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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-07 Daily Xml
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SPENT CONVICTIONS (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The CHAIR: Do any honourable members have contributions to clauses 1 to 9?

The Hon. M. PARNELL: Yes, at clause 1. I had a brief discussion earlier with the Hon. John Darley and I understood he may have had an amendment to clause 4, in which case I would be concerned if we were to proceed all the way up to the Hon. Mr Wade's amendment without at least determining whether that is the case.

The CHAIR: Who is shedding light on this?

The Hon. G.E. GAGO: As leader I am happy to. The Hon. John Darley has indicated that he does not want to proceed with his amendments to clause 4.

The CHAIR: The Hon. Mr Wade?

The Hon. S.G. WADE: That is my understanding.

Clause passed.

Clauses 2 to 9 passed.

Clause 10.

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

Page 4, line 35—After '2 years' insert:

unless the application is made with leave granted by a qualified magistrate

I pause to thank the government for consultation on the amendments. We did have other amendments that we were contemplating moving but, in consultation with the government, we do not see the need. However, we believe that this one amendment and its consequential amendment will enhance the bill. As we said in the second reading speech, we support the bill as a whole. We believe that it is appropriate to have a mechanism by which people who have dealt with their offending behaviours can have an opportunity to make a fresh start.

In addressing amendment [Wade-1] 1, I remind the council that the bill proposes that, if an application to spend a conviction is refused by a qualified magistrate, the bill provides that the unsuccessful applicant may not reapply for that conviction to be spent within two years of the refusal. The Law Society of South Australia has raised with the opposition its concerns. It believes that a two-year prohibition would be unduly lengthy, overly harsh and oppressive, especially since the offence which is the subject of the application is at the lower end of the scale of seriousness—after all, it attracted a non-custodial penalty.

Whilst the bill provides individuals with the option to seek judicial review in the Supreme Court, given the costs and prospects of successfully overturning a decision, it is likely to be inappropriate in many such circumstances. Conversely, there is a possibility that the two-year prohibition will encourage people to seek a judicial review more often than they otherwise might. The Law Society suggested a prohibition period of 12 months and provision for reapplication within that time if circumstances change or the applicant has a good reason to do so.

The opposition supports the concerns of the Law Society to the extent that even within a two-year period circumstances can change such that people might need to have their case reconsidered. However, we do not specifically see a need as to why they actually need to reduce the 12 months. We believe it is better just to provide an opportunity for the magistrate to reconsider in special circumstances. So, on behalf of the opposition I am moving an amendment which retains the two-year prohibition period proposed by the government but allows applications by leave of the qualified magistrate in extenuating circumstances. We believe this will allow flexibility in the interests of justice without allowing unnecessary reapplications.

The government in discussions with us so far has not been able to justify why two years is an appropriate prohibition period. Why not one year, as the Law Society suggests, or three or five years? It has an element of an arbitrariness about it. In contrast, our amendment would ensure that the discretion of the qualified magistrate would provide flexibility in that arbitrary prohibition period. There is a reasonable discretion there to accommodate the interests of justice.

Let us remember that the whole reason the bill is here is because circumstances in this area vary so markedly and we need to provide people with an opportunity to have offences reconsidered by a magistrate. In our view the discretion of whether further consideration is given to spending the conviction should be in the hands of a qualified magistrate. There may be any number of reasons why there are grounds for a person to reapply within a two-year period, and they would have to justify their reasons.

The Hon. G.E. GAGO: I rise to oppose this amendment. Under the bill persons who have been convicted of a sex offence, which currently cannot be spent, are able to apply to a qualified magistrate for that conviction to be spent and to be disregarded for one or more of the three excluded purposes. This application can only be made if the person has fulfilled the required 10-year qualification period of good behaviour. The applicant will have had a substantial amount of time to prepare their application.

As currently drafted, once an application for a conviction to be spent has been refused, the convicted offender is unable to reapply within two years. Under the Hon. Mr Wade's amendment, this time limitation is retained. However, under his amendment the convicted offender is at liberty to seek leave from a qualified magistrate to reapply. The government does not support this amendment. It is unnecessary and will merely burden the courts, which have enough work already, with ongoing applications for leave. The decision of the qualified magistrate is an administrative decision. Administrative decisions are subject to judicial review; therefore, any decision made by a qualified magistrate concerning the spending of a conviction is subject to judicial review.

The government does not agree with the contention of the Law Society that two years is an unduly lengthy period, and the government does not agree that this two-year period is oppressive or harsh. But the Law Society suggested that this be reduced, and not the proposal put forward by the Hon. Mr Wade. The Hon. Mr Wade's amendment does not reflect the Law Society's position. The reform proposed in this bill is giving people a second chance after 10 years of good behaviour, a chance to have their conviction spent that currently they do not have. That is hardly oppressive or harsh.

