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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-12-03 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 November 2014.)

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (11:59): There are no further second reading contributions. By way of summing up, I thank members for their second reading contributions. Members have raised concerns about part 7 of the bill, which deals with the appointment of an acting chief magistrate during the prolonged absence of the chief magistrate.

The government wishes to take this opportunity to clarify the effect of amendments made in 2013 by the Statutes Amendment (Attorney-General's Portfolio) (No. 2) Act 2013 to both the District Court Act and the Supreme Court Act. Those amendments were in response to concerns that there was no provision in either act to allow the appointment of an acting chief judge or acting chief justice in the event either the office of chief judge or chief justice became vacant.

Before that there was a convention that the senior judge or justice would act as the acting chief judge or acting chief justice, but that arrangement was uncertain and ill-suited for prolonged absences where the senior judge or justice was unwilling or unable to act as the chief judge or chief justice.

The 2013 amendments left an omission in the Magistrates Act of 1983. For consistency the relevant clause in this bill will replicate in the Magistrates Act 1983 a provision in identical terms as those provisions inserted into the District Court Act 1991 and the Supreme Court Act 1935 in 2013.

The amendment deals with the situation where there is a prolonged absence of the chief magistrate or where the office becomes vacant. The deputy chief magistrate may well be the acting chief magistrate in such circumstances. It may be either that she is unable or unwilling to act as chief magistrate or may be affected by other factors, such as workload or resources.

Finally, the bill amends the prohibited weapons provision in the Summary Offences Act 1953 by extending the current capacity of the Attorney-General to exempt persons from the prohibited weapons provision. The amendment will allow the Attorney-General to exempt a class of persons for a period of up to one month. This would allow for the Attorney to grant an exemption for a one-off event where it was uncertain whether the event was covered by an existing exemption or whilst a permanent exemption is being made for the event or activity under the act.

On that point, the Attorney-General in the other place undertook to provide the opposition with details of the group that had approached him with respect to the prohibited offences exemption. He also undertook to obtain information on the exemption applications received by him to date under the existing exemption provisions. It should be noted that in practice it has been SAPOL that has dealt with the prohibited weapons exemption under the Summary Offences Act 1953 pursuant to a delegation provided for in the legislation.

The requested information was therefore sought from SAPOL. SAPOL has advised that the re-enactment group the Attorney spoke about in the other place is called Re-enact SA, a World War II re-enactment group who promote historical re-enactments in South Australia through the use of pyrotechnics, blank firing, firearm replicas and associated props, including bayonets.

On the question of exemption applications, the Attorney-General has received one exemption application and although this application was resolved without need for an exemption, the case highlighted the lack of ability to exempt a class of persons and gave rise to this amendment. SAPOL advises:

SAPOL has directly received, through police stations, a number of exemption applications. Most are related to martial arts. One relates to entertainment and five to collectors/collections. Some have been resolved as they are covered by Schedule 2 with the applicants advised accordingly.

In its contributions, in both this and the other place, the opposition has referred to the existing regime for individual prohibited weapons exemptions, specifically that the process involves consultation with the police. The government's amendments would extend the same regime to temporary class exemptions, that is, the same requirement to consult the commissioner for police in section 21F(6) of the act will apply to temporary class exemptions as currently applies to individual exemptions. Again, I thank members for their contributions during the second reading stage of this bill and commend the bill to you.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: The minister kindly mentioned in her summing up, if I understood her correctly, that the Attorney had received queries in relation to one event that might be covered by the legislation, if the amendments are made in relation to weapons. I was wondering if the minister might be able to explain the nature of that event.

The Hon. G.E. GAGO: I am just clarifying the question—you want to know more about the Re-enact SA World War II group?

The Hon. S.G. WADE: Sorry, I might have missed a part of the presentation. This is a clause for temporary events. I thought you said that the need for this clause was identified by a particular event. It is that event, is it, the event you just named?

The Hon. G.E. GAGO: I have been advised that the one exemption application received was from a group of officials who were thought not to have been covered by schedule 2, but when it was looked at it in more detail it was discovered that they were in fact covered by schedule 2, so they would not require an exemption.

The Hon. A.L. McLACHLAN: Could the minister give some clarity around why the period of one month was chosen, given that I suspect these re-enactments are more a day, or one or two days?

The Hon. G.E. GAGO: The short answer is that there are two types of events that this is aimed at covering. One is a once-off event; it might be a day or a week, but we might not need a full month. The second is where it is an ongoing event and it is appropriate that the event continues whilst a request for a permanent exemption is processed. The advice I have received is that that would probably take a month to make a regulation to provide a permanent exemption.

The Hon. A.L. McLACHLAN: Just another point of clarification: when the exemption is given, is the minister able to exempt only certain activities? For example, the Summary Offences Act permits possessing, using, manufacturing and selling; can the minister give an exemption, for example, on possessing only, rather than on manufacturing?

