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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-02-20 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2025.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (12:14): I rise today on behalf of the Liberal opposition as the lead speaker on the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2025. I indicate that the opposition supports the amendment bill, which aims to present legislative amendments which will strengthen our justice system, enhance public safety and improve the administration of laws in South Australia. The bill contains a series of reforms designed to address gaps, modernise existing provisions, and ensure the fair and effective functioning of our legal and correctional systems.

Firstly, parts 5 to 7 as well as parts 12 and 13 propose amendments to the District Court Act 1991; the Environment, Resources and Development Court Act 1993; the Magistrates Court Act 1991; the Supreme Court Act 1935; and the Youth Court Act 1993. These amendments will empower the relevant head of jurisdiction to appoint a new judicial officer in instances where the presiding officer becomes incapacitated or passes away during the course of a trial. At present, section 175.1 of the Uniform Civil Rules 2020 provides for such a scenario in civil trials. This bill extends that principle to criminal trials and inserts it into legislation rather than procedural rules, ensuring greater consistency and certainty across all jurisdictions.

Part 2 of the bill introduces two key amendments to the Controlled Substances Act 1984. Firstly, clauses 3 and 5 will transfer the power to appoint an analyst from the Governor to the minister, streamlining the appointment process. Secondly, clause 4 expands the mental element of attempted trafficking of a controlled substance to include 'recklessness'. This amendment directly responds to the Court of Appeal's decision in Kingston (a pseudonym) v The Queen and Maxwell (a pseudonym) v The Queen and will strengthen our ability to prosecute those who attempt to traffic illicit substances.

Turning to part 3, this bill amends the Correctional Services Act 1982 to grant the Parole Board the authority to amend parole conditions without requiring the paroled person to first breach an existing condition. This change, requested by the Parole Board, will provide greater flexibility in managing parole agreements and ensuring compliance with rehabilitation objectives.

Part 4 concerns an important amendment to section 85B of the Criminal Law Consolidation Act 1935. Currently, the law provides a defence for individuals whose fire-related activities were genuinely directed at preventing or controlling a fire. However, this provision could be exploited by individuals who recklessly start a fire and fail to manage it responsibly. The amendment ensures that those who act recklessly cannot use this defence to escape liability.

In part 8, this bill makes two key amendments to the Motor Vehicles Act 1959. Firstly, it ensures that ultra high-powered vehicle class licences apply retrospectively to offences under section 74 of the act. Secondly, it aligns the demerit point system so that penalties imposed via phone detection cameras carry the same consequences as those issued by police officers.

Parts 9 and 10 make important technical corrections to legislation. Part 9 corrects an error in the Sentencing Act 2017 by substituting the word 'Crown' with 'DPP' in section 59, ensuring clarity in prosecutorial authority. Part 10 updates the Spent Convictions Act to reflect the establishment of the National Anti-Corruption Commission, replacing a reference to the defunct Australian Commission for Law Enforcement Integrity.

Finally, part 11 strengthens protections for our railway infrastructure. This amendment expands the offence of interfering with railway tracks under section 43 of the Summary Offences Act 1953 to explicitly include cables and systems. Moreover, it increases the penalty from $10,000 to $50,000, reinforcing the seriousness of such offences and acting as a stronger deterrent.

These amendments represent a comprehensive set of reforms aimed at bolstering the administration of justice, enhancing public safety and ensuring that our laws remain fit for purpose. I commend the bill to the chamber.

The Hon. R.A. SIMMS (12:18): I rise to speak on the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill. The Greens will support this bill, but we do have some concerns about a number of the provisions, and I might ask some questions about those at the committee stage. The bill contains a number of minor and technical amendments, most of which the Greens support and we understand the rationale; however, there are two provisions of note that I wish to comment on.

The first is the amendment to the Correctional Services Act found in part 3 of the bill that allows the Parole Board to impose new conditions where there has been no breach of parole. It is my understanding that the Parole Board asked for this change and that this power will not be used often, but the Greens are concerned that there is no test or threshold that has to be met before a new condition can be added.

