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

Second Reading

I rise to firstly thank the shadow minister and the member for Heysen for their contributions. I thank the member for Heysen for his interest in this law reform in relation to a number of areas but particularly spent convictions. I note the indication by the opposition that they will support the bill but have some questions.

I am not just the Attorney-General; I am also a woman and I can do two things at once. It came to my attention that the Leader of the Opposition was interested in a number of matters. A number of issues have been raised on the bill by the opposition in the briefings provided to them. I am going to outline to the parliament a number of aspects on which the opposition have already been briefed, so they may not be interested anymore in these matters, but I expect they will cover the matters that the leader wants to repeat again in the parliament, as is consistent with his modus operandi on these matters.

For the benefit of the parliament, I am going to outline some aspects of some of the reforms in the bill, in particular the judicial immunities, unexplained wealth, court premises and spent convictions aspects. I think the other matters speak for themselves. As I have indicated, we are happy to answer any further questions.

One of the issues that was raised on the judicial immunities, which of course provide protection to our judiciary, was whether examples could be given of the types of acts that are exercised in the performance of a judicial function, which would fall within the scope of the common law civil and criminal immunity for judicial officers. The position at common law is that the judicial officer enjoys immunity from civil and criminal liability for acts performed in the course of judicial functions.

The immunity of a judicial officer from civil and criminal liability, under the common law, exists despite any express statutory reference in legislation to the contrary and there is no distinction between judicial officers of a superior and inferior court, so this applies to Supreme Court judges and to the Magistrates Court alike. The purpose of the immunity is to preserve the integrity, independence and resolve of the judiciary to ensure that justice may be administered by judicial officers independently on the basis of their unbiased opinion.

An example of an act that may fall within the sphere of judicial immunity from civil liability is the tort of negligence, whereby a defendant may allege that a judicial officer failed to apply or indeed misapplied the law in the course of a hearing or deciding a relevant matter. At common law, judicial officers also enjoy immunity from criminal liability for acts performed in the course of judicial functions. However, the immunity does not attach to acts that are outside the performance of judicial functions, i.e. theft, assault, murder, fraud, etc. Most criminal acts committed by a judicial officer are likely to fall outside the scope of a judicial officer's official functions and that, therefore, would not attract immunity from criminal liability.

An example, however, of an act performed in the exercise of a judicial function, where the immunity from criminal liability may theoretically arise, is criminal defamation, whereby a defendant may seek to argue that they have been criminally defamed by a judicial officer as the result of a wrongful conviction or finding of guilt. In this example, the judicial immunity would extend to protect the judicial officer from any criminal liability arising out of the exercise of the judicial authority to determine the defendant's guilt and the publication of any material to that effect, i.e. their reasons for judgement.

Further clarification was also sought about which judicial officers currently enjoy statutory immunity from (a) both civil and criminal liability and (b) only civil liability. In respect of the former, legislation that currently confers statutory immunity from civil and criminal liability on judicial officers for acts performed in the course of judicial functions includes:

  • South Australian Civil and Administrative Tribunal Act 2013, section 79(1);
  • South Australian Employment Tribunal Act 2014, section 76(1);
  • Police Complaints and Discipline Act 2016, section 37(1);
  • Protective Security Act 2007, Part 5A—Protective Security Officers Disciplinary Tribunal, section 31E(1); and
  • Legal Practitioners Act 1981, section 81(2).

In respect of the latter—that is, in respect of only civil liability—legislation that currently confers statutory immunity in respect of that area on judicial officers for acts performed in the course of judicial functions includes:

  • Coroners Act 2003, section 33;
  • District Court Act 1991, section 36;
  • Environment, Resources and Development Court Act 1993, section 36;
  • Magistrates Court Act 1991, section 44;
  • Supreme Court Act 1935, section 110C; and
  • Youth Court Act 1993, section 26.

