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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) BILL

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

The Hon. M. PARNELL: Clause 5 enables the Environment, Resources and Development Court to conduct a sentencing conference. This is a provision that the Greens support—a useful addition to the activities conducted by that court. My question is in relation to those who have the right to participate in a sentencing conference and how people would come to know that a sentencing conference was being held so that they would know whether or not they could apply to be part of it. I will explain my question a little bit more. What clause 5 talks about is that the sentencing conference can comprise the defendant, the defendant's lawyer, the prosecutor, and then it goes on in paragraph (d):

such representatives of persons affected by the commission of the offence as the Court thinks appropriate;

In the second reading speech, the minister referred to local communities affected by pollution and that they would be able to come along to the sentencing conference and talk to the court about how the pollution affected them. But then it goes on in (e):

such other persons as the Court thinks may contribute usefully to the sentencing process.

I think that is an important addition to this section, but the difficulty I have is how on earth would anyone know that the sentencing conference was being held so that they would know to actually write to the court and say, 'Can we come along?' What I have in mind, for example, is a serious pollution offence that might affect a species of animal, for example, a fish.

How would the fish people at the museum, or in the environment department or the community sector know that there was going to be a sentencing conference where the court would benefit from expert knowledge on the impact of the pollution on the species? I think I have explained the question in a couple of ways, so if the minister has any answer that would be helpful.

The Hon. G.E. GAGO: I have been advised that either the defence or the prosecution would request that interested parties be involved in a sentencing conference, then the court itself would assess if that is appropriate and the interested parties would be notified accordingly. So, the example is, if the prosecution wanted a particular member of the public to attend the conference, the court would assess whether it thinks that is fit and if it did then the prosecution would inform the interested party that they were required at the conference.

The Hon. M. PARNELL: I thank the minister for her answer. I can understand how that might work. For example, the prosecutor is keen to get a fish expert or representatives of the local community to come along and make a presentation, if you like, or give evidence at the sentencing conference about the impact of the pollution. I note that a prerequisite for a sentencing conference is that the defendant has to first express contrition, which I find an interesting way to proceed. The defendant first has to say—let us say it is a big corporation—'I'm terribly sorry for the pollution that I've imposed on this local community', and then the prosecutor could pick and choose some victims, if you like, some people whose property or health was impacted by the pollution.

The prosecutor could pick a bird or frog expert or some ecologist to come and give evidence, but it seems to me that it misses the point somewhat, because my understanding would be that a sentencing conference probably would not be in the cause list and it would probably not be advertised and, unless the prosecutor happens to pick you as a person who the prosecutor believes has something worthwhile to tell the court about an appropriate sentence, then you have no idea what is going on.

I hope I am not confusing here the contribution that a person might make in a sentencing conference with, for example, the right of a victim to give a victim impact statement in other criminal proceedings, but it would seem that there is some similarity. If, for example, a big corporation polluted a local environment, impacted on the health of local people, impacted on their properties—maybe they were evacuated, maybe they had to leave their homes for some period—is there any mechanism in place, other than the one the minister just identified, which is the prosecution picking and choosing people who the prosecutor believes have a contribution to make to sentencing? What opportunity is there for anyone else, of their own volition, to find out there is a sentencing conference about to be held and to apply to have their say—give evidence, if you like—to that conference?

The Hon. G.E. GAGO: I have been advised that the honourable member is slightly confusing the purpose of a sentencing conference. The sentencing conference is about involving victims who have been directly affected in setting the sentence appropriate to the offence. The purpose of a sentencing conference is outlined there in part 3, clause 5, new section 9D(3), which states:

(3) The primary purpose of a sentencing conference is to negotiate action that the defendant is to take to make reparation for any injury, loss or damage resulting from the offence, or to otherwise show contrition for the offence.

It generally involves those people who have been involved in an offence, are part of the case and are seeking damages or reparation in some form, whether it is an 'I am sorry' or a severe sentence. It is not about throwing the net widely to find out how many people in the community have suffered injury: this is about working out the injury that has been indicated, and from those parties what is an appropriate sentence.

The Hon. M. PARNELL: I thank the minister for her answer. We are sort of getting there, in a way. The hypothetical example I gave was that, if as a result of a criminal act we had chemical contamination of an area, the area had to be evacuated, a number of people had to leave their homes and had to take, for example, motel accommodation, they are people who have suffered some sort of loss. I am not aware of the EPA having a fund that would actually pay people's motel bills for them.

