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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-09 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:55): 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.

The Statutes Amendment (Attorney-General's Portfolio) Bill 2020 makes miscellaneous amendments to various Acts committed to the Attorney-General. It addresses a number of minor or technical issues that have been identified in legislation.

To begin, the Bill first amends the Bail Act 1985 and Youth Court Act 1993.

Mr President, Parts 2 and 9 of the Bill amend the Bail Act 1985 and the Youth Court Act 1993 to address an omission in relation to the Statutes Amendment (Bail Authorities) Bill 2020 ('the Bail Authorities Bill').

As members will be aware, the Bail Authorities Bill, which recently passed Parliament, amended the Bail Act and other various Acts so as to provide that each of the Supreme Court, District Court and Magistrates Court are bail authorities pursuant to the Bail Act, and to allow each of those courts to make Court Rules specifically in relation to bail applications.

Following the passage of the Bill, the Youth Court raised concerns regarding the possible exclusion of the Youth Court as a bail authority as a result of the amendments made by the Bail Authorities Bill.

This is because, unlike the amendments made by Bail Authorities Bill, the existing Bail Act implicitly recognises the Youth Court as a bail authority. While this issue was not identified prior to the passage of the Bail Authorities Bill, despite previous consultation with the Chief Justice, Chief Judge and Chief Magistrate, it has now been rectified.

It is appropriate that the Youth Court continue to be included as a bail authority for the purposes Bail Act. For the avoidance of doubt, the Bill therefore amends the Bail Act and Youth Court Act, in the same terms as the Bail Authorities Bill, to expressly prescribe the Youth Court as a bail authority pursuant to the Bail Act, and to allow the Youth Court to make Court Rules in relation to bail applications.

Part 3 of the Bill makes various amendments to the Criminal Law Consolidation Act 1935 ('CLCA') to address a range of issues which have arisen in recent months.

Firstly, the Bill amends the prescribed emergency worker provisions in the CLCA to address certain inconsistencies arising from the operation of each of the offences in ss 20AA and 20AB in comparison to other relevant offences which may be committed against the person as provided for in Division 7A of the CLCA.

Relevantly, the Bill inserts a definition of 'reckless' conduct for the purposes of s 20AA and substitutes the definition of 'harm' in s 20AB, so that each of these terms have the same meaning as they appear in Division 7A. In addition, a further amendment is made to s 20AA to clarify that harm caused to a prescribed emergency worker, as a result of coming into contact with human biological material, must be established as a separate element of the offence.

Secondly, an amendment is made to s 269X to allow for a defendant to be remanded to a prison, pending a determination by the court of the defendant's mental competency, where considered clinically appropriate. These amendments respond to concerns which have been raised by the courts, namely, that remand to a prison is currently not permitted under the CLCA, even where it would not be clinically inappropriate in the circumstances. In this way, the Bill will provide the Courts with greater flexibility to determine appropriate custodial arrangements for defendants whose mental competency is being investigated.

The Bill distinguishes between two categories of defendants. That is:

Defendants who are still in the process of having their mental competency to commit an offence or their mental fitness to stand trial investigated; and

Defendants who have already been assessed as being liable to supervision (by either reason of mental incompetency or unfitness to plead), but for whom the precise terms of any orders are yet to be finalised.

In the case of the first category, the amendments allow for the defendant to be remanded to a prison, unless:

The defendant is an involuntary inpatient at a treatment centre subject to an inpatient treatment order—in which case, the defendant must continue to be confined at the treatment centre for the duration of the order (and any subsequent orders that may be made); or

The designated officer is satisfied that the defendant is not being detained in an appropriate form of custody—in which case, the designated officer may determine an appropriate form of custody.

In the case of the second category of defendants, (i.e. those defendants who have already been deemed liable to detention), the amendments allow for the defendant to be committed to an appropriate form of custody, as may be determined by the Minister, until some subsequent date when the defendant is brought again before the Court.

This amendment has been carefully drafted with the assistance of the Chief Psychiatrist and the Courts to ensure it reflects best practice for defendants.

Thirdly, a further amendment is made to s 86A of the CLCA to replace outdated references to the 'Children's Protection and Young Offenders Act 1979' with the 'Young Offenders Act 1993', and the 'Children's Court' with the 'Youth Court', to reflect current arrangements. This reflects legislative changes which have passed under previous Governments.

Part 4 of the Bill amends the Oaths Act 1936 to allow for the Attorney-General, rather than the Governor, to appoint certain persons as Commissioner for taking affidavits in the Supreme Court. An expected use of this power is to authorise certain employees of Forensic Science SA ('FSSA') to take affidavits in-house.

FSSA staff are regularly required to provide expert evidence in criminal cases. The Criminal Procedure Act 1921 currently requires all witness statements in serious criminal matters to be filed as affidavits during the committal process. These affidavits must be sworn before an authorised person, such as a lawyer or Justice of the Peace.

Mr President, the FSSA currently provides over 1500 witness statements each year. This creates practical difficulties for the FSSA in arranging for authorised persons to witness the hundreds of statements their staff are required to make.