In respect of unexplained wealth as it relates to serious and organised crime in this bill, a query was made as to whether any other jurisdiction has an expiration clause built into its respective unexplained wealth legislation. I advise the parliament that South Australia is the only jurisdiction to have a sunset clause prescribed in its unexplained wealth legislation. The bill was introduced into parliament by the former Labor government with the expiry clause included.

In respect of the definition of 'premises of a participating body', which relates to court premises and the precinct being extended, clarification was sought on the meaning of 'precincts and immediate environs' in reference to the definition of a 'premises of a participating body', i.e. court premises, in relation to clause 15 of the bill. It is interesting that this was asked. The Chief Justice of the Supreme Court and I recently had a discussion, and I indicated that this matter was in the parliament for its current consideration. He was pleased that this was advancing, as it was a matter that had come at the express request of the Chief Justice.

The terminology that has been used was at his express request so, as advised during the briefing, the inclusion of the words 'precincts and immediate environs' has been adopted from the definition of 'court premises' as provided in section 2 of the Court Security Act 1980 (Victoria). The phrase 'precincts and immediate environs' is not expressly defined in our Sheriff's Act 1978. The phrase is therefore likely to be given its ordinary meaning by a court. The Macquarie Dictionary defines 'precinct' as including 'an enclosing boundary or limit' or 'a walled or otherwise bounded or limited space within which a building or place is situated' and 'environs' as the 'immediate neighbourhood; surrounding parts or districts'.

Members probably will not get much further assistance with the definition and interpretation of this clause from our liquor licensing laws, but members who have been here for a while will recall that we have quite a number of laws that relate to a precinct around a liquor licensed premises, which persons cannot enter if they are carrying weapons and the like. There are opportunities, for example, for SAPOL to search persons in those precincts.

However, this is a definition that has been provided by the Chief Justice, who requests that the terminology be expanded in this legislation. It has been mirrored from legislation that operates interstate, and we are confident not only that it is appropriate that the Chief Justice seek this for the protection of the staff and judiciary themselves working within the precinct but that he is eminently competent to be able to properly define that for the purposes of this legislation.

As to the Spent Convictions Act and the repeal of the Hon. Kelly Vincent's amendments, firstly I thank the member for Heysen for making a contribution in this regard because it is important that we understand exactly what is happening here and put this in the context that this is an issue that not only needs to be remedied but could have been remedied by the previous government, and they did not do so.

In respect of the information provided already on the amendments in clause 16 of the bill, which seek to repeal the amendments to the Spent Convictions Act 2009, that is, the SC Act moved by former member the Hon. Kelly Vincent MP, in 2017 parliament passed the Statutes Amendment (Attorney-General's Portfolio No 3) Act 2017, that is the 2017 portfolio act, which included amendments to the SC Act to clarify the rules relating to the disclosure and use of a conviction that is taken to be immediately spent under the SC Act.

The amendments to the SC Act have not yet commenced. The amendments remedy an anomaly within the SC Act, which had, in some cases, prevented employers from taking appropriate disciplinary action against employees following criminal offending, including where the offence was committed in the course of employment or where the employee poses a serious risk to other staff or the public.

Generally speaking, a spent conviction cannot be disclosed and is not a proper basis for refusing or revoking an appointment. In the case of a conviction that is immediately spent, the employer is effectively barred from taking disciplinary action and prevented from using their own knowledge of the offending to commence an investigation. By contrast, if no criminal charge is laid, or if the person prosecuted is ultimately found not guilty, the employer is able to carry out their own investigations and consider the need for disciplinary action.

To remedy the anomaly, the 2017 portfolio act facilitates the creation of a new exclusion that will be found in the Spent Convictions Regulations 2011, hereafter referred to as the regulations, that would only apply to immediately spent convictions and allow employers to take immediately spent convictions into account for employment-related purposes for a limited period of time. To date, these regulations have not yet been enacted.

