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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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CROSS-BORDER JUSTICE BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 February 2009. Page 1368.)

Mrs REDMOND (Heysen) (16:02): I indicate that I am the lead speaker for the opposition on this bill. Subject to the possibility of perhaps moving some amendments, to which I will allude later, we do support, in essence, the principle of the bill.

First, I thank the officers of the Attorney's staff and the department for their briefing. The bill aims to facilitate the administration of justice in a region known as the NPY lands, which captures an area that crosses the borders of South Australia, the Northern Territory and Western Australia.

It is a bit hard to describe without a map in front of one just where the area is, but it starts with the area in South Australia with which many of us would be reasonably familiar, the APY lands, up in the north-western corner which, of course, borders the Northern Territory and South Australia. We take that area as the starting point and include across the Northern Territory border an area which stretches from the Western Australian border all the way across to, basically, the Queensland border, but does not go up as far as Alice Springs, and then an area known as the Central Reserves in Western Australia, which comes down the Western Australian border, with the Northern Territory and South Australia, but is not exactly at the same point as those areas from the Northern Territory and South Australia that I have described.

It covers an area of, I think, about 450,000 square kilometres, so it is quite a big area. It is obviously quite remote and it is populated almost exclusively by indigenous peoples from various groups. In the act, as I understand it from the briefing, the description will be made as to the area by reference to latitude and longitude reference points, and the act is designed so that, if necessary, other areas can be introduced at a later stage, if it all works out at this stage. So, for short reference in the rest of my discussion on this bill, I will refer to it as the NPY lands.

As I said, it is very remote but it is quite obvious, when you think about it, that the groupings of indigenous people who live in those lands do so without any reference to state borders. I know from when I represented the Mirning people, although we based the claim mostly out of South Australia, it basically went from Fowler's Bay in South Australia in a big arc across the Nullarbor to a point called Point Culver in Western Australia without any notice of the border between those two states. I am familiar with the idea that people living in those areas do not recognise or take any notice of state borders.

This legislation is modelled on some legislation that has already passed the West Australian Parliament and essentially, from my memory and notes of what happened, there was a what was called a tri-jurisdictional justice initiative round table which occurred in 2003. That involved, amongst other people, the NPY Women's Council. That council exists basically to support and to advocate for women's issues, in particular, and obviously, connected with that, children's issues within that area. It was already operating within that tri-state area. The round table also involved judicial officers and police and other people working in the criminal justice system, and that would clearly have included people like social workers and so on.

Their aim was to find better ways of providing more efficient and more effective justice services within that area of the NPY lands. A lot of the provision of services in those areas is often hampered by the fact that there are state borders, so state authorities are providing services that only go up to the border. It was described at the briefing as putting a rubber band around the area so that the state borders are no longer relevant for the provision of services or the provision of access.

Why did they decide to get together and do this? Primarily because on the NPY lands, as we would be aware in this state from the APY lands, at times there are quite significant problems with alcohol abuse, substance abuse, petrol sniffing—which, of course, people will be familiar with—sexual abuse and domestic violence issues. Because most of our legislation and attempts to deal with those things at this stage are stopping at the border, there was a problem with—for instance, to take the simplest example—someone who committed an offence in South Australia could just get across the border into Western Australia and the police would effectively have to stop their pursuit at the border and then go through a process of arranging an extradition of the person, which is a lengthy and complicated thing to do.

There was a roundtable in 2003 and the outcome was that, in 2007, the three governments—that is, the West Australian, Northern Territory and South Australian governments—agreed that they would develop a bill and, indeed, agreed that the model bill on which the other two jurisdictions could base their legislation would be developed by Western Australia. I guess it is important, from a legal perspective—and the Attorney certainly stated it in his second reading, or it was in his second reading as inserted in Hansard—that this bill does not attempt to change the substantive law as it applies in any state. It is not actually changing the law of the state or the Northern Territory or Western Australia, obviously, and nor do their laws change their substantive law. I will come to a couple of minor exceptions in due course. What it aims to do is to make our law applicable in the Territory or Western Australia with things that are connected to the lands. We will come, in due course, to how it is defined to come within the lands or have a necessary nexus to the lands.

What it does, though, is basically enable the operation of our law to extend beyond South Australia's borders but still operate as though it was in South Australia. For instance, a court in Western Australia could deal with an offender in Western Australia (but who lived in the APY lands and committed an offence in South Australia) subject to the laws of South Australia.

As I said, the Western Australian parliament was the first one to pass legislation and they already have that in operation—

The Hon. M.J. Atkinson: Surely it should be 'it'. Surely the parliament is singular.

Mrs REDMOND: The members of the Western Australian parliament passed the legislation, which received royal assent on 31 March last year. I cannot recall exactly from the briefing, but I think the legislation currently before us is roughly equivalent to legislation that is also before the Northern Territory parliament as we speak.

The intention of the bill is to allow for easier, cheaper and faster prosecution of alleged offenders by removing the need to extradite between the states, but it is more complex than simply allowing police (as in my illustration) to run across the border to apprehend someone. The bill provides that police, magistrates and so on will be able to use the nearest, most convenient court facility.

So, an offender in South Australia who seeks to escape across the border can be chased across the border, apprehended, and either brought back to South Australia (if that is the most convenient thing to do) or brought before an appropriate court in the other state or territory but dealt with in that court as if the court were in the state of South Australia. The magistrate would apply South Australian law, albeit that it is in Western Australia.

This necessitates the court in the other state or territory having magistrates who have been specially trained in the laws of the respective states and territories, and, similarly, police being authorised as special constables trained in the laws of the other states and territories. It also requires some modifications to sentencing, which I will also deal with in due course.

It occurred to me, when I was looking at the bill, that someone who lives in the APY lands and who commits an offence in the APY lands could run across the border into Western Australia and into the area of the Central Reserves (as it called), which is part of these NPY lands. Clearly, the bill provides that the act will apply to them and that the cross-border provisions will apply. They can be captured and dealt with without extradition under this legislation.

However, I am very familiar with the way the bush telegraph works in some of these remote areas—it works with amazing effectiveness—and it occurred to me that someone might run into Western Australia but specifically go further down the border, out of the area bounded by these NPY lands, and thus avoid the problem. However, the act addresses that by making provision that the alleged offence has to have a nexus with the scope of those lands; it is not necessary that it be committed there.

So, one of the factors is that the alleged offence occurred within the region, and that factor alone enables the chasing, even though the chasing might have to go to somewhere outside the region, or if the offender is arrested in the region (so, even if the offence were committed somewhere else), or if the alleged offender was normally resident in the cross-border region either on the date they commit the offence or the date on which they are charged, basically the date of arrest.

