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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-04 Daily Xml
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Statutes Amendment and Repeal (Budget Measures) Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:52): I move:

That this bill be now read a second time.

The 2020-21 budget is focused on the government's priorities of increasing economic growth and jobs, supporting our businesses and the community and providing better public services for South Australians. As part of the 2020-21 budget, the government has announced measures to:

bring protective security officers within the Police Act 1998 as police security officers with appropriate non-sworn officer powers. Implementation of this measure requires the consequential amendment of a number of pieces of legislation and the repeal of the Protective Security Act 2007;

address an administrative inconsistency between the Statutes Amendment (Mineral Resource) Act 2019 and the Statutes Amendment (Budget Measures) Act 2019;

require the payment of all impounded or clamped vehicle fees up-front at the time of vehicle release;

update an outdated reference to the Motor Accident Commission as the body responsible for determining CTP insurance premium classes to the CTP regulator;

clarify amendments to the Land Acquisition Act 1969 to make aspects of the land acquisition process simpler and more transparent, including to allow land acquisition to be expedited in appropriate cases to facilitate economic stimulus measures;

allow the Public Trustee to charge an increased investment management fee on common funds;

amend the Legislation (Fees) Act 2019 to clarify the intended operation of the act in relation to the making of fee notices ; and

amend the definition of net gaming revenue in the State Lotteries Act 1966to exclude agents' commissions.

I turn now to a more specific discussion of the detail of these important amendments. The Aged and Infirm Persons' Property Act 1940: the bill introduces an amendment to the Aged and Infirm Persons' PropertyAct 1940to allow an investment management fee as determined by the minister by fee notice under the Legislation (Fees) Act 2019 to be charged by the Public Trustee.

Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007: the bill amends the Criminal Law(Clamping, Impounding and Forfeiture of Vehicles) Act 2007 so that offenders will be required to pay the impounding fee at the time of the release of their vehicle. Currently, prior to the finalisation of criminal proceedings, an alleged offender is able to recover their impounded vehicle after at least 28 days without paying the relevant impounding fee. The ability for SA Police to recover its costs is therefore dependent on the successful conviction of the alleged offender, the court making an order that the person is liable to pay the relevant fee and the convicted offender paying the fee.

This bill will ensure the payment of impounding fees up-front, at the time of release of the vehicle, even when court proceedings for an individual have not been finalised. In situations where the alleged offender is not found guilty of a prescribed offence, the charge of the prescribed offence has been withdrawn or proceedings for the prescribed offence have been discontinued, the fee paid will be reimbursed.

The requirement to pay the impounding fee at time of release will result in additional revenue of approximately $1.5 million per annum. Similar arrangements for the payment of impounded vehicles are in place in Victoria and Tasmania.

Emergency Services Funding Act 1998: these amendments are administrative in nature. The emergency services levy is paid on mobile property, such as motor vehicles, at the time of registration. The amount of levy payable is set with reference to compulsory third-party premium classes. The amendments reflect that responsibility for determining these classes now rests with the CTP regulator.

Land Acquisition Act 1969: following the commencement of the Land Acquisition (Miscellaneous) Amendment Act 2019 (the amendment act) in July of this year, it has been determined that a small number of clarifying amendments are needed to ensure the provisions introduced in the amendment act operate as intended.

These amendments will also make aspects of the land acquisition process simpler and more transparent. One new provision is included to allow land acquisition to be expedited in appropriate cases to facilitate economic stimulus measures, which is important in the uncertain times we find ourselves in.

The provisions amend the Land Acquisition Act 1969 to provide that the minister may, by notice in the Gazette, fix a possession date for land to be acquired that is less than three months from the date of the notice of acquisition for a specified project or projects. The provision will allow land acquisition for relevant stimulus projects, such as lane widening and additional overtaking lanes, to begin more quickly in appropriate cases.

The amendments also clarify that where land is acquired but an owner remains in occupation of the land, that a market rent can be charged by the acquiring authority three months after the date of the notice of acquisition. This was the original intention of the amendments dealing with this issue in the amendment act and these provisions operate to clarify this intention.

