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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-11-28 Daily Xml
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SPENT CONVICTIONS (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2012.)

The Hon. R.B. SUCH (Fisher) (16:55): I will make a brief contribution, and I thank members for accommodating my desire to speak right now. I am absolutely delighted that the parliament, as a result of the Attorney's efforts, will see this measure, the spent convictions, further improved. There were some difficulties with the original legislation and this bill addresses those in a very fair and reasonable way so people in particular categories can take the matter to a magistrate appointed by the chief magistrate to deal with something that happened, usually a long time ago.

There are thousands of people in South Australia who may have done something very minor years ago and who have not offended for 10 years or more as an adult, or five years or more as a juvenile who are absolutely delighted that this legislation will go through the parliament and will bring them a lot of comfort because it will remove from them a stain which has been on their character, on their record, their reputation, for many years. It has been a long time in coming. The original bill started about 10 years ago, and now with this mark 2 model (which is an improvement on the original one) it will bring a lot of comfort and satisfaction to people in the community and I thank members for supporting it.

Ms CHAPMAN (Bragg) (16:57): I will be making one of my usual brief contributions to the debate on this bill, the Spent Convictions (Miscellaneous) Amendment Bill 2012, which is essentially to tidy up some aspects that need consideration after the implementation of this meritorious piece of legislation and I indicate that the opposition will be supporting the bill.

As we are now going to be dealing with pardons as one of the categories that needs to be considered, it was suggested that this form of dealing with prosecutions in this manner has not often been utilised, I would simply ask the Attorney to indicate if, in the lifetime of this government, he is aware of any pardons and, if so, how many? Otherwise, I indicate we will be supporting the bill.

Mr VAN HOLST PELLEKAAN (Stuart) (16:58): I will make a very short contribution to this. I will leave my learned colleagues with a legal background to go through more of the detail, but I would like to just say a few words on behalf of the people of Stuart.

My general inclination is that your record is your record and whatever is on it is on it. If you think there are extenuating circumstances, then chances are, if they are justifiable extenuating circumstances, you would be able to make that case for yourself. I have to say that I do support what is going on here because, as I said, that is my general feeling about things, but I have looked into this more deeply and I have also taken the opportunity to speak with some people who are actually caught up by this. So I do support what is going on here in principle and for some very good reasons.

I would like to draw to the attention of the house a case of a constituent of mine: a man who was convicted 40 years ago of having sex with a girl who was 15 and at the time he was also 15. The reality is that it was consensual. It was just 15 year olds either having fun or doing the wrong thing, or whatever was going on at the time, and this person is still finding it very difficult with regard to employment and business because on the record that he provides for jobs, or for access to certain workplaces through his own small business, this (technically) sex offence is on his record.

For the life of me, I cannot think why the police back then would have had to actually charge him. There may well have been circumstances I do not know about, but it is on there and in fine print somewhere else, a long way away on the page from the description of the offence, is his date of birth. So, unless somebody ties it all together and says, 'Hang on, he was 15 at the time and it was 40 years ago'. By the way, my constituent tells me that he is still very good friends with this girl's family. The girl has moved away. He still lives in the town. He still sees her family all the time and it is one of those things they could joke about, if it were not for the fact that it is actually quite serious for him in terms of the impact on his personal life.

I fully understand why employers, volunteer agencies, workplaces and all sorts of organisations would baulk, would be concerned and would be scared if they see 'had sex with a 15-year-old girl' anywhere on the description. Even if they did make all the connections and say, 'Well, here's where it says that and over there is his birthdate and so it must have been that long ago. Gee, was it really relevant?', they could still baulk at that. So, I offer this to the house as a good example of the sort of conviction that I think could be treated as a spent conviction. I will leave it up to others to work through the detail but I do now see that there are some good reasons why this would be very useful legislation.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:02): I thank all members for their contributions. The member for Stuart, in his contribution, has touched upon one of the most poignant and difficult aspects of this, where we have people who have done things, which are technically in the bracket of sex offence, a very long time ago, as in your example, member for Stuart, the person was a minor themselves at the time.