There is also another provision which says that if, when the person comes before the court, he ordinarily resides in the region, or is before the court for a different matter that has a connection with the region, then that will also activate these provisions.

That may have some interesting consequences. For instance, theoretically, someone who lives in suburban Adelaide might run away up into the APY lands, having committed an offence in suburban Adelaide, and be caught and arrested there. One wonders what effect that might have on where things might happen because it provides that the alleged offender was arrested in the region. I would have thought that it could create some complications and, indeed, I will come to what the Aboriginal Legal Rights Movement (ALRM) says about the matter; I think they mention it.

The onus of proving that you have not activated the application of this legislation is going to rest with the person who is the alleged offender. So, the police make the assertion and if you say, 'Hang on a minute. No, I am not subject to the cross-border territorial jurisdiction', you have to prove it, and I think that is another issue that ALRM has mentioned in its letter.

As to the matters which are covered, essentially, they are Magistrates Court matters and Youth Court matters, provided it is a Youth Court constituted other than of a judge or someone sitting with a judge. The vast majority of youth offenders are dealt with in a Youth Court which is constituted by a magistrate sitting alone. Under this legislation, if one of the other conditions is met to activate it, the sorts of matters that a magistrate can deal with are basically summary offences, offences before the Youth Court which are of the sort which a magistrate would normally deal with, and a number of more serious or indictable offences which come before a magistrate, for instance, for a bail application or a committal matter; then those can also be dealt with.

It is basically intended to ease the accessibility of that lower level—or, in the more serious cases, the first level—of the justice process without having the need to extradite. You can imagine the difficulties of extradition if someone was running away and crossed the state border into another state where the police cannot chase. They then have to make application for the other police to apprehend the person; they then have to deal with resistance to an extradition order which has to be legally funded and so on. A range of issues, not covered by the legislation, will simply be practical issues that are likely to arise in the whole of what will happen in the course of these provisions being triggered.

I want to highlight the example the Attorney gave in his second reading explanation of the sort of thing that can happen regarding the jurisdiction and so on. He said:

For example, if a person is arrested in the Northern Territory and charged with an offence alleged to have been committed in South Australia, a magistrate sitting in the Northern Territory could hear the matter sitting as a South Australian court and the South Australian laws of apprehension, court procedure, criminal liability and sentencing would apply. Although convicted offenders will be sentenced according to the law of the jurisdiction where the offence occurred, the sentence will travel with the offender. That is, a person convicted of a Northern Territory offence but serving a custodial sentence in South Australia will serve that sentence as if the person were in the Northern Territory.

I thought that was a straightforward way of expressing just what happens. As I said, there will still be a need for certain modifications which are considered necessary for the implementation of the scheme.

When they began to think about having this legislation, after this round table, and they decided that it was necessary to have this cross-border justice legislation, and having resolved that they would have this cross-border jurisdictional regime apply, they began to look at where the differences in the law would occur and whether there was any incompatibility.

As I have said, it will be necessary that particularly magistrates and police officers will need to be trained in the law that applies in the other, in our case, state or territory so they can then be special constables or magistrates for that state or territory if an offender is apprehended within South Australia for an offence committed elsewhere. They did that. There was a detailed examination of the law, and the main differences were fines enforcement. From recollection, the territory and Western Australia are, I guess, more heavy-handed in their application of fines enforcement in that, if you do not pay the fine, a warrant will be issued and you will be arrested; whereas, in South Australia, a precedent is issued to have you brought back before the court, effectively, but not to just throw you in the slammer straightaway.

According to the second reading speech of the Attorney-General, South Australia does not allow police to issue short-term restraining orders. I have not had time to check how things work in the other states by way of comparison, but my understanding of it is that—and it is now more than seven years since I have been in practice, and I am not aware of any change—if you are in fear of someone, you go to the police station, put the facts before a police officer and that police officer does, indeed, issue an interim restraining order.

The Hon. M.J. Atkinson: Ex parte.

Mrs REDMOND: The restraining order is then issued, as the Attorney says, ex parte. It must then be served on the person to whom it relates, and that person has the opportunity to go before the court and dispute the restraining order, although that is generally singularly unsuccessful. Why would anyone object to having a restraining order against them? Just as an aside, my experience of restraining orders is that they are only as good as the person who is willing to comply with them and, therefore, they are of little assistance with the really difficult circumstances that can arise.

I do not dispute for one minute that there is a difference between our state and the Northern Territory and WA in terms of how they operate restraining orders. However, I was a little puzzled by the Attorney's assertion in his second reading speech that the difference arises because South Australian police are not authorised to simply issue a short-term restraining order. Maybe it is just a difference in the technicality that our restraining order must be—once issued ex parte—served as soon as possible on the person against whom it has been issued, and they must have the opportunity to take the matter to court and dispute that order. So, perhaps the Attorney can clarify that in his response in due course.

There is not really a major difference between the states and territories, but there is a commonwealth act, the Service and Execution of Process Act, which also needs amendment. I understand that the commonwealth supports the basic thrust of the legislation and has agreed to amend the act. It intends to do so by introducing legislation for that purpose this month.

The bill also provides for a review of the operation of this legislation after three years. I suspect that, if it operates well, it may well then be extended to other areas. As I said earlier, the bill is designed so that other areas can be incorporated into the same system. For instance, the area that I used to be involved in, in the far West Coast native title claim which stretched well across into Western Australia, could be the sort of area that is incorporated into a new area covered by this legislation.

When I read through the legislation and had the benefit of the briefing from the departmental officers—whom I thanked at the beginning of my comments but who are not here to hear them—it occurred to me that there are a number of questions I would like to explore. The first question is that of indirect discrimination.

The bill for equal opportunity will be in this chamber shortly; it is currently in the other place. It may not be here very soon, but it will eventually arrive, probably. In any event, the notion within that legislation is that one could be guilty of direct discrimination by simply saying, 'I am not going to employ females as lawyers'—as an assistant Crown Solicitor once said to me—and, 'if they must be lawyers, they are only going to do conveyancing while I am the assistant crown.'

The Hon. M.J. Atkinson: Would that be in New South Wales?

Mrs REDMOND: That was in New South Wales, and it was a long time ago. That is direct discrimination. An example of indirect discrimination is that, if you do not want to employ women and, instead of saying, 'I'm only going to employ men in this job,' you say, 'I'm only going to employ people who are more than five feet nine tall.' I am sorry, I cannot convert that into centimetres; I still work on old measurements in terms of height, and I am sure the entire population works on old measurements in terms of height.