The government has also consulted with the courts—something the opposition clearly has not done—and the courts are against this amendment as it allows a person continually to make application for leave to reapply to the Magistrates Court to have their conviction spent, despite the fact that their application has already been considered and been dismissed. If an offender's application is refused and they consider there was an error in the decision, then the offender should seek judicial review. That is the appropriate course of action to take.

The government certainly does not support allowing applicants to seek leave to reapply. We cannot support this amendment. Under this amendment an offender would be at liberty continually to seek leave from a qualified magistrate to reapply, and the government cannot allow this to happen.

The Hon. S.G. WADE: I highlight to members who are considering this amendment to note that the minister's response related to judicial review. The reasons a person might be seeking to justify a reapplication to a qualified magistrate may have nothing to do with the process that led to the qualified magistrate's decision, and therefore not be at all able to be attacked by judicial review. For example, it might be a change in their own circumstances. An idea that comes to mind is that perhaps a sick relative is in the United States and the need to travel overseas becomes acute. The qualified magistrate might have a different attitude in terms of balancing all the factors involved in those circumstances. I just stress that changing circumstances are not always able to be attacked by a judicial review.

The Hon. M. PARNELL: The Hon. Stephen Wade made the point that the two-year period during which a person cannot go back for another go to the magistrate to try to have the conviction spent is arbitrary. I think that is exactly right: it is arbitrary. It is as arbitrary as the 10-year period that precedes this amendment.

The issue of a person's circumstances perhaps lending themselves to a qualified magistrate allowing the conviction to be recorded as spent I think are important. It includes things like an employment opportunity. The example I had thought of is someone whose mother might have died in the United States, for example, where, as I understand it, they have fairly strict rules about who they will let into the country.

You can imagine circumstances where a person might want to go to court fairly quickly to see whether they can get the conviction spent. So, we can understand it. But we are overlaying these circumstances on what is fundamentally an arbitrary system of dates: whether 10 years is the right length of time before a person can make their first application; whether it should be five or 15. I do note that 10 is the minimum. It may well be that someone comes along after 20 or 30 for the very first time to apply to have their conviction spent.

The other point I would note is that my understanding of the amendment as drafted would be that there would be nothing to stop a person who is unsuccessful, for example, at their 10-year review (if we can call it that) to then forum shop and go to find as many qualifying magistrates as they can and apply month after month after month to see whether they can find someone who is prepared to allow the conviction to be spent. That might seem a fanciful example. Under the government's model, a person would have to wait the two years and there would be no discretion. I do not know how firm that would be. If someone had a compelling case, there may be an opportunity. The law seems fairly clear the way it is written. It provides:

...if a qualified magistrate has refused to make an order under this section in respect of the same conviction within the preceding 2 years.

Even for a court that was minded to give a person another go, it would be difficult to get around that clause.

Before I state a final decision, because we are debating this late amendment on the run, I ask the mover of the amendment to address that question about whether it would be possible for a person, on a monthly basis, to keep going back to court until they could find a magistrate who was prepared to allow the conviction to be spent?

The Hon. S.G. WADE: I think the honourable member raises a legitimate concern with my amendment, but I would be more concerned about the bill as it stands. The fact is that it may well be, as we often do with legislation in this house, the council indicates whether or not something is an issue for the council, and then the government, having had that indication of legislative intent, sits down with the mover and with other members and finds an appropriate set of wording to accommodate all concerns.

I appreciate the issues that Mark Parnell raises about the possibility for persistent applications may well have been what led the judicial officer to whom the minister claims the government spoke to indicate their position. As we have seen in previous reports of government views of government bodies proffered by ministers, I remind members of the advice we received via the government from the police in relation to the parole bill. Often we do not actually get the question asked and the answer in full. I would suggest to the government and to members of the council that this is a bill which has received the overwhelming support of the government, the opposition and other members of this place. This is one opportunity the Law Society has identified to improve it, and I think they have a point. I think there is scope for significant injustice in that two-year period.

The minister says, 'My position is not the same as the Law Society's position because we are willing to accept the government's two years rather than the Law Society's one.' If the government is happy to accept my amendment as amended with a one-year rather than a two-year period, then we can play those word games. The point is, we are not fixated on the arbitrary nature of the period. As I said, it could be one, two, five, seven or 10. What we think the Law Society has rightly identified and the Hon. Mark Parnell has also highlighted in his remarks, is that this does seem to be extremely rigid. What happens if circumstances change within those two years? We believe that it is a good bill, but here is one opportunity to improve it.

The Hon. G.E. GAGO: The Hon. Stephen Wade asked who the government consulted with in the judiciary over his amendment, and I have been advised that the government consulted with the Chief Magistrate. I would be asking who the Hon. Stephen Wade consulted with over his amendment in terms of providing him with advice from the judiciary. My understanding is that he has not consulted with any of the judiciary in regard to his amendment, but I am happy to hear otherwise.

