SOUTH AUSTRALIA]

No. 27

 

 

MINUTES OF THE PROCEEDINGS

 

OF THE

 

 

LEGISLATIVE COUNCIL

_______

 

 

 

THURSDAY  4  DECEMBER  2003

 

 

 

   1.

Council met pursuant to adjournment.  The President (The Hon. R. R. Roberts) took the Chair.

                 The President read prayers.

 

Meeting of
Council.

 

   2.

The Minister for Agriculture, Food and Fisheries (The Hon. P. Holloway), without notice, moved - That the Standing Orders be so far suspended as to enable Petitions, the Tabling of Papers and Question Time to be taken into consideration at fifteen minutes past two o’clock.

                 Question put and passed, without a dissentient voice, there being present an absolute majority of the whole number of Members of the Council.

 

Suspension  of
Standing  Orders.

 

   3.

Ordered - That Order of the Day (Government Business) No. 1 be postponed and taken into consideration on motion.

 

Postponement
of Business.

 

   4.

Ordered - That Orders of the Day (Government Business) No. 2 to No. 4 be Orders of the Day for next day of sitting.

 

Postponement
of Business.

 

   5.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Law Reform (Ipp Recommendations) Bill.

 

In the Committee

 

                          Clause No. 1 further considered and agreed to.

                          Clauses No. 2 to No. 26 agreed to.

                          Clause No. 27 read.

                 To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on motion.

 

Law Reform (Ipp
Recommendations)
Bill.

 

   6.

At one o’clock the sitting was suspended until the ringing of the bells.

                 At fifteen minutes past two o’clock the sitting was resumed.

 

Suspension and
Resumption of
Sitting.

 

   7.

The following Papers were laid upon the Table, viz.:

        By the President -

                 Reports, 2002-2003 -

                          City of Unley.

                          Clare and Gilbert Valleys Council.

                          District Councils -

                                   Le Hunte.

                                   Mount Gambier.

                 Auditor-General - Supplementary Report, 2002-2003 - Information and Communications Technology - Future Directions: Management and Control.

        By the Minister for Aboriginal Affairs and Reconciliation

        (The Hon. T. G. Roberts) -

                 Reports, 2002-2003 -

                          Barossa Area Health Services Inc.

                          Central Eyre Peninsula Soil Conservation Board.

                          Department of Transport and Urban Planning.

                                   Ordered - That the Report be printed.  (Paper No. 37)

                          Industrial Relations Advisory Committee.

                          Industrial Relations Commission.

                                   Ordered - That the Report be printed.  (Paper No. 86)

                          Mining and Quarrying Occupational Health and Safety Committee.

                          Occupational Health, Safety and Welfare Advisory Committee.

                          The Department of Water, Land and Biodiversity Conservation.

                          TransAdelaide - Replacement Pages.

                          WorkCover Corporation SA.

                                   Ordered - That the Report be printed.  (Paper No. 165)

                 Industrial Relations Advisory Committee - Report, 2001-2002.

                 Interim Operation of the City of Onkaparinga Local Heritage (Willunga) and the City of Onkaparinga Local Heritage (Noarlunga) Plan Amendments.

                 Interim Operation of the City of Victor Harbor Local Heritage Plan Amendment Report.

 

Papers.

 

   8.

Answers to Questions on Notice Nos. 191 and 256 of last Session and No. 92 of this Session received this day were tabled by the President who directed that they be distributed and printed in Hansard.

 

Answers to
Questions on
Notice.

 

   9.

The Hon. R. K. Sneath brought up the First Report of the Printing Committee, 2003-2004, and moved that it be adopted.

                 Question put and passed.

                 The following Papers were ordered to be printed:

                          Abortions Notified in South Australia, Committee appointed to examine and report on - Report, 2002.  (Paper No. 90)

                          Adelaide Festival Centre - Report, 2002-2003.  (Paper No. 84)

                          Administrative and Information Services, Department for - Report, 2002-2003.  (Paper No. 98)

                          Ageing, Office for - Report, 2002-2003.  (Paper No. 144)

                          Attorney-General’s Department Incorporating the Department of Justice - Report, 2002-2003.  (Paper No. 151)

                          Auditor-General’s Report - Operations of the Department, 2002-2003.  (Paper No. 4C)

                          Botanic Gardens and State Herbarium, Board of - Report, 2002-2003.  (Paper No. 13)

                          Business, Manufacturing and Trade, Department of - Report, 2002-2003.  (Paper No. 169)