Once this new bail condition is added, the usual processes around parole apply and a person impacted has a chance to challenge the new condition. However, I am concerned that in the absence of any breach of parole, I am struggling to envisage circumstances where additional parole conditions would be needed and could not be addressed through other mechanisms. It gives the Parole Board a very wideranging power that despite assurances it will not be used often, but in particular hypothetical situations, we simply do not know how or how often this power will be used, and that is of concern. We are giving very broad, wideranging powers, and the precise rationale for the change I do not think has been made clear by the government.

Secondly, in regard to part 11, I am pleased to see the government cracking down on copper theft from rail infrastructure and clarifying this provision; however, studies show that harsher penalties do not work to reduce crime. The Greens do recognise that copper theft is an issue and, as is the case of theft from rail infrastructure, it has the potential to cause hazards and delays, but that does not change the fact that harsher penalties do not work.

There is also a significant problem in our state at the moment with copper theft from construction sites. This, indeed, is an issue that has been raised with me. I have heard of South Australians who are building their own homes being in a situation where they do not want to leave the construction site unattended because they are in fear that someone is going to come and rip up the copper. Perhaps, it is worth the government investigating some sort of tracking or another mechanism to help prevent theft of this nature and looking at ways that they might keep track of copper.

Ultimately, the way to reduce crime is to minimise the circumstances in which they feel they are left with no other options. Social and affordable housing, free education, lower grocery prices, free and frequent public transport—all of these things reduce the risk of crime, particularly if the offending relates to stealing a material and selling it on for profit. I urge the government to consider that as part of its broader approach.

As I say, we are broadly supportive of a number of the provisions within the bill. There are a few elements that we have concerns about, and I will ask the Attorney-General some questions about those in the committee stage.

The Hon. R.P. WORTLEY (12:22): Every now and again, an Attorney-General's portfolio bill is required to rectify minor errors, omissions and other deficiencies identified in legislation committed to the Attorney-General and to other ministers' legislation where such changes are technical in nature. Given the minor or technical nature of the amendments, it is often more efficient to deal with such amendments in a single omnibus bill, rather than separate amendment bills for each act. The bill will ensure the proper and effective operation of various laws committed to the Attorney-General and other ministers by clarifying, removing and updating, where relevant, various inconsistencies, ambiguities and inefficiencies identified in the current legislation.

Part 2 of the bill contains two separate sets of amendments to the Controlled Substances Act committed to the Minister for Health and Wellbeing. Section 33 of the Controlled Substances Act abrogates the common law requirement for the prosecution to establish that a person knew, or was reckless with respect to, the identity or quantity of a controlled substance for offences committed against part 5 of the Controlled Substances Act.

In Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen, it was held by the Court of Appeal that section 33P does not apply to attempted drug offences as they are not offences against part 5 of the Controlled Substances Act, but rather offences against section 270A of the Criminal Law Consolidation Act 1935.

The Director of Public Prosecutions has expressed concern that, following the decision in Kingston, the prosecution will not be able to rely upon section 33P as an aid to proof in respect of attempted drug offences. Instead, the prosecution will need to prove that the defendant had actual knowledge of, or was reckless with respect to, the identity or quantity of the controlled substance, as required by the common law.

To address this concern, part 2 of the bill amends section 33P to provide that a reference to an offence 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. This will allow for the prosecution to rely upon section 33 as an aid to proof in respect of attempted drug offences under section 270A of the CLCA.

A further amendment is made to section 33P(2) to clarify that it is not necessary for the prosecution to establish that a person knew, or was reckless with respect to, the particular identity or quantity of the controlled substance, consistent with the intent of the heading to section 33P—knowledge or recklessness with respect to identity or quantity.

A transitional provision has also been included to clarify that the amendments will only apply to proceedings relating to an offence that were instituted after the commencement of the amendments, regardless of when the alleged offence occurred.

Part 2 of the bill separately amends section 51 of the Controlled Substances Act to remove the requirement for the appointment of analysts to be made by the Governor in Executive Council and to instead allow for these appointments to be made by the minister by way of a written instrument published in the Government Gazette.

