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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-01 Daily Xml
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Bills

Summary Offences (Custody Notification Service) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 June 2020.)

The Hon. I. PNEVMATIKOS (16:59): I rise today in support of the Hon. Kyam Maher's bill and thank him for bringing this important legislation to this place. Since the death of George Floyd in May we have seen the power of protests through the Black Lives Matter movement both here and overseas. The movement has highlighted the injustices and disproportionate disadvantages people of colour face.

Last sitting week, several of us signalled the need for racial injustices faced by First Nations people to be addressed through legislation. At the Adelaide Black Lives Matter protest the speeches called out the systemic issues of racial injustice that Aboriginal and Torres Strait Islander people in this state face. We know that Aboriginal and Torres Strait Islander people make up a disproportionate amount of people in our prisons. Aboriginal people make up close to one-third of our prison population and young people up to 80 per cent of our youth detention population in South Australia. Simply, First Nations people are more likely to have contact with the justice system and are more likely to be held in custody than not.

Arguments have been flung round the media that incarceration rates are so high because Aboriginal and Torres Strait Islander people commit more crime. This argument is completely flawed. It is inadequate, misleading and offensive. The reality is that crime plays out a lot differently for Indigenous people than it does for non-Indigenous people. Racial profiling, historical injustices and a whole range of disadvantages contribute to the disproportionate incarceration of individuals. The bill is the first step in recognising that the current systems we have are not sufficient.

We know that the current voluntary model, the Aboriginal Visitors Scheme, is not working. The model was well intentioned but fails in practice. The custody notification service has proven to be a life-saving service in other jurisdictions. Not only does the service provide essential legal advice for someone in custody but it also acts as a welfare check and support mechanism. Unlike the AVS, the CNS mandates that ALRM are informed and present when an Aboriginal or Torres Strait Islander is placed in police custody.

Speakers at the Adelaide Black Lives Matter protest highlighted that without unity and solidarity we cannot overcome race inequalities in Australia. I hope that is what we are seeing with this bill. Although not all parties have taken the same route, in one form or another a custody notification service has been agreed by each side of this house. It signals the beginning of change and that the parliament is listening to the voice of community.

The Hon. T.A. FRANKS (17:02): I rise to support the second reading of this bill, put before the chamber by the Hon. Kyam Maher, for a custody notification service. I do so noting that the Greens also have a bill before the parliament for a custody notification service and, prior to that, had called on this chamber for urgent action on this matter and on all of the recommendations of the Royal Commission into Aboriginal Deaths in Custody. That royal commission reported in 1991 and here we are, in 2020, being one of the last jurisdictions to actually legislate for a custody notification service.

What a custody notification service will provide is that, where an Aboriginal or Torres Strait Islander person is placed in custody in this state, they will receive both a welfare check—and in New South Wales it is a call that says, 'Are you okay?' or a visit that says, 'Are you okay?'—as well as legal support and advice.

We know that that was a recommendation of the royal commission because of a particular case and particular situations that were systemic that showed Aboriginal or Torres Strait Islander people placed into custody often have underlying health conditions, often face extreme anxiety and may well need an interpreter. Certainly, we know that in New South Wales, which did take up very early on the option of a custody notification service, it saved lives. In fact, following the implementation of that there was only one death in custody in this situation in New South Wales, which actually occurred only because the CNS was not followed.

A CNS has been proven statistically to save the lives of Aboriginal and Torres Strait Islander people placed in custody. In South Australia, we have not had such a service. We have had the Aboriginal Visitors Scheme, which is not enforceable, and we have also seen a significant number of deaths in custody where it is often pointed to that perhaps had a CNS been in place we would not be seeing those families grieve the loss of their loved one, we would not have seen deaths in custody, we would not be seeing cases years on awaiting their time before the Coroner's Court or, as in the case of Wayne Fella Morrison, years into a Coroner's inquest.

