HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-03-13 Daily Xml
Contents
Pdf Xml

STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 March 2012.)

Ms CHAPMAN (Bragg) (17:24): From time to time it is appropriate that the Attorney-General's areas of jurisdiction come under review and that there are presented to the parliament amendments that would make areas in his portfolio more effective. In that regard, we welcome this bill. It was introduced last year in November but, ultimately, was not debated before the prorogation of the parliament, but it was reintroduced on 1 March this year.

I want to outline a couple of the areas that the opposition is not happy with, but it is fair to say that overall some of the amendments are meritorious and we are happy to join with the government. I will indicate three areas of foreshadowed amendment. I had expected that this bill would probably be debated tomorrow in the first instance, and we were waiting for some amendments, but these can easily be dealt with in another place, and we will not hold up the bill in the absence of those amendments.

The Hon. J.R. RAU: Sir, can I say to the honourable member, just to be of assistance, that if it is the case that she will indeed have amendments tomorrow, from my point of view I would appreciate the opportunity to at least look at the amendments and perhaps put something on the record here about them. That may mean that we finish a little earlier tonight without finalising the committee; perhaps we should go into committee and then not take the matter any further. If that will assist, I am more than happy to accommodate that.

Ms CHAPMAN: I thank the Attorney for his indication, and we will certainly endeavour to look at that option. The 12 acts of parliament on which the Attorney has asked us to accept amendments are quite broad and range from the usual criminal and courts legislation (if I can paraphrase it in that way) to special provisions for the Environment, Resources and Development Court and significant amendments under the Young Offenders Act. I will try to indicate in some chronological order the application of the amendments in this bill.

Firstly, there is the proposal to allow prosecutors to serve a notice to a defendant in criminal proceedings to admit specified facts without first seeking a court order. That is a matter that we do not agree with. At present, as would be evident, if the prosecutor makes an application to the court and sets out a list of questions to be made in the admission of facts, then that can be granted.

The area of vulnerability we see, which I think is matched by the Law Society and others—in particular, the Criminal Justice Ministerial Taskforce—is the vulnerability of defendants who are unrepresented. As members would know, not all people who are charged with offences are legally represented. Some are eligible for and can apply for representation through the Legal Services Commission; others of course pay for private counsel.

However, some choose to be unrepresented, and some in that category are unrepresented because they cannot afford representation. In those circumstances, it is the opposition's view that defendants may not appreciate their rights in the understanding of the admission of facts, and therefore we think that court supervision of that is important.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney has pointed out a provision in the bill that may address that matter. It seems to be fairly clear, in fact. It may not have been in the draft, but we will have a look at that and see if we are satisfied in that regard.

The second matter is to allow the Environment, Resources and Development Court to convene a sentencing conference. That is a power which, on the face of it and in dealing with some parties, would make it appropriate for them to give evidence or to express their view on the impact of the offence. This amendment is to allow community 'and others' to express their views, whatever they may be. Whilst it seems within the parameters of court management of these sentencing conferences, personally I see that this as really opening the door for anybody who has a particular axe to grind in this area to come along and give evidence or express their views on matters. It does seem to give more extensive opportunity for those who might be a little more zealous in this area to take up the time of the ERD Court and not necessarily provide any helpful or targeted contribution in that regard.

It would seem to me from comments made, I think, in the second reading explanation that, if there has been a breach of the Native Vegetation Act or something of that nature, there is recognition that the whole community may be deprived of the benefit of that piece of native vegetation, and some offence has been prosecuted and is under consideration. For sentencing purposes, it would be helpful for the sentencing judge to hear from the general community about that—a neighbour, for example, who may be deprived of the benefit of the view of trees or shade, or something of that nature. I can see some merit in that. Frankly, I think expanding it to all sorts of other groups who might have their own axe to grind is going to be a time impost on the courts and not improve efficiency. I make that point. The opposition, however, is not opposing that measure.

