Sentencing (Miscellaneous) Amendment Bill

Second Reading

I thank the member for Kaurna and the member for Heysen for their contribution to this debate. It is fair to say that it has had a strange history, but it is important that I explain its gestation and, to some degree, partial abortion at present. I think the member for Kaurna will be pleased to hear that this relates to amendments to an act passed by the parliament under the former Labor government and correspondence that was sent from the Commonwealth DPP to the former attorney-general, now member for Enfield, Mr Rau SC. Although the former government did not pick up this matter, or indeed any of the minor matters that were starting to show through as a weakness in respect of the legislation they passed, the new government this year did so.

Having done so with an indication of support of other eminent people—and I am going to name a few of them—we agreed to progress the bill with the support and advice from the state Director of Public Prosecutions, Mr Adam Kimber—a man also appointed by the previous Labor government. I make no direct defence of that in any way. He is an excellent Director of Public Prosecutions. He continues to serve this state very well, and I would urge members to read his annual report that was presented to the parliament this week. He, too, joined in the chorus of debate to ensure that the new sentencing law that the previous Labor government introduced—with its shortcomings—be remedied and be as good as it could be.

Another great advocate of the presentation of this bill in its current form was the former victims of crime commissioner, Mr Michael O'Connell.

Well, of course, the member for Kaurna calls out that this is before he was sacked. As he well knows, he continued his employment pursuant to the terms of his contract. He, too, wrote to us on 2 July this year endorsing the approach that had been presented because, whilst there had been some anticipated, at least, change of employment, he was the Commissioner for Victims' Rights at the time of invitation to make a contribution to the reforms proposed, and I have a letter from him of 2 July 2018, which says, and I will just quote a few of his paragraphs:

I concur with the federal DPP's request and support the Attorney-General's proposed amendment. It is important to have consistency, or at least some harmony in criminal law, and in seeking to achieve such that victims' interests are considered fairly, justly and equitably in relation to the state's and defendant's interest.

He then goes on to explain that in his view:

Home detention is not home incarceration as is often suggested in the rhetoric. Instead it is better likened to a community service with a home-based curfew.

He goes on to indicate support for the other amendments, which have been referred to as minor amendments but which are important corrections to the new Sentencing Act regime, which is operating but with current defects and clearly does need to be remedied.

I will not go on to read the entire contents of Mr O'Connell's submission. It has scribbles all over it, but I am happy to provide a copy to the member. Similarly, I come now to the correspondence from the then chief magistrate, Dr Andrew Cannon (as he was then, acting chief magistrate), by letter of 22 June 2018 thanking me as Attorney-General for the opportunity to comment in relation to the matter, and he confirms that he has no difficulty in supporting the bill that is there.

He also identified examples where there had been a need to clarify whether or not a court ordering that the suspended sentence be carried into effect under section 114 can be an order served on home detention and so alerted us to other matters. I had not proposed to publish this, which I would not do of a judge, but I indicate to the parliament his endorsement of it. Similarly, of course, we had submissions from the Law Society and the Legal Services Commission, all of which, I am sure, would be available to the member.

However, let me say this: when the Commonwealth Director of Public Prosecutions, under the hand of Megan Voller as the assistant director, wrote to the former government, she did so pointing out from one independent statutory body to the former attorney-general in letters, dated 7 July 2017 and 26 October 2017, that we as the new government do not have access to those two letters. They were letters sent to the former government and they are somewhere or other in storage, presumably under the State Records Act for ultimate filing and identification for indexing in some way for the purposes of storage.

We on this side of the house were quite prepared to look at the work that had been undertaken—and on the advice we received from the independent advisers to government, that is, our legislative services and in this instant one of the senior legal advisers who had the conduct of this matter—to ensure that if there was any deficiency in our Sentencing Act law, especially as it was a new model and we needed obviously to make sure that it was going to be operating as effectively as it could even without sighting the original letters by our new government, we were prepared to accept that there was a continuation of work being undertaken to actually bring that into fruition.

