Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (17:39): I move:

That this bill be now read a second time.

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

Leave granted.

The Statutes Amendment (Attorney-General's Portfolio) Bill 2019 makes miscellaneous amendments to various Acts committed to the Attorney-General. It addresses a number of minor or technical issues that have been identified in legislation.

Judicial Immunities

Parts 2, 4, 5, 7, 8, 15 and 18 of the Bill make minor amendments to a number of Acts to clarify that a judicial officer has the same immunities from civil and criminal liability as a Judge of the Supreme Court. Under the common law, a judge of the Supreme Court enjoys immunities from civil and criminal liability for acts done in the performance of judicial or quasi-judicial functions. The same immunity from civil and criminal liability extends to other judicial officers at common law and there is no distinction between superior and inferior courts. The immunity of a judicial officer from civil and criminal liability under the common law continues to apply despite any express statutory reference in legislation to the contrary. Notwithstanding, there are a number of express statutory references in various acts which currently refer to certain judicial officers only having immunity from civil liability.

The Bill amends s 33 of the Coroners Act 2003; s 46 of the District Court Act 1991; s 36 of the Environment, Resources and Development Court Act 1993; s 15 of the Liquor Licensing Act 1997; s 44 of the Magistrates Court 1991; s 110C of the Supreme Court Act 1935 and s 26 of the Youth Court Act 1993 to affirm the position under common law that judicial officers have the same immunities from civil and criminal liability as a Judge of the Supreme Court.

Criminal Procedure Act 1921

Part 3 of the Bill responds to an issue regarding inconsistences between the penalties that currently apply in relation to a breach of an order made under s 180 of the Criminal Procedure Act 1921 and a breach of a firearms prohibition order made under s 45 of the Firearms Act 2015.

Section 180 of the Criminal Procedure Actallows the Court to make a range of orders where it is satisfied that a firearm or offensive weapon was used in, or facilitated, the commission of an offence. Relevantly, this may include an order under s 180(1)(g) that a person is subject to a firearms prohibition order within the meaning of the Firearms Act. In the event of a breach of an order under s 180 (including a firearms prohibition order), the Criminal Procedure Actimposes a maximum penalty of $500 or 12 months imprisonment.

This is to be contrasted with s 45 of the Firearms Act, which imposes maximum penalties ranging from $50,000 or 10 years imprisonment up to $75,000 or 15 years imprisonment in the event of a breach of a firearms prohibition order.

The Bill amends the Criminal Procedure Actto increase the maximum penalties that apply in the event of a breach of an order made under s 180 so that:

in the case of a breach of an order relating to a firearm—the maximum penalty is $50,000 or 10 years imprisonment; and

in the case of a breach of an order relating to an offensive weapon—

the maximum penalty is $10,000 or 2 years imprisonment.

As a result, a person who breaches an order relating to a firearm under the Criminal Procedure Actwill be subject to a substantially higher maximum penalty, which is proportionate to the penalties which currently apply under the Firearms Actin relation to a breach of a firearms prohibition order.

Similarly, a person who breaches an order relating to an offensive weapon under the Criminal Procedure Actwill also be subject to a higher maximum penalty, which is proportionate to other maximum penalties which currently apply for related offensive weapon offences under Part 3B of the Summary Offences Act 1953.

Evidence Act 1929

Part 6 of the Bill amends the Evidence Act 1929 to clarify that, for the purposes of the Act, a reference to a 'victim' in s 29A and in s 67H is taken to apply to a victim or 'alleged victim' of the offence.

Section 67H defines 'sensitive material' for the purposes of Division 10 of the Evidence Act. Under s 67H(1)(a) of the Act, sensitive material is taken to include the audio visual record, or the transcript of any such record, of the interview of a witness. Currently, s 67H(3)(b) only refers to the victim of a sexual offence and does not include an 'alleged victim' of an offence. As a result there is a risk that the pre-recorded interview of an alleged victim of a sexual offence may not be considered to be sensitive material for the purposes of the Act. This would mean that the safeguards designed to protect the highly sensitive interviews of young children or persons with a disability may not apply until after the offence had been found proven.

This is clearly contrary to the intent of the legislation to protect the evidence of vulnerable witnesses. The Bill amends s 67H(3) so that the audio visual record or transcript of interview of an alleged victim of a sexual offence is taken to be sensitive material. A similar amendment is also made to s 29A of the Evidence Act, to remove any doubt that the provision applies to a victim or alleged victim of the offence.

