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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-24 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 September 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:44): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. This bill contains various amendments to seven pieces of legislation within the Attorney-General's portfolio across both criminal and civil law. As admitted by the Attorney in the other place, this is another mop-up bill that institutes minor changes. I think the Attorney went so far as to describe her own bill as a rats and mice piece of legislation.

Whilst the parliament must consider legislation that is housekeeping, we certainly encourage the government to bring forward legislation that also makes a real difference for our community. We know that there have been big things that we have been dealing with, including responses and powers in relation to the COVID-19 pandemic. This bill contains a range of measures that are mainly intended to increase efficiency and productivity across the justice system.

Labor generally supports the provisions in this bill, but there are elements that we will seek to more closely examine in the committee stage. There is one particular area that we will seek to better understand, and I will come to that later. With regard to the technical aspects of the bill, it first amends the Bail Act 1985, it names the Youth Court as a bail authority and explicitly confirms the court's power to make rules regarding bail.

This amendment aims to clear up inconsistencies and doubt arising from the government's prior bail authorities bill and remedies concerns raised by the Youth Court. On this point, it is disappointing that the government brought in earlier legislation with such clear flaws, when the Attorney-General spends so much time chastising others for getting legislation wrong or even potentially getting legislation wrong. We find that so often it is the Attorney-General who has botched legislation that has us coming back time and time again to fix up her mistakes.

The final clause of the bill also amends the Youth Court Act to clarify that the Youth Court is a bail authority pursuant to the Bail Act. This change is again to avoid doubt and rectify ambiguity on this topic. Next, the bill amends multiple provisions of the Criminal Law Consolidation Act 1935. It discusses certain offences involving human biological material. Section 20AA relates to the offence of causing harm or assaulting emergency workers.

The bill removes the immediate assumption that harm is caused by virtue of it being biological material. It does this by adding that harm may be caused by biological material but is not automatically taken to have caused harm. This means that harm must be established as a separate element of the offence. The Attorney-General has provided an assurance that this will in no way reduce protections for frontline emergency workers.

The bill also increases the consistency of certain definitions in the act. In the same section, the bill clarifies the definition of the term 'recklessly' to align with other parts of the Criminal Law Consolidation Act. The bill adds a definition of 'harm' in section 20AB, involving offences of human biological material against another person. The bill makes the meaning of 'harm' consistent with the definition of 'harm' in division 7A of the Criminal Law Consolidation Act.

The bill updates outdated terms in the Criminal Law Consolidation Act in the offence of using a motor vehicle without consent pursuant to section 86A. Here, it substitutes the act's terms of 'children's court' and 'Children's Protection and Young Offenders Act 1979' with the 'Youth Court' and the 'Young Offenders Act 1993' respectively.

The bill makes larger changes to section 269X of the Criminal Law Consolidation Act. That section deals with the court's power to deal with the defendant before their proceedings are complete, particularly about their places of detention, when they are undergoing mental competence investigations. Some defendants in the justice system may need investigations by mental health professionals during a trial. This could include an assessment of a defendant's mental competence to commit an offence or their mental fitness to stand trial.

As the current law states, when the court is waiting for such an investigation to finish or when considering whether there should be such an investigation, the court can do two things: the court can either release the defendant on bail or commit them to an appropriate form of custody until the investigation ends. The current act specifies that custody is, and I quote, 'not a prison unless the court is satisfied that there is, in the circumstances, no practicable alternative.'

When a defendant's mental competence or fitness to stand trial is being investigated, the bill allows courts to order detention in custody until the investigation ends. The bill repeals the stated preference to avoid prison as a place of appropriate custody for these defendants. The bill also proposes that the minister can determine an appropriate form of custody where a court places a defendant under supervision orders. For defendants who are involuntary inpatients at a treatment centre but are released before their mental competence investigation ends, the bill proposes that they should be detained in custody as if awaiting trial or sentencing.

Finally, on this matter, the bill proposes that, if a designated officer deems a defendant's existing custody circumstances are inappropriate, they may determine an appropriate form of custody. While supporting this provision, it is important that vulnerable detainees are appropriately supported.

