recent changes in the Statutes Amendment (Vulnerable Witnesses) Act 2015, which strengthened the protection given to certain sensitive material in criminal cases involving vulnerable victims.

Since the introduction of this bill, the Attorney-General has discussed the issue with the DPP and the heads of jurisdiction who are working to resolve the concerns raised by the director. Given this, the government will not oppose these amendments.

The Hon. D.G.E. HOOD: It matters not, given where the numbers lie, but just for the record Family First had intended to support the amendment.

The Hon. M.C. PARNELL: Given the government is not opposing the amendment I will put on the record that the Greens' position on this was to listen intently to the debate and to be persuaded by the oratory of members participating, but we were leaning towards supporting the Liberal amendment; in other words, removing the three sections that relate to them. This one relates to the District Court, there is one relating to the Magistrates Court, and one to the Supreme Court.

I want to put on the record my acknowledgement of the submissions that were made to me: there were three. Unsurprisingly, there were two from media outlets. News Corporation and Free TV Australia saw the government's bill as an unwarranted barrier to their access to documents held by the judiciary, being an arm of government, and they encouraged us to oppose these sections and to support the Liberal amendment.

I also acknowledge the submission of the Law Society, and I think that their submission was probably driven a fair bit by their members' representation of defendants, who were the ones who, more than likely, were to be embarrassed by the disclosure of material on the court file. It is something we do not talk about often here, but it is something that is well known, and that is that part of the process of having a judiciary that is open to scrutiny by the public and by the media is that that can be in many ways part of the punishment, in many cases, in criminal proceedings, and courts actually will take into account adverse publicity that has already been received when they are imposing sentences.

The threshold question is whether we should make it harder for members of the public, in general, and the media in particular, to access material that has been presented in court. The Greens' position is that the case was not made for changing the status quo. It does not mean that we are hostile to any future attempts, but the government will need to do a lot more to convince us, rather than just presenting a bill. We have had the opportunity for briefings, but there has not been a great deal of evidence presented that warrants this change, so we are not proposing to support those clauses of the bill. The government has seen that not only do the numbers not lie their way but that insufficient debate has been had and it has not actually made its own case, therefore it is not vigorously defending its own bill.

The Hon. J.A. DARLEY: Thank you, Mr Chairman. For the record, I will be supporting the deletion of this clause.

Clause deleted.

Clauses 20 and 21 passed.

Clause 22.

The Hon. K.L. VINCENT: I have some comments and questions specifically in relation to the new definition of 'complex communication needs'. Complex communication needs is, of course, something that has been brought up by the vulnerable witnesses act, a piece of legislation in which Dignity for Disability has been very much involved and interested in through our work on the Disability Justice Plan. Certainly, we think it is very important that people with a variety of support needs have those needs met so they can tell their story in court.

For the record, just so that we are clear, I wonder if the minister could place some information on the record. I will ask the questions and then if he needs me to repeat any of them, I would be happy to do so. My questions are:

1. Why do we need a definition of 'complex communication needs', given that it was not clearly defined when the vulnerable witnesses act first passed this parliament?

2. What does the definition cover and not cover in a practical sense?

3. For example, would the use of Australian sign language or Auslan, because of deafness, be considered a complex communication need or would that be considered mere translation?

4. Where a person might need to use Auslan, or a method of sign language, for reasons other than deafness, for example, if they had maybe autism or a developmental issue, but something other than deafness, how is that defined? Would that be defined as a complex communication needs support?

The Hon. P. MALINAUSKAS: I am very grateful for these questions from the Hon. Kelly Vincent and highlight her close and helpful involvement in this very important area of law. In the original drafting of the Statutes Amendment (Vulnerable Witnesses) Act 2015, a decision was taken that the term 'complex communication needs' for when a vulnerable party is entitled to communication assistance, if reasonably available, should not be expressly defined in the act because of the complexity and subtlety of that term and what may or may not be covered by it.