We prepared a draft bill and sent it out for consultation. You have heard some of the endorsements by those some would describe as the usual suspects, who agreed that this was an important thing to do; that is, someone who is being prosecuted in South Australia under federal jurisdiction for a federal offence should not be able to avail themselves of home detention options, as might apply in similar legislation under state law.

Let's consider what has happened since then. The new government, having accepted that it was important and genuine in respect of the Commonwealth DPP's presentation to the Attorney-General's Department and to the former attorney-general, decided that we would progress this. By letter of 11 October 2018, received last week, the Commonwealth DPP wrote to me as the Attorney-General in respect of the aspect of amendment that they had sought. I am going to read the letter—only because my copy has writing all over it—so that the position is clearly on the record as to why they have withdrawn their invitation to the Attorney-General of South Australia to make the amendments, as originally sought.

The only thing I could add to the contents of this letter is that I am informed (and I have no reason to believe that this is inaccurate) that, as other jurisdictions around Australia were being asked to look at this measure to make sure that they had some consistency with their serious and organised crime penalty options in sentencing, a matter covering this scenario had gone before the New South Wales Courts and that the complications in relation to how that matter operated were exposed by that. New South Wales had been in advance of South Australia in acquiescing to the request of the Commonwealth DPP and had passed their legislation some time ago. The weakness in it had been exposed and, I assume, had firstly been brought to the attention of the Commonwealth Director of Public Prosecutions and ultimately to us here in South Australia.

I will attempt to read this letter, in its original form, as quickly as possible. This is from the Office of the Commonwealth Director of Public Prosecutions on Victoria Square in Adelaide and is dated 11 October 2018:

The Hon. Vickie Chapman MP

Attorney-General

GPO Box 464

ADELAIDE SA 5001

Dear Attorney,

Home detention orders for federal offences

I refer to my letters of 7 July 2017 and 26 October 2017 in relation to the Sentencing Bill 2016 SA ('the bill'), in which this Office invited the then Attorney-General to consider amendments to the provisions regarding the availability of a home detention order in relation to certain federal offences.

I understand Ms—

I will not name the person in the department, but it is a senior person in the department—

of your Department is presently working on potential amendments to the Sentencing Act 2017 (SA) ('the State Act') and the associated Regulations to include certain federal offences within the definitions of 'serious and organised crime offence' and 'serious sexual offence' in s 71(5) of the State Act.

The purpose of this letter is to withdraw this Office's invitation to amend the State Act to preclude a home detention order being made for certain federal offences. This Office has had cause recently to reconsider this issue. For the reasons that follow, we now consider it is likely such an amendment would be invalid due to the inconsistency with the federal law. Home detention orders for federal offenders

By way of background, in South Australia a home detention order ('HDO') is made available as a sentencing alternative for a person sentenced for a federal offence, pursuant to s 20AB of the Crimes Act 1914 (Cth), which expressly picks up and applies certain State sentencing alternatives that are either expressly listed in s 20AB, or via regulation.

The extent to which a HDO can be made in respect of the federal offence is the subject of a Crown appeal recently heard by the Court of Criminal Appeal (CCA). That appeal related to HDOs under the former Criminal Law (Sentencing) Act 1988 (SA). The CAA has reserved judgment. The CAA will hear a second Crown appeal on 21 November 2018 in relation to the ability of a HDO for a federal offender pursuant to the current State Act.

The abovementioned appeals focus on whether a HDO can be made simultaneously with a recognizance release order, which is the federal equivalent of a 'suspended sentence'.

A further issue, which is unlikely to be addressed by the present appeals, is whether a HDO can be made in respect of a federal sentence of imprisonment that exceeds 3 years. This Office's position is a HDO cannot be made in respect of such a sentence, as a federal sentence exceeding 3 years cannot be 'suspended', pursuant to ss 19AB and 19AC of the Crimes Act 1914 (Cth) ('the Crimes Act').

The validity of the proposed amendment

Where a sentencing court imposes a HDO in respect of a federal offence, the court is exercising federal jurisdiction. Through s 20AB of the Crimes Act, the Commonwealth Parliament has made HDOs available as a federal sentencing alternative in South Australia.

