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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-11-20 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2014.)

The Hon. A.L. McLACHLAN (17:02): I rise to speak to the Statutes Amendment (Attorney-General's Portfolio) Bill. The bill was introduced by the Attorney-General on 23 September 2014 to remedy minor errors, omissions and other deficiencies identified in various acts within the Attorney-General's portfolio. There are some uncontroversial elements of the bill, which I will speak on first. The first of these are amendments to the Burial and Cremation Act 2013.

Under the current act there is an obligation for two doctors to certify the death of a person before a cremation permit can be issued. It is a requirement that one of these doctors is the deceased's treating doctor immediately prior to death. The proposed amendments will permit that, when the treating doctor is unavailable, the death certificate can be signed by a medical practitioner who has examined the body after the deceased's death. The opposition takes no issue with this amendment and will support the same.

Secondly, there is a proposed amendment to the Criminal Law Consolidation Act to amend the description of child pornography to 'child exploitation material'. I commend this amendment, as it gives it a more contemporary description and more accurately reflects the true nature and gravity of such abhorrent material. This amendment will also accord the terminology to that which is used in most other jurisdictions in Australia. The opposition supports this amendment.

Thirdly, there is the amendment to the Criminal Law (Sentencing) Act 1988. The current sentencing regime permits a sentence reduction to be granted to an offender who cooperates with the police or other law enforcement agencies. The bill before us proposes to extend this to permit the resentencing of an offender when they cooperate with police or other law enforcement agencies after they have been sentenced.

I note that the bill provides that the law that applied at the date of the offending will prevail for the resentencing, and that the sentencing principles applicable at the time will be invoked. We should bear in mind, when considering this amendment, that cooperation with law enforcement agencies enhances the possibility of catching someone who might otherwise have eluded the police and who might be more culpable or deserving of punishment. The opposition will support this amendment.

The bill also introduces amendments to the Legal Practitioners Act 1981 making it mandatory for the Supreme Court to notify interstate regulatory authorities of any suspensions of a legal practitioner. This amendment is straightforward, sensible and one which the opposition supports.

I now turn to the more controversial elements of the bill which the opposition opposes. First, there is the amendment to the Magistrates Act to make provision for the appointment of the Acting Chief Magistrate, in the event that the Chief Magistrate is absent or unable to carry out his or her duties. Pursuant to section 7(2) of the current legislation, if the Chief Magistrate is absent from his or her duties then the Deputy Chief Magistrate assumes those duties of office.

It is due to this provision that the current Deputy Chief Magistrate, Dr Andrew Cannon, has assumed the role of Acting Chief Magistrate while the current Chief Magistrate is on leave. The bill, however, seeks to amend this current practice such that the Governor will appoint the magistrate who is to assume the role of the Acting Chief Magistrate. The government has said that the aim of this amendment is to bring certainty to the Magistrates Court hierarchy in the event of a prolonged absence of the Chief Magistrate.

Further, the government stated than in 2013 the District Court Act and the Supreme Court Act were amended to provide for the appointment of an Acting Chief Judge or Acting Chief Justice respectively. I note that the District Court Act and the Supreme Court Act had previously been silent on this issue and so it was both desirable and sensible for the government to bring to parliament the amendments to those specific acts.

It is important when considering this amendment, however, to note that the arrangements for the appointment and dismissal of magistrates are different to those for judicial officers of the District Court and Supreme Court as are, indeed, their salary entitlements. It is also important to note that, unlike the District and Supreme Courts, the Magistrates Court already has procedures in place for the appointment of an Acting Chief.

On this particular issue I echo the comments and concerns made by the Deputy Leader of the Opposition, the member for Bragg, in the other place, firstly in respect of the importance of judicial independence in our state. Furthermore, in respect of Dr Andrew Cannon (who is the Deputy Chief Magistrate and has been in that office for a number of years), he has undertaken the role of Acting Chief for months at a time and is highly regarded in the community.

