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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-02-22 Daily Xml
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Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:47): Obtained leave and introduced a bill for an act to amend the Intervention Orders (Prevention of Abuse) Act 2009. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:48): I move:

That this bill be now read a second time.

Today, I introduce the Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill 2024. This bill amends the Intervention Orders (Prevention of Abuse) Act 2009 to address an historical charging error in relation to offences under section 31 of that act. Section 31 contains offences for breaches of intervention orders under the act.

Section 31(1) is a less serious offence of contravening a term of an intervention order which requires participation by the defendant in an intervention program. This offence carries a maximum penalty of a $2,000 fine or imprisonment for two years, with an associated expiation fee of $315. Section 31(2) is a more serious offence of contravening any other term of an intervention order. This offence carries a maximum penalty of three years' imprisonment for a basic offence and five years for an aggravated offence.

In September last year, I was informed that it had been identified that defendants had been charged with and found guilty of a less serious offence under section 31(1) where they should have instead been charged with and found guilty of an offence of breaching section 31(2) of the act. I am advised that this incorrect charging came about as a result of an error in a form used by SAPOL prosecutors to lay charges.

Nearly all of these prosecutions, I am advised, were resolved by way of a guilty plea and the defendant was sentenced by the court on the basis of their admitted, uncontested or proven conduct as if the prosecution were for the more serious section 31(2) offence. This error has not exposed any person to a greater penalty than they would have been liable to had they been found guilty of the offence of breaching section 31(2) of the act. Nonetheless, review proceedings may be available to those persons.

I am advised that this issue arose after the commencement of the act in 2011 and continued until an error in South Australia Police's charging system was finally remedied in May 2019. In practice, this was an error in SAPOL's charging system which produces the required documents to lay a complaint or information before the court. I am advised that a full audit of these matters has identified 771 files with 700 individual defendants to whom this error applies.

This bill represents the government's legislative response to this historical charging error. It provides a pathway for fresh prosecutions to be brought and for the safety of the community, particularly victim survivors of domestic violence, to be maintained. This bill would enact a scheme to apply to any review proceedings initiated by defendants that may be permitted by the court to be commenced out of time. Specifically, the bill will:

Establish a process whereby fresh prosecutions for a section 31(2) offence could be brought out of time and be heard and determined in the same review court that is dealing with any appeal or review by a defendant (the section 31(2) proceedings). If these section 31(2) proceedings are contested, the review court has a discretion to remit the matter to a court of summary jurisdiction for trial, to deal with it in the ordinary way.

Provide that any agreed or undisputed facts received in the original sentencing proceedings for the offence against section 31(1) are, unless excluded in the court's discretion, admissible as evidence of the conduct in fact engaged in on the occasion alleged for the purpose of the section 31(2) proceedings.

Provide for the offsetting of the previously imposed penalty, including costs of the levy imposed under the Victims of Crime Act 2001, against any sentence imposed in any fresh section 31(2) proceedings, including removing any liability to repay the defendant any fine or compensation paid by the defendant.

Amend section 31(2ab) of the Intervention Orders (Prevention of Abuse) Act to permit a person's section 31(1) conviction to be taken into account for the purposes of a 'second or subsequent contravention offence' in section 31(2aa) of that act.

The bill also provides that no liability attaches to the Crown for false imprisonment or any other act or omission relating to proceedings involving these incorrect charges. As I stated earlier, this error has not exposed any person to any greater penalty than they would have been liable to had they been charged and found guilty of the correct offence.

I have sought advice on the time line of events in this matter. I am advised that this error began in December 2011 upon the commencement of the act. In June 2017, I am advised the issue was identified and a warning was put in the SAPOL system to prevent the error reoccurring. However, I am advised that a change in the SAPOL database system in 2018 led to this warning being lost, and this error reoccurring.

I am advised that this continued until May 2019 when the issue was finally addressed and no further incorrect charges were laid. I am advised that in November 2019 the former Attorney-General, the Hon. Vickie Chapman, and the former Minister for Police, the Hon. Corey Wingard, were briefed on this issue.

I was advised of this issue in September 2023 and in the months that followed I received a significant amount of advice from the Solicitor-General, the Crown Solicitor and the Attorney-General's Department on how this issue is best addressed. These efforts have led to the introduction of the bill that is before us.

It is worth noting that the former government took no legislative action to address this issue. It is not clear to me why ministers in the former Liberal government appear to have taken no action. This bill is overdue but its passage is critical to maintaining community confidence in the justice system and protecting victim survivors of domestic and family violence. It is regrettable that mistakes over the previous decade have necessitated this bill, but I believe it is incumbent on the government today and this parliament to address these historical errors.

I advise members that the government will seek to complete all stages of this bill on the Tuesday of the next sitting week. I commend the bill to members and seek leave to have the explanation of clauses inserted 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 Intervention Orders (Prevention of Abuse) Act 2009

3—Amendment of section 31—Contravention of intervention order

These amendments allow a deemed subsection (1) offence (which is defined) to be taken into account in determining whether a contravention of an intervention order is a second or subsequent contravention for the purposes of section 31(2aa).

4—Insertion of section 31A

This amendment inserts new section 31A:

31A—Special provisions applying to review or appeal in relation to certain offences against section 31

If applicable review proceedings are instituted in a court (whether before or after the commencement of the provision) in relation to a person's conviction or sentence for an offence charged against section 31(1) of the Act, provision is made for—

those review proceedings to be heard by the Supreme Court constituted by a single Judge; and

the person to be prosecuted (in the same proceedings) for an offence against section 31(2) (defined as section 31(2) proceedings) in respect of the conduct to which the conviction for the offence charged against section 31(1) relates.

Provision is also made in relation to the time within which the section 31(2) proceedings may be commenced, the admissibility of certain evidence in such proceedings, considerations relating to sentencing a person for an offence against section 31(2) and other relevant matters.

Certain other matters are provided for, including a provision relating to liability of the Crown in relation to acts and omissions in respect of offences charged against section 31(1).

Debate adjourned on motion of Hon. B.R. Hood.

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