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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (ARREST PROCEDURES AND BAIL) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 September 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:55): I rise to speak on the Statues Amendment (Arrest Procedures and Bail) Bill 2013. This is a bill that had been introduced in September by the government, and is a bill to amend the Bail Act 1985 and the Summary Offences Act 1953. The origin of this comes from an announcement by the Attorney-General in 2010, at the time he made a ministerial statement to advise that:

This government is taking decisive action to provide South Australia with a new, smarter bail process from next year.

There was advice made public by the Attorney-General at the time that cabinet had approved the preparation of amendments to achieve these greater efficiencies, in particular in the way the police and courts deal with minor offenders, and that there was going to be an extensive consultation process with a view to introducing amendments in 2011. The amendments foreshadowed at that time were to:

allow police to grant bail at the scene of the arrest or at the nearest police station, or hospital or treatment centre in appropriate cases;

allow courts to vary some conditions of bail if the changes are by consent and do not substantially change the bailed person's obligations;

remove some unnecessary and time-consuming steps in the police process for arranging for a magistrate to review bail over the telephone;

allow the time within which a bailed person may be released to be extended where there is a weekend or public holiday preventing a bail authority accessing the necessary information; and

achieve a consistent outcome for breaches of bail by requiring courts not only to cancel a person's liberty but also to revoke the bail agreement.

The Attorney may well have been right when he said in his ministerial statement that, 'The journey of a thousand miles begins with a single step, and this government has taken a further step in a clear direction.' However, it has not escaped the attention of the shadow attorney-general that it has taken 1,037 days since that ministerial statement for it to be effected; nevertheless, we are here.

The government provided a briefing on 19 September with representatives of the department and Senior Sergeant Onishko, who has been most helpful in providing information as to the practical impediments faced not just by the police, but some significant inconveniences outlined for those who may be arrested and/or members of their family. So, we found that most instructive and appreciated that clarifying contribution.

These initiatives always start with an expectation of promises and aspirational statements that often sound good, but sometimes when we look at how we achieve what are meritorious aspirations the implementation is somewhat more complicated. The key changes that ultimately ended up in this bill I think really fall into some six or seven categories, and I just want to briefly identify what they are.

Firstly, there is the procedure on arrest. Currently, under section 13 of the Bail Act there is provision for requirements that once a person has been arrested, when the person is eligible, to apply for bail. The new section clarifies that a person may be brought before the appropriate court, either in person or by video link or, if the person is in custody in a police station or designated police facility that is situated in a remote area and there is no video link available, by audio link. A remote area is defined as being 400 kilometres or more from the nearest appropriate court, but some other distance may be prescribed by the regulations in substitution for that distance.

Secondly, there are telephone reviews under section 15 of the Bail Act. There is provision for a review by a magistrate of a decision of a bail authority—that is, a police officer or a court constituted of justices—by an applicant for bail who is dissatisfied with the decision of the bail authority. The proposed section will allow a police officer of or above the rank of sergeant or in charge of the police station to contact the magistrate for the purposes of the telephone review if the police officer who was the original decision-maker is not immediately available to do so.

Thirdly, there is the question of extending the time limit for preparation of an application. Proposed substituted section 16 in the bill will allow the court to extend the time limit for deferral or a stay of release on bail where the Crown or police immediately indicate that an application for review of a magistrate's bail decision will be made. The amendment will allow for the time necessary to provide information to the Office of the Director of Public Prosecutions, such as charge sheets, antecedent reports and bail papers, especially in cases where criminal justice services are closed over a weekend or public holiday.

The fourth area of reform is in respect of the point of delivery. Proposed amendments to section 78 of the Summary Offences Act will relax the requirement for persons arrested without warrant to be brought to the nearest police station forthwith in certain circumstances. Then there is the investigation. Police would be enabled, under this bill, to detain a person, who has been apprehended without a warrant on suspicion of having committed a serious offence, for a period not exceeding that specified in the subsection for investigation purposes.

