SOUTH AUSTRALIA]

No. 48

 

 

MINUTES OF THE PROCEEDINGS

 

OF THE

 

 

LEGISLATIVE COUNCIL

_______

 

 

 

WEDNESDAY  27  NOVEMBER  2002

 

 

 

   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 President laid on the Table the Auditor-General’s Supplementary Report, 2001-2002 - Agency Audit Reports.

 

Paper.

 

   3.

The Hon. J. M. Gazzola brought up the Fifteenth Report, 2002-2003 of the Legislative Review Committee, which was read by the Clerk as follows -

                 The Regulations listed hereunder are at present being considered by the Legislative Review Committee.  Evidence is being taken on these matters and it is necessary for Notices of Motion for Disallowance to be given in both Houses before the expiration of 14 sitting days, to allow the Committee time to complete its deliberations.

                 Honourable Members are warned that after further consideration has been given to the
Regulations, the Committee may decide to take no further action.

                 Regulations referred to -

                          Development Act 1993 - Evacuations and Other Activities.

Fisheries Act 1982 - River Fish.

 

Legislative
Review
Committee -
Fifteenth Report,
2002-2003.

 

   4.

The Hon. J. M. Gazzola brought up the Sixteenth Report, 2002-2003 of the Legislative Review Committee.

 

 

Legislative
Review
Committee -
Sixteenth Report,
2002-2003.

 

 

   5.

The Minister for Agriculture, Food and Fisheries (The Hon. P. Holloway) tabled copy of a letter to Mr Ralph Hahnheuser, Animal Liberation SA, from Robin Vendegraaff, Chief Veterinary Officer, dated 18 July 2002.

 

Paper Tabled.

 

   6.

In accordance with Sessional Standing Order, the President called on Members to make Statements on Matters of Interest.

 

Statements
on Matters
of Interest.

 

   7.

Ordered - separately - That Notices of Motion (Private Business) No. 1 and No. 3 be Orders of the Day for Wednesday next.

 

Postponement
of Business.

 

   8.

Ordered - That Notices of Motion (Private Business) No. 7 and No. 8, Orders of the Day (Private  Business) No. 1 to No. 30 and Orders of the Day (Government Business) No. 1 and No. 2 be postponed and taken into consideration after Order of the Day (Government Business) No. 3.

 

Postponement
of Business.

 

   9.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Criminal Law (Sentencing) (Sentencing Guidelines) Amendment Bill.

 

In the Committee

 

                          Clause No. 4, to which the Hon. R. D. Lawson, by leave, moved his original amendment on page 4, lines 5 to 18, in an amended form by leaving out proposed new section 29B and inserting the following:

                          “Initiation of proceedings for guideline judgment

                                   29B. (1) Proceedings for a guideline judgment may be commenced—

(a)    on the Full Court's own initiative; or

(b)    on application by the Director of Public Prosecutions; or

(c)    on application by the Attorney-General; or

(d)    on application by the Legal Services Commission.

         (2) An application for a guideline judgment must be accompanied by the applicant's proposal as to the terms in which the judgment should be given.

         (3) The Full Court may, if it thinks appropriate, give a guideline judgment in the course of determining an appeal against sentence.

         (4) However, if the Attorney-General has applied for a guideline judgment, the proceedings must be separate from other proceedings in the Full Court.

                                   Sentencing Advisory Council to be given opportunity to make written report on proposal for guideline judgment

                                                   29BA. (1) If proceedings for a guideline judgment are commenced by application to the Full Court, or the Full Court itself initiates such proceedings, the Registrar must—

(a)    notify the Sentencing Advisory Council of the Court's intention to hear and determine the proceedings; and

(b)    request the Council to make a written report to the Court, within a reasonable time stated in the request, on the questions to be considered by the Court in the proceedings.

         (2) If the proceedings have been initiated by an application, the notification and request must be accompanied by a copy of the applicant's proposal as to the terms in which the judgment should (in the applicant's opinion) be given.

                          Representation at proceedings

                                                   29BB. (1) Each of the following is entitled to appear and be heard in proceedings for a guideline judgment:

(a)    the Director of Public Prosecutions;

(b)    the Attorney-General;

(c)    the Legal Services Commission;

(d)    the Aboriginal Legal Rights Movement Inc.;

(e)    an organisation representing the interests of offenders or victims of crime that has, in the opinion of the Full Court, a proper interest in the proceedings.

