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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

COVID-19 Emergency Response (Bail) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:22): I move:

That this bill be now read a second time.

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

Leave granted.

Mr President, I am pleased to introduce the COVID-19 Emergency Response (Bail) Amendment Bill 2020. The Bill seeks to protect prescribed workers which includes front-line emergency workers, hospital workers and others employed in retrieval medicine through amendment to the recently passed COVID-19 Emergency Response Act 2020. The Bill also promotes general community safety as it seeks to protect private property from intrusion.

Section 10 of the Bail Act 1985 currently provides that if an eligible person applies for bail, the bail authority should release the offender on bail having regard to a number of different factors. Accordingly, in most cases there is a presumption that bail should be granted.

The presumption of bail is reversed in particular circumstances which are set out in section 10A, creating a presumption against bail.

This section provides that bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant’s release on bail. A prescribed applicant is someone who has committed a particular class of offence, and therefore does not have the presumption of bail.

What constitutes a prescribed applicant will be temporarily broadened during the COVID-19 pandemic by clause 3 of the Bill to include those charged with the following offences:

Serious criminal trespass in residential and non-residential premises and criminal trespass in a place of residence;

Any offence against the person that is aggravated due to the victim falling into the category of a person who was acting in the course of a prescribed occupation (on a paid or voluntary basis) for the purposes of section 5AA(1)(ka) of the Criminal Law Consolidation Act 1995 and the offender knew that the victim was acting in the course of their duties. This includes: emergency workers, those employed to perform duties in a hospital and those employed in retrieval medicine (medical practitioners, nurses, midwives, security officers or otherwise); medical or other health practitioners attending out of hours or unscheduled callout, or assessing, stabilising or treating a person at the scene of an accident or other emergency, in a rural area; passenger transport workers; police support workers; court security officers; bailiffs under the South Australian Civil and Administrative Tribunal Act 2013; protective security officers and inspectors under the Animal Welfare Act 1985;

An offence against either section 20AA or 20AB of the Criminal Law Consolidation Act 1995 which provides for causing harm to, or assaulting, certain emergency workers and the further offence involving use of human biological material.

The COVID-19 pandemic has placed property, particularly commercial and small business premises, at greater risk of exposure to crime due to the necessary policy of requiring people to remain at home as much as possible. South Australian Police have recently stated that there has been a spike of 28% in non-residential break ins compared to the same period last year (1 Feb to 20 April), where businesses have needed to close their doors during the virus. The Commissioner for Police noted that we are now seeing businesses which are unattended, not being managed in the way they were previously and therefore at a higher vulnerability.

As a result, the presumption of bail is to be temporarily reversed for those who commit serious criminal trespass in residential and non-residential premises and criminal trespass in residential premises in order to protect public safety, which includes private property.

Further, the safety of emergency service and frontline personnel is paramount.

In light of the current enforceable restrictions placed against the community, frontline emergency service workers may encounter members of the public who do not accept these restrictions.

The imposition of specific bail conditions which protect these workers, for example by preventing offenders from contacting emergency service workers such as medical practitioners, is at the discretion of the Court. Instead of relying on the imposition of such conditions to ensure their safety during this time, the Bill makes it clear that the presumption should be against bail in these circumstances.

To ensure that these provisions only operate for the period already agreed to by the Parliament, these amendments are to schedule 2 of the COVID-19 Emergency Response Act 2020 and will therefore only operate while that Act operates. That Act will expire on either the day on which all relevant declarations relating to the outbreak of COVID-19 within South Australian have ceased (provided that I am satisfied that there is no present intention to make further declarations) or 6 months from commencement of that Act, whichever is the earlier.

The Government is focused on the safety of all South Australians and is taking decisive steps to stop the spread of COVID-19 in SA. Like all measures, we are acting on advice provided by experts, including the State Coordinator and Commissioner of Police.

As shown through swift action, like the introduction and passage of the COVID-19 Emergency Response Act, we have seen remarkable results so far in our SA fight against the COVID-19 pandemic. Mr President, I commend the Bill to Members and I insert a copy of the Explanation of Clauses.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of COVID-19 Emergency Response Act 2020

3—Amendment of Schedule 2—Temporary modification of particular State laws

This clause amends the Schedule of temporary modifications of particular State laws to include temporary modifications to section 10A of the Bail Act 1985. The temporary modifications specify a number of additional offences against the Criminal Law Consolidation Act 1935 that will attract the presumption against bail during the COVID-19 period.

The Hon. K.J. MAHER (Leader of the Opposition) (15:23): I rise today to speak to the COVID-19 Emergency Response (Bail) Amendment Bill 2020. I indicate that I have carriage of this matter on behalf of the opposition. The opposition supports the bill, just like it has supported every other piece of legislation the government has introduced in response to the current emergency.

The opposition moved and parliament approved a number of amendments to legislation we debated a couple of weeks ago. In this case, the opposition will not be moving amendments. It is noted that very limited notice has been provided for these bills, and again with this bill, and it provides a very limited opportunity to properly or in fact to really do any consultation with stakeholders or properly develop amendments or consider other proposals.