It was thought a definition may be overly prescriptive about the infinite variety of conditions and situations that may amount to complex communication needs. This view was based in large part on the views expressed in the extensive consultation process, including with the disability sector. The Attorney-General's second reading speech sought to offer some assistance. The term should be wider than an intellectual disability or a cognitive impairment but should not be too expansive or broad as to unduly diminish the concept and its workability.

It was to be a complex communication need and not a mere communication need. For example, a mild stutter would not amount to a complex communication need. In the discussions with interested parties leading up to the intended implementation of the Statutes Amendment (Vulnerable Witnesses) Act 2015 on 1 July 2016, a different view has emerged. The Chief Judge and others stated that a court will be assisted in approaching its new powers and role under the act with at least some definition of complex communication needs. This will assist in working out what is a mere communication need and what is a complex communication need.

The Aboriginal Legal Rights Movement also flagged this point. South Australia Police highlight that they will be assisted in working out when to secure a communication partner for a vulnerable suspect, witness or victim with complex communication needs, if 'complex communication needs' is explicitly defined. This is especially as the requirement for SAPOL to notify a communication partner, if reasonably available, at a police station will be included in the forthcoming regulations to accompany the new act.

On further reflection, it was thought preferable that the term 'complex communication needs' be expressly defined in the Evidence Act 1929, with supplementary provision in the forthcoming regulations for a consistent definition in the context of outside court. The portfolio bill provides that for the purposes of the new Statutes Amendment (Vulnerable Witnesses) Act, a witness who is to give oral evidence in proceedings will be taken to have complex communication needs if the witness's ability to give the evidence is significantly affected by a difficulty to communicate effectively with the court, whether the communication is difficulty is temporary or permanent, and whether caused by disability, illness, injury or some other cause.

However, the witness who is to give oral evidence in proceedings whose native language is not English, will not be taken to have complex communication needs merely because the witness is not reasonably fluent in English. Although the witness may be entitled to give the evidence through an interpreter under section 14 of the Evidence Act 1929.

To provide some context, I have an example of a complex communication need. The term 'complex communication need' could cover a wide range of situations. I repeat: it is not and is not intended to be a prescriptive term. Communication involves speaking, hearing, listening, understanding, social skills, reading, writing, and using voice. People who have significant difficulty with any aspect of communication—for example, as a result of disability or age—could be considered to have complex communication needs.

Communication impairment can be related to a disabling condition or have no known cause. It could include a person with autism disorder who has limited verbal skills. Another example might be a person who is suffering the effects of foetal alcohol spectrum disorder. The mere fact that the person may not speak English would not amount to complex communication needs, but combining this with the effects of FASD could be. The term 'complex communication needs' would not include nervousness, excitability, a mild stutter or problems in communication due to intoxication through drink or drugs. It will have to be determined on a case-by-case basis. The impact of communication impairment can involve difficulties that can be temporary or last a lifetime.

Cognitive impairment definition: the term 'cognitive impairment' is already defined in section 5 of the Statutes Amendment (Vulnerable Witnesses) Act 2015. That definition draws on the extensive consultation undertaken as part of the Disability Justice Plan and the Statutes Amendment (Vulnerable Witnesses) Act 2015. The definition in the portfolio bill is identical to what is in the Statutes Amendment (Vulnerable Witnesses) Act. Both the Statutes Amendment (Vulnerable Witnesses) Act and the bill provide examples of what may amount to a cognitive impairment. The act and the bill explain that a cognitive impairment includes:

(a) a developmental disability (including, for example, 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.

It is recognised that comorbidity is particularly prevalent in prison populations and when cognitive impairment and mental ill health present together. Mental ill health is often linked to a diagnosis, most often by a psychiatrist, of a behavioural or mental pattern that may cause suffering or a poor ability to function in life. The presence of both a cognitive impairment and mental ill health would most likely impact functioning communication and a witness would be considered to have complex communicational needs.