                          Chiropractors Board of SA - Report, 2002-2003.  (Paper No. 145)

                          Coast Protection Board - Report, 2002-2003.  (Paper No. 51)

                          Commissioners of Charitable Funds - Report, 2002-2003.  (Paper No. 50)

                          Construction Industry Long Service Leave Board - Report, 2002-2003.  (Paper No. 129)

                          Construction Industry Training Board - Report, 2002-2003.  (Paper No 128)

                          Consumer Affairs, Commission for - Report, 2002-2003.  (Paper No. 75)

                          Correctional Services, Department for - Report, 2002-2003.  (Paper No. 38)

                          Dairy Authority of SA - Report, 2002-2003.  (Paper No. 52)

                          Dental Board of South Australia - Report, 2002-2003.  (Paper No. 79)

                          Director of Public Prosecutions - Report, 2002-2003.  (Paper No. 167)

                          Dried Fruits Board of South Australia - Report, 2002-2003.  (Paper No. 66)

                          Economic Development, Office of - Report, 2002-2003.  (Paper No. 21)

                          Economic Development Board - Report, 2002-2003.  (Paper No. 22)

Printing Committee -
First Report,
2003-2004.

 

 

                          Education and Children’s Services, Department of - Report, 2002-2003.  (Paper No. 44)

                          Electricity Supply Industry Planning Committee - Report, 2002-2003.  (Paper No. 56)

                          Employee Ombudsman, Office of - Report, 2002-2003.  (Paper No. 72)

                          Energy Consumers’ Council - Report, 2002-2003.  (Paper No. 62)

                          Environment and Heritage, Department of - Report, 2002-2003.  (Paper No. 92)

                          Environment Protection Authority - Report, 2002-2003.  (Paper No. 95)

                          Essential Services Commission of SA - Report, 2002-2003.  (Paper No. 63)

                          Funds SA - Report, 2002-2003.  (Paper No. 30)

                          History Trust of South Australia - Report, 2002-2003.  (Paper No. 118)

                          Human Services, Department of - Report, 2002-2003.  (Paper No. 23)

                          Independent Gambling Authority - Report, 2002-2003.  (Paper No. 68)

                          Land Management Corporation - Report, 2002-2003.  (Paper No. 20)

                          Legal Services Commission of South Australia - Report, 2002-2003.  (Paper No. 136)

                          Liquor and Gambling Commissioner, Office of - Report, 2002-2003.  (Paper No. 69)

                          Local Government Financing Authority - Report, 2002-2003.  (Paper No. 43)

                          Local Government Grants Commission, South Australia - Report, 2002-2003.  (Paper No. 106)

                          Lotteries Commission of South Australia - Report, 2002-2003.  (Paper No. 32)

                          Medical and Veterinary Science, Institute of - Report, 2002-2003.  (Paper No. 125)

                          Motor Accident Commission - Report, 2002-2003.  (Paper No. 61)

                          National Wine Centre of Australia - Report, 2002-2003.  (Paper No. 65)

                          Nurses Board of South Australia - Report, 2002-2003.  (Paper No. 82)

                          Outback Areas Community Development Trust - Report, 2002-2003.  (Paper No. 47)

                          Passenger Transport Board - Report, 2002-2003.  (Paper No. 19)

                          Police Superannuation Board - Report, 2002-2003.  (Paper No. 55)

                          Premier and Cabinet, Department of - Report, 2002-2003.  (Paper No. 91)

                          Primary Industries and Resources SA, Department of - Report, 2002-2003.  (Paper No. 149)

                          Public Advocate, Office of the - Report, 2002-2003.  (Paper No. 110)

                          Public Employment, Office for the Commissioner for -

                                   Report, 2002-2003.  (Paper No. 114)

                                   SA Public Sector Workforce Information at June 2003.  (Paper No. 114A)

                          Public Trustee - Report, 2002-2003.  (Paper No. 111)

                          Radiation Protection and Control Act 1982 - Report, 2002-2003.  (Paper No. 97)

                          RESI Corporation - Report, 2002-2003.  (Paper No. 64)

                          SA Water - Report, 2002-2003.  (Paper No. 35)

                          South Australia Police - Report, 2002-2003.  (Paper No. 53)

                          South Australian Classification Council - Report, 2002-2003.  (Paper No. 116)

                          South Australian Country Fire Service - Report, 2002-2003.  (Paper No. 130)

