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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-03-05 Daily Xml
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Bills

Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 February 2024.)

The Hon. J.M.A. LENSINK (15:34): I rise to place on the record some remarks in relation to this legislation that is being introduced to correct incorrect charging for offences that took place between 2011 and 2019. I am advised that SAPOL detected the issue in May 2019 and have ensured they have checked every time since they realised those errors had been made.

This bill was introduced quite recently, in the last sitting week. It amends the principal act, being the Intervention Orders (Prevention of Abuse) Act 2009. Some multiple persons, in the order of 700, were prosecuted and found guilty of breaching the incorrect offence under the act. Under section 31(1) of the act, it is an offence to fail to attend an intervention program mandated under section 13 of the act, the maximum penalty for this offence being $2,000 or two years' imprisonment. Section 31(2) provides for an offence contravening any other provisions of an intervention that are not covered by section 31(1), with a maximum penalty of three years' imprisonment or five years' imprisonment for an aggravated offence.

For the period over 2011 to 2019, as I mentioned, some 700 individuals were charged under section 31(1) when they had, in fact, committed an offence under section 31(2). In each case, the individual was prosecuted as if they had committed a section 31(2) offence while being charged with section 31(1). This was due to an error in the SAPOL software, which was rectified in early 2019. As a result of the penalty for a subsection (1) offence being lesser than a subsection (2) offence, no individual was exposed to a greater penalty than they would have been if charged correctly; nonetheless, a review proceeding may be available in some cases as each conviction remains valid until quashed.

That is the purpose of this bill before us now. Clause 3(3) of the bill provides for a definition of a 'deemed subsection (1) offence' as an offence charged under section 31(1) that a person has been found guilty of before the commencement of the definition even though the person did not fail to attend an intervention program, instead contravening another term of an intervention order. Clauses 3(1) and 3(2) of the bill ensure that a deemed subsection (1) offence counts as a prior offence for the purposes of sections 31(2aa) and 31(2ab), which provide for harsher penalties for subsequent offences.

Clause 4 inserts new section 31A to provide special provisions for those applying for review or an appeal in relation to deemed subsection (1) offences. This would transfer review proceedings to the jurisdiction of the Supreme Court, constituted of a single judge. It would also provide for the court to hear a prosecution for a section 31(2) offence at the same time. As the statute of limitations for a summary offence is two years, new section 31A(1)(c) would extend the time for an additional two years at the commencement of any review proceedings.

Importantly, section 31A(1)(f) would allow sentencing remarks made in relation to the original erroneous section 31(1) conviction to be used as evidence in any subsequent section 31(2) proceedings as a result of any review proceedings. Further, section 31A(1)(g) would provide for a mechanism by which the court could determine a sentence for a previous conviction be considered the sentence for a new conviction, completed or otherwise. If the court makes a different sentencing determination, any paid or complete penalties for a previous conviction would count towards the penalties for a new conviction.

I am advised the prosecution error has resulted in no avoidance of conviction nor arguably any miscarriage of justice; that is, no convicted person has been subjected to any harsher penalty than they should have been. The Liberal Party supports this bill.

The Hon. F. PANGALLO (15:39): I rise to speak on the Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill. This bill is essentially to fix and wallpaper an embarrassing mistake that had gone undetected by anyone in Crown law, the Office of the DPP, SAPOL, prosecutions, the legal profession, the judiciary and of course the Attorney-General's own department for 13 years, until it caught the eye of a sharp magistrate.

There was an error in charging breaches of intervention orders under section 31(1), which is only applicable if the person did not attend a program, rather than 31(2), which covers all other offences. Section 31(2) is more serious and subsequent breaches of 31(2) can be seen as a second offence and so on, whereas 31(1) is not as serious and carries a lesser penalty, and if you breach that for a second time or more a much higher penalty can apply.

According to the government, this amends an historical charging error where 700 offenders were charged and found guilty of a lesser offence when they should have been charged with a more serious offence. The less serious offence carries a maximum penalty of a $2,000 fine or two years' imprisonment, with an expiation fee of $315. The more serious offence carries a maximum penalty of three years' imprisonment for a basic offence and five years for an aggravated offence.

The historical charging error occurred from when the act was first introduced in 2011 and continued until 2019 when the error was identified under then Attorney-General Vickie Chapman's watch. What happened? The reason for this oversight is incredible. SAPOL's charging system, which produce the required forms, had somehow defaulted to the less serious charge. So who is at fault here? Why did SAPOL not conduct a full audit of the system?

But this bill does more than correct the bungle. It changes intervention order laws into the future in more substantive ways than just correcting an error and it also indemnifies the government from any legal action or liability arising from any previous action. The Attorney-General will beat his chest and claim it is all about his government getting tough on crime, especially in relation to domestic violence incidents. There is no argument from me there. This is as it should be.

However, what concerns me, what concerns the legal profession and what should concern every South Australian is the lack of opportunity to have this legislation properly assessed by various stakeholders. I asked the Attorney-General to defer it to at least the next sitting week to enable consultation and engagement with the Law Society and the Bar Association, something the Attorney-General has failed to do. Of course, in opposition he took a much different approach to consultation and engagement.

I am also disappointed with the opposition, who have just rolled over rather than ensure this government is accountable and held responsible for legislation it presents in this place. The Attorney told me yesterday that any concerns could be raised when the bill was being debated today. What arrogance! This bill raises so many questions, which I am going to have to put to the Attorney-General shortly, and I hope I get some clarity from him.

The Law Society, in a letter to the Attorney-General on 4 March, says it only became aware of the bill when it was tabled, and its views have been informed by the Criminal Law Committee. To quote from the letter:

5. The society queries the utility of the mechanisms set out in proposed section 31A. It is difficult to ascertain why the imposition of a review process is necessary at all to correct any implications arising from the historical charging error, or to envisage a situation where an offender would seek to review such a sentence.

6. Despite references to appeal proceedings being available to offenders who have been incorrectly charged, it would appear the Bill may provide the prosecution with the ability to also apply under the new scheme.

7. There may have been people convicted of the lesser offence but sentenced on the actual facts of the matter (which would have been a breach by something other than not attending a program as is required by section 31(1)) and the penalty actually applied was that of the more serious offence. In such circumstances it is difficult to see how and why such a person (or the prosecution) would appeal, or even why there would be an appeal other than to correct the section name of the offence as the offence on the face of it would have been properly dealt with.

8. Noting this, the Society queries whether the charging error is appropriately addressed by the simple inclusion of a 'deeming' provision.

The bill exempts the Crown from liability in respect of an act or omission in this, which seems to the Law Society to deprive a person of a civil remedy that they may have otherwise been entitled to. They are concerned that if there was a false imprisonment that your rights regarding this are gone. The question is why 31A(5) is being legislated at all. I seek leave to table the letter dated 4 March to the Attorney-General, which was also distributed to other members.

Leave granted.

The Hon. F. PANGALLO: Disturbingly, the proposed new laws will be retrospective, allowing the government to recharge the 700 offenders incorrectly charged and convicted of 711 offences as section 31(1) offences when some or all of them should have been under the more serious 31(2). What we do not know is how many of the 700 charged under 31(1) were sentenced or penalised as if they had contravened section 31(2); that is, how many received more than the maximum penalty of $2,000 or imprisonment for two years and an expiation fee of $315.

The defendant can apply out of time for a review of their 31(1) conviction by a judge sitting alone in the Supreme Court, but it also allows for the prosecution to lay fresh prosecutions in the same proceeding. It can be remitted by that court to another court as a matter of summary jurisdiction for trial to deal with as a new offence. I will have many other questions to put to the Attorney-General during the debate.

The Hon. R.A. SIMMS (15:48): I rise to speak on the Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill. I understand the bill comes after an error was discovered relating to charges under section 31 of the Intervention Orders (Prevention of Abuse) Act 2009. The parliament has been advised that, of the 771 files that contained this error, none of them were charged with the higher offence.

What is interesting about this scenario is that the error began in 2011 after the commencement of the act and then in 2017 SAPOL addressed the issue; however, a change in the system in 2018 meant that the error continued to occur. This is concerning and we need to ensure that this does not happen again in relation to other criminal matters. Indeed, I can imagine this would be very distressing for the victims who have seen a sentencing process and understood a matter has been closed to then see this reopened again. To see an element of doubt being cast over that process must be very concerning for them.