The point is that, with indirect discrimination, if you do not want to employ women, you do not say, 'I'm not going to employ women,' you simply say, 'I'm only going to employ applicants who are more than five foot nine or five foot ten,' or whatever. Most women will be shorter than that, so it can be argued that that sort of thing creates a barrier for women, which is reasonable if there is a reason for the height requirement but not reasonable if all you are doing is trying to exclude a class.

It occurred to me, in reading this legislation, that there is potential for the same problem here. In applying a particular regime to this area, there is potential for someone aggrieved by it to say, 'I am being discriminated against,' because this regime will clearly apply predominantly to indigenous people. It is perfectly reasonable to say, yes, that is true, but it is not designed to apply just to indigenous people; it is designed to apply to anyone within the lands.

That is absolutely true; nevertheless, I think there could be at some future time an argument by someone aggrieved by this legislation and its effect that they are being discriminated against. That occurred to me. I noted in the ALRM submission, which I will come to shortly, that they also raised the same sort of issue.

I also wondered about the practical aspects of interpreters. People from certain groups within that area, should they run away and be caught in a far-flung area, may well be people for whom English is not even a second language, for whom English is not a language, and who will find significant difficulty in terms of understanding the processes being applied to them. As I said, it is a practical aspect of how this will all be implemented rather than a complaint about the legislation.

I recognise that we cannot put everything into legislation, but I suspect that some difficulty may arise in terms of not just interpreters but even in the provision of legal aid. For example, someone in another state or territory who needs legal aid to appear in a Western Australian court for an offence committed in the Northern Territory may reside in the APY lands. I think there will be some complications. Again, when I read the ALRM submission, it was something that had also occurred to them.

I also thought about the choice of what we used to call the forum conveniens and at whose convenience that forum is chosen, whether the person who is the alleged offender gets any say about whether the matter is heard interstate or they are taken back to their original place. I have no doubt that all those decisions will impact on each other. In order to hear a matter with a person who does not speak any language which is relevant to where they are and with whom one cannot communicate, I think it would automatically direct that the matter be referred back to a jurisdiction where they can be understood and can obtain appropriate legal advice. I think there will be some complexities in how that comes out in the wash.

If this system seems to work and seems to be effective enough to be spread to other regions, will we end up with separate sets of laws that apply to one group of people as opposed to another? I have a real concern about an apartheid aspect to any problem that might arise; and I accept the Attorney-General knows much better how to pronounce the word 'apartheid'. Those questions occurred to me.

I was interested to receive a letter from the Law Society, which indicated that both its Aboriginal Issues Committee and its Criminal Law Committee had considered the legislation. Essentially, they endorsed what ALRM had to say about it. They did talk about some things, which I will deal with in more detail when I talk about the ALRM position on it. They talked about the width of the application and how you define something being triggered by this legislation. They raised the problem of an offence being committed in Adelaide by a person who lives in Adelaide but who is arrested on the APY lands. Suddenly, this seems to be triggered in spite of the fact that normally that would not be necessary at all.

They raised a question about retrospectivity in clause 18. They raised some concern about the reverse onus, about which I have already spoken. They felt the meaning of the word 'suspected' might be capable of a more precise definition; they thought it was a bit rubbery.

I want to deal in some detail with what ALRM had to say about the bill. In a fairly lengthy paper they set out about 15 concerns. I do not intend to read them in detail but, like the Law Society, they refer to the problem of the reversal of the onus of proof. They say that if the person being arrested disputes they were in the cross-border region at the time of the arrest or that they ordinarily resided there, the onus of proof of that is on the person who has been arrested. The ALRM submits that that is not appropriate. They would like to see that opposed and, indeed, deleted from the legislation.

I indicate that I only got ALRM's submission this morning. I have read it and considered it, but it has not been considered by our party room, so at this stage I will not be indicating our position in relation to any of these proposed amendments. However, they are worthy of being noted because the ALRM has done a lot of work in considering the bill. Like the Law Society, they express concern with the provision of section 18 about retrospectivity. They felt that the legal concept of residence was very elastic.

Their fourth point is that they say:

...effectively the only Court that can exercise uniform jurisdiction over cross border appeals is the High Court of Australia, since it is the only Court of Appeal from each of the State and Territory Supreme Courts. Whether the High Court will be able to develop uniformity between the State and Territory Supreme Courts remains to be seen.

They suggest that, indeed, there not only needs to be uniformity of interpretation but a kind of cross border common law. They think that that will need to be developed.

Their fifth point is one of the things that I had thought about. They expressed some major concerns about resource implications, because obviously they are already significantly underfunded, and the option of having police and magistrates who are trained in the laws of other states is likely to necessitate lawyers able to represent people who are arrested, for instance, for South Australian offences in other states and thereby the Aboriginal Legal Rights Movement (or their equivalent people) being required to also be familiar with processes and so forth in other states. They already have some concerns about their ability to provide and maintain adequate training for the lawyers involved and they do raise the question (although they do not point to anything specifically) of professional indemnity insurance.

They talk about limited cross admission for practitioners. They say that the cross admission practitioners would not have the same status as fully admitted practitioners in the states and territories, but, no doubt, in due course, that will be taken care of by the Legal Profession Bill. Like me, they raise the question of what happens if an interpreter is needed and was not or cannot be provided. Interestingly though, they made a couple of comments that I think are quite positive in terms of suggested improvements to the legislation.

In particular, they raise the issues of what about guardianship boards and mental health legislation? They recommended that there be a consultation with the Nganampa Health Council to find out from the medical practitioners associated with that health council whether they should have the extension of those particular bits of legislation, and they also considered that similar considerations would apply to guardianship orders and the role of the Public Advocate.

I think that there is some merit in what they say. It is self-evident that the original impetus for this whole legislation has come from the fact that we have significant alcohol and drug dependency problems, substance abuse problems and even domestic violence problems and so on. If we are to make the administration of justice across the borders simpler, those sorts of issues will often come into contact with issues of guardianship orders, mental health issues and the need for the involvement of the Public Advocate.

In a number of their submissions, they recommend that these extra areas will be taken up. They do not specifically say one way or the other in their fairly lengthy submission, but I take it that they are relatively comfortable with the overall thrust of the legislation—its being initiated (as it was) with the NPY Women's Council. However, they do suggest that it might be appropriate to consider including guardianship and mental health aspects.

At item No. 11 of their submission they raise this issue that I raised, although they do not call it 'indirect discrimination'. They say that they have concerns that this complex legislation is being enacted to cover the tri-state region, which will have the effect of singling out the people who live on the APY lands. I think the point that they are making is the one to which I have already alluded; that is, it could be seen as indirect discrimination. They also talk about what I referred to as the 'forum conveniens', but they talk about the danger of forum shopping and raise the issue of the number of criminal files which will be aggregated and dealt with at the same time.

