Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

The Statutes Amendment (Attorney-General's Portfolio) Bill 2018 makes miscellaneous amendments to various acts committed to the Attorney-General. It addresses a number of minor or technical issues that have been identified in legislation. In broad terms, this bill:

  • allows for additional time for a prosecution to be commenced where an enforcement determination is revoked by a court under the Fines Enforcement and Debt Recovery Act 2017 on the basis that the alleged offender did not have a reasonable opportunity to elect to be prosecuted;
  • ensures that non-government bodies cannot refer a civil debt to the fines unit for recovery by them unless they are bodies prescribed by regulations;
  • removes a redundant provision relating to extended trading hours authorisations in the Liquor Licensing Act 1997 due to reforms in the Liquor Licensing (Liquor Review) Amendment Act 2017;
  • provides that, under the South Australian Civil and Administrative Tribunal Act 2013, an application for internal review of a decision of the SACAT, other than a decision made by a registrar, is to be made with the leave of a legally qualified member of SACAT, as recommended by the recent statutory review of SACAT;
  • prescribes, to avoid the need for multiple appointments, the reviewer under Schedule 4 of the Independent Commissioner Against Corruption Act 2012 as the review agency for the Independent Commissioner Against Corruption;
  • importantly, ensures that the youth Training Centre Review Board must furnish an annual report to the Minister; and
  • deals with an operational anomaly regarding the interaction between the Young Offenders Act and the Correctional Services Act concerning parole arrangements for young people who are sentenced as adults.

Turning to the substance of the bill, part 2 makes two amendments to the Fines Enforcement and Debt Recovery Act 2017. The first addresses a minor oversight in relation to processes following a successful appeal of an enforcement determination.

Regarding non-payment of an expiation fee, the Chief Recovery Officer can make an enforcement determination against an alleged offender. The alleged offender can apply to the Chief Recovery Officer on a number of grounds under section 22 to have the enforcement determination revoked. One of those grounds is that the alleged offender did not have a reasonable opportunity to elect to be prosecuted for the relevant offence. Pursuant to section 22(13), if the Chief Recovery Officer agrees to revoke the enforcement determination on that ground, the prosecutor will have six months to commence a prosecution for the offence. This ensures that, if the limitation period has already passed, the prosecutor is not prevented from prosecuting the offender.

If the Chief Recovery Officer decides not to revoke the enforcement determination, the alleged offender has an appeal right to the Magistrates Court or the Youth Court under section 23. If the application is successful and the court revokes the enforcement determination, there is currently no equivalent provision in section 23 to extend the time limit for a prosecution to commence. The bill amends section 23 so that, if the court revokes the enforcement determination on the ground that the alleged offender did not have a reasonable opportunity to elect to be prosecuted, the prosecutor will have six months to commence a prosecution in the same manner as under section 22(13).

The bill also amends the definition of a 'public authority' in section 48(1) of the Fines Enforcement and Debt Recovery Act. Part 8 of the Fines Enforcement and Debt Recovery Act, which is yet to commence, introduced a new mechanism for a public authority to refer a civil debt owed to the authority to the Chief Recovery Officer to be recovered in the same manner as a fine.

It is evident from the second reading speech given on behalf of the former government in the Legislative Council on 28 September 2017 that the original legislative intention was for this to apply to government bodies. The definition of 'public authority' currently extends to any incorporated or unincorporated body established for a public purpose by or under an act. This is likely to capture a broad range of non-government bodies. The bill limits the scope of the definition, consistent with the original policy intention of the legislation.

Part 3 of the bill amends the Liquor Licensing Act 1997 by repealing section 44 of that act. The Liquor Licensing (Liquor Review) Amendment Bill 2017, which amended the Liquor Licensing Act, passed the parliament in 2017. One of the reforms enabled the actual hours of trade to be nominated by the licensee at the time of application, removing the need for licensees to apply for extended trading hours authorisations.

Extended trading hours authorisations are dealt with in section 44 of the Liquor Licensing Act. A clause to delete section 44 was originally introduced in the Liquor Licensing (Liquor Review) Amendment Bill 2017, but was inadvertently deleted through an in-house amendment. This bill will cause section 44 to be deleted following the commencement of the relevant parts of the Liquor Licensing (Liquor Review) Amendment Act 2017.

Part 4 of the bill makes a minor amendment to the South Australian Civil and Administrative Tribunal Act 2013. Section 70 of the South Australian Civil and Administrative Tribunal Act currently provides that an application for internal review of a decision of the South Australian Civil and Administrative Tribunal constituted by a registrar may only be heard with the leave of a presidential member.

Section 225 of the Statutes Amendment (SACAT No. 2) Act 2017 amended section 70 so that leave is required for all applications for internal review, not just for a review of a decision made by a registrar. The tribunal currently has just one presidential member, who simply does not have the capacity to hear leave applications for all applications for internal review. As a result, the commencement of section 225 has been deferred.

The bill retains the existing requirement for leave of a presidential member in reviews of a decision made by a registrar. It further provides that in any other case, leave may be granted by a legally qualified member of the tribunal. Parts 5 and 6 of the bill amend the Surveillance Devices Act 2016 and the Telecommunications (Interception) Act 2012. I will deal with these together.

The Surveillance Devices Act and the Telecommunications (Interception) Act prescribe functions to a review agency to review the compliance of SA Police and the Independent Commissioner Against Corruption (the ICAC) with the relevant legislative requirements. Under each of these acts, the review agency for the ICAC is 'a person who is independent of the Commissioner and is appointed by the Governor as the review agency'. The Hon. Kevin Duggan AM QC has been appointed by the Governor as the review agency until 4 March 2020.

