[SOUTH AUSTRALIA]

No. 28

 

 

MINUTES OF THE PROCEEDINGS

 

OF THE

 

 

LEGISLATIVE COUNCIL

_______

 

 

 

THURSDAY  11  MARCH  1999

 

 

 

   1.

Council met pursuant to adjournment.  The President (The Hon. J. C. Irwin) took the Chair.

                 The President read prayers.

 

Meeting of

Council.

 

   2.

The Clerk announced that the following Petition had been lodged for presentation:

                 By The Hon. J.S.L. Dawkins, from 3 residents of South Australia concerning Native Title Rights for Indigenous South Australians and praying that the Council does not proceed with legislation that -

1.       Undermines or impairs the Native Title rights of indigenous South Australians; and

2.       Makes changes to Native Title unless there has been a genuine consultation process with all stakeholders, especially South Australia’s indigenous communities.

 

Petition

No. 1 -

Native Title Rights for Indigenous

South Australians.

   3.

The Treasurer (The Hon. R. I. Lucas) tabled a copy of a Ministerial Statement made by the Premier (The Hon. J. W. Olsen, M.P.) concerning a Review of the Education and Children’s Services Act.

 

Paper Tabled.

   4.

The Attorney-General (The Hon. K. T. Griffin), having obtained leave to amend the motion of which notice had been given, moved - That during the present Session, the Council make available to any person who believes that he or she has been adversely referred to during proceedings of the Legislative Council the following procedure for seeking to have a response incorporated in to Hansard -

         I.      Any person who has been referred to in the Legislative Council by name, or in another way so as to be readily identified, may make a submission in writing to the President -

                        (a)     claiming that he or she has been adversely affected in reputation or in respect of dealings or associations with others, or injured in profession, occupation or trade or in the holding of an office, or in respect of any financial credit or other status or that his or her privacy has been unreasonably invaded, and

                        (b)    requesting that his or her response be incorporated in to Hansard.

        II.      The President shall consider the submission as soon as practicable.

       III.      The President shall give notice of the submission to the Member who referred in the Council to the person who has made the submission.

       IV.      In considering the submission, the President -

                        (a)     may confer with the person who made the submission,

                        (b)    may confer with any Member,

                        but

                        (c)     may not take any evidence,

                       (d)     may not judge the truth of any statement made in the Council or the submission.

Sessional Order -

Citizens’ Right

of Reply.

 

        V.      If the President is of the opinion that -

                        (a)     the submission is trivial, frivolous, vexatious or offensive in character, or

                        (b)    the submission is not made in good faith, or

                        (c)     there is some other good reason not to grant the request to incorporate a response into Hansard,

                        the President shall refuse the request and inform the person who made it of that decision.  The President shall not be obliged to inform any person or the Council of the reasons for that decision.

       VI.      Unless the President refuses the request on one or more of the grounds set out in paragraph V of this resolution, the President shall report to the Council that in the opinion of the President the response in terms agreed between the President and the person making the request should be incorporated in to Hansard and the response shall thereupon be incorporated in to Hansard.

     VII.      A response -

                        (a)     must be succinct and strictly relevant to the question in issue,

                        (b)    must not contain anything offensive in character,

                        (c)     must not contain any matter the publication of which would have the effect of -

      (i)      unreasonably adversely affecting or injuring a person, or unreasonably invading a person’s privacy in the manner referred to in paragraph I of this resolution, or

     (ii)      unreasonably aggravating any adverse effect, injury or invasion of privacy suffered by any person, or

    (iii)      unreasonably aggravating any situation or circumstance,

                                 and

                        (d)    must not contain any matter the publication of which might prejudice -

      (i)      the investigation of any alleged criminal offence,

     (ii)      the fair trial of any current or pending criminal proceedings, or

    (iii)      any civil proceedings in any court or tribunal.

    VIII.      In this resolution “person” includes a corporation of any type and an unincorporated association.

                 On motion of the Hon. C. A. Pickles , the debate was adjourned until next day of sitting.

 

 

   5.

Ordered - That Orders of the Day (Government Business) No. 1 to No. 7 be Orders of the Day for next day of sitting.

 

Postponement

of Business.

    6.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Listening Devices (Miscellaneous) Amendment Bill.

 

In the Committee

 

                          Clause No. 1 further considered and agreed to.

                          Clauses No. 2 to No. 6 agreed to.

                          Clause No. 7 read.

                 The Hon. I. Gilfillan moved on page 4, line 6, to leave out “section is substituted” and insert “sections are substituted” and on page 4, after line 20, to insert proposed new sections as follow:

Listening Devices (Miscellaneous) Amendment Bill.

 

                  Public Interest Advocate

                          5A.  There will be a Public Interest Advocate.

                  Appointment of Public Interest Advocate

                          5B.  (1)  The Governor may appoint a legal practitioner to be the Public Interest Advocate.

                          (2)  Subject to this Act, the terms and conditions of appointment (including remuneration) of the Public Interest Advocate will be as determined by the Governor.

                          (3)  The Governor may appoint a legal practitioner to be a deputy Public Interest Advocate.