Section 51(1) of the Controlled Substances Act provides that the Governor may appoint such number of persons to be analysts as the Governor thinks necessary or desirable for the purposes of the act. Analysts have a range of functions under part 7 of the Controlled Substances Act. This includes analysing and making determinations in relation to the weight, amount or quantity of substances that have been seized for the purpose of ascertaining whether the substance is a particular poison, prescription drug, drug of dependence, controlled precursor, controlled plant or medicine, or for any other evidentiary purpose.

In practice, analysts are usually appointed from employees within Forensic Science SA, namely forensic scientists. South Australia is the only jurisdiction which requires analysts to be appointed upon the approval of the Governor in Executive Council. In other jurisdictions, analysts are either appointed by the minister or the functional equivalent of a chief executive, typically by notice in the Gazette.

Accordingly, the bill seeks to allow for analysts to be appointed by the minister by way of a written instrument published in the Gazette rather than by the Governor. This is similar to the appointment process that currently applies in relation to authorised officers, who are appointed by the minister under section 51 of the Controlled Substances Act.

Section 71 of the Correctional Services Act 1982 currently provides that, where a person has been released on parole from a sentence other than a sentence of life imprisonment, the Parole Board may, on application or on its own motion, vary or revoke a condition to which the parole is subject.

Under 71(2), the same powers to vary or revoke conditions of parole also extend to a person who has been released on parole from a sentence of life imprisonment. Pursuant to section 74AAA(1) of the Correctional Services Act, it appears that a new condition of parole may only be added if the Parole Board finds that there has been a breach of parole.

The presiding member of the Parole Board has raised concerns that, in the absence of a breach, section 71 does not appear to allow for the Parole Board to add a new condition of parole and the board's powers are restricted to varying or revoking an existing condition of parole only. In particular, the presiding member has expressed concern that the inability of the Parole Board to impose further conditions where there has been no breach of parole has the potential to compromise community safety.

In response to these concerns, part 3 of the bill amends subsections 71(1) and (2) of the Correctional Services Act to permit the Parole Board to add new conditions of parole, in addition to the current powers to vary and revoke conditions, in circumstances where there has been no breach of parole. A transitional provision has been included to make it clear that the amendments will apply in relation to the parole of a person who has been released on or before the commencement of the amendments.

Part 4 of the bill amends section 85B(3)(b) of the Criminal Law Consolidation Act 1935 to achieve greater consistency with section 201A of the Victorian Crimes Act 1958, with the intent of tightening the operation of the back-burning 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, intends to cause a bushfire or is recklessly indifferent as to causing a bushfire is guilty of an offence. The offence carries a maximum penalty of life imprisonment.

Section 85B(3)(b) provides that an offence is not committed if the bushfire results from operations genuinely directed at preventing, extinguishing or controlling a fire. Concerns were raised that this section may appear to permit a situation where:

the fire was originally lit by a person for genuine fire prevention purposes; for example, back-burning;

the person loses control or fails to extinguish the fire, whether by neglect, accident or intention; and

the fire spreads onto a neighbouring property without the consent of the neighbouring property owner and the fire destroys the neighbour's property.

To address these concerns, section 85B(3)(b) has been redrafted to tighten the operation of the back-burning defence in line with section 201A of the Victorian Crimes Act, so the defence will only be available where:

the bushfire was carried out in the course of carrying out a fire prevention, suppression or other land management activity; and

at the time that the activity was carried out:

there was a provision made by or under an act or by a code of practice approved under an act in force that regulated or otherwise applied to carrying out the activity and the person acted in accordance with that provision in carrying out the activity; and

the person believed that their conduct in carrying out the activity was justified, having regard to all these circumstances.

Parts 5 to 7, 12 and 13—District Court Act 1991 and related acts: rule 175 of the Uniform Civil Rules 2020 provides that if a presiding judicial officer dies or becomes incapacitated before the final determination of proceedings, another judicial officer may be appointed to complete the hearing and determination of the proceeding. However, there is currently no equivalent provision in any legislative instrument in relation to the criminal jurisdiction.

