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

Second Reading

Adjourned debate on second reading.

(Continued from 1 November 2017.)

The Hon. A.L. McLACHLAN (17:06): I rise to speak to the Statutes Amendment (Attorney-General's Portfolio No. 3) Bill 2017. The bill amends various extant acts, largely in response to relatively minor issues that have been identified by various agencies and interested parties. I indicate that the Liberal Party will be supporting the second reading of the bill. The changes made by the bill are largely technical in nature. For example, it contains proposed amendments to the Bail Act to enable a manager of a youth training centre to witness bail agreements or a bail guarantee. The government has advised that this change will bring the training centre in line with the current practice in adult prisons.

The bill also contains amendments to the Guardianship and Administration Act 1993, removing the current requirement for the Coroner to hold an inquest for any person who has died of natural causes and who is under an order pursuant to 32(1)(b) of the said act. These orders usually relate to an aged person with a mental incapacity. The amendments proposed by the bill will mean that such a death will instead be reportable to the Coroner, rather than the current legislative requirement to hold a long and often drawn-out inquest, regardless of whether it is necessary in the circumstances.

I note the provisions will still enable the Coroner to conduct an inquest, if necessary or desirable to do so, or as the Attorney-General directs it. This is an inclusion that the Liberal Party is supportive of. Other amendments contained in the bill include changes to the Young Offenders Act. Currently, diversionary measures can be used when a youth commits a minor offence. These measures can require youths to give an apology or pay compensation to a person who has suffered physical or mental injury as a result of an offence.

The bill will expand these diversionary measures to enable them to be used in cases when a person may not have suffered physical or mental injury, but may still have suffered loss or damage as a result of a youth's offending conduct. A victim who may have suffered property damage is an example that immediately springs to mind. Again, this seems to be a sensible approach, and the Liberal Party welcomes this inclusion in the bill.

The bill also amends the Spent Convictions Act to refine rules relating to the disclosure and use of convictions that become immediately spent. The government has provided advice in between the chambers regarding the need for these particular changes. The advice set out that the current act has produced an anomaly when there is a finding of guilt but no conviction is recorded. In these circumstances, an offence will become immediately spent. Pursuant to the current act, however, in these circumstances employers are barred from taking any internal action from the date of conviction.

This would even apply in cases when the offence was committed in the course of employment or where the employee poses a serious risk to other staff or the public. A further anomaly arises in situations where a person who is found not guilty as an employer is still able to conduct their own investigations and consider whether any disciplinary action is required.

The effect of this is that a person who was found guilty of an offence but had no conviction recorded is better off than someone who is acquitted before a court. The government amendments seek to remedy this particular issue. After consideration in between the houses the Liberal Party has agreed to support the same.

I note further amendments were moved and passed in the other place removing the position of the Deputy Chief Magistrate. The government has since filed further amendments in the Legislative Council to follow on from this. They seek to clarify the Chief Magistrate's powers of delegation and provide for the appointment of the magistracy in the Chief Magistrate's absence or on the office becoming vacant.

Other consequential amendments are also required to the commencement clause in order to enable the consequential amendments to the Magistrates Court Act and Remuneration Act to commence at the same time as the changes to the Magistrates Court Act, on 8 July 2018.

The Hon. K.L. VINCENT (17:10): I have just a few remarks on behalf of the Dignity Party, particularly in regard to the spent convictions parts of this bill. The intention of the principal act is to issue a spent conviction in some cases—and I stress in some cases—where the accused person had an otherwise blameless record and has only committed a minor offence. In its current form, in the opinion of the Dignity Party, and indeed on the advice we have received, the bill casts too wide a net and could potentially and perhaps unintentionally capture people in a way that prejudices their current and future employment prospects.

The Dignity Party feels that this is not in the spirit of the main act, nor in the spirit of the Attorney-General’s changes to the Spent Convictions Act, stating an intention to protect vulnerable people. So I have filed amendments to provide that young people who have committed a first time and/or minor offence can apply to a magistrate to have information about such a conviction excluded from disclosure. It is up to the magistrate to uphold the spirit of the bill in terms of protecting vulnerable people, particularly children, elderly or disabled people from employees whose conviction history they may otherwise have not known about. It would be up to that magistrate to decide whether an offence is relevant or not relevant to a particular type of employment.

As an example of this, my office is aware of a story of someone who was a young girl at the time and who we will refer to as Hannah. Hannah went to a music festival one year some years ago and was caught by police in her car taking drugs with her friends. All the young people were terrified and decided for various reasons not to tell their parents, and because of the situation with the other girls' families Hannah stepped up and took the wrap solely by herself.