I would have thought that, the company having expressed contrition, as it says in subsection (1)—and as the minister pointed out in subsection (3), the prime purpose of this conference is to negotiate action that the defendant could take to make reparations—reparations might be that the company would agree or be sentenced, however it is worded, to pay the motel bills of all those people who were forced out of their homes as a result of the company's criminal act in polluting the area.

What I would hope is that there would be some system that the EPA would put in place, maybe through its website, through letterboxing or whatever. You would need to call for people to identify what loss they had suffered so that those people know they can put in a claim to the company, which has expressed contrition, that they have their loss covered. It might be as simple as a motel bill or it might be damage to property.

I do not require anything further from the minister. I just make the point that if such a sentencing conference were to be held I would expect the EPA and the prosecution to make some effort to find out who in the community has suffered loss so that there was the ability for those people to make their claim, as it were, on the contrite offender so that any compensation paid could be incorporated into whatever the sentencing might be—whether it was a combination of fine plus an agreement to pay this additional compensation.

I make the point that the Greens are very supportive of the clause. We would like to see the EPA put in place measures that give it some practical effect. That will include advertisements, in some cases, inviting people to lodge their claims. I just make that point.

Clause passed.

Clause 6.

The Hon. G.E. GAGO: It has been drawn to my attention that answers to questions asked by the Hon. Ann Bressington have not yet been put on the record, so I will use this opportunity to put some answers on the record.

The Hon. Ann Bressington requested that the minister respond to comments from the Law Society and answer why people on good behaviour bonds do not have appeal rights. I have been advised that in relation to the provision amending section 48 of the Criminal Law (Sentencing) Act 1988, which introduces a requirement for those persons under supervision to obtain written permission of the Chief Executive Officer of the Department for Correctional Services before leaving the state, the Hon. Ann Bressington has raised comments.

The Law Society has commented that persons on parole are able to apply to the Parole Board if the application to travel interstate is rejected by the Chief Executive of the Department for Correctional Services and that persons on bail can apply to the court. The Law Society further suggests that its view is that the power to grant this permission properly lies with the probative court, and therefore if the decision of the chief executive is to decline permission a person should be able to appeal the decision to the court.

The Hon. Ms Bressington then specifically asked about those people on good behaviour bonds and why those people do not have appeal rights. The comments provided by the Law Society may have confused this issue slightly, and I think there may have been a misunderstanding about the ability to appeal decisions in relation to interstate travel permission. There is actually no ability to appeal the decision of a chief executive of the Department for Correctional Services to a court in relation to interstate travel permission either for persons on parole or those on bail.

It may simplify the situation to outline the three types of persons who are under some type of supervision of the department or the courts. Persons on bail who wish to travel interstate must first seek permission from either the CE of the Department for Correctional Services or, if they are under supervision, of a community corrections officer; or, if they are not under the supervision of a corrections officer, from the bail authority. The bail authority may be a court, which could explain some of the confusion in relation to seeking travel permission from a court.

A person on parole currently seeks permission from their community corrections officer. Amendments to section 48 will now mean that those on parole must seek permission from the CE of the Department for Correctional Services. A person on a good behaviour bond would have to comply with the specific conditions of their bond. If one of those conditions was to be under the supervision of a corrections officer, they would then be in the same situation as someone under supervision on parole and would accordingly have to seek permission to travel. To summarise, it is not correct to say that those on parole and on bail have appeal mechanisms. That is not, in fact, the case, and I hope that my answer has clarified the situation.

Further, we disagree with the Law Society's suggestion that a person should be able to appeal to the court if their application to travel interstate is rejected. In practice, this would be unworkable as the courts would not be able to cope with the volume of appeals if they were available for the decisions made by the CE of Correctional Services. However, there are conditions and restrictions on persons under supervision, which the courts and the relevant legislation leave to the Department for Correctional Services and the community corrections officers to specify and carry out. Permission for interstate travel is one of those restrictions, and I believe this is appropriately dealt with by the department without the need for appeals to the courts.

