Statutes Amendment (Attorney-General's Portfolio) Bill

Second 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) (16:46): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

From time to time minor errors, omissions and other deficiencies are identified in legislation that are more efficiently dealt with in a single omnibus Bill than in separate Bills for each Act. It is timely to now introduce a further such Attorney-General's Portfolio Bill.

The deficiencies proposed to be dealt with in this Bill are as follows:

1) Burial and Cremation Act 2013—signing of death certificates

During discussions with the Registrar of Births, Deaths and Marriages about the creation of new forms required under the Burial and Cremation Act 2013 and the implementation of the legislation, it was discovered that there was an issue with section 10(5)(b)(i) of the Act. Under the previous Cremation Act, the Registrar could not issue a cremation permit unless the application was accompanied by certificates from two doctors (one of whom was responsible for the deceased's medical care immediately before death or examined the body of the deceased after death); or a certificate from a doctor who completed a post mortem certifying that the deceased died from natural causes; or an authorisation to dispose issued by the Coroner.

The wording of section 10(5)(b)(i) in the current Act states, in relation to the certificates from two doctors, that one of the certificates must be signed by a medical practitioner who was responsible for the deceased's medical care immediately before death with the other certificate being signed by another medical practitioner. This would have created practical problems for the Registrar in relation to the issuing of a cremation permit if the treating doctor is unavailable as the Registrar would have to issue the cremation permit under section 10(6)(b) but would only be able to do so if satisfied that the death had been registered and that there is good reason why the documents required by subsection (5) cannot be produced, for example, if the treating doctor was away overseas. This would also impact on the person applying for the cremation permit as the cost of a permit issued under section 10(6)(b) is double that of the regular cremation permit. It may also result in a delay in the permit being issued.

To address this issue in the short-term, until an amendment to the Act could be made, a regulation was included in the Burial and Cremation Regulations 2014. Regulation 8 provides that where the medical practitioner who was responsible for the deceased's medical care before death is unavailable, the certificate may be signed by a medical practitioner who examined the body of the deceased after death. However, this matter is better dealt with in the Act and the Bill amends the Act to that effect.

2) Criminal Law Consolidation Act 1935—'child exploitation material'

The term 'child pornography' in the Criminal Law Consolidation Act (CLCA) has come under increasing criticism over recent years. Leading academics such as Professor Kate Warner and Dr Jeremy Prichard at the University of Tasmania rightly argue that the term is not only inappropriate, but is positively unhelpful, as it fails to reflect and even obscures the true nature and gravity of such material.

NSW, for example, discarded the term 'child pornography' in 2010. The NSW Premier commented: 'The Government supports this change in terminology. Child pornography is a form of child abuse and the community and the Government will not tolerate predators who engage in this type of behaviour.' The Chief Judge has expressed similar views based on his wide sentencing experience in this area.

It is proposed to amend the CLCA (and make consequential amendment to the Child Sex Offenders Registration Act 2006) to change the term 'child pornography' to 'child exploitation material' to more accurately reflect the true nature and gravity of such material. This change will accord the terminology to that which is used in most other jurisdictions and is widely used in operational practice. It will also support the operation of s 10(2)(c) of the Criminal Law (Sentencing) Act 1988 that in determining the sentence for an offence, a court 'must give proper effect …in the case of an offence involving the sexual exploitation of a child, to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.'

This amendment changes terminology only. It will not change the definition of such material or the scope of the offence.

3) Criminal Law (Sentencing) Act 1988—applicable law for re-sentencing for subsequent cooperation with law enforcement agency

Senior echelons in the South Australian Police and the Office of the DPP have brought to the attention of the Attorney-General the fact that there is an ambiguity in s 29E of the Criminal Law (Sentencing) Act 1988. Section 29E was enacted by the Statutes Amendment (Serious and Organised Crime) Act 2012 and deals with the ability for an offender who is currently serving a sentence of imprisonment to apply to the court that imposed the sentence to re-sentence him or her to take into account the offender's cooperation with law enforcement or other authorities after the sentence was imposed. The policy behind the section is clear and obvious—to provide strong encouragement to those who find themselves in the harsh environs of prison to do what they should have done before and provide co-operation with the authorities in their investigation of crime committed by others, whether they be the crime for which the offender was sentenced or any other crime.

