Parties respond to Law Society’s key election edition

PARTIES, INDEPENDENTS RESPOND TO SOCIETY’S KEY ELECTION ISSUES

On 5 November, The Law Society released its Key Election Issues submission, and asked political parties, as well as independents, to respond to the submission ahead of the State Election on 19 March.

Responses were received from the Liberal Party, Labor, The Greens, SA Best, and independent MPs Sam Duluk and Frances Bedford. The responses have been published in this special State Election edition of the Bulletin.

The full version of the Society’s Key Election submission is available on the Society’s website. A summary of the Society’s key asks are:

EMERGENCY RESPONSE

• A full review of the Emergency

Management Act, with a view to enacting legislation that specifically deals with responding to a pandemic and other prolonged emergency situations.

ACCESS TO JUSTICE

• Increased funding to the Legal

Services Commission. • Funding for legal representation for people subject to guardianship, medical treatment and residence orders who appear in the SACAT in first instance matters. • Increased and sustained funding for the Legal Services Commission

Women’s Safety Service, Women’s

Legal Service and other domestic violence support services. • Measures to ensure timely access to professional interpreters. • Publicly available assessments of legal need in SA, broken down into

State and Commonwealth matters, to inform the allocation of State legal assistance funding.

victims of serious invasions of privacy to seek compensation. • New laws that require government agencies to safely manage personal data that has been collected for the purpose of Covid management.

LEGISLATIVE TRANSPARENCY & ACCOUNTABILITY

• Establishment of a Scrutiny of Bills and Delegated Legislation Committee in SA Parliament. • A review of the Subordinate Legislation

Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. • Proper resourcing of Committees tasked with reviewing proposed legislation, including delegated legislation. • The implementation of a Parliamentary policy to ensure proper public consultation on all proposed legislation.

WHISTLEBLOWER PROTECTION

• A consultative review of the Public

Interest Disclosure Act 2018 (SA) in the wake of ICAC reforms to determine whether legislative amendment is necessary to return the Act’s original scope and operation.

YOUTH JUSTICE

• An increase in the age of criminal responsibility in South Australia from 10 to 14. • Securing the long-term future of the

Reunification Court by entrenching it in legislation. • Greater resources and legislative reform ensure all young people under long-term guardianship of the

State receive services and support to transition from care to independence.

COURT FUNDING

which court fees are determined and where the monies are allocated. • Lowering the overall cost of court trial and listing fees in the civil jurisdiction. • Elimination of court transcript fees. • Probate filing fees be set at a more equitable level. • Establishment of a building tribunal to resolve building disputes. • An increase in suitably qualified mediators within the court system.

FAIRER COMPENSATION

• An increase in compensation actually paid to victims of crime following a review into the current scheme. • Removal of victims of crime levies for young people. • A more transparent process for reviews of and changes to the workers’ compensation scheme. • The establishment of a process to ensure that any proposed changes to the Impairment Assessment

Guidelines be subject to Parliamentary

Review.

CRIMINAL JUSTICE REFORM

• A full review into the scope and operation of the Spent Convictions Act 2009 (SA) with a view to developing a

Bill to amend the Act. • Funding to increase the capacity of rehabilitation courses within prisons. • The establishment of a formal process to give the DPP carriage of Major Indictable Matters from commencement of a matter, and adequate resources to enable the DPP to conduct such matters.

FIDELITY FUND

• Implementation of financial measures to halt the decline in the Fidelity Fund which do not involve further increases (beyond inflation adjustments) in the annual cost of Practising Certificates.

SA LIBERAL PARTY

FROM:

Hon Rob Lucas MLC, Treasurer

The Marshall Liberal Government acknowledges the Law Society for their engagement over the past four years and appreciates the opportunity to comment on matters of interest and concern to their members.

Within the portfolio of the AttorneyGeneral, significant reform has taken place — including structural changes such as the establishment of South Australia’s Court of Appeal, stronger legislative and policy responses for domestic violence prevention, signing up to the National Redress Scheme and associated reforms with respect to limitations, changes to sentencing discounts, and — at times — controversial social reforms. Throughout, the Government has listened and engaged with the advice of the profession in the development and implementation of policy.

EMERGENCY RESPONSE

As COVID-19 moves from being a pandemic disease to being an endemic disease, the Government will consider how COVID and other such diseases in the future will be managed, including laws supporting the Government’s response. The Government will instigate a review of the Emergency Management Act 2004 to ensure we are best placed to manage any future emergencies. funds to core legal assistance services. On 1 July 2021, the Legal Services Commission (LSC) commenced the operation of the Disability Information and Legal Assistance (DILA) unit. The LSC receives funding of $150,000 per annum over three years from the AGD to deliver this service. This dedicated disability service is also available to those with mental and cognitive impairment and forms part of a broader Marshall Liberal Government policy to protect vulnerable South Australians and improve their access to justice.

In addition, the Government agreed to the final version of the Bilateral Schedule of National Legal Assistance Partnership 2020 — 2025, which will provide funding over 5 years for legal services that assist vulnerable South Australians. This includes an additional $37.741 million over that period to expand services for family law matters, domestic violence victim survivors, specific ATSILS programs, and further support for those with mental health conditions.

The Government has also significantly increased funding to the Aboriginal Legal Rights Movement (ALRM) to support programs delivering improved legal services to indigenous communities, including additional funding from the Federal Government during the COVID-19 pandemic to meet the anticipated increase in demand for services. The Federal Government has also provided additional funding for ALRM to operate a formal Custody Notification Service and we have put in place the necessary Regulations.

From 30 June 2021, the Government has committed $933,275 over four years for an Aboriginal Justice Advocacy Service. This service intends to address the legal needs of Aboriginal communities through policies that reduce incarceration rates, support rehabilitation and diversionary programs and the implementation of recommendations from the Royal Commission into Aboriginal Deaths in Custody.

Notably, the Premier also introduced legislation to enshrine an Aboriginal Voice to the Parliament.

The Government has also increased funding for support services for domestic violence victim survivors through initiatives such as hotlines, counselling, and assistance through the court process. We have also recognised the long-term impacts of abuse and have offered financial assistance to help victim survivors secure long-term accommodation.