We know, of course, that domestic abuse and violence is a serious issue, a serious scourge in our state, and errors of this kind can have very serious, real-life consequences. While we understand that all of those charged were charged with a lesser offence, the impacts of those who have experienced family abuse and violence must be considered.

The housing crisis and the cost-of-living crisis are felt much more acutely by people who are experiencing family and domestic violence, with many people, especially women, being forced to choose between living in an environment of abuse or homelessness in circumstances where they have nowhere to go.

It is important for all of the facts relating to this error to be put on the table. We need to be mindful that there is potential for an emotional toll for people who had felt that a matter had been heard by the corrective and judicial systems and are now discovering that that may not be the case. People who have experienced abuse need to be assured that the system is working; otherwise, trust will be lost.

This bill is a sensible measure to ensure that there is a provision to review these situations as required. This will give some certainty to people who have experienced abuse, while at the same time protecting the integrity of our justice system from what appears to have been an administrative error.

I do note the concerns of the Law Society, and I understand the concerns of the Hon. Frank Pangallo about the potential consequences of this. I think he is right to raise those issues—that is the role of the crossbench in this place, to raise issues such as that and to ensure that we apply appropriate scrutiny to the government's legislative program.

In this instance, it is the view of the Greens that it is appropriate for us to move quickly to remedy this, so that we can ensure that there is confidence in the judicial system and so that we can close this chapter for the victims of this abuse. Like the Hon. Mr Pangallo, I do intend to ask some questions at the committee stage to satisfy myself that there will not be unintended consequences.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:51): I thank members for their contributions and look forward to answering questions in the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. F. PANGALLO: I have some questions for the Attorney. Can the Attorney explain why there has been so much secrecy about this legislation, and why has the Courts Administration Authority advised defendants about the impact of the legislation, rather than tell them to get legal advice?

The Hon. K.J. MAHER: Of course, the Courts Administration Authority is an independent authority in South Australia. I was informed about this, as I think I said in my second reading explanation, in September of last year. I have taken a great deal of advice about the potential impact, the potential avenues that may flow from this, and also what the potential remedies could be and, in particular, the ability to withstand any possible constitutional challenge to potential remedies.

The simplest thing would be just a bill to say the court said you were convicted of this, but we, as a parliament, say you are actually convicted of the other offence, which would have difficulties withstanding a High Court challenge. So, as I said, I found out in September and I have spent the last few months getting advice and having a bill drafted. I understand that when this was introduced into parliament, the Courts Administration Authority notified—from the addresses that they had—the defendants and/or their legal representatives, and I understand the majority of people this relates to were legally represented.

Certainly, when I first found out in September I was very keen to find a way to fix this problem before making a public announcement. The last thing I wanted to see happen was a big public announcement about this, and see people who had been convicted under the wrong subsection—because of an administrative typographical error on a form—thinking they could lodge an appeal, retraumatise victims and then potentially have that conviction overturned.

That is something I was very keen to avoid and that is why we have put in place this bit of legislation. It will disincentivise appeals by putting in place a process—if someone does lodge an appeal because they were convicted under the wrong subsection—whereby a fresh prosecution can be lodged. I suspect that will act as a massive disincentive to try to lodge an appeal that would have the effect, I think, of retraumatising victims.

We know that perpetrators of domestic and family violence use the court system to traumatise victims, so when I found out about it I was keen, firstly, to find a way to put in a fix for what had been a mistake that spanned governments of both persuasions for more than a decade, but also do everything that I could to fix it. I think I had an obligation, as I think this parliament does as well, to make sure that victims are treated with as much respect as possible and put under the least trauma possible. We need to make sure that because of an error, putting a wrong subsection on a piece of paper, we did not let people off from an offence that would appear that everyone involved in any of these cases thought was correct.

The Hon. R.A. SIMMS: I guess I am really keen to understand, Attorney-General, how this has happened. I understand it happened some time ago, but have you investigated what occurred, and what steps have you taken to ensure that an administrative error like this cannot occur again? As you have quite rightly described, the consequences are really serious in terms of what it means for victims and the broader community in terms of their faith in the justice system.

The Hon. K.J. MAHER: Mind you, this is more than a decade ago, but my advice is that there was an error in terms of a drop-down box. Whether it was a technology error or a human error I do not have advice about, and I am not sure that I can get it, but the error, having been identified, we were keen to fix it as soon as possible. I am advised that they have a new system that does not have the same drop-down box that would allow this to happen again.