When considering this amendment, members should also be aware that in recent times the government attempted to remove Dr Cannon from his position a few months before he was to turn 65 by introducing a bill reducing the compulsory retirement age for magistrates from 70 to 65. Ultimately, it was not pursued by the Attorney-General; however, it is important to bear this in mind when considering this amendment.

The government has not indicated at any stage that Dr Cannon is unable to carry out his office, and the Attorney-General has indicated in his response in the other place that he has no complaints about the way he is discharging his duty. Therefore, to the opposition, there seems to be an absence of any real justification for this amendment. The opposition remains unconvinced and will not support this amendment.

The other amendment that I indicate the opposition will oppose is with respect to the Summary Offences Act. This proposed amendment seeks to give the minister the power to temporarily exempt a class of persons from the offence of possessing, using, manufacturing, selling, distributing, supplying or otherwise dealing in a prohibited weapon. The current act allows for certain organisations, such as the Freemasons or Scottish historical groups, to have possession or put on display weapons that would otherwise be prohibited for use, in certain activities such as a march or a parade.

Under the current regime, organisations such as those can apply for an exemption when there is a special occasion. It then goes out for consultation to the police and other stakeholders. The government states however that the amendment is required to provide for a class of exemptions on an urgent or limited basis. The responses provided by the government to date have failed to disclose any real justification or example for these exemptions to be granted or for such an expanded power to be given to the minister.

Apart from using the example of a festival or historical hobby group to participate in the re-enactment of battles, no substantial information has been forthcoming from the government, particularly as to why the minister should have the power to temporarily exempt a class of persons and permit them, for example, to manufacture a prohibited weapon. We believe that the police and other stakeholders should have the opportunity to have a say when it comes to the safety of the community, as is the case under the current regime. This concludes the comments from the opposition and we look forward to the committee stage.

The Hon. M.C. PARNELL (17:09): I rise to speak on the Statutes Amendment (Attorney-General's Portfolio) Bill 2014, and to advise the council that generally the Greens are supportive of this bill. However, there is one part of the bill that we will not be supporting, and that is part 7.

The Greens have always, in this place, supported the principles of judicial independence and secure tenure for our judges and magistrates. What this bill proposes is to alter the current practice of filling a casual vacancy in the office of the Chief Magistrate by his or her deputy. The change proposed in this bill is that the government would effectively choose a replacement, choose someone to be acting in the position of Chief Magistrate, rather than the position automatically going to the deputy.

That might appear to be a fairly uncontentious, non-controversial measure. The government has said that it is consistent with the approach taken in other courts and other jurisdictions, but what muddies the waters incredibly here is the fact that current Deputy Chief Magistrate, Dr Andrew Cannon, has had a very public and very expensive feud with a former government minister. Members will recall that a former attorney-general described him, or at least a position he had taken, as 'daft and delusional'.

The consequence of the former attorney using those words was at some expense to the taxpayer. According to media reports, the amount of taxpayer-funded compensation for that defamation was something in the order of $200,000 so it is no surprise that Dr Cannon, the Deputy Chief Magistrate of South Australia, is probably not on the Christmas card list of the former attorney-general. So when a bill comes forward that has, as its effect, making it possible for that particular Deputy Chief Magistrate to not sit in the chief's chair, you have to smell a rat.

Government staffers, who have briefed me on this bill, assure me that this has nothing to do with the current incumbent in the Deputy Chief Magistrate position; it is nothing to do with that, it is purely coincidental, they say. For mine, I do not believe them. I do not believe there is no connection and I do not believe that this particular part of this bill is necessary because, as the Hon. Andrew McLachlan said, there is already a process in place for filling the casual vacancy, and that is that the deputy steps up. In most organisations that is what happens; when the top person is away the deputy steps up. We can see no reason why that situation should be altered.

In relation to other parts of the bill, at this stage the Greens will be supporting them, but we have not yet considered the proposed Liberal amendment relating to a change to the rules around temporary exemption of certain weapons. We will have a look at those amendments and make a decision on their merits. For now, the Greens are happy to support the remainder of this bill, but we will be moving to delete part 7.

Debate adjourned on motion of Hon. J.M. Gazzola.

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