Legislative Council: Tuesday, November 15, 2022



Criminal Procedure (Monitoring Orders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 November 2022.)

The Hon. J.M.A. LENSINK (16:39): I rise to make some brief remarks in relation to this particular piece of legislation, which I understand is the fulfilment of an election promise, in that the Labor Party said that they would require firebugs to be electronically monitored during the bushfire season. There is not a great deal of detail about the particular commitment. Nevertheless, we will be supporting these measures.

Those who are convicted under section 85B will be electronically monitored. New division 8 of the bill outlines how the court must assess such an application, including the ability to suspend or revoke the order. I note that the Attorney said in his second reading explanation that the bill is modelled on existing provisions under the Criminal Procedure Act 1921. The provisions are similar in relation to the mechanisms by which police can apply to the court for a restraining or monitoring order. The introduction of an electronic monitoring device, however, is a rare event in circumstances outside of parole or circumstances of an extended supervision order. With those remarks, I support the bill.

The Hon. R.A. SIMMS (16:41): I rise to speak in relation to the monitoring orders bill. The Greens are supportive of this bill. We have seen the devastating effects of bushfires on our South Australian community. Over the last 20 years, we have had major bushfires on Eyre Peninsula, Kangaroo Island and Yorke Peninsula, and in the Adelaide Hills and the Barossa. All of these fires have resulted in loss of life and property and have left lasting impacts on each of these regions.

The most recent bushfires that swept across South Australia, New South Wales and Victoria were in 2019 and are referred to as the Black Summer bushfires. Over 270,000 hectares of land were burnt in South Australia and resulted in more than 1,180 homes and buildings being destroyed or damaged, and three people tragically lost their lives. The recovery efforts continue, as people are still rebuilding their homes, fencing and their lives. I had the opportunity to travel to Kangaroo Island last year and met with a number of members of that community who are still trying to rebuild their lives after the bushfires that ravaged that community.

Our climate is changing, and it is widely accepted in the scientific community that bushfires will, unfortunately, increase in frequency in coming years. It is absolutely appalling that some bushfires are deliberately lit, particularly on days of high fire danger. That is a despicable thing to do and this is a view that I am sure is shared by all members of this place.

By monitoring people who have already been convicted of a bushfire offence, we can reduce incidences of fires being purposely lit during fire danger season. The Greens consider this to be an important protection for areas at risk of bushfires, and we believe this will help our emergency services stay ahead of any potential threats, particularly as we head into the bushfire season. I therefore indicate that the Greens will be supporting the bill and we recognise the government's efforts to try to reduce the risk of fires being purposely lit.

The Hon. C. BONAROS (16:43): I rise to speak briefly in support of this bill on behalf of SA-Best, for the reasons that have been outlined just now by the Hon. Ms Lensink and the Hon. Mr Simms, and we echo those sentiments. Stamping out firebugs with deterrence measures is appropriate during fire season, especially given the utter devastation that fires have on our communities. Weather and nature are one thing, but deliberately lit fires which wreak havoc on our communities are unacceptable and unforgivable in many respects.

It is for those reasons we support the bill, but I do want to place on the record that—and I appreciate the speed with which we are dealing with this bill is to get it passed before the fire season commences—I did try in the interim to reach out to the Law Society to have a position from them, not in terms of specifically the principle which we are talking about but any other consequences this bill may have.

I was informed that the Criminal Law and Human Rights Committee had expressed some preliminary concerns about the bill and its implications, but unfortunately I think due to time they did not have the opportunity to engage and consider those appropriately. I think they go to the heart of a couple of the issues that I raised at the briefing that I attended. The function of the bill is to model the monitoring orders for bushfires on the high-risk offender provisions for paedophile restraining orders that currently exist under the Criminal Procedure Act.

I think we have picked up provisions that apply in two separate pieces of legislation to high-risk offenders and to paedophiles and somehow come up with this scheme, so it is not identical. I do make the point that ordinarily we do not pass those sorts of laws lightly in this place, they are reserved for special categories of offenders—high-risk offenders. It is my understanding that they will only relate to sentences where consideration by a magistrate to impose electronic monitoring is based on previous convictions or guilty pleas of bushfires; that is, of course, if the court is satisfied that the defendant is at risk of committing a further bushfire offence.

