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7 Jun 2016

Statutes Amendment (Attorney-General’s Portfolio) Bill

Adjourned debate on second reading.

(Continued from 26 May 2016.)

The Hon. A.L. McLACHLAN ( 15:37 :50 ): I rise to speak to the Statutes Amendment (Attorney-General’s Portfolio) Bill 2016. I speak on behalf of my Liberal colleagues and I indicate that the opposition is supporting the passage of the bill at the second reading and will be seeking to amend the same at the committee stage.

The bill makes a number of technical amendments to various acts falling within the Attorney-General’s portfolio, such as the Criminal Law (Forensic Procedures) Act, the Criminal Law Consolidation Act, the Summary Procedure Act, the Child Sex Offenders Registration Act, the Criminal Law (Sentencing) Act, the Summary Offences Act and the Civil Liability Act. I do not intend to set out in detail all of the amendments contained in the bill, as many of them are minor and of a technical nature. I will refer to specific amendments that are of significance and of interest to the opposition.

The bill makes several amendments to the Criminal Law (Forensic Procedures) Act 2007 to enable the police to efficiently collect evidential samples by way of oral rinsing and removing the delays associated in collecting gunshot residue from a suspect. This amendment is supported by the Liberal Party. The bill amends the Criminal Law (Forensic Procedures) Act 2007 to clarify and simplify the method by which the police take DNA samples from deceased persons. This amendment is supported by the Liberal Party.

The bill amends the Criminal Law (Forensics Procedures) (Blood Testing for Diseases) Amendment Bill to expand recent protections provided to emergency services workers to also apply to correctional services staff. This amendment will require offenders who bite or spit at prison officers to undertake blood tests to ascertain whether there has been a passing of infectious disease. This amendment is strongly supported by the Liberal Party. Honourable members of this chamber will recall that the Liberal Party moved amendments in this chamber to protect other emergency workers in a similar fashion, which this government ultimately, after much passing of time, acceded to. I again thank honourable members for their support in relation to those amendments.

This bill amends the Civil Liability Act to give full legal protection, in any civil proceedings, to apologies made by any party. This will mean that an apology cannot be used as a factor when determining fault or liability in a civil case. The Liberal Party supports this amendment. The bill amends the Juries Act to remove the maximum age for jurors, which is currently set at 70 years. This will allow people who are over the age of 70 to serve on jury duty, but allows anyone over 70 to opt out if they so wish. This amendment is supported by the Liberal Party.

Certain amendments have been filed by the Liberal opposition. The same amendments were moved in the other place, but were not supported by the government. We seek a more favourable consideration of these amendments by the honourable members of this chamber. The first amendment, which the opposition will put forward in committee, concerns the prosecution of children for child pornography offences.

This amendment will prevent the prosecution of a person under the age of 18 for child pornography offences without first having obtained written consent of the Attorney-General. This amendment follows from a recommendation of the Law Society of South Australia in contemplation of the Summary Offences (Filming and Sexting Offences) Amendment Bill, which will be considered by this chamber and is currently in our orders of business.

This bill introduces specific offences that target revenge pornography and lower-level sexting offences. Revenge pornography refers to the publication of explicit material depicting someone who has not consented to that publication and with the intent of causing them humiliation and embarrassment. The government asserts that instances of revenge porn are becoming more common in our society and often arise when a relationship breaks up and the injured party decides to send or publish intimate images to enact revenge.

The filming and sexting offences bill also legislates to ensure that young people who have sent intimate photos of themselves to their boyfriends or girlfriends are not charged with child pornography offences. In a submission on the filming and sexting offences bill, the Law Society suggested that an amendment to the Criminal Law Consolidation Act would help ensure that consensual, non-exploitative sexting between young people does not result in child pornography charges, a criminal record or being placed on the sex offenders register.