                          South Australian Equal Opportunity Commission - Report, 2002-2003.  (Paper No. 109)

                          South Australian Film Corporation - Report, 2002-2003.  (Paper No. 80)

                          South Australian Forestry Corporation - Report, 2002-2003.  (Paper No. 135)

                          South Australian Government Captive Insurance Corporation - Report, 2002-2003.  (Paper No. 49)

                          South Australian Government Financing Authority - Report, 2002-2003.  (Paper No. 48)

                          South Australian Housing Trust - Report, 2002-2003.  (Paper No. 42)

                          South Australian Independent Pricing and Access Regulator - Report, 2002-2003.  (Paper No. 60)

                          South Australian Multicultural and Ethnic Affairs Commission - Report, 2002-2003.  (Paper No. 29)

                          South Australian Museum Board - Report, 2002-2003.  (Paper No. 8)

                          South Australian Ombudsman - Report, 2002-2003.  (Paper No. 76)

                          South Australian Psychological Board - Report, 2002-2003.  (Paper No. 102)

                          South Australian Soil Conservation Council - Report, 2002-2003.  (Paper No. 126)

                          South Australian Tourism Commission - Report, 2002-2003.  (Paper No. 155)

                          South Eastern Water Conservation and Drainage Board - Report, 2002-2003.  (Paper No. 6)

                          State Electoral Office - South Australia - Report, 2002-2003.  (Paper No. 148)

                          State Emergency Service - Report, 2002-2003.  (Paper No. 150)

                          State Opera of South Australia - Report, 2002-2003.  (Paper No. 123)

                          State Supply Board - Report, 2002-2003.  (Paper No. 99)

                          Technical Regulator - Electricity - Report, 2002-2003.  (Paper No. 77)

                          Technical Regulator - Gas - Report, 2002-2003.  (Paper No. 78)

                          Treasury and Finance, Department of - Report, 2002-2003.  (Paper No. 146)

                          West Beach Trust - Report, 2002-2003.  (Paper No. 158)

 

 

 

10.

The Minister for Agriculture, Food and Fisheries tabled a copy of a Ministerial Statement made by the Minister for Education and Children’s Services (The Hon. P. L. White, M.P.) concerning Craigmore High School.

 

Ministerial
Statement Tabled.

 

11.

The Minister for Aboriginal Affairs and Reconciliation tabled a copy of a Ministerial Statement made by the Minister for Environment and Conservation (The Hon. J. D. Hill, M.P.) concerning the EPA Audit of Radioactive Material in South Australia.

 

Ministerial
Statement Tabled.

 

12.

The Minister for Aboriginal Affairs and Reconciliation, according to order, moved - That the Zero Waste SA Bill be now read a second time.

                 On motion of the Hon. C. V. Schaefer, the debate was adjourned until next day of sitting.

 

Zero Waste SA Bill.

 

 

13.

Ordered - That Orders of the Day (Government Business) No. 6 and No. 7 be Orders of the Day for next day of sitting.

 

Postponement
of Business.

 

14.

On the Order of the Day being read for the adjourned debate on the question - That the Criminal Law Consolidation (Identity Theft) Amendment Bill be now read a second time:

                 Debate resumed.

                 Question put and passed.

                 Bill read a second time.

                 The President then left the Chair, and the Council resolved itself into a Committee of the Whole for the consideration of the Bill.

 

In the Committee

 

                          Clauses No. 1 to No. 3 agreed to.

                          Clause No. 4 amended and agreed to.

                          Schedule agreed to.

                          Title agreed to.

_____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same with an amendment; whereupon the Council adopted such report.

                 The Minister for Agriculture, Food and Fisheries, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

Criminal Law
Consolidation
(Identity Theft)
Amendment Bill.

 

 

15.

The following Messages from the House of Assembly were received and read -

Message No. 42

                 MR. PRESIDENT - The House of Assembly has agreed to Amendments Nos. 2 to 29 made by the Legislative Council in the Statutes Amendment (Investigation and Regulation of Gambling Licensees) Bill, without any amendment and has disagreed to Amendments Nos. 1 and 30 as indicated in the annexed Schedule.  The House of Assembly returns the Bill herewith and desires its reconsideration.

House of Assembly, 3 December 2003.                                               I. P. LEWIS, Speaker.

 

Messages from
House of Assembly:
Statutes Amendment
(Investigation
and Regulation of
Gambling Licensees)
Bill.

