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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-09-06 Daily Xml
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Bills

Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2022

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:48): Obtained leave and introduced a bill for an act to amend various acts within the portfolio of the Attorney-General and to amend certain other acts. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:49): I move:

That this bill be now read a second time.

I rise today to introduce the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2022.

Further to the Attorney-General's portfolio bill that was introduced to this place in May, this portfolio and other justice measures bill seeks to rectify minor errors, omissions and other deficiencies identified in legislation committed to the Attorney-General and to make other technical amendments.

Given the minor or technical nature of these amendments, it is often more efficient to deal with such matters in an omnibus bill rather than in separate amendment bills for each act. This bill makes various amendments to 14 acts committed to the Attorney-General and two justice-related amendments to acts committed to other ministers. All of the amendments have been contained previously in other bills introduced by the former government but not passed by the end of sittings.

On 5 May 2022, I introduced the Statutes Amendment (Attorney-General's Portfolio) Bill. That bill proposed a small number of amendments previously considered in the former government's bill that were a priority. The bill today seeks to implement the majority of the remaining amendments from the former government's bill.

Turning to the substance of the bill, part 2 amends the Aged and Infirm Persons Property Act 1940 in relation to the jurisdiction of the South Australian Employment Tribunal and the South Australian Employment Court. The amendments in clauses 3, 4 and 5 enable protection orders to be made by the court and tribunal in the course of exercising their personal injury jurisdiction.

They remove the present requirement in section 8A that, for a protection order to be made, the infirmity or reduced capacity prompting the protection order must arise from the injury that is the subject of the personal injury proceedings. This will allow, for example, a protection order to be made in respect of a second plaintiff spouse in a dust diseases matter, where the spouse's incapacity arises from age or other illness rather than dust disease.

Part 3 of the bill amends the Children and Young People (Safety) Act 2017. Section 86 of that act allows the Chief Executive of the Department for Child Protection to give a direction to prevent a person communicating with the child who is in custody or under the guardianship of the chief executive. I understand that, historically, there have been practical difficulties in proving that communication occurred, even where the child is in the company of the person who is the subject of the direction.

The amendment in clause 6 provides the chief executive with an additional ground for issuing a direction so that the person can now be directed not to be in the company of, or otherwise associated with, a child under guardianship.

New section 86(4)(a) of the Children and Young People (Safety) Act 2017 will ensure that a child commits no offence by being in the company of a person who is the subject of a direction, communicating with such a person, or where the child is harboured or concealed in contravention of a direction.

New section 86(6) provides that a child to whom a direction relates cannot be compelled to give evidence in proceedings in relation to an offence charged under this section.

Part 4 amends the Civil Liability Act 1936 to remove a redundant reference to section 64(3)(b) to section 105 of the Law of Property Act 1936, which has been repealed. The effect of section 65 of the Civil Liability Act remains unchanged.

Part 5 amends the definition of 'judicial office' in section 27A of the Courts Administration Act 1993. This change is consequential upon an amendment to the Judicial Conduct Commissioner Act 2015 in clause 23 of this bill, which sets out the hierarchy of judges and other judicial officers.

Part 6 of the bill makes various amendments to the Criminal Law (High Risk Offenders) Act 2015.

Clause 9 of the bill amends section 10 of the Criminal Law (High Risk Offenders) Act 2015. That section spells out the conditions that automatically apply to extended supervision orders. The amendment inserts new section 10(1)(e) to clarify that the Supreme Court may impose any condition able to be imposed by the Parole Board under section 11.

This amendment is linked to clause 10 of the bill, which inserts an additional subparagraph (ia) in section 11 to clarify the Parole Board's power to place conditions limiting the movements outside the home of high-risk offenders under extended supervision orders. In practice, this may be a curfew or close supervision at home.

Clause 11 amends section 17 of the Criminal Law (High Risk Offenders) Act to allow the Parole Board to direct that a person may be detained in custody pending circumstances necessary for the purposes of ensuring their compliance with the condition of a supervision order. These circumstances may include matters such as appropriate accommodation or treatment programs.

Part 7 of the bill amends section 103 of the Criminal Procedure Act 1921 to clarify that the power to lay criminal charges in a superior court may only be exercised with the authority and in the name of the Director of Public Prosecutions.

