Legislative Council Fifty-Third Parliament, Second Session (53-2) 53 2 Parliament of South Australia Legislative Council published Bills Statutes Amendment (Courts and Justice Measures) Bill Statutes Amendment (Courts and Justice Measures) Bill Statutes Amendment (Courts and Justice Measures) Bill Second Reading Second Reading The Hon. K.J. MAHER Legislative Council Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:40): I move: That this bill be now read a second time. I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it. Leave granted. This Bill makes various amendments to create efficiencies within the justice system, and also to fix some minor errors, omissions and technical deficiencies identified in legislation. The Bill amends s 6(3) of the Bail Act1985 regarding the witnessing of court documents. There are efficiencies for a court to widen the class of eligible persons who can witness some formal court documents. At present, bail documents, including those signed by guarantors and bonds, are witnessed by Justices of the Peace. Section 6(3) of the Bail Act 1985 sets out who a bail agreement must be made before: a justice; certain police officers, a person who is in charge of a prison or any other person or class of person specified by the bail authority. Technically, the Magistrate as a bail authority may specify that any Registrar or Deputy Registrar may witness the bail agreement. However, it would be simpler and more efficient if a Registrar or Deputy Registrar was specified in s 6(3) as a suitable person. The Chief Magistrate supports this change. The Bill seeks to promote court flexibility. It amends the Criminal Law Consolidation Act 1935 ('CLCA') and the Evidence Act 1929 to clarify and extend, where an accused person is in custody, the permissible use of audio visual link or audio link. This change is supported by the Chief Justice and the Chief Magistrate. The Bill provides the court with a suitable discretion to determine the use of audio visual link and/or audio link in lieu of a defendant's personal appearance where a defendant is in custody. The Bill extends the court's discretion to allow any appearance by way of an audio visual link or audio link. It includes the qualification that if it is the defendant's first appearance in custody in connection with the relevant charges, the court must take into account in deciding if the defendant should personally appear, whether or not the defendant is legally represented or has had the opportunity to obtain legal advice. The Bill ensures consistency with the Bail Act 1985 or any other specific Act or court Rules that the general power in the revised s 59IQ of the Evidence Act1929 for the use of the audio visual or audio link is subject to the specific provisions of any other Act or Rules. The Bill amends s 361 of the CLCAfor appearance on appeals to give the courts rule making powers to provide that a party who is in custody may be taken to appear at an appeal or linked hearing (such as seeking leave to appeal) by personal appearance, audio visual link or audio link. The amendment also gives the Full Court a power to dispense with any appearance by a party in custody if the court thinks there is good reason to do so. The Bill makes minor amendments to the Legislation Revision and Publication Act 2002 to recognise electronic publishing. The intention is to 'future proof' procedure to ensure that the Government can move to fully electronic publishing if it wants to in the future. Other jurisdictions have already moved away from traditional hard copy publishing. This item was requested by Parliamentary Counsel. The Bill remedies an omission in the current s 13B of the Evidence Act that prevents the cross-examination of certain vulnerable victims by legally unrepresented accused. The Bill extends the scope of s 13B to prevent the cross examination by an unrepresented accused of the vulnerable victim under s 13B in any other proceedings regarding that victim. The restriction is of general application. It is not confined to a linked proceeding. Such personal cross examination may well be abusive and inappropriate. The Bill addresses a further omission in s 13B of the Evidence Act. The current restrictions preventing an unrepresented accused from personally cross-examining a victim in s 13B extend to 'a serious offence against the person'; an aggravated assault under s 20 of the CLCA where the aggravating circumstances of the offence are the circumstances referred to in s 5AA(1)(g) of that Act; an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 or an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921. Yet recklessly or intentionally causing harm under s 24 of the CLCA is omitted. There is no logical reason for this omission. The Bill extends the restriction upon personal cross-examination to recklessly or intentionally causing harm under s 24. A Solicitor-General is currently appointed for life until the retirement age of 65. This does not accord with the position in most other Australian jurisdictions. The Bill amends the Solicitor-General Act 1972 (with a consequential amendment to the Judges' Pensions Act 1971)to remove the existing age of retirement of 65 for the Solicitor-General and to increase it to 70, consistent with that of judges. The Bill includes provision for the appointment of the Solicitor-General for a fixed period of ten years with a power of reappointment (consistent with the models in NSW and Tasmania). The period of ten years fits closest to the existing scheme for judicial pensions under the Judges' Pensions Act 1971. A Solicitor-General cannot be appointed beyond the age of 70. The Bill makes various amendments arising from recent changes to Youth Court and youth justice procedures. The Bill proposes to delete s 10(9) of the Youth Court 1993, which is to be inserted by the Statutes Amendment (Youth Court) Act 2016 (not yet commenced). Section 10(9) of the Youth Court Act 1993 would provide that: 'The Judge of the Court is responsible to the Chief Judge of the District Court for the proper and efficient discharge of his or her duties under this Act and the District Court Act 1991.' This provision is no longer necessary. The Bill amends the Cross-border Justice Act 2009, the Summary Procedure Act 1921 and the Young Offenders Act 1993. All three changes relate to the Youth Justice Administration Act 2016, which has not yet commenced. Section 7(1) of the Cross-border Justice Act 2009 contains a definition of detention centre which refers to a 'training centre established by the Minister under section 36 of the Family and Community Services Act 1972'. This definition needs to be updated to refer to s 21 of the Youth Justice Administration Act 2016. Section 184 of the Summary Procedure Act 1921 provides scope for a person to be transferred from a prison to a training centre where certain criteria are met and an application is made by 'the person or the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Family and Community Services Act 1972'. This needs to be updated to refer to the chief executive responsible for the Youth Justice Administration Act 2016. Section 40 of the Young Offenders Act 1993 relates to leave of absence from a training centre, and needs to be repealed when the Youth Justice Administration Act 2016 commences. Leave of absence will be dealt with, instead, by section 34 of the Youth Justice Administration Act 2016. I commend the Bill to the House. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions These clauses are formal. Part 2—Amendment of Bail Act 1985 4—Amendment of section 6—Nature of bail agreement This amendment extends the persons who may witness a bail agreement to include a registrar or deputy registrar of a court. 5—Amendment of section 7—Guarantee of bail This amendment extends the persons who may witness a guarantee of bail to include a registrar or deputy registrar of a court. Part 3—Amendment of Criminal Law Consolidation Act 1935 6—Substitution of section 361 This clause substitutes a new section 361 which relates to the presence of an appellant or respondent on the hearing of an appeal. 361—Presence of appellant or respondent on hearing of appeal The proposed new section provides that the Supreme Court may make rules in relation to the presence in court of an appellant or respondent who is in custody at the time of the hearing of an appeal, or the hearing of an application for permission to appeal or any preliminary or incidental proceedings to an appeal. The rules may provide that such an appellant or respondent may not be present, or that the presence of the appellant or respondent be in person, or by an audio visual link or audio link. The provision further provides that the Full Court may, despite any rules to the contrary, proceed with the hearing of an appeal, an application for an appeal or any preliminary or incidental proceedings to an appeal, in the absence of an appellant or respondent if it considers that there is good reason to do so. Part 4—Amendment of Cross-border Justice Act 2009 7—Amendment of section 7—Interpretation This amendment is consequential on the passing of the new Youth Justice Administration Act 2016. It amends the definition of a detention centre to include a reference to a training centre established by the Minister under section 21 of that Act. Part 5—Amendment of Evidence Act 1929 8—Amendment of section 13B—Cross-examination of certain witnesses This clause amends section 13B to clarify that the prohibition on a victim being cross-examined by a defendant in a criminal trial unless the cross-examination is by counsel, extends to any criminal trial, whether or not it is related to the offence. 9—Amendment of section 59IQ—Appearance etc by audio visual link or audio link This clause amendments section 59IQ to provide that if a defendant is in custody prior to trial, the court may if it thinks it is appropriate in the circumstances, deal with the proceedings by an audio visual link or audio link without requiring the personal attendance of the defendant. In so doing, the court must, if the proceeding is the defendant's first appearance in connection with the matter, consider whether or not the defendant has legal representation or has had an opportunity to obtain legal advice. Part 6—Amendment of Legislation Revision and Publication Act 2002 10—Amendment of section 5—Program for revision and publication of legislation Currently, this provision requires legislation to be available to the public in both electronic and printed form. The effect of this amendment is to provide that legislation may be available in either print or electronic form. 11—Amendment of section 8—Publication of legislation Currently, this provision provides that legislation revised under the Act may be published by publishing a printed copy and, whether or not the legislation is revised, by publishing an electronic copy. The effect of this amendment is to provide that legislation may be published by publishing a printed copy or an electronic copy, whether or not it is revised under the Act. Part 7—Amendment of Solicitor-General Act 1972 12—Amendment of section 5—Terms and appointment of Solicitor-General The amendments to this section provide for the appointment of the Solicitor-General to be for a period of 10 years or such shorter period as is necessary for the person's term of office to extend to the day on which the person attains the age of 70 years (being the age of retirement). At the expiration of a term of office (subject to attaining age 70 years), the Solicitor-General may be eligible for reappointment. 13—Amendment of section 8—Resignation and retirement The current section provides that the Solicitor-General will retire on attaining the age of 65 years. This clause amends section 8 of the Act to increase the age of retirement to 70 years. 14—Amendment of section 9—Leave on retirement This amendment alters the reference to 65 years to refer to 70 years and is consequential on increasing the retirement age of the Solicitor-General. 15—Amendment of section 10-—Pension rights of Solicitor-General and application of Judges' Pensions Act 1971 This clause provides that for the purposes of the Judges' Pensions Act 1971, at the expiry of a term of office, unless the person has attained the age of 70 years or is reappointed, the person will be taken to have resigned from the office of Solicitor-General. Part 8—Amendment of Summary Procedure Act 1921 16—Amendment of section 184—Application may be made to Court for transfer to training centre This amendment is consequential on the operation of the new Youth Justice Administration Act 2016 and amends section 184(1)(c) of the Act to update the reference to the chief executive of the administrative unit of the Public Service responsible for assisting a Minister in the administration of the Youth Justice Administration Act 2016 (rather than the Family and Community Services Act 1972). Part 9—Amendment of Young Offenders Act 1993 17—Repeal of section 40 This clause deletes section 40 of the Act and is consequential on the operation of the new Youth Justice Administration Act 2016, which contains a similar provision at section 34 of that Act. Part 10—Amendment of Youth Court Act 1993 18—Amendment of section 10—Court's principal judicial officer This clause deletes section 10(9) of the Act, as amended by the Statutes Amendment (Youth Court) Act 2016, which provided that the Judge of the Court is responsible to the Chief Judge of the District Court for the proper discharge of the Judge's duties under the Youth Court Act 1993 and the District Court Act 1991. Debate adjourned on motion of Hon. D.W. Ridgway.