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Bills

Criminal Law (High Risk Offenders) (Psychologists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 February 2019.)

Mr PICTON (Kaurna) (16:43): I rise to speak on the Criminal Law (High Risk Offenders) (Psychologists) Amendment Bill 2019 and indicate that I am the lead speaker for the opposition. Labor will be supporting this bill; however, I should note at this early stage that we do share some of the concerns that have been raised by a number of key groups and stakeholders, particularly the Law Society and others.

This bill makes amendments to the Criminal Law (High Risk Offenders) Act 2015 to expand the range of medical practitioners who are able to provide the reports required under the act. The Attorney-General argues that this proposal will help free up resources and reduce delays being experienced in the provision of reports for high-risk offenders under the Sentencing Act 2017.

I understand that there are only a small number of forensic psychiatrists who are able to provide these reports currently. During the briefing with the shadow Attorney-General, the Attorney-General's Department indicated that there are approximately 30 such reports carried out each year, and the proposed bill will likely impact upon approximately 15 per cent of those reports, or roughly four or five every year. This is a very small number; however, we accept that that was only an estimate from the officer. In her second reading response, the Attorney-General might like to provide some additional details in regard to that.

I understand that in line with the existing regulations the South Australian Forensic Mental Health Service clinical director, Dr Narain Nambiar, will remain as the prescribed authority to allocate medical professionals to provide reports. It is worth noting that this bill does not directly amend the Sentencing Act 2017 to enable psychologists to provide reports regarding sexual offenders and whether they are unwilling or unable to control their sexual instincts. The bill does not directly address the underlying issues causing the shortage of medical practitioners prepared to undertake assessments and reports.

The Law Society have provided commentary querying whether lesser qualified persons are qualified to prepare these reports. I am advised that forensic psychologist Dr Loraine Lim has also provided similar comment. However, the Attorney-General’s second reading explanation indicates that this bill is part of a range of measures designed to help reduce the backlog, including the establishment of a diversion service in the Magistrates Court as well as a more competitive remuneration rate for forensic psychiatrists. The AGD has also indicated that there are additional FTEs being allocated to the Forensic Mental Health Service, and we would appreciate more information on that.

As I mentioned earlier, the shadow attorney-general received a briefing from the AGD. At the time of the briefing, AGD were unable to answer what the size of the current pool of experts is, how many additional FTEs are being allocated, how the new pay rates differ from the old rates and whether the clinical director is able to delegate his power to authorise medical professionals to undertake reports. We still do not have answers to those questions. I think it is important that the Attorney-General, in her response, outline some of those answers to those important questions. I think it is unfortunate that we are debating this bill without that full information, which I think would be appropriate and respectful for the parliament to have before it.

I conclude by reiterating that the Labor opposition will not seek to delay the bill from passing in this place. As I said, this is an important area. We do not want to see any delay in those important hearings. We do not want to see any of these offenders released because the government has been unable to seek to get a report provided to the court. However, it does seem that, rather than recruiting those extra psychiatrists and making sure that they are available, this is the wrong way round of doing this. However, we do not want to stand in the way of any measure that would potentially lead to somebody being released who otherwise should not be due to the lack of actions on the government's behalf.

So we will not delay the passing in this place, but we do have significant concerns about the regime. When we come to the committee stage, I will be raising a number of questions, and certainly we will be raising a number of questions when it goes to the other place as well.

Mr CREGAN (Kavel) (16:48): As the Attorney-General earlier outlined, the purpose of this bill is to enable registered psychologists to be used to prepare reports for the Supreme Court under section 7 of the Criminal Law (High Risk Offenders) Act 2015 when an extended supervision order is sought in respect of an individual. The bill is intended to assist in alleviating delays experienced in providing forensic psychiatrist reports under the act and, indirectly, under the Sentencing Act.

I turn to extended supervision orders for high-risk offenders under the Criminal Law (High Risk Offenders) Act. Section 7 of the act, below the heading '7—Proceedings' provides:

(1) The Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent).

(2) An application for an extended supervision order may only be made within 12 months of the relevant expiry date for the respondent.

(3) The Supreme Court must, before determining whether to make an extended supervision order, direct that 1 or more legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) examine the respondent and report to the Court on the results of the examination, including—

(a) if the respondent is a serious sexual offender—an assessment of the likelihood of the respondent committing a further serious sexual offence; or

(b) if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence; or

(c) if the respondent is a terror suspect—an assessment of the likelihood of the respondent committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence.

Similarly, under section 57(6) of the Sentencing Act 2017, the Supreme Court must be provided with reports from at least two legally qualified medical practitioners before imposing indefinite detention on an offender unable or unwilling to control their sexual instincts. Section 57(6) provides:

The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose)—

the same language as the section in the other act—

inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.