The Hon. F. PANGALLO: How many of the 711 charges were actually 31(1) offences and how many were actually 31(2) offences, or has SAPOL only counted those that were wrongly laid? That is, how many were correctly laid in that period of eight years?

The Hon. K.J. MAHER: Upon taking further advice in relation to the Hon. Robert Simms's last question, I think I may have said that it does not have a drop-down box. I am not sure if it has a drop-down box on the new system or not, but I am advised that the way it is designed ought to prevent this happening again.

In relation to the Hon. Frank Pangallo's question, we have spreadsheets but it is not apparent exactly how many correctly charged 31(1) offences there were—that is, the lesser one for breaching an intervention order required program under an intervention order. I presume we might be able to find that out, and I am happy to do that at some stage for the honourable member. But we do know from the audit that has been conducted that over that period of time there were 771 matters that involved 700 individual defendants who ought to have been charged as 31(2) but were incorrectly charged as 31(1).

The Hon. F. PANGALLO: I refer to the Attorney's previous explanation about the need to do this and the fact that they did not want to retraumatise victims. If the prosecution lays fresh charges, as they can, is it not correct that victims would be retraumatised up to 10 years later?

The Hon. K.J. MAHER: The only way under the bespoke scheme that is contemplated in this bill for fresh charges to be laid is if someone who was wrongly charged—so one of those 700 individuals—seeks to lodge an appeal, gets over their own out of time application for their appeal, and is successful in their appeal. This then allows a charge to be re-laid. I suspect it would traumatise victims to a much greater extent knowing that nothing could happen as a consequence of the historic breach than being able to have that breach.

We would hope—and I think the Law Society indicates that it might be that no-one takes an appeal on this matter, which I hope is the case—that this legislation will make it even more likely that no-one takes an appeal on this matter. The fact that there is the ability to prosecute, should someone be successful in overturning their charge on an appeal, means that it is even less likely that there will be anyone convicted under the wrong subsection lodging such an appeal.

The Hon. F. PANGALLO: In relation to the appeal or the review, if they had been charged under the lesser 31(1) and pleaded guilty and were correctly sentenced under 31(1), why would they ever seek a review?

The Hon. K.J. MAHER: There is a potential, because someone has been charged under the wrong section of the act on the basis of facts that were not right, that they could seek a review to have the convictions quashed entirely, and I think that would be an absolutely perverse outcome and one that I would want to take every step to make sure does not happen. Hopefully it is an unlikely outcome, but I want as little chance as possible of that happening.

When this was put to me and we had a choice of doing nothing and the potential of having perpetrators who had breached intervention orders more seriously than the 31(1), or doing everything in our power that has the best chance of standing up to any constitutional challenge to make sure that the fines that were imposed and the convictions recorded have the best chance of being maintained, I decided in the interests of victims of domestic violence that the best chance is that they be maintained.

The Hon. F. PANGALLO: I will not argue with your views there, Attorney, there is no doubt about that. Can I ask how many of the 700 charged under 31(1) were sentenced or penalised as if they had contravened 31(2)? That is, how many received more than the maximum penalty of $2,000 or imprisonment for two years and an expiation fee of $315?

The Hon. K.J. MAHER: I am advised that of the 771 matters all had a penalty imposed as if it was 31(2)—that is the point of this. Every single one of them had the facts put forward on the more serious breach. There may have been some for whom, even if they had been correctly charged under 31(2) and had the penalty applied under 31(2), the penalty actually imposed could have been at the lower end of the scale, so it might have been a penalty that may have been able to have been imposed under 31(1), but even at the lower end of the scale of 31(2) might have been more than they would have got under 31(1).

Of the 771 individual matters, 700 defendants, the whole point of doing this is that it appears that for every single one of them the penalty was imposed as if they had been charged under 31(2), which everyone involved, from the police prosecutors to the magistrates who sentenced, believed was the case.

The Hon. F. PANGALLO: The defendant can apply out of time for a review of their 31(1) conviction by a judge sitting alone in the Supreme Court, but it also allows for prosecutions to lay fresh prosecutions in the same proceeding. It can be remitted by that court to another court as a matter of summary jurisdiction for trial to deal with as a new offence. When do you envisage this happening—what scenarios or circumstances?