They say it will be entirely possible for a South Australian magistrate, sitting in Western Australia, to deal with Northern Territory, South Australian and Western Australian offences in relation to the same individual, and the likelihood of custodial sentences being imposed is, accordingly, increased.

The ALRM then raise an interesting little issue of work sharing and custody notifications. They point out that there is a general order 3015 applicable to SAPOL which requires South Australian police to notify ALRM of the arrest of Aboriginal people in South Australia. They simply raise the query: has the equivalent of that been thought of?

Clearly, the actual laws in place in each place have been thought of, but in practical terms is there going to be an obligation to notify ALRM or its equivalent? How is that communication going to occur? So, they are raising some of the practical difficulties, although I take it that they are not unhappy with, as I said, the basic thrust of the bill.

The ALRM simply state that it would be desirable for there to be uniformity on this topic, preferably by legislative requirement, that the state and territory police make relevant notification to the relevant people. They go on to state:

In addition, protocols will need to be arranged to ensure that the appropriate [people are] notified of an interstate arrest by its jurisdiction's police, interstate.

They use the firm ATSILS, but what they talk about is having a conference to resolve those issues and discuss the full implications of what it is going to mean in practical terms to implement all of this.

The last issue that the ALRM raise concerns the operation of the Coroner's jurisdiction under the tri-state legislation, particularly regarding the proposed effect on the Coroner's jurisdiction for deaths in custody. They state:

At this stage it appears the state Coroner will have interstate jurisdiction over deaths of SA people in SA police custody interstate, by virtue of section 3 of the Coroner's Act 2003, as well as geographical jurisdiction over all deaths in custody that occur in South Australia, regardless of whose custody the person was in.

As I said, the ALRM did quite a bit of work in looking at the detail of the bill, but more especially in trying to consider in practical terms—and they are probably the ideal group to do that—how this is going to impact.

I did not get a sense from their submission that they are opposed overall to the introduction of the legislation, but that they do raise these issues, some of them quite particularly about retrospectivity and so on, but in other areas they simply think that, when you start thinking about how this is going to work, they are so familiar with what happens in criminal cases, being virtually the only legal service provider for people in the APY lands, that they are alive to the various practical considerations that are likely to come about in implementing the legislation.

I think there is some merit in their idea that there be some sort of a conference for those who are involved in the practical implementation of this legislation, so that all those issues can be worked through as part of the introduction, rather than simply waiting to see what happens three years from when it commences when the legislation itself will be due for review.

As I said, it is a bill which I indicate that those of us on this side of the house will be supporting. At this stage we are not in a position to indicate whether we will be seeking to take up any of the matters raised by ALRM in their submissions but, as I understand their position, it is not that they are seeking opposition or seeking to defeat the bill, they are merely seeking to raise what they consider to be reasonable difficulties which could arise in its implementation and to offer some constructive criticism on how best to overcome those particular problems. So, with those few words, I indicate—

The Hon. M.J. Atkinson: Few!

Mrs REDMOND: The Attorney says 'few'—and he could be inviting me to speak for even longer, but I will resist the temptation.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: I will resist the temptation to speak for longer to allow some of my colleagues to speak. I thank the member for Mitchell for alerting me to the Law Society's submission in the first instance. I know the member for Mitchell and a couple of other members on this side want to add a couple of comments in relation to the bill.

Dr McFETRIDGE (Morphett) (16:45): I rise to support the Cross-Border Justice Bill. My colleague the shadow minister spoke about a number of issues, and I will raise some concerns in my contribution. This bill is going to cover an area over parts of Western Australia, the Northern Territory and South Australia. There is a map available (put out by the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council) which covers most of the Central Desert and Western Desert communities. I assume this is about the region that is going to be covered by this bill. It goes from Tjirrkarli in Western Australia in the Ngaanyatjarra Shire to not quite up to Kintore in the Northern Territory, across to Finke (or Aputula, as the Aboriginal people call Finke) in the Northern Territory, down to Mimili and Indulkana, Watarru and to Wallatinna.

The issues of law and order, family violence, crime and domestic violence have been well covered by a number of pieces of legislation that have gone through this place. One of the problems that has been around for quite a while is the way that people who live in these areas move around from community to community. The borders do not really mean a lot to them. Their land is part of their culture and has been for thousands and thousands of years. This bill will enable police officers who are working in South Australia, the Northern Territory and Western Australia to act across borders to implement legislation, despite which state it originates in.

Northern Territory police officers can go into South Australia or Western Australia; South Australian officers can go into Western Australia and the Northern Territory; and Western Australian officers can go into the Northern Territory and South Australia. It is long overdue. There has been some opportunity to use special constable provisions, as is the case with the South Australian police officers going to Victoria at the moment to assist over there, in these cross-border regions in the Northern Territory and Western Australia. This piece of legislation smooths out that whole process and puts it into a much longer term of action which is absolutely necessary.

The need to do this has been highlighted, particularly in the recent Mullighan report and in several Coroner's reports. It is interesting to note that in October 2008, in the APY Lands Task Force's most recent report, there was some mention of safety issues, some of the achievements that the government had either achieved or were aiming towards were increasing penalties for trafficking petrol and other substances; establishment of mobile drug and alcohol services; and the substance misuse centre that opened at Amata. I went there last year to have a look at it. It was interesting that the only people there at the time were a local rock band practising in one of the halls and some people who were involved in housing upgrades who were using the facility as temporary accommodation. It is a good facility and certainly one that is long overdue.

The issue of police officers on the lands has been one of contention in this place. The government says that there were no police on the lands before 2004, and that is correct inasmuch as there were no police officers actually living on the lands and stationed on the lands before then but there were patrols going out there regularly. The tyranny of distance is a real issue out there. Just to remind people in this house that if you drive from Adelaide to Pipalyatjara, which is in the north-western corner of South Australia, by road miles it is actually further than driving to Sydney. The last part of that trip is a very difficult drive over some very ordinary roads. The need to get police into the communities is something that is absolutely necessary. The APY Lands Task Force has been working on that.

It is interesting that the senate inquiry into petrol sniffing was in Adelaide yesterday receiving submissions. I understand that members of the Aboriginal Affairs and Reconciliation Division were witnesses there, but were unaware that this bill was being debated in the house today. I hope they have now been brought up to speed, because the department's submission, of August last year, to the Senate Committee Inquiring into Petrol Sniffing and Substance Abuse in Central Australia said that a draft bill had been developed and was still being discussed at cross-jurisdictional meetings, and that specific operational protocols were also being discussed. I hope the minister can enlighten us regarding what is happening with those protocols; whether discussions have progressed and whether the protocols have been laid out. Without those operational protocols it will be difficult for police officers to do their job—that is, chase crims and crooks and others they want to catch across borders.

