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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
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Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 August 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:40): I rise today to indicate Labor's support for the Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill. However, we will have a series of questions during the committee stage of the bill. I note that the Attorney-General attempted to answer some of these questions in her second reading summing-up in the other place, as well as in response to questions from my colleague the shadow minister for health, member for Kaurna, Mr Chris Picton.

These questions touch on why a judge would need to have immunity in both civil and criminal trials as well as a proposed change of definition of premises of a participating body in the Sheriff's Act and how that will function. In particular, what is a precinct or immediate environs? How is a laneway between or abutting a premises different? How far will these geographic definitions extend? We also have a series of questions regarding the various commencement clauses of the bill. With these brief remarks, I indicate that we support in principle the bill but look forward to having our questions answered during the committee stage.

The Hon. R.I. LUCAS (Treasurer) (15:41): I thank the honourable member for his contribution to the second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

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

Amendment No 1 [Treasurer-1]—

Page 3, after line 8—After subclause (1) insert:

(1a) Part 2A (other than section 4C) will come into operation immediately after section 4 of the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019 comes into operation.

(1b) Section 4C will come into operation immediately after section 7 of the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019 comes into operation.

This amendment is consequential, I am advised, on amendment No. 2, which I will move later. Its intention is that the relevant amendments referred to in amendment No. 2 commence immediately after the commencement of the provisions to be amended by the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019. This is essential so that there is no hiatus or difference in operation in the implementation of the reforms in the amendment act.

The Hon. K.J. MAHER: A question on the clause generally. Can the government provide any further advice on the commencement of various parts of the act? I think the Attorney-General indicated there may be a delay to the commencement of some of the clauses. Which ones are anticipated to have the commencement delayed and for what reason?

The Hon. R.I. LUCAS: My advice is that at this stage I am not in a position to be able to provide any advice. We are currently trying to consult with the Attorney-General's office to see whether they can provide any detail on the honourable member's question. It is not an unreasonable question, and perhaps if we continue with the discussion, I will endeavour to bring back a response before we conclude the debate.

The Hon. K.J. MAHER: We might get clarity when we consider some of the subclauses, for example, clause 2(2) states that, 'Part 3 will come into operation on a day to be fixed by proclamation,' rather than on the day it is assented to by the Governor. Why is it that part 3 is coming into operation on a different date than the rest of the bill?

The Hon. R.I. LUCAS: I am advised that because this is bringing in a criminal penalty, this is a normal drafting procedure in relation to criminal penalties that a lead-in time—I am not sure whether that is the technical description, but a sufficient amount of time is given in relation to the operation of the introduction of a criminal penalty. My advice is that it is a standard procedure as it relates to the introduction of a new criminal penalty and that is the reason for the difference to which the honourable member has referred.

The Hon. K.J. MAHER: In relation to part 9 of the bill, that only comes into operation on the day on which section 12 of the Public Interest Disclosure Act 2018 comes into operation, or the date of assent, whichever is the later. Can the government explain which they envisage to happen first and the reason for that?

The Hon. R.I. LUCAS: I am advised that subclause (b) 'on the day which this Act is assented to', has actually passed, so subclause (a) will be the operative clause and this section will be able to come into operation as soon as this particular bill is passed.

The Hon. K.J. MAHER: Similarly, in regard to 2(4), 'Part 12 of the Statutes Amendment (Attorney-General's Portfolio No. 3) Act comes into operation,' when is that anticipated to come into operation?

The Hon. R.I. LUCAS: I am advised that those provisions will come into operation no later than December of this year, but the Attorney's intention is to bring them into operation prior to that, so before the end of the year.

The Hon. K.J. MAHER: With regard to 2(5), on part 14 needing to be delayed, when is it likely that the prerequisite for that coming into operation will be met?

The Hon. R.I. LUCAS: I am advised that should this bill be passed it then activates the capacity to finalise regulations under clause 4 of the Summary Offences (Liquor Offences) Amendment Bill and so the intention is that once this bill passes the regulations would then be concluded and then they would be brought into operation soon after that.

The Hon. K.J. MAHER: In relation to 2(6), 'Part 16'—like part 3—'will come into operation on a day to be fixed by proclamation,' I note that part 16, like part 3, has penalties attached to it and I think the answer to part 3 was that is the way it is drafted. Can the Treasurer please explain why that is the case? I understand that it is drafted like that, but what is the reason that it is drafted like that?