                          (4)  The following persons are not eligible to be appointed as the Public Interest Advocate or a deputy Public Interest Advocate:

                          (a)    the Director of Public Prosecutions;

                          (b)    a person assigned to work in the Office of the Director of Public Prosecutions;

 

 

                          (c)    a member of the police force;

                          (d)    an employee in the Public Service of the State.

                  Term of office of Public Interest Advocate, etc.

                          5C.  (1)  The Public Interest Advocate will be appointed for a term of office of five years and, on the expiration of a term of office, is eligible for reappointment.

                          (2)  The office of Public Interest Advocate becomes vacant if the Advocate—

                          (a)    dies; or

                          (b)    completes a term of office and is not reappointed; or

                          (c)    resigns by notice in writing to the Governor; or

                          (d)    is removed from office by the Governor under subsection (3).

                          (3)  The Governor may remove the Public Interest Advocate from office for—

                          (a)    mental or physical incapacity to carry out official duties satisfactorily; or

                          (b)    neglect of duty; or

                          (c)    dishonourable conduct.

                  Function of Public Interest Advocate

                          5D.  (1)  The function of the Public Interest Advocate is to appear at the hearing of an application for the issue of a warrant under this Act to test the validity of the application and, for that purpose, to—

                          (a)    present questions for the applicant to answer and examine or cross-examine a witness; and

                          (b)    make submissions on the appropriateness of issuing the warrant.

                          (2)  The Public Interest Advocate is not subject to the control or direction of any Minister or other person in the performance of the function of the Advocate.

                  Public Interest Advocate’s annual report

                          5E.  (1)  The Public Interest Advocate must, as soon as practicable (but not later than two months) after each 30 June, give to the Minister a report on the activities of the Advocate (and any deputy) during the year ending on that 30 June.

                          (2)  The report must not contain information—

                          (a)    that discloses or may lead to the disclosure of the identity of any person who has been, is being, or is to be investigated; or

                          (b)    that indicates a particular investigation has been, is being, or is to be conducted.

                  Public Interest Advocate must keep and deal with records in accordance with regulations

                          5F.  The Public Interest Advocate must—

                          (a)    keep as records—

                                    (i)      applications for warrants under this Act; and

                                    (ii)     affidavits verifying the grounds of applications for warrants; and

                                    (iii)    any warrants or duplicate warrants issued under this Act,

                                    provided to the Advocate under this Act; and

                          (b)    control and manage access to those records; and

                          (c)    destroy those records,

                  in accordance with the regulations.

                  Confidentiality

                          5G.  (1)  A person who is or was the Public Interest Advocate or a deputy Public Interest Advocate must not record, use or disclose information obtained under this Act that came to the person’s knowledge because of the person's function under this Act.

                  Maximum penalty:   $10 000 or imprisonment for 2 years.

                          (2)  Subsection (1) does not apply to the recording, use or disclosure of information in the performance of his or her function under this Act.

                          (3)  A person who is or was the Public Interest Advocate or a deputy Public Interest Advocate must not be compelled in any proceedings to disclose information obtained under this Act that came to the person’s knowledge because of that person’s function under the Act.”

                 Question - That the amendment be agreed to - put.

           Committee divided:

 

 

Ayes, 9.

The Hon. T. Crothers

The Hon. M. J. Elliott

The Hon. P. Holloway

The Hon. S. M. Kanck

The Hon. C. A. Pickles

The Hon. G. Weatherill

The Hon. N. Xenophon

The Hon. C. Zollo

The Hon. I. Gilfillan (Teller)

   Noes, 8.

The Hon. T. G. Cameron

The Hon. L. H. Davis

The Hon. J.S.L. Dawkins

The Hon. D. V. Laidlaw

The Hon. R. D. Lawson

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. K. T. Griffin (Teller)

 

 

 

        So it was resolved in the affirmative.

                          Clause No. 7 as amended, agreed to.

                          Clause No. 8 read.

                 The Hon. I. Gilfillan moved on page 4, after line 29, to insert new paragraph as follows:

                           (ab)   by striking out from subsection (2) “matter” twice occurring and substituting, in each case, “serious offence”;’

                          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.

 

 

   7.

Ordered - That Orders of the Day (Government Business) No. 9 to No. 14 be postponed and taken into consideration after Order of the Day (Government Business) No. 15.

 

Postponement

of Business.

   8.

On the Order of the Day being read for the adjourned debate on the question - That the Livestock (Commencement) 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.

                          Title agreed to.

_____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same without amendment; whereupon the Council adopted such report.

                 The Attorney-General, 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.

 

Livestock (Commencement) Amendment Bill.

    9.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Listening Devices (Miscellaneous) Amendment Bill.

 

In the Committee

 

                          Clause No. 8 which the Hon. I. Gilfillan had moved to amend on page 4, after line 29, by inserting new paragraph as follows:

                           (ab)   by striking out from subsection (2) “matter” twice occurring and substituting, in each case, “serious offence”;’ - further considered.

                 Amendment, by leave, withdrawn.