In 2019, we saw the passage of Labor's amendments to the Criminal Law Consolidation Act that gave emergency workers, police officers and ambulance workers far greater protections. These provisions made it very clear both to the courts and to potential perpetrators of offences that attacks on front-line workers were both reprehensible and an attack on the rest of society. As such, it should be punished appropriately.

The current COVID-19 emergency has amplified the need for protection of our front-line workers, and the opposition has worked cooperatively with the government on measures to deliver this. In recent weeks, we supported the government to provide new and unprecedented powers to health officials and police who are responding to this emergency.

The opposition appreciates the urgency that is attached to some legislation but is somewhat disappointed at the approach to consultation. Government briefings on this particular bill were provided only a day or two before it came into parliament, which indicates that it was probably approved by cabinet some time earlier but was not given to the opposition or to crossbenchers, I would expect, in what would be a timely manner.

In fact, I think it was the end of maybe Friday last week that the opposition asked the government whether there was an intention for any legislation to be brought on to deal with COVID-19 in the next sitting week. Crossbenchers might have had the same experience, but I think on Friday last week we were told by the government, 'No, there will not be any new legislation to deal with on an emergency basis,' so it is disappointing that the week rolls on and then there is emergency legislation to deal with this sort of legislation.

The Attorney-General and her office have indicated that the State Coordinator has requested this legislation. It might be noted that the great deal of latitude that has been given and the patience being shown by the opposition and the crossbench have a limit. In the future, when there are requests for these sorts of things, it might be wise to be a bit more consultative with other groups in the parliament at an earlier stage. Even if you have not finished developing legislation, letting other parties know what the intention is the week before would be useful.

In terms of this particular bill, it reverses the presumption in favour of bail for a number of offences. There is already a reversal of the presumption for bail for a defined set of offences. They are generally higher order offences. Off the top of my head, I think they include things like treason, offences against police, high-speed pursuits and domestic and family violence offences where there is a presumption against bail. This provides a new class of offences where there is that similar presumption against bail.

It is time-limited to while there is this declared emergency. These are limited by the act that we passed a couple of weeks ago to deal with this emergency, so this is not something that will last beyond the declared emergency. The offences that the presumption against bail relates to are things like offences against front-line workers, and they are already prescribed in legislation. It also includes a set of serious criminal trespass for commercial premises but also trespass for residential premises.

It has been explained to us that the necessity for this is, I think, a 28 per cent increase in trespass on commercial premises. One question to the government that I might flag in the second reading speech, and the government may address in the summing-up, is to confirm that is the case, that it was a request of the State Coordinator, the police commissioner, in relation to the increase in the incidences of trespass.

The other question that we had, that I gave notice on to the Attorney-General, so I am sure that we will get an answer in this chamber, is: what is the rationale for it applying to residential properties? Has there similarly been an increase in trespass on residential properties? The other question that I flagged with the Attorney-General prior to this bill passing the lower house, so I am sure we will have an answer to this as well, is: this bill provides the end result, what happens once there has been an offence, but what measures is the government taking at the start of it as preventative measures? Has there been an increase in security for buildings that were otherwise occupied but are now vacant that has given rise to the need to deter people from trespassing?

My colleague the member for Mawson, Leon Bignell, has raised this specifically with me in relation to areas of his electorate, in the Fleurieu Peninsula or on Kangaroo Island, where there will be houses and holiday homes that would have been regularly occupied and that may well have been vacant for some time now.

It is good that this might provide a deterrent effect by reversing the presumption of bail for that trespass, but what are we doing at the front end in terms of prevention? Is there increased security and has the government put other things in place to try to prevent these crimes from happening so that you do not need to deter people with the reverse presumption of bail?

I might at the outset flag and thank the Hon. Mark Parnell for, even before lodging amendments, outlining the nature and effect of the amendments and providing copies of those amendments before they were actually put into the parliament and officially lodged. We have had some discussion within the Labor Party about these sorts of amendments and I can indicate that we appreciate the intent of the amendments but we will not be supporting them.

I appreciate that they have been drafted, again with a very limited intention for their application, that is, they only relate to the presumption of bail as it applies to the new reversal presumption for the new offences that this creates. It is not something that needs to be taken into account for any other offence or, as I understand it, any other of the reverse presumption of bail offences that already exist.

However, we want to give the widest possible discretion. We think that, if there are problems in the management of those who fail to obtain bail or who are sentenced to other offences as a result of this pandemic, the government has a responsibility to make sure they can be adequately housed and housed safely within our corrections system. It is our view that that should not be a job for the courts: it is a direct responsibility of the government to ensure that that happens.

The Hon. M.C. PARNELL (15:31): I will start by associating myself with the remarks of the Leader of the Opposition in relation to the process that this bill has gone through. We have shown a great deal of cooperation and forbearance, I think, in the last several weeks in allowing the government to quickly bring on bills and for us to debate them and vote on them before we have had any real chance to consult with any stakeholders or engage with experts in the field. We have collectively done that, I believe, because we have all appreciated that this is a serious pandemic we are facing and that laws do need to be changed very quickly, so we have modified our usual practices to accommodate that.