The Hon. K.J. MAHER: I thank the honourable member for his question. We are not changing the ability for any of these defendants to lodge an appeal. They will have to argue, though, about why there are merits that there are ordinary time limits, because they will be out of time in the ordinary course of things, that there are circumstances that warrant an out of time appeal being lodged. They will have to argue that. That would obviously be something we would likely argue against.

If they get over that hurdle, then they would have to argue why their conviction should be quashed or set aside, and if they are successful in that it then allows for the reprosecution to occur at the same time as the successful appeal. As I said, we do not want someone getting off because a wrong number, a wrong subsection, was put down. We want to make sure we are doing everything we can to disincentivise lodging appeals.

The whole idea of this is: if you go through, you get over your out of time argument, you successfully have an appeal against the conviction because it is the wrong subsection, what is the point of doing that because you can just be prosecuted afresh anyway? How many would it apply to? It would apply to every single one of the people who lodge an appeal, should any lodge an appeal.

The Hon. F. PANGALLO: Agreed or undisputed facts in the original 31(1) hearing will also be admissible in these new 31(2) proceedings; is that correct?

The Hon. K.J. MAHER: That is correct and that is what is contemplated in the legislation. It goes to a point, the Hon. Mr Pangallo, that you made earlier about retraumatising victims. If it is something that is a decade old, for instance, it may be difficult—if someone did lodge an appeal, they got over the out of time problem, they were successful in their appeal in overturning the conviction—to find the witnesses, to have a fresh prosecution from events that happened 10 years ago. If there were agreed facts, they could be used in the fresh prosecution. Once again, we want to create an environment where it disincentivises people having an appeal because any facts that were agreed in the original conviction the court can take and use in the fresh prosecution.

The Hon. F. PANGALLO: Could this not be perceived as creating something new or unique in law, bringing evidence from one matter through to another?

The Hon. K.J. MAHER: I thank the honourable member for his question. This is a bespoke scheme for quite an unusual set of circumstances; however, I think it is important to put on the record that these are facts that were not disputed, so if they are agreed facts—and I am informed that virtually all of these defendants, virtually all of the 771 matters, pleaded guilty. I am informed that we believe none of them were actually contested. These are matters where people have copped to the offence and that is why we think it is important that, for this bespoke scheme that we are setting up, you can use agreed facts if you lodge a fresh prosecution.

Once again, with the choice of seeing a defendant use the justice and legal system to retraumatise a victim or for a defendant to possibly try to have a record wiped clean because of a clerical error by putting in a bracket a number 1 instead of a number 2 compared to making sure victims are properly protected, we came down firmly on the side of the latter.

The Hon. F. PANGALLO: Does the Attorney know if any of the 700 had their wrongly charged 31(1) convictions counted as a second and/or subsequent offence in later hearings?

The Hon. K.J. MAHER: We do not have data on that, but it would be likely that there would be some, and we have certainly catered for that in the bill, that for these matters the conduct will be able to be taken into account as if it were the more serious 31(2) offence.

I am further advised that the second and subsequent offences relate to offences that happened within five years. That five years is very close to being up at this date in any event, so yes, it is likely that there were some that were taken into account. For any that are within the five years we provide for in the scheme, they can be used as second and subsequent offences, notwithstanding the wrongly charged sections.

The Hon. F. PANGALLO: They may have agreed then, but you cannot usually do this even when your criminal record cannot be mentioned in a new hearing.

The Hon. K.J. MAHER: How do you mean?

The Hon. F. PANGALLO: If there is a new hearing you cannot go back to a previous.

The Hon. K.J. MAHER: I am not sure—

The Hon. F. PANGALLO: Your criminal record cannot be mentioned in a new hearing.

The Hon. K.J. MAHER: I think what the honourable member is asking is that in a trial where you are determining the guilt of a defendant the general principle is that you do not use past convictions in order to try to prove the guilt of a new or different conviction, but there are numerous schemes where you face greater penalty if you are found guilty of second and subsequent, maybe third, offences.

The Hon. F. PANGALLO: What I am asking is: why is this evidence able to be instantly admissible when they can be only alleged after a conviction?