The honourable member's second question related to clarification of why power to grant permission for interstate travel resides with the CE and not with the corrections officer. The honourable member asked: will it be delegated where is it retained by the CE and why? In answering this question, I am advised that we have consulted with correctional officers, who strongly agree with the government's amendment to section 48 in the bill. It was requested by the department that the part referring to travel out of the state appropriately allocates responsibility to the CE of Correctional Services.

Correctional Services advised us that it expects all offenders under the supervision of the department to request permission to travel out of South Australia. There are established departmental guidelines and procedures to ensure travel is for legitimate reasons, appropriate checks are conducted and notifications are made to receiving jurisdictions, where necessary, and permission granted with clear time lines and expectations. This ensures that risk is managed appropriately. Some offenders are not granted permission if the risk is deemed too great.

Offenders supervised by the department are allocated to a tier of supervision, based on assessed risk. With this in mind, it is envisaged by corrections officers that the provision will be formally delegated to the Executive Director, Community Corrections for all offenders except those deemed to require the CE's approval; that is, very high-risk offenders on the highest tier of supervision and also sex offenders.

The government agrees with the opinion of the department in that responsibility appropriately sits with the CE. One could imagine the type of situation where a high-risk offender, for example, involved in outlaw motorcycle gangs, could pressure a community corrections officer to grant them travel permission. This is the type of situation we obviously want to avoid placing on the correctional officers and why it is appropriate that, in some cases, the responsibility lies personally with the chief executive.

The third question was around the powers of the DPP under other acts and to whom are powers delegated. A comment was made that the powers could be delegated to anybody, including police officers, and that this undermines the Office of the DPP acting as a check on police powers. I understand that the list of powers granted to the DPP under acts other than the DPP act have already been provided, so I will not repeat that here.

The honourable member mentioned about powers being delegated to anyone. I want to clarify this point: it is not correct. In both the current section allowing the DPP to delegate powers under the Director of Public Prosecutions Act and in the new provision allowing delegation of powers under other acts, the delegation must be to a suitable person. Therefore, it is not correct to say the DPP could delegate a power to anyone. Persons outside the DPP's office would not constitute a suitable person, as the independence of the office may be compromised in that situation. Similarly, functions that require specific legal skills would only be delegated to those with the specific skills and expertise required for that task.

Although the specific person to whom powers are delegated is a question for the DPP as a matter of internal procedure, to give an example, powers currently able to be delegated—such as deciding whether to charge a person with an offence—are only delegated to senior legal officers, generally those in management positions, such as SAES1 or 2, who would have at least 10 years' experience. Persons who do not have the required skills and expertise would not be suitable according to the legislation, and the government trusts the DPP to choose only suitable persons to delegate powers.

Delegations of powers are commonplace in government and are necessary to ensure the smooth and efficient running of departments and offices throughout government. It is not acceptable that a necessary task, applications or other operations of the DPP may be delayed because the DPP is not able to personally exercise the power due to being outside the jurisdiction or otherwise unavailable, and it is this that we actually seek to remedy in our bill.

Clause passed.

Clause 7 passed.

Clause 8.

The Hon. S.G. WADE: I move:

Page 5, line 21—Delete 'CEO' and substitute:

community corrections officer to whom he or she is assigned

This is a discussion that the Legislative Council has had a couple of times in recent months. This amendment seeks to leave to their supervising officer the discretion as to whether a person may travel interstate.

We accept that there is a need to monitor the interstate movement of people under supervision. We appreciated the advice from the government in terms of the flexibility that officers would have in giving this permission but, consistent with our position in the context of the Correctional Services (Miscellaneous) Amendment Bill 2011, the opposition's view is that the management of people under supervision is best done by people who know their circumstances and aptitudes, rather than relying on a bureaucratic process that is removed from that person.

I accept the minister's points that, from time to time, a particular person's or class of persons' situation might warrant closer supervision by a more senior officer, but these community corrections officers who are specified in the act are subject to direction by the CE and more senior officers. There could be standing arrangements in place that, in certain circumstances, they need to seek the concurrence of a more senior officer.

We are concerned that the government's amendment is part of a growing trend of government centralisation, where decisions are made further and further away from the people they affect and further and further away from the people who have the most intimate experience of the person and their situation. I seek the support of the committee to maintain a close proximity between the person who is affected and the person who makes the decision in relation to them.