The effect of the provision is clearly expressed as a 're-sentence'. Here is the ambiguity. Does the court sentence the offender again according to the legal principles and regime under which he or she was originally sentenced in the past, or does the court start with a clean slate and re-sentence according to the legal principles and regime pertaining at the time of re-sentence? This question is given particular piquancy by the sentencing regime applicable to crimes of murder. There is now a 20 year minimum non-parole period for murder (subject, it is true, to exceptional circumstances that include cooperation). Suppose the offender was sentenced for murder before the 20 year minimum came into effect and received, say, 18 years non-parole. If the offender is to be re-sentenced according to the law then pertaining, he or she is looking at a substantial discount on the 18 years. But if it's a clean slate, the offender will be arguing for exceptional circumstances on a 20 year minimum.

The policy of the law is clear. The principle is and should be that the offender should be sentenced—and re-sentenced—according to the law and principles applicable at the time of the commission of the offence. The section is being redrafted to remove the ambiguity and make that clear.

4) Legal Practitioners Act 1981—notify of section 52AA(2) suspensions

Section 52AA of the Legal Practitioners Act 1981 deals with professional indemnity insurance requirements of interstate legal practitioners and provides for suspension for failure to comply with those requirements. Section 52AA(4) requires the Supreme Court to give notice of suspensions under subsection 52AA(3) (of an incorporated legal practice) to interstate regulatory authorities. This provision should be amended to also refer to subsection (2) so that the Court is required to notify interstate regulatory authorities of suspensions of an interstate legal practitioner under that subsection. Although it is likely that the Court would give notice of such suspensions in any event, the provision should be amended to ensure that it is clear that they should do so.

5) Magistrates Act 1983—Acting Chief Magistrate

The aim of this proposal is to bring certainty to the Magistrates Court hierarchy in the prolonged absence of the Chief Magistrate.

In 2013 the District Court Act and Supreme Court Act were amended to provide for the appointment of an Acting Chief Justice or Acting Chief Judge, respectively when the office of Chief becomes vacant.

Prior to that, a convention existed where the most senior judge available would take on the role and responsibilities of the Chief Justice or Chief Judge. Those recent amendments have provided certainty in times where a Chief Justice or Chief Judge is absent for extended periods of time.

At the time those changes were made, equivalent changes were not made to the Magistrates Act to provide for appointment of an Acting Chief Magistrate. Section 7 of the Magistrates Act contains the following provisions that allow the Deputy Chief Magistrate to exercise the powers and functions of the Chief Magistrate in the absence of the Chief Magistrate:

(2) The Deputy Chief Magistrate may, if the office of Chief Magistrate is vacant, or the Chief Magistrate is absent or unavailable to carry out the duties of the office, exercise any of the powers or functions of the Chief Magistrate.

In the Government's view, this provision is adequate for certain short term absences, that is, where the Chief Magistrate may be absent from duty for a specified and limited period of time. However, to provide more certainty in circumstances where the absence of the Chief Magistrate may be indeterminable, it would be prudent to insert in the Magistrates Act an equivalent provision to section 10 of the Supreme Court Act and section 11AA of the District Court Act for the appointment of an Acting Chief Magistrate if the Chief Magistrate is absent or, for any reason, is unable for the time being to carry out the duties of the office.

It may be that the most appropriate appointment to act in the position of Chief Magistrate will be the Deputy Chief Magistrate. However, this will depend on a number of factors, including the workload in the Magistrates Court and the resources available.

6) Summary Offences Act 1953—temporary prohibited weapons class exemptions

The Bill amends section 21F of the Summary Offences Act 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.

This amendment addresses a concern that there is no power in the Act to provide class exemptions on an urgent and limited basis. Although Schedule 2 of the Act contains a number of class exemptions, there may be circumstances that arise in the future that are not covered by these exemptions, such as a festival or an event. At present, if such a situation arises a regulation would need to be made to include a new class exemption. This amendment will give the Minister the power to quickly exempt a class of persons via notice in the Gazette from the offence for a period of up to 1 month to cover those situations where a permanent exemption is unnecessary or where an exemption is needed urgently and it is appropriate to grant a temporary exemption while the permanent exemption regulation is being prepared.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause is formal.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Burial and Cremation Act 2013

4—Amendment of section 10—Cremation permits

Section 10(5) provides the certification requirements before the Registrar of Births, Deaths and Marriages can issue a cremation permit. Section 10(5)(b)(i) provides that in the case of certifying that the deceased died from natural causes, 1 certificate must be signed by the medical practitioner who was responsible for the deceased's medical care immediately before death. This clause amends section 10(5)(b)(i) to provide that a medical practitioner who has examined the body of the deceased after death may also provide 1 of the certificates certifying that the deceased died from natural causes.