The Government committed $200,000 through the SPACE program to support early intervention, $1.66 million over 4 years to the 24/7 Domestic Violence Crisis line, $954,000 over three years to Yarrow Place for free counselling for victims of sexual violence, an additional $2 million for the establishment of the Women’s Domestic Violence Court Assistance Service, $1.86 million for the Stop It At The Start campaign, and removed the fees associated with domestic violence intervention order applications. These initiatives are just a snapshot of the measures this Government has put in place to complement our legislative response to prevent domestic violence. We will continue to commit additional funding where necessary.

The Law Society has recommended funding legal representation for first instance matters before SACAT in respect of guardianship matters. This matter has already been addressed with the establishment of a dedicated disability legal service at the Legal Services Commission as discussed above, which commenced operation on 1 July 2021.

PRIVACY PROTECTIONS

The Law Society rightly identifies privacy protections as a matter of importance, and, to that end, the Government has drafted legislation.

The Government tabled the Civil Liability (Serious Invasions of Privacy) Bill

2021 in the House of Assembly on 23 September 2021. The Bill provides a broad cause of action for serious invasions of privacy and is open for public consultation.

Privacy concerns will also be addressed in a review of the Emergency Management Act 2004, particularly in respect of the recent use of QR codes to assist with contact tracing efforts for COVID-19. The deletion of QR code data is currently mandated by a Direction issued by the State Coordinator.

YOUTH JUSTICE

On 12 November 2021, at the Meeting of Attorneys-General, the Government was pleased to support the motion for State Attorneys-General to develop a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements.

The Government has already provided its support for diversion programs to reduce the number of young people in detention. These measures have already resulted in a reduction of young people aged 10 to 17 years of age detained at Kurlana Tapa of, on average, 45 young people in the 2017 June quarter to 22 in the 2021 June quarter (the most recently published data).

In addition, the Government is working with Indigenous communities via the Aboriginal Justice Advocacy Service to reduce Aboriginal detention rates. The Government will consider the use of such programs for all youth offenders.

Due to the success of the Reunification Court in practice, the Government will consider how else it could be supported, including by recognising it in legislation.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY

The Government notes the recent report of the Select Committee on the Effectiveness of the Current System of Parliamentary Committees, and agrees with its recommendations, including the establishment of a Scrutiny of Bills and Delegated Legislation Committee.

Consultation on proposed legislation is an integral part of lawmaking to ensure it best meets its objectives and has broad support. The Government thanks the Law Society for its active participation in these processes, and the Government will consider what further measures could be adopted to support formal consultation.

WHISTLEBLOWER PROTECTION

The Government is committed to keeping laws up to date and relevant. Following the recent passage of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021, the Government will review associated legislation and regulations to ensure consistency.

COURT FUNDING

The Government notes the Society’s requests and concerns in respect of the operational fees of the courts, and will consider these fees in the next Budget.

FAIRER COMPENSATION

The Government has significantly reduced the Victim of Crime Levy applying to young people under 18 years of age. From 1 July 2022, for expiated offences, the Victims of Crime Levy will reduce from $92 to $20 and from $245 to $40 for summary offences.

CRIMINAL JUSTICE REFORM

The Government supports a review of the Spent Convictions Act 2009.

The Government recently received the Barrett Review of the Major Indictable Reforms Offences, which made no recommendations for legislative, regulatory, or administrative action in light of administrative reforms the Director of Public Prosecutions has already undertaken that have the support of stakeholders. The Government will continue to monitor court timeframes.

FIDELITY FUND

The Government notes the Society’s acknowledgement of the previous Government’s failure to address the declining balance of the Fidelity Fund, measures taken by this Government to date, and the recent actuarial work commissioned by the Society. The Government looks forward to receiving recommendations from the Society beyond increasing the cost of practising certificate fees.

SA LABOR

FROM:

Hon Kyam Maher MLC, Shadow Attorney General

SA Labor has reviewed your submission and I take this opportunity to commend you on the positive and considered policy ideas you have suggested. These and other submission will undoubtedly influence our thinking if Labor forms the next State Government.

The coming election will be like no other in living memory – conducted in the shadow of the ongoing COVID-19 pandemic. South Australians will be looking to what the major parties say about the economic and health response to the pandemic and that will be a major focus of SA Labor.

Over the coming months, Labor will release our plan for the future of South Australia. Our policies on health, jobs, education and the environment will outline a clear path forward. Key law and justice focuses for Labor include community safety, victim support and the over representation of Aboriginal people in the legal system.

I will ensure that you are advised of any policy announcements that relate directly to the Law Society. In the meantime, if you would like details of our announced policies, they can be accessed at www.petermalinauskas.com. au/news/policies.

SA BEST

LEFT: Hon Connie

Bonaros MLC &

RIGHT: Hon Frank

Pangallo MLC

EMERGENCY RESPONSE

A full review of the Emergency Management Act 2004, with a view to enacting legislation that specifically deals with responding to pandemics and other prolonged emergency situations.

Strongly Supported

This is very timely given the COVID-19 pandemic and possible future extreme or crisis events.

It is important South Australians are clear on when an emergency is declared and the scope and extent of the powers that exist within any legislation.

SA-BEST agrees with the LSSA that the Emergency Management Act 2004 was only ever intended for bushfires, cyclones and or other similar catastrophic events like earthquakes - not an international pandemic like the COVID-19 outbreak!

At the outset, SA-BEST supports in principle the notion of declarations that place decision making powers in the hands of an impartial, apolitical third party, based on expert advice.

As the LSSA would be aware, in March 2020 as a result of the global COVID-19 pandemic, the South Australian Parliament passed the COVID-19 Emergency Response Act 2020 (‘the Act’) which made various temporary modifications to the Emergency Management Act 2004, the South Australian Public Health Act 2001 and the Payroll Tax Act 2009.

The temporary modifications - or emergency measures which were accompanied by regulations - were aimed at dealing specifically with the current pandemic and, at the insistence of the crossbench and Opposition, were subject to regular review by the Parliament.

