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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) (NO. 2) BILL

Second Reading

Second reading.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:54): 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.

The Statutes Amendment (Attorney-General's Portfolio) Bill 2013 makes various amendments to rectify a number of outstanding technical issues that have been identified by affected agencies and interested parties in various Acts committed to this portfolio.

In administering legislation, it is routine to have agencies and interested parties raise administrative and legal issues that they have encountered.

Specifically, the Bill makes the following amendments:

Strata Titles Act 1988 / Community Titles Act 1996

The Bill amends the Strata Titles Act 1988 to provide that the articles of a strata corporation must not prevent an occupier of a unit who has a disability (as defined in the Equal Opportunity Act) from keeping an assistance animal or from keeping a therapeutic animal (as defined in the Equal Opportunity Act) that has been certified by the person's general practitioner as being required to assist that person as a consequence of their disability.

Currently, schedule 3 of the Strata Titles Act 1988 prescribes replaceable articles for strata corporations to govern the management of strata schemes. A corporation may alter or substitute these articles by agreement. Clause 4 of the replaceable articles states that a person bound by the articles must not keep any animal in, or in the vicinity of, a strata unit without the consent of the strata corporation.

In recognition that some people require animals such as guide dogs to assist with a disability, s 19(4) of the Act states that the articles cannot prevent an occupier who is blind or deaf from keeping a guide dog at the unit. This current prohibition is outdated in referring only to guide dogs for blind and deaf persons.

The Bill also amends the Community Titles Act 1996 in similar terms.

Clarification of Statutory Defence for Child Pornography offences

Modern investigative considerations in dealing with offences involving child pornography have highlighted problems in the current statutory defence for such offences. Concerns have been expressed by SAPOL and the Education Department that the existing defence in s 63C(2) Criminal Law Consolidation Act 1935 is inadequate and could even unwittingly frustrate legitimate and proper law enforcement and child protection.

Section 63C(2) presently provides that 'no offence is committed against this Division by reason of the production, dissemination or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge.' This defence is too restrictive. It is unclear whether such legitimate purposes as law enforcement, acting in the administration of the criminal law and the provision of legal advice or child protection would fall within this definition. It is important in an area such as this, that the actions of police officers and others within the criminal justice system and education and child protection sectors be not left in uncertainty. It is appropriate that any statutory defence should include both legitimate law enforcement and acting within the administration of criminal justice purposes and the reasonable provision in good faith for child protection or legal advice. There will be variety of circumstances in which otherwise under the present law an offence might in theory even be committed by police officers or others within the criminal justice system and education and child protection sectors acting reasonably and in perfect good faith and in accordance with their professional duties.

The Bill therefore clarifies that the statutory defence is available to police officers or other law enforcement officer acting in the course of his or her duties; or any other person such as prosecutors or judicial officers acting in the course of his or her duties in the administration of the criminal justice system and to persons such as teachers, defence lawyers or those in the child protection sector who act reasonably and in good faith for the purpose of providing genuine child protection or legal advice.

The defence should be applied sensibly and cautiously by the courts to ensure that it does not open the door to spurious claims by offenders that they are acting in good faith for the purpose of providing genuine child protection or legal advice. Any claim can expect to be very closely scrutinised and subjected to a healthy degree of scepticism, especially if made by an individual who is not a defence or prosecution lawyer, judicial officer, law enforcement officer or child protection officer acting in the proper course of their professional duties. The courts are in the best position to make a determination as to whether someone falls within the clarified defence.

This clarification of the statutory defence is appropriate and strikes the proper balance in this area. The proposed defence mirrors similar defences that already exist elsewhere such as in Western Australia, New South Wales or the Commonwealth.

Criminal Law (Sentencing) Act 1988

The Bill makes minor amendments to the Criminal Law (Sentencing) Act 1988 to clarify who the applicable Minister is. The Act presently contains a number of references to the role and powers of a Minister. Such changes to the Act will assist in future machinery of government changes if the applicable Ministerial titles should change.

The Bill also effectively reinserts section 10(3a) of the Criminal Law (Sentencing) Act 1988, introduced by the Statutes Amendment (Serious Firearms offences) Act 2012, and unintentionally removed when the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 came into operation on 11 March 2013.

The provision ensures paramount consideration is given to the need for general and personal deterrence in sentencing, emphasising the need for public protection.

District Court Act 1991, Supreme Court Act 1935

Once the Statutes Amendment (Courts Efficiency Reforms) Act 2012 comes into effect, the Chief Magistrate will be taken to have been appointed as a judge of the District Court. The responsibilities and workload of the position of Chief Magistrate are such that the holder should be entitled to the status of a District Court Judge.