Operation Midrealm was established in 2004 by the Northern Territory, South Australian and Western Australian police with the help of the federal government. It was aimed mainly at cracking down on illicit substance abuse and semi-organised drug organisation throughout the Ngaanyatjarra Pitjantjatjara Yankunytjatjara lands. This legislation is another step forward.

The bill does have some areas about which the Attorney, a much more learned legal mind than mine, will perhaps be able to enlighten me. One issue relates to the differences between South Australian and Western Australian legislation on P-plate drivers. I understand that in Western Australia one can have a blood alcohol content of .02; in South Australia it is zero, and I am not sure what it is in the Northern Territory. It is those sorts of issues, and I am sure there are one or two others out there, that need to be worked through before the protocols can be put in place and any ambiguities sorted out.

The need for this bill is well and truly supported by all the communities up there. I have spoken to them recently about this legislation and they are keen to see it come into effect, because there have been a number of occasions when communities up there were aware of offenders within their communities and from other communities who were evading the law by going across the border—whether from South Australia to Western Australia or the Northern Territory or vice versa. Of course, there was a well publicised case of an elder from a community, an alleged paedophile, who moved from South Australia to the Northern Territory. I am told that some of the stories around that were fiction, but the concern is still there that people who commit crimes are able to avoid apprehension by going across borders. We hope this legislation will fix that.

The member for Heysen, the shadow attorney-general, has been through her concerns and those of the ALRM, and from the ALRM's point of view I would like to see the Attorney-General come out and say that he will help it with its funding for these cases. I would like to see that happen because back in 1991, when discussing the royal commission into deaths in custody, the Premier, the then minister for Aboriginal affairs, said that he would do that, he would increase ALRM funding. I would like to see that funding increased by this government as the Premier, the then minister for Aboriginal affairs, said it would be back in 1991. It is a shame it is not happening now.

I ask the Attorney to make sure that this legislation is able to work, that the people who are expected to both enforce it and deal with its legal technicalities are able to do so and are not limited by funding. It is not a matter of whether or not it is Liberal Party policy: it is a matter of whether this legislation, that the government has put before this house, will be properly funded and whether all the participants who are caught up in it will be able to deal with the legislation in the way intended.

The Hon. M.J. Atkinson interjecting:

The SPEAKER: Order, the Attorney!

Dr McFETRIDGE: I wish the legislation speedy passage through the house.


[Sitting extended beyond 17:00 on motion of Hon. M.J. Atkinson]


Mr HANNA (Mitchell) (16:55): It is amazing how often I hear comments like 'they should just abolish the states' when I am amongst my local community discussing politics or general issues. I do not know whether to some extent that is a reflection of their perception of members of parliament. The logic goes something like this: MPs behave badly; if we had fewer of them, there would be less bad behaviour. That perhaps drives some of that.

People also see some practical issues with our multiplicity of states and the rigidity of state borders in many cases, not to mention the duplication of funds that is required. For example, people see that there are nine or more police forces in Australia and, quite rightly, people ask whether there is some wastage in having all these separate structures. A country like South Africa is quite a good comparison in terms of its constitutional set-up, to some extent, and they have one national police force that covers the whole country. Why can't we have that?

The Hon. M.J. Atkinson: What's the crime rate there, Kris?

The SPEAKER: Order!

Mr HANNA: I believe that one day it will happen. I am quite sympathetic to the notion that the states should be abolished. I do not feel at all hypocritical in serving in the state parliament until that happens—

The Hon. M.J. Atkinson interjecting:

The SPEAKER: Order! The Attorney-General will have an opportunity to respond.

Mr HANNA: —and I will serve the community to the best of my ability while we have the state parliament. I believe that, perhaps before the end of this century, we will find that we can actually do without them. The Canberra government will become stronger in terms of its relative financial power and people will also see more sense in having regional governments based around water catchments.

Returning to the legislation before us, another of these practical issues that people think is ludicrous is that people can cross over a state border and thereupon throw up a great barrier to pursuing them for either criminal matters or civil remedies. While it is true that, if a debtor in South Australia escapes to Queensland, for example, it is possible to engage local debt collectors or lawyers in Queensland to pursue them there. The fact is there is extra expense. It is a foreign jurisdiction with different civil procedures, and that is ludicrous in a country of 21 million people.

In criminal matters, the same thing applies. We have a situation like that I have seen in some B-grade American crime movies where the felons drive as fast as they can to get across the state line and, magically, they appear to be immune from apprehension once they have crossed a state border in the US. It is actually like that in real life here in Australia. The elaborate procedures for extradition are carried out in relation to serious offenders but I know for a fact that, in relation to a number of minor offenders, police simply do not bother to go through the extradition procedures that are available. It is just not worth it for some minor offending.

The government is taking a constructive step in bringing in this cross-border justice legislation which makes South Australian borders more porous for law enforcement and judicial procedure purposes. The bill throws up a host of practical issues, and I will have a dozen or so questions to ask when we have the opportunity to examine the clauses in detail, but I do support the bill.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (17:00): I thank the members for Heysen, Morphett and Mitchell for their contributions and I note what I interpret as a pledge from the member for Morphett that a Hamilton-Smith government will fund, for the first time, the Aboriginal Legal Rights Movement from state taxpayers' funds.

The member for Heysen asked whether the legislation would have a disproportionate effect on indigenous people. I think she answered her own question—yes, it will. The whole cross-border scheme is a response to problems faced by indigenous people living in the region, but it will apply to any offender in the region.

It is true that more indigenous people live in the region than non-indigenous people. The legislation is a response to safety concerns brought to the governments of the three jurisdictions by representatives of the indigenous communities. But the law applies to everyone who has a connection to the region. People who are passing through the region and commit offences and people who go into the region to commit offences such as alcohol and drug running may be dealt with under this legislation. It is enabling, not mandatory, in its application.

Crime statistics indicate a much higher rate of offending in the APY lands than in the rest of South Australia. There has been a reduction in offending or, if you like, increased public safety over the past few years because of increased police presence and enforcement in the region. We are still trying to increase the number of police on and living within the APY lands. We think that the cross-border scheme will give the police the tools to apprehend offenders who have avoided detection in the past by crossing state or territory borders.

On the question of the reversal of onus, there are three ways to establish a connection with the region. One is substantive, the place of the offence. The others are procedural, the place of arrest and the place of residence. It would, of course, have been inappropriate to reverse the onus about the place of offence as that is a substantive matter going to the proof of the offence. An accused is required to prove place of arrest or residence on the balance of probabilities. If the onus on procedural matters were not reversed, the prosecution would have to prove an additional non-substantive element that the prosecution would not normally have to prove.