I noted in my speech to the Greens' bill that in the case of Wayne Fella Morrison he was not afforded access to the Aboriginal Visitors Scheme, let alone a custody notification service. We know that we do not know what happened to him. We know he had never been placed in custody before, though. We know that somehow he ended up not in the remand centre but in Yatala. As a member who served on the select committee into overcrowding in prisons, I have seen where he ended up in those first hours in custody, in the most what you would call Victorian prison environment, with everything that you would picture of the most horrific and frightening environment: cement floors, steel doors and no windows. It must have been incredibly frightening for that man to be placed in that environment.

We know that he died due to medical issues, and we also know a range of really concerning things: that the corrections officers refused to cooperate with the police investigation; that the corrections officers colluded in the hours after Wayne Morrison's death; that the family were not told what was going on; that the family, when they presented to the hospital, to the RAH, where he was taken, were lied to and told he was not there; that the family, particularly Latoya, sat on the steps of this parliament in the hours after her brother's death, grieving and mourning. She is still, so many years later, without answers as to what happened in those hours that her brother was taken into custody, having never been in custody before, and in the very short days that followed: how he ends up on life support, unresponsive, covered in bruises, in the Royal Adelaide Hospital and then dies.

I cannot fathom the information that was provided to us by Cheryl from the ALRM, and also Change the Record, in the briefing that the Hon. Kyam Maher presented and provided to members of this place: that there have been some eight deaths in custody in five years in South Australia, according to their calculations. I know that PASA is calling for a different way to calculate deaths, but I have to say if the ALRM and Change the Record are telling me that there were eight deaths in five years and I can point to at least two, probably three, where a CNS would have saved that life, then what on earth are we doing in terms of being so slow to legislate?

I will point out the hypocrisy, though, that the Weatherill government was offered funding for three years of a CNS when the Hon. Kyam Maher was a minister of the Crown and that the Weatherill government did not take up that offer. I understand that that financial offer, from previous minister Nigel Scullion but now the current federal government, is still on the table.

I understand from media reports and communications that the Marshall government will legislate for a CNS, so this bill may indeed be redundant. We will support it today, but I say that we will support the second reading because the Greens have some amendments that go to the very reason the AVS, the Aboriginal Visitor Scheme, has not worked—which is that it needs to be transparent, accountable and enforceable.

We will know that when members of what will be the custody notification service turn up to a police station they will not be told they cannot use a mobile phone to take photos of somebody's bruises, as they are currently told; they will not be told they are not allowed to enter the police station due to COVID, as they are currently told; they will not be denied access to where a particular person in custody currently is in the system because they have been moved several times, as currently occurs; and they will have the power, should any of those things occur, should their work be stymied or stifled by the system, to ensure that those who take the person into custody and who deny that access to the custody notification service will face penalties.

As citizens we have rights and responsibilities, and we afford those who place people in custody, in detention, in this state significant rights and responsibilities. They have significant power over people's lives, and they should be accountable—and when we make them accountable there should be penalties, because lives are on the line.

In the last few hours I have received lots of messages, and I have to commend the work of Black Lives Matter because it was largely the impetus of that rally and the worldwide movement that has finally seen the royal commission's recommendations put back on the table for discussion. We know that the Closing the Gap updated report will soon continue that momentum, and we know there is another rally on 4 July. The numbers may not be as strong in the streets, but I hope the political will continues.

As Latoya Rule posted on her Facebook page in the last half-hour, her grief will not be erased, her brother will not be brought back. She posted a salient point:

Do governments make apologies when they implement services like the CNS into South Australia for the lives that were lost due to their inaction in previous years or will they be celebrated for their 'achievements' #longoverdue

I am so sorry that we failed that family and so many other families who have had a death in custody in our state because we did not implement the recommendations of the royal commission.

This is one lifesaving measure that must be implemented. I hope the government gets on and does it quickly, and I hope that this parliament today passes a piece of legislation that has enforceability and accountability.

The Hon. F. PANGALLO (17:13): I rise to indicate SA-Best support for the Summary Offences (Custody Notification Service) Amendment Bill. My colleague the Hon. Connie Bonaros and I thank the Hon. Kyam Maher for his persistence in progressing this bill, the timing of which could not be more relevant.