There is also provision for the defendant to negotiate reparations before sentencing. We think that is a good thing. There is an allowance for the ERD Court to postpone sentencing for up to three months while reparations or other remedial actions are undertaken by the defendant. Again, I think that is an excellent initiative, because one of the things that often happens at the sentencing stage is that there may be an order for payment for damages and there is not necessarily an incentive for those payments to be made. So, there can be court costs, reparation costs and some other penalty—maybe a fine or community service—but this way it provides a major incentive for there to be some reparatory work. In the environment, resources and development jurisdiction, it may be to replant some trees, if we are talking about native vegetation, or to pull down an offensive structure that has been erected in breach of some regulation or provision.

The bill also provides insurance that the Parole Board recommendations and decisions about release are made at the time of release rather than prior to serving a sentence for contempt of court which follows immediately after a previous sentence. The opposition's view on this is that that is currently redundant. There have been some other amendments in other jurisdictions and we think that is now unnecessary. The bill also is to make it a mandatory condition for those released from custody on supervision to request permission for interstate travel from the CEO of corrections. Currently, offenders being supervised as a condition of a bond or ancillary to a community service order may be subject to reasonable direction.

Two directions that are currently optional are proposed to be mandatory: written permission before leaving the state; and regular reporting. Also, the interstate travel directions are proposed to be made in the name of the Chief Executive, Department for Correctional Services. In the Correctional Services (Miscellaneous) Bill we have opposed that centralisation of power and propose that we do the same here. That is our position on that matter. The bill is also to place interstate travel permission requirements on those under supervision and to make regular reporting intervals a mandatory condition. I think that I have indicated our position on that.

I now come to community service orders themselves, which, it is fair to say, have been an effective tool, I think, in sentencing. Just last week I was in celebration of International Women's Day. I attended at the West Terrace Cemetery. Members who have attended the cemetery will know that very famous people are buried there—lots of famous dead women in South Australia's history, some of whom have visited here or have been famous, for example, because they were the first female university graduate interstate but who happened to have passed away here; and, sadly, in earlier times there was no capacity to return.

I digress a little, but I make the point that, on this occasion, I had the opportunity to observe a large group of people doing community service order work, and that was in particular for the maintenance and repair of gravesites and headstones that had collapsed, for example, and also for the general beautification of some of those historic sites. Some members would know, but because the West Terrace Cemetery is built on an area which is close to a watertable I understand that in the early days some of the bodies actually drifted out into the gulf because they went through the underground water.

In any event, quite a lot of work needs to be done in our cemeteries, including the West Terrace Cemetery, which is also the home to servicemen and women, and therefore I was very pleased to see a number of people undertaking their community service order work there. We also have lots of protective legislation and make it a very serious offence for people to tamper with graves and to interfere with the peaceful commemorative structures, for good reason. So, well done to whoever is organising that type of community service order work down there.

I have got plenty of other ideas. There are lots of olives to be removed from Cleland Park. I am very pleased for as many people to come up there, whether or not they are in prison or undertaking community service orders. I have always welcomed the authorities to send groups up there to deal with weed management, and it can be very effective and beneficial for the community.

I must say that I am often given excuses about the need to have supervision and therefore it becomes impractical or inconvenient, or too hot or too cold, or some other excuse about why they cannot bring people out from the prison. Nevertheless, I am always willing, certainly in my electorate, to have them brought out to undertake some work. I am sure that the member for Norwood would appreciate that, too. Have you got any parks?

Mr Marshall interjecting:

Ms CHAPMAN: Good. The member for Norwood, I am sure, would also appreciate anyone who is willing to come out and do some community service work. Anyway, I digress. Here, this bill will clarify that the court may extend the time available to complete a community service order upon a breach of bond where that extension is required after the initial period has expired. That is really a machinery-necessary reform and we welcome that. The bill will also allow the court to substitute, remit, defer or reduce pecuniary orders and orders that community service or licence disqualification occur instead. This is quite simply a situation where sometimes at the time of sentencing someone has a job and a fine is appropriate and then subsequently they may lose that job and they have not paid the fine. I think it is a very efficient way—with this amendment—to enable it to be converted to an alternate penalty.

The bill also will allow a fine to be imposed in lieu of community service. Currently this is limited to where a person has been unable to perform the service due to employment. Really, that is the reverse of what I have just said in respect of changing a pecuniary order to a community service order or a licence disqualification for the exact opposite reasons we would allow the reverse.

