Statutes Amendment (Attorney-General's Portfolio No 3) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

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) (23:31): I move:

That this bill be now read a second time.

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

Leave granted.

The Statutes Amendment (Attorney-General's Portfolio No 3) Bill 2017 makes miscellaneous amendments to various Acts to address a number of minor outstanding issues in legislation that have been identified by affected agencies and interested parties.

Advance Care Directives Act 2013

Pursuant to section 23 of the Guardianship and Administration Act 1993, the Public Advocate may delegate his or her powers or functions by way of written delegation. Subsection 45(12) of the Advance Care Directives Act prevents the Public Advocate from delegating his or her powers or functions under subsections 45(5)(a) and (6) of that Act. Subsection 45(12) overrides the Public Advocate's general powers of delegation, resulting in the Governor in Executive Council being required to appoint and Acting Public Advocate on each occasion that the Public Advocate takes leave. This creates unnecessarily complex administrative requirements and was an unintended consequence of the provision. The Bill deletes subsection 45(12) to enable the Public Advocate to administratively delegate his or her full suite of powers or functions under section 23 of the Guardianship and Administration Act.

Bail Act 1985

The Bill amends the Bail Act to authorise the manager of a youth training centre to witness a bail agreement or a guarantee of bail. This is consistent with the existing authorisation in the Act for the person in charge of a prison to witness these documents. Currently, when a youth is released on bail from a training centre following a successful application via video link, staff at the training centre are required to seek specific authorisation from the court on each occasion in order to witness the youth entering into the bail agreement. It is more appropriate and efficient for the manager of a training centre to have standing authority to witness bail agreements and guarantees of bail.

Construction Industry Long Service Leave Act 1987

The construction industry long service leave scheme allows certain workers to qualify for long service leave based on their service to the industry rather than just one employer. The amendment will bring work that involves the construction, erection, installation, extension, alteration or dismantling of data and communication cabling and security alarm equipment within the operation of the Act. This will mean that workers who undertake these types of work will have fairer access to entitlements in line with the rest of the construction industry. It is appropriate that the scheme be adapted to reflect the evolution of technology in buildings and structures over time.

The Bill also clarifies the crediting of effective service where a person transitions in or out of the construction industry long service leave scheme. This may occur due to a change of occupation with the same employer or due to changes in coverage of the Act. The amendment makes clear that only service with the employer at the time of transitioning in or out of the scheme is preserved for the purpose of ongoing long service leave accrual with that same employer. The amendment will not otherwise affect the preservation of effective service entitlements when an employee changes to a different employer within the scheme.

Guardianship and Administration Act 1993

An amendment is made to the Guardianship and Administration Act to remove the mandatory requirement for the State Coroner to hold an inquest into the death or apparent death by natural causes of a person who is subject to an order under section 32(1)(b) of the Guardianship and Administration Act.

The death of a person who is detained under section 32(1)(b) usually relates to an aged person with a mental incapacity who needs to be detained for their own health or safety. The State Coroner has reported that in most cases, under this type of detention, the person dies due to natural causes. An inquest into a death in custody is often a long and drawn out process which, in cases where the person has died or appears to have died due to natural causes, results in unnecessary distress to surviving family members.

A death in these circumstances will remain a 'reportable death' under the Coroners Act 2003, meaning that it must be reported to the State Coroner. An inquest is still required to be held if the State Coroner considers it necessary or desirable to do so, or at the direction of the Attorney-General.

The amendment will apply to all deaths by natural causes of persons detained under section 32(1)(b), including deaths that occurred before the commencement of this Bill.

Legal Practitioners Act 1981

The Bill makes minor changes to the Legal Practitioners Act.

The definition of 'corresponding law' in section 5 is amended. The existing definition requires a proclamation to declare the corresponding law of another State each time its relevant legislation relating to the regulation of legal practitioners changes. The Bill adopts the definition provided by the Model Legal Profession Bill; a definition which is more efficient and is consistent with other jurisdictions.