The death or incapacity of a presiding judge in a criminal trial that has been part-heard has the potential to impact on the timely and efficient administration of justice, particularly where the trial is required to be heard afresh. A number of jurisdictions—Northern Territory, Queensland and Victoria—have enacted legislation to allow for a substitute judge to be appointed in relation to a criminal trial that has been part-heard in the event of the death, incapacity or illness of a presiding judge. Given the potential for this situation to arise in relation to both civil and criminal trials, the government considers that it is appropriate to ensure consistency across both the civil and criminal jurisdictions with respect to the appointment of a substitute judicial officer in the event of death or incapacity.

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 by judge alone, in circumstances where the presiding judge dies or has been incapacitated. In particular, the amendments provide that:

if the reasons for the judgement in the final form were prepared by the presiding judge, another judge appointed by the Chief Judge may publish the reasons and grant judgement in accordance with them; or

in any other case, another judge appointed by the Chief Judge may complete the hearing and determination of the proceedings and rehear evidence and submissions to the extent that the judge thinks fit, and make orders as appropriate.

Parts 6, 7, 12 and 13 of the bill make similar amendments in respect of the Environment, Resources and Development Court Act 1993, the Magistrates Court Act 1991, the Supreme Court Act 1935 and the Youth Court Act 1993.

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 unable or unwilling to control their sexual instincts.

Part 9 of the bill amends subsection 59(11) of the Sentencing Act to replace an erroneous reference to the Crown with the Director of Public Prosecutions. This is consistent with all other subsections in section 59, which refer to 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 (ACLEI) with the National Anti-Corruption Commission (NACC).

The commonwealth National Anti-Corruption Commission Act 2022 (the NACC Act) came into operation on 1 July 2023. Amongst other things, the NACC Act established the NACC and repealed the commonwealth Law Enforcement Integrity Commission Act 2006 (the LEIC Act). Upon the commencement of the NACC Act, the ACLEI, which was established under the LEIC Act, was subsumed into the NACC.

Paragraph (d) of the definition of 'justice agency' in the Spent Convictions Act refers to the ACLEI 'or any other similar crime or integrity commission, body, office or agency established under a law of the Commonwealth or a State'. Given this, it is considered that the NACC would likely be caught by the catch-all reference in that definition as a 'similar crime or integrity commission…established under a law of the Commonwealth'. However, for the avoidance of doubt, it is proposed to remove the reference to the ACLEI and replace it with the NACC.

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.

In July and August 2023, thieves attempted to steal copper cabling at the North Adelaide train station. Although unsuccessful, these incidents were reported to have caused widespread delays and cancellation of metropolitan train services, with passengers forced to consider alternative modes of transport. In addition to presenting a public safety risk, incidents of this type have a significant flow-on impact on the rail network, causing unnecessary delays for passengers and costly repair bills to rectify the damage to the network.

Section 43 of the Summary Offences Act makes it an offence for a person to interfere with any part of a railway, tramway or any signal or machinery used in connection with any such railway, tramway or track. While it is considered that this would likely capture the theft of copper wire or piping that forms part of the railway or track, it is uncertain whether the offence would capture interruptions caused to the railway network system or processes where this is a secondary or indirect consequence of the copper wire or piping being stolen.

For the avoidance of doubt, part 11 of the bill amends section 43 of the Summary Offences Act to make it clear that the offence 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 pipe or wire. 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. With that, I commend the bill.

The Hon. M. EL DANNAWI (12:39): I rise today to speak briefly on the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill, which amends a number of acts that fall within the Attorney-General's portfolio. As the Attorney-General noted in his second reading speech, sometimes minor or technical amendments to many acts are most efficiently dealt with in an omnibus bill, like the one before us today. This bill is necessary maintenance to ensure the effective operation of our justice system, and I will speak briefly to a few of the changes that are made through this bill.

From feedback and concerns from the Presiding Member of the Parole Board, the bill amends the Correctional Services Act 1982 to allow the Parole Board to add new conditions to a person's parole. Previously conditions could only be revoked by the board, and the only way in which a condition could be added was if there had been a parole breach. Through this bill conditions can now be added by the Parole Board in the absence of a breach.