To a certain extent the government has acknowledged that level of cooperation. The difficulty with this bill is that, if cabinet had signed off on it some time ago, I would like to think they would remember that we still have the right to debate legislation and consider it, so getting a new bill on a Monday or a Tuesday and then voting on it just a few days later is pushing the envelope, but nevertheless the Greens certainly will not stand in the way of this bill.

In relation to the content of the bill, I guess to put it into some sort of context, there are times in our history when certain offences appear to be more odious than they would otherwise be. For example, when we are in the middle of a bushfire crisis and there are a large number of unattended houses as people have fled the approaching flames, the emergency has not abated and they cannot go back yet, and when people loot homes in bushfire affected areas society's perception of that is that they are more serious crimes than regular looting and housebreaking. Those crimes are always bad, are always illegal, but when they happen in those circumstances most people see that they deserve perhaps an extra level of punishment because of the circumstances in which they were committed. I think that this bill pretty much falls into the same category.

As the Leader of the Opposition said, I am keen to know, for example, whether more housebreakings are occurring at present, when my understanding is that the vast majority of people are not leaving their homes. They are at home all day, they are sleeping in their homes at night, they are not going down to their holiday homes at Victor Harbor, they are staying at home. I would be keen to see what figures the government comes back with.

We have been told that, when it comes to breaking into and stealing from empty shops and factories and things like that, the rate apparently has gone up 28 per cent over the same period last year. I would like to see what the figures are in relation to domestic break and enters and burglaries.

Nevertheless, I think that as with the fire situation most people would think that someone who is taking advantage of this crisis to undertake illegal behaviour probably deserves to have some extra penalty attached. What the government has done in this bill is they have basically said that in those circumstances the presumption in favour of bail will not apply to you, because you have done something particularly bad during a time of crisis. I understand that, and I can accept that.

The bill also relates, of course, to assaults on emergency workers, nurses, doctors and others, and again I think around the virtual water cooler or the virtual front bar most people would think that at this time those particular offences are particularly odious, and we want to make it very clear that they are unacceptable.

Having said that, whilst I appreciate that the government wants to appear to be doing something, one of the purposes of the criminal law system is deterrence. That is the reason we have penalties. We have consequences to deter people. My guess would be that this particular bill will provide zero deterrence to anyone. My feeling would be that if someone was going to break into a house and steal things, they are probably still going to do that. The average thief does not have going through their mind, 'Oh dear, section 10A of the Bail Act has been changed, and the presumption in favour of bail may now not work in my favour.' I might be underestimating the reasoning skills of the average thief, but my gut feeling would be that if it was intended to have a deterrent effect, it probably will not succeed.

If the intent of this bill is to show the public that we take seriously these types of offences during an emergency, well, it will achieve that, because people will think, 'Good. The parliament has done something.' Whether there is any or many cases that are actually caught by these provisions remains to be seen.

The Greens will be supporting the bill. I have moved an amendment which I will speak to in more detail when we get to it, but what I will just put on the record now is that I am terribly disappointed that neither the Liberal Party nor the Labor Party has seen fit to pay close attention to the correspondence that they have received from hundreds of lawyers and judges and retired politicians and many luminaries in the field of law and justice and human rights to the effect that the next cruise ship is not going to pull into Port Adelaide; the next cruise ship is probably already at Northfield.

The next cruise ship, the incubator for coronavirus, is probably going to be our prisons. They do not have physical distancing in gaols. These are potentially disastrous scenarios, not just for the inmates but also for those who work there, those who visit and those who provide services to people who are incarcerated.

The question then arises: well, what do you do about that? This particular bill, if it does have any effect at all, can only have one effect, and that is to increase the number of people who are incarcerated. It logically flows. If we are diminishing or reducing the presumption in favour of bail, then chances are less people will get bail, and if you do not get bail you are going to be incarcerated.

That, then, begs the question: if our prisons, gaols and Youth Training Centre are in fact the next cruise ships, waiting to incubate the coronavirus, what are we doing to reduce the prison population? I think the answer is nothing. The question, I think, needs to be: are there people who are currently locked up who do not need to be? It is common, I think, for people to think, 'Oh, well, if you're in gaol you must deserve to be in gaol,' but I think most of us deep down know that there are many people for whom gaol is not the right answer. It is the politically convenient answer—locking people up—but it is not the right answer for many people. What strikes me as quite bizarre is that the only COVID emergency measures that this parliament is dealing with in relation to the criminal justice system are to involve getting more people behind bars and not fewer.

I want to make it very clear that I am not advocating the wholesale emptying of our gaols. I am not saying, 'Let the murderers and the rapists and whoever all free.' I am not saying that—that would be a ridiculous outcome—but there are a lot of people, especially people who are on remand, who have not been found guilty of any offence, a number of people who are in gaol for offences that do not involve violence, and maybe people towards the end of their sentences.