Consistent with the Statutes Amendment (Courts Efficiency Reforms) Act 2012, the District Court Act 1991 is amended to provide that a person appointed as the Chief Judge of the District Court will also be appointed as a Justice of the Supreme Court. As is the case with the Chief Magistrate, the responsibilities and workload of the position of Chief Judge are such that the holder is entitled to the status and conditions of a Justice of the Supreme Court. This will help ensure that the best candidates for this vital role are available. An existing Supreme Court judge might prove to be the most suitable candidate for the position of Chief Judge. Accordingly, the Bill allows a Justice of the Supreme Court to be assigned as the Chief Judge of the District Court.

During any such appointment, the Chief Judge, whilst enjoying concurrent appointment as both a Supreme Court judge and the Chief Judge, would not be able to perform any of the duties or exercise the functions of a judge of the Supreme Court, unless at the request of the Chief Justice. This provision will provide the courts with more flexibility (requiring appropriate specifications) in their approach to changing and allocating workloads between the courts.

The Bill also amends the District Court Act 1991 and the Supreme Court Act 1935 in response to concerns raised that there is no provision in either the District Court Act 1991 or the Supreme Court Act 1935 for an acting Chief Judge/Chief Justice in the event the office of the Chief Judge/Chief Justice become 'vacant'.

Currently, both Acts make provision for an acting Chief Judge/ Chief Justice only if the Chief Judge or Chief Justice are absent. The amendments moved extend this to circumstances where the offices of the Chief Judge and Chief Justice become vacant.

Supreme Court Act 1935, District Court Act 1991 and the Magistrates Court Act 1991

The Bill amends the Supreme Court Act 1935 to allow records of 100 years or older, held by the Supreme Court, open to public access. This change is in response to a request from the Friends of South Australia's Archives and will assist historical research. The Supreme Court Act 1935 currently restricts access to old Supreme Court records. Section 131 of the Act was amended in 1995, court material previously considered to be open access, now falls within the restricted terms outlined in section 131.

Due to storage problems in the Court, many Supreme Court records have been deposited in the State Records Office. Accordingly, whereas before a person could go to the State Records Office and inspect or copy the material at no cost, they now need to go to the Court and the records are recalled to the Court so an assessment can be made as to whether the records fall within the terms of section 131. It is understood that this process is onerous and involves transportation of what is often old and fragile documents.

For consistency, the Bill also amends the District Court Act 1991 and the Magistrates Court Act 1991.

Evidence Act 1929

The Bill also makes a minor change to the Evidence Act 1929 to allow the maintenance of audio visual records in electronic files to be dictated by the Rules of the court. This will ensure staff of the Courts Administration Authority can carry out the duties whilst adhering to the Rules of the relevant court.

Police (Complaints and Disciplinary Proceedings) Act 1985

The Bill makes several changes to the Police (Complaints and Disciplinary Proceedings) Act 1985. The first change relates to investigations undertaken by the Police Complaints Authority and clarifies their discretion to refuse to investigate a complaint at the outset and refuse to continue to investigate a complaint.

The second change is to s 19 of the Police (Complaints and Disciplinary Proceedings) Act 1985 to allow 'preliminary' investigations of complaints to be conducted. Preliminary investigations offer an effective tool for case management and are a beneficial means of obtaining important information to determine whether a complaint should be formally investigated in accordance with s 21. Both the Police Complaints Authority and SAPOL advise that this has been the established practice. However, the present Act does not strictly authorise preliminary investigations. There is a need to clarify this situation.

Finally, all references to the 'internal investigation branch' in the Police (Complaints and Disciplinary Proceedings) Act 1985 are updated to reflect the unit's current name of 'internal investigation section'.

Graffiti Control Act 2001

The Bill rectifies a minor oversight in the recent Graffiti (Control Miscellaneous) Act 2012 and replaces the term 'cans of spray paint' with the correct term, 'graffiti implements'. The Bill further clarifies the operation of s 7(5) of the Graffiti Control Act 2001 in respect of the proof of identity to be produced by an authorised person.

Summary Offences Act 1953

The Bill also amends s 67 of the Summary Offences Act and the Schedule of the Act to correctly refer to Schedule 1 of the Act.

Spent Convictions Act 2009

Finally, the Bill amends the Spent Convictions Act 2009 to rectify an error in an amendment brought about in the Spent Convictions (Miscellaneous) Amendment Act 2013 ('the Amendment Act'). This error would (once the Amendment Act commences) result in a court not being able to have access to a defendant's full criminal history. In particular, convictions where a sentencing court has ordered that no conviction be recorded.

It is vital that courts are aware that an offender has previously been given the benefit of no conviction being recorded, otherwise a court may make this choice in sentencing a second or third time without realising. Furthermore, in some cases a penalty is increased when the conviction is for a second offence. Again, the courts need to be aware if a person has previously committed an offence, regardless of whether a conviction was recorded or not.