Part 3—Amendment of Child Sex Offenders Registration Act 2006

5—Amendment of Schedule 1—Class 1 and 2 offences

The amendment replaces the term child pornography with child exploitation material.

Part 4—Amendment of Criminal Law Consolidation Act 1935

6—Amendment of heading to Part 3 Division 11A

This amendment replaces the term child pornography with child exploitation material.

7—Amendment of section 62—Interpretation

This clause makes consequential amendments on replacing the term child pornography with child exploitation material. The amendments in subclauses (1) and (3) replace the term child pornography with child exploitation material. Subclause (2) amends the definition of child exploitation material to include a reference to material that is of a pornographic nature. The amendment in subclause (4) amends the definition of pornographic nature to include material intended or apparently intended to excite or gratify sexual interest or to excite or gratify a sadistic or other perverted interest in violence or cruelty. This part of the definition was previously included in the definition of child pornography.

8—Amendment of section 63—Production or dissemination of child exploitation material

This amendment replaces the term child pornography with child exploitation material.

9—Amendment of section 63A—Possession of child exploitation material

The amendment in subclause (1) replaces the term child pornography with child exploitation material. The amendment in subclause (2) inserts a reference to offences involving child exploitation material.

10—Amendment of section 63C—Material to which Division relates

This amendment is consequential on replacing the term child pornography with child exploitation material.

Part 5—Amendment of Criminal Law (Sentencing) Act 1988

11—Amendment of section 29E—Re-sentencing for subsequent cooperation with law enforcement agency

This clause amends section 29E to make it clear that a re-sentencing under the section is to be done in accordance with the law as at the time of the original sentence. The new provision applies to an application under section 29E, whether made or determined before or after the commencement of the amendment.

Part 6—Amendment of Legal Practitioners Act 1981

12—Amendment of section 52AA—Professional indemnity insurance required by interstate practitioners etc

Section 52AA(4) of the Act currently only refers to the Supreme Court giving notice of a suspension of a legal practitioner's right to practice as provided under subsection (3), but does not refer to the suspension of a right to practice of an interstate legal practitioner under subsection (2). This amendment removes the reference to subsection (3) and substitutes a reference to requires the Supreme Court to give notice of a suspension under either subsection.

Part 7—Amendment of Magistrates Act 1983

13—Insertion of section 6B

This clause inserts a new section.

6B—Acting Chief Magistrate

The new section provides for the Governor to appoint an Acting Chief Magistrate if the Chief Magistrate is absent or for any reason is unable to carry out the duties of the office, or if the office of the Chief Magistrate becomes vacant.

14—Amendment of section 7—Administration of magistracy

This amendment removes the provision providing that the Deputy Chief Magistrate may, if the Chief Magistrate is absent or unavailable to carry out the duties of the office, exercise any of the powers or functions of the Chief Magistrate. An Acting Chief Magistrate appointed by the Governor is to exercises these powers as provided in proposed section 6B.

Part 8—Amendment of Summary Offences Act 1953

15—Amendment of section 21F—Prohibited weapons

Subclause (1) amends section 21F(3) to give the Minister power to declare a class of persons to be exempt from the offences in section 21F(1). The amendment in subclause (2) is consequential on the insertion of proposed subsection (4b). Subclause (3) inserts new subsections (4a) and (4b). Proposed subsection (4a) provides that a declaration made by the Minister in respect of a class of persons must be notified in the Gazette, only has effect for the period specified in the declaration (being a period not exceeding 1 month) and has effect despite provisions in Schedule 2, which contains a list of exempt persons of a class for the purposes of an offence against section 21F(1). Proposed subsection (4b) provides that a variation or revocation of a declaration under subsection (3) is of no effect unless, in the case of a person, the person has been given notice of the variation or revocation, or in the case of a variation or revocation in respect of a class of persons, it has been notified in the Gazette.

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