Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill

Second Reading

The Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill 2019 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.

Judicial immunities: parts 2, 4, 5, 7, 8, 15 and 18 of the bill make minor amendments to a number of acts to clarify that a judicial officer has the same immunities from civil and criminal liability as a judge of the Supreme Court. Under the common law, a judge of the Supreme Court enjoys immunities from civil and criminal liability for acts done in the performance of judicial or quasi-judicial functions. The same immunity from civil and criminal liability extends to other judicial officers at common law, and there is no distinction between superior and inferior courts.

The immunity of a judicial officer from civil and criminal liability under the common law continues to apply, despite any express statutory reference in legislation to the contrary. Notwithstanding, there are a number express statutory references in various acts which currently refer to certain judicial officers only having immunity from civil liability.

The bill amends section 33 of the Coroners Act 2003, section 46 of the District Court Act 1991, section 36 of the Environment, Resources and Development Court Act 1993, section 15 of the Liquor Licensing Act 1997, section 44 of the Magistrates Court Act 1991, section 110C of the Supreme Court Act 1935 and section 26 of the Youth Court Act 1993 to affirm the position under common law that judicial officers have the same immunities from civil and criminal liability as a judge of the Supreme Court.

Criminal Procedure Act 1921: part 3 of the bill responds to an issue regarding inconsistencies between the penalties that currently apply in relation to a breach of an order made under section 180 of the Criminal Procedure Act 1921and a breach of a firearms prohibition order made under section 45 of the Firearms Act 2015. Section 180 of the Criminal Procedure Actallows the court to make a range of orders where it is satisfied that a firearm or offensive weapon was used in, or facilitated, the commission of an offence. Relevantly, this may include an order under section 180(1)(g) that a person is subject to a firearms prohibition order within the meaning of the Firearms Act.

In the event of a breach of an order under section 180 (including a firearms prohibition order), the Criminal Procedure Actimposes a maximum penalty of $500 or 12 months' imprisonment. This is to be contrasted with section 45 of the Firearms Act, which imposes maximum penalties ranging from $50,000 or 10 years' imprisonment up to $75,000 or 15 years' imprisonment in the event of a breach of a firearms prohibition order.

The bill, therefore, amends the Criminal Procedure Actto increase the maximum penalties that apply in the event of a breach of an order made under section 180 so that, in the case of a breach of an order relating to a firearm, the maximum penalty is $50,000 or 10 years' imprisonment; in the case of a breach of an order relating to an offensive weapon, the maximum penalty is $10,000 or two years' imprisonment. As a result, a person who breaches an order relating to a firearm under the Criminal Procedure Act will be subject to a substantially higher maximum penalty, which is proportionate to the penalties that currently apply under the Firearms Act in relation to a breach of a firearms prohibition order.

Similarly, a person who breaches an order relating to an offensive weapon under the Criminal Procedure Act will also be subject to a higher maximum penalty, which is proportionate to other maximum penalties that currently apply for related offensive weapon offences under part 3B of the Summary Offences Act 1953.

Evidence Act 1929: part 6 of the bill amends the Evidence Act 1929 to clarify that, for the purposes of the act, a reference to a victim in section 29A and in section 67H is taken to apply to a victim or alleged victim of the offence. Section 67H defines 'sensitive material' for the purposes of division 10 of the Evidence Act. Under section 67H(1)(a) of the act, sensitive material is taken to include the audiovisual record or the transcript of any such record of the interview of a witness. Currently, section 67H(3)(b) only refers to a victim of a sexual offence and does not include an alleged victim of an offence. As a result, there is a risk that the prerecorded interview of an alleged victim of a sexual offence may not be considered to be sensitive material for the purposes of the act.

This would mean that the safeguards designed to protect the highly sensitive interviews of young children or persons with a disability may not apply until after the offence has been found proven. This is clearly contrary to the intent of the legislation to protect the evidence of vulnerable witnesses. The bill amends section 67H(3) so that the audiovisual record or transcript of interview of an alleged victim of a sexual offence is taken to be sensitive material. A similar amendment is also made to section 29A of the Evidence Act to remove any doubt that the provision applies to a victim or an alleged victim of the offence.

Next, we have the Public Interest Disclosure Act 2018. Part 9 of the bill amends the Public Interest Disclosure Act 2018 at the request of the Independent Commissioner Against Corruption. It ensures that councils are subject to the same obligations as public sector agencies under section 12 of the act. Section 12 of the act imposes an obligation upon the principal officer of a public sector agency or council to ensure the existence of designated responsible officers.