The Act has been amended from time to time with some provisions ceasing to operate as no longer required. The last of those powers ceased to have effect in December 2021.

Prior to their expiration, the Government indicated it would consider and introduce legislation aimed specifically at dealing with pandemics and the current COVID-19 pandemic. This did not eventuate.

It is worth noting at the time the changes were introduced, the Social Development Committee was in the process of undertaking a statutory review into the South Australian Public Health Act 2001. Given the pandemic was still in its infancy at the time, the Committee resolved not to hear evidence on the amendments.

However, the final report of the Committee did recommend all changes associated with the COVID-19 pandemic be considered for review by the Social Development Committee.

SA-BEST strongly supports this next step although it considers the review may be required prior to the expiration of the current state of emergency declaration.

It is clear the Emergency Management Act 2004 was never intended for longterm pandemics.

It is our understanding the Government has taken the view the existing legislation is sufficient to rely on throughout the COVID-19 pandemic, and to date, this has not been challenged in any meaningful way.

Notwithstanding either of these two factors, SA-BEST maintains there is a very clear need for separate dedicated legislation to deal with pandemics particularly when they are protracted in nature.

SA-BEST is particularly focused on there being sufficient transparency, accountability, oversight and review mechanisms incorporated in any future legislation.

ACCESS TO JUSTICE

More funding to LSC to a level that enables the Commission to fund legal aid to all those below or at the poverty line.

Strongly supported

Funding for legal representation for people subject to guardianship, medical treatment and residence orders, who appear at SACAT in 1st instance matters.

Strongly supported

Increased and sustained funding for LSC, Women’s Safety Service, Women’s Legal Service, and other service providers that support survivors of domestic violence to understand and safely access legal processes and tools relating to domestic violence.

Strongly supported

Measures to ensure timely access to professional interpreters for applicants, protected persons and defendants from non-English speaking backgrounds. Strongly supported - especially for Aboriginal and Torres Strait languages, and languages of disadvantaged, oppressed, minority and newly arrived migrant groups.

Publicly available assessments of legal need in South Australia, broken down into State and Commonwealth matters, to inform the a/location of State funding to the LSC, Community Legal Centres and ALRM. Strongly supported. Public funding of all provided legal services should be publicly available and disclosed.

PRIVACY PROTECTIONS

The introduction of laws to allow victims of serious invasions of privacy to seek compensation.

Strongly supported

New laws that require Government agencies to safely manage personal data that has been collected for the purpose of Covid management, including deleting contact tracing data after 28 days.

Strongly supported

As a general comment, SA-BEST wants the State Government to substantially improve and safely manage all personal data security, including for the purpose of COVID-19 management. Recent data breaches of the personnel records of over 80,000 State Public Servants illustrated the need to vastly improve data security across the board.

SA-BEST strongly supports deleting contact tracing data after 28 days, including there being very strong laws about sharing, storing, using and destroying backups of data for COVID-19 tracing and other purposes. There should be no doubt the data can only be used by relevant agencies and strictly for the purposes of COVID-19 management.

YOUTH JUSTICE

An increase in the age of criminal responsibility in SA from 10 to 14 years.

In principle support

Increasing the age of criminal responsibility to 14 years is consistent with the position of the United Nations Committee on the Rights of the Child.

The age of criminal responsibility is meant to reflect the age at which a child is able to understand their actions are wrong and they may face criminal charges as a result of such actions as well as the consequences of those actions.

It is universally acknowledged children aged 10 or even 12 or 13 simply do not possess that cognitive function. This is evidenced by the fact that like many other parts of the world, Australia does not allow children in these age groups to vote, gain access to a motor vehicle licence, smoke or consume alcohol, among other activities.

In Australia, Aboriginal and Torres Strait Islander children aged between 10 and 14 years make up almost two thirds of children in that age group in juvenile detention. There is no question this issue impacts our most disadvantaged and vulnerable community members more than any other group. It also serves to perpetuate generational cycles of disadvantage.

It is important to note there are considerable developments nationally to increase the age of criminal responsibility to 12 years.

At a recent COAG meeting, state Attorneys-General supported development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements .

The Northern Territory committed to raising the age of criminal responsibility to 12 based on the recommendations of the Royal Commission into the Protection and Detention of Children in the NT in 2017 but has yet to act on that commitment.

The Australian Capital Territory has signalled its intention to introduce legislation to raise the age to 14 this year following a Review of the Service System and Implementation Requirements for Raising the Minimum Age of Criminal Responsibility in the ACT in 2021.

In principle, SA-BEST supports the adoption of a nationally consistent approach where appropriate, based on all available evidence. In this instance, we note the national approach falls well short of the model approach which has the overwhelming support of industry experts and stakeholder groups.

SA-BEST calls on the State Government to undertake comprehensive consultations and to work collaboratively with stakeholders - including service providers and staff in corrections settings, experts and researchers - on this issue to develop nationally consistent legislation consistent with the model approach.

We are being constantly made aware of grave concerns of parents, family, child protection workers, counsellors, youth training officers, courts, lawyers, the Legal Guardian and the Commissioners for Children and Young People about the failures of the juvenile justice system.

There must be a focus away from detention, and a renewed focus on providing more appropriate and more readily available support services and programs (including voluntary and mandatory drug rehabilitation programs), diversionary programs, educational programs and living resources for children and young people who are at risk of, or who have engaged with, the criminal justice system.

There needs to be a genuine and appropriately resourced focus on breaking cycles and generations of disadvantage. Increasing the age of criminal responsibility does not equate to a “soft on crime” attitude towards minors who offend.

As highlighted above, it does however perpetuate those cycles of disadvantage that are almost guaranteed to see our most disadvantaged and vulnerable community members stay in the criminal justice system well beyond their teens, if not their entire adulthood. It perpetuates social disadvantage, poverty and physical and mental health problems.

SA-BEST is of the strong view the South Australian Parliament cannot defer consideration of this issue indefinitely and notes some jurisdictions are already taking proactive steps to implement their own legislation.