The Hon. R.I. LUCAS: I am advised that in general terms—as I said, this is a practice that is being continued—all of the interested stakeholders is probably not the best description, but those who need to be advised need to be advised of the new criminal penalty (SAPOL, courts, the Crown and various others), that is, there is a new criminal penalty and all those who should be advised should be made aware of it.

It does surprise me that not everybody in our broader judicial and policing system follows with avid interest the proceedings of the parliament, but maybe that is the case. If the parliament passes a law with a new criminal penalty, all the appropriate people need to be advised and made aware of this particular criminal penalty and would need to make arrangements, I would assume, as is appropriate.

The Hon. K.J. MAHER: I thank the Treasurer for his response. Why is it then that the bills come into force at different stages? Why not the whole bill come into force once everybody has had the appropriate notice of the change of penalty?

The Hon. R.I. LUCAS: I am advised that the response to that is that this practice is only as it relates to criminal penalties. Regarding other issues that relate to minor or technical issues that do not relate to criminal penalties, there is no reason why they cannot be actioned more quickly than something that does involve the imposition of a new criminal penalty.

Amendment carried; clause as amended passed.

Clause 3 passed.

Clause 4.

The Hon. K.J. MAHER: In relation to clause 4, the section that provides immunity for judges, what is the rationale as to why the government believes that judges should not be subject to the same laws as normal citizens in the performance of their duties?

The Hon. R.I. LUCAS: I am advised that under common law judicial officers have immunity from civil and criminal actions insofar as it relates to the performance of their judicial function; therefore, this reflects that set of circumstances.

The Hon. K.J. MAHER: In relation to clause 4, is the Treasurer able to provide an example of a circumstance where that immunity might be used specifically for the Coroner?

The Hon. R.I. LUCAS: A possible simple example might be—and it does not just relate to coroners—that if in a judgement of a judicial officer, including a coroner, they were to make defamatory statements about an individual, because that is in the course of their function they would not be liable to an action for defamation.

Clause passed.

New clauses 4A, 4B, 4C, 4D and 4E.

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

Amendment No 2 [Treasurer–1]—

Page 4, after line 12—After Part 2 insert:

Part 2A—Amendment of Criminal Law Consolidation Act 1935

4A—Amendment of section 19—Unlawful threats

Section 19(2), penalty provision, (c)—after 'section 5AA(1)(c)' insert ', (ca)'

4B—Amendment of section 20—Assault

(1) Section 20(3), penalty provision, (d)—after 'section 5AA(1)(c)' insert ', (ca)'

(2) Section 20(4), penalty provision, (d)—after 'section 5AA(1)(c)' insert ', (ca)'

4C—Amendment of section 20AA—Causing harm to, or assaulting, certain emergency workers etc

Section 20AA(9)—after the definition of prescribed emergency worker insert:

retrieval medicine means the assessment, stabilisation and transportation to hospital of patients with severe injury or critical illness (other than by a member of SA Ambulance Service Inc);

rural area means an area outside of Metropolitan Adelaide as defined by GRO Plan 639/93.

4D—Amendment of section 24—Causing harm

Section 24(2), penalty provision, (c)—after 'section 5AA(1)(c)' insert ', (ca)'

4E—Amendment of section 29—Acts endangering life or creating risk of serious harm

Section 29(3), penalty provision, (c)—after 'section 5AA(1)(c)' insert ', (ca)'

In essence, the amendment we have already passed will make no sense if we do not pass these amendments as well, but I will place on the record the advice I have from the government and the Attorney-General in relation to what these particular clauses seek to do.

Clauses 4A, 4B, 4D and 4E are related, so I will speak to them together. When it commences, the Criminal Law Consolidation (Assaults On Prescribed Emergency Workers) Amendment Act 2019 will increase the penalties for the offences in the Criminal Law Consolidation Act 1935 of making unlawful threats, assault, causing harm and endangering life where the victims are workers referred to in section 5AA(1)(c) of that act or regulations made under section 5AA(1)(ka) of that act.