Australia's appalling record on Aboriginal deaths in custody was the driving force behind the well-attended protests recently held in all Australian cities to march in solidarity with the global Black Lives Matter movement. They highlighted that some 30 years on from the final report of the Royal Commission into Aboriginal Deaths in Custody there have been 434 Aboriginal and Torres Strait Islander deaths in custody nationally, with South Australia recording 18 deaths in custody in that time.

Nationally, approximately one-third of these deaths occurred in police custody while two-thirds of the deaths occurred in prison—and remember that more than half of all Indigenous people who have died in custody since 2008 have not been convicted of a crime.

Unsurprisingly, the royal commission found Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody. In fact, the mortality rate of Aboriginal people in custody since the royal commission handed down its report has halved. What is overwhelmingly different for Aboriginal people which contributes to these unacceptable statistics is the rate at which Aboriginal people come into custody, compared with the rate of the general community.

Although Aboriginal people make up a very small 3 per cent of the general community, their representation in the adult prison population of approximately 30 per cent is disproportionately high and growing. In South Australia, Indigenous people are still about 31.7 times more likely to die in custody than non-Aboriginal people. Even more alarming is the startling fact that 80 per cent of prisoners in youth detention are Aboriginal children

Sadly, time in juvie is seen by many Aboriginal kids as inevitable. This is a shocking indictment on all our criminal justice, policing, child protection, family and youth support, corrections, vocational and education systems, which are supposed to exist to support these children before they get to this point. Of huge concern is the fastest growing prison population is Aboriginal women. As the Uluru Statement from the Heart noted, and the Hon. Kyam Maher quoted in his second reading speech:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

The Guardian newspaper’s ongoing analysis of Aboriginal deaths in custody has revealed that:

agencies such as police watch houses, prisons and hospitals failed to follow all of their own procedures in 41 per cent of cases where Indigenous people died;

the proportion of Indigenous deaths where medical care was required at some point but not given was 38 per cent;

mental health or cognitive impairment was a factor in 42 per cent of all deaths in custody;

Indigenous people with a diagnosed mental health condition or cognitive impairment such as a brain injury or foetal alcohol syndrome disorder received the care they needed in just 51 per cent of cases; and

Indigenous women were less likely to have received all appropriate medical care prior to their death compared with men, and authorities were less likely to have followed all their own procedures in cases where an Indigenous woman died in custody.

These are appalling statistics and frankly, rattling them off as numbers of breaches of police and corrections procedures, instances of the denial of the most basic medical and mental health treatment and care, to Aboriginal people in custody, is sickening. It is sickening because this data—these bare statistics—record the deaths of real people: loved fathers, mothers, sons and daughters, partners and friends. The numbers alone risk desensitising us to the lived realities of those 18 people who died in custody in South Australia and the families who are left to mourn them.

These family members endlessly torture themselves, asking the unanswered question of how this could this could possibly have happened, in a custodial setting that was supposed to be safe and secure—an institution that owed that person detained a duty of care. Family members like Latoya Rule, who is anxiously awaiting the Coroner’s report into the death in custody in 2016 of her loved and cherished brother Wayne 'Fella' Morrison.

Mr Morrison was on remand awaiting a bail hearing. He had been restrained with handcuffs, ankle Flexicuffs and a spit hood. He was placed face down in the rear of a prison van with eight prison officers accompanying him from the prison's holding cells. Mr Morrison died in hospital three days after being pulled unresponsive from the van at Yatala Labour Prison.

Mr Morrison's family has had to endure four years of unrelenting trauma, including a Supreme Court challenge to the Deputy Coroner conducting the inquest into their son and brother's death. Then, as if to add insult to injury, the Supreme Court found that seven corrections officers cannot be compelled to answer questions asked in the Coroner's inquest. While Latoya is justifiably concerned about the length of time the process is taking, her biggest hope is that key questions about her brother's death are answered and all necessary action is taken to prevent it happening again.

So what has gone so badly wrong for so long to bring about the need for this bill? Thirty years ago, in 1991, the Royal Commission into Aboriginal Deaths in Custody recommended police should notify Aboriginal Legal Services whenever they take an Aboriginal person into custody. Those recommendations in that report are 223, 224 and 243. In particular, recommendation 224 provided:

…in jurisdictions where legislation, standing orders or instructions do not already so provide, appropriate steps be taken to make it mandatory for Aboriginal Legal Services to be notified upon the arrest or detention of any Aboriginal person other than such arrests or detentions for which it is agreed between the Aboriginal Legal Services and the Police Services that notification is not required.