As stated at the outset, national consistency is the preferred option. In the absence of national consistency and consensus, SA-BEST will continue to support legislation increasing the age of criminal responsibility at a state level consistent with the model approach.

Securing the long-term future of the Reunification Court by entrenching it in legislation.

Strongly supported

SA-BEST’s policies around child protection and reunification are premised on the best interests of the child and the paramountcy principle.

In many instances, the removal of a child from their family is the only suitable option in the best interests of the child. That said, removal - especially permanent removal - should be deemed a choice of last resort.

As of October 2021, there were 4646 children in state care - an increase of 300 compared to the previous year. The year before had similar results. There has also been an increase in applications for 18year orders particularly as they relate to indigenous children.

It is little surprise then that the Commissioner for Aboriginal Children and Young People has signalled her intent to conduct an inquiry into these growing numbers.

SA-BEST is increasingly concerned at the growing number of children in state care, the increase in 18-year order applications and the complete lack of “wrap around” services and support services provided to vulnerable families, particularly indigenous families.

SA-BEST supports a stronger focus on family reunification where appropriate and also calls for family reunification models to be further developed (particularly for indigenous families) and implemented in SA as part of a “root and branch” reform of the child protection system in South Australia.

SA-BEST is committed to working closely with our indigenous communities to ensure their concerns around the need for reunification and the importance of family and culture are understood and are central to any such root and branch reviews.

SA-BEST also remains committed to prescribing in legislation the Aboriginal placement principles and ensuring they are adhered to.

SA-BEST is opposed to the Liberal Government’s policy of making the adoption process easier when it comes to children in state care, as proposed in its most recent legislative agenda, especially given the recent spike and increasing numbers of applications for 18-year orders.

Greater resources to ensure all young people under long term guardianship of the State receive services and support to transitions from care to independence.

Strongly supported

Such resources should include educational support for post-secondary fees and costs, housing and counselling for children who have often been deprived of life skills that might have been attained but for their removal from their families and therefore require higher levels of supports than their peers.

Legislative reform to enable the Minister for Child Protection to provide reliable support for young people in State care until 25 years.

Strongly supported

As above, including educational support for post-secondary fees and costs, housing and counselling, but also tailored supports according to need, and provided when and where needed.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY

Establishment of a Scrutiny of Bills and Delegated Legislation Committee in the SA Parliament.

Strongly supported

SA-BEST notes there is a report by the South Australian Parliament’s Effectiveness of the Current System of Parliamentary Committees Committee - initiated and chaired by Connie Bonaros - that is highly relevant to this issue.

The report produced in August 2021 had the unanimous and bipartisan support of all Members of Parliament.

South Australia is the only jurisdiction that doesn’t have a scrutiny of bills committee.

The Inquiry highlighted the need for a new approach to parliamentary committees to ensure an effective and more effi cient accountability and scrutiny mechanism. The consultation and comparison with other jurisdictions highlighted a lack of committee scrutiny over Bills to assist the Parliament in its debate and ultimate legislative outcomes for the people of South Australia.

SA is currently the only bicameral Australian mainland Parliament without a Scrutiny of Bills/legislation committee, with academics, stakeholders and members of the community seeking the Parliament to provide more opportunities for engagement with the lawmakers of this State.

The State Parliament’s approach to scrutinising the Budget Estimates process was also compared with the other jurisdictions , with the Committee noting it as the only bicameral jurisdiction not involving its Upper House members in this scrutiny process.

The Committee considered it prudent to bring SA in line with accepted practices seen in all other jurisdictions . This extended to appropriate staffi ng and resourcing practices and processes.

Currently, the only Committee with a scrutiny role is the Legislative Review Committee. South Australia is well overdue for reform in this area.

The fi ndings and recommendations of the report comprehensively canvassed these important issues. Please fi nd a copy attached to this document.

Importantly , a Bill is currently under development which seeks to overhaul South Australia’s committee structure in line with other jurisdictions , including the Federal Parliament.

These reforms include the establishment of a Scrutiny of Bills and Delegated Legislation Committee as well as changes to the existing Legislative Review Committee and a number of other important changes outlined in the report.

Connie has served on the Legislative Review Committee since becoming a Member of Parliament.

In 2021, that Committee undertook a review into its functions and workload. Connie submitted a Minority Report highlighting a number of concerns around the Committee’s processes and core functions. Among those concerns was the fact that delegated legislative instruments have become the primary form of lawmaking

In 2020 alone, a total of some 514 pieces of legislation were enacted. Of those, 45 enactments were primary legislation enacted by the Parliament while the remaining 469 instruments were delegated instruments reviewed by the Committee.

Putting aside questions of the overreliance on delegated legislation in our lawmaking, this raises serious issues around appropriate levels of transparency and scrutiny - the core functions of the Committee.

The ever-increasing volume and the complexity of work of the Committee means there is not adequate time assigned to properly review the subordinate legislation before the Committee, let alone undertake its new role of inquiring into petitions, adequately and effectively.

The time allocated for the Committee is also not commensurate with the level of work and scrutiny that is required.

The inherent risk in the Committee’s current practice and time restraints is that despite its best intentions, issues of signifi cance could easily be overlooked.

From an accountability perspective, this simply is not acceptable. Similarly, working under the current time and resourcing constraints is not feasible for staff and Members alike.

Connie highlighted the makeup of the Committee does not promote a multi-partisan approach to the review and scrutiny work of the Committee. Indeed, it has become common practice for successive Chairs of the Committee to exercise their casting vote to wave through legislative instruments that clearly don’t meet the scrutiny expectations of at least half of the Committee Members.

The lack of appropriate reporting on the work of the Committee means other Members of Parliament are not alerted to these contentious votes.

Even more concerning, over the past 20 odd years, successive State Governments of all persuasions have

bypassed regulations by using by-laws, codes, and guidelines which involve no oversight other than governmentcontrolled Committee processes.

In terms of transparency and accountability, Connie’s Minority Report highlighted the Committee requires government agencies to provide a report accompanying the subordinate legislation reviewed by the Committee.

The departments and agencies who report to the Committee are meant to demonstrate they have considered the scrutiny requirements . One of the greatest abuses in reports is the absence of information relating to any consultation the department and agencies have undertaken in drafting those regulations.