Section 12(4) further provides that a principal officer must prepare and maintain a document that sets out the procedures for a person who wishes to make an appropriate disclosure of public interest information to the agency and for officers and employees dealing with the disclosure. Currently, section 12(4) of the act only refers to the principal officer of a public sector agency, and not a council. This is inconsistent with parliament's intention, as evidenced in the explanation of clauses of the Public Interest Disclosure Bill 2018, that councils would also be subject to the requirement to prepare a document of the kind contemplated by section 12(4). The amendment therefore ensures that the obligations under section 12 that currently apply to public sector agencies will also apply to councils.

Next is the Sentencing Act 2017. Part 10 of the bill amends the Sentencing Act 2017 to remove the current $20,000 monetary limit on compensation that is able to be awarded by the Magistrates Court when convicting a person of an offence. Section 124 of the Sentencing Act currently enables the court to make an order requiring a defendant to pay compensation for an injury, loss or damage resulting from an offence of which the defendant has been found guilty. Section 124(6)(c) provides that the Magistrates Court may not award more than $20,000 in compensation unless a greater amount is prescribed by regulation.

Since 1 July 2017, there is no longer a limit on the amount of compensation that may be awarded by the magistrates of the South Australian Employment Tribunal when convicting a person of a criminal offence. The removal of the cap was an inadvertent consequence of the transfer of jurisdiction over industrial offences from the Magistrates Court to SAET. As a result, there is now an inconsistency between the powers of the magistrates of the Magistrates Court and those of SAET in respect of the amount of compensation that may be awarded. The bill repeals the monetary limit on compensation that may be awarded by the Magistrates Court to ensure consistency with the compensation that may be awarded by SAET.

Next is the Serious and Organised Crime (Unexplained Wealth) Act 2009. Part 11 of the bill amends the Serious and Organised Crime (Unexplained Wealth) Act 2009 to extend the operation of the act for a further 10 years. Section 36 of the act contains a sunset clause, which provides that the act will expire 10 years after the date of its commencement, on 29 August 2020. If the act is allowed to expire, South Australia will be the only jurisdiction without an unexplained wealth scheme in place to deter serious and organised criminals from bringing unexplained wealth into the jurisdiction. To ensure the continued operation of the scheme, the bill extends the operation of the act for a further 10 years, so that the act will not expire until 29 August 2030.

Part 12 of the bill makes a minor amendment to the definition of 'premises of a participating body' in the Sheriff's Act 1978, at the request of the Chief Justice,in order to better provide for the security of the courts. The amendment expands the boundaries of the court premises to include the precincts and immediate environs of those premises, adjacent car parks and footpaths, the laneways between or abutting the premises or place and the entry and exit points of court buildings.

Next is the Spent Convictions Act 2009. Part 13 of the bill makes a number of minor changes to the Spent Convictions Act 2009. Firstly, the bill repeals a number of uncommenced provisions of the Spent Convictions Actmoved by former member, the Hon. Kelly Vincent, which, if enacted, would allow for a young person (of or below the age of 25 years old), with an immediately spent conviction, to apply to a qualified magistrate for an order that a prescribed exclusion under clause 14 of schedule 1 of the act does not apply in relation to that conviction.

The Vincent amendments sought to acknowledge that there may be exceptional circumstances in which the immediately spent conviction of a young person should not have to be disclosed to an employer or potential employer. However, the amendments proposed by Ms Vincent are impractical and fail to recognise that the Spent Convictions Scheme is not specific to the particular offence committed by the relevant person but, rather, the context in which the offence relates to the workplace in which they are currently employed or seek to be employed.

A finding of guilt in relation to a minor drug offence may not be considered particularly concerning to an employer seeking to employ a person as a landscaper, but may be concerning to the potential employer of a pharmacist. If enacted, the amendments would likely lead to persons with immediately spent convictions seeking an exemption from a qualified magistrate as a matter of course.

The Hon. Kelly Vincent, when moving these amendments to the former government's bill, had foreshadowed the haste at which they were made and the potential need for them to be reviewed, particularly to consider whether such oversight was necessary. While both the former government and the Liberal opposition at the time supported the bill passing as amended, further consideration of the amendments show that they do not recognise the role of the Spent Convictions Scheme and utmost need to protect vulnerable people in South Australia. It is therefore the government's view that it is appropriate that these amendments should be repealed.