The first of these provisions deals with police officers, prison officers, training centre employees and other law enforcement officers. The second of those provisions deals with other front-line healthcare, law enforcement and public transport workers. The amendment act contains five identical technical errors that were not identified prior to the passage of the bill. The provisions proposed to be amended should also include those workers referred to in section 5AA(1)(ca), as otherwise offences against community corrections officers and community youth justice officers will not carry the same maximum penalties as the other workers referred to.

I now turn to clause 4C. During the passage of the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019, a number of amendments were moved by the opposition to the bill and ultimately passed. This included the insertion of a set of offences in section 20AA. The opposition's model reproduced certain categories of emergency services workers into the original bill, particularly those involved in retrieval medicine and rural area callouts but, unlike the original bill, the opposition's amendments did not include definitions of 'retrieval medicine' or 'rural area'.

I am advised that the uncertainty as to what these terms mean bears a risk in criminal proceedings brought under section 20AA, namely, that such proceedings will either not be brought, will result in a not guilty finding or will be the subject of unnecessary appeals to the Supreme Court. This amendment remedies that by providing a definition of those terms. 'Retrieval medicine' is defined as 'the assessment, stabilisation and transportation to hospital of patients with severe injury or critical illness' and 'rural area' by reference to a map filed in the general registry office. The latter definition is adopted from that used in the Planning, Development and Infrastructure Act 2016.

New clauses inserted.

Clause 5 passed.

Clause 6.

The Hon. K.J. MAHER: Can the government explain the effect of deleting the word 'civil'?

The Hon. R.I. LUCAS: The impact of this amendment will mean that judicial officers will have immunity from both civil and criminal, so it makes that clear.

The Hon. K.J. MAHER: Can the government explain, does that bring us into line or does that take us away from what occurs in most other jurisdictions around Australia?

The Hon. R.I. LUCAS: On the advice we have, because it is a common law position, our understanding is that it would be common to most other jurisdictions.

The Hon. K.J. MAHER: This provision is either being inserted for the first time in a number of areas like the Coroners Court or removing the word 'civil' from the District Court and ERD Court, and magistrates and liquor licensing jurisdictions. Are there any differences between those various jurisdictions within South Australia that there might be different standards applied?

The Hon. R.I. LUCAS: My advice is that, given that they all refer to judicial officers, there is no reason why there should be any distinction between any of those jurisdictions.

Clause passed.

Clauses 7 to 11 passed.

Clause 12.

The Hon. K.J. MAHER: Can I ask the government: clause 12—what is the genesis of this amendment? Was it requested by a particular group or body that these be made in this legislation?

The Hon. R.I. LUCAS: My advice is this was a request from the ICAC commissioner.

The Hon. K.J. MAHER: The changes that are proposed, then, in clause 12, are they exactly as they were proposed by the ICAC commissioner, or do they differ in some way once the government took the request and then made their own view on the best way to proceed with this?

The Hon. R.I. LUCAS: My advice is they exactly reflect the ICAC commissioner's recommendation.

The Hon. K.J. MAHER: Was the Local Government Association consulted on these amendments in this particular section?

The Hon. R.I. LUCAS: My advice is that they were not consulted specifically; they were advised of the intention to progress these. It was seen by the government as being a largely technical amendment.

Clause passed.

Clauses 13 and 14 passed.

Clause 15.

The Hon. K.J. MAHER: Can the minister outline exactly what is a 'precinct' or 'immediate environs' as contemplated in this clause?

The Hon. R.I. LUCAS: I am advised this is undefined in the act, so it would be interpreted by the court by its ordinary meaning.

The Hon. K.J. MAHER: Is the Treasurer in a position to say what the ordinary meaning is, given it is the choice of words the government has used? I assume they have some idea about what they mean by the words they use in their own legislation?

The Hon. R.I. LUCAS: I can refer the leader of the opposition to the ordinary meaning as defined by the Macquarie Dictionary. It defines 'precinct' as including an enclosing boundary or limit or a walled or otherwise bounded or limited space within which a building or space is situated and 'environs' as the immediate neighbourhood, surrounding parts or district. I refer the honourable member to the Macquarie Dictionary.

The Hon. K.J. MAHER: Clause 15(a)(ii) refers to 'laneways between or abutting the premises or place'. Given that the government has chosen to put in 'between or abutting', can the government outline what the difference they see between those two things is?