 

 

 

Schedule of the amendments made by the Legislative Council

to which the House of Assembly has disagreed

No. 1

Amendment No 12—

Long title—

Delete "and the Casino Act 1997" and insert:

, the Casino Act 1997 and the Independent Gambling Authority Act 1995

No. 30

Amendment No 11—

New Part, page 8, after line 11—

Insert:

Part 4—Amendment of Independent Gambling Authority Act 1995

11—Amendment of section 17—Confidentiality

              Section 17(3)—delete subsection (3)


D. A. BRIDGES, Clerk of the House of Assembly.

 

 

 

                 Ordered - That the Message be taken into consideration forthwith.

                 The President then left the Chair, and the Council resolved itself into a Committee of the Whole for the consideration of the Message.

 

In the Committee

 

                 The Minister for Aboriginal Affairs and Reconciliation moved - That Amendments No. 1 and No. 30 be not insisted on.

                 Question - That Amendments No. 1 and No. 30 be insisted on - put.

 

 

 

             Committee divided:

Ayes, 14

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. C. V. Schaefer

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. A. J. Redford (Teller)

      So it was resolved in the affirmative.

 

Noes, 5

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. P. Holloway

The Hon. C. Zollo

The Hon. T. G. Roberts (Teller)

 

 

 

_____________________

 

                 The President resumed the Chair, and reported accordingly; whereupon the Council adopted such report.

 

 

 

 

Message No. 43

                 MR. PRESIDENT - The House of Assembly does not insist on its amendment in the Survey (Miscellaneous) Amendment Bill to which the Legislative Council has disagreed.  The Bill is returned herewith..

House of Assembly, 4 December 2003.                                               I. P. LEWIS, Speaker.

 

Survey
(Miscellaneous)
Amendment Bill.

 

16.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Law Reform (Ipp Recommendations) Bill.

 

In the Committee

 

                          Clause No. 27 further considered.

                 The Hon. R. D. Lawson moved on page 9, lines 16 to 36, and page 10, line 1, to leave out proposed new sections 31 and 32 and insert the following:

31—Standard of care

         (1)    Subject to this Part, the liability of a person (the defendant) for causing harm to another person (the plaintiff) will be determined in accordance with the principles of the law of negligence.

         (2)    In determining the standard of care to be exercised by the defendant, the circumstance of the case to which the court is to have regard include the following:

(a)     whether the risk of causing harm was foreseeable (that is, is it a risk of which the plaintiff knew or ought to have known);

(b)     the circumstances in which the plaintiff became exposed to the risk;

(c)     the age of the plaintiff and the ability of the plaintiff to appreciate the risk;

(d)     the extent (if at all) to which the defendant was aware, or ought to have been aware, of the risk;

(e)     the measures (if any) taken by the defendant to eliminate, reduce or warn against the risk;

(f)      the extent (if at all) to which it would have been reasonable and practicable for the defendant to take measures to eliminate, reduce or warn against the risk;

(g)     any other matter that the court thinks relevant.

         (3)    The fact that a defendant has not taken any measures to eliminate, reduce or warn against a risk does not necessarily show that the defendant has failed to exercise a reasonable standard of care.

         (4)    Subject to any Act or law to the contrary, a person's standard of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.

         (5)    Where a person is, by contract or by reason of some other Act or law, subject to a higher standard of care that would be applicable apart from this subsection, the question of whether the person is liable for harm will be determined by reference to that higher standard of care.

         (6)    This section operates to the exclusion of any other principles on which liability for causing harm to another would, but for this section, be determined in tort.

         (7)    However, this section does not apply to a case where a person intends to cause harm to another.”

                 Amendment, by leave, withdrawn.

                 The Hon. N. Xenophon moved on page 9, line 27, to leave out paragraph (b).

                 Question - That all words in line 27 down to but excluding “not insignificant”, stand as printed - put and passed.

                 The Hon. N. Xenophon then moved on page 9, line 27, to leave out “not insignificant” and insert “real”.

                 Question - That the amendment be agreed to - put.

Law Reform (Ipp
Recommendations)
Bill.

 

 

             Committee divided:

Ayes, 5

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. K. J. Reynolds

The Hon. N. Xenophon (Teller)

 

 

 

 

 

 

 

 

 

 

      So it passed in the negative.

 

Noes, 15

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. T. J. Stephens

The Hon. C. Zollo

The Hon. P. Holloway (Teller)

 

 

                 The Hon. N. Xenophon moved on page 9, lines 30 to 36, and page 10, line 1, to leave out subclause (2).