         (2) The Sentencing Advisory Council may appear in the proceedings and, if the Full Court requires assistance from the Council (beyond its written report), must appear in the proceedings.

         (3) If the Sentencing Advisory Council appears in the proceedings, it is to be represented by one of its members who is a legal practitioner or by independent counsel instructed by the Council to represent it.” - further considered.

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

                          Clause No. 4 as amended and otherwise amended, 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 Aboriginal Affairs and Reconciliation, 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
(Sentencing)
(Sentencing
Guidelines)
Amendment Bill.

 

10.

Ordered - That Notices of Motion (Private Business) No. 7 and No. 8, Orders of the Day (Private  Business) No. 1 to No. 30 and Orders of the Day (Government Business) No. 1, No. 2 and No. 4 be postponed and taken into consideration after Order of the Day (Government Business) No. 5.

 

Postponement
of Business.

 

11.

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

 

In the Committee

 

                          Clause No. 24 which the Hon. M. J. Elliott had moved on page 16, after line 26, to insert new paragraph as follows:

                                    (f)   a condition requiring that a copy of the consent issued by the Council be kept in such manner, and in any place, specified by the Council.” - further considered.

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

                          Clause No. 24, as amended and otherwise amended, agreed to.

                          Clause No. 25 read.

                 The Hon. C. V. Schaefer moved on page 17, lines 20 to 36 and page 18, lines 1 to 6, to leave out all words in these lines.

                 Question - That the amendment be agreed to - put.

Native Vegetation
(Miscellaneous)
Amendment Bill.

 

 

             Committee divided:

Ayes, 10

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. D. V. Laidlaw

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. C. V. Schaefer (Teller)

      So it was resolved in the affirmative.

 

Noes, 8

The Hon. M. J. Elliott

The Hon. G. E. Gago

The Hon. I. Gilfillan

The Hon. P. Holloway

The Hon. S. M. Kanck

The Hon. R. K. Sneath

The Hon. C. Zollo

The Hon. T. G. Roberts (Teller)

 

 

 

                 The Hon. M. J. Elliott moved on page 19, after line 20, to insert new paragraph as follows:

(i)      require the respondent to refrain from an act or course of action, or to undertake an act or course of action, to ensure that the respondent does not gain an ongoing benefit from the breach.”

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

                          Clause No. 25, as otherwise amended, agreed to.

                          Clauses No. 26 and No. 27 agreed to.

                          Clause No. 28 amended and agreed to.

                          Clause No. 29 amended and agreed to.

                          Clauses No. 30 to No. 37 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 amendments; whereupon the Council adopted such report.

                 The Minister for Aboriginal Affairs and Reconciliation, 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.

 

 

12.

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

Message No. 76

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith, entitled an Act to amend the Education Act 1972, to which it desires the concurrence of the Legislative Council.

House of Assembly, 26 November 2002.                                                                    I. P. LEWIS, Speaker.

                 Bill read a first time.

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

                 On motion of the Hon. T. J. Stephens, the debate was adjourned until next day of sitting.

 

Messages from
House of Assembly:
Education (Charges)
Amendment Bill.

 

 

Message No. 77

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith, entitled an Act to amend the Harbors and Navigation Act 1993, the Motor Vehicles Act 1959 and the Road Traffic Act 1961, to which it desires the concurrence of the Legislative Council.

House of Assembly, 26 November 2002.                                                                    I. P. LEWIS, Speaker.

                 Bill read a first time.

                 The Minister for Aboriginal Affairs and Reconciliation then moved - That this Bill be now read a second time.

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

 

Statutes
Amendment
(Road Safety
Reforms) Bill.

 

13.

At two minutes to 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.

14.

The Hon. C. Zollo, pursuant to notice, moved - That the Report of the Legislative Review Committee on Regulations under the Passenger Transport Act 1994, be noted.

                 Debate ensued.

                 Question put and passed.

 

Legislative Review
Committee - Report
on Regulations under
the Passenger
Transport Act -
Motion re.

15.

The Minister for Aboriginal Affairs and Reconciliation, pursuant to notice, moved - That it be an Instruction to the Select Committee on Pitjanjatjara Land Rights for the quorum of Members necessary to be present at all meetings of the Committee be fixed at three during the unavailability of the Hon. N. Xenophon due to illness or until the resumption of the sitting of the Council on Monday, 17 February 2003.