Members will know that there are a small number of psychiatrists qualified to undertake the assessments of the type that I have outlined to the house. Those psychiatrists work to discharge their full-time clinical duties, and I understand that those duties are significant. They also undertake assessments for the Forensic Mental Health Service within SA Health. The demands placed on them are considerable. These demands can lead to delays in assessments being prepared for the court. As I have mentioned, the bill is intended to alleviate those delays.

The former government, we understand, was made aware of the delays experienced by courts in obtaining forensic assessments, from as early as March 2017, and the now Leader of the Opposition was made aware in April 2017. The then government did not take the necessary steps to resolve the issue. That was a failure of leadership. There appears to be a collective amnesia on the part of the opposition in relation to matters of this type. The Leader of the Opposition recently remarked on radio that if, and the leader referred to a particular offender—

…is released and it's because the government hasn't got the reports that are required, then I think the public have every right to be incredibly angry, and as a father I certainly will be.

The opposition collectively, and the leader specifically, had every opportunity to resolve this issue in government. They did not, he did not and we are.

If passed, this bill will amend the Criminal Law (High Risk Offenders) Act to enlarge the pool of professionals able to provide reports to assist the administration of justice by permitting registered psychologists to provide reports under that act. The use of registered psychologists will reduce reliance on psychiatrists and allow psychiatrists to focus on preparing reports under the Sentencing Act in respect of a person alleged to be unable or unwilling to control their sexual instincts, as the Attorney has accurately and usefully outlined for the house. Forensic psychologists will be performing work under the governance of the clinical director of forensic mental health, and other appropriate oversight and governance arrangements will, of course, naturally continue to be in place.

The Attorney earlier addressed a range of other measures designed to streamline the psychiatric court assessment process and to ensure that the community can be confident in the quality of reports prepared following the amendments we now propose. I refer to, but do not repeat, the Attorney's useful and helpful remarks made earlier to the house. I also note that Labor are supporting these amendments, but I take members to earlier comments I have made in relation to Labor's opportunity to make amendments whilst they were in government.

Mr TEAGUE (Heysen) (16:54): Briefly, I also rise to commend the bill to the house. I welcome the fact that the opposition indicates its support and, therefore, I expect that the bill will have quick passage through the house, as it should.

I note that, pursuant to the Criminal Law (High Risk Offenders) Act 2015, in section 7, the Attorney-General may make an application to the Supreme Court for an extended supervision order and it is such an order to which the bill relates. I make the further observation that section 7(5) provides that the paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.

I think that it bears some reflection on what is relatively recent history in terms of the capacity for technology to be applied to permit us to consider these sorts of arrangements that are often in the form of some sort of amelioration of what would otherwise be the only alternative of continued incarceration of certain prisoners. This is because an extended supervision order involves, usually as one element, the application of an electronic monitoring device of some sort.

Members may be interested to bear in mind that, as a benchmark, it was around the turn of the century in the early 2000s that we saw the advent more broadly of the use of the electronic monitoring devices. There was some authority at the time, in South Australia at least, about the effect of the use of an electronic monitoring device, as it were, in terms of considering the extent to which it impacted on the freedom of someone who might be considered for bail in certain circumstances.

Justice Gray made some observations in R v Blayney in 2002 about the fact that an electronic monitoring device, and the use of it, in fact had a significant impact in reducing the level of freedom of the person who is then released. That was back in 2002. It was in the period between about 2001 and 2004 that we saw the development of the use of such constraints in a range of circumstances, including in the context of bail, pre-sentence for prisoners who are on parole and, in these particular circumstances, for those who have completed a term of imprisonment but who are in a category of sufficient high risk that where these measures can be put in place then to refer back to section 7(5). Again, with the interests of the safety of the community in mind, the measures can be applied to some benefit.

The history of the technology does not go back a whole lot further than that. I have had the benefit of one of the publications of the Australian Institute of Criminology, a paper produced by Messrs Black and Smith, entitled 'Electronic monitoring in the criminal justice system'. It informs us that the technologies of electronic monitoring had their origins or their roots in research conducted at Harvard University in the late 1960s.

At that stage, those who developed the device had developed a one-kilogram unit described as a radio telemetry device that could be worn by a person. We have come a significant way since then in terms of the nature of the device that can be worn, but it bears reflecting that this is relatively modern technology and that it is still relatively evolving in terms of the scope of its application.

The authors went on to observe that it was not until the 1980s in the United States, very much in circumstances where there was pressure on prison populations and strong incentives to look for ways in which the prison population could be limited, that electronic monitoring devices were first used as part of community-based sanctions over there. As I have referred to, we have seen the use of these devices evolve together very much in the same vein as the development of the technology itself.