Again, as I noted, these are the recommendations 223, 224 and 243 in that commission's report. All jurisdictions have reported that they have some form of custody notification arrangements in place; however, New South Wales and the ACT are the only jurisdictions that have legislation that explicitly requires notification when an Aboriginal person comes into custody.

The commonwealth provided funding of $1.8 million to New South Wales and the ACT from 2015-16 to 2018-19 to implement a 24-hour telephone legal advice service for Aboriginal people taken into custody by the police. The federal minister for Indigenous affairs at the time, Senator the Hon. Nigel Scullion, offered South Australia three years of funding to support the establishment of a custody notification system to reduce the likelihood of future Aboriginal and Torres Strait Islander deaths in custody. This was conditional on the states and territories introducing legislation to mandate the use of the custody notification system and the agreement of jurisdictions to take on funding responsibility at the end of the initial three-year period.

Note that it was not satisfactory for the states to merely have regulations in place, as the Attorney-General today has so cynically announced she would do. Regulations are not legislation and regulations do not attract the federal funding. They can also be changed relatively easily, giving no certainty that a custody notification service will continue.

Like most members in this place, myself and my colleague the Hon. Connie Bonaros were astonished to learn that South Australia has SAPOL general orders of arrest only and the custody notification service that was in place in South Australia has never been legislated and therefore ceased to attract federal funding.

This is significant funding that South Australia has missed out on simply because we did not legislate. We could have had the service in place continuously since 2015-16. We could have saved a death in custody. This bill is a positive step in trying to address the disproportionately high rates of incarceration of Aboriginal people, to try to prevent deaths in custody, but also the entire negative experience of being accused of an offence, apprehended and then deprived of your liberty and freedoms.

If an Aboriginal Legal Rights Movement lawyer or a liaison officer is alerted to a person in custody, they can immediately respond and ensure their client is treated in accordance with the law by police, corrections, courts, medical and mental health officers. This is much broader than ensuring the detained person is provided with legal advice, as essential as that is, at the earliest opportunity. Contact with the ALRM can also be to ensure their client has access to their family and can put arrangements in place for child care, medication, glasses, phone calls, toiletries and other necessities.

If an ALRM officer is alerted to the custody immediately, then experience tells us there is less risk that the person's legal and human rights will be abused or breached. There is a lessened risk of dying in custody, which is what everyone wants. For this reason, we prefer that custody notifications be by the way of a person-to-person phone call and not a message bank, not an answering service or a fax or email that may be missed at a critical time. We would also like to see backup for the ALRM in areas in which it does not have a permanent presence, like the APY lands, Whyalla, Port Lincoln, Coober Pedy and Ceduna. Perhaps the Legal Services Commission duty officer network could assist ALRM in some of these areas.

I am pleased this bill broadens the scope of apprehension and includes children and youth in a wider range of detention settings to make sure all Aboriginal people of any age are covered by the effect of this bill. However, we are deeply saddened to know that these protections are necessary for children as young as 10, who are sometimes in custody for lack of a bail address or anywhere else to go.

There is ample evidence criminalising children does not reduce future offending behaviour. We have a lot more work to do, for example, in relation to the age of criminal responsibility, the laws of doli incapax. We have a lot more work to do in relation to preventing reoffending, providing rehabilitation, counselling, mental wellbeing and health supports and treatments, housing and employment, all of which are prerequisites for staying out of detention and functioning well after detention.

I note the South Australian 10by20 initiative to reduce recidivism by 10 per cent by 2020 and wonder if they have reached that target. Certainly, the last report we have been able to find contained no statistical data. We would like to receive an update about the evaluation of 10by20. The responsible minister may be able to update us on that initiative. We have a lot more work to do to address the more difficult and complex systemic and structural issues that contribute to incarceration rates and hence deaths in custody.