                 Question - That all words in lines 30 and 31 down to but excluding “is to” in line 31, stand as printed - put and passed.

                 The Hon. N. Xenophon moved on page 9, lines 31, to leave out “is to” and insert “may”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 10, line 1, to leave out paragraph (d)”.

                 Question - That the amendment be agreed to - put and negatived.

                 To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on motion.

 

 

 

17.

Ordered - That Order of the Day (Government Business) No. 9 be an Order of the Day for next day of sitting.

 

Postponement
of Business.

 

18.

Ordered - That Order of the Day (Private Business) No. 1 be an Order of the Day for Wednesday, 18 February 2004.

 

Postponement
of Business.

 

19.

Ordered - That Orders of the Day (Private Business) No. 2 and No. 3 be postponed and taken into consideration after Order of the Day (Private Business) No. 4.

 

Postponement
of Business.

 

20.

On the Order of the Day being read for the adjourned debate on the motion of the Hon. K. J. Reynolds - That the South Australian Parliament condemns mandatory detention and the Pacific Solution as crimes against humanity, which the Minister for Aboriginal Affairs and Reconciliation moved to amend by leaving out all words after “That the South Australian Parliament” and inserting “condemns the pacific Solution as a form of detention that slows down the process of assessment and causes asylum seekers significant delays and uncertainty.  Further, the South Australian Parliament condemns the policy of returning asylum seekers to countries which do not have genuine and acceptable human rights protections.”:

                 Debate resumed.

                 The Hon. C. Zollo moved to amend the amendment moved by the Minister for Aboriginal Affairs and Reconciliation by adding the following paragraph:

        “Further, the South Australian Parliament calls on the Commonwealth to release all children held in immigration detention centres in Australia before Christmas.”

                 Question - That the words proposed to be struck out by the Minister for Aboriginal Affairs and Reconciliation, stand part of the motion - put and passed.

                 Question - That the motion moved by the Hon. K. J. Reynolds be agreed to - put.

Mandatory
Detention and
Pacific Solution -
Motion re.

 

 

             Council divided:

Ayes, 3

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. K. J. Reynolds (Teller)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

      So it passed in the negative.

 

 

Noes, 18

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. P. Holloway

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. C. Zollo

The Hon. R. D. Lawson (Teller)

 

21.

The following Messages from the House of Assembly were received and read -

Message No. 44

                 MR. PRESIDENT - The House of Assembly has agreed to Amendment No. 1 made by the Legislative Council in the Victims of Crime (Criminal Injuries Compensation Regulations) Amendment Bill, without any amendment and has disagreed to Amendments Nos. 2 and 3 as indicated in the annexed Schedule.  The House of Assembly returns the Bill herewith and desires its reconsideration.

House of Assembly, 4 December 2003.                                               I. P. LEWIS, Speaker.

 

Messages from
House of Assembly:
Victims of Crime
(Criminal Injuries
Compensation
Regulations)
Amendment Bill.

 

 

 

Schedule of the amendments made by the Legislative Council

to which the House of Assembly has disagreed

No. 2.

Amendment No 2—

Clause 3, page 7, lines 4 to 13—

Delete paragraph (c)

No. 3.

Amendment No 3—

Clause 3, page 7, after line 39—

Insert:

       (iii)       the court is satisfied that the additional report is necessary to provide the court with the evidence required for the determination of the matter.

D. A. BRIDGES, Clerk of the House of Assembly.

 

 

 

                 Ordered - That the Message be taken into consideration on next day of sitting.

 

 

 

 

Message No. 45

                 MR. PRESIDENT - The House of Assembly has disagreed to the amendment made by the Legislative Council in the Summary Offences (Offensive Weapons) Amendment Bill as indicated in the annexed Schedule.  The House of Assembly returns the Bill herewith and desires its reconsideration.

House of Assembly, 4 December 2003.                                               I. P. LEWIS, Speaker.

 

Summary Offences
(Offensive
Weapons)
Amendment Bill.

 

 

Schedule of the amendment made by the Legislative Council

to which the House of Assembly has disagreed

Amendment No 1

Clause 4, page 2, line 12, to page 3, line 14—

Delete subclauses (1) and (2) and insert:

       (1)     Section 15(1), penalty—delete “$2 500 or imprisonment for 6 months” and substitute:

                 $10 000 or imprisonment for 2 years

       (2)     Section 15(1b), penalty—delete “$7 500 or imprisonment for 18 months: and substitute:

                 $10 000 or imprisonment for 2 years

D. A. BRIDGES, Clerk of the House of Assembly.

                 Ordered - That the Message be taken into consideration on next day of sitting.