Finally, there is the duration. The bill places a two-hour limit on the amount of time that a person can be held at a designated police facility without obtaining authorisation from a magistrate. The time limit is four hours at a custodial police station. There is no question that it is in the interests of justice that those who are apprehended for the purposes of investigating and prosecuting an offence need to be treated fairly and that we need to, as far as practicable, ensure that there is a streamlining of procedures that best meets those who are in the role of investigation and apprehension—namely, our police force. Distance does create some tyranny, to both those enforcing the law and those who are apprehended.

We have a practice of bail—the opportunity under the Bail Act for persons to be released pending the final determination of their cases. That is not only sensible, it is necessary, otherwise our gaols would be overflowing. As would be consistent with the principle that one is innocent until proven guilty, assuming certain thresholds are met, including the protection and safety of members of the public and the community generally, that person can be released out of protective custody. There may well be a string of conditions attached, including places of residence, not leaving the state, not moving out of a certain area, undertaking regular attendances at police stations. All the conditions that are available in setting bail are available.

It is an important process, but it is one which the opposition agrees is timely for some review. We do not take issue with the government having looked into this matter. Obviously, we can comment adversely on the delay and their indication of these high ideals, but the promises in elections sometimes evaporate in priority as time goes by. In any event, what was missing from our consideration when this bill was first tabled was some indication from bodies who are most affected.

We certainly had an indication at our consultation that senior jurists of the principal courts—the Supreme, District, Magistrates, and Youth courts—had been consulted. This also included the police, the Director of Public Prosecutions, the Legal Services Commission, the ALRM, and various departments and legal societies, including the Bar Association and the Law Society of South Australia, in enforcement, prosecution and defence roles.

I certainly had the impression at the time of the briefing that, except for the ALRM, there had been a general sign-off to support the progress of this bill. However, earlier this month we received a letter from the Law Society of South Australia outlining a number of concerns. The Law Society, as often they do, start with an endorsement of the aim of the bill to achieve efficiencies and to clarify ambiguities. As they rightly point out, these are commendable aspirations; however, they need to consider some technical amendments to ensure that we have the right balance.

The bill allows an audio link to be used when a person is more than 400 kilometres from a relevant court and a video link is not available. It could be used for matters such as an application to be released on bail or a telephone review of a bail decision made by a police officer or court constituted of justices. The society proposes that the definition of remote area be changed from 400 kilometres—that is, between a police station or designated facility and a Youth Court or Magistrate's Court, as the case requires—to 200 kilometres from the relevant court.

I think it is fair to say that if one were to take a compass (if people use compasses anymore), or some electronic equivalent, from Port Augusta and draw a circle at 400 kilometres, it would take up most of the state. In any event their recommendation suggests that that should be abridged to 200 kilometres. They note that the current 400 kilometre definition of 'remote' would not include areas such as Ceduna, Roxby Downs and Leigh Creek. Coober Pedy would be the largest populated centre that would come within the 'remote' definition.

We think that position is a reasonable one to take and that it will produce a situation where it would allow applications to a magistrate or Youth Court by audio link. It could reduce the time in custody spent by the offenders which would also save police resources and time. Our understanding, having had a brief conversation with the Attorney, is that they are sympathetic to considering that request and we would hope that that will be followed by some fruitful discussions with the opposition and other representatives of the parliament between here and another place. We otherwise consider aspects of the bill to be favourable.

The government have picked up another matter which is in need of attention, and we understand an amendment is proposed to clause 10 which will make provision for the responsible officer being within the definition rather than the person 'in charge of' which has been the phraseology used. Essentially, as we understand it, the new section 15(5) will provide under this amendment that when a person who has made an application for bail is dissatisfied with the decision, and the police officer who made the decision is not immediately available to contact the magistrate or telephone review, then the contact with the magistrate may be made by the responsible officer who is in charge of the cells rather than the officer in charge.

The reason given for this amendment is that the officer in charge may not have all the relevant information that the officer responsible for the cells has and the officer in charge may not be as available to contact the magistrate. If the responsible officer is not available, the call must be made by a police officer at or above the rank of sergeant. At first blush of the amendment that is being proposed today that will assist in resolving that matter. They are the two principal areas of concern for the opposition, one of which we trust will be remedied shortly, the other which will be under consideration. Some other technical definition matters that have been raised by the Law Society can be considered, I trust, in those discussions.