The royal commission made a number of recommendations to address two centuries of dispossession, discrimination, disadvantage and racism that have contributed to the current situation. A 2018 Deloitte review of the implementation of the commission's recommendation, undertaken for the federal government, found that, while the rate at which Indigenous people have died in custody has halved in the 27 years since the royal commission handed down its final report, the rate of incarceration has doubled.

Recommendations aimed at breaking the cycle of imprisonment and diverting people away from prison had the lowest rates of implementation nationally, yet we have wonderful examples of Nunga Court, family conferences, family mediation councils and restorative justice programs here and interstate that are proven to be effective in reducing incarceration and recidivism. Why do we not invest in these more instead of the blunt instrument of traditional courts?

Of the 339 royal commission recommendations, 64 per cent were fully implemented, 14 per cent were mostly implemented, 16 per cent were partly implemented and 6 per cent were not implemented at all. Only 55 per cent of recommendations designed to keep people out of prison by using gaol as the last resort have been implemented, such as non-custodial sentencing and diversionary programs. As Senator Pat Dodson in the federal parliament commented recently:

Thirty years have passed, and we have not addressed the underlying issues that give rise to people being taken into custody and, consequently, dying in custody.

With only two of the seven national Closing the Gap targets being met, we are not optimistic about current efforts at state and federal levels delivering the change needed. The new Closing the Gap targets are rumoured to contain justice targets, but we will watch that very slow-moving space with interest.

The bill currently before us is, by contrast, a positive and proactive step. It is an enhanced version of an earlier bill and broadens the scope of apprehensions to include those made with or without a warrant, taking in all those who come into police detention. It also broadens the scope of prescribed officers to include the manager of a youth detention or training centre to make sure all Aboriginal people, regardless of their age, are covered by the effect of the bill. These are welcome improvements.

We note that there are amendments filed by the Hon. Kyam Maher and the Hon. Tammy Franks. We support the improved reporting and transparency intended by both sets of amendments. However, we do not support one element of the Greens' amendment to criminalise a breach of this legislation beyond the sanctions in the bill and those already applicable.

We do, however, welcome a future discussion about the under-reporting of police complaints by Aboriginal people, the reasons for that and possible reforms to the police complaints handling systems, particularly for Aboriginal people and especially for Aboriginal people for whom English is a second language. With those words, I conclude my comments and commend the bill to the Legislative Council.

The Hon. R.I. LUCAS (Treasurer) (17:30): The Royal Commission into Aboriginal Deaths in Custody reported in 1991 that the deaths it investigated were not the product of deliberate violence or brutality by police or prison officers. Acknowledging this, the Attorney-General has this week announced that the government is implementing a mandatory custody notification service across South Australia, ensuring our laws enshrine a requirement of police to notify the Aboriginal Legal Rights Movement of any arrest or detention of an Aboriginal person. This was a recommendation of the 1991 royal commission not taken up by previous governments and is an important step in South Australia beyond the visitors scheme we currently offer.

I note the Attorney-General, in a press release dated Wednesday 1 July, under the heading of 'Custody Notification Service to be established in SA', has publicly committed that the state government will move to implement a custody notification service in South Australia in a step towards reducing Aboriginal deaths in custody. The press release states:

A Custody Notification System would legally require SAPOL to notify South Australia's Aboriginal Legal Service, the Aboriginal Legal Rights Movement, when an Aboriginal person enters custody.

'While we have had similar arrangements in place between SAPOL and the Aboriginal Legal Rights Movement for quite some time, there have never been any formalised legislative measures', Attorney-General, Vicki Chapman said.

'Establishing a CNS in South Australia will help to ensure that Aboriginal people receive culturally appropriate wellbeing support and basic legal advice as soon as possible after being taken into custody.

'This will also bring us in line with other jurisdictions around the country who have legislated for these measures.'

The new regulations will require SAPOL to notify the Aboriginal Legal Rights Movement by telephone as soon as an Aboriginal person has been delivered into police custody.

Whilst noting the Hon. Mr Pangallo's comments about regulations, I am advised that the Western Australian government has implemented a similar scheme through the use of regulations instead of legislation, similar to what is being proposed by the South Australian government and the Attorney-General. I note also that the Western Australian government is currently a Western Australian Labor government.