What is the case for Auslan interpreters? Auslan is a recognised language and Auslan interpreters used in court could be accredited by the National Accreditation Authority for Translators and Interpreters. Qualified Auslan interpreters are used in court for deaf people and would also be used for clients who are deaf or blind. There is already a number of organisations who supply Auslan interpreters in court, including Deaf Can: Do. A communication partner does not have the skills or the training to do Auslan interpreting. To become fluent in Auslan would take about two years and approximately three to six years to become an interpreter. Auslan would generally be regarded as akin to a language interpreter but some individuals who use Auslan may also have some other additional communication impairments such as autism and that could also amount to complex communicational needs.

The Hon. K.L. VINCENT: I seek some further clarification on a few points. First, the minister used the words, I think, 'some other cause', so a person might need a communication assistant for some other cause other than disability, and I appreciate that. He mentioned that it would not cover nervousness or irritability, but could it potentially cover, for example, someone who was not just nervous but perhaps had ceased speaking or had limited verbal capacity to talk about a particular incident following severe trauma?

The Hon. P. MALINAUSKAS: I believe the answer to that question is simply yes.

The Hon. K.L. VINCENT: A stress disorder, PTSD for example, could well be covered.

The Hon. P. MALINAUSKAS: I understand that PTSD was contemplated in the context of the development of the bill but, of course, all of this would have to be looked at on a case-by-case basis to ascertain whether or not that is the case.

The Hon. K.L. VINCENT: The minister has done a good job of explaining this but I just want to make sure that we are clear, so I appreciate him giving me the time. Can we assume then that where a person is strictly deaf, and that is their only condition relating to their communication, their use of an Auslan interpreter would not be deemed complex communication needs, it would be a mere translation job. However, where somebody might use sign language or something very similar due to autism, for example, that might be a little more complex and may be defined as complex communication needs. Is that correct?

The Hon. P. MALINAUSKAS: I am advised that the answer to that question is, in essence, yes. There is a longer answer but to put it simply I am advised that the answer to your question is yes.

Clause passed.

Clause 23 passed.

New clause 23A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 3 [McLachlan–1]—

Page 10, after line 12—After clause 23 insert:

23A—Substitution of section 11

Section 11—delete the section and substitute:

11—Duration of intervention orders

(1) A final intervention order remains in force—

(a) for a period of 5 years or such lesser period as may be fixed by the Court—

(i) that confirms the interim intervention order as a final intervention order under section 23; or

(ii) that issues the final intervention order under section 23 in substitution for an interim intervention order,

(as the case may be); or

(b) until it is revoked in accordance with this Act,

whichever occurs first.

(2) An interim intervention order remains in force—

(a) until confirmed by the Court under section 23; or

(b) until it is revoked in accordance with this Act,

whichever occurs first.

(3) Subject to subsection (4), this section applies to an intervention order—

(a) that was issued before or after the commencement of subsection (1); or

(b) that was continued in force under clause 37 of Schedule 1; or

(c) that was issued pursuant to the Bail Act 1985, the Criminal Law (Sentencing) Act 1988, the Youth Court Act 1993 or any other Act.

(4) An intervention order issued more than 5 years prior to the commencement of this section will, by force of this subsection, be taken to be revoked on the day falling on the 6 month anniversary of the commencement of this section (however nothing in this subsection prevents a person from applying for another intervention order in relation to the same defendant).

This amendment is proposed by the Liberal Party in response to commentary that appeared in the Courts Administration Authority's annual report 2014-15. I will read an extract from page 20, under the main heading of 'Recommended Changes to Legislation', subsection 'Section 11: Intervention Orders (Prevention of Abuse) Act 2009', which says:

The Intervention Orders (Prevention of Abuse) Act 2009 (the Act) commenced on 9 December 2011. Since then there have been more than 7,000 intervention orders confirmed.