The Bill also amends Schedule 3 of the Legal Practitioners Act to permit the use of conditional costs agreements in proceedings under the Migration Act 1954 (Cth). A conditional costs agreement is an agreement between solicitor and client that provides that the payment of some or all of the legal costs in a matter is conditional on the successful outcome of the matter. The use of conditional costs agreements is prohibited for some types of legal matters, such as family law matters, where pursuing a win is not necessarily consistent with the policy objectives of the governing legislation. There is no reason why a successful outcome should not be rigorously pursued in proceedings under the Migration Act. It is, however, necessary to protect clients, who can be particularly vulnerable in these cases, from the inclusion of uplift fees. The Bill, therefore, permits the use of conditional costs agreements in matters relating to proceedings under the Migration Act but clarifies that the inclusion of uplift fees is not permitted in these cases.

Magistrates Act 1983; Magistrates Court Act 1991; and Remuneration Act 1990

An amendment is made to the Magistrates Act to abolish the position of Deputy Chief Magistrate. The Chief Magistrate will retain the ability to delegate his or her administrative functions and powers under section 7(3). Consequential amendments are also made to the Magistrates Court Act and the Remuneration Act.

These amendments will to come into operation on 8 July 2018, after the retirement of the incumbent Deputy Chief Magistrate.

Second-hand Dealers and Pawnbrokers Act 1996

The Second-hand Dealers and Pawnbrokers Act contains a negative licensing scheme. This means that a license is not required to carry on a business as a second-hand dealer but it is an offence for a person to carry on such a business if he or she has been disqualified by the Commissioner of Police. An amendment to the Act, which commenced on 1 July 2016, inserted provisions to allow the Commissioner of Police to disqualify a person from carrying on a business as a second-hand dealer without providing reasons for the decision if the decision was made because of information that is classified as criminal intelligence.

The Bill makes consequential amendments to the Act that were overlooked when the 1 July 2016 amendment was passed. The amendments will bring the provisions relating to the disqualification of persons based on criminal intelligence in line with other licensing schemes in the State.

Spent Convictions Act 2009

The Bill amends the Spent Convictions Act to clarify the rules relating to the disclosure and use of a conviction that is taken to be immediately spent under section 4(1a) of the Act. The amendment primarily aims to address an anomaly with the current operation of the Act that in some cases prevents employers from taking appropriate action against employees following criminal offending, including where the offence was committed in the course of employment or where the employee poses a serious risk to other staff or the public.

The anomaly arises in cases where a conviction is immediately spent. If the police decide not to charge the person with an offence, or if the person is prosecuted but is ultimately found not guilty, the employer is then able to carry out their own investigations and consider the need for disciplinary action. A public sector employer may be able to obtain the material from the police investigation for this purpose. If, on the other hand, the person pleads or is found guilty of the offence but the court decides not to record a conviction, the employer is unable to obtain any material from police or the court and cannot use its knowledge of the offending to commence an investigation. Neither can the employer rely on the court finding for the purpose of taking disciplinary action.

There have now been several cases where a public sector agency has been effectively barred from taking appropriate action against an employee for criminal conduct committed in the course of their employment following a conviction being immediately spent. In some cases the employee may pose a real risk to public safety, but the risk cannot be investigated by the employer. The anomaly was drawn to the Government's attention in the context of public sector employment, but is not limited to the public sector.

In order to remedy this issue, there must be some restructuring of the legislation. The remedy requires a new exclusion that will apply only to immediately spent convictions, and this is difficult to accommodate within the existing structure of the Act. The amendment to the Spent Convictions Act simplifies the rules about the situations in which the protections in Part 3 Division 1 of the Act against disclosure and use of spent convictions will apply. In addition, it includes a regulation-making power to tease out the more complex details about the circumstances in which the protections in Part 3 Division 1 of the Act will apply in the case of an immediately spent conviction.

South Australian Employment Tribunal Act 2014

The Bill amends the South Australian Employment Tribunal Act to confer on the Tribunal jurisdiction under the Workers Compensation Act 1971 and address other consequential matters.