I am sure there is the scope to reduce the pressure in the incubator that is our criminal justice system, but neither the government nor the Labor Party has seen fit to even discuss it. They have the evidence and they have had plenty of Australia's most esteemed legal authorities tell them what needs to be done, but they have not done one thing about it. I will have a bit more to say about my specific amendment when we get to it but, certainly for now, the Greens are supporting the second reading of this bill.

The Hon. C. BONAROS (15:40): I also rise to speak on the COVID-19 Emergency Response (Bail) Amendment Bill 2020. While SA-Best will support and vote in favour of the bill, because it is temporary and time-limited to the period of the public health emergency—that is, ending on the day on which all relevant declarations relating to COVID-19 have ceased—we also have some reservations, which I will briefly outline.

At the outset, I have to say that it was disappointing for SA-Best to receive a copy of the bill on Tuesday at 9.55am, some time after we had read the Attorney-General's media release from the previous day, announcing the initiatives, some time after our whips' meeting on Monday evening and, as I understand it, days after our Labor colleagues were notified of the bill.

Whilst I acknowledge the comments of the Leader of the Opposition, agree with him wholeheartedly about the way that we have gone about the consultation on these issues and associate myself with his comments in that regard, I will go one step further and say that ignoring the crossbench will not serve this government well. Giving the crossbench second-rate service is, I think, an attitude they will eventually regret. I also agree with the Hon. Mark Parnell that, whilst we will be supporting this bill, in all likelihood it will do very little in terms of having a deterrent effect.

We understand that on 9 April, the State Coordinator requested the Attorney-General make temporary changes to the COVID-19 Emergency Response Act to protect front-line emergency service workers during the pandemic. The bill also provides for stricter bail conditions for the offence of trespass in a place of residence and non-residential premises.

We on the crossbench take our role in the Legislative Council as the place of review very seriously, especially as this government seems to get anything it likes through the House of Assembly and especially since the Attorney-General flagged in the other place yesterday that after this wicked crisis is over there will be an opportunity for parliament to explore whether some of these measures should become permanent. We recognise a national health emergency calls on all of us to work expeditiously, collaboratively and cooperatively, so we requested an urgent briefing to expediate the legislation, but there are, for us, a number of worrying aspects to the bill.

It is our experience that rushing through legislation, even if it is temporary in nature, usually leads to bad law. We should exercise a great deal of caution and give detailed consideration to legislation, especially where it provides for a further curtailing of people's freedoms and liberty, as this bill does.

The Attorney-General openly acknowledged in her second reading explanation that this bill has not been through the usual process of consultation and there have been shortcuts taken. Bail, of its very nature, is a highly contentious issue and ordinarily we would want to hear not only the expert opinion of the State Coordinator and the Crown Solicitor's Office but also the opinions of the Law Society of South Australia; the South Australian bar society; the Chief Justice; Dr Rick Sarre, Dean of Law and Professor of Law and Criminal Justice at the University of South Australia; Dr Bartels from ANU; and Professor Thalia Anthony from the Faculty of Law at the University of Technology, Sydney, who are all experts in the field of bail.

Indeed, in a recent open letter to the federal government, nine pages of expert signatories, including the above-named experts, called for a broad sweep of well thought out initiatives to respond to COVID-19. This included the recognition of the ongoing historical delays in court hearings that plague our judicial system, and the cessation of jury trials due to COVID-19 restrictions suggested that in some non-violent cases granting bail more readily would be more appropriate.

The presumption of innocence is enshrined in Australian law. It applies not just at a criminal trial but to the pre-trial process. The presumption of innocence still needs to be balanced with the importance of community safety. The amendments before us are arguably intended to act as a deterrent to offending but elevate protection of the community above all other things in this coronavirus pandemic. If that is the government's intent, then that is one that it will achieve in theory.

In a judgement of the Supreme Court on 6 April this year, Chief Justice Kourakis said, 'did not accept that prisons are premises with a higher COVID-19 risk than other places.' That is open to a lot of dispute but on the application of a man charged with a domestic violence strangulation offence the Chief Justice found that the coronavirus pandemic did not at this point in time satisfy the special circumstances test.

Last week, the Supreme Court of Victoria granted bail to a woman in circumstances the judge described as 'extraordinary'. The judge referred to the possibility that significant delays in the justice process as a result of COVID-19 would have substantial effects on her and no doubt her relationship with her family which would be a dramatic development for a person who had not been previously in custody. His Honour also noted that it was likely the woman would spend more time in custody on remand than she would get as a sentence if found guilty.

New South Wales has already passed legislation to release some low-risk and vulnerable people. The Hon. Mark Parnell's amendment requiring a bail authority to have regard to the circumstances of COVID-19 and the need to guard against the spread of the pandemic if bail is sought for an offence not involving violence or the threat of violence is a sensible amendment. We believe magistrates are trying their best under the circumstances to do this already but it puts it beyond doubt, and for this reason we indicate that we will be supporting the amendment.