Secondly, the bill also amends the Spent Convictions Actto ensure that certain uncommenced provisions of the act made by the Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 and the Statutes Amendment (Attorney-General's Portfolio No 3) Act 2017are able to come into operation as intended.

Thirdly, a further consequential amendment to the Spent Convictions Act is made to correct a drafting error in the Statutes Amendment (Attorney-General's Portfolio No 3) Act2017to ensure that spent convictions for historical homosexual offending cannot be disclosed in any circumstances, unless required by regulation.

Next is the Summary Offences Act 1953. Part 14 of the bill amends the Summary Offences Act 1953to clarify that, for the purposes of a notice issued under section 21OD of the act, which has yet to commence, the notice applies to land within a designated area that is within 20 kilometres of a boundary of a relevant prescribed area.

Section 21OD of the act enables the minister to declare an area of land as a 'designated area' for the purposes of certain grog-running offences. Under section 21OD(3), a notice 'cannot include within a designated area land that is more than 20 kilometres from theboundary of a prescribed area'. A potential difficulty arises if the terms of section 21OD(3) are interpreted literally, as this may mean that, in order for land within a designated area to fall within the scope of the notice, nopart of the land can be more than 20 kilometres from anyboundary of a prescribed area.

In the event that a court applied a literal interpretation of section 21OD, there is a risk that a notice issued under the act could be deemed invalid. This would likely impact the ability to prosecute persons seeking to unlawfully supply and transport liquor in certain prescribed areas. The bill therefore clarifies that, where a notice is issued under section 21OD, the notice applies to anypart of the land within the designated area that is within 20 kilometres of a boundary of a relevant prescribed area.

Next is the Surveillance Devices Act 2016. Part 16 of the bill addresses an omission in the transitional provisions of the Surveillance Devices Act 2016 to ensure that material obtained contrary to section 4 of the former Listening and Surveillance Devices Act 2016continues to be an offence under the current act. Section 4 of the former act made it an offence to use a listening device to record conversations without the participant's knowledge except as permitted by the act. The Surveillance Devices Actcommenced operation on 18 December 2017, replacing the former Listening and Surveillance Devices Act. Since 18 December 2017, Part 2 of the Surveillance Devices Acthas regulated the lawful use of devices and recordings.

Where an unlawful recording is made contrary to part 2 of the Surveillance Devices Act, section 12 of the act prohibits the use of the material gained. Relevantly, section 12 makes it an offence for a person to knowingly use, communicate or publish information or material derived from the use of a surveillance device 'where obtained contrary to part 2 of the Act.' As a result, it appears that section 12 would not currently prevent a person from using information or material, which, at the time it was recorded, was gained contrary to the former act. To address this issue, the bill amends the Surveillance Devices Act so that material obtained contrary to section 4 of the former act continues to be an offence under the Surveillance Devices Act.

Next is Trustee Act 1936. Finally, part 17 of the bill amends the Trustee Act 1936 at the request of the Public Trustee to enable the Attorney-General to approve a trust variation scheme under section 69B of the act to alter the powers of the trustees to manage and administer a relevant charitable trust. Section 69B(3) of the Trustee Act currently enables the Attorney-General to approve a trust variation scheme to alter the purposes for which property may be applied in pursuance of a charitable trust, where the value of the trust property held in trust is low (i.e. below $300,000 or a limit prescribed by regulations).

This has created uncertainty as to whether the Attorney-General possess the power to approve a trust variation scheme which would allow capital to be applied where the trust instrument provides for the use of income only. In circumstances where there is uncertainty, section 69B(4) of the Trustee Act confers a discretion on the Attorney-General to refer an application to the Supreme Court. The Public Trustee advises that an application to the Supreme Court to vary the trust is often a costly and lengthy process.

The option for a trustee to apply to the Attorney-General for the approval of a scheme provides a more efficient and cost-effective method of varying the trust than offered by application or referral to the Supreme Court and is consistent with the approach adopted in New South Wales. The bill therefore amends section 69B of the Trustee Act to allow for the Attorney-General to approve a trust variation scheme altering the powers of the trustee of a relevant charitable trust. Where the application raises questions that should, in the Attorney-General's opinion, be decided by the court, the act preserves the ability for an application to be referred to the Supreme Court for appropriate determination.

This concludes the matters that are the subject of the portfolio bill. I commend the bill to members. I am happy to read the explanation of clauses, unless leave is granted for me to insert them. I seek leave to insert the explanation of clauses