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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-02-06 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) 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) (16:02): 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, Special Minister of State) (16:03): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2025. From time to time, an Attorney-General's portfolio bill is required to rectify minor errors, omissions or other deficiencies identified in legislation committed to the Attorney-General and to other ministers' legislations where such changes are technical in nature. This bill makes various amendments to nine acts committed to the Attorney-General and three justice-related amendments to acts committed to other ministers.

Part 2—Controlled Substances Act 1984.

Part 2 of the bill makes two separate amendments to the Controlled Substances Act. Firstly, the bill amends section 33P of the Controlled Substances Act to provide that a reference to an offence committed against part 5 of the Controlled Substances Act includes an attempt to commit that offence in accordance with section 270A of the Criminal Law Consolidation Act 1935.

An additional amendment is made to subsection 33P(2) to clarify that it is not necessary for the prosecution to establish the person knew or was reckless in respect to the identity or quantity of controlled substance. This is consistent with the intent of the heading to section 33P, which is titled 'Knowledge or recklessness with respect to identity or quantity'.

Secondly, the bill amends section 51 of the Controlled Substances Act to allow for analysis to be appointed by the minister by way of written instrument and published in the Gazette rather than by the Governor. South Australia is the only jurisdiction which requires such appointments by the Governor in Executive Council.

Part 3—Correctional Services Act 1982.

Section 71 of the Correctional Services Act currently provides that where a person has been released on parole from the sentence, the Parole Board may on application on its own motion vary or revoke the conditions of parole to which that person is subject. Pursuant to section 74AAA(1) it appears that the Parole Board may only impose a further condition of parole if the Parole Board finds there has been a breach of parole. The Parole Board has requested that an amendment be made to make it clear that it can impose new conditions on parole where there has been no breach to ensure that it is able to appropriately respond to protect the safety of the community.

Accordingly, part 3 of the bill amends section 71 of the Correctional Services Act to permit the Parole Board to impose further conditions on parole in addition to its existing powers to vary or revoke conditions in circumstances where there has been no breach. A transitional provision has also been provided to include clarity that the amendments will apply to the parole of a person who has been released on or before the commencement of the amendments.

Part 4—Criminal Law Consolidation Act 1935.

Part 4 of the bill amends subsection 85B(3)(b) of the Criminal Law Consolidation Act to achieve greater consistency with section 201A of the Victorian Crimes Act 1958 with the intent of tightening the operation of the backburning defence in relation to the offence of causing a bushfire. Section 85B(1) of the Criminal Law Consolidation Act provides that a person who causes a bushfire intending to cause a bushfire, or being recklessly indifferent as to whether the conduct causes a bushfire, is guilty of an offence, which carries a maximum penalty of imprisonment for life.

Subsection 85B(3)(b) provides that no offence is committed if the bushfire results from operations genuinely directed at preventing, extinguishing or controlling a fire. Concerns have been raised that this provision may appear to permit a situation where the fire was originally lit by a person for genuine fire prevention purposes—e.g., backburning—and that person loses control or fails to extinguish the fire, the fire spreads onto a neighbouring property without the consent of the owner and destroys the neighbouring property.

To address these concerns, section 85(3)(b) has been recast to tie operation of backburning defence in line with the Victorian Crimes Act. This will ensure that the defence will only be available where the bushfire is caused in the course of carrying out a fire prevention suppression or a land management activity and, at the time the activity was carried out, there was a provision made by or under an act or code of practice approved by the act in force that regulated or otherwise applied to carrying out the activity and that the person acted in accordance with that provision, and that the person believed that their conduct in carrying out the activity was justified having regard to all the circumstances.

Parts 5 to 7, 12 and 13—District Court Act 1991 and other related acts.

Rule 175.1 of the Uniform Civil Rules 2020 provides that if a presiding judicial officer dies or becomes incapacitated before the final determination of the proceedings, another judicial officer may be appointed to complete the hearing and determine the proceedings. However, there is currently no equivalent provision in relation to the criminal jurisdiction.

The government considers that it is appropriate to ensure consistency across both criminal and civil jurisdictions with respect to the appointment of a substitute judicial officer in the event of death or incapacity. Accordingly, part 5 of the bill amends the District Court Act 1991 to allow for a substitute judge to be appointed by the Chief Judge to preside over a civil or criminal trial that has been part heard, whether the trial is by jury or judge alone, in circumstances where the presiding judge dies or has become incapacitated. Parts 6, 7, 12 and 13 of the bill make similar amendments in respect of the Environmental and Development and Resources Court, the Magistrates Court, the Supreme Court and the Youth Court.