Section 103 of the Criminal Procedure Act currently provides that a person may be tried on an information presented to a superior court in the name and authority of the Director of Public Prosecutions but does not make it clear that this power may only be exercised by the Director of Public Prosecutions. The power to lay criminal charges in section 103 of the Criminal Procedure Act was formerly found in section 276 of the Criminal Law Consolidation Act 1935.

Section 236 of Criminal Law Consolidation Act made it clear that the Director of Public Prosecutions was bound to present an information in every case where a person was committed to one of the superior courts for trial.

Accordingly, an amendment is made to section 103 of the Criminal Procedure Act, for the avoidance of any doubt, to clarify that only the Director of Public Prosecutions has the power to lay an information in a superior court, consistent with the previous position under section 276 of the Criminal Law Consolidation Act.

Part 8 of the bill amends the Environment, Resources and Development Court Act 1993 to allow for the appointment of judicial registrars in the Environment, Resources and Development Court and other consequential amendments.

Part 9 of the bill amends the Fences Act 1975 to update a reference in section 24 to refer to the Magistrates Court Act 1991 instead of the Local and District Criminal Courts Act 1926.

Part 10 of the bill amends section 61 of the Guardianship and Administration Act 1993 to remove an obsolete reference to the Criminal Law Consolidation Act 1935.

Section 61 currently provides that the South Australian Civil and Administrative Tribunal is not to consent to a termination of pregnancy unless the carrying out of the termination would not constitute an offence under the Criminal Law Consolidation Act 1935. As the Termination of Pregnancy Act 2021 has rendered it no longer illegal to terminate a pregnancy, the reference to the Criminal Law Consolidation Act is redundant.

Section 61 has been recast so that the reference to the Criminal Law Consolidation Act is removed. This section is otherwise unchanged.

Part 11 of the bill amends the Judicial Conduct Commissioner Act 2015. Clause 23 inserts references to judicial registrars in the hierarchy of judges and other judicial officers.

Clause 24 clarifies that the holders of judicial office can now be removed from office regardless of whether the act appointing them provides for such a removal.

In addition, clause 25 inserts new section 34A in the Judicial Conduct Commissioner Act 2015 to allow the Judicial Conduct Commissioner a discretion not to give a written notice required under the act in relation to a complaint or the dismissal of a complaint. It is important to note that this discretion must be read in the context of other provisions of the act, including section 13(2), which makes it clear that the rules of procedural fairness apply.

Part 12 of the bill makes various amendments to the Legal Practitioners Act 1981 in relation to foreign lawyers. Clause 26 extends the application of 14AB(1)(c) to suspected unsatisfactory conduct or professional misconduct of Australian-registered foreign lawyers.

Clause 27 inserts new subsection 23(4) to clarify that the prohibition on legal practitioners sharing profits with non-lawyers does not prevent a legal practitioner from entering into an agreement to share profits with an Australian-registered foreign lawyer.

Clause 28 amends section 23D of the Legal Practitioners Act 1981 to require an Australian-registered foreign lawyer establishing an office in South Australia to give notice to the Supreme Court to that effect, in the same way that interstate-registered practitioners must do.

Part 13 of the bill amends section 84(1) of the Mental Health Act 2009 to remove the inference that mandatory initial reviews of short-term treatment orders under section 79 of that act carry an automatic entitlement to legal representation in every case. In practice, the South Australian Civil and Administrative Tribunal conducts initial reviews under section 79 on the basis of original reports and treatment plans. This means that legal representation is not necessary for initial reviews.

Part 14 of the bill amends the Ombudsman Act 1972 to update an obsolete reference in section 5 to refer to the Police Complaints and Disciplinary Act 2016 instead of the Police Complaints and Disciplinary Proceedings Act 1985.

Part 15 makes minor amendments to the Real Property Act 1986 to update obsolete references in the act.

Part 16 amends the Roads Opening and Closures Act 1991 to update obsolete references in section 46, which was consequential upon the enactment of the Planning, Development and Infrastructure Act 2016.

Finally, part 17 of the bill amends the Youth Court Act 1993 to remove the requirement for principal members of the Youth Court, including special justices, to be appointed for a set term.

That concludes the matters that are the subject of the bill. It is a bill which covers many different areas and deals with a wide range of issues that ensure that our justice system continues to work efficiently and effectively for our community. 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 Aged and Infirm Persons' Property Act 1940

3—Amendment of section 3—Interpretation

This clause amends section 3 to insert a definition of employment court and make a consequential amendment to the definition of court. Employment court is defined as the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014 constituted of—

the South Australian Employment Court; or

a member who is, or at least 1 of whom is, a President or a Deputy President of the Tribunal.