Public Interest Disclosure Act 2018

Part 9 of the Bill amends the Public Interest Disclosure Act 2018,at the request of the Independent Commissioner Against Corruption (ICAC), to ensure that councils are subject to the same obligations as public sector agencies under s 12 of the Act.

Section 12 of the Act imposes an obligation upon the principal officer of a public sector agency or council to ensure the existence of designated responsible officers. Section 12(4) further provides that a principal officer must prepare and maintain a document which sets out the procedures for a person who wishes to make an appropriate disclosure of public interest information to the agency and for officers and employees dealing with the disclosure.

Currently, s 12(4) of the Act only refers to the principal officer of a public sector agency and not a council. This is inconsistent with Parliament's intention, as evidenced in the explanation of clauses of the Public Interest Disclosure Bill 2018, that councils would also be subject to the requirement to prepare a document of the kind contemplated by s 12(4). The amendment therefore ensures that the obligations under s 12 which currently apply to public sector agencies will also apply to councils.

Sentencing Act 2017

Part 10 of the Bill amends the Sentencing Act 2017 to remove the current $20,000 monetary limit on compensation that is able to be awarded by the Magistrates Court when convicting a person of an offence.

Section 124 of the Sentencing Actcurrently enables the court to make an order requiring a defendant to pay compensation for an injury, loss or damage resulting from an offence of which the defendant has been found guilty. Section 124(6)(c) provides that the Magistrates Court may not award more than $20,000 in compensation, unless a greater amount is prescribed by regulation.

Since 1 July 2017, there is no longer a limit on the amount of compensation that may be awarded by the magistrates of the South Australian Employment Tribunal (SAET) when convicting a person of a criminal offence. The removal of the cap was an inadvertent consequence of the transfer of jurisdiction over industrial offences from the Magistrates Court to SAET. As a result, there is now an inconsistency between the powers of the magistrates of the Magistrates Court and those of SAET in respect of the amount of compensation that may be awarded.

The Bill repeals the monetary limit on compensation that may be awarded by the Magistrates Court to ensure consistency with the compensation that may be awarded by SAET.

Serious and Organised Crime (Unexplained Wealth) Act 2009

Part 11 of the Bill amends the Serious and Organised Crime (Unexplained Wealth) Act 2009 to extend the operation of the Act for a further 10 years. Section 36 of the Act contains a sunset clause which provides that the Act will expire 10 years after the date of its commencement, on 29 August 2020. If the Act is allowed to expire, South Australia will be the only jurisdiction without an unexplained wealth scheme in place to deter serious and organised criminals from bringing unexplained wealth into the jurisdiction. To ensure the continued operation of the scheme, the Bill extends the operation of the Act for a further 10 years so that the Act will not expire until 29 August 2030.

Sheriff's Act 1978

Part 12 of the Bill makes a minor amendment to the definition of 'premises of a participating body' in the Sheriff's Act 1978, at the request of the Chief Justice,in order to better provide for the security of the courts. The amendment expands the boundaries of the court premises to include the precincts and immediate environs of those premises, adjacent car parks and footpaths, the laneways between or abutting the premises or place and the entry and exit points of court buildings.

Spent Convictions Act 2009

Part 13 of the Bill makes a number of minor changes to the Spent Convictions Act 2009.

Firstly, the Bill repeals a number of uncommenced provisions of the Spent Convictions Act, moved by former member, the Hon Kelly Vincent, which, if enacted, would allow for a young person (of or below the age of 25 years old), with an immediately spent conviction, to apply to a qualified magistrate for an order that a prescribed exclusion under clause 14 of Schedule 1 of the Act does not apply in relation to that conviction.

The Vincent amendments sought to acknowledge that there may be exceptional circumstances in which the immediately spent conviction of a young person should not have to be disclosed to an employer or potential employer. However, the amendments proposed by Ms Vincent are impractical and fail to recognise that the spent convictions scheme is not specific to the particular offence committed by the relevant person, but rather the context in which the offence relates to the workplace in which they are currently employed or seek to be employed.

A finding of guilt in relation to a minor drug offence may not be considered particularly concerning to an employer seeking to employ a person as a landscaper, but may be concerning to the potential employer of a pharmacist. If enacted, the amendments would likely lead to persons with immediately spent convictions seeking an exemption from a qualified magistrate as a matter of course.