The Committee’s difficulty in obtaining information relevant to proposed subordinate legislation can often prevent proper scrutiny by the Committee, thereby creating additional work and ultimately making the Committee’s deliberations partisan in nature.

These matters were also canvassed extensively by expert witnesses appearing before the subsequent inquiry undertaken by the Select Committee into the Effectiveness of the Current System of Parliamentary Committees, instigated by SA-BEST.

The draft legislation to be considered by the next Parliament is aimed directly with these very important issues.

See also, above response to the next three dot points.

Review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. Strongly supported (See above response).

Proper resourcing of committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these committees can undertake meaningful and robust reviews of proposed legislation.

Strongly supported

This issue was canvassed extensively in the final report of the Effectiveness of the Current System of Parliamentary Committees Committee. Those recommendations that do not require legislative change are already under consideration. Changes to the resourcing of committees, in line with the findings and recommendations of the Committee, will also form part of the Bill currently under development.

SA-BEST has been an outspoken advocate to improve transparency and accountability of government. We have repeatedly pointed out almost 90% of all laws passed in SA are done via regulation, and that this provides for very limited oversight.

Implementation of a parliamentary policy to ensure proper public consultation within an agreed framework in relation to timeframes and processes of consultation.

Strongly supported

Successive governments have long used ‘Cabinet in confidence’ as a means of preventing access to submissions and consultation processes which go to the heart of important legislative reform.

The same mechanism has also been used to prevent committees from accessing submissions and feedback pertinent to their consideration of subordinate legislation, amongst other things.

During Parliamentary debates, it has become common practice for MPs to seek out the information they require from stakeholders who have contributed to public consultation processes, via their own requests because they are unable to access it via the government, on the basis that it is confidential.

This is neither feasible nor practical and often results both in unnecessary delays and unsound outcomes. The implementation of any policy needs to ensure all of these issues are appropriately addressed.

See also, above responses.

WHISTLEBLOWER PROTECTION

A review of the Public Interest Disclosure Act 2018, in the wake of ICAC reform with a view to determining whether legislative amendment is necessary to return the Act’s scope and vision.

SA-BEST notes there is a review mechanism under the ICAC amendments recently passed but agrees a full review of the Public Interest Disclosure Act 2018 would be worthwhile, after some three years of operation of the Act.

SA-BEST notes the need to also review protections for journalists and public servants under whistleblower legislation.

Full and proper disclosure and consultation with the community as to any permanent changes to the Public Interest Disclosure Act 2018 and the consequences for those in the public sector.

Strongly Supported

COURT FUNDING

A policy that requires the Government to publicly disclose the process by which Court fees are determined and where the monies are allocated.

Strongly supported

In addition, SA-BEST calls for a review of funding provided to all courts with a particular focus on better resourcing the Coroner’s Court jurisdiction.

Lowering the overall cost of court trial and listing fees in the civil jurisdiction.

Strongly supported

A review of fees in South Australia by comparison with other jurisdictions - including the Federal Court system - would also be most worthwhile.

Elimination of court transcript fees.

Strongly supported - especially where available and able to be provided electronically.

Probate filing fees to be set at a more equitable level, by either setting a flat fee or setting fees according to the net value of an asset.

Strongly supported

Establishment of a building tribunal to resolve building disputes.

Strongly supported

SA-BEST’s predecessors were instrumental in the passage of security of payment legislation in this jurisdiction. Since then, SA-BEST has continued to look for improvements in resolution mechanisms and consulted with the equivalent bodies in other jurisdictions - including Queensland - in response to high levels of complaints and disputes regarding building works. A new tribunal or body must be independent of industry and government, with its own legislation, staffing, resourcing, compliance and enforcement.

An increase in funding for suitably qualified mediators within the court system.

Strongly supported

FAIRER COMPENSATION

scheme, including its formula for determining compensation.

Strongly supported

SA-BEST believes there should be a full review of the Victims of Crime Act 2001 including the levies and eligibility criteria for victims of crime to streamline and tailor payments that better reflect the level of harm caused to victims of crime.

SA-BEST supports, in principle, the establishment of an independent tribunal to a consideration of any review.

A tribunal would consider the circumstances of each victim’s claims in detail, being able to call on expert advice or assistance as needed .

Although maximum payments to victims have increased, SA-BEST is aware of many cases where these have been inadequate or unfair.

There should also be a full review of the administration and allocation of criminal assets confiscation funds.

SA-BEST believes proceeds of crime funds should be directed to rehabilitation services and education programs, as per the original legislation and subsequent agreements. These funds should not be treated as general revenue or to prop up funding of the state’s judicial system.

Removal of victims of crime levies for young people.

Strongly supported

SA-BEST strongly supports waiving fees for Intervention Orders but notes the need to ensure the focus of any relevant legislation is on victims and does not create a perverse outcome whereby perpetrators can more easily apply for variations to current Intervention Orders to further traumatise and control their victims.

A more transparent process for review of and changes to the workers compensation scheme.

Strongly supported

SA-BEST strongly supports the reversal of the most recent government decision which enables the Minister for Industrial Relations to change threshold guidelines well above what was ever anticipated, and without any Parliamentary oversight.

The establishment of a process to ensure any proposed changes to the Impairment Assessment Guidelines be subject to Parliamentary review.

Strongly supported.

SA-BEST believes these provisions need to be legislated and not just guidelines that can be easily changed without scrutiny.

See also above, comment on the Legislative Review Committee’s report.

CRIMINAL JUSTICE REFORM

A full review involving community and stakeholder consultation as to the scope and operation of the Spent Convictions Act 2009 with a view to developing a Bill to amend the Act.

Strongly supported

Funding to increase the capacity of rehabilitation courses within prisons to ensure prisoners have the opportunity to participate in relevant courses to rehabilitate and be considered for parole.

Strongly supported

See above, SA-BEST calls for proceeds of asset confiscation to be directed to this area as originally agreed.