In relation to the two years, the Hon. Mark Parnell is absolutely right; it is arbitrary. Two years is arbitrary. It is a balancing act. It is trying to balance the public interest and that of the person with the conviction. If one looks at the discretionary conditions that a magistrate has to consider in subsection (5), in determining whether a conviction should be spent or not, they are things like the nature, circumstances and seriousness of the offence; the victim impact statement, elements to that; any penalty imposed or any other order imposed by the court; the length of time since the conviction; the circumstances of the applicant and whether the applicant appears to have rehabilitated, to be of good character; whether the spending of the conviction on disclosure, etc., might present a risk to the public; whether there is any other public interest served, etc.

You can see that the weight of the considerations is around public interest. One can only imagine that if a magistrate has looked at those significantly weighted public interest considerations and said, 'No, I am not going to spend that conviction,' the circumstance of a relative of the convicted person dying overseas is hardly going to overturn or make a significant impact on those sorts of discretionary conditions. As I said, they are heavily weighted in terms of determining the public interest in spending that conviction. I believe that the two years is a good balance. As the Hon. Mark Parnell says, it is arbitrary, but we believe that we have the balance right.

The Hon. S.G. WADE: I have two points. First of all, the minister is fighting with a straw man. Nobody in this house is suggesting changing the arbitrary two-year limit. The Law Society suggested it; nobody has proposed it. The minister does us the disservice of selectively quoting the bill before us. Of clause 10, the proposed 8A(5)(e), the minister only chose to quote some sections. Let me read them in full. The introductory part is:

(5) The making of an order under this section is at the discretion of the qualified magistrate and that discretion will be exercised having regard to…

(e) all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application...

It goes without saying that the public interest is fundamental in a qualified magistrate's decision. It goes without saying that most of the criteria relate to, shall we say, objective elements; most of them actually go back to, if you like, the historical elements. But the government's own bill says, 'The circumstances of the applicant at the time of the application are relevant'. If those circumstances change, why should there not be an opportunity to have a reapplication?

I am sure there are opportunities to put a fence around that, if you like, to try to avoid unnecessary and unwarranted reapplications, but we think the Law Society has got a point. We believe there is an opportunity to enhance justice and we would encourage the council to support the amendment.

The Hon. M. PARNELL: The Hon. Stephen Wade referred to what he called a significant injustice that could occur if his amendment is not accepted. I think we need to put this in perspective. The single biggest significant injustice at present is that these very minor offences can never be spent and so the main evil, if you like, to be overcome is that a mechanism will now exist for the first time for these offences to be spent. Yes, it is arbitrary; yes, it is 10 years.

So really the only debate we are having is whether a person, as of right, has the ability to go to court at year 10, 12, 14, 16, 18, until they get the answer they want or they die or they give up, or whether in odd-numbered years a person might be able to have another go. I think where the Hon. Stephen Wade is correct is that judicial review will be of no benefit to a person who is challenging the valid application and interpretation of the criteria to be taken into account under subsection (5) in paragraph (e). In other words, if 'the circumstances of the applicant at the time of the application'—that cannot be judicially reviewed because that could change in the meantime; that might be the very reason a person wants to go back to court.

I am nervous about a person being able to make multiple applications. It seems that they get their 10 year go, they get to judicially review that with that one exception that I have mentioned, but all of the other criteria can be judicially reviewed, and if that outcome is unsuccessful—it would probably take a year, so that will be year 11—year 12, presumably, they get another go at it as well. I do not know whether the two years date from the judicial review or whether the two years date from the original application.

It seems to me that there are a number of windows of opportunity for a person to be making the application and there may well be a waste of resources if a person can sort of work the system by lodging regular applications on a regular basis. On that basis, whilst I thank the Hon. Stephen Wade for putting his amendment forward and having us think about whether the injustice remedied by this bill can be further improved, the Greens are not inclined to support the amendment.

The Hon. S.G. WADE: I would agree with the point the Hon. Mark Parnell raised which is the greatest public benefit of this bill is the bill. The opposition offered the council an opportunity, in our view, to improve the bill; we take it that the council prefers the bill as it stands.

The Hon. K.L. VINCENT: If my memory serves me correctly, it is not often that Mr Wade and I disagree on matters of civil liberty and judicial processes and so on, but unfortunately, this is going to be one of those cases. For reasons that I think have already been stated quite clearly and quite eloquently, I am fearful that this amendment would lead to a clogging up of the courts. While I am not insensitive to what the Hon. Mr Wade is trying to achieve, I am also fearful that if people were given the ability to make countless and immediate applications to the magistrate, that that could perhaps be fuelled by emotion rather than thorough thought and debate, and if they were able to do that immediately after being first rejected rather than having a cooling-off period. For those two main reasons, I am afraid I am not able to support the amendment at this time.

The Hon. J.A. DARLEY: I will not be supporting the amendment because I understand that the Chief Magistrate does not agree with it either.

Amendment negatived; clause passed.

Clauses 11 to 13 passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:06): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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