Bills

Statutes Amendment (Criminal Justice Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 May 2024.)

The Hon. R.A. SIMMS (16:42): I rise today to indicate that the Greens are not supportive of this bill. Colloquially known as 'post and boast', this bill aims to address the issue of offenders posting videos of crimes on social media. The bill creates a presumption against bail for people aged 14 to 18 who post and then boast about their crimes. It also aggravates an offence where the offender publishes material relating to that matter.

Whilst I do understand the point that the Hon. Frank Pangallo is raising through this legislation—and I do have some concerns around offenders engaging in criminal acts and not demonstrating appropriate contrition; indeed, posting or bragging about your crimes on social media does not point to contrition—the Greens are concerned that this bill is misdirected in its approach. Young people in particular could be targeted through these laws, and we know that young people do not respond well to punitive policies.

What is needed are more wraparound services, more effective diversionary programs. I have spoken in this chamber about some of those alternatives in the context of the debate around the age of criminal responsibility. There are other ways to address this issue. It would make more sense to allow courts to consider the publishing of material in sentencing and to provide more early intervention programs to prevent this kind of offending occurring in the first place.

Rather than managing the behaviour after the event, we should always be looking at the systemic causes of offending and trying to drive that down, looking at the causes of crime and how we might appropriately manage that. I think it is instructive, when considering this bill, to take into account the views of the Law Society. They have written a comprehensive submission on this proposal, and it is clear they are not supportive of the bill. I will quote from a few elements of their submission.

The society provides [these] views, informed by Members of its Criminal Law Committee, emphasising the development of an appropriate legislative response to 'posting and boasting' is a task which must be undertaken carefully. The Society is particular concerned that the amendments to the Bail Act, their disproportionate impact on young people, and their incompatibility with the International Covenant on Civil and Political Rights.

Their submission outlines concerns regarding the application of the bill, the presumption against bail, and the potential disproportionate impact that this could have on young people. Indeed, members are aware of my views around that. The Law Society note in their submission:

…concern with such a reform coinciding with the State Government's considerations to increase the minimum age of criminal responsibility from 10 to 12 years of age and alternative division models for those under the minimum age of criminal responsibility. The Society notes in-principle support for that proposal, and we would consider Parliament's support of a Bill in the terms proposed to be a retrograde step in attempting to achieve that reform.

That is a pretty clear message from the Law Society that now is not the time to be undertaking this kind of reform whilst parliament is still forming a position on the age of criminal responsibility. I take on board the comments made by the Attorney-General where he indicated that this is still an issue on which the Labor government is to form a position, but we do not want to put the cart before the horse by legislating in an area where there is still some consideration around the options.

I make no criticism of the Hon. Frank Pangallo in putting this forward. I know he is someone who is very interested in criminal justice reform, but in this instance the Greens have a slightly different view. I understand the opposition have amendments to this bill to remove the presumption against bail. We are supportive of those amendments. One of the big issues that we have been concerned about in this legislation is the inclusion of a presumption against bail. I do not agree with that principle.

As stated previously, in summing-up it is vital that we look at the systemic causes of offending rather than jailing people after the fact. That is particularly true when we are looking at offences committed by young people. I urge the government to focus their attention on diversion models, things that will actually reduce offending, prevent young people from interacting with our criminal justice system and make our community safer as a result.

The Hon. J.E. HANSON (16:47): I rise on behalf of government members to indicate that we will not oppose the passage of this bill through the council today but will reserve our position in the other place pending further consideration of the issue. The state government has, I think, a well-established zero-tolerance approach to crime, including criminal acts by children, which I understand the Hon. Frank Pangallo is seeking to address in part through this bill.

We have also made significant investments and legislative reforms to keep our community safe. We have invested significantly in South Australia Police, including in this year's state budget. South Australia has the most police per capita of any state and recent ABS statistics show the lowest youth offending rate of any state. SAPOL have been given expanded powers in the Riverbank and the northern CBD precinct through the Attorney-General's declaration of declared public precincts.

We are also determined to ensure that those adults who recruit children to commit crime face the full force of the law. It is for that reason that we introduced the Criminal Law Consolidation (Recruiting Children to Commit Crime) Amendment Bill, which was passed by this council in recent months. The Premier, the Attorney-General and the Minister for Police have met with business groups, unions, police and, indeed, SafeWork SA to discuss the issue of youth crime, and the working group continues to explore the current trends and further measures which could be put in place in this area.

The Hon. Frank Pangallo's bill has two significant proposals: a new offence, known as a 'posting and boasting' offence, and a presumption against bail for children in particular circumstances. I am advised that the Attorney-General is carefully considering the issue of a posting and boasting offence, particularly assessing how this has been done in New South Wales and in Queensland. We have some concerns that the Hon. Mr Pangallo's proposed offence covers only posting about an offence that the person themselves have undertaken, not behaviour undertaken, for instance, by others.