The establishment of a formal process to give the Office of the Director of Public Prosecutions carriage of Major lndictable matters from commencement of a matter and adequate resources to enable the DPP to conduct such matters.

Strongly supported

The Crime and Public Integrity Policy Committee has repeatedly heard of difficulties and failed prosecutions, arising through lack of clarity regarding which agency has responsibility for what matters.

SA-BEST notes this lack of clear responsibility and accountability has severely disadvantaged victims.

FIDELITY FUND

Implementation of financial measures to halt the decline in the Fidelity Fund, which do not involve further increases (beyond inflation adjustments) in the annual cost of practising certificates.

Strongly supported. Other Justice/Legal Profession reforms proposed and or supported by SA-BEST:

SA-BEST will be calling for a full review and reform of the SA Parole Board, including the Correctional Services Act 1982 provisions covering the Parole Board, and other related Acts relevant to the eligibility, granting and declining of parole for prisoners. It considers the South Australian Law Reform Institute (SALRI) is best placed to undertake a review and recommend legislative change.

SA-BEST also advocates for a review of the operation and conduct of the Legal Practitioners Conduct Commission.

In 2020, SA-BEST successfully moved a motion calling for an independent review into harassment in the legal profession. The report of the Review of Harassment in the South Australian Legal Profession was finalised in April 2021. It made 16 recommendations aimed at supporting the development of safe and inclusive workplaces in the legal profession.

SA-BEST will continue to call for the full implementation of the recommendations made by the Equal Opportunity Commissioner as part of that review.

SA-BEST strongly supports the Commissioner’s recommendations requiring legislative change and calls on the Law Society and the judiciary to ensure all such legislative changes are supported and endorsed by those bodies.

It also calls on the Law Society and the judiciary to continue to work towards implementing such other changes as recommended by the Commissioner (that do not require legislative change) in a timely manner.

THE GREENS

RESPONSE FROM:

Hon Robert Simms MLC

EMERGENCY MANAGEMENT ACT

Law Society Key Ask: A full review of the Emergency Management Act 2004, with a view to enacting legislation that specifically deals with responding to pandemics and other prolonged emergency situations. The Greens: Agree. South Australia has faced unprecedented challenges over the COVID-19 pandemic. Future emergencies are not unimaginable, be they resulting from climate change, future pandemics or other as of yet unknown causes. While our band-aid solution has been reasonably

adequate thus far, it has highlighted the need for future proofing. We support a full review of the existing legislation, particularly with a view to having stronger oversight and accountability mechanisms.

ACCESS TO JUSTICE

Law Society Key Asks:

• Increased funding to the Legal Services

Commission to a level that, at the very least, enables the Commission to fund legal aid matters for all those below or on the poverty line. • Funding to ensure families in care and protection matters have access to legal representation. • Funding for the provision of legal representation for people subject to guardianship, medical treatment and residence orders who appear in the

SACAT in first instance matters. • Increased and sustained funding for the Legal Services Commission

Women’s Safety Service, Women’s

Legal Service and other service providers that support survivors of domestic violence to understand and safely access legal processes and tools relating to domestic violence. • Measures to ensure timely access to professional interpreters for applicants, protected persons and defendants from non- English speaking backgrounds. • Publicly available assessments of legal need in SA, broken down into

State and Commonwealth matters, to inform the allocation of State funding to the Legal Services Commission,

Community Legal Centres, and the

Aboriginal Legal Rights Movement. The Greens: Agree. Access to justice is pivotal in the operation of an equal and just society. The continued gutting of legal aid has served to disadvantage the most vulnerable members of our society. We support an increase of the budget of these legal services to adequately assist people in need.

PRIVACY PROTECTIONS

victims of serious invasions of privacy to seek compensation. • New laws that require government agencies to safely manage personal data that has been collected for the purpose of Covid management, including deleting contract tracing data after 28 days. The Greens: Agree. The unprecedented data collection that has occurred as a result of the COVID-19 Pandemic must be addressed. We must legislate to protect people from the mismanagement of this data. Contact tracing data can have no real value to COVID management efforts after 28 days.

We also support the proposal to allow for a right to seek compensation over any serious harm suffered from an invasion of privacy.

YOUTH JUSTICE

Law Society Key Asks:

• An increase in the age of criminal responsibility in South Australia from 10 to 14. • Securing the long-term future of the

Reunification Court by entrenching it in legislation. • Greater resources to ensure all young people under long-term guardianship of the State receive services and support to transition from care to independence. • Legislative reform to enable the

Minister for Child Protection to provide reliable support for young people who have been in State care until they reach 25 years of age. The Greens: Agree. It is an international disgrace that we allow for children as young as 10 to be incarcerated. We are wholeheartedly in favour of raising the age of criminal consent to 14. The Greens have tabled legislation for this very purpose, and we are committed to reintroducing it in the new Parliament. Providing proper support to young people who have been in state care, and supporting their transition to independence is also essential to the development and health of the young people in these situations. The Greens absolutely support extending support for young people to age 25. Living in state care can already be a traumatic experience, especially if a child is moved to various homes within their time in the system. But by extending the support to young people until they turn 25 (Greens policy is to extend financial support until at least 21), children who have faced difficult times already in their short lives can have the chance to stay at home and receive support to pursue tertiary study, be guided by people who can help them see their way through those formative years of adulthood and leave to live independently when they are ready.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY

Law Society Key Asks:

• Establishment of a Scrutiny of Bills and Delegated Legislation Committee in SA Parliament. • A review of the Subordinate

Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA. • Proper resourcing of Committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these Committees can undertake meaningful and robust reviews proposed legislation. • The implementation of a

Parliamentary policy to ensure proper public consultation on all proposed legislation that also establishes an agreed framework in relation to timeframes and processes of consultation.

The Greens: Agree. Legislative Review is an important tool in ensuring our laws adhere to the principles of justice and fairness that our democracy is founded on, and requires proper funding. We broadly support the recommendations made by the LSSA with regards to legislative transparency and accountability.

The Greens have participated in the Select Committee inquiry into the effectiveness of Committees of SA Parliament, and fully support its recommendations – including the establishment of a Scrutiny of Bills and

Delegated Legislation Committee. The recommendations of the committee further outline changes to ensure proper resourcing for Committees, which we support.