The Hon. G.E. GAGO: The government will be opposing this amendment. In the bill as it stands, a parolee will need to seek written permission from the CEO of the Department for Correctional Services prior to travelling interstate. The opposition amendments change this so that a parolee need only seek permission from their assigned community corrections officer. and I have addressed similar issues already. Whilst we appreciate that the opposition is not seeking to amend the mandatory aspect of parolees seeking permission to travel interstate—which the government views as a very important part of the provision—we will still be opposing this amendment.

The government has sought the views of the Department for Correctional Services, and they are very concerned about the effects that the opposition's proposed amendment could have. It is their view—and the government strongly agrees with this—that the power to grant permission to travel interstate properly lies with the highest level of authority within the department. The concern is in the case of a parolee who has committed, for example, a serious violent or sexual offence and it is not appropriate for a corrections officer to grant that person travel permission.

For example, if a parolee who has committed an offence under the serious and organised crime legislation applied for permission to travel interstate, we believe the decision should be made at the highest level of authority within the department. It should be noted, however, that the power to grant permission for interstate travel may be delegated, where this is appropriate, for example, for offenders who are on parole having committed less serious offences. It is for these reasons given that we oppose this amendment.

The Hon. M. PARNELL: The Greens are sympathetic to the arguments being put by the opposition and also by the government. At one level we are sort of in furious agreement, but there are two paths to the same ends. The government's position is that the starting point is that the parolee, for example, writes to the CE and requests permission to go interstate. The CE, presumably, would have a delegations document which would enable many of those routine decisions to be made at a lower level by, for example, the community corrections officer.

That is the government approach. The Liberal approach is to say, 'Why don't we give the power directly to the community corrections officer, and then for those cases that need a higher level of authority the CE will have to put in place a reverse delegations policy which basically tells those community corrections officers to send it back upstairs if the original offending falls into a certain number of categories.' That would make sure that the highest level authority that the minister referred to gets to make the final decision.

At the end of the day, under both models, you would hopefully find the appropriate person making the decision in the appropriate circumstances, but I do have a problem with the way the Liberals have put it. As the Hon. Steven Wade said, because these community corrections officers are under the direction of the CE anyway, that fundamentally undermines the delegation power, because what you would be doing is you would be saying, 'These things are delegated to you, but you have to do it the way I say,' which is effectively the CE making the decision in the first place.

In light of all the circumstances, the Greens will not be supporting the Liberal amendment. We will keep with the bill as drafted, with the permission being sought from the CE, and we would trust that the CE would have appropriate delegations policies in place to make sure that the actual decision is made at an appropriate level for those cases that warrant it.

The Hon. G.E. GAGO: I think we have made it very clear why the government is opposing this. There could be a circumstance where obviously the corrections officer is in a much closer relationship with the parolee; they might be in an ongoing supervisory role. What we are saying is that they can be much closer to the parolee, and particularly in very serious offences, particularly organised crime activity, it might be easier for the parolee to lean on the corrections officer in a more coercive way.

Because of the seriousness of the offence, what we are saying is there should be a greater distance in the relationship between the person with the authority and the parolee. We think that that is absolutely in the public interest to do that, and it is also in the interest of the staff. We think that protects their interests and it protects the public interest, so we feel quite strongly that this is a sound position to be coming from.

Amendment negatived; clause passed.

Clauses 9 to 12 passed.

Clause 13.

The Hon. S.G. WADE: I thank the minister for her response to the Hon. Ann Bressington, which I think was given in an earlier clause but one of them did relate to this particular section. My understanding is that where this clause provides 'may delegate to a suitable person', the Hon. Ann Bressington asked, 'Could it be delegated beyond the office and to a police officer?' The minister's answer was yes, but the minister said that, depending on the circumstances, it may not be suitable, but we will discuss that as we go through the consideration of this clause.

The opposition opposes part 4 (heading and clause 13), because we do not believe in a broadbrush change to allow the DPP to delegate without clarity—why it needs to be done and why it needs to be done in each of the cases. The minister referred to an answer that the government gave to the Hon. Ann Bressington where it detailed numerous acts and regulations which do accord a power to the DPP. If I remember rightly there were 26 acts and a series of four sets of regulations. The clause itself in proposed section 6A(1) provides:

The Director may delegate to a suitable person (including a person for the time being performing particular duties or holding or acting in a particular position) function or power of the Director under this or any other Act (unless the contrary intention appears).