The bill also clarifies the definition of vacant land. 'Vacant land' is now defined to include residential land on which no person is lawfully residing at the time, or non-residential land that is not genuinely being used for income producing purposes at the time, or primary production land that is not actively being used for grazing, cropping, horticultural, horse keeping, intensive animal keeping, animal husbandry or other primary production purposes at the time. This will avoid unnecessary disputes and delay when vacant land is acquired. The remaining amendments are consequential amendments to section 24.

Legislation (Fees) Act 2019: the bill makes minor amendments to this act to clarify the intended operation of the act in relation to the making of fee notices. In particular, the bill amends the definition of 'relevant authority' in the Legislation (Fees) Act to make it clear that where an act authorises:

a specified person or body other than a minister to prescribe a fee by regulations; or

both a minister and a specified person or body to prescribe a fee by regulations;

the relevant authority for the purposes of the Legislation (Fees) Act is the minister to whom the relevant act is committed.

The Statutes Amendment (Budget Measures) Bill 2020 contains amendments to the necessary legislation to implement these measures.

Mining Act 1971: in 2019, the budget removed the practice of returning 95 per cent of the rental payments to mining lease and licence holders who were also the freeholder owner of the relevant land, ensuring 100 per cent of the rent is paid into Treasury general revenues. As the Statutes Amendment (Mineral Resource) Act 2019 predated the 2019 budget, this amendment will ensure the 2019 budget measures are not inadvertently unwound.

Police Act 1998: the amendments to the Police Act 1998 and the Police Complaints and Discipline Act 2016 together incorporate the appointment, duties, powers and accountability of protective security officers. The terms of the Protective Security Act 2007 relating to appointment, powers and duties, etc., will be included within the Police Act 1998, with the complaint and disciplinary matters to be the subject of the Police Complaints and Disciplinary Act 2016.

The amendments are directed to the future of policing. The public is best served by having experienced and highly trained police focused on policing and by enabling others to become engaged in policing support types of roles. Our recent and continuing experience with the COVID-19 pandemic has underlined the need for this development.

The bill includes regulation-making powers to enable police security officers to perform other roles, duties and powers in support of policing so that the important work of police officers can focus on the safety of our community, the prevention of crime and the investigation and apprehension of those engaged in unlawful activity.

The bill provides for the transition of current protective security officers into the new police security officer roles and makes consequential amendments to the Independent Commissioner Against Corruption Act 2012, the Public Sector Act 2009 and the Security and Investigation Industry Act 1995. The amendments and repeal of the Protective Security Act 2007 will come into effect on a date to be fixed by proclamation, as will the contemplated regulations.

I am pleased to note that this initiative has arisen from enterprise bargaining negotiations with the Police Association of South Australia. I welcome the association's foresight and support for the future of policing and community safety. The contemplated regulations to address other additional roles, duties, powers and accountabilities of the new police security officer role will be the subject of development by the Commissioner of Police in consultation with the Police Association of South Australia. The Commissioner of Police will also implement a consultation process with protective security officers and their industrial representatives.

Public Trustee Act 1995: the Public Trustee will be increasing the investment management fee for growth common funds from 1 per cent to 1.2 per cent per annum, commencing on 1 July 2021. The investment management fee for defensive common funds will remain at 1 per cent, reflecting the lower returns achieved for this product. The proposed management fee for growth common funds will remain lower than those able to be charged in the Northern Territory, Western Australia and Queensland.

State Lotteries Act 1966: under the State Lotteries Act 1966, a payment of 41 per cent of net gambling revenue for lotteries conducted by the commission is payable into either the hospitals fund or recreation and sports fund. The definition of net gambling revenue currently includes agents' commissions, which is a charge included in the price of each ticket in a lottery to be paid to the agent who sells the ticket.

Representations have been made that the inclusion of agents' commissions in the calculation of net gambling revenue is a barrier to increasing agent commission rates, noting that certain commission rates paid in South Australia are below rates in other jurisdictions. The amendments to the State Lotteries Act 1996 will exclude agents' commission from the definition of net gambling revenue, offset by a revenue neutral increase in the rate of distributions from net gambling revenue to the hospitals fund and recreation and sports fund. Different payments as a proportion of net gambling revenue will be introduced for keno lotteries and other types of lotteries to achieve a revenue neutral outcome for distribution to relevant funds.