4—Amendment of section 4—Exercise of jurisdiction of court

This clause inserts a new subsection (1b) to provide jurisdiction for an employment court in which an action for damages for personal injury is brought to make a protection order under section 8A of the Act. If the court makes such an order, the provision further provides jurisdiction for the same or any other employment court to hear and determine any consequential or related proceedings under the Act. The other amendments in the clause are of a consequential nature.

5—Amendment of section 8A—Protection order on court's own initiative

Section 8A(1) allows a court to make a protection order in respect of a person in an action for damages for personal injury if that person is, by reason of that injury, unable to manage their own interests. This amendment removes the requirement for the inability for the person to manage their interests to be as a result of the injury the subject of the action before the court.

Part 3—Amendment of Children and Young People (Safety) Act 2017

6—Amendment of section 86—Direction not to communicate with, harbour or conceal child or young person

Subclause (1) makes a consequential amendment to the section heading. Subclauses (2) to (4) propose to insert subsections (1a), (4a) and (6).

Proposed subsection (1a) provides that the Chief Executive may, by notice in writing, direct a specified person not to be in the company of, or otherwise associate with, a specified child or young person who is in the custody, or under the guardianship, of the Chief Executive during the period specified in the notice.

Proposed subsection (4a) provides that despite section 267 of the Criminal Law Consolidation Act 1935 or any other Act or law, a child or young person who undertakes conduct that contravenes a direction under the section commits no offence in relation to that conduct.

Proposed subsection (6) provides that despite a provision of the Evidence Act 1929 or any other Act or law, a child or young person to whom a direction under the section relates is competent, but is not compellable, to give evidence in proceedings relating to a charge of an offence against the section.

Part 4—Amendment of Civil Liability Act 1936

7—Amendment of section 64—Abolition of rule as to unity of spouses

This amendment removes an obsolete reference to an application under a repealed section of the Law of Property Act 1936.

Part 5—Amendment of Courts Administration Act 1993

8—Amendment of section 27A—Interpretation

This clause amends the definition of judicial office to mirror the amendments made to the equivalent definitions in the Judicial Conduct Commissioner Act 2015 as proposed in clause 23 of this measure.

Part 6—Amendment of Criminal Law (High Risk Offenders) Act 2015

9—Amendment of section 10—Supervision orders—terms and conditions

This amendment clarifies section 10(1)(e) to provide that a condition imposed by the Court as they think fit and specified in an extended supervision order may include a condition of a kind able to be imposed by the Parole Board under section 11.

10—Amendment of section 11—Conditions of extended supervision orders imposed by Parole Board

This amendment adds to the list of conditions able to be imposed by the Parole Board a condition that requires the person subject to the order to remain at the person's residence during a specified period and not leave the residence at any time during that period except for a specified purpose, or in specified circumstances.

11—Amendment of section 17—Proceedings before Parole Board under this Part

Section 17(1)(b) provides that in proceedings before the Parole Board relating to an alleged breach of a supervision order, the Board may vary or revoke a condition of the order, and make further orders as set out in paragraph (b). This amendment adds a provision to this list of further orders to provide that the Board may direct that the person the subject of the order be detained in custody pending circumstances necessary for the purposes of ensuring the person's compliance with a condition of the order being in place.

Part 7—Amendment of Criminal Procedure Act 1921

12—Amendment of section 103—DPP may lay information in superior court

This clause substitutes section 103(1) to clarify that an information may only be presented to the Supreme Court or the District Court in the name and by the authority of the Director of Public Prosecutions, and, despite any other provision of Part 5 of the Act, a person named in that information may, as a result, be tried at any criminal sessions of the Supreme Court or District Court (as the case may be) for any offence on that information.

Part 8—Amendment of Environment, Resources and Development Court Act 1993

13—Amendment of section 3—Interpretation

The clause makes amendments consequential on the inclusion of Judicial Registrars in the Act.

14—Insertion of section 11A

This clause inserts a new section allowing for the office of Judicial Registrar to be established as follows:

11A—Judicial Registrars

The proposed section provides that any Judicial Registrar holding office under the District Court Act 1991 who is designated by the Governor, by instrument in writing, as an officer of the Environment, Resources and Development Court will (while they continue to hold office as a Judicial Registrar) be a Judicial Registrar of the Court.