I thank John White, President of the Law Society. He and his subcommittee, the Criminal Law Committee of the Law Society, have forensically assessed this matter. For the general members of the public, they want an efficient system. They want to know that the police are not unfairly or unreasonably burdened with procedures, particularly in remote areas, which are too burdensome for them to undertake their duties or which impede them in other important duties. On the other hand, I think most right-minded, civilised members of the community expect that a person who is apprehended is treated fairly and that, during the preliminary detention of that person under arrest, they are held in custody in circumstances that are appropriate.

To my knowledge, there has not been a significant wave of complaint from either of the relevant parties about the treatment or otherwise of people who are in these arrest circumstances in remote areas, but the opposition accepts that we want these amendments to reflect less inconsistency and avoid any confusion in the future.

I think it is fair to say that the expectation that most people who are in an arrest circumstance necessarily want to travel and physically have their application for bail, or variation of bail conditions, for example, processed with them being present is not always consistent with what those people want. Obviously, some people are terrified in those circumstances. It can be a first time of arrest, and they are looking for some protection. If they are in an isolated area, they may feel under some threat or, certainly, vulnerable.

So, we need to ensure that there is a level of opportunity for them to be protected in those circumstances but, by the same token, a dusty trip for some hours in the back of a police wagon to a court is not necessarily something that is either comfortable or desired on their part. So, this produces some areas of reform where there is some mutual request for that to occur. What we will probably never be able to be clear about is ensuring that there is no opportunity for someone to be kept isolated from advice and opportunity to be represented in a court situation, where there is a vulnerability exacerbated by perhaps the limited language, for example, of the accused.

It is fair to say that we have had cases, in the sad history of South Australia, where the later disclosed behaviour of the investigative officers has been less than desirable. Indeed, one case I can think of which resulted, I think, in the last sentence for execution, which ultimately did not occur, was of Maxwell Stuart. The events that occurred in the police station then at Ceduna—decades ago now but nevertheless—became the subject matter of a number of appeals, including to the Privy Council, and subsequently resulted in the conviction, and then its overturning, of Maxwell Stuart, in respect of the death of a young girl. It is a bit like the Azaria Chamberlain mystery, which probably has as many legendary stories that go with it.

We need to be ensuring in this place that we do all that we can to ensure that those who are in a vulnerable circumstance, even if they are reasonably believed to have committed an offence, are treated with dignity and are duly protected. So, that is the balance the opposition seeks to achieve in considering these amendments.

I am heartened that the Attorney has indicated that there will be ongoing discussions and, accordingly, I will not detail the other technical amendments that I think need to be considered; some may well be absorbed and accepted by the government. Given the long gestation of this bill, I do not think that a few more days will hurt, but I am mindful of the fact that the legislative life of this parliament is nearing its conclusion; I think we have 12 sitting days left. With that contribution, I indicate that we will be supporting the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:21): I thank the honourable member for her contribution. I am pleased that the opposition will be supporting the bill in this place. I do have one amendment, which I think the honourable member has seen, and I do put on the record that I have spoken with the opposition spokesperson in relation to this matter, the Hon. Stephen Wade, and agreed to have ongoing discussions between this place and the other place so that, if there are matters of further tweaking that can be done, they can be done between here and there.

I want to comment very briefly about the matter. The member for Bragg makes the point that this has been a work in progress for some time, and there is no doubt that the time is considerable. I say to the honourable member that that should not be taken as an indication by anybody that I do not regard this as an important matter. I am not seeking to make excuses, but there have been changes at various levels in various offices, where projects have been interrupted and recommenced and so forth. In this particular case, there has been extensive consultation about this matter, as I think the honourable member basically referred to in her remarks.

It might one day be that the honourable member finds herself at the other end of this particular conundrum. If one produces a bill in a vacuum, does not tell anybody about it and brings it in here, one gets criticised on the basis that one has not consulted. If one consults extensively—and this has been, by any measure, an extensive consultation—one gets criticised for the delay in bringing the matter in. In the case of the residential tenancies, that conversation went on for 10 years, and that indeed was an epic conversation, but it has been fixed; this parliament has dealt with that matter.

