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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-08-21 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:51): Obtained leave and introduced a bill for an act to amend various acts within the portfolio of the Attorney-General. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:52): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Attorney-General's Portfolio) Bill 2025. It makes various amendments to several acts committed to the Attorney-General. Part 2 of the bill amends the Bail Act to ensure that electronic monitoring services for people who are fitted with an electronic device as a condition of bail must be provided by a public sector agency within the meaning of the Public Sector Act 2009 or an entity acting pursuant to a contract for service approved by the chief executive officer (i.e. the Chief Executive of the Department for Correctional Services.)

These amendments seek to respond to concerns that have been raised about the regulation and oversight of private bail monitoring services following the recent collapse of BailSafe Australia and the implications within Victoria and New South Wales. BailSafe Australia is a private company that provides electronic monitoring services using GPS devices to track people who are fitted with an electronic device as a condition of bail.

While it is standing practice in Victoria and New South Wales for persons seeking bail to be monitored by a private provider, BailSafe Australia did not alert Victorian or New South Wales authorities of its collapse. In response to these concerns, New South Wales has recently enacted legislation to ensure that private electronic monitoring bail conditions can no longer be imposed. Victoria has also announced that it will end the use of private entities for electronic monitoring of bail.

Unlike Victoria and New South Wales, it is not an established practice in South Australia for private entities to provide such electronic monitoring services to people on bail. In South Australia, I am advised that all electronic bail monitoring services are currently provided by public sector agencies. Accordingly, there are currently no private entities providing these services in this state. Notwithstanding, the proposed amendments to the Bail Act will assist to safeguard against any potential future risk of a similar situation in South Australia by ensuring that electronic monitoring services cannot be provided by a private entity without the approval of the chief executive.

Part 3 of the bill amends section 16 of the District Court Act to ensure that a person who resigns from judicial office, or who resigns from their term of appointment, may continue to act in the relevant judicial office for the purposes of completing the hearing and determination of any proceedings that were part-heard before the resignation.

Unlike section 13A(3) of the Supreme Court Act 1935, there is currently no power for a judge or associate judge of the District Court to continue to act for the purpose of completing the hearing and determination of proceedings that were part-heard before their resignation from judicial office. The proposed amendments in the bill will ensure that these judicial officers can complete any proceedings that were part-heard before their retirement or resignation, as the case may be.

Part 4 of the bill will amend section 57 of the Legal Practitioners Act 1981 to allow for the Attorney-General to delegate their functions and powers in relation to the authorisation of payments from the Legal Practitioners Fidelity Fund. The primary purpose of the Fidelity Fund is to provide compensation to people who suffer financial loss arising from an act or omission that involves dishonesty and results in a default of a law practice.

Section 57(5) of the Legal Practitioners Act provides that no payment may be made from the Fidelity Fund without the express authorisation of the Attorney-General. Subject to authorisation, money in the Fidelity Fund may be applied in any of the specified purposes listed in section 57(4) of the Legal Practitioners Act. There is currently no power for the Attorney-General to delegate the powers and functions under section 57(5), even though there may be situations where it is appropriate for this to occur.

Accordingly, the bill amends the Legal Practitioners Act to insert an express delegation power similar to the delegation that applies in relation to the Legal Profession Conduct Commissioner in section 77 to enable the Attorney-General to delegate their functions and powers to authorise the payments from the Fidelity Fund.

A number of safeguards have been included to ensure that any delegation that might be made is subject to appropriate oversight. This includes the requirement for any delegation to be in writing and that any delegation can be revoked at will. There is also flexibility so that a delegation can be made on an absolute or conditional basis; for example, so that a delegate can only authorise payments of a certain kind or up to a certain amount.

Part 5 of the bill inserts a new section 19A into the Legislation Interpretation Act 2021 to provide that an amending act or instrument is to be construed as part of the amended act or instrument. The amendments are intended to provide certainty regarding the validity of listing techniques, which is a common drafting method used by parliamentary counsel to give effect to declarations or designations made under relevant legislation.

The validity of the listing technique was considered by a recent Federal Court case. In that case, the Federal Court affirmed the validity of the listing technique and noted that it is a common useful drafting technique. In confirming the validity of the technique, the Federal Court relied upon the operation of section 11B(1) of the commonwealth Acts Interpretation Act 1901, which provides that every act amending another act must be construed with the other act as part of the act.

There is currently no equivalent provision in South Australia. Accordingly, the bill amends the Legislation Interpretation Act to insert a new provision modelled on section 11B(1) of the commonwealth Acts Interpretation Act to ensure the amending act or instrument is to be construed as part of the amended act or instrument.

Part 6 of the bill proposes to repeal the offence in section 35 of the Summary Offences Act 1953, which restricts certain newspaper reports on descriptive material or leave proceedings related to sexual immorality, unnatural vice or indecent material. The original version of this offence was enacted in 1929 under the repealed Indecent Reports (Restriction) Act 1928. The offence was then later consolidated into the former Police Offences Act 1953, which is now known as the Summary Offences Act 1953.

It appears that the purpose of this original offence was to protect the public from material which at the time was considered to be capable of corrupting public morals due to its obscene or immoral nature. In particular, parliamentary debate from this time suggests that the offence was historically intended to restrict newspapers reporting on activities of an illicit sexual nature, such as homosexuality and sexual relationships outside of marriage.

South Australia and Victoria are the only two jurisdictions that have retained an offence of this kind. All other jurisdictions, including South Australia, have laws which restrict reporting and publishing of certain material in connection with legal pleadings more broadly. In South Australia, part 8 of the Evidence Act 1929 contains a number of offences which restrict reporting on legal proceedings, including offences that restrict reports relating to sexual cases, as well as media reporting on the outcome of some criminal proceedings generally.