A concern I suppose that I imagine potentially the Law Society would have was restrictive liberties this imposes against the general set of rights afforded to a defendant in the sentencing procedure, but I have by the same token been advised at the briefing that over the past four years there have been about six people who have been convicted of a bushfire, with only 1.5 people per year falling into this category, and that this electronic monitoring only applies during the bushfire season, so it is a small cohort of people we are dealing with. That does not make those restrictions on liberties any less important, but I think it is a worthy point.

The other issue I raised, which I am sure the Law Society's relevant committee would have wanted to explore, is whether the GPS tracking can be used as a tool for the purposes of other criminal investigations of potential offences and the fairness and admissibility of that type of evidence. I have asked some questions around that during the briefing, which I intend to put to the Attorney during the debate. As I understand it, based on the information provided—and this is what I will be asking the Attorney to confirm—there is nothing preventing the use of the material collected in this instance during other criminal investigations and being used in other criminal matters.

I note that we have also been debating changes to mobile phone detection devices and that that bill explicitly allows for the use of evidence obtained via camera detection for other major crimes being investigated by SAPOL consistent with other existing legislation impacting drivers, but in that case the government has made it explicit in the bill that it is the government's intention, and the intention of the legislation, to be able to use that evidence in other major criminal investigations.

In this case, there is no such provision making it explicit but there is also nothing preventing it, so it stands to reason that it may be a small cohort of people we are talking about, but those legal arguments are there to be had and there are good grounds for allowing the evidence to be used in other criminal investigations. Whether you agree or disagree with the use of evidence, that is not really the critical issue here. The critical issue is, I think, why the intent of the government with respect to the use of that evidence in this way has not been clarified in this bill, if that is something they have sought to clarify in other pieces of legislation. I will put that question to the Attorney during the committee stage debate.

That is not to take away from the overall intent of the bill, which is to, as far as possible, prevent and deter firebugs from deliberately lighting fires. That is something we support, but inevitably during these debates when we are introducing these sorts of measures there are other questions that arise. Certainly, they are some of the issues I have raised with the government and will seek some clarity on during the committee stage debate, particularly given we have not had the benefit of the advice that we all so readily rely on, particularly from the Law Society, on other implications and perhaps unintended consequences that legislation may have. With those words, I indicate our in principle support for the bill.

The Hon. S.L. GAME (16:51): I rise in support of the Criminal Procedure (Monitoring Orders) Amendment Bill, and I want to use this opportunity to thank the volunteers across South Australia within the Country Fire Service and our State Emergency Service personnel, who have to deal with the consequences of unmonitored arsonists. Bushfires are an unfortunate reality of living in our sunburnt country. We do not need any opportunity for additional fires that are started deliberately and dangerously.

One Nation believes in harsh penalties for those who put others' lives at risk, as well as livelihoods, homes, stock and wildlife. The consequences of bushfires are horrific. As a veterinarian, I understand the horrific outcomes bushfires have on livestock and other animals. I support this bill, as I also call for increased support for our CFS and SES personnel. They need the best resources available and the best support they can get.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:51): I thank members for their contributions. I note that the Hon. Connie Bonaros has foreshadowed a couple of questions, which I am happy to answer maybe at clause 1. I look forward to a speedy resolution of this through the committee stage so that we can send it to the other house to, firstly, give them some work to do but also make sure we have this passed before we rise this sitting year.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: I have a general question for the Attorney. In developing this bill, has the government sought the advice of the Law Society or any civil liberties groups and, if so, what advice was provided?

The Hon. K.J. MAHER: This was an election commitment so we sought internally within government advice about how best to implement it.

The Hon. R.A. SIMMS: In forming that election commitment, with whom did the then opposition consult?