The 2020-21 budget is a responsible budget focused on creating jobs, backing business and building what matters. The measures contained in this budget measures bill 2020 support the efficient operation of government, the ongoing collection of necessary revenues and provision of better services. I commend the bill to the council, and I seek leave to have the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Aged and Infirm Persons' Property Act 1940

4—Amendment of section 20—Percentage of moneys collected payable to Public Trustee

This clause amends section 20 to allow commission or fees to be paid from an estate in respect of which the Public Trustee is appointed manager to the Public Trustee at amounts or at rates prescribed by the Minister for the purposes of the Act by fee notice under the Legislation (Fees) Act 2019.

Part 3—Amendment of Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007

5—Insertion of section 4A

This clause inserts new section 4A into the Act to combine in an interpretation clause for Part 2 of the Act a number of defined terms currently used in discrete sections.

6—Amendment of section 8—Early determination of clamping or impounding period

This clause amends section 8 of the Act to remove those subsections that are proposed to be moved into new section 9 (see clause 7).

7—Substitution of section 9

This clause substitutes section 9 of the Act. Currently the Act requires that a motor vehicle is released at the end of the clamping or impounding period (section 8) and that the offender, on being found guilty of the prescribed offence or another prescribed offence arising out of the same course of conduct, is liable to pay the clamping and impounding fees under section 9.

Proposed new section 9 provides that a motor vehicle may not be released unless the clamping and impounding period has ended and the clamping and impounding fees have been paid to the Commissioner. Exceptions to this requirement are where the Commissioner determines that:

(a) grounds did not exist under section 5 to clamp or impound the motor vehicle;

(b) the motor vehicle was, at the time of the offence in respect of which the motor vehicle was clamped or impounded, stolen or otherwise unlawfully in the possession of the person or was being used by the person in circumstances prescribed by regulation under section 8(2)(a);

(c) the offence in respect of which the motor vehicle was clamped or impounded, occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence;

(d) it is appropriate in the circumstances of the particular case to release the motor vehicle without payment of the clamping or impounding fees at the time of release because—

(i) the imposition of the fee or the continued clamping or impounding of the motor vehicle would cause severe financial hardship to a person other than the alleged offender or a person who was knowingly involved in, or who aided or abetted, the commission of the offence; or

(ii) other grounds exist that warrant the release of the motor vehicle without payment of the fees.

In addition, a person who has paid the clamping and impounding fees for the release of a motor vehicle is entitled to a refund of the amount paid if the offender is subsequently found not guilty of the offence (and not charged with another prescribed offence arising out of the same course of conduct), the charge of the prescribed offence has been withdrawn (and no charge of another prescribed offence arising out of the same course of conduct has been laid) or proceedings for the prescribed offence have been otherwise discontinued (and no other criminal proceedings for a prescribed offence arising out of the same course of conduct have been commenced).

In addition, if a court finds a person guilty of a prescribed offence in respect of which a motor vehicle has been clamped or impounded (or guilty of another prescribed offence arising out of the same course of conduct), the person is, on being found guilty—

(a) liable to pay to the Commissioner all outstanding clamping or impounding fees payable in relation to the clamping or impounding of the motor vehicle (including where the motor vehicle has been released without payment of fees under section 9(2)) and those fees are recoverable by the Commissioner as a debt; and

(b) liable to pay to any other person the amount that the other person has paid to the Commissioner in clamping or impounding fees in relation to the clamping or impounding of the motor vehicle and that amount is recoverable by the other person from the offender as a debt.

No fees are payable at all in relation to the impounding of a motor vehicle if on application by an owner of the vehicle made to the Commissioner within 7 business days of the impounding of the motor vehicle, a relevant authority causes the motor vehicle to be destroyed. An applicant for the destruction of a motor vehicle must pay the prescribed fee to the Commissioner.

8—Amendment of section 12—Court order for impounding or forfeiture on conviction of prescribed offence

This clause amends section 12 of the Act for greater consistency with the Legislation (Fees) Act 2019.

9—Amendment of section 20—Disposal of vehicles

This clause amends section 20 of the Act so that the Commissioner may dispose of a motor vehicle that has been impounded under this Act and not collected by a person legally entitled to possession of the motor vehicle within 10 days of the motor vehicle ceasing to be liable to be impounded. Currently that period is 2 months.