If the prosecution were required to prove the procedural matters, there would be the potential for a finding of not guilty to be entered because of the failure to prove something that was not an element of the offence. Reversal does not remove the alleged offender's right to challenge the proceedings on the basis of non-compliance with the procedural matters: it just relieves the prosecution of the need to prove matters that are not elements of the offence.

It is unlikely that an accused person would challenge on the basis of residency or arrest. If he or she did, the court could proceed by way of extradition. In most cases, it will be to the accused's advantage to use the cross-border scheme, because it will be more convenient for everyone.

The member for Heysen asked about the meaning of 'ordinarily resides'. That does not have any technical or special meaning. They are ordinary English words. It is not possible to prescribe a minimum length of time as being sufficient to conclude that a person is ordinarily resident in a particular place. There has been no attempt to define it. Like the term 'domicile', its meaning depends very much on the circumstances of the case. Whether a person is ordinarily resident in the region would be a question of fact in each case.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Yes, indeed. The member for Heysen is right on that. Regarding restraining orders, the Northern Territory police can make restraining orders that are later dealt with in a court, and they can issue a restraining order on the spot. My advisers rather doubt that that can be done in South Australia. On the question of legal aid, it is for the agencies to work together and develop protocols. Agencies are working up service level agreements to deal with the practicalities of this legislation.

The member for Heysen asked why it was decided to focus only on the central area. Well, the cross-border scheme is a response to particular concerns about community safety brought to the NPY Lands Tri-Jurisdictional Justice Initiatives Round Table in Alice Springs by the NPY Women's Council in 2003. Police statistics, as I have said, indicate a much higher APY offending rate than the South Australian public generally. There has been a reduction—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen said that she did not ask this question. I will go on and answer it anyway, whoever asked it. As I said, there has been a reduction in offending over the past few years. We hope that the scheme will increase community safety by giving police the tools to apprehend offenders who have been evading police by crossing state and territory borders. It may be that I was asked that question on radio; that might be the origin of it. At that time, I said that I did not think we had a great problem with offenders going to ground in Lucindale or Robe and hiding out in Casterton and Edenhope; therefore, we concentrated on the Central Australian region rather than the South-East of our state. The legislation is drafted so that it can apply to other prescribed cross-border regions.

I also seem to recall that there was a question about retrospectivity. The legislation allows an offence that occurred before the commencement of the legislation to be heard with a cross-border matter. It may be an offence from the week before. It is to the advantage of all parties, otherwise the matter is dealt with at another time and place. The person must be bailed. The matter may be dealt with, but it does not have to be dealt with; not to deal with the other offences sends the wrong message to offenders about the scheme.

I believe we have been asked about custody notification. This will be the subject of discussions with police. Senior police will place this into their service level agreement. It is currently dealt with under police protocols in general orders.

On the question of the Coroner's jurisdiction, a decision was made after discussion with the Coroner not to interfere with the Coroner's jurisdiction. If a prisoner dies during an extradition, this may already involve more than one Coroner. Western Australia and the Northern Territory do not have to carry out an inquest where one is already being done.

On the question of protocols, there is a project executive meeting in Alice Springs next week. Police have, as have other relevant agencies, been working out service level agreements that will be signed when regulations are finalised. Work is continuing on service level agreements and protocols. I hope that covers the questions that the member for Heysen asked—and also the questions she did not ask.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

Mr HANNA: I thank the Attorney-General for addressing some of the unanswered questions in his concluding remarks to the second reading contributions. Indeed, he answered questions that had not been asked. In the course of doing that he referred to the office of the coroner and explained fairly well that the current situation will continue; that both coroners could get involved in the investigation of the death of someone who was in the course of being taken across the border in custody, but that if one coroner had already began an inquiry an interstate coroner would not need to get involved. If that is not the case, perhaps the Attorney-General could clarify the situation.

There is a definition of 'office holder' in the interpretation section of the legislation. On my reading of it, it could also refer to the Public Advocate, for example. I wonder what the situation would be if someone under the care of the Public Advocate was taken interstate to answer a charge, whether the Public Advocate could intervene across the state border, so to speak, perhaps by providing advice or even arranging representation.

The Hon. M.J. ATKINSON: Could the honourable member reformulate the question in relation to the Public Advocate?

Mr HANNA: If someone was transported interstate to answer a charge and that person was under the care of the Public Advocate, would the Public Advocate be able to effectively carry out their caring role if the person was taken out of the South Australian jurisdiction in custody?

The Hon. M.J. ATKINSON: I do not think this bill is intended to address that situation. If a South Australian under the care of the Public Advocate has removed himself or herself into the Northern Territory or Western Australia and been processed for criminal offences there, it is hardly down to the Public Advocate that they are there. They have already flown the jurisdiction. Perhaps the member for Mitchell could reformulate the question; perhaps I am not understanding his question.

His earlier commentary that I can address is that in South Australia there is an obligation on the Coroner to have an inquest into a death in custody whereas in Western Australia and the Northern Territory, if there is another inquiry, the coroner is not obliged to hold an inquest.

Mr HANNA: In relation to the question about the role of the Public Advocate in certain cases, I take it that, as this act is applied, a person could be arrested in one state and be taken to another state for judicial process. If a person leaves this jurisdiction, not of their own will but, rather, in custody, how is the Public Advocate able to effectively carry out their role to care for that person?

The Hon. M.J. ATKINSON: I do not think there is anything to stop the Public Advocate, who is based in Adelaide, ministering to a client ordinarily resident in the APY lands who happens to be detained in the Northern Territory.

Clause passed.

Clauses 6 to 16 passed.

Clause 17.

Mr HANNA: Can the Attorney explain how these cross-border laws do provide an alternative procedure to the Service and Execution of Process Act of the commonwealth (known as the SEPA legislation for short)?

The Hon. M.J. ATKINSON: It means we do not extradite.

Mr HANNA: Is it not conceivable that the criminal procedure laws of either Western Australia or the Northern Territory will be different about service of notices to a defendant? If that is the case, how is service to be affected if they reside in a state other than the place where they are being dealt with judicially?

The Hon. M.J. ATKINSON: If the offender is ordinarily resident in South Australia, offends in South Australia, flees to Western Australia and is apprehended in Western Australia, the South Australian law can apply in a Western Australian court to that offender and is therefore portable.

Clause passed.

Clause 18.

Mr HANNA: Why did the Attorney-General propose to make these laws retrospective?

The Hon. M.J. ATKINSON: Convenience.