15—Amendment of section 15—Constitution of Court

This clause makes amendments consequential on the inclusion of Judicial Registrars in the Act.

16—Amendment of section 16—Conferences

The clause makes an amendment consequential on the inclusion of Judicial Registrars in the Act.

17—Amendment of section 26—Issue of evidentiary summonses

This clause makes an amendments consequential on the inclusion of Judicial Registrars in the Act.

18—Amendment of section 30—Right of appeal

This clause makes an amendment consequential on the inclusion of Judicial Registrars in the Act.

19—Amendment of section 36—Immunities

This clause makes an amendment consequential on the inclusion of Judicial Registrars in the Act.

20—Amendment of section 48—Rules

This amendment is consequential on the inclusion of Judicial Registrars in the Act.

Part 9—Amendment of Fences Act 1975

21—Amendment of section 24—Rules of court

This clause removes a reference to the repealed Local and District Criminal Courts Act 1926 and replaces it with a reference to the Magistrates Court Act 1991.

Part 10—Amendment of Guardianship and Administration Act 1993

22—Amendment of section 61—Prescribed treatment not to be carried out without Tribunal's consent

This amendment removes a reference to the offence of termination of pregnancy under the Criminal Law Consolidation Act 1935 consequent on this offence being repealed under the Termination of Pregnancy Act 2021.

Part 11—Amendment of Judicial Conduct Commissioner Act 2015

23—Amendment of section 4—Interpretation

This clause makes several amendments to the definition of judicial office to insert references to judicial registrars.

24—Amendment of section 26—Removal of judicial officer

This clause inserts a new subsection (3) that provides, to avoid doubt, that the power to remove a judicial officer under this section may be exercised despite any other provision for the removal of the judicial officer under the Act under which the judicial officer was appointed.

25—Insertion of section 34A

This clause inserts a new section as follows:

34A—Commissioner may determine not to give notice in a particular case

The proposed section gives the Commissioner power to determine, if the Commissioner thinks fit in a particular case, not to give a written notification required under the Act to a person in relation to a complaint or the dismissal of a complaint.

Part 12—Amendment of Legal Practitioners Act 1981

26—Amendment of section 14AB—Certain matters to be reported by Society

This amendment adds a reference to Australian-registered foreign lawyers to subsection (1)(c).

27—Amendment of section 23—Unlawful representation

This clause inserts a new subsection (4) to clarify that the offence in subsection (3) relating to a prohibition on entering into an agreement or arrangement with an unqualified person under which the unqualified person is entitled to share in the profits arising from the practice of the law does not apply to an agreement or arrangement entered into with a Australian-registered foreign lawyer in accordance with Schedule 1A of the Act.

28—Amendment of section 23D—Notification of establishment of office required

This clause makes several amendments to section 23D to extend the notification of establishment of office requirements to Australian-registered foreign lawyers.

Part 13—Amendment of Mental Health Act 2009

29—Amendment of section 84—Representation on reviews or appeals

This amendment removes the mandatory entitlement to legal representation for all reviews of treatment orders and other matters under section 79 of the Act, but maintains that a person may still be legally represented in such proceedings.

Part 14—Amendment of Ombudsman Act 1972

30—Amendment of section 5—Non-application of Act

This clause updates an obsolete reference.

Part 15—Amendment of Real Property Act 1886

31—Amendment of section 146—Discharge of mortgage by Minister in certain cases

This clause deletes an obsolete reference to certified mail and replaces it with a reference to registered post, and makes a further amendment to update a gendered language reference.

32—Amendment of section 276—Service of notices

This amendment deletes an obsolete reference to certified mail and replaces it with a reference to registered mail.

Part 16—Amendment of Roads (Opening and Closing) Act 1991

33—Amendment of section 46—Delegation by other authorities

This clause updates a number of obsolete references to matters under the repealed Development Act 1993, replacing them with the equivalent references under the Planning, Development and Infrastructure Act 2016.

Part 17—Amendment of Youth Court Act 1993

34—Amendment of section 9—Court's judiciary

This amendment removes subsection (3) which requires a proclamation designating a magistrate or special justice as a member of the Court's principal judiciary to state a term for which they are to be a member of the Court's principal judiciary.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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