What the clause says is that, unless the act (which was enacted before the passage of this general delegation power) did not specifically say it could not be delegated, then it shall be able to be delegated. Those 26 acts and regulations on my count have around 100 powers. In the summary that is provided by the government it is not easy to be precise, but we are not talking about the odd power here or there. Each of these powers was put in statutes by this parliament without this general delegation power being in place.

Some DPP powers are explicitly not able to be delegated under their relevant statutes, and this amendment by the government would not override those specific exclusions. However, what the government wants to say is that, if they were not especially explicitly barred at that time when parliament considered the legislation, a delegation should be allowed. I think that it is better to assume the reverse. I think that it is better to assume that if parliament enacted a power to the DPP without a general delegation power in place, parliament would have every right to assume that it would not be exercised by other officers without a specific delegation in place.

The government referred in its second reading explanation to the Listening and Surveillance Devices Act 1985, which allows the DPP to approve an application by police to the Supreme Court for a warrant authorising the use of devices. The role of the DPP as under this act is essentially to be an independent arbiter as to whether that application should go ahead, yet the government is effectively saying that, without limitation, this power should be able to be delegated to whomever the DPP determines.

The minister has chosen to give a particular interpretation of 'suitable person', which seeks to assure us that it could not be done, presumably, in this situation to a police officer. I am not comfortable that that is clear in this power. I am actually very uncomfortable with the thought of the DPP being able to delegate this power beyond their own office. To then ask a DPP to speculate as to who a court might consider to be a suitable person is, I think, very broad drafting—not drafting this parliament should be attracted to.

Also, I highlight to the committee that there are some serious prosecutions that are the subject of DPP approval. The two that come to mind are criminal defamations. Section 257 of the Criminal Law Consolidation Act requires that criminal defamation can only be actioned with the consent of the DPP. Under the Racial Vilification Act (section 5), likewise; they cannot be prosecuted without the DPP's consent.

Criminal defamation is rare but we have a case before the courts at this time which relates to criminal defamation. I, as a parliamentarian, am reassured that such a serious charge cannot be levelled by the police acting alone or for that matter a relatively junior officer in the DPP. I am glad to see that that is in the hands of a senior independent statutory officer.

I am certainly not comfortable to pass this legislation which would carte blanche give the DPP the power to delegate, and this is no reflection on the DPP. Parliament sets up a set of laws to provide justice and assurance to the community as to the respective roles of a range of officers. Of course, we have situations where the DPP makes prosecutorial decisions and uses other discretions; that is why we appoint people of such esteem to these important roles.

Just as parliament does not reflect on the DPP in those acts where the parliament specifically excludes a delegation, neither do I think it is any reflection on the DPP to say we are not happy to retrospectively determine that these delegations which have already been put in place can be subdelegated without further reference back to the parliament.

Let me stress that the Liberal opposition is not saying that in every case of those 26 acts and regulations that we would oppose the ability of the DPP to delegate. The document that the honourable minister referred to earlier highlights that a lot of these powers seem to be eminently delegateable. It seems eminently appropriate that many of them be delegated, but just as I have said there are cases such as criminal defamation and racial vilification where I, as a parliamentarian, would not support their delegation if that was being put forward as a separate stand-alone provision.

The changes proposed by the government are a broadbrush approach to address this issue. Rather than introduce the provisions in a stand-alone bill so that each power can be scrutinised and considered accordingly, we are being expected as a parliament to accept it carte blanche.

In this context I was reminded of a piece of legislation that we considered in this house last year. I remind honourable members of the Statutes Amendment (Directors' Liability) Act 2011. It had 26 parts. I presume that means we amended about 25 acts. Members will recall that it was a result of a commonwealth-state consultation over some years about what was the appropriate level of directors' liability in relation to a whole series of acts—everything from the ANZAC Day Commemoration Act to the Gaming Machines Act to the Supported Residential Facilities Act, etc.

I remember from briefings that we had in relation to that legislation that there was a set of criteria that were determined by a ministerial council. The state governments each turned to the legislation and categorised where they thought the legislation fitted in the schema and pitched the level of directors' liability in the context of that schema. I suggest to the council that that is an eminently appropriate model for us to look at in this context.