Mr HANNA: Obviously convenience is a different matter to justice. I ask the Attorney: the convenience of whom and why?

The Hon. M.J. ATKINSON: The convenience of all, including the accused person, so all his offences can be gathered up and dealt with at once, which, maybe while the George Mancinis of the world do not want that to happen, normally the accused do.

Clause passed.

Clause 19.

Mr HANNA: I realise that the initial application of the legislation will be to the cross-border region represented by the APY lands. Does the Attorney-General have any inkling of future areas that might be prescribed by regulation?

The Hon. M.J. ATKINSON: No.

Mrs REDMOND: I have a question on that. My reading of it, in spite of what is said in clause 19, is that because of what appears earlier in the bill, at this stage other states, such as Queensland and New South Wales, cannot just opt in. It still has to be somewhere with a border. So, it could be, for instance, the area that I used to act in out on the Nullarbor, where we have the SA/WA border, but you cannot actually go anywhere outside these two states and one territory without bringing legislation back to encompass another state within the scheme.

The Hon. M.J. ATKINSON: It could be done by regulation. I take it that that is the member for Heysen's question?

Mrs REDMOND: I was looking more specifically, I think, at clause 4, which has already passed. Clause 4 provides:

This act gives effect to one or more cooperative schemes between the state and one or both of the other participating jurisdictions...

I would have thought that at that point you have then limited it to South Australia, Western Australia and the Northern Territory and that you would have to bring the legislation back and amend that little bit before you could actually expand it under clause 19.

The Hon. M.J. ATKINSON: The member for Heysen is correct. If you were to bring in Queensland, New South Wales or Victoria, you would have to change the act.

Mr HANNA: Notwithstanding that in his second reading explanation the Attorney-General referred to the APY lands as in Australia's central desert region, if somebody was driving along the highway between Eucla and Kalgoorlie in the vicinity of the border, they could be dealt with under this cross-border region legislation, could they not?

The Hon. M.J. ATKINSON: The answer is that they would have to be in the prescribed region, and in the example given by the member for Mitchell they are not in the prescribed region.

Mr HANNA: I find that answer difficult to understand, in light of clause 19. Clause 19 provides:

A cross-border region is a region that—

(a) straddles the border between the state and one or both of the other participating jurisdictions.

I know there is a second part to that which refers to areas prescribed by regulation, but clearly the road that I am talking about straddles the border between South Australia and Western Australia. So, is the Attorney-General correct in that last statement?

The Hon. M.J. ATKINSON: The answer to that is that we could prescribe that section of highway to which the member for Mitchell refers, but we know that we are not going to.

Mr HANNA: It is already in the legislation.

The Hon. M.J. ATKINSON: I say this with great reluctance but, in fact, on this occasion I am correct. What clause 19 says is that a cross-border region is a region that:

(a) straddles the border between the state and one or both of the other participating jurisdictions, and—

two requirements—

(b) is prescribed by the regulations to be a cross-border region.

The road to which the member for Mitchell refers does not fulfil the second requirement.

Clause passed.

Clause 20.

Mr HANNA: In the Attorney-General's concluding remarks to the second reading speech he did refer to the question of the ordinary residence of people. He said that such a thing would be decided as a matter of fact in each case. Does he appreciate, though, that the question of ordinary residence for a number of the people likely to be the subject of this legislation might, indeed, be very difficult to establish, given their lifestyle and cultural obligations?

The Hon. M.J. ATKINSON: Yes, I do. The member for Heysen has already made that point in the course of the debate, and I accept it. To return to an earlier question: why was I answering questions which were not asked in the course of the debate? That was because questions were asked by the Aboriginal Legal Rights Movement and the Law Society. Those two organisations were mentioned in debate by the member for Heysen so I thought it would be convenient to answer the questions, even though they were not asked explicitly by the member for Heysen.

Mr HANNA: Is the legislation being too broadly cast when it catches people for whom the offence is suspected of having been committed in the cross-border region? I mean, we may be talking about an offence that occurred some years ago, the person may have been a resident of Adelaide for some years, and there may be very little present connection to the cross-border region in respect of a particular accused person.

The Hon. M.J. ATKINSON: The proposed law is not cast in a mandatory way; it is cast in a facilitative way. It is meant to be the servant of South Australians not their master. I am sure that the agencies that are charged with applying this law will apply it in a sensible and non-tyrannical way. If we were to make the bill so prescriptive and detailed that it covered every circumstance that the member for Mitchell is canvassing, we simply would not have a workable bill.

We just want to get on with it in the cross-border region and make things work. If someone is alleged to have committed an offence on the APY lands in 1989 and is now living in deepest Trott Park, and has been for the past 10 years, I do not think they are going to be pulled into the maelstrom of the cross-border region law.

Mrs REDMOND: Just to follow on from that, I want to be very clear about the potential of clause 20 in particular and the legislation, and the clear government intention. My understanding, on reading clause 20, is that, as a theoretical possibility, you could have someone who lived in the heart of Adelaide who committed an offence in the heart of Adelaide, who was apprehended for that offence in, say, the APY lands and brought before a court in the Northern Territory or Western Australia. However, I understand from the Attorney's statement that he is assuring this committee that, although that is a theoretical possibility the way the law is cast, it is not the intention of the law to capture that type of scenario.

The Hon. M.J. ATKINSON: The member for Heysen is correct.

Clause passed.

Clause 21 passed.

Clause 22.

Mrs REDMOND: This relates to the issue of restraining orders, because I am still puzzled as to how restraining orders differ from jurisdiction to jurisdiction.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: I know it is not the main game, but since we are here anyway I thought we would just stop for a little peek at this section. It is still my understanding that in South Australia an applicant for a restraining order can approach a police officer and obtain an ex parte order. That ex parte order then has to be served on the person against whom it is named, and that person then has the opportunity to dispute that in court. Things may have changed since I was in practice, but that is how it used to work. I am curious as to what it is about restraining orders here and in other states that makes it necessary for us to have a differential provision in terms of those orders.

The Hon. M.J. ATKINSON: My recollection, as I expressed it, is that to get restraining orders, AVO orders, South Australian police officers have to go to court, even if it is a telephone application. They can and do get those orders ex parte. Indeed, my recollection is correct. So, despite having aeons of suburban law practice, on this occasion (and it is a rare occasion) the member for Heysen's recollection is incorrect. Coppers do not go flinging around restraining orders without approaching the court first.

Clause passed.

Clauses 23 to 26 passed.

Clause 27.

Mr HANNA: I heard what the Attorney said before we started examining the clauses in detail about the onus of proof in relation to a persons whereabouts at the time of arrest. The legislation would have it that the person has to prove they were not in a particular place at a particular time if they want to avoid the application of the law. However, in many cases police officers will have a vastly better idea of the precise location at which an arrest takes place.