The amendment rectifies this problem and ensures that where no conviction is recorded, the history will be disclosed in the circumstances set out in clauses 1, 3 and 4 of Schedule 1 to the Spent Convictions Act 2009. In practice, this will means that the Director of Public Prosecutions and South Australia Police will still be able to obtain the criminal histories for sentencing (under Clause 1) and provide them to the Court. The Court will also be entitled to use the criminal history in sentencing (under Clause 3) and once a sentence is completed then under Clause 4, the Parole Board will be able to consider the full criminal history in determining any release on parole.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Community Titles Act 1996

4—Amendment of section 37—Restrictions on the making of by-laws

The proposed amendments will prohibit the making of a by-law that would prevent an occupier with a disability from keeping an assistance animal or therapeutic animal on the lot or that would restrict the use of an assistance animal or therapeutic animal by the occupier if the animal is trained to assist the occupier in respect of the disability.

Part 3—Amendment of Criminal Law Consolidation Act 1935

5—Amendment of section 63C—Pornographic nature of material

The proposed amendments to section 63C would insert 2 new subsections that would provide that no offence is committed against Part 3 Division 11A (Child pornography and related offences) by reason of the production, dissemination or possession of material in good faith by a police officer or other law enforcement officer acting in the course of his or her duties or any other person acting in the course of his or her duties in the administration of the criminal justice system; or by reason of the production, dissemination or possession of material in good faith by a person acting reasonably for the purpose of providing genuine child protection or legal advice.

Part 4—Amendment of Criminal Law (Sentencing) Act 1988

6—Amendment of section 3—Interpretation

These amendments are of a technical nature and will assist in future machinery of government changes if ministerial titles were to change.

7—Amendment of section 10—Sentencing considerations

The proposed amendment is of a technical nature to reinsert former section 10(3)(a) of the Criminal Law (Sentencing) Act 1988, which was inserted by the Statutes Amendment (Serious Firearms Offences) Act 2012 but unintentionally deleted by the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012.

Part 5—Amendment of District Court Act 1991

8—Amendment of section 11—Chief Judge

This amendment is consequential on the insertion of section 11AA.

9—Insertion of section 11AA

New section 11AA is to be inserted after section 11 of the principal Act as the last section of Division 1 of Part 3.

11AA—Acting Chief Judge

New section 11AA provides that the Governor may appoint an Acting Chief Judge if the Chief Judge is absent or, for any reason, is unable for the time being to carry out the duties of the office, or if the office of the Chief Judge becomes vacant. Any power or duty attached to the office of Chief Judge devolves (during the absence or inability of the Chief Judge, or until the vacancy is filled) on the Acting Chief Judge, or, if no Acting Chief Judge is appointed, on the most senior of the other Judges available to undertake those responsibilities.

10—Insertion of section 11A

New section 11A is to be inserted before section 12 of the principal Act as the first section of Division 2 of Part 3.

11A—Appointment of Chief Judge

New section 11A provides that the Chief Judge is—

a Judge of the Supreme Court assigned by the Governor, by proclamation, to be the Chief Judge; or

a legal practitioner of at least 10 years standing or a District Court Judge appointed by the Governor to be the Chief Judge.

Certain provisions in new section 11A relate to a Judge of the Supreme Court assigned to be the Chief Judge. They include proposed subsection (2), which provides that before a Judge of the Supreme Court can be assigned to be the Chief Judge, the Attorney-General must consult with the Chief Justice of the Supreme Court about the proposed assignment. Furthermore, a Judge of the Supreme Court assigned to be the Chief Judge ceases to be the Chief Judge if the person ceases to be a Judge of the Supreme Court.

The remuneration and conditions of service of a Judge of the Supreme Court assigned to be the Chief Judge will be the same as if he or she had not been so assigned and his or her service as the Chief Judge will be regarded as if it were service as a Judge of the Supreme Court.

The Governor may, by proclamation, made at the request or with the consent of a Judge of the Supreme Court assigned to be the Chief Judge, revoke the assignment of that Judge.

New section 11A also makes provision in relation to a person appointed as the Chief Judge. A person so appointed will be taken to have been appointed as a Judge of the District Court (if he or she is not already a Judge of the District Court) and as a Judge of the Supreme Court of South Australia. The retirement, resignation or removal from office of such persons is provided for. Proposed subsection (10) makes particular provision in relation to the resignation of a person appointed as the Chief Judge from multiple offices.

Certain provisions relate to the office of Chief Judge generally. It is provided that the Chief Judge may not perform the duties, or exercise the powers, of a Judge of the Supreme Court, unless the Chief Justice of the Supreme Court, with the consent of the Chief Judge, assigns the Chief Judge to perform the duties and exercise the powers of a Judge of the Supreme Court for period determined by the Chief Justice.

In addition, the new section provides that the office of Judge of the Supreme Court is the primary judicial office of the Chief Judge.