The Hon. G.E. GAGO: I am advised that under section 21F(4) 'The declaration by the minister under subsection (3) may be conditional or unconditional.' So it could be conditional around the element of possession that, I think, was cited.

Clause passed.

Clauses 2 to12 passed.

Clause 13.

The CHAIR: We have an amendment proposed by the Hon. Andrew McLachlan.

The Hon. M.C. PARNELL: My amendment is exactly the same.

The CHAIR: It is the same? Alright; the Hon. Mr Parnell.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 5, lines 1 to 23—'Delete Clauses 13 and 14'

I am sorry if there is confusion, but I understood that my amendments had been distributed on 18 November . In any event, they are identical to those of the Hon. Andrew McLachlan and no doubt we will both speak to them. They are identical, so I do not think there is a problem.

As I said in my second reading contribution, the Greens are proposing to delete these two clauses, 13 and 14, which relate to the appointment of an acting chief magistrate. These clauses are alternative to the status quo, which is that the deputy chief magistrate would step in and fill that role in the absence of the chief magistrate. I understand that the government's position is that these clauses would provide for consistency in the approach between the appointments to this position that also apply in the District Court and the Supreme Court.

I also understand that the government has made it very clear, from its perspective, that there is no relationship at all between this clause and the legal dispute between the former attorney-general and the deputy chief magistrate, whereby the deputy sued the former attorney for defamation. According to media reports he was successful and taxpayers are now some $300,000 the poorer as a result of the former attorney-general's loose lips.

We are assured that there is no relationship between that legal action and this move, which would have the effect of making sure that the current deputy chief magistrate does not act in the position of chief magistrate during the absence of the incumbent. I did say in my second reading contribution that I did not believe that particular analysis. I want to make it clear that I was not not believing what the officers told me they believed was the situation, I just do not believe that, for the government, this is not payback for Deputy Chief Magistrate Andrew Cannon.

The Hon. S.G. Wade interjecting:

The Hon. M.C. PARNELL: The Hon. Stephen Wade interjects that I am being cynical. What I can say is that certainly the word on the street, meaning King William Street in front of the Sir Samuel Way Building, the word is that that is how most members of the legal profession are seeing this. My invitation to the government would be that if they say it has nothing to do with the incumbents, then let us come back in a couple of years' time when perhaps Deputy Chief Magistrate Cannon has retired and we might consider the amendments then in the absence of any confusion surrounding the personalities involved, but for the present the Greens' proposal is that we oppose clauses 13 and 14.

As I have said, the Liberal Party, as I understand it, has exactly the same provision and I understand that other members of the crossbench are supportive as well. So, I do not need to go on any more about it. I think the remainder of the bill can probably stand. We will have a look at clause 15 when we get to that, but the remainder of the bill can stand and go through. No great harm is done by the removal of these two clauses, which really should have no work to do because there is currently a provision in the statute books for the replacement of the chief magistrate and that is the provision that the Greens would like to see continue until we come back perhaps and look at this in some years' time.

The Hon. G.E. GAGO: There was a deep level of cynicism running through some of those comments that I was disappointed to hear. The Attorney-General has made it quite clear that he has refuted those claims that this provision is any form of payback and he is on the record as clearly addressing those things. I am disappointed the Hon. Mark Parnell has resorted to listening to rumours and gossip on the street. He usually rises above that sort of gossip, but obviously he is tired and worn out today.

Nevertheless, the government rises to oppose this amendment. The amendment would delete part 7 of the bill, which amends the Magistrates Act to provide for the appointment of an acting chief magistrate, consistent with the provisions for appointing an acting chief justice or an acting chief judge. The government notes that the opposition opposes these provisions, and the Hon. Mark Parnell, as they would relate to the office of chief magistrate. However, the government maintains that the amendments are required, consistent with the Supreme Court Act and District Court Act, to address the circumstances where the deputy chief magistrate may be unable or unwilling to act for a prolonged term as acting chief magistrate.

The deputy chief magistrate may well be the best person to be the acting chief magistrate in such circumstances, but it may be that either he or she is unable or unwilling to act as the acting chief magistrate, or other factors, as I said, such as workload or resources mitigate against the appointment of a deputy to act. For these reasons, a provision consistent with that for the acting chief justice or the acting chief judge is required. However, we are obviously very keen to see this bill passed in this current session of parliament and therefore we will not be insisting, if the council does accept the amendment.

The Hon. A.L. McLACHLAN: I should formally put on the record the Liberal Party's opposition to this amendment. I will not re-articulate much of what I said in my second reading contribution. We are not convinced by the need for this amendment, in particular, in relation to the arguments around consistency. The Magistrates Court and the acts relating to the Magistrates Court are very different in many aspects to the District Court and the Supreme Court, so we remain unconvinced and will be opposing this part of the bill.

Clause negatived.

Clause 14 negatived.

Remaining clause (15) and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (12:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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