Part 8—Motor Vehicles Act 1959.

Part 8 of the bill amends the Motor Vehicles Act 1959 to make technical amendments related to driver licensing. In December 2022, changes were made to require drivers of ultra high-powered vehicles to obtain a new class of driver's licence within two years, being a U-class licence.

An ultra high-powered vehicle is a light motor vehicle, not including a bus or a motorbike or a motor trike, that has a power to weight ratio equivalent to or greater than 276 kilowatts per tonne. The bill amends section 74 of the act to ensure that the learner driver provisions of the act interact appropriately with the ultra high-powered vehicle provisions. The bill amends the interpretation section of the act to include that an ultra high-powered vehicle means a motor vehicle prescribed by the regulations as one for the purposes of this definition.

The bill also makes an administrative amendment to section 79A(3)(b) of the act to clearly set out the registrar's requirements as to being satisfied that an applicant has passed testing prior to the issue of a licence. Additionally, amendments are provided to remove the need to separately itemise offences and associated demerit points for camera-detected offences.

Part 9—Sentencing Act 2017.

Section 59 of the Sentencing Act 2017 allows for the Director of Public Prosecutions or a detained person to apply to the Supreme Court for release on licence in relation to an offender who has been declared unwilling or unable to control their sexual instincts.

Part 9 of the bill amends subsection 59(11) of the Sentencing Act 2017 to replace an erroneous reference to the 'Crown' with the 'Director of Public Prosecutions'.

Part 10—Spent Convictions Act 2009.

Part 10 of the bill amends paragraph (d) of the definition of 'justice agency' in section 3 of the Spent Convictions Act 2009 to replace and update an outdated reference to 'the Australian Commission for Law Enforcement Integrity' with 'the National Anti-Corruption Commission'. These changes are consequential upon the commencement of the National Anti-Corruption Commission Act 2022, which came into force on 1 July 2023.

Part 11—Summary Offences Act 1953.

Part 11 of the bill amends section 43 of the Summary Offences Act 1953 to address concerns regarding an increase in the number of incidents of individuals interfering with or damaging assets on the rail network, including the theft of copper wire and piping. Section 43 of the Summary Offences Act makes it an offence for a person to interfere with any part of a railway or track or any signal or machinery used in connection with a railway, tramway or track.

While this offence would likely capture the theft of copper wire or piping that forms part of the railway or track, it is uncertain whether it would capture interruptions caused to the railway network system or processes. For the avoidance of doubt, part 11 of the bill amends the offence to make it clear that it applies to any conduct that interferes with any signal, cable, system or machinery used in connection with a railway, tramway or track, such as the theft of copper wire or piping.

A further amendment has been made to increase the current maximum financial penalties for this offence from $10,000 to $50,000 in recognition of the significant financial impact of this type of offending.

That concludes the matters that are the subject of this bill. It is a bill that covers many different areas and deals with a range of important issues to ensure that our justice system continues to work effectively and efficiently 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 Controlled Substances Act 1984

3—Amendment of section 4—Interpretation

This amendment is consequential on the amendment in clause 5.

4—Amendment of section 33P—Knowledge or recklessness with respect to identity or quantity

The amendment in subclause (1) inserts a reference in section 33P(2) to the quantity of a regulated substance in line with the offences to which that section refers.

Clause (2) inserts a new subsection (3) which provides that a reference in the section to an offence against Part 5 relating to a controlled substance includes an offence of attempting to commit that offence in accordance with section 270A of the Criminal Law Consolidation Act 1935.

5—Amendment of section 51—Analysts

This clause amends subsection (1) to remove the requirement for the Governor to appoint analysts for the purposes of the Act and instead makes provision for the appointment of analysts by the Minister by notice in the Gazette.

6—Transitional provisions

Subclause (1) makes transitional provision for the application of the amendments made in clause 4 to proceedings for an offence that are commenced after the commencement of those amendments, regardless of when the offence occurred.

Subclauses (2) and (3) enable the appointment or approval of analysts made by the Governor before the commencement of the amendments in clause 5 to continue as if the appointment or approval was made by the Minister.