Sub-section 28(1)(e) of the Oaths Act currently requires the appointment of authorised persons (including FSSA staff) as Commissioners for taking affidavits to be made by the Governor in Executive Council. This is a time consuming process. The Bill proposes to simplify this process by allowing the Attorney-General to directly appoint authorised persons via gazettal notice.

Part 5 of the Bill amends the definition of 'occupational liability' in the Professional Standards Act 2004 to remove the exclusion of equitable damages from the operation of the limited liability afforded by professional standards schemes.

Currently, the Professional Standards Act limits the definition of 'occupational liability' to only include civil liability arising in 'tort, contract or statute'. As a result, claims for equitable compensation—for example, breach of fiduciary duty or unconscionability—fall outside the scope of the capped liability offered to occupational associations with professional standards schemes in place.

The concern is that this may encourage tactics of making equitable claims so as to evade the intended operation of the Act. These tactics increase the uncertainty of litigation as well as the costs of insurance premiums which are ultimately likely to end up being borne by the consumer, contrary to the intention of the Act.

Consistent with the position of all other Australian jurisdictions, the Bill amends the definition of occupational liability so that the capped liability afforded by professional standards schemes is taken to apply to civil liability arising in 'tort, contract or otherwise.'

Mr President, Part 6 of the Bill amends the South Australian Civil and Administrative Tribunal Act 2013 ('the SACAT Act') to provide that either a District Court Judge or a Supreme Court Judge may be appointed as the President of SACAT. Currently, the SACAT Act provides that only a Supreme Court Judge may be appointed as the President of SACAT.

These amendments arise as a consequence of the recent establishment of the new Court of Appeal. The concern is that, having divided the work of the Supreme Court into the Court of Appeal and General Division, there will be an increased cost impact should an additional Supreme Court Judge need to be absorbed into either of these divisions in the event of a SACAT President (who holds a dual commission as a Supreme Court Judge under the SACAT Act) resigning their position as SACAT President or not seeking reappointment to that position at the end of their statutory five year term.

It is noted that, aside from the valuation appeals and other minor former Supreme Court jurisdictions, the majority of the more senior jurisdictions conferred on SACAT are jurisdictions which have been transferred from the District Court's Administrative and Disciplinary Division. Also, the President of the South Australian Employment Tribunal ('SAET') is a District Court Judge. Consistent with the SAET President, the amendments ensure that any District Court Judge appointed as the President of SACAT will have the same rank, title, status and precedence as a judge of the Supreme Court.

For the avoidance of any doubt, these changes will only apply after the existing SACAT President, the Honourable Justice Judy Hughes has left office as SACAT President and a new SACAT President is to be appointed.

Part 7 of the Bill amends the Summary Offences Act 1953 to provide for exclusions from the operation of the offence in section 21OC of that Act, which has yet to commence.

Section 21OC introduces a new offence for a person that supplies liquor or possesses or transports liquor with intention to supply it, to a person in a prescribed area.

Prescribed area for the purposes of section 21OC means:

an area comprised of a public place or public places specified in a notice under section 131 of the Liquor Licensing Act 1997; or

Trust Land within the meaning of the Aboriginal Lands Trust Act 2013; or

'the lands' within the meaning of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; or

'the lands' within the meaning of the Maralinga Tjarutja Land Rights Act 1984.

The section 21OC offence was introduced as part of a package of reforms within the Summary Offences (Liquor Offences) Amendment Act 2018 to target and reduce the incidents of the unlawful sale of liquor and supply of liquor to vulnerable, predominantly Aboriginal communities, where the possession and consumption of liquor is generally prohibited, colloquially known as 'grog running'. Members may recall this Bill was first introduced by the former Government, and subsequently reintroduced and passed by this Government in 2018.

This package of reforms was introduced because of the recognised need to address alcohol-related harm occurring in some vulnerable remote Aboriginal communities. New measures were needed to protect these communities from alcohol-related harm, including harms such as serious violence, disorder, antisocial behaviour, family and domestic violence and resultant health problems.

Currently Anangu Pitjantjatjara Yankunytjatjara and Aboriginal Lands Trust have exercised their statutory power to introduce regulations and by-laws prohibiting the consumption and possession of liquor within areas of their own communities in accordance with those regulations and by-laws. These regulations and by-laws seek to address the issue of alcohol abuse in these communities and identified harms by limiting liquor possession and consumption.

The proposed provision disapplies the offence created by section 21OC for persons in prescribed areas (or parts of prescribed areas) where the consumption and/or possession of liquor is not unlawful.

Under this Bill, the application of the offence in section 21OC will therefore be consistent with the laws applying in prescribed areas in relation to the consumption and/or possession of liquor. The Bill will ensure that the section 21OC offence is consistent with the Aboriginal communities' own self determined position in relation to regulating the possession and use of liquor. It is intended that under this Bill, section 21OC will work together with and complement existing and any future regulations and by-laws introduced by Aboriginal communities in prescribed areas, to aid in the effectiveness of their laws regulating the possession and consumption of liquor.