The Hon. K.J. MAHER: I am happy to take on notice the question as to who the now government, then in opposition, consulted with. I am not sure I will be able to find a detailed list. I think this crossed a number of areas of opposition portfolios, including some who were shadow ministers who are not in those portfolios now. I do not think I will be able to get much information, but I am happy to see if there is some.

The Hon. R.A. SIMMS: Just one final one from me. I can imagine the issues that cause people to commit offences such as this are complex in terms of mental health and so on. Does the government have any plans to address some of those issues as well as the monitoring component?

The Hon. K.J. MAHER: I thank the honourable member for his question. This bill per se does not address some of those underlying and interrelated issues. I have been reminded in the advice I have just been provided that certainly in relation to the criminal justice system and, in particular, convictions that give rise to the possibility of this further application of electronic monitoring there was a case where a woman was convicted of numerous offences who had underlying mental health issues that were addressed through rehabilitation programs whilst in prison. So there are avenues available to those convicted of these offences, but this is not something contemplated in this particular scheme.

The Hon. C. BONAROS: Just to confirm—we might be talking about the same case—is that the case in which the Parole Board imposed conditions on the individual that required GPS tracking? If not, can we just confirm that that can occur under the existing framework?

The Hon. K.J. MAHER: I think we are talking about the same person. I am advised that that was a condition of the parole from the sentence. Of course, the bill before us gives the ability to go beyond that, but, yes, I think we are talking about the same one.

The Hon. C. BONAROS: Just to confirm: even in the absence of this bill that could be a condition of parole? I am not taking away from the bill. I am just confirming for the record that without the bill we could still have that as a condition that applies.

The Hon. K.J. MAHER: Yes, that is true. It could be a condition of parole but, of course, those conditions of parole could only run until the end of the sentence, whereas this bill contemplates going further. So you could not do what this bill does just under the parole system.

The Hon. C. BONAROS: Just flowing on from the questions asked by Hon. Mr Simms, aside from the fact that it is an election commitment, why did the government not choose in this instance, even in the short time frame available, to consult on what could otherwise have implications in terms of the restriction of liberties on individuals who are involved, albeit a small cohort of people? Why did the government not do that?

The Hon. K.J. MAHER: I thank the honourable member for her question. As she outlines, it is likely to be a small cohort. I just do not have the figures with me, but it is single digits over I think a three or four-year period or maybe each year that people are convicted of the underlying offence that gives rise to this. It is a small cohort. We based this on the scheme that relates to similar orders that can be made for child sex offenders. Given it was based on an existing scheme that operates, we consulted within government but not outside government.

The Hon. C. BONAROS: What saved you is the fact that it is the court that is making a decision. Notwithstanding that, can you just refer back to the questions that I asked during the second reading debate in relation to the use of evidence gathered via the GPS tracking and its potential use as evidence in other criminal matters by SAPOL? I understand the advice from your department is that there is nothing in this bill preventing that from occurring. Can you confirm that for the record, please?

The Hon. K.J. MAHER: My advice is that there would be nothing that would stop it being used for other investigations that are similar to a parole-ordered condition of GPS monitoring. It can be, and is, used for forming part of evidence for commission of other offences.

The Hon. C. BONAROS: Just to confirm for the record then, and I think for the sake of clarity for anyone reading this: it is the government's intention that evidence gathered as a result of this GPS tracking could be used in a subsequent or other criminal investigation by police? That is the government's position in relation to evidence gathered under this, where there is subsequent or other criminal offending?

The Hon. K.J. MAHER: My advice is that there is nothing that would prevent that.

The Hon. C. BONAROS: If it is not the government's intention not to prevent it, then they would have had a provision that is similar, I suppose, to the mobile phone detection legislation I referred to, which allows it explicitly. In this instance you have not prevented it explicitly, so the intention is to allow it?

The Hon. K.J. MAHER: Yes, a lot of negatives there. There is nothing that would prevent it being used similarly, as I am advised, to similar monitoring that is part of parole conditions.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:03): I move:

That this bill be now read a third time.

Bill read a third time and passed.