She was given a spent conviction by the judge. This whole process had the intention of and indeed had the impact of leaving a scar on Hannah due to which she reflected on how doing recreational drugs was not worth it, if it resulted in serious consequences and penalties such as these. Hannah went on to work in the performing arts and in hospitality, often teaching and mentoring other young people. She has been very successful and also performed overseas and around Australia. If her spent conviction information was readily available to current and prospective employers, who knows what kind of working future Hannah may or may not have had?

The justice system has to have fairness built in, and it is our job to uphold this as lawmakers in this chamber today. I believe that in order to do that we need to restrict this spent convictions disclosure clause somewhat to ensure that it captures people who have only committed a one-time or a minor offence and where the magistrate is satisfied that the nature and circumstances and seriousness of the relevant offence was not great and whether the relevant offence involved a child or children or a vulnerable person or persons, because obviously we do not want people who have committed offences that are serious and involve vulnerable people, including children, not to have that against their file, if you like.

Under my amendment, the magistrate will also have to consider whether the applicant has a history of offending and whether the applicant appears to have rehabilitated and to be of good character and, lastly, whether or not making the order would have an unduly negative effect on the applicant's career or employment prospects.

Again, we are not talking about people who have committed very serious offences of abuse or taking advantage of vulnerable people, including children. We are talking about people like Hannah, who at one point in their young lives made a mistake and have not done so since, and have gone on to be, to use a somewhat clichéd term, upstanding members of our community. I do not think that they should continue to have that one-off mistake that they made, which was minor in the scheme of things, continue to impact their employment opportunities far into their future.

That is the spirit with which the Dignity Party has introduced that amendment. I have just explained it now so that I do not have to go into too much length at committee stage. But it is also important to remember that these spent convictions provisions only apply to people up to and under the age of 25 years. That is what the bill defines as a young person, much to my personal offence but that is not a matter for today. I think that there may well be some room to broaden the scope to include people over the age of 25, particularly as we learn more through developments in neuroscience and other fields that chronological age is not necessarily the same as developmental age.

Having said that, given the shortage of time before us, this is a good start which paves the way for a future parliament to review this and decide if this kind of oversight is effective. We feel that offenders under 25 still have their professional and personal lives ahead of them and, for those who may have made a mistake at one point in their lives, this amendment seeks to offer them a second chance and a fair go at seeking and keeping a job.

A job can be a lifeline in terms of not becoming further on the fringes of society and anything that we can do to protect deserving people to stay in employment is important. Having said that, measures to continue to protect vulnerable people in this state are vital, and that is exactly why there are those caveats in the amendment that I put forward. With those words, I lend the Dignity Party's support for the second reading of the bill and thank the government and other members of the crossbench for their support of this amendment.

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) (17:17): I thank honourable members for their contributions. There are a number of amendments on this bill, so I will not make a significant contribution at this second reading summing up. I am sure we will answer some questions as we speedily go through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

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

Amendment No 1 [Employment–4]—

Page 3, lines 6 to 12—Delete the clause and substitute:

2—Commencement

(1) Subject to this section, this Act will come into operation on the day on which it is assented to by the Governor.

(2) Sections 21, 22, 23 and 24 will be taken to have come into operation on 1 July 2017.

(3) Subject to subsection (4), sections 13 to 18 (inclusive) will come into operation on 8 July 2018.

(4) If this Act is assented to after 8 July 2018, sections 13 to 18 (inclusive) will be taken to have come into operation on 8 July 2018.

(5) The following sections will come into operation on a day to be fixed by proclamation:

(a) sections 5 to 12 (inclusive);

(b) sections 19 and 20;

(c) sections 25 to 34 (inclusive).

This amendment is to the commencement clause. It will enable the amendment to the Advance Care Directives Act and amendments Nos 2 and 3 in set 2 of the government's amendments to commence on assent.

Amendment carried; clause as amended passed.

Clauses 3 to 13 passed.

New clause 13A.

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

Amendment No 2 [Employment–4]—

Page 7, after line 11—After clause 13 insert:

13A—Insertion of section 6B

After section 6A—insert:

6B—Acting Chief Magistrate

(1) Subject to subsection (2), the Chief Magistrate may, by instrument in writing, appoint a magistrate to be Acting Chief Magistrate during a period, and subject to any conditions, specified in the instrument of appointment.

(2) The appointment of an Acting Chief Magistrate under subsection (1) ceases on the office of the Chief Magistrate becoming vacant.

