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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-10-18 Daily Xml
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Bills

Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 September 2022.)

The Hon. J.M.A. LENSINK (15:37): This piece of legislation is largely a piece of legislation that was provided to parliament under the auspices of the former Attorney-General, the Hon. Vickie Chapman MP, as part of a key priority of SA's justice agenda keeping our laws current. There are a number of technical and predominantly minor changes but they are necessary to ensure that the justice system will continue to operate as efficiently as possible.

I am not going to discuss all the clauses in great detail, as that has been done already. Needless to say, the Liberal Party supports this bill, although we do note that the original piece of legislation that was presented to the parliament has been split into a range of separate bills.

The Hon. R.A. SIMMS (15:38): I rise to speak on the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill, which amends 14 acts within the Attorney-General's portfolio and two acts that are justice related. As the honourable member has observed, this is a matter that we dealt with almost 12 months ago to the day; I had the opportunity to look at Hansard this morning. A number of the amendments are of a technical nature, as stated in the Attorney-General's second reading explanation, but some of them do have broader implications. In particular, I want to highlight some of those that have significant effects.

The amendments to the Children and Young People (Safety) Act provide an important measure in protecting young people. In cases where a young person is involved in communication with a person subject to a direction, this amendment ensures the child is protected from committing an offence. As many in this chamber will be aware, I am committed to ensuring that children are not caught up in the criminal justice system, and this amendment certainly prevents that in some cases.

Part 13 of the bill removes automatic entitlement to legal representation under initial reviews provided for in the Mental Health Act 2009. The Greens have some concerns with this clause, however, as we believe in the fundamental principles of the right to a fair hearing and we believe that this must be upheld. That includes the right to competent representation through our legal processes.

In the Attorney-General's second reading explanation, he referred to initial reviews being undertaken on the basis of written reports and treatment plans and stated that this means legal representation is not necessary for initial reviews. In a submission to the then Attorney-General, the Hon. Vickie Chapman, the Law Society stated its opposition to the proposal to exempt section 79 reviews because:

…the orders which are reviewable under this section involve orders in respect of the detention of children, the extension of inpatient treatment orders and detention of a person who has been detained following the expiry or revocation of a previous inpatient detention order.

We do not agree that legal representation should be denied in these circumstances and we will be moving an amendment at the committee stage to remove this section. Members may recall (any of those who are listening) that, around this time last year, I moved an amendment to the bill to do just that—well, I was going to move an amendment; we did not progress with it on advice that was received from the government. My office has since engaged with the Law Society. Again, it is still their view that they have some concerns around this section and it is on that basis that I will be proceeding with the amendment.

The PRESIDENT: I have the Hon. Ms Bonaros listed next.

The Hon. R.A. SIMMS: I draw your attention to the state of the house, Mr President.

A quorum having been formed:

The Hon. C. BONAROS (15:42): I rise to speak in support of the variety of measures in the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2022. The bill, as has been highlighted already, makes amendments to about 16 different acts, two of which do not sit under the A-G's portfolio, but are just as related, in any event. A number of minor fixes, which we see from time to time, removing obsolete references and definitions, which the Attorney has already outlined, do not require my regurgitation.

A vast proportion remain outstanding from the previous government's bill of 2021. One important set of amendments I will briefly mention are to the Children and Young People (Safety) Act 2017. They seek to give the chief executive and the Department for Child Protection the power to give a direction to prevent a person communicating with a child who is under guardianship while ensuring the child does not commit an offence and cannot be compelled to give evidence against the charged person.

With skyrocketing numbers of children currently under the care of the minister, we need to ensure the department has all the powers it needs to protect vulnerable children. I understand the standard of proof has been difficult to meet in the past and know the chief executive has been asking for the power of direction for some time now. I can certainly say those representations have been made to me by the chief executive during the previous term of government. I think it is something we have seen in some of our committee deliberations as well.

Part 13 seeks to amend section 84 of the Mental Health Act 2009 to remove the automatic entitlement to legal representation in initial reviews of short-term treatment orders made under section 79. I understand that does not prevent a person from self-funded representation, and I note also the comments just made by the Hon. Robert Simms in relation to those provisions.