Section 20AB does not limit the availability of a HDO to any particular federal offence, nor does it preclude a HDO from being made for any particular federal offence. Rather, s 20AB(1)(b) provides that inter alia a HDO can only be imposed for a federal offence if the court would be empowered to make such an order 'in respect of a State offender in corresponding cases'.

In the event that the State Act were amended to preclude a HDO from being made for particular federal offences, the State Parliament would be purporting to command a court exercising federal jurisdiction as to the manner in which the court could exercise the power vested in it by section 20AB of the Crimes Act. Put another way, the State Parliament would be purporting to limit when a HDO could make for a federal offence in circumstances where the Commonwealth Parliament has made a HDO available without any such limitation.

On reflection, this Office considers that, were the State Act amended as proposed, the amendment would likely be beyond the legislative power of the State Parliament and would therefore be invalid.

Similarly, such an amendment to the State Act would be inconsistent with s 20AB of the Crimes Act, which makes comprehensive provision for the circumstances in which a HDO may be imposed for a federal offence. Section 20AB reflects the Commonwealth Parliament's intention to cover that field. The amendment would therefore also likely be invalid pursuant to s 109 of the Constitution.

The corresponding case

In the absence of the proposed amendment, this Office, nevertheless, considers a HDO will not be available for any federal offence that is analogous to a 'serious organised crime offence' or 'serious sexual offence', as defined by s 71(5) of the State Act. That is because s 20AB(1)(b) of the Crimes Act only makes a HDO available for a federal offence if a HDO could be made for a State offender in a 'corresponding case'.

Whilst this issue is yet to arise in any matter prosecuted by this Office in South Australia, our position is that a HDO cannot currently be made for a federal offence that is analogous to a State offence for which a HDO is precluded. For example, certain State drug trafficking and manufacture offences, punishable by life imprisonment, are prescribed as 'serious and organised crime offences'. This Office considers such offences represent the 'corresponding' State case to a number of federal offices in the Criminal Code (Cth).

I note this Office has not identified any judicial consideration of the phrase 'corresponding case'. Whether the appeals presently before the CAA provide authority as to the proper construction of that phrase remains to be seen. In the absence of authority, the position adopted by this Office to date is that the phrase should be interpreted to mean the 'similar or analogous' State case.

Conclusion

For the forgoing reasons, we invite you not to include any federal offences in any amendment to s 71(5) of the State Act, or the associated regulations.

Thank you for considering the above submission.

If you wish to discuss the above submission with this Office, please don't hesitate to contact John Clover (A/Principal Federal Prosecutor)…

A number and email address are provided.

Yours faithfully

Megan Voller

Assistant Director

I think that the opposition should be reassured, as the government has been, that the former government was requested to undertake this matter. It had been investigated by the legal minds of the state department and, presumably, the former attorney-general. Much consideration was given, and we are grateful for the complimentary indications from a wide variety of stakeholders on this matter. Until we had this letter in mid-October, apparently received last week, there was nothing to suggest that there was any reason why legislation would not be progressed.

If the opposition want to take that further, then of course they are entitled to make that inquiry themselves. I heard the plaintive pleas of the member for Kaurna about not being kept sufficiently apprised or informed on this matter, that somehow or other he was being denied access to a reasonable consideration with the support of briefings. This is a bill to amend a principal act to deal with the issue that is the subject of the invitation of the Commonwealth DPP and three other minor amendments, which have been referred to. The member for Kaurna and members of the opposition were provided two briefings. They took them up and had the opportunity to make statements.

Furthermore, upon receipt of this letter and the indication of what had occurred, an email was sent on Friday last week to the opposition representative. It may also have gone to the Hon. Kyam Maher; I am not sure. He is the official opposition spokesperson for legal matters, although I think even the Premier said to me the other day, 'Who is the opposition spokesperson for legal matters?' I think he thought it might have been you.