 

 

 

 

Message No. 46

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith entitled an Act to amend the Prevention of Cruelty to Animals Act 1985, to which it desires the concurrence of the Legislative Council.

House of Assembly, 4 December 2003.                                               I. P. LEWIS, Speaker.

                 Bill read a first time.

                 Ordered - That the second reading be an Order of the Day for next day of sitting.

 

Prevention of
Cruelty to
Animals
(Prohibited Surgical
and Medical
Procedures)
Amendment Bill.

 

 

Message No. 47

                 MR. PRESIDENT - The House of Assembly has agreed to the amendment made by the Legislative Council in the Criminal Law Consolidation (Identity Theft) Amendment Bill without amendment.

House of Assembly, 4 December 2003.                                               I. P. LEWIS, Speaker.

 

Criminal Law
Consolidation
(Identity Theft)
Amendment Bill.

 

 

Message No. 48

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith entitled an Act to amend the Criminal Law Consolidation Act 1935, and the Summary Offences Act 1953, to which it desires the concurrence of the Legislative Council.

House of Assembly, 4 December 2003.                                               I. P. LEWIS, Speaker.

                 Bill read a first time.

                 Ordered - That the second reading be an Order of the Day for next day of sitting.

 

Statutes Amendment
(Computer
Offences) Bill.

 

22.

The Minister for Aboriginal Affairs and Reconciliation tabled a copy of a Ministerial Statement made by the Minister for Social Justice (The Hon. S. W. Key, M.P.) concerning Supported Residential Facilities.

 

Ministerial
Statement Tabled.

 

23.

The Minister for Aboriginal Affairs and Reconciliation tabled a copy of the EPA Audit of Radioactive Material in South Australia.

 

Ministerial
Statement Tabled.

 

24.

At twelve minutes past six o’clock the sitting was suspended until the ringing of the bells.

                 At fifteen minutes to eight o’clock the sitting was resumed.

 

Suspension and
Resumption of
Sitting.

 

25.

The Minister for Agriculture, Food and Fisheries tabled a copy of the Craigmore High School External Review Report, June-July 2003.

 

Ministerial
Statement Tabled.

 

26.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Law Reform (Ipp Recommendations) Bill.

 

In the Committee

 

                          Clause No. 27 further considered.

                 The Hon. N. Xenophon moved on page 10, line 6, to leave out “a person of normal fortitude in the plaintiff’s position” and insert “the plaintiff”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 10, line 10, to leave out “is to” and insert “may”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 10, lines 13 and 14, to leave out subparagraph (ii).

                 Question - That subparagraph (ii) stand as printed - put and passed.

                 The Hon. N. Xenophon moved on page 10, lines 22 to 25, to leave out subclause (3).

                 Amendment, by leave, withdrawn.

                 The Hon. N. Xenophon moved on page 11, line 14, to page 12, line 19, to leave out proposed new Division 3.

                 Question - That all words on page 11, in lines 14 to 18, stand as printed - put and passed.

                 The Hon. R. D. Lawson moved on page 11, lines 19 to 21, to leave out proposed new subsection (2) and insert the following:

“(2)   Obvious risks include risks that are patent or matters of common knowledge.

  (3)   A risk may be obvious even though it is of low probability.”.

                 The Hon. N. Xenophon moved on page 11, lines 19 to 21, to leave out proposed new subsection (2) and insert the following:

“(2)   Obvious risks include risks that are patent or matters of common knowledge (and a risk may be obvious even if it is of low probability).”

                 Amendment, by leave, withdrawn.

                 Question - That new subsection (2) stand as printed - put and negatived.

                 Question - That new subsections (2) and (3), as proposed to be inserted by the Hon. R. D. Lawson, be so inserted - put and passed.

                 The Hon. N. Xenophon moved on page 11, lines 37 to 39, and page 12, lines 1 to 12, to leave out proposed new section 38.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 12, lines 37 and 38, to leave out “by members of the same profession as competent professional practice” and insert “as best practice by members of the same profession”.

                 Question - That the words proposed to be struck out, stand as printed - put and passed.

                 The Hon. N. Xenophon moved on page 12, line 40, to leave out “irrational” and insert “unreasonable”.

                 Question - That the amendment be agreed to - put.