The Hon. K.J. MAHER: The honourable member can ask further questions, but the way I understand his question is about the admissibility of facts that were previously agreed. I think that is what the honourable member is asking about. The reason that under this scheme we are allowing that to be admissible evidence—and it still leaves open a discretion of the court to reject it, but the reason we are allowing the potential for it to be used is that in the original conviction the defendant agreed to those facts. That is why we are saying these are facts the defendant agreed to. As I have said, nearly all of the matters were by way of a guilty plea, and I am informed we cannot find any of the matters that were actually contested.

The Hon. F. PANGALLO: Under the provisions of this bill, how many of them will have their 31(1) convictions counted in future as a subsequent or second offence?

The Hon. K.J. MAHER: My advice is for a 31(1) conviction, as I said, it relates to the previous five years, so we are almost completely out of time, and we do not expect there to be many of those. For a 31(1) conviction none of them can be taken into account as a 31(2) conviction, but what this bill allows a court to do, if there are any that are within the five years, is to have a look at that conduct and to look at it as if it might be conduct if it was 31(2.)

The Hon. F. PANGALLO: As has been noted, there has been concern that this bill now makes it possible, under the amendment of 31(2ab), to count 31(1) offences as second or subsequent offences. Is this a permanent change?

The Hon. K.J. MAHER: This applies to a charge against this section where a person was found guilty before the commencement of this definition, even though the person did not contravene a term of an intervention order imposed under section 13. So what it applies to is people who did not contravene an intervention order. It is difficult to envisage how this will have anything to do with matters outside these 771 matters, remembering that for the second and subsequent offences it has to be within the last five years unless there is a mistake, again, that puts us into exactly the same factual circumstance. Just to correct the record, I think I just said 'breach an intervention order'. I meant to say 'breach an intervention program', because that is a breach of section 31(1).

The Hon. F. PANGALLO: Why is that provision possible or necessary in fixing this charging error? Section 31(1) was and is an offence and remains unchanged by SAPOL's error, so why is it being upgraded to being able to be considered a second and subsequent offence?

The Hon. K.J. MAHER: The only way it is being upgraded is where the conduct falls into the 31(2). It is not being upgraded if it was genuinely a 31(1) offence and the behaviour constituted a breach of 31(1). It only has the potential to be upgraded where the conduct was actually that 31(2) offence.

The Hon. F. PANGALLO: Does the Attorney know whether there will be any fresh prosecutions to be laid against the 700-odd offenders?

The Hon. K.J. MAHER: I certainly hope not. Fresh prosecutions under the legislation we are envisaging can only be laid if there is an appeal mounted against a conviction that ought to have been under 31(2) but was actually under 31(1). As I have said, the process to go through that is that the defendant who was convicted under the wrong subsection would have to get over the bar of being out of time, would have to have a successful appeal and would have to quash that conviction.

That is the only way that these fresh prosecution provisions apply. So, to answer the Hon. Mr Pangallo, I hope there is not a single one of them, but the whole reason we have these in here is to deter anyone from doing that, because what is the point of challenging a conviction if you can just be prosecuted again and use the agreed facts that you did not challenge the first time around?

The Hon. F. PANGALLO: As I indicated, why would you even seek a review, even though it has been put in there, when you are opening yourself up to a whole new criminal trial and section 31(2) penalties?

The Hon. K.J. MAHER: That is exactly the point.

The Hon. F. PANGALLO: It is also concerning these fresh prosecutions could open the door to prosecutions under section 31(2) some eight years later, with increased penalties and custodial sentences, when the person has served their section 31(1) penalty. Would you know how many would be in that position?

The Hon. K.J. MAHER: I thank the honourable member for his question. As we have discussed, the idea of this is for it never to be used. That is the idea of doing this, so that it is a deterrent for taking those appeals. But the legislation does provide essentially for the court to be able to set off any penalty that was imposed because, let's remember, the penalty that was imposed was under the mistaken belief it was under section 31(2). If you reprosecute under section 31(2), any penalty that has been imposed can be set off against the penalty that was imposed previously, and it does provide for the court to take into account that the penalty that was previously imposed is what the penalty ought to be for this fresh prosecution.

As I said in the second reading explanation, this does not expose any defendant to a greater penalty than what they would have been exposed to if they had been correctly charged under section 31(2), which is what everyone presumed they were actually charged under, which is what the penalties were imposed under. What this does is make a scheme where we have, I think, as little chance as we possibly can for victims to be retraumatised.