Ironically, there is about the same number of acts. Last year the government in relation to directors' liability wanted us to consider them in the context of a schema and in the context of a stand-alone bill which had different provisions for different categories. I argue that is exactly what we would expect in this legislation. I look forward to a Director of Public Prosecutions Act, even if it is part of another act, which provides more contrast in the way that different powers are dealt with.

We are very concerned that this may well be symptomatic of the government's underfunding of the Office of the DPP. Both the previous DPP and the current DPP express concerns about the need for the government to better resource the DPP going forward as case loads continue to increase. We do not want to see a DPP under pressure being asked to delegate when in a properly resourced office they would not be subject to this pressure. In that context we urge the council to resist this proposal in this bill by opposing this clause. As I said, the opposition is not ruling out supporting an increase in the delegations. We want to make sure that the DPP and his officers have appropriate legislation. We do not believe this carte blanche general delegation power is appropriate.

The Hon. G.E. GAGO: The government supports the clause, which provides that the DPP may delegate his powers and functions under the act, other than the Director of Public Prosecutions Act 1991. The DPP is granted powers under approximately 30 different acts, with most of these powers being appropriate to delegate. A power to delegate means that the DPP may delegate certain functions to appropriate persons, allowing important work of the DPP to continue if the DPP was personally not available to exercise a particular power.

For example, powers granted under other acts include extending the time for prosecuting an offence under the Fisheries Management Act 2007 or making an application to the Training Centre Review Board to vary or revoke a licence condition in relation to youth offenders under the Young Offenders Act 1993. As many of the powers are frequently exercised, it is not possible for the DPP to personally exercise all the functions without causing delays. Our provisions will allow appropriate senior staff to exercise those powers where it is obviously appropriate and necessary.

Of course, we understand there are some powers that are not appropriate for the DPP to delegate and, therefore, some pieces of legislation have specific exemptions put in place, for example, the Serious and Organised Crime (Unexplained Wealth) Act 2009, so that the powers of the DPP under sections 9 or 12 may not be delegated in those very serious cases. This approach makes it clear where the DPP must personally exercise powers. The government believes its approach is the most appropriate to allow the DPP to operate efficiently, and the DPP is supportive of these provisions. For those reasons, we support the clause.

I have been further advised that, no delegation would ever be given to someone the DPP could not direct. I have been advised that this principle underlies every delegation provision on the statutes book. I have also been advised that there are a number of instances in the statutes books where delegations are for powers under this act, or any other act. There are numerous examples. So, it is not uncommon to have this sort of provision. An example that I have been given relates to the Commissioner of Police in terms of where a delegation under this or any other act is an example of where that provision currently exists.

The Hon. M. PARNELL: The starting point is that the Hon. Stephen Wade is proposing to delete the new section 6A from the Director of Public Prosecutions Act. That would have the effect of leaving in place the existing section 6A. The existing section 6A is similar in very many respects to the amendments. There are only three differences, that I can tell, in terms of what the government is changing.

The first thing it is doing is adding the words 'or any other act'. In other words, it is expanding the range of decisions that can be delegated. The second change is a minor technical change, it provides that a delegation may be absolute or conditional. That was probably implied in the earlier delegation section anyway, but it is now made explicit. The third change is that delegations can be further delegated if the instrument of delegation so provides.

The effect of supporting the Liberal position would be that we would go back to a situation where you pretty much have an unfettered power of delegation. I understand that, as the minister has said, there are fetters in relation to some decisions that cannot be delegated. However, if you look to the Director of Public Prosecutions Act and at the powers of the director, under section 7(1) of that act one of those powers is:

(h) to carry out any other function assigned to the Director by any other Act or by regulation under this Act;

In fact, most of the powers of the director are contained in those other acts. I do not know whether the director has a great deal of delegating to do under the Director of Public Prosecutions Act, the original act. There is not an unreasonable interpretation that the delegations that need to be done are in fact under those other acts because that is where most of the powers of the Director of Public Prosecutions lie—in the 30 other acts.

Whilst that might not be squeaky clean from a position of statutory interpretation, it makes sense to me, in terms of the people who were drafting this act back in 1991 (I do not know when 6A was inserted, as I have not checked the legislative history), it would seem to me that they always had in mind that there would be delegations and that they would be under acts other than the head act—the Director of Public Prosecutions Act.