It is, however, concerning that there is no bill before us dealing with low-risk and vulnerable people in the justice system. I doubt the Attorney-General is working on that but, of course, we on the crossbench would be the last to know. At present, the Bail Act provides that if an eligible person applies for bail, the bail authority should release the offender on bail, having regard to a number of different factors. Of course, at present, there are a number of offences where there is already a presumption against bail and there are prescribed applicants who, when they come before the courts—and there are strict time limits on this—must show that there are exceptional circumstances for the court to release them on bail. This is often an opportunity for the court to apply a range of conditions and, of course, a breach of bail will result in a very swift revocation of bail.

This bill has been presented as protecting front-line workers but it places additional bail restrictions on the offence of trespass, something that has been canvassed by the Hon. Mark Parnell. We understand this may be necessary to protect commercial properties which are now often closed and potentially more vulnerable to break-ins. SAPOL has indicated that there has been a spike of 28 per cent in non-residential break-ins compared to the same period last year, February to April 2020, where businesses have needed to close their doors during the COVID-19 pandemic.

I am aware that SAPOL launched Operation Hurricane 2 on 10 March to target recent clusters of crime in South Australia, with a focus on break-ins and thefts. As at 31 March there have been 290 incidents of non-residential serious criminal trespass since business and venue closures were enforced on 16 March—that is a 15-day period. This amounts to an increase of 26 per cent or 82 offences when compared to the first two weeks of March. From all accounts this spike has continued in the last month.

On 8 April, a 48-year-old man was arrested inside commercial premises and charged with serious criminal trespass. He was granted bail. On 9 April, a 34-year-old man was charged with numerous offences, including aggravated serial criminal trespass, after allegedly breaking into a Morphett Vale car yard and stealing a motor vehicle and numberplates. He was refused bail. On 20 April, a 30-year-old man was arrested and charged with serious criminal trespass after being found inside a commercial building on Hutt Street. On 27 April, a 48-year-old man was arrested and charged with two counts of serious criminal trespass after a spate of CBD break-ins allegedly captured on CCTV. He was also charged with breach of bail, and refused bail.

While there may be a demonstrated need to further restrict bail for trespass on commercial properties, these provisions also cover trespass on residential properties. The need for private residence provisions has not been well-established, because one could expect this type of offending to decrease due to the homeowners or tenants being confined to working from home—again, as has been referred to by the Hon. Mark Parnell. In fact, I think at the briefing we had with the Attorney's office we were informed that these provisions did not come at the request of the State Coordinator or SAPOL.

The bill is therefore providing a very special protection to now vacant second private properties—the beach shacks and the holiday homes—that the owners are not able to let out, visit or self-isolate in at present, and I do wonder if this is an urgent need in this COVID-19 public health emergency bill, given it has not been highlighted by SAPOL or anyone else.

SA-Best, of course, strongly supports the second objective of this bill, and that is to afford additional protection to front-line emergency workers. Offenders who commit certain aggravated offences under section 28A or 28B of the Criminal Law Consolidation Act against a person who falls into the category of a person who is acting in the course of a prescribed occupation on a paid or voluntary basis should absolutely be prescribed applicants facing a presumption against bail.

There must always be a particular deterrence for offences against our dedicated and essential front-line workers. We have seen some sickening examples of such offending both here in South Australia and interstate, and an increase in mental illness and substance abuse during COVID-19 restrictions that can contribute to such offending. There have been some recent disturbing examples of assaults on police, including a woman who was taken to hospital for assessment after failing to stop at a border checkpoint and who allegedly coughed in the face of two police officers, and a 35-year-old Whyalla man who was arrested and charged with aggravated assault after he allegedly told a police officer that he had corona and coughed in his face.

Front-line occupations covered as part of this bill include emergency workers, those employed to perform duties in a hospital, those employed in retrieval medicine, medical practitioners, nurses, midwives, security officers or otherwise, medical or other health practitioners attending out of hours or on unscheduled callouts or assessing, stabilising or treating a person at the scene of an accident or other emergency in rural areas, passenger transport workers, police support workers, court security officers, bailiffs under the South Australian Civil and Administrative Tribunal Act, protective security officers and inspectors under the Animal Welfare Act.

We understand this list was compiled in a hurry, and reason that if a passenger transport worker is included then our essential and valued teachers, childcare workers and child protection workers should also have been considered for inclusion. If we had had sufficient time to deal with this, then perhaps that is something we could have explored further.

In closing, SA-Best commends the parliament on its responsiveness to COVID-19 thus far, and are also pleased to see the effectiveness of the measures thus far. We have asked questions of the Attorney-General about issues arising from COVID-19 in regard to child protection and child protection workers, and we understand the State Coordinator has raised these matters with the Attorney-General. We also anticipate further COVID-19 bills to come before us in the near future.

Of course, we fully support affording all the protections we can to our essential front-line workers who have not had the option of staying at home in the safety that isolation and other COVID-19 restrictions have provided to the rest of the South Australian community. I conclude my remarks for now, but will have some questions during the committee stage.

