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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2014.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:19): I rise to speak on the Statutes Amendment (Attorney-General's Portfolio) Bill 2014. This bill was introduced by the Attorney on 23 September 2014 and, as he stated in his contribution to the parliament, it is to remedy 'minor errors, omissions and other deficiencies' as identified in various acts. Usually, when I see words such as those it sets off alarm bells and they usually deserve of further inspection. However, it is true that governments do, from time to time, identify aspects of legislation which is deficient in some manner. Often, it is new legislation that is introduced and in its practical application it is identified that there is some error, some curiosity or some aspect of inconsistency which needs to be remedied.

My understanding is that, rather than always rushing back into parliament with a bill with an individual provision to identify each item, there is sometimes an accumulation of these things, and at timely periods the Attorney-General comes in with a statutes amendment bill such as this, often named the Attorney-General's portfolio bill so that it is clear what is occurring.

I think the last one was in 2011, when a bill was introduced which dealt with a number of aspects, including the provision for permission for Community Corrections officers to be extended under the correctional services legislation. There were also significant reforms required in respect of fines in the capacity for conversion to community service, and there were also amendments in respect of the Director of Public Prosecutions Act; as I recall, significant aspects needed to be upgraded in that legislation.

I mention this previous bill because not only were there subject matters that I would call the usual list of things for review but there were some questions raised about auxiliary judicial officers and their appointment, and there was provision in respect of the Youth Parole Board and the eligibility for consideration by the Parole Board for adult parole.

I mention these because I think there is a startling omission of one matter which is now the subject of this bill, and I am still concerned as to why we had not dealt with this matter a few years ago and why, by the time this matter was resolved in 2012, we had not done something earlier. I refer to the proposal in this bill to amend the description of child pornography.

I raised this during a briefing that was provided by the Attorney-General's office, and I thank members of the office for their advice on all of these matters in the briefing provided. It did seem curious and a little concerning to me that this was an issue that had not been picked up until 2014 and that the academic support for the notion that we would contemporise, modernise and more appropriately have a descriptor for child pornography had not been followed up in that earlier legislation, which was only a few years ago. The crux of the amendment is to remove the child pornography terminology from the Criminal Law Consolidation Act and, as I say, to give it a more contemporary descriptor and strengthen the recognition of what we were really talking about to 'child exploitation material'.

Sometimes, a particular word can, with the effluxion of time, acquire a certain interpretation or a certain aura as to its meaning. The classic example, really, in that category was the word 'juvenile' which is really a description of someone who is at a certain stage of development in the human and animal world and has a very benign and, I think, inoffensive meaning. But, because it was a word that was commonly used in the 1970s and 1980s rather than the words 'child' or 'youth', it rather attracted a connotation that 'juvenile' was always associated not with an age but with a level of delinquency.

The term 'juvenile delinquent' developed and it was seen in a very narrow and negative way. Therefore, during this evolution of a descriptor that had attracted such a negative view, there was legislative change to remove that word when dealing with offences of persons under 18, when dealing with reform and when dealing with the rehabilitation, for example, of our young people who offend. I think that is a good thing, and it is important that we do that from time to time.

The government says, in respect of the child exploitation amendment, that this is the modern terminology. It has been picked up by other states and I think we are now the last. It is a bit disappointing that even in New South Wales they dealt with this matter back in 2010, and why did we not then capture that in the legislation when we were last in the parliament on the Attorney-General's portfolio? Perhaps in the response from the Attorney he could give some explanation, because I think we need to have it.

It just seems to me that it is important and reasonable for governments, when they are pioneering in a certain field, to take some accolade and be given recognition if they take up the challenge, particularly if it is in an envelope of controversy. In this instance, this issue has been canvassed in the academic world, traversed in judgments and dealt with in other parliaments, and we are really the tail-end Charlie on this—and in an environment where governments just could not be forgiven for thinking that this would be some oversight, because it has been such a topical issue in the last 10 years. In fact, I think in South Australia it has had very high prominence since the 1980s and, of course, it has captured the attention of leading academics in this field.

We had reports, for example, which were effective in stimulating the discussion at the political level and implementing reform such as the paper from 2008 titled 'Aggression and Violent Behaviour' on the particular topic of 'The internet and child sexual offending: A criminological review', co-authored by Anthony Beech, Ian Elliott, Astrid Birgden and Donald Findlater. The issue was clear, and it was a matter which, as I say, had been taken up by other parliaments around the country but South Australia had the opportunity to do that and did not, and I think we do need to have some explanation for that.