A custody notification system is a 24-hour, seven days a week contact service available to Aboriginal people who have been detained in custody. The CNS provides culturally appropriate health and wellbeing support and basic legal advice. While South Australia does not currently have a CNS, the government provides annual funding towards the Aboriginal Visitors Scheme delivered by the Aboriginal Legal Rights Movement. The Aboriginal Visitors Scheme is an after-hours only visiting service providing support to Aboriginal people detained in custody.

As mentioned, in 1991 the Royal Commission into Aboriginal Deaths in Custody recommended the establishment of a CNS in all jurisdictions to make it mandatory for an Aboriginal legal service to be notified upon the arrest or detention of any Aboriginal person, other than such arrests or detentions for which it is agreed between the ALS and the police services that notification is not required.

The goal of a CNS is to end preventable Aboriginal deaths in custody. Until relatively recently, New South Wales was the only jurisdiction with a legislatively mandated CNS. However, Victoria, Western Australia and the Northern Territory have all legislated to make use of the CNS mandatory in their respective jurisdictions. The commonwealth government has previously offered to fund a CNS for all jurisdictions for an initial three-year period. I am advised that the three-year funding offer was offered to the former Labor government in 2016. However, it was not taken up.

The Attorney-General notes specifically that this was a government in which the Hon. Kyam Maher MLC sat in the cabinet. Since that time, another offer has been made to this government in June this year which this government has taken up, in contrast to the refusal by the former Labor government in 2016.

The Attorney-General thanks the Hon. Ken Wyatt MP for his work in this space nationally. The Attorney-General is now working with the commonwealth and the ALRM to finalise the funding agreement and the expanded role of the ALRM, particularly to include both cultural and legal assistance to Aboriginal persons taken into custody. As such, the government will not be supporting this bill as the CNS has already been committed to.

I note that the Hon. Mr Pangallo I think made reference to the fact that if this was to be done by regulations, that in some way the South Australian government would not be able to access federal funding. Certainly, the briefing notes that I have been provided with would seem to indicate that is not correct, and that the Attorney-General, even though she proposes to introduce the scheme via regulation, is negotiating with the commonwealth to take up the funding agreement offer.

The Attorney-General would like to note on the record the work of the Hon. Tammy Franks MLC who had also introduced a bill to implement a CNS. The Attorney-General says that she was pleased to work with the Hon. Ms Franks on the regulations to implement this momentous scheme in South Australia.

The Hon. K.J. MAHER (Leader of the Opposition) (17:36): I thank members for their contributions and particularly the indications of support for the bill. I just want to expand on a point that the Hon. Tammy Franks made and made well: governments of all persuasions, parliaments and all of their members have all too often collectively failed Aboriginal people. That does not mean individual members of goodwill and intention are not making a difference, but collectively for a couple of centuries Aboriginal people have been failed by those who make the laws in this country and in this state.

I did not intend to be at all political as this is too important to make political points. However, I will say I am somewhat astonished that on the very day that this comes to a vote in this chamber we see the government issuing a press release to introduce a CNS. The press release does not talk about either legislation or regulation. We are led to understand from the contributions made today and the media reporting today that there will be regulation to put this CNS that the government is proposing into force.

I agree with the Hon. Frank Pangallo in his contribution: legislation is better, legislation cannot be changed as easily, legislation carries a greater weight. The government has had two years if they had so chosen to do something about a custody notification scheme and, as I said, we have an announcement on the very day it is to be voted on in here.

Yes, I do accept that all governments should have done more in terms of implementing the recommendations into Aboriginal deaths in custody. All governments since 1991, should have done more, but that does not mean that we should not do what we can and we should not make the scheme as effective as we can when we have that opportunity.

With those words, I commend the bill to this chamber, I look forward to its passage, and I look forward to the government considering this bill rather than regulation where we have no idea what it covers. We do not know, for instance, whether regulation covers children and young people in detention. We do not know what the enforceability of the regulations are.