Next, the bill deals with the Oaths Act 1936. It amends section 28 to change who can authorise a commissioner for taking affidavits. The bill amends the act to permit the Attorney-General to appoint commissioners for affidavits via notice in the Gazette rather than via the Governor as per the current legislation. We have been advised that this is intended to be an efficiency measure, as the government claims that appointment by the Governor can be cumbersome and time consuming.

Next, the bill amends the Professional Standards Act 2004 in two provisions to redefine occupational liability to include equitable liability. This is a simple measure to bring South Australia in line with other states and other jurisdictions around the country. The bill amends the interpretation of the act by expanding the scope of 'occupational liability' to include equitable liability, not just liability in tort, contract or statute. The bill also amends the SA Civil and Administrative Appeals Tribunal Act 2013, or the SACAT Act. The amendments to this act allow that the President of SACAT may be a judge of the District Court or the Supreme Court.

Currently, only Supreme Court judges can fill that position. The government advises that this is arising from cost impacts of the recently established Court of Appeal. We were advised that if a SACAT president with dual roles across SACAT and the Supreme Court resigned, the government would need to absorb another judge into the Supreme Court or Court of Appeal. Whilst not objecting to this amendment, it is noted that the government may have failed to properly plan for the Court of Appeal that it pushed so hard to establish.

The bill also introduces amendments to the Young Offenders Act regarding escape from custody when a young person is under a youth treatment order under part 7A of the Controlled Substances Act. For these young people, the bill provides that escaping from lawful custody will no longer be a criminal offence. The bill excludes such youths under treatment orders from the six-month maximum detention penalty for escaping custody.

I will direct my final remarks to clause 14 of the bill that amends the Summary Offences Act 1953. In particular, it amends section 21OC relating to the supply of liquor in certain areas. The bill inserts a new exclusion provision, subsection (1a), to exclude certain people from the offence under section 21OC of supplying, transporting or possessing liquor in prescribed areas or dry zones. This includes, as it was discussed in briefings, Aboriginal lands under the Aboriginal Lands Trust Act, the Anangu Pitjantjatjara Yankunytjatjara Lands Act and the Maralinga Tjarutja Lands Act.

The existing offence penalises people who supply, transport or possess liquor to supply it illegally to another person in a dry zone—sometimes colloquially known as grog running. It carries heavy penalties of $20,000 or $40,000, depending on the seriousness of the offence. Unfortunately, the offence under section 21OC has not yet come into force, but it was passed as part of the Summary Offences (Liquor Offences) Amendment Act in 2018.

The government has stated that the offence under section 21OC was introduced to address alcohol-related harm and abuse in some Aboriginal communities and to support APY and Aboriginal Lands Trust by-laws that prohibit the consumption or possession of alcohol within their communities. As an opposition, we are still unsure why it is necessary to introduce an exclusion clause for this offence.

The amendment would exclude guilt of the offence of grog running under three circumstances: firstly, if liquor is not prohibited by another law; secondly, if it is not prohibited where the supply takes or is intended to take place; or thirdly, where a person may in the circumstances be exempt from any prohibitions on liquor consumption or possession.

We would be keen in the committee stage to tease this out as to what is the reason that this is required? Could this make it easier for grog running or the possession or consumption of alcohol in areas where Aboriginal communities have determined that they do not want alcohol? We are very keen to find out the genesis of the need for this.

In the other place, the Attorney spent time talking about entities like Anangu Pitjantjatjara Yunkunytjatjara, Maralinga Lands Council, regional community councils and Aboriginal corporations as relevant stakeholders; however, when asked what discussions had actually taken place with owners and managers of statutory Aboriginal landholding authorities, the Attorney said, ' I have just listed a whole lot of them. A number of them did not respond at all.'

I am very concerned about that statement that it is thought to be good and relevant consultation where emails were sent and nothing was done to elicit a response or to follow up from those and that is counted as consultation with Aboriginal communities. I do not think that is proper consultation and I will foreshadow that we will be spending some time in the committee stage understanding what Aboriginal communities' views are on this.