These offences carry significant penalties of up to $10,000 in the case of an individual and $120,000 in the case of a body corporate. In addition, section 33 of the Summary Offences Act 1953 makes it an offence to produce, sell or exhibit indecent or offensive material. Given the existing restrictions that already apply to certain reports on sexual cases and legal proceedings, the government considers it appropriate to repeal the historical offence in section 35 of the Summary Offences Act 1953.

Part 7 of the bill amends section 31 of the Surrogacy Act 2019 to postpone the requirement to undertake a statutory review of the act by a further two years so that it must be completed by the eighth anniversary of the commencement of the act—i.e. 1 September 2028. The Surrogacy Act commenced operation on 1 September 2020. It repealed part 2B of the Family Relationships Act 1975 and created a standalone act to recognise and regulate certain forms of surrogacy in South Australia. Section 31 of the Surrogacy Act requires the minister to cause a review of the operation of the act to be conducted and submitted after the fifth, but before the sixth, anniversary of the act. That would be between 1 September 2025 and 1 September 2026.

The Australian Law Reform Commission is currently undertaking an inquiry into surrogacy and is due to report to the commonwealth government by 29 July 2026. As part of its terms of reference, the Australian Law Reform Commission has been asked to identify reforms, including proposals for uniform or complementary commonwealth, state and territory laws, that:

are consistent with Australia's obligations under international law and conventions; and

protect and promote the human rights of children born as a result of surrogacy arrangements, surrogates and intending parents, noting that the best interests of children are paramount.

It is anticipated that the South Australian statutory review will likely canvass similar issues and engage similar stakeholders to the Australian Law Reform Commission inquiry. Given this, the bill proposes to delay the requirement to conduct the statutory review of the Surrogacy Act for a further two years so that it must be completed by 1 September 2028. This will ensure that any reforms that are proposed by the Australian Law Reform Commission to improve the operation of surrogacy laws in South Australia can be taken into consideration as part of the South Australian statutory review.

Parts 8 and 9 of the bill amend the Terrorism (Police Powers) Act 2005 and the Terrorism (Preventative Detention) Act 2005 to delay the effect of the expiry and sunset provisions in those acts by a further 10 years, i.e. until 8 December 2035. The Terrorism (Police Powers) Act provides authority for police officers to prevent and investigate terrorist acts. The Terrorism (Preventative Detention) Act provides authority for the temporary detention of terror suspects in order to prevent the occurrence of a terrorist act, or to preserve evidence of, or relating to, a recent terrorist act.

Without legislative amendment to extend the operation of these acts, the Terrorism (Police Powers) Act will expire, and the operative parts of the Terrorism (Preventative Detention) Act will cease to operate, on 8 December 2025. The extension of these acts will ensure that South Australia can continue to use the powers provided for in those acts to prevent and respond to potential terrorist acts and to keep our community safe.

That concludes the matters that are the subject of this bill. I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Bail Act 1985

3—Amendment of section 3—Interpretation

This section amends the definition of Chief Executive Officer in section 3 of the principal Act to align with changes to the terminology in the Correctional Services Act 1982.

4—Insertion of section 11AA

New section 11AA is inserted into the principal Act as follows:

11AA—Certain electronic monitoring must be conducted by public sector agency etc

The proposed section provides that, if a grant of bail is made subject to a condition requiring the applicant to be fitted with a device for the purpose of monitoring compliance with the bail agreement, any electronic monitoring services in respect of the device must be provided by a public sector agency, or by an entity acting pursuant to a contract for services approved by the Chief Executive Officer for the purposes of the section.

Part 3—Amendment of District Court Act 1991

5—Amendment of section 16—Retirement of members of judiciary

This clause amends section 16 of the principal Act to allow a person who resigns from judicial office to continue to act in the relevant office for the purpose of completing the hearing and determination of proceedings part-heard before their resignation.

Part 4—Amendment of Legal Practitioners Act 1981

6—Amendment of section 57—Fidelity Fund

This clause amends section 57 of the principal Act to empower the Attorney-General to delegate their functions and powers under the section to a person, including a person performing particular duties or holding or acting in a particular position.

Part 5—Amendment of Legislation Interpretation Act 2021

7—Insertion of section 19A

New section 19A is inserted into the principal Act as follows:

19A—Amending Act or instrument to be construed as part of amended Act or instrument

The proposed section provides that an amending Act or legislative instrument must be construed with the Act or legislative instrument it amends as part of that amended Act or instrument.

Part 6—Amendment of Summary Offences Act 1953

8—Repeal of section 35

This clause deletes section 35 of the principal Act.

Part 7—Amendment of Surrogacy Act 2019

9—Amendment of section 31—Review of Act

This clause amends section 31 of the principal Act to require a review of the operation of the Act to be completed after the seventh, but before the eighth, anniversary of its commencement (rather than after the fifth, but before the sixth, anniversary).

Part 8—Amendment of Terrorism (Police Powers) Act 2005

10—Amendment of section 31—Expiry of Act

This clause amends section 31 of the principal Act to provide for expiry of the Act on the thirtieth anniversary of its commencement (rather than the twentieth anniversary).

Part 9—Amendment of Terrorism (Preventative Detention) Act 2005

11—Amendment of section 52—Sunset provision

This clause amends section 52 of the principal Act to prevent the continued operation of, or making of, preventative detention orders and prohibited contact orders at the end of 30 years after the commencement of the Act (rather than the current 20 years).

Debate adjourned on motion of Hon. D.G.E. Hood.

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