That early paper also dealt with what was already a major problem in dealing with the management and containment of image production and dissemination, particularly as a result of the internet. The availability of abusive images of children was widespread and it was necessary for there to be a high level of work done to work out how we were going to manage it. At that stage, the definition was raised in that paper as to the appropriateness of the term 'child pornography'. It was reported in that 2008 presentation:

There has also been much debate as to the appropriateness of the term 'child pornography'. Many professionals within the field argued that the term trivialises the material and lends credence and legitimacy to the meaning that offenders bring to the phrase while also drawing unwarranted comparison to adult pornography and thus minimising the material's inherently abusive nature and suggests that images of an abusive nature are not pornography in any real sense, simply the evidence of serious sexual assaults on young children.

It was certainly clearly out there. Jeremy Prichard co-authored with Caroline Spiranovic from the law school at the University of Tasmania a paper presented in September this year entitled 'Child exploitation material in the context of institutional child sexual abuse'. It was a report for the current Royal Commission into Institutional Responses to Child Sexual Abuse. Again, much commentary was presented as to what is child exploitation material and which they acknowledged generally involved child pornography, but they argued again that the word 'pornography' treats the material as a legitimate sub-genera of adult pornography, again quoting back to the 2008 report.

I thank the Attorney-General's office for providing this material. It is worth a read for those who are interested in the development of how we might codify and deal with the prosecution of child exploitation material but also to expand our own understanding of what this comprises and the importance of us as a parliament acting to try to stem the ever-increasing exploitation of children in this way.

The thing I think is most important for us to appreciate is that, even if images are created which are not of a child in a nude or semi-nude state, for example, and in which a child's face is superimposed on the figures in the material, it is still an exploitation of children as a class. It denigrates children as a class. Even if the children are not directly involved in the photographing or distribution or publication of this material, they are being denigrated as a class. Ultimately, even if the offending contribution to make it child pornography is a feature or a photograph or a part-photograph of a child which is completely acceptable on its own, once superimposed it becomes child exploitation material. That is something I think we can all learn from to appreciate the significance of what is occurring out there.

Another area which I think is significant is the use of young persons over the legal age for being photographed in an act of exploitation and/or abuse. This is when someone is over the age of consent but is depicted as someone who is under the age of consent. This includes wearing childlike clothing—school uniforms, pyjamas, etc.—or childlike behaviour or visual cues included in pictures of this kind, such as teddy bears, etc.

These are all circumstances in which, even if the person who is in the pictures is over the age of consent and is able to be photographed quite lawfully, it is unacceptable to me and I think to most academics that we allow this situation to prevail where descriptors of children are used in that exploitative way. It just seems to me that this is a circumstance where we are mindful that we have got a problem, we are repeatedly told that we have got a problem, we see many court cases in which there are prosecutions stemming from this yet, in South Australia, we are so far behind. I have made the point, and I hope that the Attorney addresses it, because I think the South Australian public needs some explanation as to what has happened there.

Another aspect of this bill provides for amendments in respect of the Burial and Cremation Act 2013. This was a bill which actually took quite some time to get through the parliament, but it did last year with the consent of the opposition. There was quite a bit of amendment required. Some of it was because some errors had been discovered along the way or things that were likely to cause some problem, so there needed to be significant amendment to the bill on the way through.

Nevertheless, it went through the parliament, but we are advised that it was discovered that there would be an obligation under the new act for two doctors to certify the death of a person before a cremation permit could be issued, one being the deceased's consulting doctor immediately prior to the death. It is worthwhile remembering that this legislation last year—the new Burial and Cremation Act 2013—provided for a comprehensive consolidation and upgrading of our law in relation to this area and, as part of that, the old cremation act was repealed.

We had several pieces of legislation that dealt with the management and disposal of bodies. I do not think we have quite worked out chemical cremations and all the things that are yet to be advanced in the next chapter of this area of—I am not quite sure what you call it—what is obviously a specialty in relation to funeral directors and persons who are involved in that space. Nevertheless, it has built up over time, so there was a consolidation and an upgrade of legislation. This appears to have been missed. It now imposes, inadvertently it appears, an obligation which is impractical and is beyond what had been intended and what used to apply under the old cremation act where only one doctor's signature was required.

It is worth remembering at this point that it was not long before that that we were here in the parliament trying to deal with the events of the bodies in the crypt case up in Glen Osmond where a building site was being trawled in preparation of the soil and so on and a crypt was discovered. The development had to stop, and there had then been, I think as respectfully as possible, the recovery of bones from the crypt.

Considerable effort was put into identifying the deceased. There was some controversy over whether there were two bodies or three bodies, but ultimately there was sufficient identification that two of the bodies were traced to the extent of who they were. They then needed to be held at a funeral parlour until we could sort out the problem of how they could be reinterred, buried or cremated, because the cremation rules at the time said that you were not allowed to cremate any bones or human remains without a doctor's certificate.