The Hon. R.I. LUCAS (Treasurer) (15:54): I thank honourable members for their contributions to the second reading of the bill and indicate that I have been given some responses to questions that have been raised. I am not entirely clear whether they were raised during the debate or whether they were raised during the briefing or both, but I will nevertheless put the answers on the record. Should the Leader of the Opposition have further questions that have not been answered during the committee stage of the debate—and I have an officer available—I will endeavour to provide further responses.

One of the questions that was raised was: is there a criminal trespass offence for non-residential premises that has not been included in the bail bill? The answer I am provided with is that there is only a serious criminal trespass offence in the Criminal Law Consolidation Act 1935 for non-residential premises. There is no similar offence to criminal trespass at a place of residence, as set out in section 170A for non-residential premises in the Criminal Law Consolidation Act.

The second question was: what is the rationale for including residential premises in the bill and not just non-residential premises? The answer is that SAPOL requested these amendments to help achieve a greater level of public safety during the emergency other than through the reliance on strict bail conditions alone.

The third question was: is there any information about who is committing the serious criminal trespass offence in non-residential buildings? Is it the same people reoffending? The answer is that SAPOL are currently running Operation Hurricane 2 aimed at reducing volume crime, including serious criminal trespass. The SAPOL intelligence function constantly looks at crime trends and in this case has identified several instances where recidivist offenders have been involved in recent crime, including serious criminal trespass on commercial premises. SAPOL cannot, however, provide an exact number on how many offenders are reoffending.

The fourth question was: why were the offences under section 5AA(1)(ka) included in the bill, as it appears that the offences in section 20AA would adequately cover all of those referred to in section 5AA(1)(ka)? The answer is that the offences which refer to section 5AA(1)(ka) of the Criminal Law Consolidation Act and section 20AA are two different groups of offences. It was decided that there needs to be a reference to both groups to ensure full coverage of offences against emergency workers in the bail bill.

The fifth question was: who was consulted in relation to the bill? Just on that, I think a question was raised by way of inference perhaps as to whether the cabinet had decided on this bill some time before. My advice is that cabinet only approved this legislation last Thursday. The joint party room, which is our normal process, did not approve the legislation until this Monday. Whilst I can understand the concerns about lack of appropriate consultation, it was not on the basis of cabinet having decided the position some days or weeks ago and deliberately deferring the consultation with the opposition or other parties.

The draft bill was sent to the following, I understand, on Friday of last week—bearing in mind cabinet approved it on Thursday, the joint party room still had not approved it until this Monday—the Chief Magistrate, the Chief Judge of the District Court, the Chief Justice, the state courts coordinator, the ALRM, the Legal Services Commission, the Law Society and the South Australian Bar Association. I again acknowledge that the time for some of those organisations to respond, given the parliament is now considering this on Thursday, is indeed much shorter than is the normal process.

I take seriously the endeavours on behalf of government members in this chamber to work cooperatively with all members in this chamber, including in particular crossbench members, and I note the comments of the Hon. Ms Bonaros. I can indicate on behalf of the government in this chamber to the best extent that is possible, and to the best extent that I can, that I will try to ensure that all members are treated as fairly as is possible. I of course cannot bind all of my colleagues. There may well be occasions when we fall short of an ideal process in this chamber, but I give on behalf of government members in this chamber an expression of best endeavours.

There is certainly no deliberate attempt to slight any individual member of the Legislative Council. Sometimes we are less than perfect in terms of timing consultative practice. To the extent that I can influence matters as a member of the cabinet, I will do my level best to try to ensure fair treatment of all members in this chamber and, at the earliest possible, give notice that we might be able to ensure it. But, as I said, bear in mind our normal process is that we would not consult anybody—anybody being other members of parliament—until the joint party room has approved our process.

Whilst not common, it is not unheard of that our joint party room may well express a different view or a request to the view of one minister and possibly to cabinet in relation to these issues. That is our democratic process. It is only in these sorts of extraordinary circumstances that we would normally move away from that process, where we are consulting other parties prior to the joint party room having approved our process. As I said, I can only give an indication of best endeavours on behalf of government members in the chamber, but I do so as the Leader of the Government. We will seek to do better in terms of consultation on these important bills.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

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

Amendment No 1 [Parnell–1]—

Page 3, after line 7 [clause 3, inserted section A1]—After paragraph (c) insert:

(d) after section 10A insert:

10B—COVID-19 pandemic

(1) Without limiting the matters that may be considered by a bail authority in accordance with this Division, a bail authority must have regard to the circumstances of the COVID-19 pandemic and the need to guard against the spread of the pandemic.

(2) This section does not apply in relation to an application for bail by a person who has been taken into custody in relation to an offence involving violence or a threat of violence.

As I alluded to in my second reading contribution, this amendment seeks to require bail authorities to take into account the fact that we are in a public health emergency. I know members might think, 'Well, surely they would do that already.' I think the answer is that they probably will not. We have heard that some have. The Attorney-General's response to me in relation to this was, 'Well, they can take into account that we are in the emergency when deciding bail applications.'