                          Clause No. 8 otherwise amended and agreed to.

                          Clause No. 9 read.

                 The Hon. I. Gilfillan moved on page 8, after line 6, to insert new section as follows:

Listening Devices (Miscellaneous) Amendment Bill.

 

                  Inadmissibility of evidence derived from use of listening or surveillance devices in certain circumstances

                          6ABA.  (1)  If—

                          (a)    a listening device is used in contravention of section 4; or

                          (b)    a condition or limitation contained in a warrant authorising use of a listening device is not complied with,

                  information derived from the use of the device will be inadmissible as evidence against a person charged with an offence unless the court is satisfied that the interests of justice require the admission of the information as evidence despite that illegality.

                          (2)  If—

                          (a)    any premises, vehicle or thing is entered or interfered with for the purposes of installing, using, maintaining or retrieving a surveillance device and a warrant should have, but had not, been obtained to authorise the entry or interference; or

                          (b)    a condition or limitation contained in a warrant authorising such entry or interference is not complied with,

                 information derived from the use of the device will be inadmissible as evidence against a person charged with an offence unless the court is satisfied that the interests of justice require the admission of the information as evidence despite that illegality.

 

 

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

                          Clause No. 9 otherwise amended and agreed to.

                          Clause No. 10 amended and agreed to.

                          Clause No. 11 read.

                 The Hon. I. Gilfillan moved on page 11, line 19, to insert new subsection as follows:

 

 

                  “(1)  The Commissioner of Police and the National Crime Authority must—

                          (a)    keep as records a copy of—

                                    (i)      each application for a warrant under this Act; and

                                    (ii)     each affidavit verifying the grounds of an application for a warrant; and

                                    (iii)    each warrant issued under this Act; and

                          (b)    control and manage access to those records,

                 in accordance with the regulations.”

 

 

                 Question - That new subsection (1) down to and including subparagraph (i), as proposed to be inserted by the Hon. I. Gilfillan, be so inserted - put and passed.

                 Question - That subparagraph (ii), as proposed to be inserted by the Hon. I. Gilfillan, be so inserted - put.

           Committee divided:

 

 

Ayes, 7.

The Hon. T. Crothers

The Hon. P. Holloway

The Hon. S. M. Kanck

The Hon. C. A. Pickles

The Hon. G. Weatherill

The Hon. C. Zollo

The Hon. I. Gilfillan (Teller)

Noes, 8.

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. D. V. Laidlaw

The Hon. R. D. Lawson

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. N. Xenophon

The Hon. K. T. Griffin (Teller)

 

 

        So it was passed in the negative.

 

 

                 Question - That the remaining words proposed to be inserted by the Hon. I. Gilfillan, be so inserted - put and passed.

                          Clause No. 11 as amended, agreed to.

                          Clause No. 12 agreed to.

                          Clause No. 13 struck out.

                          New clause No. 13 inserted.

                          Clause No. 14 amended and agreed to.

                          Clause No. 15 amended and agreed to.

                          Clause No. 16 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 Attorney-General, 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.

 

 

10.

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

Message No. 40

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith entitled an Act to amend the Constitution Act 1934, to which it desires the concurrence of the Legislative Council.

House of Assembly,  11 March 1999.                                                              J.K.G. OSWALD, Speaker.

                 Bill read a first time.

                 Ordered - That the second reading be an Order of the Day for Wednesday, 24 March 1999.

Messages from House of

Assembly:

Constitution

(Citizenship)

Amendment Bill.

 

Message No. 41

                 MR. PRESIDENT - The House of Assembly has agreed to the Bill returned herewith, entitled an Act to amend the Criminal Law Consolidation Act 1935 and the Criminal Law (Sentencing) Act 1988, without any amendment.

House of Assembly, 11 March 1999.                                                               J.K.G. OSWALD, Speaker.

 

Statutes

Amendment

(Sentencing -

Miscellaneous)

Bill.

12.

Ordered - That the remaining Orders of the Day (Government Business) be Orders of the Day for next day of sitting.

 

Postponement

of Business.

13.

Ordered - That the Council, at its rising, do adjourn until Tuesday, 23 March 1999, at fifteen minutes past two o’clock.

 

Next Day

of Sitting.

14.

Council adjourned at twenty-one minutes past six o’clock until Tuesday, 23 March 1999, at fifteen minutes past two o’clock.

 

Adjournment.

 

 

_________________________

 

 

 

 

Members present during any part of the sitting:

 

 

 

The Hon. T. G. Cameron

The Hon. T. Crothers

The Hon. L. H. Davis

The Hon. J.S.L. Dawkins

The Hon. M. J. Elliott

The Hon. I. Gilfillan

The Hon. K. T. Griffin

 

The Hon. P. Holloway

The Hon. S. M. Kanck

The Hon. D. V. Laidlaw

The Hon. R. D. Lawson

The Hon. R. I. Lucas

The Hon. C. A. Pickles

The Hon. A. J. Redford

 

The Hon. R. R. Roberts

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. G. Weatherill

The Hon. N. Xenophon

The Hon. C. Zollo