The bill also does not include elements seen in some other jurisdictions, such as a focus on social media posts glorifying criminal offending, and targeting particularly serious or particularly prevalent offences. The government will continue in its examination of the issue, and engage further with the Hon. Mr Pangallo during consideration of this bill in the other place.

The amendments to the Bail Act would create a presumption against bail for children between the ages of 14 and 18 who are charged with a posting and boasting offence, and also one or more of the offences of using a motor vehicle without consent, serious criminal trespass in a non-residential building or serious criminal trespass in a place of residence.

The government has some concerns about this approach. A presumption against bail limits a court's ability to consider the factors that drive youth offending, such as the many factors the honourable member outlined in his second reading speech. It is also pretty unusual, I think, for such presumption to apply only to children, and not to adults. Given this, the government intends to support the amendments filed by the Liberal opposition.

In closing, I would like to thank the Hon. Mr Pangallo for bringing this bill forward, and for his efforts in this important policy area. The government will, as I said, not oppose the passage of this bill today, and I look forward to working further with all honourable members on these matters.

The Hon. S.L. GAME (16:51): I rise briefly to offer my in-principle support for the Hon. Frank Pangallo's Statutes Amendment (Criminal Justice Measures) Bill. I fully concur with the honourable member's concern about the increasing youth crime in our community, and the need to impose sanctions on young offenders who glorify this criminal behaviour on social media.

The first part of the proposed amendment will alter the Summary Offences Act 1953 to create a new offence for a person who commits a particular crime and then publishes their involvement in this crime via social media or other electronic means. While proving such an offence may be challenging for the police and prosecutors, I fully support the honourable member's intention to prevent the glorification of criminal behaviour.

However, the second part of the bill is a proposal to amend the Bail Act 1985, and to create a presumption against bail for children 14 years of age and above who are charged with using a motor vehicle without consent, and serious criminal trespass in both a residential and non-residential building. This presumption against bail will shift the onus on the alleged offender to convince the bail authority that there are special circumstances justifying bail. This is a significant measure that could impact on an alleged young offender's right to the presumption of innocence.

I will always support measures that are aimed to uphold community safety and protection, plus measures that seek to deter young offenders from engaging in criminal behaviour, but these measures should be fair and just, and should avoid presuming the guilt of our most vulnerable young people. It seems inconsistent that under this legislation an adult can be considered for bail for a certain crime, but a minor committing the same crime cannot and, as such, while I offer my support in principle for the bill, I also support the amendments that are being put forward by the Hon. Nicola Centofanti.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (16:53): I rise today as the opposition's lead speaker for the honourable member's Statutes Amendment (Criminal Justice Measures) Bill 2024. Whilst well-intentioned in its efforts to curb criminal behaviour being glorified in public spaces, particularly on social media, this bill introduces concerning changes that extend far beyond its stated objectives. The opposition cannot support this bill in its current form, and I will outline why.

At its core, this bill seeks to introduce a new offence targeting individuals who advertise their involvement in criminal activity, what we commonly refer to as posting and boasting. Clause 6 of this bill, which introduces section 21AA into the Summary Offences Act 1953, addresses this issue by creating penalties for offenders who publicise their crimes for notoriety. This provision is an important step in ensuring that individuals do not use social media to promote or glorify their unlawful acts.

In principle we support this aspect; however, the bill strays significantly when introducing changes to the to the Bail Act 1985. Clauses 3 and 5 introduce and then repeal, after three years, a presumption against bail for minors aged 14 to 17 who have committed certain motor vehicle and trespass offences in conjunction with the new section 21AA.

The presumption in favour of bail is a fundamental aspect of our justice system and ensures that individuals who are presumed innocent until proven guilty are not unduly punished or held in custody before their guilt is determined. The Bail Act 1985 already includes appropriate provisions for serious offences such as murder, aggravated violence and breaches of intervention orders. In such cases the presumption against bail exists to protect the public from significant risks and rightly so; however, to extend this presumption to minors for lesser offences like trespassing and unauthorised vehicle use is disproportionate and could have far-reaching consequences on our youth justice system.

As we have seen in other jurisdictions, the introduction of a presumption against bail for minors has often led to unintended consequences. They include an increase in the number of young people held on remand. This not only places additional pressures on our detention centres but also risks unnecessarily criminalising minors who may otherwise benefit from rehabilitative interventions.

It is essential to recognise that for most young offenders a punitive approach may not address the underlying issues that contribute to their offending. Furthermore, clause 5 adds an inexplicable layer of confusion by repealing these bail provisions three years after their introduction. We question why introduce a policy only to remove it without a clear justification. We believe that this type of legislative uncertainty is unacceptable. It sends mixed signals about a commitment to justice reform.

We seek to move several amendments in my name with the intention to tighten the proposed legislative reforms and refocus this bill on its original and proper intent—that is, dealing with the issue of individuals publicising their crimes. Our amendments propose to remove all changes to the Bail Act 1985, as they are unnecessary and potentially harmful. Moreover, we propose renaming the bill the Summary Offences (Advertising Involvement in Offence) Amendment Bill to reflect its true purpose.