Just to tease this out, the sections that we are talking about in the Bail Act include section 10, which is described as the presumption in favour of bail. It basically says that the bail authority can take into account a whole lot of things that might overturn the presumption in favour of bail. The classic example is that they think the person will reoffend. Well, if they think the person is going to reoffend, you better not let them out on bail. That sort of makes sense. We are very comfortable and familiar with that.

The government's rationale for not approving my amendment relates to section 10(g) 'any other relevant matter.' At one level, you can say, 'Oh well, I suppose the bail authority could take into account that we are in a COVID-19 pandemic.' They are not obliged to. It is not set out anywhere. They could take the initiative to take it into account, but they certainly do not have to. That is section 10.

Section 10A, as we have been talking about, is the presumption against bail, and the bill that we are going to pass today actually increases the range of offences for which there will be a presumption against bail. My amendment is to insert a new clause 10B, which basically does not provide either a presumption for or a presumption against bail, so it does not neatly fit into either of those categories.

It basically says that without limiting any of the things that a bail authority has to take into account they must have regard to the fact that we are in a COVID-19 pandemic. It obliges them to put their mind to it. It does not tell the bail authority, 'Therefore you must grant bail,' or, 'Therefore you must deny bail.' It does not seek to tell them what to do; it tells them to take it into account, which is consistent with every other bit of COVID legislation that we have been passing over these last several weeks.

To make it crystal clear, I am not interested in letting violent offenders or people accused of violent offences out on bail, so I have put in a particular provision that says that the requirement to take COVID into account does not apply to violent offences. I do not want to be said to be trying to let inappropriate people out loose in the community when they may well need to be incarcerated for the protection of the community.

Honestly, I thought this was about as meek and mild an amendment as could be conjured up, given that it is limited only to bail applications. I said before in my second reading contribution that there is a separate issue of whether there are a whole lot of people already in gaol who perhaps do not need to be there and are adding to the risk to the workers in gaols, the prisoners themselves and their visitors.

My amendment does not deal with any of these people, convicted or otherwise, already in gaol. It only deals with routine bail applications, and it simply requires bail authorities to take COVID into account. I could not have thought of a more innocuous or simpler amendment that is stating the bleeding obvious, to put it in the vernacular, and I am disappointed that neither Liberal nor Labor has seen fit to support it.

The Hon. R.I. LUCAS: I indicate on behalf of the government that the government will be opposing the amendment for the following reasons. I am advised that the effect of this amendment is to require bail authorities, which are courts and police, to have regard to the circumstances of the COVID-19 pandemic and the need to guard against it spreading when considering whether to grant bail.

Further, bail authorities are not required to take into account the COVID-19 pandemic and the need to guard against its spread if the person applying for bail is charged with an offence involving violence or a threat of violence. This amendment has far-reaching consequences, as it applies to all applications for bail, not just related to those changes before us in this bill.

The government considers this amendment to be unnecessary, as the management of the risks associated with the COVID-19 pandemic is a relevant matter that bail authorities would already have regard to under section 10(1)(g) of the Bail Act 1985. This already allows suitable adjudication of risk by the court, taking into account the safety of the prisoners, the corrections officers, the bail applicant and the community.

The question of whether bail should be granted is a matter for the court's discretion, having regard to the factors set out in the Bail Act 1985. It should be left to the court to decide whether the COVID-19 pandemic is a relevant factor to be considered in deciding bail and not for legislative provisions to mandate when it is relevant or not.

As the Attorney has stated previously, there are a number of worthy changes occurring in COVID-19 responses, including amendments proposed by the members of parliament and stakeholders. The government will be considering these suggestions beyond COVID, to determine what should and should not be extended outside this pandemic. As such, the government opposes this amendment.

The Hon. K.J. MAHER: I indicated in my second reading contribution that the opposition would not be supporting this amendment. I appreciate the Hon. Mark Parnell's characterisation in pleading that this is a meek and mild amendment and it should not have much trouble finding support. We can understand what the Hon. Mark Parnell is trying to do. I think I might have misunderstood and mischaracterised it in my second reading speech, and it might be worth clarifying. I think I had understood it to apply to only those new presumptions against bail that were being introduced by this bill, but does it apply wider, to anyone who is applying for bail? I will disappoint the Hon. Mark Parnell, not that it makes any difference. I am just saying that we support it even less if that understanding is the case.

To reiterate what I said before: we think it is a responsibility of the government to make sure that those who are in their custody, in whatever situation, particularly those in gaol, are housed safely and appropriately. We do not think it should be the responsibility of those who are deciding whether someone, for whatever reason, be removed from society for the protection of the rest of society. That could well be one of the reasons that residential and commercial properties are included in addition to the deterrent effect, real or perceived, that we talked about, or convincing the public that policymakers and parliamentarians are acting appropriately.