 In any event, I informed him, of course, that the Hon. Kyam Maher is the official spokesperson. I hardly ever hear from him, actually. The member for Kaurna obviously has the carriage in this house of parliamentary matters. It was appropriate that, as soon as the government became apprised of the withdrawal of the invitation on this particular issue, the opposition should be informed. Furthermore, the terms of the proposed amendment to this bill were simply to withdraw the legislation relating to it, that is, one clause to remove the words to implement the original invitation. There is nothing new other than to say that, of the four things we want in this bill, we are just taking one out.

Notwithstanding that, just in case the opposition had some questions about the drafting, the timing or anything else, a further briefing was offered this week, as soon as possible, so that they could ask questions and presumably tease out whether there was some genuine request or the like. I think it is quite reasonable that, if a government bill is before the house and any member of the parliament has questions in relation to it—after all, it is a government bill—we need to be able to put our case as to why it should be accepted by the parliament. Members should have available to them full and comprehensive briefing advice, and that has been offered in this case. The withdrawal of one portion of it is pretty simple.

We are not saying we are withdrawing this and we are introducing some new model or some other new formula or some other substantive change: we are just taking it out. As to the bit that the previous commonwealth DPP wanted in order to ensure consistency of home detention in these serious offence circumstances where a commonwealth law is being prosecuted in a state court, there is no change to that and no substitute proposed. Quite frankly, I would have thought the member for Kaurna's crocodile tears on this evaporate from any consideration because that is completely absurd.

He has all his colleagues here in the parliament. Why could he not ring up Mr Maher and say, 'The government has had a late request from the Commonwealth DPP. You remember he wrote to our previous government about this. They are letting us know that they do not need it anymore; in fact, it is complicated by the fact that it might cause a constitutional challenge; therefore, we need to note that. But we will just agree with the government with the other three minor amendments'? After all, we are fixing up their act that they passed under their regime in 2017.

No, he did not do that. He has come in here and given his whole crybaby speech about not being able to have another briefing about one clause which he has been provided with which states: 'Amendment No. 1—Delete subclauses (3) and (4).' That is it. I find it extraordinary that here we are trying to fix up a major piece of law reform by the former government for which we had round tables to work it out with all the people who have to deal with sentencing in this state—the Parole Board chair, corrections department, police representatives, the Law Society, barristers, judges. We had the whole lot. There needed to be a very clear new approach.

There were aspects of that law reform that, as an opposition at the time, we did not agree with to which we moved amendments and the like. But at the end of the day, we have proposed a new model of sentencing and a complete new act in relation to sentencing law, which I should acknowledge had some support at the time from Mr Sulan QC, a former judge of the Supreme Court and chair of the then sentencing council. There has been a lot of work put into this, so on balance it was a good initiative. Sometimes you just need to do it, a bit like the education bill currently before us. You need to rewrite these things to make them contemporary and effective.

That is exactly what we worked on with the former government to do. Even the best people, even Mr Rau SC, get it wrong sometimes. But I cannot even really blame him. Clearly sometimes only by the implementation of a new law, especially when it is a new model, does it expose some of the weaknesses. Cases come before courts. Magistrates then find some inconsistency. Our state DPP raised some concerns as to the implementation of this new model. So we need to come back to the parliament and ask the parliament to remedy that, and that is what this bill is all about.

To suggest that the opposition in some way has been deprived of information about this matter I find galling. Nevertheless, the information has been conveyed. The offer of a briefing has been made. Now, at the very least, I have put on the record the full letter. As I said, I cannot offer to put on the full letter of their original request because they are tucked away in the John Rau SC records of the former attorney-general's department and are presumably on their way to somewhere out north to be put into storage forever.

If necessary, we could try to retrieve them or the member for Kaurna could ring up the former attorney and ask, 'Is this right? Is this what you got last year? A couple of letters apparently were sent to you.' He could authorise their being released and bring them out of storage as the former attorney-general if he wants to, if the member for Kaurna is in some way sceptical about either his word or the reliability of the independence of the Commonwealth Director of Public Prosecutions.

He may have those concerns, but we do not. We are satisfied that the events that have occurred in the development of this reform and the tidying up of the legislative amendments that are proposed were reasonable requests at the time, are still necessary and, except for one element, is sought to be progressed by the parliament today. Of course, if we need to go into committee then we are happy to do so.