                 Debate ensued.

                 Question put and passed.

                

Select Committee on
Pitjantjatjara Land
Rights - Quorum -
Instruction  re.

16.

Ordered - That Orders of the Day (Private Business) No. 1 to No. 5 be Orders of the Day for Wednesday next.

 

Postponement
of Business.

17.

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

         I.       That this Council expresses its deep concern at the drain that the Emergency Services Administrative Unit is on this State’s Emergency Services; and

        II.       Further, this Council calls on the Minister for Emergency Services to dismantle the Emergency Services Administrative Unit:

             Debate resumed.

                 Question - That the motion be agreed to - put.

Emergency
Services
Administrative
Unit -
Motion re.

 

             Council divided:

Ayes, 5

The Hon. M. J. Elliott

The Hon. A. L. Evans

The Hon. S. M. Kanck

The Hon. J. F. Stefani

The Hon. I. Gilfillan (Teller)

 

Noes, 13

The Hon. G. E. Gago

The Hon. P. Holloway

The Hon. D. V. Laidlaw

The Hon. R. D. Lawson

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. J.S.L. Dawkins (Teller)

 

 

        So it passed in the negative.

 

 

18.

Ordered - That Order of the Day (Private Business) No. 7 be an Order of the Day for next day of sitting.

 

Postponement
of Business.

19.

Ordered - That Orders of the Day (Private Business) No. 8 to No. 12 be Orders of the Day for Wednesday next.

 

Postponement
of Business.

20.

Ordered - That Order of the Day (Private Business) No. 13 be discharged.

 

Business
Discharged.

 

21.

Ordered - That Orders of the Day (Private Business) No. 14 to No. 26 be Orders of the Day for Wednesday next.

 

Postponement
of Business.

22.

Ordered - That Orders of the Day (Private Business) No. 27 to No. 30 be Orders of the Day for next day of sitting.

 

Postponement
of Business.

23.

Ordered - That Orders of the Day (Government Business) No. 1, No. 2, No. 4 and No. 6 be Orders of the Day for next day of sitting.

 

Postponement
of Business.

24.

On the Order of the Day being read for the adjourned debate on the on the question - That the Upper South East Dryland Salinity and Flood Management Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. R. K. Sneath, the debate was adjourned until next day of sitting.

 

Upper South East
Dryland Salinity
and Flood
Management Bill.

25.

Ordered - That Order of the Day (Government Business) No. 8 be postponed and taken into consideration on motion.

 

Postponement
of Business.

26.

On the Order of the Day being read for the adjourned debate on the on the question - That the Training and Skills Development Bill be now read a second time:

                 Debate resumed.

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

 

Training and
Skills
Development
Bill.

27.

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

                 Debate resumed.

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

 

Criminal Law
(Forensic
Procedures)
(Miscellaneous)
Amendment Bill.

28.

On the Order of the Day being read for the adjourned debate on the motion of the Minister for Aboriginal Affairs and Reconciliation - That this Council requests Her Excellency The Governor to make a proclamation under section 43(4) of the National Parks and Wildlife Act 1972 to vary the proclamation made under Part 3 of that Act on 14 August 1997 so as to remove the ability to acquire or exercise pursuant to that proclamation pipeline rights under the Petroleum Act 1940 (or its successor) over the portion of the Flinders Chase National Park described as Section 53, Hundred of Borda, County of Carnarvon:

                 Debate resumed.

                 Question put and passed.

 

National Parks
and Wildlife Act -
Governor to make

Proclamation -
Flinders Chase
National Park -
Motion re.

29.

On the Order of the Day being read for the adjourned debate on the on the question - That the Constitution (Ministerial Offices) Amendment Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. J. F. Stefani, the debate was adjourned until next day of sitting.

 

Constitution
(Ministerial Offices)
Amendment Bill.

30.

The Minister for Aboriginal Affairs and Reconciliation, by leave, tabled a copy of a Ministerial Statement made by the Attorney-General (The Hon. M. J. Atkinson, M.P.) concerning a Review of the Residential Tenancies Act 1995.

 

Paper Tabled.

31.