11—Amendment of section 12—Appointment of other judicial officers

12—Amendment of section 13—Judicial remuneration

The amendments proposed to sections 12 and 13 are consequential on the insertion of new section 11A.

13—Amendment of section 54—Accessibility to Court records

The proposed amendments would allow a person to have access to Court material (specified in section 54) if 100 years have passed since the end of the calendar year in which the material became part of the Court's records. Section 26 of the State Records Act 1997 would apply to such records in the custody of State Records. Other records (for example, those still in the custody of the Court) would be accessible without the need to seek the permission of the Court.

Part 6—Amendment of Evidence Act 1929

14—Amendment of section 13C—Court's power to make audio visual record of evidence of vulnerable witnesses in criminal proceedings

The proposed amendments would allow the rules of court to regulate access to, and responsibility for, an audio visual record in the custody of the court. Currently, court officials are responsible for the custody of such records and access is restricted to those officials only.

Part 7—Amendment of Graffiti Control Act 2001

15—Amendment of section 7—Appointment and powers of authorised persons

The proposed amendment to section 7(2) is a technical amendment necessary to correct an omission in the Graffiti Control (Miscellaneous) Amendment Act 2013.

The proposed amendment to section 7(5) is a technical amendment that reflects the fact that an identity card only need be produced by a police officer who is not in uniform or an authorised person who is not a police officer.

Part 8—Amendment of Magistrates Court Act 1991

16—Amendment of section 51—Accessibility to Court records

This amendment keeps section 51 of this Act consistent with the equivalent provisions in the District Court Act 1991 and Supreme Court Act 1935.

Part 9—Amendment of Police (Complaints and Disciplinary Proceedings) Act 1985

17—Amendment of section 3—Interpretation

The proposed amendment will substitute the definition of internal investigation branch with Internal Investigation Section or IIS. This reflects the actual name of the section in SA Police.

18—Substitution of heading to Part 3

19—Amendment of section 13—Constitution of Internal Investigation Section

20—Consequential amendments to Act

The above amendments are consequential on the amendment to section 3.

21—Amendment of section 19—Action on complaint being made to Ombudsman

The proposed amendment would allow the Police Ombudsman to undertake a preliminary inquiry in relation to a complaint.

22—Amendment of section 21—Determination by Ombudsman that investigation not warranted

The proposed amendment would permit the Police Ombudsman to refuse to entertain, or continue to investigate, a complaint on certain grounds, such as if the complaint is trivial, frivolous, vexatious or not made in good faith, or if the complainant lacks sufficient standing to make the complaint, or if the investigation or continuance of the investigation of the complaint is unnecessary or unjustifiable.

Part 10—Amendment of Spent Convictions Act 2009

23—Amendment of section 13—Exclusions

These amendments are of a technical nature connected to the Spent Convictions (Miscellaneous) Amendment Act 2013. The amendments to section 13 by that Act would result in justice agencies, designated judicial authorities and the Parole Board not being able to access findings treated as a conviction under section 3(5) of the Spent Convictions Act 2009 but where no conviction is recorded. The amendments in the Bill would enable those agencies and authorities to have access to such information on an offender's criminal history.

Part 11—Amendment of Strata Titles Act 1988

24—Amendment of section 3—Interpretation

These amendments are consequential on the proposed amendment to section 19.

25—Amendment of section 19—Articles of strata corporation

The proposed amendments are consistent with the proposed amendments to the Community Titles Act 1996 and also incorporate what is currently in section 37 of that Act in relation to visitors. The proposed amendments to section 19(5) are drafted on the assumption that section 49 of the Statutes Amendment (Community and Strata Titles) Bill 2012 will come into operation before this measure.

Part 12—Amendment of Summary Offences Act 1953

26—Amendment of section 67—General search warrants

27—Substitution of heading to Schedule

These amendments are of a technical and clerical nature only and make no substantive change.

Part 13—Amendment of Supreme Court Act 1935

28—Substitution of section 10

This clause substitutes section 10.

10—Acting Chief Justice

Substituted section 10 provides that the Governor may appoint a puisne judge of the court to be the Acting Chief Justice if the Chief Justice is absent or, for any reason, is unable for the time being to carry out the duties of the office, or if the office of the Chief Justice becomes vacant. Any power or duty attached to the office of Chief Justice devolves (during the absence or inability of the Chief Justice, or until the vacancy is filled) on the Acting Chief Justice, or, if no Acting Chief Justice is appointed, on the most senior of the puisne judges available to undertake those responsibilities.

29—Amendment of section 131—Accessibility to court records

This amendment keeps section 51 of this Act consistent with the equivalent provisions in the District Court Act 1991 and Magistrates Court Act 1991.

Debate adjourned on motion of Hon. S.G. Wade.

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