I am mindful of the fact that the deputy leader, the member for Bragg, would like things to move along a bit more quickly, and I am in her corner about that matter. To the extent that there have been bureaucratic matters which have slowed down the progress of this matter, that is regrettable but there was no design attached to that; it is just one of those things.

I do have something else I would like to say about consultation, and that is that there is nothing quite so frustrating in the business of consultation than to go out and consult with people who are interested, one would think, putting into the public domain, and sending letters to the people concerned directly, all of the matters that you wish to discuss and then, a couple of days before what everyone accepts has been gestating for about 2½ or three years is due to be debated in here, a light bulb goes on for one of the groups that have been in the consultation and a several-page missive turns up. That is even more annoying when the same group (and I am speaking here of the Law Society), advised departmental officers at the beginning of this year that they were content with the bill and had nothing to say.

I realise nothing is perfect in this world and consultation is probably the most vexing thing anybody in government can possibly have to deal with, because one person's consultation is another person's lack of consultation. I do say, by any measure, this bill has been the subject of extensive consultation, including with the Law Society, and in particular with the Law Society who, up until February or thereabouts, had the view that they had nothing to say, and then in a eureka moment, a letter dated 9 October this year, which goes to some nine pages, emanates from the society.

We will deal with whatever substance there might be in that matter between the houses and we will resolve things, hopefully without any ado. But I do make the point that if an organisation is involved with consultation, particularly when the government bothers to seek them out, and particularly when the government sticks stuff in front of them and says, 'Please, what do you think?' and particularly when they say, 'We think it's fine,' and then, several months later, two or three days before the matter is to be debated in this house, they have a eureka moment and send us a nine-page missive.

That is a bit frustrating, because one could ask exactly what have we been doing for the last 1,000 and however many days, as the honourable member said, in as much as the Law Society is concerned—apparently nothing. That is disappointing. There are other organisations that often do this sort of thing—last minute entrées in here—but, anyway, we do not have to talk about them because they are not a problem.

Can I say that none of these remarks are intended to suggest that the matters that are raised in the Law Society letter will not be dealt with between the chambers, and I suspect the only matter that is really of substance is this sort of default position of whether it is 400 kilometres or 200 kilometres, which appears to be a matter that needs to be discussed.

It seems to me on the fact of it, subject to any conversation we have, it is really almost academic, because it will be varied by regulation anyway, so we are only talking about what the default position might be and to my mind that is a matter—either way, whether it is 200 or 400 or 800 or 1,000—which can be fixed by regulation, so it is indicative, in effect. So I doubt whether that is going to be a stumbling block between anybody, as far as I am concerned.

I do not know whether we will need to go at length into committee; I guess we have to go in so that I can deal with my amendment. I want to conclude by saying to the honourable member for Bragg that I do appreciate the fact that the honourable member has been succinct in her remarks about the matter. I do appreciate the fact that the opposition is supporting the matter and, as I said, I do intend to resolve any outstanding issues, which I expect to be few, if any, between the houses.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 9 passed.

Clause 10.

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

Amendment No 1[AG-1]—

Page 6, line 3 [clause 10, inserted section 15(5)]—

Delete 'in charge of a' and substitute 'the responsible officer for the'

Do you want me to speak briefly on it, or is it understood? Everyone is happy so I will leave it there.

Amendment carried; clause as amended passed.

Remaining clauses (11 to 17), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:30): I move:

That this bill be now read a third time.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:30): I just wish to conclude the debate on this matter by recording my appreciation to the member for Stuart, the member for Chaffey and the member for Flinders, and the Hon. John Dawkins of another place, all of whom have had extensive experience in remote parts of South Australia, a person's residence and settlement there and livelihood, including court appearances. And, of course, those members regularly work with members of the police force in ensuring that there is civil order maintained in those areas, sometimes under adverse circumstances. I do not necessarily mean for the MP, although they often complain about having to travel long distances, but particularly in being able to assist in the sensible resolution of a number of these matters. I personally wish to record my appreciation of their advice on these matters.

Bill read a third time and passed.

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