I will foreshadow as well that, despite having asked questions during briefings and asked for follow-up information, we are not much wiser about why this is needed and what its intended purpose is. This may be a clause that we cannot support unless we can get a better understanding of it during the committee stage. The Attorney-General says this clause was initially intended to be introduced in 2018 but was delayed until now. Again, we do not understand that and we would be keen to understand why it was necessary, what it seeks to overcome and who was consulted with.

To foreshadow further as we look at this clause in committee if, for example, APY has introduced a by-law that alcohol is not permitted in communities, what work does this particular clause do in overriding the wishes of APY making a properly constituted decision in relation to that? We would be very keen for the examples of where this actually has work to do and if it does not have work to do, why are we introducing it?

Having said that, we look forward to the passage of this bill but outline that we are keen to get a better understanding of that particular measure and flag that if we do not get a better understanding of it than we have already we might not be in a position to support that particular amendment in this bill.

The Hon. F. PANGALLO (16:57): I rise to speak on the Statutes Amendment (Attorney-General's Portfolio) Bill 2020. This bill makes a range of miscellaneous amendments to eight acts within the Attorney-General's portfolio. Some of these amendments are minor but some of them are not and are worthy of more intense scrutiny; however, all of the amendments are remedial, the kind of repairs that are inevitably needed when government rushes through legislation at the last minute, as is the habit, giving the Legislative Council limited time to perform its proper function as the house of review.

Notwithstanding the resources and expertise available to the government and our wonderful Office of Parliamentary Counsel drafters, this bill illustrates the serious risks of pushing through legislation with urgently scheduled briefings, truncated timelines, a lack of opportunity to thoroughly interrogate the bill or seek second briefings, an absence of real consultation and without access to feedback received.

As a case in point, we have had this bill that makes changes to no less than eight pieces of legislation for about two weeks, receiving it in the Legislative Council on 9 September 2020. We were recently made aware of another bill, only because we read the Law Society of South Australia's submission on the said bill. When we subsequently requested a copy of the draft bill, on the understanding that it was a draft, we were denied it. So much for open and transparent government.

I often contemplate what good laws and quality legislation we would make in this place if there were a spirit of cooperation and collaboration. I have no issue with the amendments to the Bail Act 1985 and the Youth Court Act 1993, expressly prescribing the Youth Court as a bail authority. As I understand it, that is a clarification only for the avoidance of doubt.

I accept the government is responding to questions raised by the Youth Court following the passing of the Statutes Amendment (Bail Authorities) Bill 2020 and that this amendment is to answer that question clearly and unambiguously. Similarly, the amendments to the Criminal Law Consolidation Act 1935 offence of causing harm to or assaulting certain emergency workers are some administrative fixes, as well as a welcome addition of the insertion of recklessness being defined and added as an element of the offence.

The amendments of section 269X, which concerns the power of the court to deal with the defendant before proceedings are completed, are sensible and provide an additional safeguard that the custody will be in an appropriate form. The Attorney-General's advice that this amendment was drafted in close consultation with the Chief Psychiatrist gives me confidence that the intent of this amendment is prisoner focused; that is, it is designed to give a level of protection to prisoners and provide that their custodial circumstances are within the responsibilities of the chief executive, who will be held accountable.

The bill prescribes that under the chief executive's delegation a designated officer can determine the appropriate form of custody for a prisoner on remand. This is a safeguard that people such as those with mental illness will not be held in situations that are unsuitable. However, I understand the main purpose of this amendment is to remand a defendant in a prison pending a determination on their mental capacity by a court, or a defendant assessed as requiring detention due to mental competency already established or as being unfit to plead.

This gives the designated officer a great deal of discretion about appropriate custodial arrangements, which is all very well as long as it does not mean that those in custody with mental illness are left neglected in prison with no treatment or support. Prisons are harsh enough places without having to deal with untreated or undiagnosed mental illness. Personally, I would like to see more stringent time limits applied to how long the court can take to determine mental capacity. I would also like to see some data on how long people are on remand and if those periods are getting longer.