It is substandard to put out a press release and it is telling that the main contribution by the government to this debate is to read out a press release on this topic. It is not good enough. We have failed in the past and we need to do better, and I think this bill is a step in that direction.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I just want to put on the record, in terms of the conversations I have had with the government, and also note something that was skipped a little: WA has legislated this in recent months by regulation and when I spoke to my bill on this matter I noted that mental health detention and the broader scope of detention was able to be accommodated because of that approach. Certainly, when I was giving drafting instructions to Parliamentary Counsel under our laws I was not able to accommodate that approach. There are some flexibilities but certainly we want some guarantees out of government today, and I look forward to the debate.

I am very disappointed, however, that people have not seen the value in ensuring that this is enforceable. I draw attention to the fact that should this process not be followed we know that lives will be lost. We also know that traditionally there have not been great relationships between the police and Aboriginal people in incarceration, and they are incarcerated at extraordinarily high numbers and that accountability through enforceability is key to changing that culture and that approach and saving lives. With that, I look forward to the rest of the debate.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 3, lines 24 to 33 [clause 3, inserted section 76C(6)]—Delete subsection (6) and substitute:

(6) A prescribed custodial officer who, without reasonable excuse, contravenes or fails to comply with a requirement under this section is guilty of an offence.

Maximum penalty: $2,500 or imprisonment for 6 months.

This ensures that a prescribed custodial officer who, without reasonable excuse, contravenes or fails to comply with a requirement under this section is guilty of an offence, and the maximum penalty there is either imprisonment for six months or a fine of some $2,500.

I do so noting that this is not an extraordinary clause. We expect those who place people in custody in this state to comply with the law, and when they do not comply with the law legal cases can fall over. For example, where police do not follow due process with covert operations, cases can be thrown out of court.

What we are talking about here, of course, are people who have been marginalised, victimised and treated without due respect for their rights for centuries. We are changing a culture here in saying that as a parliament we take this matter seriously and that if you do not follow this life-saving process, as we expect people to be informed of their rights and to be able to have legal representation through our court system, we are saying with this amendment that if you do not take this process seriously, yes, you might face imprisonment but you might also face a $2,500 fine.

We know that currently there is a lack of transparency with the policing of this state due to possibly unanticipated peculiarities of the ICAC legislation. I can watch the news in any other state or territory in Australia where I can see police officers called to account on the nightly news for contravening what we expect police officers to do in the course of their duty. I know they have very difficult jobs and I know that they deserve our support, and we give them extraordinary powers, but with those extraordinary powers also comes some level of real accountability. We know that people have died because a CNS has not been employed. A $2,500 fine or a real penalty is not too much to ask after centuries of injustice.

The Hon. K.J. MAHER: I rise to speak on the amendment put forward by the Hon. Tammy Franks and commend the honourable member for moving the amendment. We think we should make a very strong statement that this has to be abided by—in the strongest possible terms. We do not disagree with the sentiment the Hon. Tammy Franks is putting forward.

The basic difference between what the opposition bill proposes and what the Hon. Tammy Franks is putting forward is: what is the sanction if the custody notification service scheme is not followed? The opposition has in our bill that disciplinary proceedings can be instituted; the Hon. Tammy Franks has in her amendment that proceedings for an offence can be instituted. While we agree we should be sending the strongest possible message, the concern we have is how that operates when you take into account section 65 of the Police Act.

Section 65(1) of the Police Act, in the section entitled 'Protection from liability for members of SA Police', states:

A member of SA Police does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.

It further goes on, in subsection (4), to make it clear:

Where a question arises as to whether the immunity conferred by subsection (1)…the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member.

So whilst we agree with the idea of what is being put forward, we think it would be a perverse outcome that in passing that amendment we see those who might not abide by the scheme not being able to be prosecuted because of the functions in section 65 of the Police Act.

We think having disciplinary proceedings means that people are more likely to be held to account. There is no immunity from disciplinary proceedings in the Police Act as there is immunity from incurring any civil or criminal liability. That is why we have drafted the bill as such, with the sanction being disciplinary proceedings.

We do not think it should be those who are seeking to have sanctions imposed having to prove that the police officer, in this case, was acting dishonestly; the burden of proof lies with those trying to prove that actions were not followed. We prefer, as we have drafted, to make sure that there is a sanction rather than having a part of the bill conferring a penalty for an offence which, while it does send a very strong signal, is, by virtue of the operation of section 65 of the Police Act, highly unlikely to ever result in that sanction being imposed.