It perhaps speaks to the relative success of the use of these devices in the modern community over the last 20 years that, after a flurry of reforms initiating the use of these devices in the early 2000s, the use of them has become a matter that is not so much controversial but a challenge for practical and reliable deployment and so forth. So we see their application evolving from what were originally quite limited circumstances to ones in which they are now accepted as a valuable and important tool as part of the sanctions mechanisms available to the justice system.

The subject of the bill goes to the further practical aspects of enabling extended supervision orders to be made, including the deploying of these devices in circumstances where it seems to be a matter of wholehearted agreement across the community and stakeholders that those qualified to make the necessary assessments were to be drawn from a far too narrow pool. It just happens that we are dealing with a very small number of practitioners who formerly fell within the relevant class.

As has been observed just now, the prescribed authority—the clinical director of the forensic pathology health service in South Australia—had to choose from a too small group of health professionals when obtaining the necessary report. It is an entirely practical and considered measure, therefore, to look to expanding the classes of practitioner to include psychologists and other medical practitioners who may be nominated by the prescribed authority for the purpose. Again, I make the observation that it speaks to the relative utility and lack of controversy that are associated with these measures that it is regarded as appropriate that we ensure that the process around them can be completed as expeditiously as possible, including by expanding the class of professionals who can be associated with those orders.

We know, too, that there has been wideranging consultation, and those many agencies within the justice system that will be responsible for administering these orders have been consulted I note the observations from the member for Kaurna that it may well be that there is an opportunity for those concerns to be further addressed.

In terms of the principle, though, we are dealing with the making of orders that are desirable primarily in the interests of the safety of the community. They are steps that the Attorney-General ought appropriately be able to take pursuant to the act, and when taking them it is appropriate that the class of those from whom the necessary report might be obtained be practicably one that ensures that the administration of the act, including the obtaining of the orders, can be progressed expeditiously. With those remarks, I commend the bill and encourage its speedy passage through the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:06): I thank the speakers who have made a contribution: firstly, the member for Kaurna who, on behalf of the opposition, has indicated their support of this bill, although he has identified some reservations; and the members for Kavel and Heysen, who elegantly added to the standard of the debate and gave valuable extra historical information, which I hope adds to the reassurance of the house of the significance of not only the principal legislation and the development of it but also why we are here today to amend it.

May I just briefly say that a number of matters were raised at the briefing on 12 March (which I assume to have been last week) by the shadow attorney-general of another place, and I have to hand a script of a number of matters that I believe covers the matters that were raised. I am happy to place those on the record, I hope, to encourage the opposition to the understanding of the significance of the effect of these amendments.

Can I just briefly say this: the Criminal Law (High Risk Offenders) Act 2015 in criminal law terms is quite novel law because it addresses the question of what is to be done with people who are deemed to be high-risk offenders by certain definitions, who have concluded their sentence or who are about to, and it is considered for various reasons that they are unsafe to be placed back in the community, that is, unsafe for the purposes of the community.

In a way that flies in the face of the concept that you commit an offence against public order, you are convicted, you are sentenced, you do the time and you are released, because this new law does two things, one of which is particularly novel; that is, in the face of the 'do your time, you will be released', it gives a process that actually keeps you locked up. It can be up to five years, or such lesser period as the Supreme Court determines.

That is quite a new and different concept, but one that was at that time under discussion around the country as to how we deal with these very difficult cases. In a way, it is a bit easy to deal with someone who has a mental incapacity because they are not convicted. They are treated in a different way. They may be held in a detention facility or in custody as such, but they are not held in a prison, and they are treated as a health patient. They are in a forensic environment; nevertheless, they are a health patient.

But this is an entirely new category. I remind members that, in undertaking such a significant reform affecting someone's actual freedom in a continuing detention order, it had to be a fairly high threshold. The law that we passed really covered only four areas: a person had to be in the category of a serious sexual offender, and there is quite a bit of definition about that; alternatively, they had to be in the category of a serious violent offender; they had to be a terror suspect who was serving a sentence of imprisonment or a person who was subject to an extended supervision order.

Within those four categories, they had to get to that threshold. There would not be a week that goes by when an application is not put in front of me with someone's history indicating whether there should be an application for a continued detention order or whether I, as Attorney-General, should apply for an extended supervision order and/or an interim supervision order with that, all of which are provided for under the act.

There are two things that have to happen. There has to be sufficient evidence that, firstly, they do qualify as a high-risk offender and, secondly, there is a risk to the community and the safety of the community is at peril. There is a whole list of other direct matters mainly centred around the likelihood of reoffending, which are all set out in the act. I will not repeat those, but I remind members that this is a discrete, relatively small group of people who the parliament has determined need to have a second set of protection around them for the purposes of ensuring that the public are safe. That is why we have it.

I think it is fair to say that the previous government, when they presented this legislation for the parliament's consideration, were of the view—and, indeed, we support it—that, if we are going to exercise this role of locking people up for longer, even when they had undertaken and completed their sentence, or ordering them to either abstain from certain conduct or do certain things under an extended supervision order, then we need to be very clear about what the terms and conditions are going to be and we need to have someone very senior make those decisions. The Supreme Court was selected, and they have undertaken this role.

I think it is fair to say that, in the last year or so that we have been in government, it has been pretty clear that more applications have been made than were probably expected. I have had continuing discussions with the Chief Justice of the Supreme Court on the number of applications that have been made because it is his court that has responsibility for dealing with this. Regarding the actual numbers, I am advised that 40 reports were prepared by the Forensic Mental Health Service in the period from October 2017 to November 2018, a period of one year.

Mr Picton: Sorry, how many?

The Hon. V.A. CHAPMAN: Forty. Based on the statistics for 2017-18, it is expected that there will be around 35 to 36 reports per annum, which is slightly more, on checking, than the information that I understand the member for Kaurna was provided. You can see that we have nearly one of these matters a week that requires a psychiatrist's assessment.

Of course, the other thing is that, not long after coming into office—in the envelope of the Colin Humphrys case, which is now well known to the public—the question of the threshold was considered as to what is to apply in relation to these matters, and the obligation for the two medical practitioners' support plus the change of onus and the obligation on behalf of the applicant for release was considered. A tight set of prescriptive rules apply to this very narrow aspect of the population who are in these dangerous categories, which attract this extra protection for the community. We endorse all that. I appreciate the now opposition's support in tightening that up.

Another matter that became evident to us as a new government by late last year was that the number of people available to do these reports—which was a process via the South Australian Forensic Mental Health Service under the directorship of Dr Nambiar, who has been referred to—was clearly getting to an acute stage, and we convened some round tables and had some discussion with various representatives at that time. We did not know at that stage that the previous government had in fact been alerted to this problem in 2017. Much has been said about that, but let's move on. They did not do anything about it, but we are, and we need to do something about it.

The heads of the courts, their representatives, a particular magistrate Dixon (who is familiar with these matters and who has some history in looking at these issues), the Courts Administration Authority, the Office of the DPP, the South Australia Police, the Forensic Mental Health Service—in particular the clinical director, Dr Nambiar—the Department for Correctional Services and the Legal Services Commission all have a direct interest in either providing a service or supporting the applications or management in these matters.

We sat down and talked about what we could do to try to redress this situation. We clearly had a certain cohort of work to be done and it was a level of work that was not all that attractive to a lot of people. Let's be fair: not everybody wants to go down to high security prisons and interview people in this category. That is a fact of life, so we had to address it. A number of things have occurred.

Firstly, extra funding was allocated for SA Health, which was the referring body and an operational body for the provision of the reports, under Dr Nambiar. Additional funding of $803,000 per annum went towards the new forensic court diversion and assessment service. In addition to that, the remuneration rate for court-ordered reports was reviewed and the rate for those reports prior to March 2019, under section 269 of the Criminal Law Consolidation Act 1935, was $772.00 per report and reports under the Criminal Law (High Risk Offenders) Act and sections 57 and 59 of the Sentencing Act were at $989.00 per report. Both are GST exclusive.

The remuneration post 1 March 2019 will be all reports prepared on a fee-for-service basis based on the WorkCover scale. Accordingly, there is no fixed rate for reports based on each act. The total cost will be based on the time taken to assess the defendant and the work involved in preparing the report. These are two important initiatives that we sorted out as quickly as we could. However, in the meantime we did need to gather the advice of a number of other parties as to how we might spread the load in respect of health professionals.

The question of psychologists was presented as an option in a similar way to what we had done when the previous government came to us and said, 'We don't have enough dentists in South Australia. We will get dental therapists to come in and take on a certain role in relation to dental treatment, particularly in respect of children and decay and all of these sorts of things.' There was a question of the professional standards that needed to be applied, and I recall some conditions were put to ensure that dental therapists were only going to be doing the work in relation to children's teeth because, as probably most people would appreciate, children's teeth are the baby teeth and can be extracted fairly easily.

Usually, children do not have diseased gums or things that tend to be more applicable in adults, so we could get dental therapists. As a parliament, we could approve dental therapists undertaking some of this work for the dental hygiene and health of children particularly and that would relieve the responsibility or workload for the other dentists. These are the sorts of adjustments that can be made, so we worked through that.

The recommended reforms that were presented on the table in respect of psychologists were then consulted on by the Forensic Mental Health Service—again, Dr Nambiar, the clinical director, was valuable in his advice—psychiatrists for the forensic court diversion and assessment service; Dr Craig Raeside; staff of the existing court liaison service; the South Australian Health chief executive, Dr Chris McGowan; the Chief Psychiatrist, Dr John Brayley; the Courts Administration Authority, which is headed by the State Courts Administrator, Ms Julie-Anne Burgess; the Legal Services Commission; the Australian Psychological Society; and the Royal Australian and New Zealand College of Psychiatrists.

It is a big list, but it is an important one because clearly we need to know that the clinicians who are going to undertake this work will be competent to do so and able to assist the Supreme Court in making these hard decisions. Once we got through that stage—and there was certainly an indication of an appetite for this reform—we then had to amend the act. The bill does this by providing that, in addition to a medical practitioner, which is not currently defined to include a psychologist, a prescribed health professional is now to mean a psychologist or a medical practitioner nominated by the prescribed authority. That is the addition we are adding to cover this initiative.

Those legislative amendments, via this bill, were then consulted on by the Forensic Mental Health Service, the Law Society, which has been mentioned, and the South Australian Bar Association. Obviously, the bill itself is not very long. It is to add in this extra prescription for the purposes of a qualification extension for a prescribed health professional. The same rules still apply; that is, the prescribing authority that nominates these is the Forensic Mental Health Service, as I have referred to. Dr Nambiar is the head. There is no power of delegation. I understand that there was a query at the briefing on this.

Our understanding is that there is no power of delegation and, accordingly, I inform the house of that. I expect that if Dr Nambiar were not available—on leave, for example—there would be an acting director and, of course, they would have those powers, but there is no capacity for him to delegate them. He does have power to identify people within the team. I still do not know exactly how many are in the unit, but it is quite a significant unit in the health department.

There was a question, for example, as to who the second report was prepared for in the Humphrys case. My understanding is that Dr Furst, a South Australian forensic psychiatrist, undertook that work, but there are occasions when, for obvious reasons, it is necessary to get someone from the private sector or, indeed, interstate. I am advised that there are usually very limited occasions when that might be required, as you would expect—where there might be a conflict of interest—but it is the exception rather than the rule.

Let's just consider the cohort of work to be done by this unit or allocated by psychiatrists in this unit under the direction of Dr Nambiar. There has been some work on having a look at the report. It is anticipated that forensic psychologists will prepare approximately 89 per cent of the reports ordered under the act, with forensic psychiatrists preparing 11 per cent. I recall the member for Kaurna suggesting that it would be only four of the 30. I am not sure whether that was misunderstood at the briefing or the other way around; perhaps there was some misunderstanding.

However, psychologists would pick up the bulk of the work, and the 11 per cent is expected to be done by the forensic psychiatrists. I think it is important for the parliament to be aware that at all times health professionals undertaking these reports are under the supervision of the director. That is an important addition and some security in the standard that is to be available and maintained for the purposes of undertaking these tasks.

The final matter raised by, I think, the opposition—but I will give you credit for it if you had not—is about how the reports are allocated and what priorities and considerations are given. The allocation of reports, I am advised, is typically prioritised in order of the date of the court request. There may be times when there is a short time frame between the date of the court request and the day of the next hearing. In those instances, the clinical director may prioritise those requests or, if this time frame is too short, the relevant stakeholders will be advised that further time is required. Allocation of reports may also depend on the type of matter; if there is a particular type of matter that would benefit from a forensic psychiatrist with unique expertise, the request may be assigned to the psychiatrist.

For the benefit of members, I should add that these applications, once they are before the Supreme Court, are under the management of a Supreme Court judge or the Full Court, if it is under appeal. They may indicate, which they have—certainly the Chief Justice has made comment on these matters—where there is a circumstance where some urgency is expected to be acknowledged in a particular case and, where possible, that is accommodated as quickly as possible to ensure that the request of the Supreme Court is followed through as best as can be done.

However, I want to reassure the house that when our new government became aware of this problem, as quickly as we could we gathered around the table people who had expertise, experience and capacity to contribute to the resolutions of this situation. Certainly, I heeded the concerns raised by the Chief Justice about any delay in the process of court applications, and we acted as expeditiously as possible to bring into account these new initiatives. We did not wait for the whole lot to be resolved. We have progressed others already, allocated extra funding and set new fees. We are here to do what we think will be an effective further tranche of reform by expanding the definition of health professionals to undertake this work.

I want to thank all members of the Attorney-General's office in particular and the opposition for their indication of support. They have undertaken the work to deal with this matter as expeditiously as possible. I am happy to move into committee if there are any further questions from the opposition or, indeed, any members.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: I would like to ask the Attorney-General a question in relation to the Tipping case—Attorney-General (SA) v Tipping [2019]—from the Supreme Court. This was a decision where, according to the Chief Justice, and I quote:

During the first hearing in August 2018 two medical reports were ordered. The matter was adjourned until November 2018 based on an estimation provided by the applicant. At the time of the application heard on 16 January 2019, only one of the two medical reports has been received. The court was advised that the report writer of the second medical report was yet to be assigned by Forensic Mental Health, the effect of which is that the court only has the benefit of one of the two medical reports prior to the release date.

Further in his orders he said:

The delay on the part of the Attorney-General, a delay on the part of the prescribed authority in assigning the writing of reports to medical practitioners, is a relevant consideration in exercising the discretion pursuant to s 57(5) of the Sentencing Act.

My question to the Attorney-General is: when was she first advised that there was an issue in terms of allocating that report to somebody to be done, and what steps were taken once she was informed of the matter?

The Hon. V.A. CHAPMAN: In terms of the Tipping case, those comments were published on I think about 20 January.

Mr Picton: The 16th.

The Hon. V.A. CHAPMAN: Yes, 16 January, thank you. I think I have already made it clear in the contribution that by late 2018 we were already aware of a case, because the Chief Justice had raised it with us, and we started working straightaway. Issues in relation to extra funding and the redetermination of fees for reports, etc. were commenced straightaway, back in 2018.

By January, when a report had been prepared in the Tipping case, we were aware of it. Indeed the Law Society, which the member for Kaurna raises as being concerned about some of this bill, raised it with me in a meeting three or four weeks later. I was pleased to be able to advise the new president that not only had I read the judgement and taken note of what the Chief Justice had said but I had acted to ensure that there was attention given not just to that case but overall, hence the advancement of this legislation.

So, yes, the Chief Justice, without referring to that judgement, had already made it clear. As I say, once everybody came together, it then became clear that the previous government had known about this for some time. He had been raising this issue; the Law Society had been raising it with the previous government. These were all matters that became apparent to our new government, and we acted with priority on this matter.

The Chief Justice is quite rightly not only able to bring but is appropriately bringing to our attention as a new government that this can potentially be a prejudice to those applicants who are coming before him or her in the Supreme Court. So it is entirely appropriate that it was raised. This time, though, when we were alerted to it, we acted on it.

Mr PICTON: From what I understand from what the Attorney-General is saying, she was informed by the Chief Justice back in 2018 about the Tipping case or about the issue just—

The Hon. V.A. Chapman interjecting:

Mr PICTON: Just generally. So you were not aware specifically of this issue in terms of the Tipping case until January, when it came up. Have you asked your department why you were not informed, or should it have been that the mental health agency should have informed the health minister that there was an issue here in terms of the Tipping case?

I would have thought that if you had been made aware that 'We've got this case coming up. It's going be heard before the Supreme Court in January. We haven't been able to get a second report,' you might have been on the phone to the health minister, saying 'Let's see if we can fly in somebody from another state to make sure that this is going to happen so we don't look a bit foolish before the Supreme Court with only having one of these reports.' Should your department have known about it, or should the health minister have known about it?

The Hon. V.A. CHAPMAN: That is possible. I think what is more appropriate, though, is that having been informed on coming into office, there was a delay in these reports as a result of there being more reports than expected—that is, more cases than expected—once the legislation was in full flight. Secondly, although this had been a pre-existing problem, it was starting to translate into people's applications not being as expeditiously heard as they might have expected and the Supreme Court wanted to offer as that service.

Should I, as Attorney-General, be informed of every case? Probably not, because I think in these circumstances one appreciates it was 16 January. There was clearly a Christmas period, there may or may not have been people available, and it may be that the psychiatrist previously had been appointed and simply had not been able to conclude the report in that time.

I do not know the particulars of that, but I do know that it was brought to my attention and that just made me more eager to ensure that something be done about this situation. That is exactly what we have done. Should I be informed of every case? No. The Chief Justice raised this in his commentary, it was brought to my attention, and I advised the Law Society in early February, I think, that as soon as parliament resumed, this would be an action that we would take to help resolve that problem.

Mr PICTON: Who does the Attorney-General think should be monitoring this process? I understand that she believes she is bringing these changes in to make sure this sort of issue does not happen again, but whose job is it to make sure that for all these applications being made, understanding that that number is generally increasing and orders being made by the court for these reports or other reports that might need to be made are being checked, are actually happening as they are meant to? Is it her department's job? Is it the Forensic Mental Health Service's job? Is it the health ministry's job? Is it the police commissioner's job? What is the process by which that is being monitored?

The Hon. V.A. CHAPMAN: First of all, I do not think that there are increasing numbers; I think that there are more than were expected there would be annually. I am just reminded that formerly, in relation to the Tipping case, as Attorney-General I made the application for an extended supervision order on 8 August 2018. That is the application, just in case you need to have that for the completion of the Tipping case. In relation to it not being concluded as a result of the second report, the notice of that came from the commentary of the judge at the time.

Let me just go back a stage, though. Who should be responsible for this? I suppose you could ring up the Hon. John Rau SC and ask him, because he was the one who brought this in. The reason I say that is that the model established under the act was that the Supreme Court would be the arbitrator of the application, there would be a prescribed authority and that authority was established to be the Forensic Mental Health Service in the health department.

That is a unit of the health department and that is the model that was established. I assume that is because the Attorney-General's Department at the time—and still now, I can assure you—does not have its own unit or suite of psychiatrists to do work for these sorts of matters, nor does the Courts Administration Authority, to the best of my knowledge. It is a highly specialised area in the health department.

I just want to say that is no different from the fact that the courts rely on expert evidence for lots of things: work injuries, motor vehicle injuries, compensation cases, property acquisitions, valuers, medical practitioners, and people who identify for the purposes of assessing values of businesses, for example. There are lots of structures in our law where the body that determines who is going to be appointed, mainly to avoid expert shopping, is an independent group.

Sometimes it is the Real Estate Institute, sometimes it is the Australian Medical Association's SA branch, sometimes it is a college of psychiatrists, but the Forensic Mental Health Service was the one that was chosen for this purpose. I suspect at the time it was because, firstly, they have the expertise. These people work for the health department. They have a right of private practice, I understand, but they also do these reports. They are pretty limited in number out there. This is not a real-world practice that a lot of people follow.

In essence, that is the structure that was established. I think it was a reasonable structure. I do not think it is appropriate for the courts to have to do that, especially as out in the private sector there are not many others who are available. This is a way of having an independent nomination process so that there is not what we call 'expert shopping' to try to secure the services of a particular specialist who may or may not be considered to be more lenient.

Mr PICTON: That is not my question. Who is going to be checking? The Forensic Mental Health Service?

The Hon. V.A. CHAPMAN: The Forensic Mental Health Service is under the Minister for Health. It is a unit of the health department. I know that the member for Kaurna was a former minister and I do not know in the member's role historically as a minister whether he had much to do with the Forensic Mental Health Service. But if you did, within that area of work, you would appreciate it has a number of roles within the health department. As I understand it, a number of them have the right of private practice but, in addition to that, they undertake certain other duties for the government operations and one of those is the courts.

Clause passed.

Clause 2.

Mr PICTON: The Attorney-General outlined a number of the stakeholders she consulted with as part of the bill. I am wondering if she can provide any of the submissions that were made by the stakeholders and advise what each of the stakeholders' views were regarding the bill.

The Hon. V.A. CHAPMAN: The Forensic Mental Health Service is a government agency, so we do not as a matter of practice provide their response in relation to those. But I can tell you, as I think I outlined, Dr Nambiar's contribution of support in relation to this legislative amendment is there. The Law Society: you know that, because you have a copy of it and it is available online. The SA Bar Association did not even answer.

Mr PICTON: That is it? I thought there would be a lot more. The College of Psychiatrists?

The Hon. V.A. CHAPMAN: That is it. I will be clear about that. They were all consulted in respect of the implementation of all of the reforms that were being considered. There were round tables and so on as to a number of initiatives. In relation to this last one, they were not sent a copy of the bill because, as you said, it is two or three paragraphs.

Mr PICTON: Is the Attorney-General investigating the reintroduction of the master of forensic psychology program?

The Hon. V.A. CHAPMAN: I am not, but perhaps that is a matter you could direct to the Minister for Health.

Mr PICTON: The Attorney said in her comments earlier that she outlined the previous rates of pay and said that the new rates of pay will be commensurate, depending upon the complexity of the work, which is not a lot of detail in terms of how much people are likely to get paid. Can the Attorney-General expand upon that so that the parliament can get a bit of an understanding of what a report under this new payment regime is likely to be for a standard length and complexity report compared with the old scheme?

The Hon. V.A. CHAPMAN: On the information I was advised, and I will repeat it, the new rate for reports on a fee-for-service basis is based on the WorkCover scale, so there is a prescription list of fees for that. It is higher than the two figures I gave you, but it varies obviously because it is a prescribed scale, and then there is a capacity within that to accommodate for extra work, given the complexity. I am sorry if you missed that before.

Mr PICTON: I wonder if the Attorney-General can advise what is the pool of forensic psychiatrists and psychologists we are talking about who would be able to provide reports under the current legislation and what is the pool of forensic psychologists who would be able to do that under the new legislation?

The Hon. V.A. CHAPMAN: I did mention earlier that I still do not know exactly how many are available but bear in mind that, apart from the forensic psychiatrists in the unit, there is a capacity, obviously, to outsource. In extreme circumstances, there is usually a conflict of interest for interstate. There is a very long list of psychologists in South Australia.

However, as I say, we would expect that not everyone would be rushing to do this type of work. Some like to specialise in clinical psychology to support children who are getting behind at school, and the prospect of going down to Yatala to interview people is not really something that they are keen to do. We have to respect that. On the advice of Dr Nambiar, we are expecting that that is something that will very significantly change the capacity and will address the issue.

Clause passed.

Clause 3.

Mr PICTON: I wonder whether the Attorney can outline what qualifications must a medical practitioner have to write a report? The term in the act is 'legally qualified medical professionals', but that definition is now being deleted. What does she envisage will be the qualifications after this legislation change?

The Hon. V.A. CHAPMAN: The new definition will be:

…a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

As the member for Kaurna might remember from his days when he was providing excellent advice, I am sure, to the then minister for health, the Hon. John Hill, when he supervised the nationalisation of the registration of health professionals in this state, that became the new definition. That includes people who are legally qualified. That's the only basis upon which you can register under the national scheme, and I am sure that the member for Kaurna remembers fondly the advance of that reform.

Mr PICTON: I do. Does that mean that any doctor—because of course all doctors are registered under the national regulation scheme—would be okay under this legislation and that they do not have to have a particular proficiency in psychiatry or any other forensic qualifications, that is, as a GP, pathologist, etc.?

The Hon. V.A. CHAPMAN: I am advised that, yes, that is technically right. At the moment, the medical practitioner is the person who is under the definition in the current act. That was never prescriptive to just be psychiatrists. The previous law under the John Rau iteration that was passed in 2015 was for two medical practitioners. On the face of it, it could have been a number of different specialties, but psychiatry within that is a legal medical qualification. Psychologists are not, a bit like social workers are not, so to change the law to allow for psychologists, which is deemed by the people involved, we need to add in psychologists because they are not medical practitioners for the purposes of what had previously been the case. That level of expanded health professionals, as such, was already there.

Mr PICTON: What will be the mechanism for this split between the kinds of reports that could be done by the medical practitioner and the kinds of reports that could be done by psychologists, noting that you said earlier in this debate that you thought it would be about 89 per cent that would now be done by psychologists, which is quite a lot and different from what we had understood? How is that decision made in terms of what the doctor and what the psychologist will do?

The Hon. V.A. CHAPMAN: That will be a matter of determination by the director.

The CHAIR: Last question on this clause.

Mr PICTON: You must have had some criteria applied to be able to come up with such a specific figure of 89 per cent to be done by psychologists versus medical practitioners. What are the criteria for which you would say, 'This one is too complex; it has to be done by a doctor'?

The Hon. V.A. CHAPMAN: Let's be clear: I have not done this calculation and, to the best of my knowledge, my office has not done this calculation. This is the estimate from the forensic mental health unit of what would be the likely allocation of work. That matter is not prescribed by the parliament, by me as minister under regulation or by the health minister. That matter is left to the discretion of the director, just as when the Supreme Court orders that somebody in the Public Trustee, for example, is to deal with a deceased estate and they are appointed for the purposes of undertaking the provisions in the estate or when a valuer is appointed by the president of the institute of valuers. These are the types of orders that are made.

Mr Picton: What criteria does he use?

The Hon. V.A. CHAPMAN: The expectation is that the people in those positions will make the identification as to the suitability. For example, in the case that was asked about, the second report for the Colin Humphrys case, the allocation of Dr Furst as a forensic psychiatrist was made by the director of the mental health unit as, in his opinion, a person suitable to undertake that task. I would see it as quite improper for the Attorney-General or executive government to be prescriptive on that or to interfere with it. My predecessor, the Hon. John Rau, probably for that very reason did not prescribe this.

Certainly, I have received no indication from the Supreme Court, which has the management of these cases, in particular the Chief Justice, that there is any concern that the standard of personnel who have been appointed as experts by the forensic mental health unit has been in any way deficient in that regard. If they had, then obviously that is a matter we would have to review, but no-one sitting around the table, including the Chief Justice, made any comment on that.

Clause passed.

Clause 4.

Mr PICTON: I believe that the Attorney mentioned earlier that an additional $803,000 per annum was being allocated to forensic mental health for this work. Can she outline how many FTEs are being added to the pool of medical professionals who can prepare these reports?

The Hon. V.A. CHAPMAN: No, I cannot, but I would encourage the member perhaps to have the shadow minister in the other place ask the Minister for Health. That might be the quickest way to deal with it, but I will make some inquiry in the meantime and, if it is available, I will make sure that it is forwarded to the Hon. Kyam Maher in the other place.

Mr PICTON: Chair, you will be glad to know that this is the last question. Can only medical professionals who are part of SA Health and the Forensic Mental Health Service provide these reports, and is that different for the Sentencing Act?

The Hon. V.A. CHAPMAN: Private practitioners have been and can be used, even from interstate in exceptional circumstances. So, yes, they can, and that is obviously to supplement who is available to do the work. Again, it is entirely at the discretion of Dr Nambiar.

Clause passed.

Remaining clause (5) and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 17:54 the house adjourned until Wednesday 20 March 2019 at 10:30.

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