Law Reform (Ipp
Recommendations)
Bill.

 

 

             Committee divided:

Ayes, 6

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. K. J. Reynolds

The Hon. J. F. Stefani

The Hon. N. Xenophon (Teller)

 

 

 

 

 

 

 

      So it passed in the negative.

 

Noes, 13

The Hon. J.S.L. Dawkins

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. T. J. Stephens

The Hon. P. Holloway (Teller)

 

 

                 The Hon. I. Gilfillan moved on page 13, lines 11 to 37, and page 14, lines 1 to 3, to leave out proposed new Division 5.

                 Question - That the amendment be agreed to - put.

 

 

             Committee divided:

Ayes, 6

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. K. J. Reynolds

The Hon. J. F. Stefani

The Hon. N. Xenophon (Teller)

 

 

 

 

 

 

 

      So it passed in the negative.

 

Noes, 13

The Hon. J.S.L. Dawkins

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. T. J. Stephens

The Hon. P. Holloway (Teller)

 

 

                 The Hon. I. Gilfillan moved on page 14, lines 10 and 11, to leave out “injured person’s conduct contributed materially to the risk of injury” and insert “criminal conduct contributed materially to the risk to the person”.

                 Question - That the amendment be agreed to - put and negatived.

                          Clause No. 27, as amended and otherwise amended, agreed to.

                          Clause No. 28 read.

                 To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on motion.

 

 

27.

At twenty-one minutes past ten o’clock the sitting was suspended until the ringing of the bells.

                 At twenty-two minutes to eleven o’clock the sitting was resumed.

 

Suspension and
Resumption of
Sitting.

28.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Law Reform (Ipp Recommendations) Bill.

 

In the Committee

 

                          Clause No. 28 further considered and agreed to.

                          Clauses No. 29 to No. 39 agreed to.

                          New clause No. 39A inserted.

                          Clause No. 40 amended and agreed to.

                          Clause No. 41 read.

                 The Hon. R. D. Lawson moved on page 17, line 8, to leave out “delete Division 4” and insert the following:

Part 8A—Apportionment of liability

58A—Application of Part

      (1)       This Part applies to the following claims (apportionable claims):

      (a)       a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to exercise reasonable care;

      (b)      a claim for damages for a contravention of section 56 of the Fair Trading Act 1987.

      (2)       If proceedings involve 2 or more apportionable claims arising out of different causes of action, liability for the apportionable claims is to be determined in accordance with this Part as if the claims were a single claim.

      (3)       A concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

      (4)       For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).

      (5)       For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.

      (6)       This Part does not apply to or in respect of civil liability (and awards of damages in those proceedings)—

      (a)       for personal injury or death; or

      (b)      for an intentional tort.

58B—Proportionate liability for apportionable claims

      (1)       In any proceedings involving an apportionable claim—

      (a)       the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and

      (b)      the court may give judgment against the defendant for not more than that amount.

      (2)       Despite subsection (1), a defendant in proceedings against whom a finding of fraud is made is jointly and severally liable for the damages awarded against any other defendant in the proceedings.

      (3)       If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim—

      (a)       liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and

      (b)      liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.

      (4)       In apportioning responsibility between defendants in the proceedings—

      (a)       the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and

      (b)      the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.

      (5)       This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.

      (6)       A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.

58C—Duty of defendant to inform plaintiff about concurrent wrongdoers

      (1)       In any proceedings involving an apportionable claim, a defendant in those proceedings must provide the plaintiff with such information as is reasonably available to the defendant and as appears likely to assist the plaintiff to—

      (a)       identify and locate any other person (being a person who is not a defendant in the proceedings) who the defendant knows or believes is a person whose acts or omissions caused, independently of each other or jointly, the damage or loss that is the subject of the claim; and

      (b)      determine whether and to what extent that other person is or may be liable to the plaintiff in respect of the damage or loss that is the subject of the claim.

      (2)       If a court hearing proceedings involving an apportionable claim is satisfied that any costs in the proceedings have been wasted as a result of a failure by a defendant in the proceedings to comply with subsection (1), then, unless the court otherwise orders, the plaintiff is entitled to an order against the defendant for those costs taxed on an indemnity basis.

58D—Contribution not recoverable from defendant

A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim—

      (a)       cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and

      (b)      cannot be required to indemnify any such wrongdoer.

58E—Subsequent actions

      (1)       In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss.

      (2)       However, in any proceedings in respect of any such action, the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff.