In speaking to an identical amendment on the last occasion I expressed concerns about what seemed at first glance to be the denial of legal representation to those least likely to afford it but most likely to need it. The Hon. Rob Simms shared those concerns and went a bit further than just sharing those concerns, he had amendments drafted. As we have already explained, we did not proceed with them on that occasion.

There was some explanation, I think, given at the time and clarification from the Legal Services Commission, which facilitates legal representation for a large portion of short-term reviews. These types of reviews are commonly conducted by SACAT on the papers, but with the passage of time I think it is fair to say the Hon. Mr Simms has indicated by way of amendments that he and the Law Society continue to have those concerns related to reviews, especially those that deal with the detention and treatment of children. That is something that we will deliberate on further during the committee stage of this bill.

I have not received any fresh correspondence from the Law Society but I certainly have with me the old correspondence that we had previously. I would be keen to hear the views of the Law Society in relation to these provisions. I suspect if anything can be said about where they are coming from, it is that this is a fundamental right to legal representation and we should not be doing anything to remove or diminish that right. I suspect those reasons remain the same and look forward to further consideration of that particular clause as we make our way through the committee stage debate on the bill.

Aside from that issue, I indicate that we support the remaining part of the bill and will consider those particular provisions regarding mental health legal representation under the Mental Health Act when we get to them. With those words, I indicate our support for the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:47): I thank the speakers for their contributions during the second reading stage, particularly the Hon. Michelle Lensink, the Hon. Robert Simms and the Hon. Connie Bonaros. I know we can delve into it in greater detail when we get to part 13 of the bill, but it might be worth, at the second reading summing-up stage, to address the issue the Hon. Connie Bonaros raised, which is the subject of the amendment from the Hon. Robert Simms.

Last year, when this identical provision was debated, some concerns were raised by the crossbench, particularly the Hon. Robert Simms, and also by myself, as then shadow attorney-general, in relation to access to legal representation as it is contemplated under section 84(1) of the act. However, when this was last debated in this chamber last year, even though I had initially put on record that the opposition at the time was considering supporting the amendment in the same terms, after questions were answered at the committee stage we changed our view, having those questions satisfactorily answered. I think, if my memory serves me correctly, the amendment was not proceeded with at that time.

This amendment is the same amendment to the same clause as occurred last year. It is an amendment that proposes to delete part 13 of the bill, which contains an amendment to section 84(1) of the Mental Health Act. The reason remains the same as was put forward to convince us in opposition not to support the amendment. The reason remains the same: it removes the potential for an argument that automatic initial reviews of short-term treatment orders under section 79 carry an entitlement to government-funded legal representation in every single case.

To be clear, the government amendment that is the same as the previous Liberal government's does not prevent a person from accessing legal representation. It merely removes an absolute entitlement to government-funded legal representation in every case at this initial review stage. I am informed that in practice SACAT conducts these automatic initial reviews under section 79 on the basis of written reports and treatment plans on the papers, and legal representation at this stage is both unnecessary and has the potential to be unwieldy.

It should be noted that these reviews are not the same as a review instigated by an agreed party. Rather, they are an initial review conducted as an internal safety measure. Legal representation at this stage would likely in fact be counterproductive, as it would have the effect of delaying reviews and potentially result in people being detained on short-term treatment orders for longer than is necessary.

This amendment does not affect reviews that are effectively appeals against earlier decisions, such as those under sections 81 and 83. Although we understand the reasons for the Greens once again bringing this amendment, the Labor Party's view in government remains the same as the view that we ended up with in opposition, so we will not be supporting the Greens' amendment.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 28 passed.

Clause 29.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 9, lines 29 to 32—Part 13—delete the Part.

The Hon. J.M.A. LENSINK: Very briefly, I advise that the advice of the former Attorney-General in relation to this amendment last year when this was debated was that in relation to reviews conducted by SACAT 'on the papers' negated the need for legal representation, and we agree with the position of the government on this particular amendment.

The CHAIR: The question is that the clause and preceding heading stand as printed.

Question agreed to.

Remaining clauses (30 to 34) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:55): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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