The bill will also allow the DPP to delegate powers assigned to them under other acts in the same manner as under the Director of Public Prosecutions Act 1991. In this regard, the opposition says that the Director of Public Prosecutions can currently delegate his or her powers granted under the Director of Public Prosecutions Act 1991. They do not have the power to delegate powers conferred under any other act. An example of a power that could be delegated under this proposal is the power under the Listening and Surveillance Devices Act 1972 to a proven application to the court by a police officer for a warrant authorising the use of devices.

It is the opposition's view under the careful consideration of this matter by the Hon. Stephen Wade (the shadow attorney) that it is the better practice to provide specific provisions in authorising acts delineating the extent of delegation permitted, if any. So, that is our view on that matter. The Attorney will be pleased to note that that will be the end of our amendments.

I just make the following observations of other amendments that are being tidied up and reformed in this package; that is, to allow a master of the District or Supreme Court to order that the parties to a proceedings undertake mediation. I thought they already had the power to do that. They have certainly indicated their view as to what parties should do in having that as an option. I have never personally supported mandatory counselling or mediation. I think that to direct orders to that effect is usually counter-productive. What is appropriate is that the courts say, 'We will not allocate time available until you have considered some other option'. I think that a direction to actually attend conferences could be counter-productive; however, some would argue that it has the same effect, so the opposition will not be opposing that.

The bill also is to clarify that a sheriff may remove a person from land using reasonable force where that person has taken possession of that land and is not lawfully entitled to be on that land. This was a common problem. Hopefully that will now be remedied by this amendment. Sheriffs have often had the difficult task of repossessing property—in this case real property—and evicting people from their homes. It is a pretty ugly situation at times, and that needs to be assisted.

In reality, I think it is fair to say that if there is anticipated difficulty with the eviction of somebody from land—or if some other relatives or some other persons attempt to interfere with the proper ejection of people from a property—the police will be called in to assist in that regard. I certainly expect that to continue, because they are clearly the people who are best placed and best qualified to deal with those situations.

Next is to allow the ERD Court to order that costs be paid to a party in court proceedings where the opposing party has engaged in misconduct and it is necessary in the interests of justice. In this regard, I say: thank goodness. Finally, after 10 years in this place and from time to time saying that there should be more effective cost orders in the ERD Court, it has finally come to fruition. Well done, Mr Attorney. It is a start. There is a long way to go, let me say, but it is a start.

There is no question that for there not to be some capacity for cost recovery of funds that are expended by litigants when they are in the right is really not appropriate. To be able to get away with not meeting someone else's costs when they should be given some recompense I think is woeful; at least in the misconduct category, which is what is coming in here, there is a capacity for the courts to do that—not before time, I say—and I welcome that.

Next, the bill allows the ERD Court registrar to take custody of money paid to the court and provide liability protection by Treasury—mechanical and acceptable. It also allows the Governor, with the concurrence of the Chief Justice, to appoint a person to act in a specified judicial office on an auxiliary basis, where that person would be eligible for appointment to that position on a permanent basis except for the fact that that person is over the age of retirement.

Currently, in some instances it is a requirement for a person to be a current serving member of that court. Again, this is really a practicality. The reality is that today we have very long cases; sometimes they pass that time of general retirement and this is, I think, an expeditious way of resolving some of that.

The bill automatically suspends a special justice when they have been charged with an offence, other than expiation, and automatically removes the special justice from office if convicted. The person may be reinstated in either scenario upon application to the Attorney-General. I think this is to cover a situation that had arisen, and it will allow for better management of difficult circumstances. I do not need to say any more about that.

Allowing the government to make arrangements with the commonwealth Attorney-General in relation to the exercise of powers and functions by a magistrate under the commonwealth act is again a sensible initiative. To clarify that an interlocutory judgement in relation to the admissibility or giving of evidence is subject to the constraints of appeal specified in 42(1)(a) of the Magistrates Court Act 1991 is also very important because, remember, the interlocutory judgements are the interim orders, and that is something that needs to be clarified.

Finally, the bill ensures that the Parole Board may consider the release on parole of a recidivist youth offender prior to the completion of the mandatory minimum sentence. These are the general matters that are covered. I think I have outlined, I hope with some clarity, the three areas of concern. With those few comments, I conclude my remarks. I understand that the Attorney will place the matter into committee and that we can deal with it tomorrow.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT