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Legislative Council - Fifty-First Parliament, Third Session (51-3)
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CROSS-BORDER JUSTICE BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (22:38): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This bill will enable South Australia to participate in the cross-border justice schemes in conjunction with Western Australia and the Northern Territory. The schemes are aimed at delivering better justice services to, and improving the safety of, the communities in the regions covered by them. They will allow police, magistrates, fines enforcement agencies, community corrections officers, prison officers and other office holders to deal with offenders from any one of the participating jurisdictions, providing the offender has a connection to the cross-border region.

The Bill allows for cross-border schemes to be introduced where border regions are shared, for example, the Kimberley region or the Western Australian-South Australian border area of the Nullarbor Plain. The regions will be prescribed by regulations.

Initially, the scheme will apply to the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands in Australia's central desert region. The NPY Lands occupy some 450,000 square kilometres that straddle the borders of Western Australia, South Australia and the Northern Territory. The local people of the NPY lands live and travel throughout the region according to their traditional culture and customs, frequently crossing the borders of the three jurisdictions. Many communities in the NPY lands, like other remote communities, experience high levels of alcohol and substance abuse, sexual abuse and domestic violence. The transient lifestyle of the people of the NPY lands brings challenges for justice agencies dealing with those community problems, which are constrained by the State and Territory borders of the region. This Bill is part of a tri-jurisdictional response to those challenges.

The idea for the cross-border justice schemes came out of the NPY Lands Tri-Jurisdictional Justice Initiatives Roundtable in June 2003. Members of the NPY Women's Council, judicial officers, police and other officials working in the criminal justice systems of South Australia, Western Australia and the Northern Territory, met in Alice Springs to discuss, and find better ways to provide effective justice services in the NPY lands. The NPY Women's Council, a non-Government organisation that provides support and advocacy services for Aboriginal women in the region, was already operating under a tri-State model, recognising that the State and Territory borders mean little to the indigenous people of the cross-border region, and that the State services are often hampered by jurisdictional boundaries.

In November 2007, South Australian, Western Australian and Northern Territory Governments agreed to develop legislation that would enable cross-border justice schemes to operate. Western Australia worked up the model Bill for the mirror legislation. Usually, the purpose of mirror legislation is to enact new substantive law in a number of jurisdictions. The mirror legislation for the cross-border justice scheme does not enact new substantive law. Instead, it extends the geographical area in which the existing substantive law of each jurisdiction applies. The Western Australian Cross-Border Justice Act 2008 received Royal Assent on 31 March 2008, and this Bill mirrors that Act.

South Australia, Western Australia and the Northern Territory have worked together to create the legislative and administrative frameworks that will allow each justice system to operate across the borders. Under the scheme, each jurisdiction will extend the geographical area in which its law can operate beyond its borders to include the geographical area of each of the other jurisdictions; and will allow the law of each of the other jurisdictions to apply within its borders. The cross-border legislation for each jurisdiction will contain provisions about three aspects of the criminal justice system:

the exercise of police powers,

the jurisdiction of summary courts, and

the enforcement of sentences and orders.

Cross-border policing is not a new concept. For several years, multi-jurisdictional police stations have operated at Warakurna in Western Australia and Kintore in the Northern Territory. Each police station is staffed with both WA and NT police officers who hold appointments as special constables of each other's police force and patrols of areas in both jurisdictions are conducted out of those police stations. The existing legal restrictions, however, mean that whilst operating a patrol in the NT the officers can only exercise their powers as NT officers, and while in WA they can only exercise their powers as WA officers. This means that if, while on patrol in WA, they come across a person who is alleged to have committed an offence in the NT, the patrolling officers cannot arrest the person in WA That person must be dealt with under the extradition laws; a costly and time-consuming process. The cross-border legislation will provide an alternative to that process. Under the scheme, police officers from South Australia, Western Australia and Northern Territory can be appointed as officers of each other's police force. Those officers will be able to arrest, detain and charge an alleged offender in any of the three jurisdictions, if the alleged offender has a connection with the prescribed cross-border region.

An appropriately appointed magistrate will be able to deal with a matter in any of the participating jurisdictions, under the law of the place where the offence took place and, if necessary, deal at the same time with any outstanding offences that may have occurred in another participating jurisdiction. The arrest, charges, hearing and sentences can be dealt with quickly and efficiently, thereby minimising the time, inconvenience and cost for everyone involved in the process. The risks of transporting prisoners over long distances to enable them to be charged or dealt with by a court in the State or Territory in which the alleged offence took place will be removed or reduced.

The main features of the Bill are as follows:

The application of the cross-border scheme is restricted to the region prescribed in the Regulations as the 'cross-border region'. A matter will only fall within the scope of a cross-border justice scheme if the offence is connected to the relevant cross-border region. The criteria that will determine whether there is a connection are:

the alleged offence occurred in the cross-border region; or

the alleged offender was arrested in the cross-border region; or

the alleged offender normally resided in the cross-border region at the time of arrest or of the alleged offence.

A connection also exists if at the time a person comes before a court, he ordinarily resides in the region, or is before the court for another matter where he has a connection with the region. A person may have one or many connections with a cross-border region.

The Bill places the onus of proof on the arrested person as to their whereabouts at the time of arrest and his or her normal place of residence at the time of arrest. The onus has been placed on the arrested person so as to discourage false claims of the person being outside the cross-border region, thereby frustrating the use of the cross-border legislation, and to limit the extent to which the boundaries of the region can be used to evade justice. Proof is to be determined on the balance of probabilities.

The Bill limits the application of the scheme to those matters that can be dealt with by the Magistrates Court or the Youth Court, other than when constituted by or so as to include a judge. Those courts will be able to deal with aspects of indictable offences that magistrates are able to deal with, such as bail and committal proceedings. This will allow much of the offending behaviour in the cross-border regions to be dealt with under this scheme.

Part 13 of the Bill will allow office holders of the State to hold secondary office under the law of another participating jurisdiction and exercise the powers of that office. For example, the Bill allows each participating jurisdiction to appoint magistrates of the other participating jurisdictions to their own magistracy through their own legislation governing the appointment of magistrates. Police officers will also be secondary office holders by appointment through each jurisdiction's existing appointment processes for special constables. Community corrections officers and Registrars will, under the cross-border provisions, be automatically officers of each of the other jurisdictions. The bill will amend the Magistrates Court Act 1991 so that a member of the Court's administrative and ancillary staff may, with the approval of the State Courts Administrator, concurrently hold office as an officer of a court of a participating jurisdiction.

For each provision of this Bill authorising the application of South Australian law in WA and NT, there are corresponding provisions in the WA Act and NT Bill to allow the SA law to apply in WA and NT.

The factor that will determine which jurisdiction's laws will apply to an alleged offence will be the location where the alleged offence occurred. For example, if a person is arrested in the Northern Territory and charged with an offence alleged to have been committed in South Australia, a magistrate sitting in the Northern Territory could hear the matter sitting as a South Australian court and the South Australian laws of apprehension, court procedure, criminal liability and sentencing would apply. Although convicted offenders will be sentenced according to the law of the jurisdiction where the offence occurred, the sentence will travel with the offender. That is, a person convicted of a Northern Territory offence but serving a custodial sentence in South Australia will serve the sentence as if that person were in the Northern Territory.

Some laws will be applied differently under the cross-border justice scheme than elsewhere. The clauses of the Bill that extend the geographical area within which the existing law of a jurisdiction applies include the provisions applying the existing law 'with any appropriate modifications'. Appropriate modifications are 'modifications that are prescribed by regulations made under the jurisdiction's mirror legislation, and any other modifications that are necessary or convenient to give effect to the jurisdiction's mirror legislation'. The law of the jurisdiction is then applied with those modifications as if the law had been altered in that way. For example, the Prisoners (Interstate Transfer) Act1982 will be modified so that WA and NT prisoners sentenced under a cross-border justice scheme will be able to be moved to a prison in S.A. through administrative arrangements and continue to serve the sentence as a WA or NT sentence. In other circumstances a sentence not imposed under a cross-border justice scheme would be translated into a SA sentence when a prisoner is transferred. It is not intended that the capacity for police officers, magistrates and other officials to perform their functions across borders and exercise the powers of another jurisdiction can be extended to apply in other parts of the State. Modifications will apply only in the context of dealing with one across border matter, and the modified form of the Act must be applied when it is used in a cross-border matter.

As already explained, the mirror legislation for the cross-border scheme does not enact new law, but extends the geographical area in which the existing law of each jurisdiction applies. Consequently, during the drafting of the model Bill, the relevant substantive law was examined to determine the differences in the law of the three jurisdictions, and if there were differences, to decide whether or not the substantive law of each jurisdiction should apply to its full extent in the other jurisdictions. Two main areas were identified. The first relates to fines enforcement. All three participating jurisdictions have legislation relating to the enforcement of fines. Under the WA and NT fines recovery processes, the fines recovery unit, in the NT, and the registrar, in WA, may issue a warrant of commitment for failure to expiate a fine. In South Australia, the matter is referred back to the court for the offender to be re-sentenced. Because of the disparity in approaches to the enforcement of fines, the mirror legislation prevents fine enforcement being taken further once all other avenues of expiation have been exhausted and the only option left would be imprisonment. The matter will then go back to the referring jurisdiction to be dealt with according to the State or Territory fines recovery laws.

The second area of difference relates to restraining orders. All three jurisdictions have legislation relating to the making of restraining orders in domestic violence and similar situations. As South Australia does not allow police officers to make short-term restraining orders, care has been taken to ensure that South Australian police officers are not given powers under this scheme, to exercise in Western Australia or the Northern Territory, which they cannot exercise in this State.

For the cross-border justice scheme to operate, each jurisdiction's cross-border justice legislation will need to be made an exception to the Service and Execution of Process Act. That Act covers the area of interstate arrest and extradition. If the Act is not amended, the cross-border legislation will be invalid under section 109 of the Constitution for inconsistency. The Commonwealth supports this scheme and has agreed to make the necessary amendments to the Service and Execution of Process Act.

The Bill provides for a review of the operation of the cross-border laws three years after the commencement of the Act.

The scheme has been embraced by Western Australia, the Northern Territory and the Commonwealth. I would like to recognise the role of the NPY Women's Council in initiating the project, the support of the Commonwealth Attorney-General as it unfolded, and the hard work of the Western Australian Government, Solicitor General and Parliamentary Counsel in creating the model legislation. The scheme could not operate successfully without the existence of detailed protocols and agreements between the participating jurisdictions, and I acknowledge the work done by the key agencies involved in working up those essential documents.

The cross-border legislation will bring new challenges for the judiciary and Courts Administration Authority, and I am grateful for their co-operation, and their support for the scheme.

The passage of this Bill is a major part of the initiatives aimed at increasing the safety of people in remote communities and I commend it to the House.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

Division 1—Preliminary matters

1—Short title

This clause is formal.

2—Commencement

The date for commencement of the measure will be fixed by proclamation.

3—Act binds Crown

This provision is included to rebut the common law presumption that statutes are intended not to bind the Crown.

Division 2—Object of Act

4—Act gives effect to cooperative schemes

The Act will enable more effective delivery of justice services to cross-border regions. This is to be achieved through cooperative schemes with two of those jurisdictions with which South Australia (SA) shares a border, ie, Western Australia (WA) and the Northern Territory (NT).

5—Object of Act and how it is to be achieved

In order to meet its objective of furthering the cause of justice administration in the cross-border regions, the Act confers on police, magistrates, courts of summary jurisdiction and other office holders the capacity to exercise their SA powers in WA and the NT. It also confers on them the capacity to accept appointment to hold office under the laws of WA and the NT, and to exercise the powers associated with that office. They will be able to exercise those powers in WA and the NT, or do so in SA. Similarly, SA courts of summary jurisdiction will be able to sit, deal with matters and sentence offenders under SA law when the court is sitting in either of these other two jurisdictions. Likewise, the courts of summary jurisdiction of WA and the NT will be able to function within this State.

6—How this Act is to be construed

The Act provides reciprocal recognition of SA courts and officials applying SA law within the boundaries of WA and the NT; and of their WA and NT counterparts applying the laws of those jurisdictions within the boundaries of SA.

Division 3—Interpretation

7—Interpretation

This clause defines the commonly used terms used in the Act. Most importantly, it specifies that the other participating jurisdictions are WA and the NT, two of the jurisdictions with which SA shares a border.

The definitions of offices such as CEO (corrections) are derived from the relevant Acts that more generally define these terms, eg, the Correction Services Act 1982. Community corrections officer is to be defined by regulations made for the purposes of the definition.

Other definitions have been drafted specifically for the purposes of the Act. They include cross-border jurisdiction, which is the jurisdiction exercised by a prescribed court of a participating jurisdiction when dealing with a cross-border proceeding. A cross-border proceeding is a proceeding falling within the meaning of clause 68 of the Act, or falling within the meaning of the equivalent legislation in WA or the NT. A prescribed court is further defined as being (for SA) the Magistrates Court or the Youth Court, other than when a judge is presiding in a matter before the Youth Court, and for the other participating jurisdictions, the courts prescribed in their equivalent legislation.

Some definitions, such as connection with a cross-border region, are included in this clause, but they are simply cross-referenced to another clause which sets out their meaning.

In some cases, a term is defined in a general reference to the laws of a participating jurisdiction. This is to accommodate the range of relevant Acts that may be applied under this Bill. For example, vehicle impounding laws refers to those laws dealing with the impounding or confiscation of vehicles in the course of their application to driving offences. This acts to limit their application to those situations likely to be encountered by those administering the provisions of this Bill. This definition deliberately limits the context to impounding or confiscation under driving laws, and does not include confiscations that could occur under the confiscation of the proceeds of crime legislation.

8—Meaning of 'cross-border laws'

This Bill is the primary legislation to enable the creation of cross-border justice schemes. It works in conjunction with other laws that also have application to these schemes, and collectively this Bill and these other laws are the 'cross-border laws' for SA. Other laws include those which will apply to cross-border schemes as modified by the regulations (see clause 13 and clause 14). Other cross-border laws include those which make special provision for the schemes.

This clause also sets out what constitutes the cross-border laws of WA and the NT, and these are consistent with those of SA.

9—Persons who exercise powers are office holders

This clause provides that office holders under cross-border laws are people who exercise a power conferred on them by a cross-border law. Not all office holders are government officials.

10—References to office holders

Under cross-border laws a person may hold a secondary office. For example, an SA magistrate could hold as a secondary office, the office of a magistrate of WA as conferred under WA law. This clause brings the holder of a secondary office into the scope of being an office holder. Even if the office ceases to exist, someone who retains the powers of that office is still taken to be an office holder.

11—References to written laws of another participating jurisdiction

Legislation is often amended. This clause provides continuity by making it clear that if another jurisdiction amends its cross-border laws, then any reference to those laws in the SA Cross-border Justice Act still has effect.

12—Use of notes and examples

Due to the complexity of this legislation, the Bill includes notes and examples to assist readers to understand the meaning of some provisions. However, these are only aids to interpretation and have no legislative force.

Division 4—Modifications of other laws of State

13—Appropriate modifications

The intent of the cross-border laws is to respond to the difficulties in the administration of justice in remote border regions. It is not intended that the capacity for police officers, magistrates and so on to perform their functions across borders and exercise the powers of another jurisdiction can be extended to apply in other parts of the State. Some laws will be applied differently under cross-border justice schemes than elsewhere. Rather than make complicated amendments to these other Acts, they are to be modified by regulation. Modifications to other Acts are to apply only in the context of dealing with a cross-border justice matter.

14—Effect of modifications

An Act that has been modified for the purpose of implementing a cross-border justice scheme, has to be applied on the basis of its modified form when it is being used in this context. If an office holder invokes the cross-border laws when dealing with a matter under this Bill, he or she does not have the option of applying the non-modified form of another cross-border law.

Division 5—Relationship between State's cross-border laws and other laws

15—Law of another participating jurisdiction: office holders, prescribed courts, persons serving sentences

Participating jurisdictions still exercise control over what can and cannot be done within their borders, and still exercise control over what their office holders may or may not be permitted to do. This requires provisions from an office holder's home jurisdiction that enable the officer to exercise powers in another jurisdiction, and corresponding provisions from that other jurisdiction to allow the officer to exercise those powers within that State or Territory.

For example, it is not enough for SA to legislate so that its office holders can exercise their powers under SA laws in another jurisdiction. The other jurisdiction must also legislate to allow this to happen. Subclause (1) of clause 15 provides that unless the other jurisdiction has so legislated, an SA office holder cannot exercise his or her SA powers in that jurisdiction even though SA cross-border laws may provide for this.

Similarly, even though SA cross-border laws allow an office holder from the NT or WA to exercise powers within SA, the office holder cannot do so unless the laws of the NT or WA, as the case may be, provide for this (subclause (2) of clause 15).

This clause continues to provide for other reciprocal recognition in relation to courts to hear and determine matters in other jurisdictions, and the imposition and serving/carrying out of sentences.

16—Law of another participating jurisdiction: other persons required to do things

This clause extends the principle contained in clause 15 to those individuals who are not office holders but nevertheless have a legal obligation to undertake some action (eg a person in a motor vehicle accident notifying the appropriate authorities of the accident). It is intended that a person be able to make such notification outside the jurisdiction where the event occurred (eg after an accident in WA a motorist may be able to meet the requirement to notify the police by reporting the accident at an NT police station).

Under clause 16, both SA law and the other jurisdiction's law have to permit the person to make the notification in the other jurisdiction (and vice versa if the event has occurred in WA/NT and the person is to be able to make notification in SA).

17—Service and Execution of Process Act 1992 of the Commonwealth

To date, in a situation where a police officer has arrested a person in connection with an offence alleged to have occurred in another State or Territory, the Commonwealth Service and Execution of Process Act 1992 (SEPA) has determined how the person is dealt with. The police officer has been able to bring the person before a magistrate in the State or Territory where the arrest occurred. The magistrate, however, has only had the option to remand the person to be brought before a court in the jurisdiction of the alleged offence, and the person would then go or be taken in custody to that jurisdiction. The magistrate has had no power to deal with the matter to finalisation. This Bill will not replace this process, but rather, will provide an alternative. However, if, as is anticipated, the Commonwealth were to amend SEPA so that it would provide that it does not apply to a matter covered by SA cross-border laws, an office holder or prescribed court of the State would have to proceed under the cross-border laws and not SEPA. That is, the office holder would have no alternative but to apply cross-border laws. This, however, is dependent on SEPA being amended in this fashion. If SEPA is not amended to give primacy to cross-border laws, but allows both systems to co-exist, then the office holder or court would have a choice as to which path to follow.

Division 6—Application

18—Offences, orders and requirements in relation to which State's cross-border laws apply

This clause enables the cross-border laws to be applied to offences, orders or requirements that may have originated before this Bill is enacted. This provides a certain degree of retrospectivity to the legislation. It means, for example, that a person who has breached an order prior to the commencement of the Cross-border Justice Act could be arrested for this breach after the commencement date using the provisions of this Act.

Part 2—Cross-border regions

Division 1—Prescribing cross-border regions

19—Cross-border regions to be prescribed

A cross-border region is a region that extends over the border of SA into one or both of the other participating jurisdictions and is prescribed by the regulations to be a cross-border region.

Division 2—Connection with a cross-border region

20—Persons suspected of, alleged to have committed or found guilty of offences

This clause sets out the criteria by which it is determined if a person who is suspected of, alleged to have committed, or has been found guilty of an offence has a relevant connection to a cross-border region, thus falling within the scope of this Bill.

The criteria for establishing whether a person has a connection with a cross-border region are—

that this is where the suspected/alleged/proven offence occurred; or

when the person was arrested he or she was physically in the region or normally resides in the region; or

the person resides or resided in the region at the time the suspected/alleged/proven offence occurred.

Only one of these criteria needs to be met for a connection to a cross-border region to be established. This means, for example, that a person from elsewhere who is arrested whilst transiting a cross-border region, would fall within the scope of this Bill. Likewise, a person from the region who is arrested whilst visiting a different area can be dealt with under this Bill.

A connection also exists if, at the time a person comes before a court, the person ordinarily resides in the region or is before the court in relation to another matter in relation to which he or she has a connection with the region.

21—Persons against whom orders of prescribed courts are in force

This clause reiterates the application and criteria for establishing a cross-border connection as set out in clause 20 and applies them to the making, variation and breaching of orders.

22—Connection for purposes of making restraining orders

An application for a restraining order falls within the scope of this Bill if the respondent to an application (ie, the person against whom a restraining order is sought) has a connection to a cross-border region. The criteria for establishing this connection are that the respondent or the person in whose interests the restraining order is sought ordinarily resides in the region.

23—Persons serving sentences or carrying out orders in respect of offences or alleged offences

A person subject to a sentence or an order has a connection with a cross-border region if the sentence or order results from a court exercising cross-border jurisdiction in relation to a matter where—

the person has a connection to the region; or

the court exercising cross-border jurisdiction has ordered the payment of a fine; or

the person ordinarily resides in the region.

24—Other persons required to do things

A person who has a legislated responsibility to take some action has a connection to a cross-border region if the person is informed of this requirement while in the region, the event occurred in the region, or the person ordinarily resides in the region.

25—Connections are not mutually exclusive

A person may have connections with a cross-border region under any of clause 20 to clause 24. That is, a person may have multiple connections with a cross-border region.

Division 3—Proving connection with a cross-border region

26—Meaning of 'proceeding'

This is a definition clause that applies for the purpose of this Division. A proceeding is either a cross-border proceeding in a prescribed court of SA, or a proceeding before an SA court in relation to which an officer of another participating jurisdiction is acting under the provisions of the Cross-border Justice Act.

27—Onus of proving person's whereabouts at time of arrest

Given the remoteness of the regions where cross-border justice schemes will operate, it may at times be difficult to establish precisely whether a person was arrested in or normally resided in a region for the purpose of determining whether there is a connection with a cross-border region. This clause places the onus of proof on the arrested person as to his or her whereabouts or normal place of residence at the time of arrest. Proof is to be determined on the balance of probabilities.

One of the aims of the cross-border justice initiative is to overcome the problem of alleged offenders using the State/Territory borders to evade police and the justice system. However, in defining a region, another 'border' is by default imposed and such evasion could again occur. The onus of proof has been placed on the arrested person so as to discourage false claims of the person being outside the cross-border region and to limit the extent to which the boundaries of the region can be used to evade justice.

28—Onus of proving person's residency during cross-border proceeding

For the same reasons stated in relation to clause 27, the onus of proof for establishing if a person ordinarily resides, or resided, in a cross-border region at the time of a cross-border or other proceeding, lies with the person.

Division 4—Multiple cross-border regions

29—Application of this Division

The SA border with the NT and WA touches on different regions of the State. The inaugural cross-border justice scheme is planned for the area where the borders of all three jurisdictions meet. However, separate bi-lateral schemes could be developed for other regions, eg, the region centred on the Nullarbor Plain that straddles the borders of WA and SA.

30—Office holders, prescribed courts, persons serving sentences

This clause is similar to clause 15. However, it limits the extent to which, for example, SA office holders can exercise their cross-border powers in another participating jurisdiction.

If a person's connection with the Central Australian cross-border region is based on the person being arrested or residing in WA, and the person is brought before an SA magistrate exercising cross-border powers in the NT under a scheme based on the SA/NT border (but not the WA border), the magistrate would not be able to deal with the person because WA would not be a party to the scheme.

However, a person may have a connection with more than one cross-border region. An office holder or prescribed court of the State may deal with the person under the State's cross-border laws on the basis of the person's connection with one or another of those regions, having regard to what best facilitates the administration of justice in those regions.

31—Other persons required to do things

As with clause 30, this clause requires that a person has a connection with a particular cross-border region if the person is to be authorised or allowed to take action under cross-border laws relating to that region.

Part 3—Police officers of State exercising powers in another participating jurisdiction

Division 1—Powers generally

32—Arrest without warrant

An SA police officer may arrest a person (who has a connection with a cross-border region), without a warrant and under the laws of SA, in WA or the NT. The arrest will be governed by the laws of SA and can only occur if the arrest could be made in SA.

33—Arrest under warrant

An SA police officer may arrest a person (who has a connection with a cross-border region), under warrant and under the laws of SA, but in another participating jurisdiction. The arrest will be governed by the laws of SA.

Likewise, a magistrate may issue an arrest warrant under SA law and do so whilst in SA or another participating jurisdiction. Again, it is a requirement that the person the subject of the warrant has a connection with a cross-border region.

Examples of the application of this clause are as follows:

Example 1—A person is suspected of committing an offence under SA law in the SA portion of the SA/WA/NT (Central Australia) cross-border region. An SA magistrate anywhere in SA, WA or the NT may issue a warrant for the person's arrest. An SA police officer may arrest the person under the warrant anywhere in any of these three jurisdictions. In this example, the person has a connection to the cross-border region that involves all three jurisdictions.

Example 2—A person who ordinarily resides in the SA/WA (southern border) region is suspected of committing an offence under SA law in Port Augusta. An SA magistrate anywhere in SA or WA may issue a warrant for the person's arrest. An SA magistrate in the NT cannot issue a warrant. An SA police officer may arrest the person under the warrant anywhere in SA or WA but not in the NT. In this example, the person only has a connection to the southern border region, which does not include the NT.

Example 3—A person who ordinarily resides in the SA/NT (northern border) region is suspected of committing an offence under SA law in the SA portion of the SA/WA (southern border) region. An SA magistrate anywhere in SA, WA or the NT may issue a warrant for the person's arrest. An SA police officer may arrest the person under the warrant anywhere in SA, WA or the NT. In this example, the person has connections to two cross-border regions which collectively include all three jurisdictions.

34—Person taken into custody

If an SA police officer arrests a person under the laws of SA either with or without a warrant and in any of the participating jurisdictions, this clause empowers the person to keep the person in custody in another participating jurisdiction but under SA law. This means that a person who is arrested in the NT or SA under SA law does not have to be returned to SA to be kept in custody. The police officer can also take the person to a police station, court or anywhere else for an authorised purpose.

35—Investigation of suspected or alleged offence or breach of order

An SA police officer may investigate a suspected offence or breach of an order made under SA law in WA or the NT but, in doing so, may apply SA law governing investigations. This includes the police officer's powers to conduct interviews and searches, take photographs of people, take fingerprints and other prints, and so on. This clause only applies if the person suspected of having committed the offence or breach has a connection with a cross-border region.

Likewise, a magistrate may issue a warrant or order for the purpose of an investigation under WA law and do so whilst in SA or another participating jurisdiction.

Examples of the application of this clause are as follows:

Example 1—A person is suspected of committing an offence under SA law in the SA portion of the SA/WA/NT (Central Australia) region. An SA police officer may investigate the alleged offence anywhere in SA, WA or the NT. For the purpose of the investigation of the alleged offence, an SA magistrate anywhere in SA, WA or the NT may issue a warrant to search premises anywhere in SA, WA or the NT. In this case, the person has a connection with a cross-border region involving all three jurisdictions.

Example 2—A person is arrested in the SA/WA (southern border) region for an offence under SA law alleged to have been committed in Port Augusta. An SA police officer may investigate the alleged offence anywhere in SA or WA but not in the NT. For the purpose of the investigation of the alleged offence, an SA magistrate anywhere in SA or WA may issue a warrant to search premises anywhere in SA or WA but not in the NT. An SA magistrate in the NT cannot issue a warrant. This is because the person has no connection with a cross-border region in the NT.

Example 3—A person is suspected of committing an offence under SA law in the SA portion of the SA/NT region and is subsequently arrested for the alleged offence in the SA/WA region. An SA police officer may investigate the alleged offence anywhere in SA, WA or the NT. For the purpose of the investigation of the alleged offence, an SA magistrate anywhere in SA, WA or the NT may issue a warrant to search premises anywhere in SA, WA or the NT. In this example, the person has connections to two cross-border regions that collectively include all three jurisdictions.

36—Return of person not charged to place of arrest or other place

Cross-border justice schemes will operate in the more remote areas of the State where there are large distances between population centres and limited transport availability. Therefore, if an SA police officer has kept a person in custody in another jurisdiction (see clause 34), and the person is released from custody, the police officer must take reasonable steps to ensure the person is returned to where he or she was arrested or to a place reasonably nominated by the person. However, if to take a person released from custody to a particular place is likely to endanger the safety of the person or another person, the police officer is not required to assist the person to go to that place.

37—Relationship of this Part with Criminal Investigation (Extraterritorial Offences) Act 1984

The provisions of the Criminal Investigation (Extraterritorial Offences) Act 1984 continue to apply and are not affected by Part 3 of this Bill.

Division 2—Road traffic powers

Subdivision 1—Vehicle or driver licensing laws

38—Powers in relation to offences

An SA police officer may exercise his or her powers under SA vehicle or driver licensing laws in WA or the NT if a person is suspected of having committed an offence under these SA laws and the person has a connection with a cross-border region.

39—Other powers

Subclause (1) of clause 39 defines licensing powers to mean those powers that an SA police officer can exercise under SA vehicle or licensing laws in addition to those powers referred to in clause 38. If a person ordinarily resides in the SA segment of a cross-border region, an SA police officer can apply SA vehicle and licensing laws with respect to that person.

Subdivision 2—Drink or drug-driving laws

40—Interpretation

This is a definition clause specifying what constitutes a sample, and what a test is and what testing procedures are for the purposes of this Subdivision.

41—Conduct of preliminary alcohol or drug test in cross-border region

It may be necessary for an SA police officer to take a breath or oral fluid sample from a person in the SA section of a cross-border region for the purpose of conducting a preliminary alcohol or drug test under SA law.

An SA police officer may also be a WA or NT police officer who holds an appointment as a special constable of SA. In this case, the testing equipment and procedures used may be that of the WA or NT police forces and not that of SA. It is also possible that SA police officers may conduct joint patrols with officers from the NT or WA and use NT or WA police vehicles for this purpose. Again, if this patrol was to stop a person in SA and seek to take a sample using the equipment in the NT or WA police vehicle then the procedures of that jurisdiction would apply.

Subclause (2) of clause 41 therefore provides that if a person is required to provide a sample using testing procedures under WA or NT drink driving laws, then the person is taken to be required to provide the sample in accordance with procedures under SA law.

Subclause (3) of clause 41 provides that a sample tested under WA or NT is to be taken to have been tested in accordance with SA procedures.

42—Powers that may be exercised in another participating jurisdiction

This clause applies if an SA police officer has required a person in the SA portion of a cross-border region to provide a sample for a preliminary alcohol or drug test under SA law. The clause requires that the person from whom the sample is being taken has some connection with a cross-border region. This clause has to be read in conjunction with clause 44, which provides that an SA police officer cannot take a sample for preliminary drug or alcohol testing under SA law in another participating jurisdiction. This clause authorises samples to be taken at later stages in the sampling process in another participating jurisdiction (see clause 43).

43—Providing or taking sample in another participating jurisdiction

Clause 41 deals with the situation of a sample being taken from a person and tested in SA under SA law, and allows for this to occur using the procedures of the NT and WA. Clause 43 deals with the situation of an SA police officer taking a sample for testing from a person under SA laws in WA or the NT and using the procedures of WA or the NT. In this situation, the person is again taken to be required to provide a sample using the procedures under SA law.

A test of a sample using NT or WA procedures is again taken to be a test under SA laws. Furthermore, a certificate issued under NT or WA drink or drug-driving laws can be accepted as prima facie evidence for the purpose of section 47K(18) of the Road Traffic Act 1961. Similarly, in these circumstances, the analysis of a sample taken in a breath or blood test can be used for the purpose of Part 3 Division 5 of the Road Traffic Act 1961.

The option of taking a sample or having it tested in accordance with SA procedures remains.

44—Preliminary alcohol or drug test cannot be conducted in another participating jurisdiction

An SA police officer's power to take samples for testing in another jurisdiction does not include the taking of samples for preliminary testing under SA law.

Subdivision 3—Vehicle impounding laws

45—Powers

For the purpose of this clause, a 'person' connected with a vehicle is someone who is suspected, alleged or found guilty of committing the offence which makes the vehicle subject to impounding or confiscation. An SA police officer can exercise SA vehicle impounding laws in WA or the NT if the person connected with the vehicle also has a connection to a cross-border region and the impounding or confiscation is pursuant to an order made by a prescribed SA court.

Subdivision 4—Miscellaneous matters

46—Law of State applies

The powers exercised under this Division are governed by SA law, taking into account any modifications to specific laws.

47—Relationship with Division 1

This Division does not diminish any powers which an SA police officer may exercise in accordance with Division 1 (Powers generally).

Division 3—Offence

48—Offence to interfere with exercise of power

This clause provides that if a person in another participating jurisdiction takes action in relation to the exercise of a power under Part 3 that would, if the action were to be taken in relation to the exercise of the power in the State, constitute an offence under the law of the State, then the action is an offence under SA law. The penalties for such offences are the same as those prescribed for State offences, ie, an offence of this type when committed in SA. Where a State offence is indictable, it is also indictable if the offence is committed in WA or the NT.

Part 4—Police officers of another participating jurisdiction exercising powers in State

Division 1—Powers generally

49—Arrest without warrant

This Part is the corollary of Part 3 in that it confers powers on NT and WA police officers to exercise their NT and WA powers in SA.

WA and NT police officers can arrest people in SA under WA and NT law, as the case may be, without warrant. They can do so if, under their own State/Territory's law they would be entitled to arrest the person without warrant in their home jurisdiction. It is necessary that the person being arrested has a connection to a cross-border region.

It is not enough, however, for SA to say that NT and WA officers can exercise their NT or WA powers in SA. Ordinarily, an arrest in SA would be covered by SA law. Therefore, it is necessary to disapply SA law in a situation such as this. This is achieved through subclause (2) of clause 49.

50—Arrest under warrant

A person who has a connection to a cross-border region can be arrested by a WA or NT police officer under warrant and under the laws of WA or the NT, as the case may be. A magistrate of the NT or WA can issue a warrant for arrest of the person under NT or WA law. Again, SA law dealing with arrests under warrant is disapplied in relation to this arrest and warrant to enable the NT and WA laws to operate in this situation. Examples of how clause 50 may operate are as follows.

Example 1—A person is suspected of committing an offence under WA law in the WA portion of the SA/WA/NT region. A WA magistrate anywhere in SA may issue a warrant for the person's arrest. A WA police officer may arrest the person under the warrant anywhere in SA.

Example 2—A person who ordinarily resides in the SA/NT region is suspected of committing an offence under NT law in Katherine. An NT magistrate anywhere in SA may issue a warrant for the person's arrest. An NT police officer may arrest the person under the warrant anywhere in SA.

Example 3—A person who ordinarily resides in the SA/WA (southern border) region is suspected of committing an offence under WA law in Kalgoorlie. A WA magistrate anywhere in SA may issue a warrant for the person's arrest. A WA police officer may arrest the person under the warrant anywhere in SA.

51—Person taken into custody

In this clause, the arresting jurisdiction is the NT or WA, ie, the other participating jurisdiction under whose laws a person is being arrested in SA. A police officer of the arresting jurisdiction may arrest a person (either with or without a warrant) and keep the person in custody in SA. It is necessary that the arrested person has a connection with a cross-border region for this to apply. Once the person is in custody, he or she can be taken to a police station, court or other authorised place in SA. SA custody laws are disapplied in this situation and do not govern this arrest.

52—Investigation of suspected or alleged offence or breach of order

In this clause, the investigating jurisdiction is the NT or WA, ie, the other participating jurisdiction under whose laws an investigation is being conducted. If a police officer of the investigating jurisdiction suspects a person who has a connection with a cross-border region of having committed an offence or breached an order, the police officer can conduct that investigation in SA but under the laws of the investigating jurisdiction, ie, WA or the NT. Likewise, a magistrate of the investigating jurisdiction may issue a warrant under NT or WA law, as the case may be, for the purpose of an investigation. SA laws of investigation are disapplied to investigations governed by the laws of an investigating jurisdiction.

Example 1—A person is suspected of committing an offence under WA law in the WA portion of the SA/WA/NT (Central Australia) region. A WA police officer may investigate the alleged offence anywhere in SA. For the purpose of the investigation of the alleged offence, a WA magistrate anywhere in SA may issue a warrant to search premises anywhere in SA, WA or the NT.

Example 2—A person is arrested in the SA/NT region for an offence under NT law alleged to have been committed in Katherine. An NT police officer may investigate the alleged offence anywhere in SA. For the purpose of the investigation of the alleged offence, an NT magistrate anywhere in SA may issue a warrant to search premises anywhere in SA or the NT but not in WA.

Example 3—A person who ordinarily resides in the SA/WA region is suspected of committing an offence under WA law in Kalgoorlie. A WA police officer may investigate the alleged offence in SA. For the purpose of the investigation of the alleged offence, a WA magistrate anywhere in SA may issue a warrant to search premises anywhere in SA or WA but not in the NT.

Division 2—Road traffic powers

Subdivision 1—Vehicle or driver licensing laws

53—Powers in relation to offences

If a person has a connection to a cross-border region, and a police officer of the NT or WA suspects or alleges that the person has committed an offence under NT or WA vehicle or driver licensing laws, police officers can exercise in SA their NT or WA powers, as the case may be.

54—Other powers

If a person ordinarily resides in a cross-border region, an NT or WA police officer can apply NT or WA licensing laws to the person in SA. In this situation, the police officers are exercising their licensing powers, ie, the powers conferred on them under NT or WA licensing laws, as the case may be.

Subdivision 2—Drink or drug-driving laws

55—Powers that may be exercised in State

This clause empowers WA and NT police officers to exercise their WA/NT powers in relation to taking samples for a preliminary alcohol or drug test under WA/NT law in SA. The clause requires that the person from whom the sample is being taken has some connection with a cross-border region. This clause has to be read in conjunction with clause 56, which says that a WA/NT police officer cannot take a sample for preliminary drug or alcohol testing under WA/NT law in SA.

56—Preliminary alcohol or drug test cannot be conducted in State

A WA or NT police officer's power to take samples in SA does not include the taking of samples for preliminary testing under WA or NT law.

Subdivision 3—Vehicle impounding laws

57—Interpretation

For the purpose of this Subdivision, a person connected with a vehicle is someone who is suspected, alleged or found guilty of committing the offence that makes the vehicle subject to impounding or confiscation.

58—Powers

A WA or NT police officer or other office holder can exercise WA or NT vehicle impounding laws in SA in relation to a vehicle if the person connected with the vehicle also has a connection to a cross-border region and the impounding or confiscation is pursuant to an order made by a prescribed WA or NT court.

Subdivision 4—Miscellaneous matters

59—Law of State does not apply

The powers exercised under this Division are not governed by SA law other than this Act.

60—Relationship with Division 1

This Division does not diminish any powers that an NT or WA police officer may exercise in SA in accordance with Division 1 (Powers generally).

Division 3—Restraining orders laws—WA

61—Meaning of 'WA police order'

A WA police order is an order made by a police officer of WA under WA's restraining order laws.

62—Making WA police orders

A WA police officer may make a WA police order in SA if the person against whom the order is sought or proposed to be made has a connection with a cross-border region. The law of SA does not apply in relation to the making of the order.

63—Enforcement of WA police orders

If a person in SA is a person against whom a WA police order is made and that person, or the person for whose benefit the order is made, ordinarily resides in a cross-border region, a WA police officer may exercise his or her powers in relation to the person against whom the order is made. SA law does not apply in relation to the WA officer's powers.

Division 4—Restraining orders laws—NT

64—Meaning of 'NT police order'

This clause defines NT police order as being an order made by an NT police officer under the restraining order laws of the NT.

65—Making NT police orders

If a person against whom an NT police order is sought or made has a connection with a cross-border region, an NT police officer may make the order in SA. SA laws are disapplied in this circumstance.

66—Enforcement of NT police orders

If an NT police order is made against a person in SA, and the person in whose interest the order was made ordinarily resides in a cross-border region, an NT police officer may exercise their powers in relation to the person against whom the order has been made. SA law does not apply in relation to the powers.

Part 5—Prescribed courts of State exercising cross-border jurisdiction

Division 1—Preliminary matters

67—Operation of courts outside State not limited

This clause makes reference to section 16 of the Magistrates Court Act 1991, which provides for where and when the Magistrates Court may sit, and section 15 of the Youth Court Act 1993 (SA), which makes the same provision for that Court. The clause does not limit the application of these sections of these other two Acts, and provides that the application of Part 5 is subject to these other provisions.

Division 2—Jurisdiction and powers of courts

68—Proceedings that may be heard in another participating jurisdiction

If a person who is the subject of a court proceeding has a connection with a cross-border region for the purpose of that proceeding, an SA court may deal with the matter in a location in WA or the NT. This only applies to the proceedings specified in subclause (2) of clause 68.

Regulations may prescribe other proceedings that fall within the scope of what an SA court may deal with in another jurisdiction.

An SA court can only hear and determine a matter in WA or the NT if the court is able to do so in SA.

Example 1—A person is charged with an offence under SA law alleged to have been committed in the SA portion of the SA/WA/NT region. The charge may be heard by an SA magistrate sitting anywhere in SA, WA or the NT.

Example 2—A person who ordinarily resides in the SA/WA region is charged with an offence under SA law alleged to have been committed in Port Augusta. The charge may be heard by an SA magistrate sitting anywhere in SA or WA but not in the NT.

Example 3—A person is arrested in the SA/WA/NT region for an offence under SA law alleged to have been committed in Adelaide ('the SA/WA/NT charge'). The person also has an outstanding charge for an offence under SA law alleged to have been committed in the SA portion of the SA/NT region (the 'SA/NT charge'). The SA/WA/NT charge may be heard by an SA magistrate sitting anywhere in SA, WA or the NT. The SA/NT charge may be heard by an SA magistrate sitting anywhere in SA or the NT. It may also be heard by an SA magistrate sitting anywhere in WA, but only if it is heard with the SA/WA/NT charge.

69—Exercise of jurisdiction and powers

A prescribed SA court can exercise its cross-border powers in either SA or one of the other participating jurisdictions. To enable the court to exercise its cross-border powers in another participating jurisdiction, it is empowered to sit, and have registries, in that jurisdiction. The powers that an SA cross-border court, or a magistrate or registrar of that court, may exercise in another jurisdiction include compelling witnesses, administering oaths, punishing for contempt and issuing warrants, summonses and other processes. It can only exercise powers that it is also entitled to exercise in SA. Even if the matter is not heard and determined in another participating jurisdiction, the court may still exercise its powers in that jurisdiction in dealing with a cross-border matter eg obtaining a pre-trial order.

70—Practice and procedure

An SA court sitting as a cross-border court follows SA (and not WA or NT) practice and procedure regardless of where it is sitting, subject to appropriate modifications (as defined in clause 13).

71—Rules of evidence

An SA court sitting as a cross-border court follows SA (and not WA or NT) rules of evidence regardless of where it is sitting, subject to appropriate modifications (as defined in clause 13).

72—Offence to fail to comply with order, judgment, warrant or summons

If an SA court is sitting outside of SA and exercising cross-border jurisdiction, it is an offence to fail to comply with an order, judgment, warrant or summons made by that court at that sitting, as long as it would also be an offence if the same failure to comply would be an offence if the court were sitting in SA. Penalties for offences will be prescribed by regulation, and if the failure to comply would constitute an indictable offence if it occurred when the court was sitting in SA, then it is also an indictable offence if it occurs when the court is sitting in another participating jurisdiction.

Division 3—Miscellaneous matters relating to cross-border proceedings

73—Legal practitioners of another participating jurisdiction entitled to appear etc

A person who is entitled to engage in legal practice under the law of another participating jurisdiction is entitled to appear for a person in cross-border proceedings of a prescribed court of SA, and is also entitled to provide advice and other services, if the person who is the subject of the proceeding has a connection with a cross-border region that is partly in the other jurisdiction.

74—Court documents may be lodged, served or issued in another participating jurisdiction

This clause authorises a court document of an SA court to be lodged, served or issued in WA or the NT.

75—Court documents in wrong form do not invalidate proceedings or decisions

A cross-border court of any of the participating jurisdictions may find itself dealing with matters from two or even three of the jurisdictions at any one sitting. It is unreasonable to expect that each individual court will at all times have available the forms of each jurisdiction. It would be counter-productive to prevent a court from hearing a matter just because the form from the relevant jurisdiction is not available. It may be that a person with a cross-border connection is brought before an SA court in SA on an SA charge, and it is found that there is an outstanding charge in relation to another matter from the NT or WA where the person also has a cross-border connection. It is in the interests of justice that the court be able to deal with both matters at the one sitting, rather than delay dealing with the NT/WA matter for want of an NT/WA form.

This clause ensures that if a document that is lodged, served or issued in an SA court is in the form used in WA or NT, then that document is still effectual for its intended purpose. There is no right of appeal on the basis that the wrong jurisdiction's form was used. Subclause (3) of clause 75, however, does give an SA court the flexibility to order that an SA form be used.

76—Application of Sheriff's Act 1978

Part 3 of the Sheriff's Act 1978 provides that the sheriff is responsible to the principal officer of a court for providing assistance in the maintenance of security and orderly conduct. Under clause 76 of the Bill, that Part will not apply in relation to premises or any other place in another participating jurisdiction used for the purposes of a cross-border proceeding of a prescribed SA court.

77—Law of State applies

SA courts exercising cross-border jurisdiction are governed by the laws of SA except where this Act provides otherwise. Those other laws which apply may also be modified by the regulations and apply in their modified form.

Division 4—Registration of interstate restraining orders

78—Part 2 Division 2 and Division 4 do not apply

Part 2 Division 2 sets out the criteria for determining if a person has a connection to a cross-border region. For the purposes of this Division, a different approach has been taken because of the peculiar nature of restraining orders and the registration process.

Part 2 Division 4 provides for the creation of multiple cross-border regions. However, in order to broaden the application of the cross-border scheme in relation to restraining orders, paragraph (b) of clause 80 and paragraph (b) of clause 81 do not require a connection with a cross-border region. Clause 78 has been included to ensure that the specific requirements of clause 80 and clause 81 will apply and not those of Part 2 Division 4.

79—Terms used in this Division

This is a definition clause. As well as defining NT restraining order and WA restraining order as restraining orders of those respective jurisdictions, it defines register in the context of the Domestic Violence Act 1994 and the Summary Procedure Act 1921.

80—Registration of WA restraining orders under SA law

If a WA restraining order is made, amended or varied by a WA court, and either the respondent to the restraining order has a connection to a cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in WA, a registrar of the SA Magistrates Court can register that restraining order.

81—Registration of NT restraining orders under SA law

If an NT restraining order is made, amended or varied by an NT court, and either the respondent to the restraining order has a connection to a cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in the NT, a registrar of the SA Magistrates Court can register that restraining order.

Example 1—An NT magistrate sitting in Darwin makes a restraining order under the NT's restraining orders laws. For the purposes of the proceeding, the person against whom the order is made had a connection with the SA/NT region. The Darwin registry is a registry of the SA Magistrates Court. Exercising the powers of a registrar of the SA Magistrates Court, a registry officer registers the order under SA's restraining orders laws.

Example 2—An NT magistrate sitting in Alice Springs makes a restraining order under the NT's restraining orders laws. The person for whose benefit the order is made ordinarily resides in the NT. The Alice Springs registry is a registry of the SA Magistrates Court. Exercising the powers of a registrar of the SA Magistrates Court, a registry officer registers the order under SA's restraining orders laws.

Part 6—Prescribed courts of another participating jurisdiction exercising cross-border jurisdiction

Division 1—Jurisdiction and powers of courts

82—Proceedings that may be heard in State

If a person who is the subject of a court proceeding has a cross-border connection, for the purpose of that proceeding, a prescribed court of WA or the NT may deal with that matter in SA.

Example 1—A person is charged with an offence under NT law alleged to have been committed in the NT portion of the SA/WA/NT region. The charge may be heard by an NT magistrate sitting anywhere in SA.

Example 2—A person who ordinarily resides in the SA/WA region is charged with an offence under WA law alleged to have been committed in Kalgoorlie. The charge may be heard by a WA magistrate sitting anywhere in SA.

Example 3—A person is arrested in the SA/WA/NT region for an offence alleged to have been committed under NT law in Darwin. The person also has an outstanding charge for an offence under NT law alleged to have been committed in the NT portion of the SA/NT region. Both charges may be heard by an NT magistrate sitting anywhere in SA.

83—Exercise of jurisdiction and powers

A prescribed WA or NT court can exercise its cross-border powers in SA. To enable it to do so, this clause empowers the court to sit in SA and to have registries here as well. The powers that a WA or NT cross-border court, or a magistrate or registrar of that court, may exercise in SA include compelling witnesses, administering oaths, punishing for contempt and issuing warrants, summonses and other processes.

Division 2—Miscellaneous matters relating to cross-border proceedings

84—Saving provision

This clause provides that despite any other Act or law, a person may be tried and punished in SA for an offence under the law of another participating jurisdiction by a prescribed court of that other jurisdiction in a cross-border proceeding of that court.

85—Privileges, protection and immunity of participants in proceedings

People such as magistrates, legal practitioners and witnesses involved in court proceedings in SA have certain privileges, protections and immunities so that they are not inhibited in fulfilling their obligations to the court through, for example, fear of defamation. This clause extends these privileges, protections and immunities to magistrates, legal practitioners and witnesses involved in WA or NT court proceedings being conducted in SA under cross-border jurisdiction.

86—Court documents may be lodged, served or issued in State

This clause gives permission for WA or NT court documents in relation to a cross-border matter to be lodged, served or issued in SA.

87—Application of Sheriff's Act 1978

Part 3 of the Sheriff's Act 1978 applies in relation to any premises or other place in SA used for the purposes of a cross-border proceeding of a prescribed court of another participating jurisdiction as if the premises or place were used for the purposes of a proceeding of a court of SA.

88—Law of State does not apply

SA laws that would otherwise govern the exercise of jurisdiction by a court in this State do not apply when a court is a prescribed court of the NT or WA exercising cross-border jurisdiction.

Division 3—Registration of interstate restraining orders

89—Part 2 Division 2 and Division 4 do not apply

Part 2 Division 2 sets out the criteria for determining if a person has a connection to a cross-border region. For the purposes of this Division, a different approach has been taken because of the peculiar nature of restraining orders and the registration process.

Part 2 Division 4 provides for the creation of multiple cross-border regions. However, in order to broaden the application of the cross-border scheme in relation to restraining orders, clause 90 and clause 91 do not require a connection with a cross-border region. Clause 89 has been included to ensure that the specific requirements of clause 90 and clause 91 will apply and not those of Part 2 Division 4.

90—Registration of SA or NT restraining orders under WA law

This clause enables an SA or NT restraining order to be registered in SA under WA law. To register a restraining order under this clause is to register it as a restraining order of WA. If either the respondent to the restraining order has a connection to a cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in WA, the Principal Registrar of the Magistrates Court of WA can register that restraining order.

91—Registration of SA or WA restraining orders under NT law

This clause enables an SA or WA restraining order to be registered in SA under NT law. To register a restraining order under this clause is to register it as a restraining order of the NT. If either the respondent to the restraining order has a connection to a cross-border region or the person on whose behalf the restraining order has been taken out ordinarily resides in the NT, the Registrar of the Local Court of the NT can register that restraining order.

Part 7—Bail of persons in custody under law of State

92—Police officer of State may exercise powers in another participating jurisdiction

Clause 34 sets out the provisions that apply when an SA police officer arrests a person either with or without a warrant under SA law in SA or in another participating jurisdiction. Under clause 92, the Bail Act 1985 (with any appropriate modifications) applies to anyone held in the custody of an SA police officer in another participating jurisdiction.

93—Offence to fail to comply with bail agreement

If a person in WA or the NT is on bail under the Bail Act 1985 and fails to comply with a bail agreement under that Act, the person has committed an offence if it would also be an offence if the failure to comply occurred in SA. If the failure to comply would constitute an indictable offence if it occurred in SA, then it is also an indictable offence if it occurs in another participating jurisdiction.

Part 8—Bail of persons in custody under law of another participating jurisdiction

94—Police officer of another participating jurisdiction may exercise powers in State

Proposed clause 51 sets out the provisions which apply when an NT or WA police officer arrests a person either with or without a warrant under NT or WA law in SA or in another participating jurisdiction. Under clause 94, the bail laws of the NT or WA apply to any matter concerning bail for the person in custody, and not the bail laws of SA.

Part 9—Mentally impaired accused

95—Terms used in this Part

This is a definition clause. Cross-border proceedings in prescribed courts in the NT and WA, or appeals from proceedings, are NT proceedings and WA proceedings respectively. State treatment centre is an approved treatment centre under the Mental Health Act 1993, and a State prison is an SA prison.

96—Persons committed to detention or custody under WA law

If, in a WA proceeding, the person who is the subject of the proceeding is required by a hospital order made under section 5(2) of the Criminal Law (Mentally Impaired Accused) Act 1996 of WA to be detained in a State treatment centre, or to be kept in custody in another place in the State, the person may be detained in the treatment centre, or kept in custody in the place, in accordance with the order.

If, in a WA proceeding, a custody order under the Criminal Law (Mentally Impaired Accused) Act 1996 of WA is made in respect of the person who is the subject of the proceeding, and the person is required under that Act to be detained in a State treatment centre or another place in the State, the person may be detained in the treatment centre or other place in accordance with the order.

97—Persons detained under NT law

Sections 74 and 75 of the Mental Health and Related Services Act of the NT and sections 79 and 80 of the Sentencing Act of the NT make provision for detaining a person where there are questions related to whether the person has a mental impairment. Clause 97 provides that if, in relation to an NT proceeding, a person is committed to detention in a hospital or prison under either of these NT Acts, then the person can be kept in custody in a State treatment centre.

Part 10—Sentences and orders under law of State

Division 1—Custodial sentences and orders

Subdivision 1—Sentences of imprisonment or detention

98—Serving sentence in State or another participating jurisdiction

If a person who is sentenced under SA law has a connection with a cross-border region, that person can be held in custody for the purpose of serving his or her sentence under SA law in a prison or detention centre in SA, WA or the NT.

99—Warrant of commitment

A 'warrant of commitment' is the approved form that is issued by judicial officers or court registrars if a person is sentenced to imprisonment or detention. Under clause 99, a warrant of commitment has general effect and does not specify in which prison or detention centre a sentence is to be served. For that reason, the warrant is not directed to any particular authorised officer, but to authorised officers in general. This provides flexibility in relation to where a cross-border prisoner or detainee may serve his or her sentence, which is one of the aims of the scheme. An SA sentence can be served in the NT or WA, and vice versa.

Subdivision 2—Remand

100—Remanded in custody in State or another participating jurisdiction

If a person who is remanded in custody under SA law has a connection with a cross-border region, that person can be held in custody for the duration of his or her remand under SA law in a remand facility in SA, WA or the NT.

101—Remand warrant

A 'remand warrant' is the approved form that is issued by judicial officers or court registrars if a person is remanded in custody. Under clause 101, a remand warrant has general effect and does not specify in which prison or detention centre the person is to be held. For that reason, the warrant is not directed to any particular authorised officer, but to authorised officers in general. This provides flexibility as to where a person the subject of cross-border proceedings can be held in custody, which is one of the aims of the scheme.

102—Law of State applies

When a person is remanded under clause 101, SA laws of remand apply except if the Act provides otherwise. Those other laws which apply may also be modified by the regulations and apply in their modified form.

Subdivision 3—Bring up orders

103—Bringing prisoner or detainee in another participating jurisdiction before judicial body of State

For certain purposes a prisoner or detainee is required or entitled to be brought before a court in relation to proceedings before a judicial body (eg sentencing). A judicial body includes a court or a Royal Commission. This clause provides that such an order can be made in relation to a person in custody in an NT or WA prison or detention centre under the law of any of the participating jurisdictions (including SA). This can only occur if the person has a connection with a cross-border region that includes the jurisdiction in which the person is held.

104—Custody of person brought up from prison or detention centre in another participating jurisdiction

The person who is in charge of a prison or detention centre where a person the subject of a bring up order is held in custody does not have to personally bring the person before the court. This function can be delegated to an authorised officer. A person who is taken from a prison or detention centre in compliance with a bring up order, must remain in the charge of an authorised officer. At the end of the proceeding involving the person brought up from prison or detention, that person must be returned to the prison or detention centre. The person's absence from prison or the detention centre for this purpose is not to be held against the person.

A proceeding involving a person who is the subject of a bring up order could be adjourned. In this circumstance, the person is to be confined to a prison or detention centre in a participating jurisdiction or, whilst in the charge of an authorised officer, kept at some place in a participating jurisdiction. The person is then to be brought up before the judicial body when required.

Subdivision 4—Miscellaneous matters

105—Carrying out custodial orders

SA custodial orders can be carried out by an authorised officer in SA or in WA or the NT.

106—Application of Sheriff's Act 1978

If a person is being held in custody under SA law in WA or the NT, his or her custody is not covered by the Sheriff's Act 1978 of SA. Instead, the corresponding Acts of the WA and NT would apply.

107—Application of Correctional Services Act 1982

If a person is being held in custody under SA law in a prison in WA or the NT, the Correctional Services Act 1982 of SA does not apply in relation to the person. Instead, the corresponding Acts of WA and the NT would apply.

108—Application of Young Offenders Act 1993

Prescribed provisions of the Young Offenders Act 1993 do not apply in relation to a person in custody in a detention centre in WA or the NT under this Part.

Division 2—Non-custodial sentences and orders

109—Carrying out non-custodial orders in another participating jurisdiction

A person who is convicted of an offence may receive a non-custodial sentence. If the person has a connection with a cross-border region, he or she may carry out the terms of the sentence either wholly or partly in WA or the NT. Community corrections officers (CCOs) and juvenile justice officers (JJOs) supervise offenders carrying out non-custodial sentences. This clause provides that SA CCOs and JJOs can fulfil these responsibilities under SA law in WA or the NT provided that the person against whom the order has been made has a connection to a cross-border region. SA laws govern these orders and the powers that CCOs and JJOs exercise in relation to them.

110—Conducting diversionary programs for young offenders in another participating jurisdiction

A police officer, juvenile justice officer or other office holder of SA may exercise in WA or the NT any of the powers the office holder has under Part 2 of the Young Offenders Act 1993 in relation to an alleged offender who has a connection with a cross-border region.

Part 11—Sentences and orders under law of another participating jurisdiction

Division 1—Custodial sentences and orders

111—Serving sentence of imprisonment or detention in State

If a person who is sentenced under WA or NT law has a connection with a cross-border region, the person can be held in custody for the purpose of serving his or her sentence under those laws in a prison or detention centre in SA.

112—Remanded in custody in State

If a person who is remanded in custody under WA or NT law has a connection with a cross-border region, that person can be held in custody for the duration of the remand under those laws in a remand facility in SA.

113—Carrying out custodial orders

If a custodial order has been made under the law of NT or WA, it can be carried out in SA by an authorised officer of any of the participating jurisdictions. Likewise, an SA authorised officer may carry out a custodial order made under NT or WA law in either the NT or WA.

114—Effect of bring up order if person in custody under law of State

A person can be held in custody under SA law in an NT or WA prison or detention centre. However, the person may be the subject of an NT or WA bring up order. If the person is absent from prison or a detention centre in order to comply with an NT or WA bring up order, this is not to be held against the person for the purpose of the SA sentence.

115—Application of Sheriff's Act 1978

If a person is being held in custody under NT or WA law in SA, the person's custody is covered by the Sheriff's Act 1978 of SA. The corresponding Acts of the WA and NT would not apply.

116—Application of Correctional Services Act 1982

A person being held in custody under NT or WA law in a prison in SA will fall within the scope of the Correctional Services Act 1982 of SA.

117—Application of Young Offenders Act 1993

Prescribed provisions of the Young Offenders Act 1993 will apply in relation to a person in custody in a detention centre in the State under Division 1.

Division 2—Non-custodial sentences and orders

118—Carrying out non-custodial orders in State

A person who is convicted of an NT or WA offence may receive a non-custodial sentence. If the person has a connection with a cross-border region, he or she may carry out the terms of the sentence either wholly or partly in SA. This clause provides that NT and WA CCOs and JJOs can fulfil their responsibilities under NT and WA law in SA provided that the person against whom the order has been made has a connection to a cross-border region. SA laws relating to non-custodial sentences and related powers do not apply in these circumstances.

119—Conducting diversionary programs for young offenders in State

A juvenile who is alleged to have committed an offence in WA or the NT may be directed to a diversionary program under the relevant laws of those jurisdictions. If the juvenile has a connection with a cross-border region, he or she may participate in a diversionary program either wholly or partly in SA. Office holders such as JJOs and police officers may supervise a young person on a diversion program. This clause provides that NT and WA officers can fulfil these responsibilities under NT and WA respectively in SA provided that the person on the diversionary program has a connection to a cross-border region. SA laws do not apply in these circumstances.

Part 12—Enforcement of fines

Division 1—Preliminary matters

120—Terms used in this Part

This is a definition clause. If a person fails to pay a fine in SA, he or she can have his or her drivers licence disqualified. Fines Director refers to the person who holds the office of Manager, Penalty Management under the Criminal Law Sentencing Act 1988.

Division 2—Fines under law of State

121—Request to enforce fine in another participating jurisdiction

The Fines Director may request the fines enforcement agency of another participating jurisdiction (the reciprocating agency) to enforce a fine that is payable under the Criminal Law (Sentencing) Act 1988 if the offender on whom the fine has been imposed has a connection with a cross-border region.

122—Effect of making request

It is important that an offender does not find him or herself in the situation of perhaps expiating a fine more than once because a fine has been referred to another jurisdiction for enforcement. In the interest of procedural fairness, the offender should only be subject to one fines enforcement regime at a time. There could also be confusion between fines enforcement agencies if they are simultaneously seeking to enforce the same fine. Therefore, when the SA Fines Director requests another participating jurisdiction to enforce an SA fine, he or she must not take action or further action to enforce the fine under the Criminal Law (Sentencing) Act 1988.

123—Receipt of money by Fines Registrar

If the Fines Director receives from the offender money in whole or part satisfaction of the fine, he or she must notify the reciprocating agency in writing of the payment.

124—Receipt of money from reciprocating agency

Should the fines enforcement agency in the NT or WA send money to the SA Fines Director in Part or whole payment of a fine, then the payment is to be treated as if it were received from the offender.

125—Resumption of enforcement by Fines Registrar

After the SA Fines Director has requested another jurisdiction's fines enforcement agency to take over the enforcement of a fine, the Registrar can request that agency to refer the fine back to SA. Also, the other jurisdiction's agency can request that SA resume responsibility for a fine.

Division 3—Fines under law of another participating jurisdiction

126—Request to enforce fine in State

If a fine has been imposed in WA or the NT, and the fines enforcement agency in that jurisdiction sends a request to the SA Fines Director to enforce a fine, the SA Fines Director has no alternative but to register the fine. The serious nature of the payment of fines requires that, under subclause (2) of clause 126, such a request must be made formally in writing and supported by a certified copy of the order imposing the fine, a certificate from the NT or WA agency showing the amount of the fine outstanding and providing written advice that establishes the offender's connection with the cross-border region.

127—Effect of registration

On registration of the fine under clause 126, the Fines Director may enforce the fine under Part 9 Division 3 of the Criminal Law (Sentencing) Act 1988 as if it were a pecuniary sum recoverable under that Act.

128—Receipt of money by reciprocating agency

It is always possible that an offender may pay money to the WA or NT fines enforcement agency even though the fine has been transferred to SA for enforcement. If the Fines Director receives notice that this has happened, the Director is to record the fine and may only take further action in relation to any outstanding amount.

129—Receipt of money by Fines Registrar

Should the Fines Director receive money in Part or full payment of an NT or WA fine that has been transferred to and registered in SA for enforcement, the Director is to send the money to the WA or NT fines enforcement agency. This applies to money paid by the offender or as a result of enforcement action taken by the SA Fines Registrar under SA law (eg seizure of goods).

130—Request to cease enforcement of fine

A WA or NT fines enforcement agency that has previously transferred a fine to SA for enforcement can request that the Fines Director cease to take action to enforce the fine. Alternatively, the Fines Director may inform the WA or NT agency that SA will no longer be enforcing the fine. If a fine is being returned to an NT or WA agency that had requested that SA enforce the fine, the Fines Director is to advise the NT or WA agency of any money received in relation to the fine and any reduction in the amount of the fine outstanding. Any money that has been received in relation to the fine is to be sent to the other jurisdiction's agency. The Fines Director is not to take any further action with respect to the fine.

Part 13—Office holders of participating jurisdictions

Division 1—Holding offices and exercising powers under law of other jurisdictions

131—Secondary office holders and secondary offices

A secondary office holder is an office holder of a participating jurisdiction who holds office because the office holder is an office holder of one of the other participating jurisdictions. A secondary office is an office held under the law of a participating jurisdiction by a secondary office holder.

Example—WA and NT police officers who are appointed as SA police officers under the Police Act 1998 will be secondary office holders of SA.

132—Office holders of State may be secondary office holders of another participating jurisdiction

SA office holders may hold a secondary office from the NT or WA. This clause also authorises SA office holders to exercise the powers of their NT or WA secondary office for the purpose of administering or enforcing NT or WA cross-border laws.

133—Office holders of another participating jurisdiction may be secondary office holders of State

WA and NT office holders may hold a secondary office under SA law. This clause also authorises them to exercise SA powers for the purpose of administering or enforcing SA cross-border laws.

134—Prohibition against holding or exercising powers of another office not breached

Some SA office holders are, under other legislation, prevented from holding another office at the same time they hold an office in SA. This clause provides that if the secondary office is held under the provisions of cross-border laws, then this prohibition is not breached.

135—Terms of appointment of secondary office holders under law of State

A WA or NT office holder who holds a secondary office in SA does not receive remuneration from SA as well as from the jurisdiction of his or her principal office. The office holder is only entitled to the remuneration that he or she receives in relation to the principal office. Should the office holder no longer hold the principal office to which his or her status as a secondary office holder in SA is linked, then he or she ceases to be a secondary office holder.

Division 2—Appointment of magistrates of another participating jurisdiction to be magistrates of State

136—Appointment as magistrates of Magistrates Court

WA and NT magistrates are appointed as magistrates of the SA Magistrates Court under the provisions of the Magistrates Act 1983 of SA.

137—Appointment as magistrates of Youth Court

The Youth Court Act 1993 applies (with any appropriate modifications) in relation to the appointment of magistrates of WA or the NT to be magistrates of the Youth Court of South Australia.

Part 14—Miscellaneous matters

138—Reporting accidents, producing driver's licences etc at police stations etc

Laws such as road traffic laws place obligations on people to, for example, report certain events such as a serious motor vehicle accident to the police. This clause provides that a person's obligation under SA law can be met by making a report to a police station in another participating jurisdiction if the person has a connection with a cross-border region. Likewise, if a person is required to make a report to the police of another participating jurisdiction, he or she may do so at an SA police station.

139—Jurisdiction of Coroner

The Cross-border Justice Act 2009 does not affect the operation of the Coroners Act 2003 in relation to the investigation of the death of a person.

140—Power of Minister to enter agreements

This Bill does not seek to deal with the operational detail of the administration of justice. For effective administration of this legislation, those responsible for providing justice services will be required to operate in a co-operative manner. Therefore, to support the successful implementation of cross-border justice schemes, it is intended that there be agreements between governments at ministerial level. This clause provides for this.

141—Inconsistency between Act and agreement

As referred to in clause 140, there will be intergovernmental agreements at ministerial level to support this Bill. There will also be service level agreements at agency level for police, courts, community corrections, fines enforcement and so on. Should there be an inconsistency between the terms of any of these agreements and this Bill, the terms of the Bill will prevail.

142—Protection of office holders of State taking action in another participating jurisdiction

Office holders have certain protections and immunities in relation to the performance of their official duties. This clause ensures that an SA office holder performing the duties of his or her SA office in WA or the NT has the same protections and immunities as if the office holder were performing the duties in SA.

143—Protection of office holders of another participating jurisdiction taking action in State

Office holders have certain protections and immunities in relation to the performance of their official duties. This clause provides that NT and WA office holders performing the duties of their NT or WA office in SA have the same protections and immunities under SA law as if they were performing these duties in the NT or WA.

144—Disclosure of information to authorities in another participating jurisdiction

Privacy and other laws restrict the capacity of agencies to share information about individuals unless the legislation governing the activities and powers of agencies explicitly allows the sharing of information. For the successful administration of this legislation, it will be necessary for agencies of each of the participating jurisdictions to share information with other agencies from the other participating jurisdictions eg the Parole Board of South Australia may require information from a prison superintendent in WA or the NT in considering a parole application from a prisoner serving an SA sentence in a WA or NT prison. This clause authorises the exchange of information across the jurisdictions if an agency would be authorised to provide the same information to the equivalent body in its own jurisdiction. There is also explicit provision in this clause for the CEO (corrections) to provide information for the purpose of research.

145—Delegation by CEO (corrections)

This clause empowers the CEO (corrections) to delegate (in writing) his or her powers under the legislation. The CEO may place limits on this delegation. The person to whom the CEO delegates powers cannot delegate them further to someone else. Even though the CEO may have delegated a power, this does not prevent the CEO from also exercising that power during the currency of the delegation.

146—Regulations

This clause enables the Governor to make regulations specified in the Bill or regulations that are deemed necessary to enable the Bill to take effect.

147—Review of Act

This clause requires the Minister to carry out a review of the operation and effectiveness of the Act after it has been in operation for three years. A report on the outcome of the review is to be prepared, and a copy of the report is to be laid before each House of Parliament within four years of the commencement of the Act.

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Bail Act 1985

2—Amendment of section 11—Conditions of bail

Under section 11 of the Bail Act 1985 as amended by this clause, a bail condition may relate to a place or circumstances outside of South Australia.

Part 3—Amendment of Magistrates Court Act 1991

3—Insertion of section 14A

This clause inserts a new section into the Magistrates Court Act 1991. Under the proposed section, if the Court is required to perform its functions at a place outside the State, the Minister may appoint as a member of the non-judicial staff of the Court at the place—

a person who holds office as a registrar or other officer of a court of the jurisdiction in which the place is located; or

any other person.

4—Amendment of section 16—Time and place of sittings

The amendment made by this clause is consequential and makes it clear that the Court may sit outside the State.

Part 4—Amendment of Youth Court Act 1993

5—Insertion of section 13A

This clause inserts a new section into the Youth Court Act 1993. Under the proposed section, if the Court is required to perform its functions at a place outside the State, the Minister may appoint as a member of the non-judicial staff of the Court at the place—

a person who holds office as a registrar or other officer of a court of the jurisdiction in which the place is located; or

any other person.

6—Amendment of section 15—Time and place of sittings

Under section 15 of the Youth Court Act 1993 as amended by this clause, registries of the Youth Court are to be maintained at such places (either within or outside the State) as the Governor may determine.

Debate adjourned on motion of Hon. D.W. Ridgway.

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