Only yesterday, my colleague the Hon. Mark Parnell quoted statistics in this place about the prevalence of mental illness and trauma among the prison population, so it is very important that people be placed in appropriate accommodation and that help is immediately available. I am sure we can all recall how shocked we were to see the footage of young adolescents with mental health issues locked up in solitary confinement at the Don Dale Detention Centre for long periods of time. As you know, the use of spit hoods on youth detainees is now banned, and I hope that soon, thanks to the tireless work of my colleague the Hon. Connie Bonaros, these barbaric hoods will be banned for adults too.

I am less convinced of the need for the amendment to section 86A of the CLCA allowing the Attorney-General to appoint commissioners for the taking of affidavits in the Supreme Court under the Oaths Act 1936. Currently, it is just the Governor under section 28(1)(e) who authorises people like Forensic Science SA employees to certify over 1,500 documents in-house each year. Of course, a range of professionals, such as solicitors, barristers and justices of the peace, are already commissioners for taking affidavits, but there are some that the Governor currently appoints. Apparently the Governor finds this very time-consuming, so it makes more sense to delegate it to the Attorney-General.

With all the changes to arrangements around witnessing documents and taking affidavits due to COVID-19, I do not think now is the time to amend this. However, if a convincing argument is able to be mounted about how many of these appointments the Governor does, I am prepared to be persuaded otherwise.

I strongly support the changes to the Professional Standards Act 2004 to make it clear that claims of breach of fiduciary duty or unconscionability fall within the definition of occupational liability. I am surprised it took us this long to come into line with other jurisdictions, and I wonder how many cases have encountered this problem and how many plaintiffs might have had their cases proven had the definition been beyond doubt.

I also support the president of SACAT being appointed from a pool of Supreme Court judges and District Court judges although, of course, I make no secret of the fact that I would like to see our judiciary and presidencies, such as those at SACAT and the SAET, enriched and refreshed with appointments from outside our jurisdiction and from other courts.

It was disturbing to learn, in the briefing provided by the Attorney-General's Office, that section 210C provisions of the Summary Offences Act 1953, which make it an offence to supply liquor in certain areas, need to be fixed before the provisions have even commenced. This really confirms to me that the legislation was done on the run, but I support this amendment making it very clear who is exempted, so that we can stop the grog and drug runners as soon as possible.

I applaud the APY lands, and in particular the ongoing leadership and authority of the APY Executive and the amazing advocates of the NPY Women's Council, who have fought for decades to keep their lands free of alcohol and drugs in accordance with their decisions. It is great to see young women like Sally Scales on The Drum on the ABC speaking authoritatively as an APY Executive member on a diverse range of issues like women's rights, alcohol, community safety, domestic violence.

I support the compassionate amendment to section 48 of the Young Offenders Act 1993 to ensure that this offence does not apply to youth detained under the Controlled Substances Act 1984 via a youth treatment order. As we heard yesterday, gaols largely fail and they fail most spectacularly for youth with substance abuse issues and/or mental illness.

In summary, I support all the provisions of the bill before us. Had we had sufficient time I would have liked to have delved deeper into the changes sought in regard to the Oaths Act, and may have devised some amendments to deal with any concerns raised. As it is the bill is being rushed through, like so many in recent times, but I am still prepared to give it my support.

The Hon. R.I. LUCAS (Treasurer) (17:08): I thank honourable members for their contributions to the second reading, and look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. F. PANGALLO: I have one question. In relation to the change to the witnessing of documents, did the government seek any advice or has it had any engagement with the Law Society about this?

The Hon. R.I. LUCAS: Yes, the Law Society was consulted, but they did not provide any advice on those particular amendments.

Clause passed.

Clauses 2 to 13 passed.

Clause 14.

The Hon. K.J. MAHER: Why is this needed, Treasurer?