The Liberal Party believes that these amendments honour the intent pursued by the honourable member, and we hope they are viewed favourably by our colleagues in this chamber today. The importance of a balanced justice system cannot be overstated. Bail laws exist to protect the community and ensure that individuals, particularly minors, are given a fair opportunity to defend themselves without being prematurely punished. If we erode these safeguards by lowering the threshold for denying bail, especially for young people, we risk creating a cycle of recidivism rather than fostering rehabilitation.

I thank the honourable member for raising this issue, and we hope our amendments are accepted in full. The intention, as it should be for all in this place, is to work across parties to develop the best legislation for South Australia to exist in relative perpetuity. We believe our contributions strike that balance. I urge this chamber to consider the broader implications of the original bill. Our focus should remain on addressing the real issue: preventing the glorification of crime in public forums whilst ensuring we do not inadvertently create more problems by introducing unjustifiable changes to our bail system. The amendments we have proposed are necessary corrections, and I call on all members to support them.

The Hon. F. PANGALLO (16:59): I thank all the honourable members who made a contribution today. I accept the comments made by the Hon. Nicola Centofanti in relation to bail laws. I will accept those changes to the bill that I have proposed, and I thank them for making those. I will note that concerns were also raised with me by the Law Society and also several other members of the legal fraternity who contacted me expressing their concern about the availability of bail being withdrawn and concerns as to the effect that might have.

I do want to point out that the intent of the bill, of course, is to ensure that you do not have these young offenders and that is what they are. Essentially, they are young ones who boast about the crimes they commit in order to get some sort of notoriety—15 minutes of fame—either on TikTok or other social media platforms and hopefully even make TV news bulletins because of what they do. They seem to be not only oblivious to their crime but seem to be boasting about what they have done or what they intend to do. This sends a pretty bad message to the community when you have offenders like this who at the same time do acts to perhaps even incite others to do the same thing.

So that was the original intention of my bill. Yes, it was quite tough. It was based on what New South Wales and Victoria already have in place. I will acknowledge that youth crime is up in every jurisdiction. It is something that I think the authorities and governments need to address pretty quickly to get tough on these young offenders. With that, I thank all the members.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 1 [Centofanti–1]—

Page 2, line 4—Delete 'Statutes Amendment (Criminal Justice Measures)' and substitute:

Summary Offences (Advertising Involvement in Offence) Amendment

As reflected in my speech, this amendment changes the title. It renames the bill to more accurately reflect the bill's true purpose. Obviously, the intent of the remaining amendments, which are all related, is to delete clauses 3 to 5 or part 2 in its entirety, which are obviously the changes to the Bail Act I previously outlined in my second reading speech. As the bill is currently written, if an adult commits an offence in question they are given presumption of bail; however, a minor between the ages of 14 to 17 would have presumption against bail. That simply does not make sense.

Clause 5, we also seek to be deleted. Clause 5 is simply the clause that suggests that the presumption against bail provision will be deleted after a three-year period, and it is not clear why.

The Hon. I.K. HUNTER: I wish to advise the chamber the government will be supporting all of the amendments in the name of the Hon. Nicola Centofanti for the reasons outlined in the speech given by the Hon. Justin Hanson.

The Hon. R.A. SIMMS: I also indicate that the Greens will be supporting the amendments advanced by the honourable member for the reasons I already outlined.

Amendment carried; clause as amended passed.

Clause 2.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 2 [Centofanti–1]—

Page 2, line 7 [clause 2(1)]—Delete 'Subject to subsection (2), this' and substitute 'This'

Amendment carried.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 3 [Centofanti–1]—

Page 2, lines 9 and 10 [clause 2(2)]—Delete subclause (2)

Amendment carried; clause as amended passed.

Clause 3.

The CHAIR: There is an amendment in the name of the Hon. N.J. Centofanti to leave out part 2, but standing orders dictate that the questions must be put on clauses, not parts. I will move through the questions. If you are supporting the Hon. N.J. Centofanti, you will call no. The question is that clause 3 stand as printed.

Question resolved in the negative.

Clause 4.

The CHAIR: The next question is that clause 4 stand as printed.

Question resolved in the negative.

Clause 5.

The CHAIR: The next question is that clause 5 stand as printed.

Question resolved in the negative.

Remaining clauses (6 and 7) passed.

Schedule 1.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 5 [Centofanti–1]—

Schedule 1, page 4, line 19 [Schedule 1, clause 1]—Delete 'Part 2 Division 1 and'

It is consequential to amendment No. 4.

Amendment carried; schedule as amended passed.

Long title.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 6 [Centofanti–1]—

Long title—Delete 'the Bail Act 1985 and'

This is again consequential to amendment No. 1.

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. F. PANGALLO (17:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.