In addition, the notice period that must be given to a each registered owner of the vehicle and each person registered under the Personal Property Securities Act 2009 of the Commonwealth as a secured party in relation to a security interest for which the motor vehicle is collateral is reduced to 7 days (from 14 days).

10—Amendment of section 24—Regulations and fee notices

This clause amends section 24 of the Act for greater consistency with the Legislation (Fees) Act 2019.

11—Transitional provision

This clause provides that the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 as amended by this Act applies only in respect of the clamping or impounding of a motor vehicle for an offence committed after the commencement of this Act.

Part 4—Amendment of Emergency Services Funding Act 1998

12—Amendment of section 3—Interpretation

This clause inserts the definition of CTP Regulator for the purposes of the Act which means the CTP Regulator established under the Compulsory Third Party Insurance Regulation Act 2016.

In addition, this clause deletes the redundant definition of the Motor Accident Commission.

13—Amendment of section 24—Declaring the amount of the levy

This clause updates the references to the 'Motor Accident Commission' in the clause to references to the 'CTP Regulator'. This clause also updates the reference to the 'Premium Class Code published by the Motor Accident Commission' to the 'premium classes for motor vehicles determined by the CTP Regulator for the purposes of the Compulsory Third Party Insurance Regulation Act 2016'.

Part 5—Amendment of Independent Commissioner Against Corruption Act 2012

14—Amendment of Schedule 1—Public officers, public authorities and responsible Ministers

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the Police Act 1998.

Part 6—Amendment of Land Acquisition Act 1969

15—Amendment of section 24—Entry into possession

This clause amends section 24 to enable an Authority to take immediate possession of vacant land in relation to certain acquisition projects, as well as defining what vacant land is for the purposes of the section.

The clause also clarifies the position that, while rent is to be payable from the date on which notice of acquisition is published in the Gazette, rent will not be charged for the first 90 days of the tenancy.

The clause limits the period during which a matter can be referred, and provides that matter relating to a declared acquisition project cannot be referred into court under subsection (8) of the section.

Part 7—Amendment of Legislation (Fees) Act 2019

16—Amendment of section 3—Interpretation

This clause makes a minor amendment to clarify the definition of relevant authority.

Part 8—Amendment of Mining Act 1971

17—Amendment of section 56M—Rental

This clause amends the section to provide an exemption from the scheme under section 56M(4) for a tenement holder or any related body corporate who is also a registered proprietor of an estate in fee simple of land in relation to which rental is payable.

Part 9—Amendment of Police Act 1998

18—Amendment of section 3—Interpretation

This clause amends section 3 to define terms being introduced into the principal Act by this measure.

19—Amendment of section 9—Commissioner also responsible for control and management of police cadets, police medical officers and police security officers

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

20—Amendment of section 10—General management aims and standards

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

21—Amendment of section 11—Orders

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

22—Amendment of heading to Part 6 Division 2

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

23—Amendment of section 41A—Interpretation

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

24—Amendment of section 41B—Drug and alcohol testing

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

25—Amendment of section 41C—Drug and alcohol testing of applicants to SA Police etc

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

26—Amendment of section 41D—Procedures for drug and alcohol testing

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

27—Amendment of section 41E—Biological samples, test results etc not to be used for other purposes

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

28—Amendment of section 48—Right of review

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

29—Amendment of section 52—Review of certain transfers

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

30—Amendment of section 53—Interpretation and application

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

31—Amendment of section 55—Right of review

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

32—Amendment of section 56—Grounds for application for review

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

33—Insertion of Part 9A

This clause inserts new Part 9A into the principal Act, transferring the appointment, powers, disciplinary and employment arrangements for police security officers from the Protective Security Act 2007 (which is to be repealed) into the principal Act. With the exception of their title (they are now to be called police security officers rather than protective security officers) and new section 63E, the provisions are consistent with the Protective Security Act 2007.

New section 63E allows the Governor, by regulation, to modify the operation of the principal Act and other Acts to enable the Commissioner to assign additional duties to police security officers that were traditionally undertaken by police officers or others.

34—Amendment of section 65—Protection from liability for members of SA Police and police security officers

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

35—Amendment of section 67—Divestment or suspension of powers

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

36—Amendment of section 69—False statements in applications for appointment

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

37—Insertion of section 71A

This clause replicates section 42 of the Protective Security Act 2007.