The Minister for Aboriginal Affairs and Reconciliation, by leave, tabled a copy of a Ministerial Statement made by the Minister for Environment and Conservation (The Hon. J. Hill, M.P.) concerning Music House.

 

Paper Tabled.

32.

Ordered - That the Council, at its rising, do adjourn until tomorrow at eleven o’clock a.m.

 

Next Day
of Sitting.

33.

On the Order of the Day being read for the adjourned debate on the motion of the Minister for Aboriginal Affairs and Reconciliation - That this Council, pursuant to section 13(7) of the West Beach Recreation Reserve Act 1987, grants its approval to the West Beach Trust granting a lease or licence for a term of up to 50 years over each of the areas within the Reserve within the meaning of the Act identified as “BB”, “Y” and “Z” respectively in the plan deposited in the General Registry Office numbered GP 496/1999:

                 Debate resumed.

                 On motion of the Hon. R. K. Sneath, the debate was adjourned until next day of sitting.

 

West Beach
Recreation Reserve
Act 1987 - West
Beach Trust Granting
Lease or Licence
within Reserve for
term up to 50 years -
Motion re.

34.

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

Message No. 78

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith, entitled an Act to refer certain matters relating to terrorist acts to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth, to which it desires the concurrence of the Legislative Council.

House of Assembly, 27 November 2002.                                                                    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.

 

Messages from
House of Assembly:
Terrorism
(Commonwealth
Powers) Bill.

 

 

Message No. 79

                 MR. PRESIDENT - The House of Assembly has disagreed to the amendments made by the Legislative Council in the Criminal Law (Sentencing) (Sentencing Guidelines) Amendment Bill as indicated in the annexed Schedule.  The House of Assembly returns the Bill herewith and desires its reconsideration.

House of Assembly, 27 November 2002.                                                                    I. P. LEWIS, Speaker.

 

Criminal Law
(Sentencing)
(Sentencing
Guidelines)
Amendment Bill.

 

 

Schedule of the amendments made by the House of Assembly

to which the House of Assembly has disagreed

No. 1.      Page 3, line 14 (clause 4) - Leave out proposed subsection (1) of new section 29A and insert:

                          (1) The Full Court may, by declaratory judgment (a guideline judgment), establish, vary or revoke sentencing guidelines.

No. 2.       Page 4, lines 5 to 18 (clause 4) - Leave out proposed new section 29B and insert:

(a)                     Initiation of proceedings for guideline judgment

                            29B. (1) Proceedings for a guideline judgment may be commenced—

                          (a)        on the Full Court's own initiative; or

                          (b)        on application by the Director of Public Prosecutions; or

                          (c)        on application by the Attorney-General; or

                          (d)        on application by the Legal Services Commission.

                          (2) An application for a guideline judgment must be accompanied by the applicant's proposal as to the terms in which the judgment should be given.

                          (3) The Full Court may, if it thinks appropriate, give a guideline judgment in the course of determining an appeal against sentence.

                          (4) However, if the Attorney-General has applied for a guideline judgment, the proceedings must be separate from other proceedings in the Full Court.

                  Sentencing Advisory Council to be given opportunity to make written report on proposal for guideline judgment

                          29BA. (1) If proceedings for a guideline judgment are commenced by application to the Full Court, or the Full Court itself initiates such proceedings, the Registrar must—

                          (a)        notify the Sentencing Advisory Council of the Court's intention to hear and determine the proceedings; and

                          (b)        request the Council to make a written report to the Court, within a reasonable time stated in the request, on the questions to be considered by the Court in the proceedings.

                          (2) If the proceedings have been initiated by an application, the notification and request must be accompanied by a copy of the applicant's proposal as to the terms in which the judgment should (in the applicant's opinion) be given.

 

 

 

                  Representation at proceedings

                          29BB. (1) Each of the following is entitled to appear and be heard in proceedings for a guideline judgment:

                          (a)        the Director of Public Prosecutions;

                          (b)        the Attorney-General;

                          (c)        the Legal Services Commission;

                          (d)        the Aboriginal Legal Rights Movement Inc.;

                          (e)        an organisation representing the interests of offenders or victims of crime that has, in the opinion of the Full Court, a proper interest in the proceedings.

                          (2) The Sentencing Advisory Council may appear in the proceedings and, if the Full Court requires assistance from the Council (beyond its written report), must appear in the proceedings.

