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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-28 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (12:50): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. This bill proposes amendments to 22 separate pieces of legislation and primarily consists of essentially housekeeping amendments that delete obscure sections, update references to acts where the names of those acts have been changed, and ensure consistency with recent legislative changes and update language with contemporary terms.

Two large exceptions to the largely housekeeping amendments referred to are updates to the Criminal Law (High Risk Offenders) Act and the Mental Health Act. With regard to the Criminal Law (High Risk Offenders) Act 2015, the bill proposes a range of changes to:

add commonwealth offences to those that may be considered for high-risk offender declarations;

clarifies, consistent with the recent Court of Appeal ruling, that extended supervision orders may not be made against minors but they may be made against adults who were minors at the time of their offending or sentencing;

clarifies that extended supervision order applications may be made in the 12 months prior to release, not within 12 months, which could, but has never included, as we were advised, post-release;

clarifies matters that may be taken into account in making a supervision order; clarifies that supervision order requirements are suspended while in custody; and

adds a condition to extended supervision orders that interstate travel may only be authorised by the Parole Board or Supreme Court and allows the Supreme Court to transfer certain matters to the Parole Board regarding the variation or removal of extended supervision orders—for example, not making extended supervision orders or reviewing breaches—all the while noting that all parties may make submissions on changes to extended supervision orders.

In relation to these changes, the opposition's primary technical concern is the detail of transferring matters between the Supreme Court and the Parole Board that will require subsequent changes to court rules. One thing we have raised as a concern is it could lead to the possibility of forum shopping; that is, someone who is potentially subject to such orders choosing the Supreme Court or the Parole Board, depending on which they think might be more favourable.

With regard to the Mental Health Act 2009, the opposition has considerably more concerns. We note these are addressed by a suggested amendment by the Hon. Robert Simms that does not proceed with that part of the bill that amends the Mental Health Act 2009. Part 11 of the Mental Health Act, specifically sections 79 to 84, deals with reviews and appeals of orders and directions. Section 84, as it currently stands, allows a person to be legally represented and to have their costs covered by the government for any reviews or appeals under part 11.

This bill proposes to exclude this right to legal support from reviews of treatment orders under section 79, but retain them for other appeals or reviews under part 11. The opposition has significant concerns with the revocation of this basic right of legal justice. The government has advised that this proposal, in their view, will have little or no practical impact because SACAT undertakes section 79 reviews on the papers, without parties or representatives present.

The government has also advised that the exclusion will not prevent a person from being represented if the need ever arose, but they would have to be self-funded in such situations. We have not been given sufficient reassurance by the government that this revocation of a right to support will not potentially lead to a substantial impact on a vulnerable South Australian. We share the same concerns as consulted stakeholders such as the Law Society in this respect.

I note that this proposed change was the bulk of the Law Society's submission on this bill. Consequently, the opposition will be supporting the bill, but will not be supporting clause 45 in relation to the amendment to the Mental Health Act, which I would have flagged here but it is the effect of an amendment filed by the Hon. Robert Simms.

The Hon. C. BONAROS (12:54): I rise to speak in support of a variety of measures in the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2021. The bill, as we know, makes amendments to no less than 22 different acts, three of these being justice-related. It is somewhat problematic to deal with a bill amending 22 very different acts in these final two weeks of the year, so I will begin by focusing on the amendments that I strongly support. Obviously, in saying that, I also note that there are a number of technical amendments, if you like—

The PRESIDENT: Order! Too much noise in the chamber.

The Hon. C. BONAROS: Amendments to the Correctional Services Act to extend the prohibition on people who can receive automatic parole to include people who have committed a serious drug offence is an initiative we support wholeheartedly. Whilst the Law Society believes these offenders are already likely to be covered if they receive a sentence over five years, it is my view that this amendment gives us certainty, and the courts clarity, that serious drug offenders will not receive automatic parole, irrespective of the sentence that they are handed.

Similarly, the amendments to the Criminal Law (High Risk Offenders) Act expand the scope of people covered and also extend the scope of continuing detention orders for this category of offenders. There are many high-risk offenders we do not want freely running around our community, wreaking havoc on our community, on release from detention. We need to ensure that the courts have the ability to deal with them appropriately, so that is something that we support.

Of course, the government needs to make sure that supervision orders and support services are in place when these offenders are ultimately released so that they have the opportunity to get their lives back on track and not to reoffend. That is probably one of the areas where I would say we need to have a much stronger focal point in terms of reintegrating people back into the community. I suspect when the OPCAT bill comes up and we deal with that, I will have a lot more to say on that particular topic.

I reserve my strongest support in this bill for the amendment to the Children and Young People (Safety) Act 2019 which allows for the Chief Executive of the Department for Child Protection to give a direction to prevent a person from communicating with a child who is in the custody or under the guardianship of the chief executive.

That may have been slipped, in some ways, into this bill, but I think it is a very important provision and I am glad that the Attorney has incorporated it into this, given that the Minister for Child Protection's bill sits languishing on our Notice Paper and does not look to be debated anytime soon. I note that there are a couple of other amendments in that bill which I thought certainly would have been worthily incorporated into this bill. That was not to be. I think there is one further amendment by the Hon. John Darley; we will see the fate of that amendment when it arises.

There are certainly some good measures in that other bill that I referred to, and frankly I think the Attorney could have gone a little further and picked out the uncontentious matters of that bill, including the best interests of the child principle and the placement principle for Indigenous children, and placed them in this bill. We had discussions around that. There were issues around their contentious nature or otherwise, so we have not got them here. I am glad to see that this one is.

Apparently, the department has had difficulty in past prosecutions meeting the standard of proof that communication occurred, and this amendment seeks to address that. With skyrocketing numbers of children under the care of the minister, we need to ensure that the department has all the powers that it needs to protect children, because the department has a very poor history of protecting children under their care from being preyed upon by sexual predators. I do not need to tell you that. You do not need to take my word for it. You can open the paper and see the stories for yourselves.

Yesterday, we became aware of yet another child under the guardianship of the minister being preyed upon, groomed and sexually assaulted by a Richard Squires, a 39-year-old predator. Squires was able to order a rideshare vehicle to bring the child to his home to abuse, after meeting via the Grindr app.

This is another major failure by Minister Sanderson, who an earlier independent review found oversaw a significant failure regarding the handling of sexual abuse cases involving two 13-year-old children under her care who were sexually abused by paedophiles. This is not an isolated incident. It is something that we know is occurring. What really disturbs me is that these are just the tip of an iceberg, as these are the tiny proportion of cases that actually make it to the courts and into the press or come to our attention in some other way.

I agree with my colleague in the House of Assembly, Ms Hildyard, that children under the guardianship of the minister are entitled to be safe, to be cared for and to be protected. I will repeat what I have said in this place and publicly before, and that is that if you are going to remove a child from their family, albeit for very good reason, then you better make bloody sure you place them somewhere safe, and you better make sure you continue to protect them. To date, you have not. To date, there continue to be systemic failures that go unaddressed, to the detriment of those very kids you have removed.

I want to take a moment to reflect on a recent InDaily interview with Jay Weatherill on this very issue. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:01 to 14:15.

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