It might be that taking the presumption against bail removes someone off the street, in effect, who might go out and break into another place. We think it should be the responsibility of the government to make sure that those who do not get bail and are on remand in our prison system should be housed appropriately and safely, and for that reason we will not be supporting this amendment.

The Hon. C. BONAROS: For the record, again I indicate that we will be supporting the amendment. We know its outcome, but we will nonetheless support it. You were looking down, Chair, when I stood to my feet at clause 1, so I have a question for the Treasurer. Given the Treasurer's comments about the need to guard against the spread of COVID-19, and that New South Wales has passed legislation specifically related to prisons, I would like to know whether we have contemplated similar changes here relating to low-risk or vulnerable groups in prisons.

The Hon. R.I. LUCAS: I can provide a little bit of information, but I am happy to take on notice and see whether the minister can provide anymore information. In some notes that officers have provided to me, I am advised that the Department for Correctional Services has already commenced specific work to prepare for a potential outbreak, including development of contingencies to address matters such as—and then there are a series of matters—staff shortages, changes to operational practice and daily routine within the prison system.

The final dot point comes to the point the Hon. Ms Bonaros was addressing: the identification, exploring strategies to manage high-risk cohorts and vulnerable prisoners, for example, prisoners over 65, Indigenous prisoners over 50, prisoners with chronic health conditions and severe and enduring mental illness. I am assuming that they would come within the honourable member's definition of vulnerable groups, and there will be others. It does not provide any detail as to exactly what has been done other than saying that it is recognised that the department is aware of the issue and is undertaking work to address those particular issues. It does not provide detail as to what has been done.

The Hon. C. BONAROS: I may have missed this part of the Treasurer's reply, but does it include the implementation of a plan for our prisons that potentially could see the release of those groups if there was a breakout of COVID-19?

The Hon. R.I. LUCAS: No, there is nothing in what I read out that would indicate exactly what is being proposed. It is certainly not canvassing the issue of the release of prisoners in those particular groups. It was just identifying a series of issues during a pandemic, or something like that, and what are the issues the Department for Correctional Services recognises are issues it will need to address and looking at strategies to manage them. So it did not indicate which particular strategy.

There may well be some people in other states and other countries who may well address those same groups and look at release strategies, but that particular document there did not indicate one particular view or another in relation to that. It just said, 'It is acknowledged it is an issue and the department needs to have a look at it,' but it does not provide any detail as to their specific attitude to any particular policy.

The Hon. C. BONAROS: I appreciate that included those vulnerable groups. There was no mention of prisoners who may be on remand longer than their sentence or about to end their sentence. Are they also covered by the same strategy?

The Hon. R.I. LUCAS: I hasten to say that in the notes I have just read it said 'such as'; it included those. It may well include a range of other groups as well, but they were the four or five that were given as examples. I do not think we should take it as an exhaustive list, as if they are the only groups in relation to which the department acknowledges whether or not it should address particular strategies to those particular groups or not. I think it was just an illustrative list of a number of groups, but there would be others as well.

The Hon. C. BONAROS: I am advised that the Attorney has indicated at some point that this will be a decision that is left to Corrections rather than the government to manage. Is that the Treasurer's understanding, that this will be a decision that Corrections will manage itself, as opposed to being guided by government policy?

The Hon. R.I. LUCAS: The first point I would make is that I am not sure what the Attorney may or may not have said, but as a matter of general policy and principle, if there was to be a significant change of policy by a minister and/or department, they would normally have a discussion with the cabinet, whether it be by way of a submission or a cabinet note. If it was a continuation of an existing practice, then it would be managed within the normal arrangements. It does not preclude a discussion at cabinet on an issue, but that would be unusual.

So if a minister and/or department proposed a significant change, in particular if it was potentially likely to be controversial in the community, then the normal expectation is that there would be some discussion at the cabinet level. The normal expectation is at the very least that the minister would have some discussion with his or her department in relation to how a particular topic or issue might be managed.

Clearly, if I move away from Corrections into police, there is a significant degree of operational control that the police might have. There may well be an element of operational control in relation to existing policy—once the policy is established the department is left to its own decisions in terms of the way that policy is implemented. But again, if there was to be a significant change in policy direction, if it was likely to impact significantly on prisoner numbers—either more or less—in our prison system, then clearly those issues would have an expectation of coming to cabinet, because there may well be resource implications, both staffing and facilities.

The Hon. C. BONAROS: I have done my due diligence and read the second reading explanation of the Attorney, and my understanding is, from memory, she has said that it would be left to Corrections, which has a plan in place, but we do not have any detail of that plan. There is a strategy in place, we understand, through Corrections. Is there any intention on the part of the government to release that plan so that we can also be aware of what is likely or unlikely to occur if there is an outbreak in our prisons?

The Hon. R.I. LUCAS: I have to take that on notice. I am just not familiar with the area in terms of the way the minister and the department are handling those particular issues. I would have to take that on notice, and if there is any further information the minister and the department can provide we will endeavour to provide that to the honourable member.

Amendment negatived; clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:20): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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