                          (3) If the Sentencing Advisory Council appears in the proceedings, it is to be represented by one of its members who is a legal practitioner or by independent counsel instructed by the Council to represent it.

No. 3.       Page 4, lines 20 to 24 (clause 4) - Leave out subsections (1) and (2) of new section 29C.

No. 4.       Page 4 (clause 4) - After line 32 insert the following new Division:

          DIVISION 5—SENTENCING ADVISORY COUNCIL

                  Establishment of Sentencing Advisory Council

                          29D. The Sentencing Advisory Council is established.

                  Functions

                          29E. The functions of the Sentencing Advisory Council are as follows:

                          (a)        to report in writing to the Full Court on the giving, or review, of a guideline judgment;

                          (b)        to provide statistical information on sentencing, including information on current sentencing practices, to members of the judiciary and other interested persons;

                          (c)        to conduct research, and disseminate information to members of the judiciary and other interested persons, on sentencing matters;

                          (d)        to gauge public opinion on sentencing matters;

                          (e)        to consult, on sentencing matters, with government departments and other interested persons and bodies as well as the general public;

                          (f)         to advise the Attorney-General on sentencing matters.

                          Composition

                                29F. The Sentencing Advisory Council is to consist of not less than 7 and not more than 10 members of whom—

                          (a)        2 must have broad experience of community issues arising from administration of justice in criminal matters by the courts; and

                          (b)        1 must have experience in issues affecting victims of crime; and

                          (c)        1 must be a legal practitioner with broad experience in the defence of accused persons; and

                          (d)        1 must be a legal practitioner with broad experience in the prosecution of accused persons; and

                          (e)        the remainder must be experienced in the operation of the criminal justice system.

                          (2) The members of the Council are to be appointed by the Governor on the recommendation of the Attorney-General.

                          (3) A member of the Sentencing Advisory Council is to be appointed by the Governor to chair meetings of the Council.

                          Conditions of office of members

                                29G. (1) A member of the Sentencing Advisory Council holds office (subject to this section) for a term (not exceeding 3 years) specified in the member's instrument of appointment.

                          (2) A member's office becomes vacant—

                          (a)        if the member reaches the end of the member's term of office (unless the member is re-appointed for a further term); or

                          (b)        if the member dies or resigns from office; or

                          (c)        if the member is convicted of an indictable offence or an offence which, if committed in South Australia, would be an indictable offence; or

                          (d)        the member is removed from office by the Governor for misconduct.

 

 

 

                          Procedures

                                29H. (1) A meeting of the Sentencing Advisory Council may be convened by—

                          (a)        the Attorney-General; or

                          (b)        the person appointed to chair meetings of the Council.

                          (2) The member appointed to chair meetings of the Sentencing Advisory Council is to preside at meetings of the Council and, in the absence of that person, the members present are to choose one of their number to preside.

                          (3) The number of members necessary for a quorum at a meeting of the Sentencing Advisory Council is to be ascertained by dividing the total number of members of the Council by 2, ignoring any fraction resulting from the division, and adding 1.

                          (4) The Sentencing Advisory Council should act by consensus, if possible, but, if a general consensus of its members is not possible, a decision in which a majority of its members concur or, if they are equally divided in opinion, a decision in which the presiding member concurs, is taken to be a decision of the Council.

                          Staff

                                29I. The Sentencing Advisory Council is to have a secretary and any other staff reasonably necessary to enable it to carry out its functions.

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

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

 

 

_____________________

 

And it being twelve of the clock:

THURSDAY 28 NOVEMBER 2002

_____________________

 

 

 

Message No. 80

                 MR. PRESIDENT – The House of Assembly has agreed to the amendments made by the Legislative Council in the Native Vegetation (Miscellaneous) Amendment Bill without amendment.

House of Assembly, 27 November 2002.                                                                    I. P. LEWIS, Speaker.

 

Native Vegetation
(Miscellaneous)
Amendment Bill.

35.

Council adjourned at two minutes past twelve o’clock midnight until tomorrow at eleven o’clock a.m.

 

Adjournment.

 

_________________________

 

 

 

 

 

Members present during any part of the sitting:

 

 

 

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. M. J. Elliott

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. D. V. Laidlaw

The Hon. R. D. Lawson

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. C. Zollo