The Hon Kelly Vincent when moving these amendments to the former Government's Bill had foreshadowed the haste at which these were made, and the potential need for them to be reviewed, particularly to consider whether such oversight was necessary.

While both the former Government and the Liberal Opposition at the time supported the Bill passing as amended, further consideration of the amendments show they do not recognise the role of the spent convictions scheme and utmost need to protect vulnerable people in South Australia. It is therefore the Government's view that it is appropriate that these amendments should be repealed.

Secondly, the Bill also amends the Spent Convictions Actto ensure that certain uncommenced provisions of the Act made by the Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 and the Statutes Amendment (Attorney-General's Portfolio No 3) Act 2017 are able to come into operation as intended.

Thirdly, a further consequential amendment to the Spent Convictions Act is made to correct a drafting error in the Statutes Amendment (Attorney-General's Portfolio No 3) Act 2017 to ensure that spent convictions for historical homosexual offending cannot be disclosed in any circumstances, unless required by regulation.

Summary Offences Act 1953

Part 14 of the Bill amends the Summary Offences Act 1953 to clarify that, for the purposes of a notice issued under s 21OD of the Act, which has yet to commence, the notice applies to land within a designated area that is within 20km of a boundary of a relevant prescribed area.

Section 21OD of the Act enables the Minister to declare an area of land as a 'designated area' for the purposes of certain grog running offences. Under s 21OD(3), a notice 'cannot include within a designated area land that is more than 20km from the boundary of a prescribed area.' A potential difficulty arises if the terms of s 21OD(3) are interpreted literally, as this may mean that, in order for land within a designated area to fall within the scope of the notice, no part of the land can be more than 20km from any boundary of a prescribed area. In the event that a Court applied a literal interpretation of s 21OD, there is a risk that a notice issued under the Act could be deemed invalid. This would likely impact the ability to prosecute persons seeking to unlawfully supply and transport liquor in certain prescribed areas.

The Bill therefore clarifies that, where a notice is issued under s 21OD, the notice applies to any part of the land within the designated area that is within 20km of a boundary of a relevant prescribed area.

Surveillance Devices Act 2016

Part 16 of the Bill addresses an omission in the transitional provisions of the Surveillance Devices Act 2016 to ensure that material obtained contrary to s 4 of the former Listening and Surveillance Devices Act 2016 continues to be an offence under the current Act.

Section 4 of the former Act made it an offence to use a listening device to record conversations without the participant's knowledge except as permitted by the Act. The Surveillance Devices Actcommenced operation on 18 December 2017, replacing the former Listening and Surveillance Devices Act. Since 18 December 2017, Part 2 of the Surveillance Devices Act has regulated the lawful use of devices and recordings.

Where an unlawful recording is made contrary to Part 2 of the Surveillance Devices Act, s 12 of the Act prohibits the use of the material gained. Relevantly, s 12 makes it an offence for a person to knowingly use, communicate or publish information or material derived from the use of a surveillance device 'where obtained contrary to Part 2 of the Act.' As a result, it appears that s 12 would not currently prevent a person from using information or material, which, at the time it was recorded, was gained contrary to the former Act. To address this issue, the Bill amends the Surveillance Devices Act so that material obtained contrary to s 4 of the former Act continues to be an offence under the Surveillance Devices Act.

Trustee Act 1936

Finally, Part 17 of the Bill amends the Trustee Act 1936 at the request of the Public Trustee to enable the Attorney-General to approve a trust variation scheme under s 69B of the Act to alter the powers of the trustees to manage and administer a relevant charitable trust.

Section 69B(3) of the Trustee Act currently enables the Attorney-General to approve a trust variation scheme to alter the purposes for which property may be applied in pursuance of a charitable trust, where the value of the trust property held in trust is low (i.e. below $300,000 or a limit prescribed by regulations). This has created uncertainty as to whether the Attorney-General possess the power to approve a trust variation scheme which would allow capital to be applied where the trust instrument provides for the use of income only.

In circumstances where there is uncertainty, s 69B(4) of the Trustee Act confers a discretion on the Attorney-General to refer an application to the Supreme Court. The Public Trustee advises that an application to the Supreme Court to vary the trust is often a costly and lengthy process. The option for a trustee to apply to the Attorney-General for approval of a scheme provides a more efficient and cost-effective method of varying the trust than offered by application or referral to the Supreme Court and is consistent with the approach adopted in New South Wales. The Bill therefore amends s 69B of the Trustee Act to allow for the Attorney-General to approve a trust variation scheme altering the powers of the trustees of a relevant charitable trust.