These bones had been there for over 100 years and there was no death certificate. We had that problem. The then Attorney-General, now the Speaker, had it under his consideration, and there was generally agreement that we had to deal with the issue that was before us, namely how to allow the relatives who had been traced from the identified remains permission to cremate them, then obviously have some place in the world.

It was resolved ultimately by an amendment to the cremation act to enable the Attorney-General in certain circumstances to grant approval and to cover that situation. That is what occurred. It had a happy ending. The bones were cremated and put to rest. Those cremation remains are in Glen Osmond. There is a special little memorial there provided by the Burnside council.

From time to time there is nothing we can do to think that we have covered every aspect of potential enforcement or application. Something comes from left field and it has to be dealt with. As best as possible, a whole new regime came into place with the Burial and Cremation Act. We are back here to remedy a small part, and the opposition will support that.

There is the re-sentencing for subsequent cooperation with law enforcement agencies by offenders. In essence, this allows for an interpretation to be clear as to what law is to apply when an offender is re-sentenced in these circumstances. The law currently allows that when someone is being sentenced for certain offences, if they cooperate with the police and other agencies they are actually able to receive a reduction in their sentence.

This is consistent with a number of initiatives, some of which we have been happy to support when the attorney has brought to the parliament opportunities for incentives to be built into the sentencing law to encourage people to confess early—enter a plea of guilty early, for example. At certain stages of the dealing of a criminal matter, if someone enters a plea of guilty at the earliest opportunity, then some of the sentencing law allows for up to 40 per cent of the sentence to be reduced to cover that.

For example, if they go past the early initial hearings of a criminal matter and reach the committal and more expense is outlaid in either the police prosecution or the DPP's office, it reduces the opportunity to have something less. This particular area that is seeking some amendment today relates to getting the benefit of a reduction in one sentence if you provide information that is going to help the police, usually in another offence.

That is controversial, I must say, in the general public. Sometimes people think, 'Well, why should you be getting a reduction in penalty just because you are squealing on someone else?' Sometimes the public do not fully appreciate the importance of that, but one of the most important aspects of it is catching someone else who might be more culpable or more deserving of punishment and who would otherwise have alluded the police or the prosecuting forces. We think it is not unreasonable that there be an offer for a reduction in sentence in these circumstances. Sometimes it is called the supergrass amendment, where the hopeful expectation is that in offering this reduction you are likely to catch the bigger fish involved in criminal activity.

I wish to thank the Office of the DPP for providing a briefing in respect of how that particular reform has been going. That was provided in confidence and, of course, I respect that, but it is fair to say that there is, in fact, to be a formal review now that two years has passed since its operation. We will be looking forward to receiving that review here in the parliament. In the meantime, it appears that an aspect needs to be cleared up and, without disclosing what has occurred in the confidential briefings, it might help not only to ensure that this is a medium which can be accessed both by the defendant, or ultimately the offender, in their sentencing but also ensure that there is some upgrade to the DPP being able to maintain the threat of a loss of reduced sentence if someone indicates that they are going to provide information and then withdraws it.

There is a twofold benefit to this reform. One is that it can encourage people to squeal on others who are involved in activity, and that can be done prior to the sentencing and have the benefits as I have explained. The second is where, for example, the DPP in negotiations prior to the sentencing receives a statement confirming the information about the person who they are informing on and then after they have had the benefit of the reduced sentence refuses to attend court to give evidence to support that assertion. What position is the DPP left in to be able to withdraw that and to be able to apply for the offender in those circumstances to be resentenced because they have subsequently withdrawn from the promise to provide support?

Sometimes, of course, there can be circumstances where the withdrawal of consent may be entirely unaided or uninfluenced other than the fact that the offender thinks that they have got away with a reduced sentence. They think, 'You beaut. Now I will sign the statement, but so what? I am not going to go along and give evidence,' and generally become uncooperative. They have received the benefit of getting a reduced sentence really under a false pretence. We think on this side of the house that, in those circumstances, it is quite reasonable that that be tidied up and obviously allow the right for that to be withdrawn, otherwise how could it possibly be an example in the future for people to then honour their commitment to be the informant and to follow through with the giving of evidence?

Of course, sometimes the change of mind on behalf of the offender may not be their fault. It may be they have subsequently received a threat from someone (or a supporter of someone) who is going to be caught by the information provided and they issue some threat against the offender. Then, out of fear that there may be some repercussion, they indicate to the prosecuting authorities they are withdrawing their consent to give evidence. For whatever reason, though, even if it is in the circumstances where someone has had the benefit of getting what they should not have—and they have not honoured that with their follow-up—then that needs to be taken into account.