Part 3—Amendment of Correctional Services Act 1982

7—Amendment of section 71—Variation or revocation of parole conditions

These amendments provide that the Parole Board may, when a person has been released on parole, in addition to varying or revoking a condition of parole, impose a further condition on parole.

8—Transitional provision

This clause makes a transitional provision to allow the amendment in this Part to apply to a person who is released on parole before or after the commencement of that amendment.

Part 4—Amendment of Criminal Law Consolidation Act 1935

9—Amendment of section 85B—Special provision for causing bushfire

This clause amends section 85B(3)(b) to clarify the circumstances in which no offence will be committed for causing a bushfire if the bushfire is caused in the course of carrying out a fire prevention, fire suppression or other land management activity.

Part 5—Amendment of District Court Act 1991

10—Insertion of section 50C

This clause inserts a new section as follows:

50C—Death or incapacity of Judge during trial

The proposed section sets out the process by which the Chief Judge may appoint another Judge during the course of a civil or criminal trial if the presiding judge at the trial dies or is incapacitated.

Part 6—Amendment of Environment, Resources and Development Court Act 1993

11—Amendment of section 15—Constitution of the Court

This clause inserts a new subsection (15) which sets out the process by which the Senior Judge of the Court may appoint another Judge or magistrate during the course of a civil or criminal trial if the judge or magistrate presiding at the trial dies or is incapacitated.

Part 7—Amendment of Magistrates Court Act 1991

12—Insertion of section 48C

This clause inserts a new section as follows:

48C—Death or incapacity of magistrate during trial

The proposed section sets out the process by which the Chief Magistrate may appoint another magistrate during the course of a civil or criminal trial if the presiding magistrate at the trial dies or is incapacitated.

Part 8—Amendment of Motor Vehicles Act 1959

13—Amendment of section 5—Interpretation

This clause inserts a definition of ultra high powered vehicle in the Act.

14—Amendment of section 74—Duty to hold licence or learner's permit

This clause provides that a person is authorised to drive an ultra high powered vehicle only if they hold a licence class that authorises them to do so. The proposed amendments also clarify that, for the purposes of the offences in subsections (1) and (2) of the section, a person who, immediately before 1 December 2024, held a licence in this State (other than a provisional licence) that authorised them to drive an ultra high powered vehicle will be taken to have been previously authorised to drive a motor vehicle of that class on a road.

15—Amendment of section 79A—Driving experience required for issue of licence

This clause corrects a drafting error.

16—Amendment of section 98B—Demerit points for offences in this State

This clause amends section 98B to ensure that the number of demerit points incurred by a natural person on conviction for or expiation of an offence against section 79B(2) of the Road Traffic Act 1961 constituted of being the owner of a vehicle that appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence is the same number of demerit points that are incurred by a person who is convicted of or expiates the prescribed offence.

17—Transitional provision

This clause makes the amendment to section 98B retrospective in operation.

Part 9—Amendment of Sentencing Act 2017

18—Amendment of section 59—Release on licence

This clause replaces a reference to the Crown in subsection (11) with a reference to the DPP.

Part 10—Amendment of Spent Convictions Act 2009

19—Amendment of section 3—Preliminary

This clause updates the definition of justice agency to update an obsolete reference as a result of the formation of the National Anti-Corruption Commission.

Part 11—Summary Offences Act 1953

20—Amendment of section 43—Interference with railways and similar tracks

The amendment in subclause (1) seeks to clarify that the offence of interfering with railways extends to interference with a cable or system associated with the railway.

Subclause (2) increases the maximum penalty applying for an offence against subsection (1) from $10,000 to $50,000.

Part 12—Amendment of Supreme Court Act 1935

21—Insertion of section 126B

This clause inserts a new section as follows:

126B—Death or incapacity of judge during trial

The proposed section sets out the process by which the Chief Justice may appoint another Judge during the course of a civil or criminal trial if the presiding judge at the trial dies or is incapacitated.

Part 13—Amendment of Youth Court Act 1993

22—Insertion of section 31A

This clause inserts a new section as follows:

31A—Death or incapacity of judicial officer during trial

The proposed section sets out the process by which the Judge of the Court may appoint another judicial officer during the course of a civil or criminal trial if the presiding judge at the trial dies or is incapacitate

Debate adjourned on motion of Hon. L.A. Henderson.

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