Where the application raises questions that should, in the Attorney-General's opinion, be decided by the Court, the Act preserves the ability for an application to be referred to the Supreme Court for appropriate determination.

This concludes the matters that are the subject of this Portfolio 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—Amendment of Coroners Act 2003

4—Amendment of section 33—Immunities

This clause amends the principal Act to broaden the immunity protections that apply.

Part 3—Amendment of Criminal Procedure Act 1921

5—Amendment of section 180—Orders as to firearms and offensive weapons

This clause amends the principal Act to reconcile the penalties that apply for a breach of an order under the principal Act and a breach of a firearms prohibition order under the Firearms Act 2015.

Part 4—Amendment of District Court Act 1991

6—Amendment of section 46—Immunities

This clause amends the principal Act to broaden the immunity protections that apply.

Part 5—Amendment of Environment, Resources and Development Court Act 1993

7—Amendment of section 36—Immunities

This clause amends the principal Act to broaden the immunity protections that apply.

Part 6—Amendment of Evidence Act 1929

8—Amendment of section 29A—Victim or alleged victim who is a witness entitled to be present in court unless court orders otherwise

This clause amends section 29A of the principal Act to broaden the reference to victim to include ', or alleged victim'.

9—Amendment of section 67H—Meaning of sensitive material

This clause amends section 67H of the principal Act to broaden the reference to victim to include ', or alleged victim'.

Part 7—Amendment of Liquor Licensing Act 1997

10—Amendment of section 15—Judges

This clause amends the principal Act to broaden the immunity protections that apply.

Part 8—Amendment of Magistrates Court Act 1991

11—Amendment of section 44—Immunities

This clause amends the principal Act to broaden the immunity protections that apply.

Part 9—Amendment of Public Interest Disclosure Act 2018

12—Amendment of section 12—Duties of principal officers

This clause amends section 12 of the principal Act to extend references to a public sector agency to include a council.

Part 10—Amendment of Sentencing Act 2017

13—Amendment of section 124—Compensation

This clause amends section 124 of the principal Act to delete section 124(6)(c) which sets the limit on the amount of compensation that may be awarded.

Part 11—Amendment of Serious and Organised Crime (Unexplained Wealth) Act 2009

14—Amendment of section 36—Expiry of Act

This clause amends section 36 of the principal Act to extend the expiry of the Act from 10 to 20 years.

Part 12—Amendment of Sheriff's Act 1978

15—Amendment of section 4—Interpretation

This clause amends section 4 of the principal Act and the definition premises of a participating body.

Part 13—Amendment of Spent Convictions Act 2009

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

This clause amends section 13A of the principal Act and relates to amendments made by the Statutes Amendment (Attorney-General's Portfolio No 3) Act 2017.

17—Amendment of Schedule 1—Exclusions

This clause amends Schedule 1 of the principal Act to ensure that changes made by the Statutes Amendment (Attorney-General's Portfolio No 3) Act 2017 do not result in an exclusion being unintentionally disapplied.

Part 14—Amendment of Summary Offences Act 1953

18—Amendment of section 21OD—Designated areas

This clause amends section 21OD of the principal Act to clarify the reference in section 21OD(3) to the relevant area of land.

Part 15—Amendment of Supreme Court Act 1935

19—Amendment of section 110C—Immunities

This clause amends the principal Act to broaden the immunity protections that apply.

Part 16—Amendment of Surveillance Devices Act 2016

20—Amendment of section 12—Prohibition on communication or publication derived from use of surveillance device

This clause amends section 12 of the principal Act to ensure that it is an offence to knowingly communicate or publish information or material derived from the use of a listening device in contravention of section 4 of the Listening and Surveillance Devices Act 1972 (as in force immediately prior to the commencement of this Act).

Part 17—Amendment of Trustee Act 1936

21—Amendment of section 69B—Alteration of purposes of charitable trust

This clause amends section 69B of the principal Act to broaden the ability to alter a charitable trust and to alter the power of the trustee's power with respect to the administration of the trust by a charitable trust scheme.

22—Transitional provision

This clause inserts a transitional provision to ensure that the amendments made by section 25 of this Act apply whether a trust was constituted before or after the commencement of section 25.

Part 18—Amendment of Youth Court Act 1993

23—Amendment of section 26—Immunities

This clause amends the principal Act to broaden the immunity protections that apply.

Debate adjourned on motion of Hon I.K. Hunter.