(3) If—

(a) the office of the Chief Magistrate becomes vacant; or

(b) —

(i) the Chief Magistrate is absent, or, for any reason, is unable for the time being to carry out the duties of the office; and

(ii) an Acting Chief Magistrate has not been appointed under subsection (1),

the Governor may appoint a magistrate to be Acting Chief Magistrate until—

(c) a person is appointed to the office of the Chief Magistrate; or

(d) the Chief Magistrate returns to official duties,

(as the case requires).

(4) On the appointment of a magistrate to be Acting Chief Magistrate under this section, any power or function attached to the office of the Chief Magistrate under this or any other Act devolves on the magistrate so appointed.

This has the effect that parts 7, 8 and 9 will remove the office of the Deputy Chief Magistrate. These provisions are designed to allow the Chief Magistrate greater flexibility in managing the court to better suit the needs of the magistracy.

The Hon. A.L. McLACHLAN: The Liberal Party supports this amendment.

New clause inserted.

Clause 14.

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

Amendment No 3 [Employment–4]—

Page 7, after line 13—After line 13 insert:

(2) Section 7(3)—delete 'administrative powers or functions' and substitute:

powers or functions under this or any other Act

This amendment clarifies the broad powers conferred on the Chief Magistrate to be able to delegate his or her functions. This is desirable in light of the removals that happened in the last amendment of the office of Deputy Chief Magistrate.

Amendment carried; clause as amended passed.

Clause 15 passed.

Clause 16.

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

Amendment No 4 [Employment–4]—

Page 7, lines 17 and 18—Delete clause 16 and substitute:

16—Amendment of section 11—Chief Magistrate

Section 11(3)—delete 'Deputy Chief Magistrate and, if both are absent, on a Magistrate appointed by the Governor to act in the absence of the Chief Magistrate' and substitute:

Acting Chief Magistrate appointed in accordance with section 6B of the Magistrates Act 1983

This amendment is consequential on amendment No. 2.

Amendment carried; clause as amended passed.

Clauses 17 to 21 passed.

New clause 21A.

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

Amendment No 2 [Employment–2]—

Page 8, after line 18—After clause 21 insert:

21A—Amendment of section 4—Relevant Acts prevail

After the contents of section 4 (now to be designated as subsection (1))—insert:

(2) Subsection (1) does not apply in relation to a rule made under section 92(1)(ka).

In speaking to this amendment, I will also speak to my next amendment, which seeks to insert new clause 22A. These two amendments are a set. The purpose of these amendments is to expand the power of the South Australian Employment Tribunal to make rules as to costs. These amendments are necessary in light of the broad jurisdiction now able to be exercised by the tribunal, including judicial powers that are exercised in the part of the tribunal known as the South Australian employment court.

Under section 92 of the South Australian Employment Tribunal Act 2014, the president and the deputy president of the tribunal may make rules after consultation with the minister. This includes under section 92(1)(k) the power to make rules regulating costs and providing for the assessment and setting of costs. The power to make rules includes the power to make rules in respect of any jurisdiction conferred on the tribunal by another act.

New clause inserted.

Clause 22 passed.

New clause 22A.

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

Amendment No 3 [Employment–2]—

Page 9, after line 21—After clause 22 insert:

22A—Amendment of section 92—Rules

(1) Section 92(1)—after paragraph (k) insert:

(ka) providing that a rule made pursuant to paragraph (k) is to prevail over an inconsistent provision of a relevant Act; and

(2) Section 92(5)—delete 'The' and substitute:

Except to the extent specified in subsection (1)(ka), the

New clause inserted.

Clauses 23 to 25 passed.

New clause 25A.

The Hon. K.L. VINCENT: I move:

Amendment No 1 [Vincent–1]—

Page 10, after line 34—After clause 25—insert:

25A—Amendment of section 13A—Exclusions may not apply

(1) Section 13A—after subsection (1) insert:

(1a) A young person in relation to whom a finding has been made (as constituting a conviction for the purposes of this Act) that is taken to be immediately spent under section 4(1a), may apply to a qualified magistrate for an order that a prescribed exclusion under clause 14 of Schedule 1 does not apply in relation to the finding.

(2) Section 13A(6)—delete 'this section' and substitute 'subsection (1)'

(3) Section 13A—after subsection (6) insert:

(6a) The making of an order under subsection (1a) is at the discretion of the qualified magistrate and that discretion will be exercised having regard to—

(a) the nature, circumstances and seriousness of the relevant offence; and

(b) whether the relevant offence involved a child or children or a vulnerable person or persons; and

(c) all the circumstances of the applicant, including—

(i) whether the applicant has a history of offending; and

(ii) the circumstances of the applicant at the time of the commission of the offence and at the time of the application; and

(iii) whether the applicant appears to have rehabilitated and to be of good character; and

(iv) whether not making the order would have an unduly deleterious effect on the applicant's career or employment prospects; and

(d) whether the removal of the exclusion by operation of an order under this section might present a risk to children, vulnerable persons or the public more generally (and, if so, the extent of that risk); and

(e) whether there is any public interest served in not making the order; and

(f) any other matter considered relevant by the qualified magistrate.