Upon feedback from the Director of Public Prosecutions, the bill amends the Controlled Substances Act 1984 in response to recent judicial findings. It also amends the act to remove the requirement for the appointment of analysts to be made by the Governor in executive council. Instead, these appointments can now be made by the minister by way of a written instrument published in the Government Gazette.

The bill also amends the Criminal Law Consolidation Act to tighten the operation of the backburning defence in relation to the offence of causing a bushfire. This change also brings us more in line with the Victorian Crimes Act. These changes further narrow the context in which the backburning defence will be available to someone charged with starting a bushfire.

The bill also amends the District Court Act 1991 and other related acts. Currently, the Uniform Civil Rules 2020 provide that if a presiding judicial officer dies or becomes incapacitated before the final determination of proceedings, another may be appointed to complete the hearing. However, there is currently no equivalent provision in any legislative instrument in relation to the criminal jurisdictions.

Given the potential of this situation to arise in relation to both civil and criminal trials, the government considers that it is appropriate to ensure consistency across both jurisdictions with the respective appointment of a substitute judicial officer in the event of death or incapacity. Part 5 of the bill accomplishes this with other parts of this bill making similar amendment in respect of other courts.

The bill amends the Summary Offences Act to address concerns regarding an increase in incidents of individuals interfering with or damaging assets from the rail network, including the theft of copper wire and piping. In addition to presenting a public safety risk, incidents of this type have a significant flow-on impact on the rail network, causing unnecessary delays for passengers and costly repair bills to rectify the damage to the network. This bill makes it an offence for a person to interfere with any parts of a railway or tramway, or any signal or machinery used in connection with them.

Finally, the bill also makes minor changes in the Sentencing Act 2017 and the Spent Convictions Act 2009 to correct names and fix errors. I commend the bill to the chamber.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (12:42): I thank members for their contributions on this bill, which has quite a number of different parts—small but important changes. I thank members for their indications of support for the bill and look forward to the committee stage and the intense questioning we will be subject to from the Greens.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: I referenced in my second reading speech some of the concerns that I had in relation to the changes to the Correctional Services Act and, in particular, new powers of the Parole Board to change conditions. Is the Attorney able to outline the rationale for those changes?

The Hon. K.J. MAHER: This was at the suggestion and request of the Parole Board. It is to only be able to make changes where there is a formal breach found. There is, in the submissions made, a quite limiting ability for the Parole Board. The honourable member asked during his second reading contribution, 'Is there an example of where such a new ability, should this bill pass, might be exercised?' I am happy to give, after discussion with the Parole Board, an example.

While the proposed amendment does represent an extension of the Parole Board powers, the government considers these changes are warranted to ensure the Parole Board can continue to execute its statutory duties properly and effectively—namely, to protect the safety of the community. An example of where these powers might be exercised is where a parolee has entered into a new relationship with a person and it is alleged that the parolee has behaved violently towards their new partner.

In these circumstances, it is the Parole Board's view that it would be in the interests of the person's safety for it to have the power to impose a condition that prevents a parolee having contact with the alleged victim. The Parole Board observes that such charges are commonly contested, which may mean that the matter may not finally be determined by the court for some time.

In these situations, it is the Parole Board's view that, should it be able to respond appropriately and impose new conditions if necessary, notwithstanding the alleged conduct may not amount to a formal breach of a parole condition, it is also important to note that the Parole Board's proposed powers will continue to be subject to a number of existing safeguards, which the honourable member outlined in his second reading contribution and are provided for in section 71 of the existing Correctional Services Act. This includes a requirement for the Parole Board to give reasonable notice of its intention to exercise its powers to the parolee and to consider any submissions from them before determining whether to make any orders.

In addition, section 71(4) prevents the Parole Board from making an order in relation to a person who is under the supervision of a community corrections officer unless it has obtained a report from the Chief Executive of the Department for Correctional Services. It is anticipated that these safeguards would apply equally in the event that the Parole Board considers it is appropriate to exercise its power to impose a new condition on parole, should this bill pass.

Clause passed.

Remaining clauses (2 to 22) 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, Special Minister of State) (12:48): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:48 to 14:15.

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