Media Release - Proposed laws have profound impact on vulnerable people

20 September 2016


A raft of proposed new laws which have significant ramifications for some of the most vulnerable people in South Australia will be on the agenda as State Parliament resumes today. To mark the resumption of Parliament, the Law Society has provided a summary of its submissions on four Bills that propose substantial reforms to existing legislation. 

Protection and Well-being of Children and Young People (Oversight and Advocacy Bodies) Bill 2016

A Bill that responds to several recommendations of the Child Protection Systems Royal Commission. It establishes a Commissioner for Children and Young People and consolidates the work of the Guardian for Children and Young People and the Death and Serious Injury Committee into a single Act of Parliament.

The Law Society’s view:
The Law Society supports the inclusion of a Children’s Commissioner in the Bill, but the proposed legislation needs clarification with respect to when the Commissioner can investigate individual complaints as a means to potentially uncovering a systemic problem.

The Royal Commission into Child Protection Systems did not recommend that the Children’s Commissioner be an office for individual grievances, as the Ombudsman and other agencies can handle such matters. But investigation of individual complaints is often the route to uncovering systemic issues, as what the case with Shannon McCoole.

While we contend that the Children Commissioner, as the highest authority on child protection and welfare in SA, should be empowered to investigate individual complaints that may highlight systemic issues, we support, as a compromise, the ability of the Commissioner or Guardian to help children navigate the adult-centric offices of the Ombudsman and Heath and Community Services Complaints Commissioner (HCSCC).

The legislation must guarantee the independence and impartiality of the Children’s Commissioner, Guardian, and HCSCC to ensure greater advocacy for the rights of children. Furthermore, these offices must be resourced with specialist employees who have experience working with vulnerable children, and can guide them through complaints mechanisms.

Read the Law Society’s submission on the Protection and Wellbeing of Children and Young People Bill

Criminal Law Consolidation (Mental Impairment) Amendment Bill 2016

A Bill that amends part 8A of the Criminal Law Consolidation Act 1935, which deals with the mental competence of accused persons and their release on licence. The Bill would preclude those found to be mentally incompetent whose conduct wad caused by self-induced intoxication. The Bill also introduces continuing supervision orders for those found not guilty by way of mental incompetence. 

The Law Society’s view:
The Bill ignores medical evidence about the interrelationship between substance use and mental illness, and effectively disregards recognised medical conditions such as drug induced psychotic disorder.

The Bill also perverts the concept of “mens rea” – translated as “a guilty mind” – which is a bedrock principle of the criminal justice system. 

Precluding self-induced intoxication would expose more people to the grave injustice of being found guilty of a crime where they were not mentally competent to commit the offence. 

Demonstrating mental incompetence is a very high bar involving rigorous psychiatric assessments. The law should recognise the prevalence of comorbidity in the community and criminal justice system.

Introducing continuing supervision orders contradicts the purpose of the mental competence provisions of the law, which are to assist people with cognitive impairments, not punish them.

Mental illness is a health issue, not a criminal issue. Needlessly punishing people with continued supervision orders would be unhelpful and an unnecessary drain on the courts system, especially when the Mental Health Act already gives medical practitioners the power to administer compulsory treatment and monitor people who are subject to community treatment orders

Read the Law Society’s submission on the draft Mental Impairment Amendment Bill 

Births, Deaths and Marriages (Gender Identity) Amendment Bill 2016

A Bill to facilitate and streamline the process for people wanting to be change their sex or gender registered on the Births Deaths and Marriages Register.

The Law Society’s view:
The Law Society fully supports the introduction of this Bill, which adopts several recommendations from the South Australian Law Reform Institute’s inquiry into laws that discriminate against people based on sexual orientation, gender, gender identity and intersex status.

The Bill allows people to be formally recognised as the gender they identify with, without having to undergo hormone treatment or sexual reassignment surgery. A person will still need certification from a medical professional or psychiatrist that they have received the appropriate clinical treatment in relation to their gender identity. 

The Bill is a natural step towards equal rights for LGTBIQ people, who deserve to be free from discrimination.

It is a basic right of human dignity to live a life in accordance with the gender identity you hold. Being forced to be formally classified as the opposite gender to that by which you identify yourself can be traumatic, de-humanising and, obviously, unfair.

The Bill enables transgender members of the community to feel safer, respected and validated. Everyone has a right to feel that way.

Read the Law Society’s submission on the Gender Identity Bill

Sentencing Bill 2016

A Bill to reform legislation that deals with the sentencing of offenders in South Australia.

The Law Society’s view:
While the Law Society has a number of concerns with the Sentencing Bill, the Society supports the overall intention of the proposed laws, which broaden sentencing options available for offenders.

The introduction of greater community based sentencing options gives courts greater powers to give appropriate sentences to offenders. Increasing the focus on community based rehabilitation will reduce repeat offending and make the community safer, which is the primary objective of sentencing.
There are too many people who should not be in prison. For many inmates with relatively short terms of incarceration, being in prison serves no practical purpose – It doesn’t protect the community, it doesn’t reform the offender, and it is extremely costly to the taxpayer.
Prison is needed in the case of some offenders to punish them and protect the community, but should be used sparingly for those who do not pose a risk to the community.

Prisoners with shorter custodial sentences are often not eligible for rehabilitation programs, so their lives are upended for months only for them to be released into the community with no support services. It’s in the offenders’ interests and the public interest that courts have the option to consider home detention because we know people who have committed minor crimes are more likely to get back on track in the community rather than jail.

Read the Law Society’s submission on the Sentencing Bill

Media contact: Michael Esposito 0422 073 146 

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