Section 11 of the Act provides that an intervention order is ongoing and continues in force until it is revoked. Accordingly, Section 11 does not allow an issuing authority to fix a date for expiration of an intervention order. Given the high volumes of confirmed intervention orders since commencement of the Act, and that only a very small percentage (approximately 1.6 per cent) of orders are revoked, over time this is likely to result in a substantial number of intervention orders continuing in force which may no longer be necessary, potentially criminalising otherwise lawful behaviour.

The Child Sex Offenders Registration Act 2006 specifies that a control order under that Act remains in force for a period of five years or such lesser period as specified in the order. Given that those orders are for protection, by analogy it might be appropriate to have a parallel clause in the legislation governing protection in the area of domestic violence. Accordingly, it would be desirable that there be an amendment to the Intervention Orders (Prevention of Abuse) Act 2009 to allow for intervention orders to lapse after an appropriate period of time.

The amendment proposed in my name is in response to that commentary, which appears in that annual report, and has been crafted in accordance with the indications I have set out.

I do not propose to debate it at great length; the provision is simple, and provides for those orders to remain in force for a period five years or such lesser period. It has a number of subsequent provisions which relate to transition. I ask members in the chamber to indicate their support or otherwise, so that I can make a decision on whether to pursue the amendments.

The Hon. P. MALINAUSKAS: The proposed amendment will delete section 11 of the Intervention Orders (Prevention of Abuse) Act 2009 and replace it with a new section 11 headed 'Duration of intervention orders'. The effect of the amendment is to impose a fixed term on final intervention orders so that an intervention order only remains in force for a period of five years or such lesser period as may be fixed by the court. Subclause (2) further provides that an interim intervention order remains in force until it is confirmed by the court under section 23 or until it is revoked.

Under the current legislation, the intervention order is ongoing and continues in force until it is revoked. This policy position was adopted by the government and welcomed by industry groups, because no court can predict, when making an order restraining a defendant from being violent, what may happen when the defendant is no longer subject to that restraint.

Whilst there is an argument that an order may no longer be necessary because of the passage of time, there is an equal argument that, due to the nature of domestic violence, there may never be a point in time where a protected person would feel safe from further abuse from a defendant. The current law places the onus on the defendant to establish in an application to revoke the order that the victim is no longer at risk of abuse rather than requiring a victim to come back to court to show they still require protection.

The government is currently drafting a discussion paper to seek community views on the Domestic Violence Disclosure Scheme and other potential areas of law reform. A discussion paper has yet to be released because information is being collated from multiple government agencies in order to develop a paper that not only seeks community views on law reform but also paints an accurate and comprehensive picture of domestic violence in South Australia. This discussion paper needs to be done right, not quickly.

The Hon. M.C. PARNELL: The Greens' position on this amendment very much tries to go back to first principles and that is to pose the question: what are these intervention orders supposed to be for anyway? When you approach it from that point of view, we can see that they are a mechanism for keeping women safe—and I say that advisedly, I know it can apply to men as well but overwhelmingly we are talking about keeping women safe.

Having said that, you can imagine situations where an injustice is caused by something lasting forever, but similarly, and I think this is what the minister was alluding to, you could have women who are getting to the four year, the 4½ year, the four years 11 months situation with levels of anxiety increasing. They know that their ex knows that the intervention order is about to expire and they are going to have to go back to court and maybe they will have to re-agitate the reason for the intervention order being necessary. So you can also imagine a great deal of harm and hurt caused by a five-year expiration period.

What gives me some comfort is what the minister said just now and that is that they recognise that a broader community debate is required about the future of intervention orders, how long they should last, whether they are on a searchable register, whether any busybody can go along and find out about it. I look forward to that process and I think it will be an important community process. I guess we also have to bear in mind, and I think this goes to part of the Liberals' motivation for putting this forward, that an intervention order is not a criminal conviction. It relates to somebody who has convinced a court of law that there is a need for protection, but it does not require conviction for assault, and it does not actually require an offence to have been committed.