The amendments in the 2017 portfolio act also affected a necessary restructure of the SC Act to facilitate this. During debate on the 2017 portfolio bill, the Hon. Kelly Vincent MP moved a number of amendments to the SC Act. The Vincent amendments sought to allow for a young person, (i.e. a 25 year old or under) with an immediately spent conviction to apply to a qualified magistrate for an order that a prescribed exclusion found in the draft regulations does not apply in relation to that conviction.

The purpose of the amendments was to recognise that there may be exceptional circumstances in which the immediately spent conviction of a young person should not be disclosed to an employer or potential employer. The amendments were supported by the former government and the opposition at the time, but it was foreshadowed that the amendments may need to be reviewed before coming into operation to ensure that they were appropriate in the circumstances.

From reading Hansard, it seems that, notably, neither party had considered this proposal yet supported it to enable the bill to pass before the parliament was prorogued. The current government has now had the opportunity to review the Vincent amendments and determined that it would be inappropriate to enact the Vincent amendments. The Vincent amendments fail to recognise that the question of whether it is appropriate for an immediately spent conviction to be disclosed for employment-related purposes 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.

In addition, it is noted that the Vincent amendments allow for any person aged 25 years or under to apply to a qualified magistrate for an exemption for any exclusion that is, or may be in future, prescribed by the regulations, not only the employment-related exclusion detailed above. In other words, this would allow for any person aged 25 years or under to apply to have their immediately spent convictions hidden from disclosure as a matter of course simply by virtue of their age and merely because of the fact that the exclusion is prescribed in the regulations.

This is clearly inconsistent with the original policy issues that the parliament agreed to with the passage of the 2017 portfolio act. Accordingly, we are seeking that the Vincent amendments be repealed as part of this bill. I will now provide two examples that compare the effect of the former government's amendments with the Vincent amendments.

Example 1: person A is a 23-year-old healthcare worker employed in a hospital. The person is charged with numerous offences in connection with the theft of fentanyl, a drug of dependence, from the hospital where they work. The person is found to have taken fentanyl on 31 occasions for their own use. The offences are found proved, but the person was ultimately found not guilty by reason of mental incompetence. As a result, the person receives an immediately spent conviction.

Under the current act, the employer is unable to act, despite the obvious risk that the person posed to patients at the hospital. Furthermore, the employer is prevented from notifying the Australian Health Practitioners Regulation Agency about the person's substance abuse or incapacity. Under the amendments made by the former government, including the regulations proposed at the time, person A's immediately spent conviction is liable to be disclosed to an employer or prospective employer for a prescribed period.

Under the Vincent amendments, because person A is under the age of 25, they would be eligible to make an application to a qualified magistrate for an order that a prescribed exclusion under clause 14 of schedule 1 of the SC Act does not apply in relation to their immediately spent conviction. In the event that the magistrate has determined to make the order, this would mean that the anomaly would continue to exist and person A's employer would be barred from taking any disciplinary action in relation to person A's offending.

Let's consider a second example. Person B is a 42-year-old worker in a children's residential care facility. The worker is charged with stealing surplus medication that was prescribed to one of the children at the facility and falsifying documents to cover the theft. The worker subsequently pleads guilty and the court declines to record a conviction. Consequently, under the current act, the worker's employer is unable to take any action against the worker.

Under the amendments made by the former government, including the regulations proposed at the time, person B's immediately spent conviction is liable to be disclosed to an employer or prospective employer for a prescribed period. But, under the Vincent amendments, person B is over the age of 25 and will therefore not be able to make an application to a qualified magistrate for an order that a prescribed exclusion under clause 14 of schedule 1 does not apply in relation to their offending.

I bring those matters to the attention of the parliament because they are important matters raised during the course of briefings and I hope illustrate the significance of why these particular aspects are being pursued in the government's Statutes Amendment (Attorney-General's Portfolio) (No 2) Bill. They are worthy of the support of the parliament to advance. I would hope, upon reflection by the shadow minister on matters he has previously raised, that he, too, will see the merit of supporting the bill and be satisfied that it is important that we give these matters favourable consideration. I otherwise thank members for their contributions.