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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-11-07 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 September 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:57): I rise to indicate that I am the lead speaker and have conduct of this bill on behalf of the opposition and that the opposition is generally supportive of this bill. However, we have filed an amendment to this bill and, as we flagged with the Attorney-General, there are a couple of sections of the bill that we will be opposing.

This bill is mostly of a technical nature and fixes drafting errors or inadvertent previous mistakes. As I said earlier, we are generally supportive of the bill. The two clauses of the bill that we will not be supporting—and we will not be dying in ditch over these—are clauses 9 and 11 of the bill, which establish the review agency as the reviewer. The case at the moment is that they are the same person under schedule 4 of the ICAC Act and also the Surveillance Devices Act and Telecommunications (Interception) Act.

The Attorney-General's Department in briefings have put forward the argument that the two people who are appointed to these positions have so far been the same person; that is, the Hon. Kevin Duggan AM QC. For administrative ease, it would be easier to have them appointed by the one instrument rather than appointed by two instruments, for convenience sake. We have not come up with a scenario, and the Attorney-General's Department has not been able to rule out a possibility where there could be benefit in having those respective reviewers being separate people.

On the basis that the argument for having these clauses in the bill is that they will save 30 seconds and two pieces of paper, we will be opposing them. As I said, we have not been able to rule out, and the department has not been able to rule out, an instance where potentially there might be a reason to have two different people in those positions, and if that came up we might regret having made the case that it has to be the same person for those two positions. On that basis, we will be opposing clauses 9 and 11.

I think we have filed an amendment relating to the annual report of the Training Centre Review Board. The amendment is very simple, requiring a report for 2017-18. I understand from discussions that the government supports the opposition's amendment. I also note the Treasurer has filed an amendment on behalf of the Attorney-General about the Liquor Licensing Act, which expands the class of person who can request evidence of the age of a patron. We have had consultation with the Australian Hotels Association, which is of the view that this amendment is beneficial and will aid in the administration of that act. Therefore, the Labor Party will be supporting the government's amendment on that point.

The Hon. R.I. LUCAS (Treasurer) (18:00): I thank the Leader of the Opposition for his indication of support for the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I would be happy for the Treasurer to take these questions on notice and provide a response. What consultation was conducted on this bill? Is it possible to table or respond to, on notice, the submissions that were made? If not, can the Treasurer take on notice the general nature of those consultations and submissions?

The Hon. R.I. LUCAS: I can answer the first question. I will take the remaining questions about the nature of the response on notice, and the Attorney-General will correspond with the leader. In terms of who was consulted, it was the ICAC, the schedule 4 review of the ICAC Act, the Hon. Kevin Duggan, SA Police, chief magistrates, the senior judge of the Youth Court (who is also the presiding member of the Training Centre Review Board), the Liquor and Gambling Commissioner, the Department of Human Services, the Department for Correctional Services, SACAT, the Fines Enforcement and Recovery Unit, the Law Society of South Australia and the Guardian for Children and Young People. In relation to the nature of the feedback, I will take that on notice, and the Attorney-General will correspond with the leader.

Clause passed.

Clauses 2 to 6 passed.

New clause 6A.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

New clause, page 3, after line 36—Insert:

6A—Amendment of section 115—Evidence of age may be required

Section 115(3), definition of prescribed person, (c) and (d)—delete paragraphs (c) and (d) and substitute:

(c) in relation to regulated premises—the occupier or manager of the premises or an agent or employee of the occupier, including—

(i) a licensee of licensed premises; or

(ii) a responsible person for licensed premises; or

(iii) a person who holds a security agent's licence that authorises the person to perform the function of controlling crowds on licensed premises under the Security and Investigation Industry Act 1995.

The government's explanation for this is as follows. Last year, parliament passed the Liquor Licensing (Liquor Review) Amendment Act 2017, which amended the Liquor Licensing Act 1997. Section 78 of the Liquor Licensing (Liquor Review) Amendment Act 2017 commenced on 24 September 2018. Prior to the commencement of section 78 of the Liquor Licensing (Liquor Review) Amendment Act 2017, section 115 of the Liquor Licensing Act 1997 had the effect that certain prescribed persons—i.e. an inspector, a police officer, the occupier or manager of licensed and other regulated premises, and an agent or employee of the occupier—could require a person to provide proof of their age.

That section made it an offence to fail, without reasonable excuse, to comply with such a requirement, or to make a false statement or produce false evidence in response to such a requirement. Section 115 has been amended with effect from 24 September 2018. Relevantly, section 115 now no longer refers to an agent or employee of the occupier of a licensed premises as being a 'prescribed person' for the purposes of that provision. This means that, while such agents or employees can still ask a person for proof of age, the person would not commit an offence if they failed, without reasonable excuse to do so, or made a false statement or produced false evidence on being asked to provide such proof.

The recent change to section 115 has produced considerable confusion in the liquor industry about the current ability of employees, such as bar staff, to ask for proof of age. This amendment removes any ambiguity or doubt by restoring the position with regard to the agents or employees of an occupier of licensed premises to that which existed prior to 24 September 2018.

The Hon. K.J. MAHER: I place on the record the opposition's support for this amendment. We have consulted with the industry, particularly with representatives of the AHA, who have expressed their desire to have this rectified. It is a sensible amendment that makes the operation of the act easier.

The Hon. C. BONAROS: I will just indicate for the record that this is not an amendment that SA-Best were entirely happy with, but we have entered into discussions with the Attorney-General in relation to this amendment. The Attorney has undertaken to continue those discussions. We will support it as it is at the moment, but we do so on the basis that we are having ongoing discussions with the Attorney in relation to this particular aspect of the bill.

New clause inserted.