The society indicated in its submission that it was aware of cases in which young people who have sent intimate photographs of themselves to their partner have led to child pornography charges being laid against them. Information relating to these charges was then released by police in criminal history checks to potential employers. Although the proposed revisions contained in the Summary Offences (Filming and Sexting Offences) Bill will provide for a suitable prosecutorial avenue for these situations, it does not prohibit the police from charging a young person with a child pornography offence.

Given that the Criminal Law Consolidation Act 1935 is currently under consideration in the bill before us, the opposition believes that it is appropriate and fortuitous to move this amendment at this present time. It is argued in the circumstances where a sexting offence would be appropriate to protect children who have engaged in sexting from the significant and longstanding impact of being convicted of a child pornography offence and being placed on the sex offenders register. Of course, we acknowledge that there may be circumstances in which it may still be appropriate to proceed with more serious charges. The opposition is not seeking to remove that discretion, but rather that the Attorney-General should act as a gatekeeper to provide an additional safeguard to ensure that children are prosecuted at an appropriate level.

The second amendment, which the opposition will be pursuing in committee, is in relation to fixed term intervention orders. Intervention orders are commonly used for dealing with and preventing domestic violence. The Liberal opposition has moved an amendment to provide for fixed-term intervention orders. The genesis for this amendment was an annual report prepared by the Courts Administration Authority which recommended a time frame for intervention orders to be adopted.

The consequence of having indeterminate orders is that a large number have accumulated and clogged up the system. Many of these orders have become obsolete as the protected person may have moved or the person who is subject to the order may have moved interstate. Circumstances often change. There is often not any action by either the victim or the offender to go and seek relief from it, but it still sits in the system and becomes ineffective.

The opposition’s amendment seeks to provide a time period for a fixed period of five years. Pursuant to our amendment, the parties to the order would still be entitled to make an application to have the order revoked before the five-year period has ended. In moving this amendment, the opposition seeks to ensure that our system of dealing with domestic violence remains both practical and effective.

The third tranche of amendments is deleting part 7, part 12 and part 17 of the government’s amendments which will apply to the accessibility to court records. The opposition amendment seeks to remove the sections of the bill that seek to restrict access to court records and documents. The opposition is of the opinion that the current system of dealing with access to court records and materials is satisfactory and does not require amendment. The opposition draws attention to the fact that the existing South Australian act draws a distinction between material in the court file that is of a public nature and material in the court file that has not entered the public domain and, indeed, may never do so.

The current act recognises the need to protect more sensitive information by preventing this information from even being inspected by a member of the public unless permission has been sought and granted from the court. The opposition submits that the government’s attempts to add further complexities to this application process would place a substantial administrative burden on an already under-resourced court system. I do not doubt for one moment that the new process will substantially delay access to information in a timely manner.

We note and have had regard to the submission of Free TV who say that these barriers, as set out in the government’s amending bill, serve to hamper access to court documents by the media and in turn frustrate public interest reporting, undermine the principles of open justice and infringe upon the South Australian community’s right to know.

We have an open and transparent justice system with numerous processes and practices in place to protect sensitive information where it is desirable to do so in the interest of justice. The opposition acknowledges it is a delicate balance between the transparency of the criminal justice system and ensuring fairness to the accused. The judicial power to suppress certain information from a publication or hold closed court hearings, for example, are important tools commonly used in our justice system. It is the view of the opposition that it currently works effectively.

Our amendment seeks to simply keep in place a system that has worked efficiently and effectively for some time. The opposition trusts that the judiciary is capable of continuing to exercise its discretion on these issues in an appropriate manner without the need for the approach the government is trying to implement in the current bill. The opposition’s amendment simply seeks to maintain the current provisions that provide a suitable and appropriate balance between openness and transparency on the one hand and, where appropriate, restrict information where it has an impact on the fairness of the trial. With those words, I indicate the opposition’s support for the second reading of the bill.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) ( 15:49 :06 ): I thank all honourable members for their contributions thus far and I look forward to the further passage of the bill.

Bill read a second time.

See full session on Hansard

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