Whilst it has criminal consequences, it is not strictly a part of the criminal law. The criminal consequence is breaching an intervention order but you do not need to beyond reasonable doubt have committed a crime before an intervention order is put in place; at least that is my understanding of how it works.

I think that the right thing for this parliament to do now is not to support this amendment, to wait for the discussion paper and for the community conversation to occur, and then I think we will be in a better position to weigh up the pros and cons of time limiting these intervention orders. But for now, the Greens' position is that the cons outweigh the pros and we can see more harm than good being done in supporting this amendment now. We think it's premature and so we will not be supporting it.

The Hon. D.G.E. HOOD: I think the Hon. Mr Parnell has outlined it quite eloquently, and I think if you swapped the word 'Greens' in his explanation for 'Family First' we would say something very similar. I indicated to my colleague the Hon. Mr McLachlan when he came to see me yesterday that we probably would not support this amendment and that is our final position.

The Hon. J.A. DARLEY: I indicate I will not be supporting the amendment.

The Hon. K.L. VINCENT: For the record, I have given this some consideration and I think the Hon. Mr Parnell has done well in terms of outlining the issues. I think that, given the minister has ensured that there is going to be a consultation process around what intervention orders should look like, the best thing, of course, is to listen to those who have had experiences with that procedure and, in respect to them, I would like to wait and to have that conversation before we put this in place, and certainly, because the nature of the incident which probably led to an intervention order being in place is likely to have been very traumatic, I would hate to do anything to make the experience any more anxiety inducing than it has to be. I think the Hon. Mr Parnell has outlined well that having a specific expiry date could well increase the anxiety when it comes up, and so I am not inclined to support it at this time but am happy to keep the conversation alive.

The Hon. A.L. McLACHLAN: I acknowledge and appreciate the comments of honourable members. Obviously, I will not be calling 'division'; the numbers against this amendment are clear. I would reiterate that the Liberal Party puts forward this amendment, having regard to the annual report, but also we probably have slightly less faith in the government in its going forward conversation. I note the comments of certain honourable members in relation to their decision that they may support an amendment of this nature going forward, depending on the conversation the government has with the community. We place probably less faith in that.

I also leave the chamber with this thought; that is, as we stand at the moment, with intervention orders two standards apply to the community: one is intervention orders, and there are certain circumstances surrounding those, and we have a different standard in relation to child sex offenders. I would argue that that is inconsistent at this time, and it is appropriate that the chamber acts in relation to it now.

If the conversation in relation to intervention orders changes in the future, so be it, and if there is a pressing case the Liberal Party and many of its members, particularly in this chamber, have a longstanding commitment to solving issues in relation to domestic violence and would obviously look upon any such amendment with kindness. I leave the chamber with that thought, that at the moment we have a dual standard.

New clause negatived.

Clauses 24 to 27 passed.

Clause 28.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I invite the Hon. Mr McLachlan to speak. He does not have to move his amendment. I think that the Hon. Mr McLachlan is advocating for clause 28 to be deleted, and I call him.

The Hon. A.L. McLACHLAN: My comments in relation to clause 19 apply. This follows on from the removal of part 7. It is the view of the Liberal Party that part 12 and part 17 should not proceed on the basis that the law is operating in an appropriate manner at the moment, and the government has not made a sufficient case for the amendments it proposes.

The Hon. P. MALINAUSKAS: We do not oppose Mr McLachlan's proposition.

Clause deleted.

Clauses 29 to 37 passed.

Clause 38.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We now move to the Hon. Mr McLachlan and a similar stance on the deletion of clause 38.

The Hon. A.L. McLACHLAN: That is correct, Mr Acting Chair.

The Hon. P. MALINAUSKAS: We do not oppose Mr McLachlan's proposition.

Clause deleted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:05): I move:

That this bill be now read a third time.

Bill read a third time and passed.