38—Amendment of section 74—Impersonating police or police security officer and unlawful possession of certain property

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

39—Amendment of section 75—Annual reports by Commissioner

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

Part 10—Amendment of Police Complaints and Discipline Act 2016

40—Amendment of section 3—Interpretation

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

41—Amendment of section 7—Code of conduct

This clause amends section 7 to enable the establishment of separate codes of conduct for police security officers and designated officers.

42—Amendment of section 10—Making a complaint about conduct of designated officer or police security officer

This clause amends section 10 to prevent complaints about police officers, police cadets and special constables from being made to police security officers.

43—Amendment of section 14—Assessment of complaints and reports by IIS

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

44—Amendment of section 15—Commissioner may decline to act in relation to certain complaints

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

45—Amendment of section 18—Dealing with matters by way of management resolution

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

46—Amendment of section 21—Investigations of complaints and reports by IIS

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

47—Amendment of section 26—Commissioner may sanction designated officer following offence or breach of discipline

This clause amends section 26(1) of the principal Act to set out sanctions that are available to the Commissioner in the case of police security officers.

48—Amendment of section 35—Proceedings before Tribunal

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the principal Act.

Part 11—Amendment of Public Sector Act 2009

49—Amendment of section 25—Public Service employees

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the Police Act 1998.

Part 12—Amendment of Public Trustee Act 1995

50—Amendment of section 29—Common funds

This clause amends subsection (11) to increase the management fee charged against money invested in a common fund on account of an estate from one-twelfth of 1% to one-twelfth of 1.2% of the value of the fund attributable to investment of the estate as at the first business day of the month.

Part 13—Amendment of Security and Investigation Industry Act 1995

51—Amendment of section 4—Application of Act

This clause makes an amendment consequential on the inclusion of police security officers into the scope of the Police Act 1998.

Part 14—Amendment of State Lotteries Act 1966

52—Amendment of section 3—Interpretation

This clause inserts definitions required for the purposes of other amendments.

53—Amendment of section 16—The Lotteries Fund

Subclause (1) amends section 16(3)(b) of the Act to provide that the Lotteries Fund must be applied by the Commission in payment of the GST in respect of agents' commission, a definition of which is inserted by the amendment in subclause (4).

Subclause (2) amends section 16(3)(c) of the Act to increase the percentage of net gambling revenue from lotteries payable into the Recreation and Sports Fund from 41% to 48.9%.

Subclause (3) amends section 16(3)(d) of the Act to provide that a percentage of 48.9% of net gambling revenue is payable into the Hospital Fund in respect of all lotteries except sports lotteries, special appeal lotteries and keno lotteries, and a percentage of 61.1% of net gambling revenue is payable into that Fund in respect of keno lotteries.

Subclause (4) defines agents' commission, being a charge included in the price of each ticket in a lottery to be paid to the agent who sells the ticket.

Subclause (5) provides that for the purposes of the definition of net gambling revenue, the total amount subscribed or contributed to, or paid for the purchase of, tickets does not include the agents' commission.

54—Transitional provision

This clause makes transitional provisions consequent on the amendments in this Part.

Part 15—Repeal of Protective Security Act 2007 and savings and transitional provisions

55—Repeal of Protective Security Act 2007

This clause repeals the Protective Security Act 2007.

56—Continuation of appointments of protective security officers

57—Suspension of protective security officer to continue

58—Identification of protective security officers taken to satisfy section 63I of Police Act 1998

59—Continuation of determinations of protected persons, places or vehicles

60—Continuation of certain orders

61—Continuation of certain directions of Police Minister

62—Continuation of determination of structure of ranks

63—Continuation of certain directions of protective security officers

64—Continuation of custody of certain objects and substances

65—Continuation of code of conduct

66—Continuation of certain investigations of breach of code etc

67—Continuation of certain directions of Officer for Public Integrity

68—Abolition of Protective Security Officers Disciplinary Tribunal

These clauses continue various determinations, codes, investigations and make various other transitional arrangements consequent on the repeal of the Protective Security Act 2007 and the inclusion of police security officers in the scope of the Police Act 1998 and the Police Complaints and Discipline Act 2016.

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

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