Mr van Holst Pellekaan interjecting:

The Hon. J.R. RAU: I beg your pardon; not the member for Stuart, I need to clarify that for the Hansard, but in his constituent's example, and this is a terrible blight for some of these people. To make it even worse, some of these people wind up on the register and are classed as being sex offenders. There is no obvious way of separating those people out from the people who we should genuinely be quite concerned about in the community.

I am delighted people are going to give this legislation some support, by the sound of it. There is one small amendment. We have to formally go into committee because there is one small government amendment in this, but I think that is the only matter in committee, so we can go straight in and deal with that and then if everyone is happy go straight to the third reading.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Page 6, after line 8—Insert:

(3) Section 3(3)—after paragraph (b) insert:

(c) a period of detention under section 23 of the Criminal Law (Sentencing) Act 1988.

I do not want to waste anybody's time on this; I will be very brief explaining it. This amendment inserts a new paragraph (c) in section 3(3). Section 3(3) defines a sentence of imprisonment. Any sex offence for which a sentence of imprisonment is imposed is not an eligible sex offence and therefore cannot be spent by an application to a qualified magistrate. The problem we have discovered is that a person who is detained in custody until further order under section 23 of the Criminal Law (Sentencing) Act on the basis that that person is incapable of controlling or unwilling to control his or her sexual instincts may not be imprisoned.

Technically, if such a person does not reoffend they would be able to apply for their conviction to be spent, because the detention until further order is not considered to be imprisonment under the act. So, basically, what the amendment that we put in seeks to do is to move those people out of the classification of people who are not imprisoned and treat them as if they had been imprisoned. So I hope that explains it.

Ms CHAPMAN: The opposition consents to the amendment.

The Hon. S.W. KEY: I just want to ask the Attorney a question. I was very impressed that he held a review earlier this year to look at the whole issue of spent convictions, and invited a number of organisations, including members of parliament, to make a submission to that review, so I thank him for doing that. Although this is not directly related to this amendment, I am just wondering whether he could clarify for me the information that I received from him with regard to sex workers receiving a conviction in association with that work, and the differentiation of having a sex-worker conviction and a conviction of having a sex-related conviction. I think you clarified that for me in writing but I think that that would be a helpful clarification, particularly for sex workers.

The Hon. J.R. RAU: That is a good question. We are just checking up as to whether that is actually a sexual offence. It may well be that it is not and I think that that is probably the case but, in any event, if they were not imprisoned, or sentenced to appear out of imprisonment in respect of that offence, they would be able to take advantage of this anyway, as they would in respect of any other offence, and I do not think it is very common for them to be sentenced to imprisonment.

The Hon. S.W. KEY: I just want to ask another question, Attorney. One of the concerns that has been raised with me—and certainly, as I said, I commend you on the review and the changes that we have already dealt with in this place—is the administration of putting together someone's record. Some of the criticisms that I have received from constituents is that this will be a very good change to the spent convictions legislation but one of the problems is the instructions to the people who are actually putting together the record and whether, in fact, there will be any changes there.

Information that I have received—different constituents have said to me that everything that has ever happened to them in their life has been put onto their record because they were not aware of the fact that they needed to be more specific about why they needed this record. For example, someone who had worked as a truck driver was telling me that he had every single thing that he ever did in his misspent youth on his record but it really had no relevance to the job that he was applying for as a long-distance truck driver, but it made it look as if he was a very difficult customer indeed and, although he did get the job, he was concerned that he would be discriminated against.

Also there are a number of sex workers who have had very minor convictions for being associated with sex work—not necessarily as a sex worker—not able to get full-time jobs in the aged-care area or disability area even though they have qualifications that would support them at least being an applicant in those areas.

The Hon. J.R. RAU: There is a number of issues that the honourable member has touched on but I think the simplest answer to this question is that, if this legislation passes, the police and other people who are charged with the administration of this will be obliged to follow the rules, and the rules will have changed.

Amendment carried; clause as amended passed.

Remaining clauses (5 to 13) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:10): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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