The suggested changes do not fill me with as much dread as they do the honourable opposition spokesperson, as they are not that different. You still have the requirement for it to be in writing, and you still have the requirement for the delegation to be to a suitable person. The concerns the Hon. Stephen Wade expressed in relation to who might be a suitable person, those same concerns exist in the existing act—they are exactly the same words—so I do not think there is any real change there.

The delegation is in relation to functions and powers, which is the same under both the existing and the proposed new section. A delegation being absolute or conditional is neither here nor there. The 'further delegation' begs the question as to how far down the chain you go but, as the minister has pointed out, the DPP as a matter of practice would not delegate to any person they did not control, so whether the delegation is in one stage or two probably does not really matter that much.

Weighing up all these things, and bearing in mind in particular that a power to delegate does not guarantee a delegation and does not suggest that certain powers are more or less likely to be delegated, it will be decided on a case-by-case basis. Where acts have set out that a power cannot be delegated, that is fine and we have to accept that, but in the balance of cases the option to delegate should be kept open.

I also remind members that the ability of the director to call back or revoke the delegation exists under the existing section 6A and under the proposed new section 6A, and the ability of the DPP to act personally is under the existing 6A as well as the new one, so I do not see the changes as particularly radical and, having analysed it in that way, the Greens are not overly worried at the insertion of the new 6A.

Of course, it will need to be handled sensibly, but there is no evidence before us that any of the delegations to date have not been handled sensibly. I have not had any correspondence from anyone to say, 'The heart of this problem was an improper delegation by the DPP.' Until we start getting those sorts of stories coming out of the community, I am inclined to allow the government amendment to proceed as drafted, so we will not be supporting the Liberal position.

The committee divided on the clause:

AYES (11)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Franks, T.A. Gago, G.E. (teller) Gazzola, J.M.
Hood, D.G.E. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Zollo, C.
NOES (8)
Bressington, A. Dawkins, J.S.L. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Wade, S.G. (teller)
PAIRS (2)
Wortley, R.P. Vincent, K.L.

Majority of 3 for the ayes.

Clause thus passed.

New clause 13A.

The Hon. G.E. GAGO: I move:

Page 8, after line 3—Before clause 14 insert:

13A—Amendment of section 16—Retirement of members of judiciary

Section 16(2)—delete '65 years' and substitute: '70 years'

At present District Court masters and ERD Court commissioners must retire at the age of 65. In the government's view many in such positions are well able to continue in these roles after the age of 65. Also, in the case of commissioners there may sometimes be few people with the appropriate qualifications available to serve in these positions.

The amendment to the bill will increase the retirement ages of these officers to 70 so that competent personnel do not become unavailable to the court simply because of their age. The changes will also bring the retirement age in line with District and Supreme Court judges, which is currently also 70. The retirement age for magistrates remains at 65, but I understand that is being looked at in a separate review of the Magistrates Court.

The Hon. S.G. WADE: My question is on the last point the honourable minister made. She indicated that the Magistrates Court currently has provision for the retirement of magistrates at 65 and that there was a review underway. Can the minister indicate who is undertaking the review, when an outcome is expected, and why this late amendment came in when that review might well necessitate us considering the retirement age of magistrates?

The Hon. G.E. GAGO: In relation to why the amendment was late, I have been advised that this provision was requested, in consultation with the Chief Judge, and this occurred after parliament was prorogued. It was then reintroduced, etc., and that has taken some time. In terms of the magistrates review, I have been advised that it is being undertaken by legislative services in the Attorney-General's Department.

The Hon. S.G. WADE: The third question, which the minister has not addressed, is: when is the review expected to be finalised?

The Hon. G.E. GAGO: I do not have the answer to that question.

New clause inserted.

Clauses 14 to 17 passed.

New clause 17A.

The Hon. G.E. GAGO: I move:

Page 9, after line 12—After clause 17 insert:

17A—Amendment of Schedule—Commissioners

(1) Schedule, clause 1(3)(b)—delete '65 years' and substitute: '70 years'

(2) Schedule, clause 1(5)(b)—delete '65 years' and substitute: '70 years'

The Hon. S.G. WADE: We regard it as consequential.

New clause inserted.

Remaining clauses (18 to 23) and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:48): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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