WHISTLEBLOWER PROTECTION

Law Society Key Asks:

• A review of the Public Interest

Disclosure Act 2018 in the wake of ICAC reforms with a view to determining whether legislative amendment is necessary to return the

Act’s original scope and operation. • Full and proper disclosure and consultation with the community as to any permanent changes to the Public

Interest Disclosure Act 2018 and their consequences for those in the public sector.

The Greens: Agree. Acts of corruption and maladministration should not receive unintended protection and we fully support a review of the Public Interest Disclosure Act. We have always been proponents of proper public consultation, and would support consultation and disclosure with the community to any further changes to the act.

COURT FUNDING

Law Society Key Asks:

• A policy that requires the Government to publicly disclose the process by which court fees are determined and where the monies are allocated. • Lowering the overall cost of court trial and listing fees in the civil jurisdiction. • Elimination of court transcript fees. • Probate filing fees be set at a more equitable level, by either setting a flat fee or setting fees according to the net value of an asset. • Establishment of a building tribunal to resolve building disputes. • An increase in funding for suitably qualified mediators within the court system. The Greens: Agree. Access to the state’s justice system should not be prohibitive, and there is much that could be done to ease the barriers to accessibility and timely justice. FAIRER COMPENSATION

Law Society Key Asks:

• An increase in compensation actually paid to victims of crime following a review into the current scheme, including its formula for determining compensation. • Removal of victims of crime levies for young people. • A more transparent process for reviews of and changes to the workers’ compensation scheme. • The establishment of a process to ensure that any proposed changes to the Impairment Assessment Guidelines be subject to Parliamentary Review The Greens: Agree. We support a review into the existing workers’ compensation scheme. With recent decisions made in the courts that will alter the law surrounding workers’ compensation, it is important that the existing scheme is fair and equitable.

We support an increase to the Victims of Crime compensation. There should be no reason to increase levies without a view to increasing payments. We also strongly agree with the removal of victims of crime levies for young people.

CRIMINAL JUSTICE REFORM

Law Society Key Asks:

• A full review involving community and stakeholder consultation as to the scope and operation of the Spent

Convictions Act 2009 with a view to developing a Bill to amend the Act. • Funding to increase the capacity of rehabilitation courses within prisons to ensure prisoners have the opportunity to take part in relevant courses to rehabilitate and be considered for parole. • The establishment of a formal process to give the Office of the Director of Public Prosecutions carriage of Major Indictable Matters from commencement of a matter, and adequate resources to enable the DPP to conduct such matters. system. With an existing focus on punitive rather than restorative justice, we cannot expect large rates of rehabilitation. This in turn will inevitably lead to reoffending and further societal fracture.

FIDELITY FUND

Law Society Key Asks

Implementation of financial measures to halt the decline in the Fidelity Fund which do not involve further increases (beyond inflation adjustments) in the annual cost of Practising Certificates.

The Greens: We agree a functioning, stable Fidelity Fund is necessary for the protection of South Australians. We would support measures to halt its decline and improve its viability, without unnecessary impact to legal profession.

INDEPENDENTS

Hon Frances Bedford MP, State Member for Florey

EMERGENCY RESPONSE

The COVID-19 pandemic in South Australia has raised many issues, restricted the lives of individuals and the processes implemented were not smooth or streamlined. Protocols and information have (and continue) to constantly change and many of my constituents have called the office for clarity and assistance. As you may be aware, I tried on multiple occasions to establish a COVID-19 Select Committee to investigate and find solutions to problems - from long wait times for testing and vaccinations, home quarantining and QR Code check-ins to better communication strategies among other things. Unfortunately, the motion failed in the House and with no further sitting days set, it is impossible to hold Government to account. I have also been

seeking another MP briefing (we have only ever had one!!) - again with no luck. It is important a review of the Emergency Management Act 2004 occurs to ensure the powers within the legislation can adequately and effectively respond to a pandemic or other emergency. It must also incorporate a review system to ensure better planning and practices are put in place for the future.

PROTECTION OF PRIVACY

This another key issue which has COVID-19 implications and has become more prominent during the pandemic. With increased use of technology for communication and the use of COVID-19 QR Code Check-in system and Home Quarantine Program, many people have become more aware of the use of their personal information, and who has access to it.

Legislation should be reviewed to ensure privacy laws are adequate and provide protections and avenues to seek compensation for an invasion of privacy. In light of the Auditor General’s COVIDSafe Check-In Review Report, legislation should ensure Government agencies are safely using, collecting, storing, and disposing of personal information in the required timeframe.

A particular concern of mine is identity theft and its implications, so any increased protection of privacy should provide ancillary benefit to individuals’ security.

ACCESS TO JUSTICE

Every individual - no matter their socio-economic status, legal issue, or ethnicity - should have representation. Justice is denied without it. The Legal Services Commission, Community Legal Centres (Northern Community Legal Centre in particular) and Women’s Legal Services provide much needed legal support to South Australians and deal with an increased volume of legal issues beyond the available State funding. Increased funding across all justice services is essential and would potentially fund legal aid matters for individuals living on or below the poverty line, victims of domestic or family violence, and individuals subject to guardianship matters. Research into the legal need of South Australians and Aboriginal people in particular, can ensure funding is supplied to reflect demand and a rationale for future funding. Professional interpreters for language translation and for interpreting the law and court appearances, should be provided in a timely manner to ensure individuals can fully understand the implications of their legal matter.

The Law Society’s support for legislation which seeks to criminalise domestic violence or coercive control and to ensure support avenues and services are available is commendable, and I concur must be “accompanied by a range of other measures directed to addressing domestic violence in the community”. As you would be aware, Parliament failed to pass legislation to enhance the legal processes around domestic violence before it rose in December. It is an important issue which is continually gaining public attention - imperative to drive cultural change. Sadly, the issue is not new rather one that needs continual comprehensive multi-faceted responses to ensure proper protections, processes and support mechanisms are in place.

COURT FUNDING

Court fees continue to rise beyond affordability for most people.