This will be so particularly when a person is walking from place to place in the APY lands, for example, when the likelihood is that the police officer will have GPS tracking, satellite navigation, or whatever, with his or her vehicle, whereas the person walking between two towns, or even out into the desert, is unlikely to be able to describe the location in terms satisfactory to a court. So it seems to me to be unduly onerous for a person accused in that situation to have to prove whereabouts to avoid the application of the law. I trust that the Attorney would at least acknowledge that generally it will be much easier for police officers to prove this point of location than an accused person.

The Hon. M.J. ATKINSON: I dealt with this during the second reading reply, and I do not intend to elaborate. No-one will be avoiding the application of the law. They will have South Australian law applied to them wherever they are taken.

Mr HANNA: I simply make the point, then, that if the law was cast in the way one would usually expect, with the prosecution having to prove points such as this, and if the prosecution was not confident of being able to prove the matter of location, of course, it could just deal with the accused in the way that it would prior to the passage of this legislation, which means that the matter would be dealt with either under the law of Western Australia/Northern Territory or South Australia; therefore there would be no loss in terms of the administration of criminal justice. Thus it seems to me that it is a dangerous and unnecessary precedent to have the reversal of onus of proof in this matter.

The Hon. M.J. ATKINSON: In the years I have been Attorney-General, I have probably lost count of the number of times the member for Mitchell has said that. One recalls his militant opposition to the law against hoon driving. In fact, I think he was the only member of the house to oppose it. He opposed it on the voices, and he went on the radio claiming that the hoon driving legislation was a dangerous derogation from normal standards of criminal law and—

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: That is right, yes. The member for Mitchell refreshes my memory as to the grounds upon which he opposed our law on hoon driving. If the member for Mitchell had got his way not a single vehicle would have been impounded or wheel clamped in South Australia in the past five years. He was the only honourable member of this house who opposed it. Now, I noticed on my seat today when I came into the chamber the member for Mitchell wanting to improve it and extend the law. So, is this repentance? Is this amendment of purpose to his life? I do not know. However, if I were to take the member for Mitchell's criticism along the lines of, 'We'll all be rooned', I would not have done anything in this house in the last seven years.

Clause passed.

Clause 28.

Mr HANNA: Again, we have the same issue, but I cannot let this clause go past without making a comment that this is highly unusual legislation in requiring a person to prove where they did or did not live at a particular time. I say again that if this reversal of the onus of proof was not present the person would still be dealt with according to law. So, it is unnecessary.

Clause passed.

Clauses 29 to 31 passed.

Clause 32.

Mr HANNA: How will the Attorney ensure that, when Aboriginal people are arrested, ALRM will be informed?

The Hon. M.J. ATKINSON: The task of police informing ALRM of the apprehension of an Aboriginal person will be a matter for police general orders and protocols, as it is now.

Mr HANNA: To follow up that point, has the Attorney-General given consideration to the resource implications for ALRM, given that their clients normally resident in the north of South Australia may be dealt with in Western Australia or the Northern Territory? If so, how is the Attorney-General going to ensure that there are adequate resources for those people to be represented?

The Hon. M.J. ATKINSON: ALRM was fully consulted on the bill, and we acknowledge that all agencies concerned in the Northern Territory, Western Australia and South Australia need to work together to make this function as best it can. On the whole, this law is welcomed, and we are not going to hold it up until every possible glitch is avoided. We want to get on with it and do it, and I think we have the goodwill of all the agencies involved.

Clause passed.

Clauses 33 to 68 passed.

Clause 69.

Mr HANNA: I return to this issue of forum shopping. Does the Attorney acknowledge this could be a problem if there are different reputations gathered by magistrates in each of the three jurisdictions? Aren't there going to be arguments on behalf of defendants (and possibly on behalf of prosecutors) about removing matters to the jurisdiction where they are going to get a result which they would prefer?

The Hon. M.J. ATKINSON: I am interested that the member for Mitchell is finally starting to see things my way after all these years because that is an observation that I began to make when I was in opposition. Alas, magistrates get reputations amongst lawyers, particularly defence lawyers; there is a regular oral form guide going around the Crown and Sceptre Hotel, where defence lawyers gather, about the sentencing reputation of magistrates.

I can recall early in my time as Attorney-General calling in at the court registry at Port Lincoln and being told that defence lawyers would have a cockatoo out at the Port Lincoln airport to see which magistrate was flying in for the day and, once the identity of the magistrate had been determined, as the member for Heysen said, a decision was taken as to whether everything would come on for trial or sentencing or whether everything would be adjourned.

Yes, this is a problem, quite apart from the form guide of magistrates across the other side of the border. I urge the magistracy to be uniform in applying the law of this state. Yes, some defence lawyers will always play the adjournment game and try to get his or her client in front of the most lenient magistrate possible and, if that includes trying to defeat the intent of the cross-border legislation to get his or her client, say, out of the Territory and back into South Australia, it would not surprise me that some lawyers might try that. I just hope they do not.

Clause passed.

Clauses 70 to 94 passed.

Clause 95.

Mr HANNA: I am one of the first to say that the legislation we have about dealing with mentally impaired accused has been working well. If anything, the problem is a lack of resources in being able to refer mentally impaired people so that they can actually get well. Do the other jurisdictions of Western Australia and the Northern Territory have similar legislation, and do they have the resources to deal with people who are mentally impaired and who need treatment, either while pending or after sentencing?

The Hon. M.J. ATKINSON: We will take that question on notice.

Mr HANNA: I thank the Attorney for that. The concern I have is that somebody who normally resides in South Australia and who might be arrested in South Australia for an offence committed across the border might be dealt with interstate according to interstate law or, even if it is South Australian law, not dealt with the same benefits that our mental impairment legislation would allow.

Clause passed.

Clauses 96 and 97 passed.

Clause 98.

Mr HANNA: My question is about incarceration. I am concerned that, if South Australians with connections to family and other support in South Australia are dealt with in Western Australia or the Northern Territory, they might be incarcerated far away from those supporting people. If somebody is the subject of an order for imprisonment in South Australia, if they are from the north of the state they might end up in Port Augusta, for example, which, although a long distance, they are at least familiar with people in the north of the state. However, if people are imprisoned in Western Australia or the Northern Territory it may be that they are far removed from those supports. Has this problem been contemplated by the Attorney?

The Hon. M.J. ATKINSON: The member for Mitchell has just gone through a series of reasons why he should not be voting for the second or third readings of the bill.

Clause passed.

Remaining clauses (99 to 147), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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