Clauses 7 and 8 passed.

Clause 9.

The Hon. K.J. MAHER: I will not speak at great length because I already spoke about it in my second reading contribution. As has been flagged with the Attorney-General's office, the opposition will be opposing this clause and clause 11, which is a very similar clause. At the moment there are separate appointments under the ICAC Act for reviewers in relation to the Surveillance Devices Act, and a reviewer in relation to the Telecommunications (Interception) Act. In practice to date under the ICAC Act, that person has been the same person, the Hon. Kevin Duggan AM QC, and it may be the case that in the future that person will be the same person and an attorney-general will be required to sign two pieces of paper rather than the one piece of paper which this squishes it into.

As I said in our contribution, we cannot see the circumstances right now where it would not be the same person, but we would not want to be in a position where there may be two different people with different technical abilities or different expertise, where it might be better suited to have two different people as reviewers for those two different parts of the ICAC Act. So, for the sake of 30 seconds and one extra bit of paper, we oppose the clause in case there is a reason to have two separate reviewers in the future.

The Hon. R.I. LUCAS: I will place on the record the government's position in relation to why we believe clauses 9 and 11 should remain as part of the bill. It is possible the government's position might prevail in the committee and the Leader of the Opposition has indicated that he is not going to die in a ditch on it. If that looks like it might not be the case, we might have to have a more extensive debate, but at this stage I will put the government's position on the record.

By designating the schedule 4 reviewer as the review agency for the ICAC for the purposes of the Surveillance Devices Act and the Telecommunications (Interception) Act 2012, it is the government's view that the amendments will achieve greater clarity and consistency about the role of the review agency for the ICAC across the relevant acts. Under the ICAC Act, the schedule 4 reviewer is required to conduct annual reviews to examine the operations of the ICAC and the OPI.

Importantly, the reviewer may examine whether the commissioner's powers have been exercised appropriately under the act, whether there is any evidence of maladministration and whether the practices and procedures of the ICAC and the OPI were effective throughout the reporting period. Given the extensive reporting obligations of the review are already carried out under the ICAC Act, the schedule 4 review is well-placed to carry out the functions of the review agency for the ICAC under the Surveillance Devices Act and the Telecommunications (Interception) Act.

In so doing, the amendments achieve greater simplicity and clarity about the role of the reviewer by consolidating the legislative oversight functions for the ICAC to reflect what already currently occurs in practice. In addition, by designating the schedule 4 reviewer as the review agency for the ICAC, the amendments will also introduce stricter eligibility criteria for appointment as the review agency for the ICAC than are presently provided. Currently, under the Surveillance Devices Act and the Telecommunications (Interception) Act, appointment as the review agency for ICAC only requires for the applicant to be a person who is independent of the commissioner.

By contrast, under the ICAC Act, the schedule 4 reviewer must be a person who will be eligible for appointment as the commissioner. This requires the applicant to be a legal practitioner of at least seven years' standing or a former judge, and upon referral by the Attorney-General, for the appointment to be approved by the Statutory Officers Committee. Once appointed, the reviewer is subject to the parliament.

Importantly, these amendments do not alter any of the existing functions or obligations of the review agency for the ICAC within the relevant acts. The amendments are only intended to streamline the current appointment process to achieve greater consistency in legislation to reflect current practice. As I said, they are the government's simplified reasons as to why we believe clauses 9 and 11 should remain part of the bill.

The Hon. M.C. PARNELL: I thank the minister for that explanation. As I look at the Surveillance Devices Act 2016, it is actually quite surprising that the ICAC reviewer was not named as the review agency under this act, because when we look at the section of the Surveillance Devices Act that is being amended, we see that the review agency for SA Police is the schedule 4 reviewer, but the review agency for ICAC is just some independent person, as the minister has explained.

I think the value of clauses 9 and 11—similar arguments—staying in the bill is that it does guarantee that the highest-level person will be appointed as the review agency. Like I say, it is surprising to me that it was not already in the act to start with, so I am persuaded by the minister's arguments and the Greens will be supporting clauses 9 and 11 both staying in the bill.

The Hon. C. BONAROS: Can I indicate for the record that SA-Best will be supporting that clauses 9 and 11 remain as printed in the bill.

The Hon. J.A. DARLEY: For the record, I will be supporting clauses 9 and 11.

Clause passed.

Clause 10 passed.

Clause 11.

The CHAIR: Leader of the Opposition, do you wish to speak to this clause?

The Hon. K.J. MAHER: I would repeat the previous comments I have made but I can see that the numbers in this place are not for the very sensible proposition that I put forward before and I expect that they will not be again.

Clause passed.

Clause 12 passed.

Clause 13.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 5, lines 4 and 5 [clause 13, inserted section 40(1)]—Delete ', not later than 31 October in each year, report to the Minister' and substitute ', in accordance with subsection (1a), provide a report to the Minister in relation to the previous financial year'

Amendment No 2 [Maher–1]—

Page 5, after line 24 [clause 13, inserted section 40]—After inserted subsection (1) insert:

(1a) A report under subsection (1) must—

(a) in relation to the 2017/18 financial year, be provided to the Minister within 3 months of the commencement of this section; and

(b) in relation to each subsequent financial year, be provided to the Minister not later than 31 October in the financial year immediately after the financial year to which the report relates.

This is a very simple amendment that I understand has government support. Given the time that bills take to go through parliament it just ensures that the requirement to table an annual report captures the 2017-18 year.

The Hon. R.I. LUCAS: The government supports the amendment.

Amendments carried; clause as amended passed.

Remaining clauses (14 and 15) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:18): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 18:20 the council adjourned until Thursday 8 November 2018 at 11:00.

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