The Hon. F. PANGALLO: In regard to that, what about the court costs, legal representation costs and costs of lost time and opportunity?

The Hon. K.J. MAHER: For who?

The Hon. F. PANGALLO: The bill provides for offsetting the previously imposed penalty and the costs of the levy under the Victims of Crime Act against any sentence imposed under fresh section 31(2). What about the court costs, legal representation costs and costs of lost time?

The Hon. K.J. MAHER: I might need some clarification: whose loss of time and which legal costs for what proceeding?

The Hon. F. PANGALLO: This would apply to the defendants, would it not?

The Hon. K.J. MAHER: I thank the honourable member for his question. I am just not clear which proceeding he is envisaging where there would be fresh legal costs that this applies to. I am happy to answer, I am just not quite sure which proceeding he is referring to.

The Hon. F. PANGALLO: Basically, is the Crown going to cover the defendants' costs in reviews?

The Hon. K.J. MAHER: If the honourable member is asking: is the Crown going to incentivise defendants to take a review application to try to quash a conviction, to traumatise victims—no. We are not going to undertake and provide the incentive carte blanche, a blanket incentive, for offenders who have been properly convicted, albeit under the wrong section. Absolutely not will we give an undertaking that we will cover their costs.

The Hon. F. PANGALLO: Why is the Crown not quashing all these convictions rather than expecting the defendants wrongly charged and convicted to seek a review?

The Hon. K.J. MAHER: As I understand the question: why are we not quashing all of the convictions? Because we want them to stand.

The Hon. F. PANGALLO: Will defendants who want to sign up for a review be asked whether they have had any independent legal advice?

The Hon. K.J. MAHER: That will be entirely up to any potential defendant. They may wish to seek advice. My advice is the vast majority of the 700 defendants who pleaded guilty to these charges were legally represented and presumably got advice on what to do and their legal standing. It will be up to anyone, if they wish to, to seek legal advice. It is not up to the government to tell defendants, 'You need to be legally represented,' which I assume is what the honourable member is asking. Anyone is able to seek legal advice.

What we seek to do here is disincentivise, to have a defendant, when they seek that legal advice, be able to look at the merits of the matter and see that even if they get across all those thresholds that are already in place—that is, a review of their conviction would need to get over the fact that it is out of time—on the merits of it have their conviction quashed, and then we want to make sure that there is a process in place that can seek to have them prosecuted again and, again, as swiftly as possible as this scheme provides, to be able to use agreed facts in that fresh prosecution. If someone seeks legal advice, I am sure that their legal representative will advise them of the effects of this legislation, should this parliament pass it.

The Hon. F. PANGALLO: Why does the bill provide for no liability to the Crown for false imprisonment or any other act or omission relating to proceedings involving incorrect charges?

The Hon. K.J. MAHER: That is a very simple one. It is because the penalty that was imposed was done on the basis that you had breached section 31(2). There was a wrong number written on that. I think it would be a perverse outcome for someone who did spend time in prison, had pleaded guilty to what they thought was 31(2), to then come and try to take action against the government for serving a period of imprisonment for a breach of an intervention order that everyone had understood, as appears to be the case, was under 31(2).

Again, we do not want to create any sort of incentive for defendants to take action that would retraumatise victims and seek to escape conviction because of the error of putting the number 1 in a bracket instead of 2.

The Hon. F. PANGALLO: Are there 700 complaints that 700 times that advice was wrong? There are more than 700—

The Hon. K.J. Maher interjecting:

The Hon. F. PANGALLO: Right, and that advice was wrong in relation to those convictions. That is what we are changing the legislation for now. Why did nobody in prosecutions notice that it was a conviction under a wrong section?

The Hon. K.J. MAHER: This is a reasonable question. It is certainly one that I have contemplated and asked. I can only assume that once there is a form that is created, once a court actually makes a conviction, everybody accepts it, and people had just thought they were acting under the correct section.

No-one looked at it afresh and they continued to do it, given that this seems to have escaped the attention of prosecutors, defence, the Magistrates Court and potentially the Supreme Court if anyone appealed such a conviction. Everyone, it seems, had been acting as if it was the right subsection, so no-one thought to look back and say, 'Is this the correct subsection?' Everyone just assumed it was, is what, I am guessing, has more than likely happened.