One of the issues which has been raised and which we are here to deal with is the problem of being sure in the legislation about whether, at the time of resentencing, there is going to be an application of the law that applied in respect of the sentencing at the time of the offence, or whether the law should apply at the time of resentencing. This is potentially an acute problem in attempting to encourage anyone to support the authorities or provide information to the authorities who has been convicted of murder.

Members will probably recall that in recent years we changed the law in South Australia in respect of murder cases where a minimum of 20 years imprisonment was part of that penalty regime. A life sentence is still the maximum, of course, but we do not have executions—although I was recently reading that next month is the 50th anniversary of the last person executed in South Australia who was Valence, from memory. I let myself sidetrack here and now get back to the current murder cases.

We have a bit of a dilemma in how we encourage someone who was convicted of a murder, say, 10 years ago, and for whatever reason they come forward or are encouraged to come forward and provide some information to someone else—whether they have heard information in prison which might be helpful in solving another crime or in getting another person arrested who might have been involved as another party in the same offence as the offender. Whatever the reason is, some years later they come by this information, or decide it is time to confess, and they go off to the authorities to provide this information. That is done on the understanding that it might help them in a resentencing opportunity with a reduction only to find that, if they were to do that, the dilemma for them is that they would be potentially exposed to the risk that the new sentence would apply under the contemporary law, that is, as of today, and to find that their 10-year life sentence with seven years nonparole is suddenly subject to legislation which would impose the 20-year minimum.

Clearly, this needed to be sorted out and we needed to make provision to clarify that. The bill, I am told, will resolve that potential problem, and it will have the effect that, at the time of resentencing, the law that applied at the date of the offence will prevail and the law and principles applicable at that time will be invoked. The provision for notification of suspension of interstate legal practitioners is also a matter which the opposition supports, but I do have a question in relation to it and I would ask the Attorney to consider this matter.

At present, under the Legal Practitioners Act, if a legal practitioner from interstate is suspended in South Australia, the court is required to notify interstate regulatory authorities—whether it is the Law Society in another state or the like—if he or she is a director of an incorporated legal practice. Apparently it was identified as being unclear whether the court is required to notify the authorities of an individual legal practitioner's suspension, and this amendment secures the same.

The question I have for the Attorney is that, whilst we accept whether the legal practitioner is practising individually or in a partnership or in a corporate enterprise, clearly, the information about their transgression/suspension needs to be identified in the other forums. We do not have an issue with making sure that we cover the field with legislation on that and that it is important to do. What is unclear to me is why the court must necessarily have that obligation and why would it not be the regulatory authority here that would have that responsibility to convey that to others.

Presumably, it is not too much of a cost. I made some inquiries and it seems that the material is emailed at present. The relevant authorities are known and the court undertakes that function. However, it does seem a little unusual to me that the court should be obliged to do that and not the enforcement agencies, whether that is a legal practitioner body or a representative from the DPP's office or someone from the Attorney-General's office, so I simply raise that question.

I come now to what our side of the house considers to be the more controversial aspects of this bill. The first is the amendments that are proposed to the Magistrates Act, to make provision for the appointment of the deputy chief magistrate as the acting chief magistrate in the event that the Chief Magistrate is absent or unable to carry out his or her duties.

As members may be aware, the general governance in respect of the magistrates in our courts is covered by this legislation—that is, the Magistrates Act—and the arrangements for the appointment and, indeed, the dismissal of members of this level of the judiciary are quite different to the judicial officers and judges in the District Court and Supreme Court which have their own acts and where, in fact, this parliament plays a role, not only because they have a very distinctive role in the appointment by the Attorney-General as a member of the government, but also this parliament is responsible in certain circumstances for the removal of a judge from office in a superior court. A superior court includes the District Court and not just the Supreme Court of South Australia.

There are exceptional circumstances when the parliament is called upon to act in regard to these superior courts. It is extremely rare, thankfully, because it is very important in any event that the government of the day have responsibility for the formal appointment and ultimately the taking of an oath in the presence of the Chief Justice, when they are sworn in as such, but that they have a role in dealing with dismissal in those exceptional circumstances.

The Magistrates Court has an extra provision—and I say 'extra' because within it is section 7(2) which states:

The Deputy Chief Magistrate may, if the office of Chief Magistrate is vacant, or the Chief Magistrate is absent or unavailable to carry out the duties of the office, exercise any of the powers or functions of the Chief Magistrate.

I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:00 to 14:00.

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