For simplicity, and to avoid the need for multiple appointments to be made, the bill transfers the review agency function for the ICAC to the reviewer under Schedule 4 of the Independent Commissioner Against Corruption Act 2012. The reviewer under Schedule 4 must necessarily be a person who is independent of the commissioner and is well placed to perform this additional function. As a result of the amendment, the Surveillance Devices Act and the Telecommunications (Interception) Act will prescribe the same authority as the review agency for the ICAC and SA Police.

A further amendment is made to the Surveillance Devices Act to correct a minor drafting error. The bill amends section 31 of the Surveillance Devices Act, which mistakenly refers to the 'chief investigating officer' of an investigating agency rather than the 'chief officer'. Part 7 of the bill makes three amendments to the Young Offenders Act 1993. Firstly, the bill introduces annual reporting requirements for the Training Centre Review Board.

The Training Centre Review Board is established under the Young Offenders Act to review the progress and circumstances of youths sentenced to detention in a training centre, and to hear and determine matters relating to such youths. The bill requires the Training Centre Review Board to report to the minister not later than 31 October each year and for the Minister to table a copy of the report in each house of parliament. The reporting requirements are modelled on the existing reporting requirements of the Parole Board under the Correctional Services Act 1982 and are intended to increase transparency. The difference being that the Parole Board deals with adults and the Training Centre Review Board deals with children.

Such an amendment was flagged previously in this place after I attempted to receive copies of a report from the youth Training Centre Review Board from the former attorney-general. Lo and behold, they did not exist despite playing an incredibly important role in the life of a young person. Such data necessitates good policy and must be delivered by the minister.

A further amendment is made to section 36(4)(b) and section 63B of the Young Offenders Act to address an operational issue relating to the interaction between the Young Offenders Act and the Correctional Services Act regarding parole arrangements for young people who are sentenced as adults. The Youth Justice division of the Department of Human Services supervises young persons on parole until they reach 18 years of age, but part 6, division 3 of the Correctional Services Act applies with modification in respect of their supervision if the young person is sentenced as an adult or is serving a non-parole period.

Despite the modifications, there is currently no provision in the Young Offenders Act to transfer the power and functions of the chief executive of the Department for Correctional Services to the chief executive of the Department of Human Services. This limits the ability for the Department of Human Services to report directly to the Training Centre Review Board in relation to progress reports, recommended parole conditions, and reporting non-compliance with supervision requirements for young people being considered for, or granted release on parole.

The bill amends section 36(4)(b) and section 63B of the Young Offenders Act to provide that part 6, division 3 of the Correctional Services Act applies. References to the chief executive of the Department for Correctional Services will be taken to mean the chief executive of the Department of Human Services.

Finally, the bill corrects a minor drafting error in section 43 of the Young Offenders Act, which mistakenly refers to the 'presiding member' rather than the 'designated member'. I thank the Hon. Michelle Lensink MLC in another place for her work on these amendments under her youth justice responsibilities as the Minister for Human Services. I commend the bill to members and I seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Fines Enforcement and Debt Recovery Act 2017

4—Amendment of section 23—Review by Court of refusal to revoke enforcement determination

This clause amends section 23 of the principal Act to enable the commencement of a prosecution in circumstances where the Court has reversed a decision of the Chief Recovery Officer to refuse an application for revocation of an enforcement determination made on the ground that the alleged offender did not have a reasonable opportunity to elect to be prosecuted for an offence to which the expiation notice relates. The amendment authorises commencement of a prosecution within 6 months of the day on which the Court's decision is made.

5—Amendment of section 48—Interpretation

This clause amends section 48 of the principal Act to delete paragraph (b)(i) and (ii) of the definition of public authority.

Part 3—Amendment of Liquor Licensing Act 1997

6—Repeal of section 44

This clause deletes section 44 of the principal Act.

7—Transitional provision

This clause provides for transitional arrangements that are consequential on the deletion of section 44 of the principal Act.

Part 4—Amendment of South Australian Civil and Administrative Tribunal Act 2013

8—Amendment of section 70—Internal reviews

This clause amends section 70 of the principal Act to provide for applications for review to be by leave of a Presidential member in the case of a decision of the Tribunal as constituted by a registrar or other member of the staff of the Tribunal or by leave of a legally qualified member in the case of a decision of the Tribunal in the exercise of its original jurisdiction.

Part 5—Amendment of Surveillance Devices Act 2016

9—Amendment of section 3—Interpretation

This clause substitutes paragraph (b) of the definition of review agency.

10—Amendment of section 31—Control by investigating agencies of certain records, information and material

This clause deletes the first occurring reference to 'investigating' in section 31 of the principal Act.

Part 6—Amendment of Telecommunications (Interception) Act 2012

11—Amendment of section 2—Interpretation

This clause substitutes paragraph (b) of the definition of review agency.

Part 7—Amendment of Young Offenders Act 1993

12—Amendment of section 36—Detention of youth sentenced as adult

In applying the Correctional Services Act 1982 in the circumstances referred to in section 36(4)(b) of the principal Act, a reference in the Correctional Services Act 1982 to the CE will be taken to be a reference to the Chief Executive (within the meaning of the principal Act).

13—Insertion of section 40

This clause inserts section 40 into the principal Act.

40—Reports by Training Centre Review Board

Proposed section 40 imposes a requirement on the Training Centre Review Board to report to the Minister annually.

14—Amendment of section 43—Special procedures for terror suspects

This clause amends section 43 of the principal Act to substitute the reference to 'presiding member' with a reference to 'designated member'.

15—Amendment of section 63B—Application of Correctional Services Act 1982 to youth with non-parole period

In applying the Correctional Services Act 1982 in the circumstances referred to in section 63B of the principal Act, a reference in the Correctional Services Act 1982 to the CE will be taken to be a reference to the Chief Executive (within the meaning of the principal Act).