The exclusions were formerly proposed to be included in the regulations. However, following further consideration and consultation with interested parties including representatives of the communities affected by the new offence, it was determined to include them in the Summary Offences Act 1953. This will make it clear that it is Parliament's intention that section 21OC will work together with the affected communities' laws within prescribed areas to stem the flow of liquor into vulnerable communities.

Lastly, Mr President, Part 8 of the Bill amends section 48 of the Young Offenders Act 1993 to provide that the offence of escape from custody does not apply to a youth who is detained subject to a youth treatment order under the Controlled Substances Act 1984.

As members will be aware, the Controlled Substances (Youth Treatment Orders) Amendment Act 2019 provides the Youth Court with the option to order treatment for children and young people experiencing drug dependency.

Consistent with the principles of best care which underpin the Youth Treatment Order Scheme, the amendments in this Bill ensure that a youth who escapes from custody, while subject to detention under a youth treatment order, will not be liable to any criminal sanctions.

Mr President, this concludes the matters that are the subject of this Portfolio Bill. While this Bill covers many different areas, it deals with important issues to ensure our justice system works efficiently and effectively for our community.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 5—Bail authorities

This clause provides that the Youth Court is a bail authority.

Part 3—Amendment of Criminal Law Consolidation Act 1935

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

This clause clarifies that causing human biological material to come into contact with a prescribed emergency worker may cause harm to the worker, but will not be taken to have caused harm to the worker.

This clause also inserts a definition of 'recklessly' into section 20AA.

6—Amendment of section 20AB—Further offence involving use of human biological material

This section substitutes the definition of 'harm' in section 20AB.

7—Amendment of section 86A—Using motor vehicle without consent

This clause replaces outdated references to the Children's Protection and Young Offenders Act 1979 and the 'Children's Court' with the updated references.

8—Amendment of section 269X—Power of court to deal with defendant before proceedings completed

This clause amends section 269X(1) to provide that, if an investigation into, inter alia, a defendant's mental competence is to occur, the court may order that the defendant be detained as though the defendant were remanded in custody awaiting trial or sentence, until such time as the relevant investigation is concluded.

However, if the defendant is, at the time of such an order, an involuntary inpatient at a treatment centre in accordance with the Mental Health Act 1993, the defendant is to remain in that treatment centre during the course of the investigation. If the relevant investigation is not concluded at the time the defendant is released from the treatment centre, the defendant is to be detained as if remanded in custody awaiting trial or sentence.

This clause also provides that where the designated officer is, at any time, satisfied that a defendant who is detained in these circumstances is not being detained in an appropriate form of custody, the designated officer may determine an appropriate form of custody.

This clause further amends section 269X(2) to provide that, where a defendant is liable to a supervision order under Part 8A of the Criminal Law Consolidation Act 1935, but unresolved questions remain as to how the defendant should be dealt with, the court may commit the defendant to an appropriate form of custody determined by the Minister.

9—Transitional provision

This clause provides that if a defendant is in a form of custody pursuant to an order made before the commencement of clause 8 of this measure, the custody of the defendant may, after such commencement, be determined in accordance with section 289X as amended by this measure.

Part 4—Amendment of Oaths Act 1936

10—Amendment of section 28—Commissioners for taking affidavits

This clause amends section 28(1)(e) such that the Attorney-General, by notice published in the Gazette, rather than the Governor, may appoint persons other than those already listed in section 28(1) to be Commissioners for taking affidavits in the Supreme Court.

Part 5—Amendment of Professional Standards Act 2004

11—Amendment of section 4—Interpretation

This clause broadens the definition of 'occupational liability' such that it is not limited to liability arising from tort, contract or statute, but can include liability arising in equity.

12—Amendment of section 5—Application of Act

This clause broadens the application of the Act, such that it is not limited to liability arising from tort, contract or statute, but can include liability arising in equity.

Part 6—Amendment of South Australian Civil and Administrative Tribunal Act 2013

13—Amendment of section 10—Appointment of President

This clause amends section 10 to provide that the President of the South Australian Civil and Administrative Tribunal may be a judge of the Supreme Court or the District Court.

Part 7—Amendment of Summary Offences Act 1953

14—Amendment of section 21OC—Supply etc of liquor in certain areas

This clause provides three exceptions to the offence set out in section 21OC(1) of the Summary Offences Act 1953 (inserted by the Summary Offences (Liquor Offences) Amendment Act 2018 which is yet to commence) relating to the legality of the consumption or possession of liquor by the third person under another Act or law.

Part 8—Amendment of Young Offenders Act 1993

15—Amendment of section 48—Escape from custody

This clause substitutes section 48(6) to add that section 48 does not apply to a youth subject to a detention order under Part 7A of the Controlled Substances Act 1984.

Part 9—Amendment of Youth Court Act 1993

16—Amendment of section 32—Rules of Court

The Youth Court will be a bail authority by force of this measure under Part 2. This clause allows Rules of the Court to be made regulating the making of bail applications.

Debate adjourned on motion of Hon. I.K. Hunter.

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