The Hon. F. PANGALLO: While acknowledging the Hon. Tammy Franks' intent in this, I rise to say that SA-Best will not be supporting this amendment.

Amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 3, after line 39 [clause 3, inserted section 79C(9)]—Insert:

custodial police station has the same meaning as in section 78;

designated police facility has the same meaning as in section 78;

I am not wedded to whether this amendment succeeds or whether the Hon. Tammy Franks' amendment succeeds. After all, this was one of the differences in the bills that were put forward by the Hon. Tammy Franks and the opposition. There were—

The PRESIDENT: The Hon. Mr Maher, amendment No. 1 [Maher-1] is:

…Insert:

custodial police station has the same meaning as in section 78…

The Hon. K.J. MAHER: Sorry.

The PRESIDENT: I think you are speaking to the wrong one.

The Hon. K.J. MAHER: I am speaking to the wrong amendment. This amendment, amendment No. 1 [Maher–1], is an amendment that was picked up in the drafting and is necessary to give effect to what we are asking to do in the bill.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 4, after line 6—Insert:

79D—Certain information to be included in annual report of Commissioner

(1) The following information must be included in each annual report of the Commissioner under the Police Act 1998:

(a) the number of notifications made to the ALRM under section 79C during the year to which the annual report relates;

(b) the number of Aboriginal or Torres Strait Islander persons held at custodial police stations or designated police facilities during the year to which the annual report relates;

(c) the number of matters dealt with in accordance with section 79C(6)(a) during the year to which the annual report relates, and information setting out the nature of each such matter;

(d) any other information requested by the Minister.

(2) Nothing in this section limits the matters relating to the detention of Aboriginal and Torres Strait Islander persons that may be included in an annual report.

I might continue on with the remarks that I had started to make previously. In relation to this amendment, there were a few differences—not major, but a few differences—in the bills that the Hon. Tammy Franks and the opposition put forward. In terms of the differences that were in the opposition's bill, we had a difference in that our bill sought to ensure that it applied to children and young people in detention. Our bill also sought to ensure that if a person was arrested with police acting on a warrant to arrest, this scheme would also apply. It was not clear either in the earlier version of the bill that the opposition had put before this parliament or in the Greens' bill.

The other differences were two extra parts in the Greens' bill that were not in the opposition's bill. One of them was the difference that we discussed with the Hon. Tammy Franks' first amendment, that is, the sanctions for not following the scheme. I have outlined why the opposition thought it better to have a disciplinary proceeding that could be readily enforced rather than an offence that might not be enforced because of the operation of section 65 of the Police Act.

The other part of it that we agree with, that we think is a good idea, is a reporting mechanism. We borrowed from what the Hon. Tammy Franks had put forward in her bill and moved that as an amendment of our own. I think the only difference is one extra line in the amendment that we moved. This is an abundance of caution drafting issue that made it clear that any other matter, not just those that were prescribed in the reporting, could also be in that annual report.

As I have said, I am not wedded to having our amendment get up if the Hon. Tammy Franks wishes to move hers. Given that it was the Hon. Tammy Franks' idea to put it in her bill, I am happy. As I have outlined, we thank the Hon. Tammy Franks and we think this is a good idea. We have talked a lot about openness and transparency in the way governments do things today and this ensures that in the operation of this scheme.

The Hon. T.A. FRANKS: For the sake of the record, the Greens are very happy to support this amendment. It is no surprise, given we had something similar in our bill in terms of ensuring accountability and reporting. I would note, though, that the bill that the Greens put forward, we were advised, did cover youth and children in the drafting of it as it was put, because under the Summary Offences Act the definitions, we were informed by parliamentary counsel, cover children and youth.

The CHAIR: The Hon. Ms Franks, are you going to move your amendment?

The Hon. T.A. FRANKS: No, I do not need to move an amendment, given mine does the same thing. Certainly, I would like to get on with legislating for a custody notification service.

The Hon. F. PANGALLO: We will support the amendment.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Leader of the Opposition) (17:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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