58F—Joining non-party concurrent wrongdoer in the action

      (1)       The court may give leave for any 1 or more persons to be joined as defendants in proceedings involving an apportionable claim.

      (2)       The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.

58G—Application of Part

Nothing in this Part—

      (a)       prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable; or

      (b)      prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or

      (c)       affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.”

                 Amendment, by leave, withdrawn.

Law Reform (Ipp
Recommendations)
Bill.

 

                          Clause No. 41 agreed to.

                          Clauses No. 42 to No. 73 agreed to.

                          Clause No. 74 read.

                 The Hon. N. Xenophon moved on page 21, line 26, to leave out “medical or”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. R. D. Lawson moved on page 21, after line 29, to insert the following:

“(8)      For the purposes of subsection (7), the court will only be satisfied that there is good reason to excuse the non-compliance if it is shown that the non-compliance was due to gross negligence or mental incapacity on the part of the plaintiff's parent or guardian.”

                 Question - That the amendment be agreed to - put and negatived.

                          Clause No. 74 agreed to.

                          Clause No. 75 read.

                 The Hon. R. D. Lawson moved on page 21, line 32, after “material” to insert “in itself”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 21, line 36, to leave out “major”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 22, line 3, to leave out “significant”.

                 Question - That the amendment be agreed to - put and negatived.

                 The Hon. N. Xenophon moved on page 22, lines 8 to 10, to leave out paragraph (b).

                 Question - That the amendment be agreed to - put and negatived.

                          Clause No. 75 agreed to.

                          Clauses No. 76 to No. 79 agreed to.

                          Schedule amended and agreed to.

                          Title agreed to.

_____________________

 

 

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same with amendments; whereupon the Council adopted such report.

                 The Minister for Agriculture, Food and Fisheries, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 The Minister for Agriculture, Food and Fisheries moved - That this Bill be now read a third time.

                 Debate ensued.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass

 

 

29.

On the Order of the Day being read for the adjourned debate on the motion of the Hon. I. Gilfillan -

               I.      That this Council urges the Federal Government to resist the pressure to finalise the free trade agreement with the United States this year on the grounds that any free trade agreement entered into in haste to provide the President of the United States and the Prime Minister of Australia with propaganda material will be at the long term risk that South Australia and Australia will lose on several issues which could include -

(a)     the Pharmaceutical Benefits Scheme;

(b)    the South Australian Barley Single Desk and the Australian Wheat Single Desk;

(c)     the South Australian automobile industry;

(d)    the ability to support local industry through policies in Government procurement;

(e)     the ability to support local art and culture through local content rule for television and radio;

(f)     the ability to maintain our quarantine laws; and

(g)    the ability to preserve the identify of GE free products.

             II.      That this Council condemns the lack of transparency in the negotiations and calls on the Commonwealth Government to release the current state of negotiations to State and Local Governments, as well as the Australian public.

            III.      That this Council calls on the Commonwealth Government to halt its pursuit of bilateral trade agreements at the expense of multilateral agreements that can benefit a wider proportion of the international community.:

                 Debate resumed.

                 Question put.

Free Trade
Agreement -
Motion re.

 

 

             Council divided:

Ayes, 4

The Hon. S. M. Kanck

The Hon. K. J. Reynolds

The Hon. N. Xenophon

The Hon. I. Gilfillan (Teller)

 

 

 

 

 

 

 

      So it passed in the negative.

 

 

Noes, 11

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. T. J. Stephens

The Hon. P. Holloway (Teller)

 

30.

Ordered - That the remaining Order of the Day (Private Business) No. 3 be an Order of the Day for next day of sitting.

 

Postponement
of Business.

 

31.

The Minister for Agriculture, Food and Fisheries moved - That the Council, at its rising, do adjourn until Monday, 16 February 2004, at fifteen minutes past two o’clock.

                 Debate ensued.

_____________________

 

And it being twelve of the clock:

FRIDAY 5 DECEMBER 2003

_____________________

 

                 Question put and passed.

 

Next Day
of Sitting.

 

32.

Council adjourned at six minutes past twelve o’clock midnight until Monday, 16 February 2004, at  fifteen minutes past two o’clock.

 

Adjournment.

 

 

_________________________

 

 

 

 

 

 

Members present during any part of the sitting:

 

 

 

 

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. I. Gilfillan

The Hon. P. Holloway

 

The Hon. S. M. Kanck

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. C. Zollo

The Hon. N. Xenophon