(4) Section 13A—after subsection (8) insert:

(9) In this section—

young person means a person of or below the age of 25 years.

I have already explained my amendments in some detail. The first one simply creates the new clause to allow a young person to apply to a qualified magistrate for an order to exclude them from having that spent conviction readily available.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment. We think that the honourable member has drafted a sensible amendment that gives young people the best opportunity to move on with their lives after, perhaps, things that have happened in their past that they later regret. We do not need to lumber people with their pasts forever and these are sensible exemptions and exclusions.

The Hon. K.J. MAHER: I rise to inform the chamber that the government will be supporting the Hon. Kelly Vincent's amendments. These amendments will enable a young person with an immediately spent conviction to apply to a qualified magistrate for an order that a prescribed exclusion under clause 14 of schedule 1 does not apply in relation to that conviction. The government recognises that there will be exceptional circumstances in which an immediately spent conviction should not be taken into account by an employer or a potential employer.

This amendment seeks to prevent unjust outcomes by allowing a person to apply to the court to consider whether their circumstances are of an exceptional nature. The government is sympathetic to the objectives that the Hon. Ms Vincent is trying to achieve. As this amendment was filed very late, the government has obviously not had an opportunity to consult with the Magistrates Court and other interested groups but will do so prior to implementation.

The Hon. A.L. McLACHLAN: The Liberal Party has not had an opportunity to seek approval in its party room since these amendments were filed today, but we will not be opposing the provisions. From a personal perspective, I might add that I do not have a problem with them, but I do not have specific party room instructions. I do have a question for the mover. If this application is made, I assume there will be a court record of the application, so in some cases, that will be able to be searched and the circumstances of the application will be set out in a court record. Is that the understanding of the mover?

The Hon. K.L. VINCENT: If possible, I might need to hand to someone with a vastly more legal mind than mine.

The Hon. M.C. PARNELL: When I hear the words 'vast' and 'legal mind' in the same sentence I leap to my feet. I might be accused of making stuff up but my first reaction would be that the Hon. Andrew McLachlan may well be correct, that technically it would be possible, but my feeling would be that I am not aware of employers who go to the length of searching the records of the Magistrates Court in every possible jurisdiction just to see if a person has managed to successfully get a spent conviction taken off their record. I think the answer might be technically yes, but practically I do not think we have a problem.

The Hon. K.J. MAHER: Yes, that is the advice I am getting: theoretically that is possible but you would have to know that it exists to go searching for it. It is almost inconceivable that there would be a general procedure for companies, when employing someone, to check to see if someone has made this exceptional circumstances application to a magistrate to do that. So, technically yes, but practically it would be a highly unusual thing to eventuate, we would have thought.

The Hon. J.A. DARLEY: I will be supporting the Hon. Kelly Vincent's amendment.

The Hon. K.L. VINCENT: I might just add a comment because I did suspect that that was the case but I wanted to make sure that I was on the right track. Given the other parts of these amendments which outline that the magistrate has to be absolutely satisfied that the nature, circumstance and seriousness of the relevant offence were not grave and that the relevant offence did not involve a child or children, elderly people, vulnerable people and so on and so forth, and that the applicant is rehabilitated and not likely to reoffend again, etc.—you may well go looking for that record but given that we are talking about some very minor offences here, even if they had applied for and been successful, I think that would satisfy the idea that it was probably a very minor thing to begin with, so I do not know why you would go scrounging around for that in the first place.

New clause inserted.

Clause 26.

The Hon. K.L. VINCENT: I move:

Amendment No 2 [Vincent–1]—

Page 11, line 8 [clause 26, inserted clause a1(2)]—Delete '13A' and substitute:

13A(1)

Amendment No 3 [Vincent–1]—

Page 11, after line 8 [clause 26, inserted clause a1]—After subclause (2) insert:

(2a) A prescribed exclusion under clause 14 of Schedule 1 does not apply in relation to a finding (as constituting a conviction for the purposes of this Act) that is taken to be immediately spent under section 4(1a) in respect of a particular young person if a qualified magistrate has made an order to that effect under section 13A(1a).

Given that I have already outlined all of my amendments at some length, unless there is any reason why I should not, I am happy to treat the remainder as consequential.

Amendments carried; clause as amended passed.

Remaining clauses (27 to 34) and title passed.

Bill reported with amendment.

Third 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) (17:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.