The primary amendment inserts Division 8 into Part 2 of the South Australian Employment Tribunal Act. This amendment is necessary to ensure that the Tribunal can exercise jurisdiction under the Workers Compensation Act 1971. The need to do so was overlooked during drafting and passage of the Statutes Amendment (South Australian Employment Tribunal) Act 2016 which expanded the Tribunal's jurisdiction from 1 July 2017.

Notwithstanding its repeal by the Workers Rehabilitation and Compensation Act 1986, the 1971 Act continues to apply in respect of an injury that is attributable to a trauma that occurred before the day that the 1971 Act was repealed by the 1986 Act. This is the result of Schedule 1 clause 2(1) of the 1986 Act and this situation was continued under Schedule 9 clause 59(1) of the Return to Work Act 2014. Essentially, this means that the Industrial Relations Court retained jurisdiction over 1971 Act matters. However, the Industrial Relations Court was dissolved on 1 July 2017 by section 69(2) of the 2016 Amendment Act. The Government has been advised that there continue to be at least a dozen proceedings commenced under the 1971 Act each year, mostly requests for the sealing of consent orders. However, there is currently one disputed matter under the 1971 Act before a judicial officer. This amendment is necessary to avoid any lacuna in the jurisdiction able to be exercised under the 1971 Act. Such an outcome was not the intended consequence of the expansion of the Tribunal's jurisdiction, and the dissolution of the Industrial Relations Court, by the 2016 Amendment Act. The amendments will be made retrospective to 1 July 2017 and will assign 1971 Act proceedings to the Tribunal in Court Session, which is also known as the South Australian Employment Court.

Young Offenders Act 1993

Part 2 of the Young Offenders Act enables diversionary measures to be utilised where a youth commits a minor offence that results in a person suffering loss or damage. As an example, the youth may be required to attend a family conference, where he or she may be required to enter into an undertaking to give an apology or pay compensation to the person.

The existing provisions only allow for these diversionary measures to be utilised where a person has suffered physical or mental injury as a result of an offence committed by a youth. The Act does not permit police or a family conference to require a youth to enter into an undertaking to give an apology or pay compensation to a person who has suffered loss or damage as a result of an offence. This is remedied in the Bill.

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—Advance Care Directives Act 2013

4—Amendment of section 45—Resolution of disputes by Public Advocate

This clause deletes section 45(12) from the principal Act with the effect of removing a complexity in the legislation around delegations by the Public Advocate.

Part 3—Amendment of Bail Act 1985

5—Amendment of section 3—Interpretation

This clause inserts the definition of training centre - the term has the same meaning as in the Young Offenders Act 1993.

6—Amendment of section 6—Nature of bail agreement

This amendment will ensure that the manager of a youth training centre is authorised to witness bail agreements.

7—Amendment of section 7—Guarantee of bail

This amendment will ensure that the manager of a youth training centre is authorised to witness guarantees of bail.

Part 4—Amendment of Construction Industry Long Service Leave Act 1987

8—Amendment of section 4—Interpretation

This amendment expands the definition of electrical or metal trades work to include—

data and communication cabling; and

security alarm equipment.

9—Amendment of section 15—Crediting effective service under this Act and the Long Service Leave Act

This clause amends section 15 of the principal Act to clarify the parameters of the portability of long service leave for persons moving in and out of different positions with the same employer, 1 of which is construction work. In both cases (ie where a person moves out of construction work and into another position with the employer, and conversely where a person moves into construction work from another position with the employer), portability of long service leave is retained, but only in relation to the work undertaken with that employer.

Part 5—Amendment of Guardianship and Administration Act 1993

10—Insertion of section 76A

This clause inserts new section 76A into the principal Act. The new section enables inquests to be held, at the discretion of the State Coroner or the direction of the Attorney-General, into the death or apparent death (whether before or after the commencement of the new section) of a person from natural causes while subject to an order under section 32(1)(b) of the principal Act.

Part 6—Amendment of Legal Practitioners Act 1981

11—Amendment of section 5—Interpretation

The definition of corresponding law is amended to correspond to the model provision taken from the Legal profession—model laws project Model Bill (Model Provisions).