The Hon. R.I. LUCAS: I am advised that, currently, lands under the Maralinga Tjarutja Land Rights Act 1984 (the MT act) are dry as a matter of community policy rather than through by-laws under the MT act. Therefore, under part 7 of the bill, the offence in section 21OC will not apply to instances where the third person, i.e. a recipient, is on those lands as there is no current by-law under the MT act that makes possession or consumption of liquor unlawful.

There are areas of land within the Aboriginal Lands Trust Act 2013 (the ALT Act) that are dry through regulations and there are areas that are not subject to regulations; for example, Yalata and Umoona are dry through regulations made under the ALT Act. Currently, Davenport is not dry under regulations. Therefore, the exclusions are necessary to make it clear that the offence should not apply when a third person is in an area where consumption or possession of liquor is allowed. The exclusions in part 7 of the bill will mean that the application of section 21OC may change in the future depending on whether any by-laws or regulations are made under the MT act or the ALT Act.

The APY lands are dry pursuant to by-laws under the Anangu Pitjantjatjara and Yankunytjatjara Land Rights Act 1981. However, there are certain exemptions under those by-laws, such as use of liquor for sacramental purposes. Part 7 of the bill will mean that use of liquor by the third person (i.e. recipient) in those circumstances is not an offence.

In relation to dry zones under section 131 of the Liquor Licensing Act 1997, these dry zones are often conditional. For example, they can apply only during certain times. Therefore, under part 7 of the bill the offence in section 21OC will only apply during those times and circumstances where possession and consumption of liquor is unlawful.

The Hon. K.J. MAHER: I thank the Treasurer for the answer. I do not fully understand it. When we had briefings, an example used was the APY dry zone and the use of sacramental wine. Am I understanding correctly, and can the Treasurer confirm, that currently under the by-laws that APY have made, through their elected APY Executive, they have an exemption for sacramental wine and it is able to be used and does not breach their by-laws. Specifically, do the by-laws passed by APY allow for that exclusion of sacramental wine; is that correct?

The Hon. R.I. LUCAS: I will read the advice again: there are, however, certain exemptions under those by-laws such as use of liquor for sacramental purposes. Therefore, there are certain exemptions. Part 7 of the bill will mean that use of liquor by a third person (i.e. recipient) in those circumstances is not an offence.

The Hon. K.J. MAHER: The Treasurer has made it clearer in a couple of minutes than in many of our briefings and exchanges. In the example where there are dry zones as a matter of policy rather than as a matter of by-law or regulation, can the Treasurer explain why the amendment to section 21OC is needed? What changes as a result of this passing when the community has decided to institute a dry zone that is not by regulation or by-law?

The Hon. R.I. LUCAS: I will just highlight the first section of the advice that I read previously that relates to this question: 'Currently, lands under the Maralinga Tjarutja Land Rights Act are dry as a matter of community policies'—that is the question the member is asking—'rather than through by-laws under the MT act. Therefore, under part 7 of the bill the offence in section 21OC will not apply to instances where the third person (i.e. recipient) is on those lands as there is no current by-law under the MT act that makes possession or consumption of liquor unlawful.' I am further advised that if they move beyond community policy and make a by-law, then the provisions under part 7 of the bill will be energised, activated, elevated and will apply.

The Hon. K.J. MAHER: I appreciate the Treasurer's explanation. In relation to this, however, is the Treasurer saying that, under the current Summary Offences (Liquor Offences) Amendment Act, in the case of Maralinga Tjarutja lands, where it is a community policy decision not a by-law or a regulation, at the moment there is no offence created for possession or supply of alcohol in relation to those lands, as it currently stands? If that is the case, what work does this amendment do in relation to that?

The Hon. R.I. LUCAS: It is pretty simple: it is not an offence at the moment. Therefore, this will have no work to do at the moment, as long as it stays a community policy. It will only be if the Maralinga Tjarutja move it from community policy to a by-law. Once they do that, this particular provision will have work to do. But in and of itself, as I am advised, at the moment it is not an offence and, with the passage of this bill, it will still not be an offence and there will be no penalty. It would only be if the Maralinga Tjarutja actually pass a by-law that this particular provision would be activated.