The Hon. F. PANGALLO: Is it likely that many of those 700 or more convictions will be spent convictions by now?

The Hon. K.J. MAHER: I thank the honourable member for his question. In regard to the 771, I have not considered the application of the Spent Convictions Act. Obviously, under the spent convictions regime, there are certain convictions that become automatically spent with the passage of time. There are other convictions that can be applied to be spent and there are a number of exceptions and exceptions to exceptions under the spent convictions regime. In relation to section 31(1) and section 31(2), I am just not sure how that interacts with the spent convictions regime.

The Hon. F. PANGALLO: Could it be that many of those offenders would now be in fear of fresh prosecutions, penalties and new convictions?

The Hon. K.J. MAHER: I thank the honourable member for his question. In a word, no. As I have said a number of times to the honourable member, this only applies when someone appeals it. Let's say there is a circumstance where one of these convictions has already been spent; that is, it does not appear anywhere on your criminal record. It is unfathomable to consider a position where that defendant then wants to appeal their spent conviction as then they will possibly have a fresh prosecution. I just cannot see any possible way that that would happen.

The Hon. F. PANGALLO: As has been indicated, the prosecution could lay fresh charges. Why does this bill give them these powers retrospectively and out of time?

The Hon. K.J. MAHER: Sorry?

The Hon. F. PANGALLO: Would you like me to ask that again, Attorney?

The Hon. K.J. MAHER: Yes.

The Hon. F. PANGALLO: As has been indicated, the prosecution could lay fresh charges against these 700-odd. Why does this bill give them these powers retrospectively and out of time?

The Hon. K.J. MAHER: As I think I have already explained, the only way that these provisions get enlivened is if someone appeals against their conviction—if everyone thought it was a 31(2) matter but it was actually written on the paper as a 31(1) matter. This does not give the police or courts a whole lot of new powers to do things to a whole lot of defendants who are not captured by this. This is specifically in relation to someone who lodges an appeal. I hope that no-one lodges that appeal and retraumatises victims, but in the event that they do this is a way to make sure those convictions stay in place.

In addition to that, it creates a disincentive, I think, for people who have committed that more serious breach of an intervention order to not take that action. This is only in relation to people who successfully appeal that conviction.

In relation to the spent conviction question that the member asked, I guess it is possible that there are some forms of convictions that can be used in different regimes, such as working with children checks and other matters, where there is the potential that someone might seek, even though a conviction is spent, to try to have it overturned, but in that event they would enliven the provisions under this act for a fresh prosecution.

The Hon. F. PANGALLO: Can the Attorney explain the deeming provisions of this bill, what they do, why they are necessary and why they were included?

The CHAIR: The Hon. Mr Pangallo, ask the question again, please.

The Hon. F. PANGALLO: Are there deeming provisions in this bill?

The Hon. K.J. MAHER: No. A simple deeming provision to deem the conviction for the 771 matters as a 31(2) offence rather than a 31(1) offence is something that was certainly considered in the development of this legislation, but the risk of a constitutional challenge in the High Court had us decide on the scheme that is before us now. As I said, we want to do as much as we can to make sure victims are not retraumatised, and having something that may lend itself to challenge in the High Court I think would tend to do that more than the scheme we have before us.

The Hon. F. PANGALLO: Finally, why did you not seek the advice of the Law Society or the Bar Association or any other person practising in this field of law that could be affected by it, for example domestic violence service providers or women's legal services?

The Hon. K.J. MAHER: I thank the honourable member for his question. As I answered earlier, I did not want to do anything that would create the ability for a defendant to lodge an appeal before this was in place. I am hopeful that this will pass the parliament this week and be in place, which ought to put this scheme in place before any defendant could lodge such an appeal.

I did not want to go out to a large-scale consultation that could create an incentive for defendants to lodge such appeals before we had this scheme in place. I think that would have the potential to retraumatise victims to a great extent. Certainly, I know when this bill was introduced—on the same day—I understand the Courts Administration Authority, as I said, wrote to all of the defendants and all of their legal representatives, and also wrote, as I understand, to the Law Society and I think also the Bar Association, in relation to the legislation that was tabled.

Clause passed.

Remaining clauses (2 to 4) 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) (16:36): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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