12—Amendment of Schedule 3—Costs disclosure and adjudication

This clause excludes conditional costs agreements relating to proceedings under the Migration Act 1958 of the Commonwealth from the ambit of clause 26(1) of Schedule 3 of the principal Act.

Part 7—Amendment of Magistrates Act 1983

13—Amendment of section 6—Magistracy

This clause removes the office of Deputy Chief Magistrate from the principal Act.

14—Amendment of section 7—Administration of magistracy

This amendment is consequential on the amendment in clause 13.

15—Amendment of section 13—Remuneration of magistrates

This amendment is consequential on the amendment in clause 13.

Part 8—Amendment of Magistrates Court Act 1991

16—Amendment of section 11—Chief Magistrate

This amendment is consequential on the amendment in clause 13.

17—Amendment of section 49—Rules of Court

This amendment is consequential on the amendment in clause 13.

Part 9—Amendment of Remuneration Act 1990

18—Amendment of section 13—Determination of remuneration of judges, magistrates and certain others

This amendment is consequential on the amendment in clause 13.

Part 10—Amendment of Second-hand Dealers and Pawnbrokers Act 1996

19—Amendment of section 3—Interpretation

This clause inserts provisions relating to criminal intelligence that will make the principal Act consistent with provisions in the Tattooing Industry Control Act 2015.

20—Amendment of section 5A—Criminal intelligence

This clause inserts provisions relating to criminal intelligence that will make the principal Act consistent with provisions in the Tattooing Industry Control Act 2015.

Part 11—Amendment of South Australian Employment Tribunal Act 2014

21—Amendment of section 3—Interpretation

This amendment ensures that the term relevant Act when used in the principal Act, will include the principal Act itself.

22—Insertion of Part 2 Division 8

Division 8 is inserted into Part 2 of the principal Act to confer on the Tribunal the same jurisdiction under the Workers Compensation Act 1971 that was previously conferred on the Industrial Relations Court. This is in consequence of the dissolution of the Industrial Relations Court on 1 July 2017 and the continued application in certain circumstances of the Workers Compensation Act 1971 (despite its repeal).

23—Amendment of section 93—Regulations

This amendment clarifies that savings or transitional provisions may be made by regulation consequent on the vesting of jurisdiction on the Tribunal under the principal Act.

24—Transitional provisions

The transition of proceedings under the Workers Compensation Act 1971 from the Industrial Relations Court to the Tribunal is managed under this clause.

Part 12—Amendment of Spent Convictions Act 2009

25—Amendment of section 13—Exclusions

Section 13 of the principal Act is amended to remove some of the complexity from the section.

26—Amendment of Schedule 1—Exclusions

New clause a1 is inserted into Schedule 1 of the principal Act, bringing with it some of the provisions from section 13. It also includes a regulation making power enabling exclusions to be disapplied by regulation in the case of certain immediately spent convictions.

Part 13—Amendment of Young Offenders Act 1993

27—Amendment of section 3—Objects and statutory policies

The statutory policies are extended to encourage the provision of compensation and restitution, where appropriate, for persons who have suffered loss or damage as a result of offences committed by youths.

28—Amendment of section 4—Interpretation

These amendments clarify that loss or damage includes costs and expenses but does not include injury, and that a reference in this Act to a person who has suffered loss or damage includes a reference to a body that has suffered loss or damage.

29—Amendment of section 8—Powers of police officer

The amendments under this clause extend the benefits of section 8 to persons who have suffered loss or damage as a result of an offence.

30—Amendment of section 10—Convening of family conference

The amendments under this clause extend the benefits of section 8 to persons who have suffered loss or damage as a result of an offence.

31—Amendment of section 12—Powers of family conference

The amendments under this clause extend the benefits of section 8 to persons who have suffered loss or damage as a result of an offence.

32—Amendment of section 13—Limitation on publicity

This amendment is consequential.

33—Amendment of section 26—Limitation on Court's power to require bond

This amendment is consequential.

34—Amendment of section 64—Information about youth may be given in certain circumstances

This amendment is consequential.

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