The Government needs to apply itself more rigorously to its duty to ensure timely access to justice which is at a fair and reasonable cost to the person. Individuals must pay set fees and daily fees on top of the added costs of pursuing a claim - these fees are not always clear and transparent. Most often cases before the Magistrates Court cost more than the amount in dispute. Any policy which involves implementation of a clearly defined fee structure would be supported as it can be more reflective of court costs for resources and planning for court staff, plaintiffs and defendants. I agree public disclosure of the process by which court fees are determined and a breakdown of where fees collected are invested would be useful. Your suggestions that further resources and funding for a Building Tribunal as part of SACAT and Alternative Dispute Resolution (such as Mediation) would definitely simplify and streamline court processes and help alleviate the backlog of cases entering the justice system.

CRIMINAL JUSTICE REFORM

Criminal Justice Reform is essential and has the potential to further streamline services reducing court backlog and reduce re-offending through rehabilitation. Procedural issues and other matters certainly seem to have resulted in the system not working effectively. Solutions including your suggestions of a formal process to give the Office of Director of Public Prosecutions carriage of Major Indictable Matters from commencement should be further investigated. A review of the Spent Convictions Act 2009 can increase the capacity for reform and rehabilitation courses within prisons, a must to ensure individuals are returned to the community as better and more productive members of society.

YOUTH JUSTICE

Firstly, the age of criminal responsibility in South Australia should be raised from 10 to 14 to limit the number of young children incarcerated and reduce the number of young people falling into the cycle of a lifetime of criminality. I have raised this matter several times during question time (see attached Hansard). Children in care need better services and, when necessary, representation and access to the justice system to ensure the best possible outcome is actioned as soon as possible. The Reunification Court has had great success since it commenced in January 2019 with reuniting 39% of children with their parents.

Unfortunately, this court is not entrenched in legislation and does not provide an avenue for the Youth Court or any other Court to adjourn matters to the Reunification Court. Major gaps in child protection and support for young people und er guardianship still exist. I am working with others to ensure child protection and the inquiry currently underway are major election issues. Young people approaching the age of 18 still require support both

financially (especially if studying) and mentally. Young people need to be provided with support and resources necessary for them to transition from guardianship to independence and remain free of the criminal justice system cycle.

As you would be aware, the Children and Young People (Safety) (Inquiry into Foster and Kinship Care) Amendment Bill 2021 passed both Houses of Parliament in the last week of sitting. I took carriage of this important bill in the Lower House and, with some reservations, am happy to see the Independent Inquiry into Foster and Kinship Care has begun on the 9/1/22. The Inquiry aims to uncover the issues children in care and their carers may have and ensure they are receiving the best services and support the State Government has to offer. I hope through the Inquiry, the voices of carers and children in care will be heard and actions can be taken to address and enhance the services available.

LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY

These pillars of the law-making process often present themselves through the Committees stage of the legislative process, where Members have the opportunity to ask questions on each clause of a bill to ensure the true intent and will of the Parliament is unambiguous.

However, as you mentioned in your document, 86% of new laws in South Australia in the past three years were made by Regulations and are subject to little or no oversight. The standard and requirements to make Regulations (Subordinate Legislation Act 1978) needs to be reviewed immediately to ensure these mechanisms are not used inappropriately and Regulations are meaningful and robust.

WHISTLE-BLOWER PROTECTION

This is another issue of great concern to me. I have no problem in calling for a review of the Public Interest Disclosure Act 2018 to ensure protections still exist in their original form, considering the Act provides protections to the individuals in the public sector who expose corruption. A review will ensure the Act continues to operate in its original form and changes made to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Bill 2021 have not negatively impacted or limited the operation or scope of this Act.

FAIRER COMPENSATION

Changes to the Return to Work SA Impairment Assessment Guidelines have continued to cause problems as they increase deductions for unrelated injuries and prevent proper consideration for explanations, leaving workers worse off. More transparent processes and avenues for review of changes to Workers Compensation are needed. As you will know, Hon Irene Pnevmatikos MLC introduced and successfully passed through the Legislative Council the Return to Work (Impairment Assessment Guidelines) Amendment Bill 2021. This bill aims to ensure Parliamentary scrutiny over the Assessment Guidelines and any changes which may be made to them. Unfortunately, this bill still sits with the Lower House and will likely lapse by prorogation.

The Victims of Crime Fund remains difficult to access and payments are still minimal for those who do obtain payment. The formula and compensation paid to victims of crime should be reviewed and increased to ensure victims are supported. I am aware of examples where access to victims of crime compensation has been denied by the very narrow interpretation of “prima-facie case” and I would certainly like to see some changes in this area.

FIDELITY FUND

As established under section 57 of the Legal Practitioners Act 1981. this fund is essential for the protection of all South Australians. The steady decline of the fund is not a new issue and one which has been raised in Parliament. The Fund is important for the compensation of clients who may suffer pecuniary loss by a legal practitioner’s dishonest acts or omissions relating to trust money or property. Several solutions were recommended by the Law Society’s actuarial report and one can only hope they will be considered in good faith.

Financial measures should be put in place to ensure the Fund is maintained and compensation can be paid in the future.

INDEPENDENTS

Hon Sam Duluk MP, Member for Waite

The South Australian community deserves their elected representatives to be actively engaged in reviewing the Emergency Powers granted during situations such as COVID-19.

I am supportive of a full review of the Emergency Management Act 2004 (the Act), with a view of amending the legislation to enact a Parliamentary review of the Act every three months during a declared pandemic or other prolonged emergency situations.

We need to ensure our small business community and constituents have a voice and can respond through Parliament to the laws that impact them.

I am also supportive of new laws to require Government agencies to safely manage personal data that has been collected for the purpose of COVID-19 management and to better understand how these laws interact with Federal privacy legislation.

I sympathise with the need for our court system to operate more efficiently and be more affordable. I would be supportive of policies that would require the Government to publicly disclose the process by which court fees are determined, with an intention of lowering the overall cost of court trials.

Your attention to this matter is appreciated. B February 2022 THE BULLETIN 19