The Hon. R.I. LUCAS: We can go through the Macquarie Dictionary. 'Between' is between two buildings, that is, you have two buildings and you are between them; 'abutting' means you are actually adjacent to something.

The Hon. K.J. MAHER: If there is a laneway between two buildings, does it have to be two buildings that are part of the premises, or can it be a laneway that is between a building that is part of the premises and another building that is not part of the premises?

The Hon. R.I. LUCAS: I am not sure I can throw too much more light, other than the natural ordinary meaning of the words that are there. A 'place' can be, essentially, as the name suggests, anything, I assume—a place—but it has to be within subclause (a), which is:

(a) any premises or place occupied in connection with the operation of a participating body—

That is the limiting factor on a 'place', and 'abutting' is abutting, it is just next to it. I am not sure that I can be any more helpful to the Leader of the Opposition in terms of this particular issue.

The Hon. K.J. MAHER: Maybe if the minister can outline the reason for this change of definition of 'premises' in the Sheriff's Act. What is the reason we are discussing this clause; what was deficient that it needs this remedy?

The Hon. R.I. LUCAS: My advice is that this particular amendment was specifically requested by the Chief Justice, and it is modelled on legislation that exists in Victoria.

The Hon. K.J. MAHER: What will be the effect of this change? What is it that this part of the definition section does? What else in the Sheriff's Act relies on this definition?

The Hon. R.I. LUCAS: There are a number of examples, but the simplest might be the operation of a Sheriff's powers only relate to, for example, premises or place occupied in connection with the operation of a participating body. Further on, or elsewhere in the legislation, when it talks about where the Sheriff's powers can operate, they operate within a certain area, and that is why it is used.

The Hon. K.J. MAHER: As I understand that explanation, we are in effect extending that area from the immediate premises to include things such as the precincts and environs of the premises or place and adjacent car parks and footpaths. So the change of definition seeks to extend the areas of the Sheriff's powers; am I reading that correctly?

The Hon. R.I. LUCAS: I obviously cannot speak on behalf of the Chief Justice, but I assume the Chief Justice has seen some restriction or issue with the current definition and has therefore sought some small extension by way of a clarification through this definition, as modelled on Victoria. I cannot and do not propose to speak on behalf of the Chief Justice as to why he saw reason to evidently request this particular amendment, but my advice is that in general terms what the Leader of the Opposition is suggesting is correct, that this will extend slightly the definition and therefore the operation of, for example, the Sheriff's powers issue that we discussed earlier.

As I said, I cannot speak on behalf of the Chief Justice. The Chief Justice has obviously argued, the Attorney-General has listened to those arguments and obviously has concurred with those arguments. If this is an important issue for the Leader of the Opposition, I can seek further advice via the Attorney-General of the Chief Justice to find out why he wanted this particular amendment.

The Hon. K.J. MAHER: Indeed, I think that is a very good point, similar to part 12, I think it was, where the ICAC commissioner asked for things and the Treasurer said that because the ICAC commissioner asked for them they were put in exactly as they were asked for. The Treasurer indicated that these amendments were requested by the Chief Justice, but he has also tempered that with: of course, the government would have had to turn their mind to whether that is reasonable and what the effect of those would be, because of course no responsible government would just do what they were asked to do by someone, they would actually have to turn their mind to whether it was a reasonable thing to do, if it would operate properly, and agree that these are reasonable changes to our law.

The question that I am asking is: when the government turned their mind to these changes and decided that these were reasonable and worthwhile changes to make, we talked about the definition of a precinct or immediate environs and it was agreed that there was no definition within the act and that the court, if they were interpreting it, would have to turn to an ordinary definition. We have had the Macquarie Dictionary definition read out to us. These changes govern pretty fundamental things, that is, where the Sheriff's Officers can exercise their powers. In the view of the government, which has turned its mind to these things and thought that they are reasonable, how are the Sheriff's Officers going to get guidance about where they can use their powers in areas where they could not before?

The Hon. R.I. LUCAS: In relation to the government's position, clearly the government—I would assume the Attorney-General, in particular, and her advisers—given the advice that the request has come from the Chief Justice, placed some weight on the fact that the Chief Justice's view should be given appropriate weight. That does not mean, as the member suggests, that we would always agree with the position of the Chief Justice. It would have been given appropriate weight and the Attorney-General would have taken advice.