The Hon. K.J. MAHER: Who instigated this particular clause? Who asked for this, and what was the reason for this being drafted?

The Hon. R.I. LUCAS: My understanding and my advice is that, during consultation on these issues, the view from legal advisers to the government in the Attorney-General's Department was that it would be clearer to all concerned in relation to these complicated provisions if this particular provision was changed in the act.

The Hon. K.J. MAHER: I thank the Treasurer for his response. Can I ask who was consulted with in relation to this particular provision and which Aboriginal communities, organisations or groups participated and provided a response in relation to this? Who were responses sought from and who were responses received from, in terms of Aboriginal groups and organisations?

The Hon. R.I. LUCAS: I can read a long list of people, but I think the honourable member may have referred earlier that, whilst there are a long list of people, he might have been advised who was consulted and that not all replied. I think he referred to that in his second reading. Do you want me to read the long list of people?

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: The Aboriginal Legal Rights Movement, the Anangu Pitjantjatjara Yankunytjatjara, the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (Women's Council Aboriginal Corporation), Aboriginal Lands Trust, Yalata Anangu Aboriginal Corporation, Umoona Community Council Incorporated, Far West Aboriginal Corporation, Ceduna Aboriginal Corporation, Aboriginal Drug and Alcohol Council (SA) Incorporated, Office of the Commissioner for Aboriginal Engagement, South Australian Aboriginal Advisory Council, Maralinga Tjarutja, Davenport community, Gerard Aboriginal community, Koonibba community, Nipapanha Community Council, Point Pearce Aboriginal Community Council, Raukkan Community Council, District Council of Ceduna, District Council of Coober Pedy, Australian Hotels Association, the Legal Services Commission of South Australia, the Law Society of South Australia, Port Augusta City Council, Aboriginal Affairs and Reconciliation, Department of the Premier and Cabinet, Drug and Alcohol Services SA, Minister for Health and Wellbeing, Liquor and Gambling Commissioner, Consumer and Business Services, the Premier (who is also the Minister for Aboriginal Affairs) and the Commissioner of Police.

The Hon. K.J. MAHER: I thank the Treasurer for reading out that list and for getting, by and large, most of the names pronounced reasonably correctly. In relation to all those who were sent letters or emails, which organisations responded and with more than just an acknowledgment that they had received the letter? Are you able to let us know if any at all took part meaningfully in consultation?

The Hon. R.I. LUCAS: Without taking an inordinate length of time, I can broadly indicate the ones, on the advice I have, that did not reply. A number of the others had written submissions and some had verbal discussions. For example, Yalata Anangu Aboriginal Corporation is listed here as verbal discussions, together with the Aboriginal Lands Trust.

The ones where there is no listed reply include: the Aboriginal Legal Rights Movement, APY Lands, the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (Women's Council Aboriginal Corporation), Far West Coast Aboriginal Corporation, Ceduna Aboriginal Corporation, Aboriginal Drug and Alcohol Council, Office of the Commissioner for Aboriginal Engagement, Gerard and Koonibba communities, Nipapanha Community Council, Point Pearce Aboriginal Council, Raukkan Community Council, the district councils of Ceduna and Coober Pedy, and the Hotels Association. All of the others are listed as having replied or had verbal discussions, together with other organisations as well.

The Hon. T.A. FRANKS: Did the Aboriginal Lands Trust support this amendment?

The Hon. R.I. LUCAS: My advice is that there were discussions with the ALT and they did not oppose the provisions.

The Hon. T.A. FRANKS: Sacramental wine on the APY lands was mentioned in the previous response. Where does this occur on the APY lands?

The Hon. R.I. LUCAS: I have no idea, we have no idea whereabouts on the lands. In their by-laws, under the act there is an explicit provision under 5B which states that liquor is possessed for the purposes of or consumed in the course of a sacramental or other like observance in the course of or constituting part of any religious service. It is their by-law and I assume it could occur anywhere on the lands; it is not limited to a particular location.

Clause passed.

Remaining clauses (15 and 16) and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:32): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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