There are two general tenets I could suggest. One is that there may well be an important issue where a change needs to be made because there is a clear problem, whatever it may be. It is also possible that, in some amendments, the Attorney-General may take the position that the Chief Justice requested it and that there is no major problem or issue in relation to this matter from the Attorney-General's viewpoint, etc. If the Chief Justice has decided that he believes this is an important issue, and the Attorney-General's advice is that there is no danger, impact or negative effect due to the particular change of the amendment, that might also have been a factor in the Attorney's consideration.

I am not in a position to speak on behalf of the Attorney-General in relation to whether it was a combination of both those factors or whether it was one of the others that was the major factor. The bottom line is that you are right: the Attorney-General has considered the request from the Chief Justice and, for whatever reason, has decided to agree to it. We have explained, to the best extent we can, what the impact would be. Thus far in the debate there has been nothing suggested by the Leader of the Opposition that there is any problem or mischief caused by the particular amendment, so we recommend it to the committee.

Clause passed.

Clauses 16 to 20 passed.

Clause 21.

The Hon. K.J. MAHER: When this clause was debated in the House of Assembly, the Attorney-General advised that she was not aware whether any cabinet ministers run, own or are on the boards of any charities that might have been affected by these arrangements at the time that the Attorney-General was asked that question. Has the government now checked, and can the government advise, whether any cabinet ministers either own, run or are on the boards of any charities that might benefit from the new arrangements?

The Hon. R.I. LUCAS: I have nothing to add in relation to the position of individual cabinet ministers. My recollection—and the Leader of the Opposition will obviously be in a position to have his own view on this—not my recollection but my clear understanding is that the MPs' register of interests requires us to declare, as MPs, whether we are directors of a variety of bodies, which would also include charitable trusts, and that is publicly available. There is obviously a register of interests for cabinet ministers which is, to my understanding, not publicly available. It is registered with the cabinet office and it is cabinet in confidence, but the MPs' register of interests, which is all cabinet ministers or MPs, is publicly available.

I suspect that the Leader of the Opposition, if this is a matter of interest to him—this is a charitable trust that we are talking about; I am not sure there is any mechanism out of a charitable trust. You can have a pecuniary benefit or interest but, anyway, it would be recorded on the publicly available register of interests. I think we tabled the Legislative Council register of interests today.

The Hon. K.J. MAHER: Is the minister prepared to take that on notice; that is, if merely being on the board of a charitable trust does not require putting it on the register of interests, will the minister take that on notice and bring back the answer to the question?

The Hon. R.I. LUCAS: No; I think the Leader of the Opposition can seek advice from the Clerk and the Presiding Officer, if he wants to. The register of interests for MPs is something which is an issue for the parliament and for the chamber, I think, to my recollection. Clearly, there are other requirements but my understanding is that if you are a member of a board of a charitable trust or, indeed, a whole variety of other organisations, you are required to declare that on your register of interests. Unless the Leader of the Opposition has advice to the contrary, that is my understanding.

The Hon. K.J. MAHER: Can the minister advise if this section would provide a potential benefit to a charitable trust? My question to the Treasurer is: is it possible that once this section comes into operation it may be beneficial to a charitable trust—the operation of the section?

The Hon. R.I. LUCAS: Are you talking about a financial benefit?

The Hon. K.J. MAHER: No, not necessarily; it could provide a benefit to the way the trust operates.

The Hon. R.I. LUCAS: If the question is in relation to a benefit, it is obviously intended to simplify a process for charitable trusts to be able to alter their trustees' powers to administer a trust. I assume the reason it is being done is to give them an administrative benefit—that is, reducing some red tape or inconvenience—so if that is of concern to the Leader of the Opposition then the answer to the question is that it is intended to provide some benefit in that broad sense.

I cannot see how it provides, and my advice is that we cannot see how it provides, any financial benefit, other than if you are talking about a financial benefit because it reduces red tape and inconvenience and maybe administrative costs will be reduced in some way, if that is what the Leader of the Opposition is concerned about.

Clause passed.

Remaining clauses (22 and 23) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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