SA Best
Hon Connie Bonaros MLC and Hon Frank Pangallo MLC
Emergency Response
A full review of the Emergency Management Act 2004, with a view to enacting legislation that specifically deals with responding to pandemics and other prolonged emergency situations.
Strongly Supported
This is very timely given the COVID-19 pandemic and possible future extreme or crisis events.
It is important South Australians are clear on when an emergency is declared and the scope and extent of the powers that exist within any legislation.
SA-BEST agrees with the LSSA that the Emergency Management Act 2004 was only ever intended for bushfires, cyclones and or other similar catastrophic events like earthquakes - not an international pandemic like the COVID-19 outbreak!
At the outset, SA-BEST supports in principle the notion of declarations that place decision making powers in the hands of an impartial, apolitical third party, based on expert advice.
As the LSSA would be aware, in March 2020 as a result of the global COVID-19 pandemic, the South Australian Parliament passed the COVID-19 Emergency Response Act 2020 ('the Act') which made various temporary modifications to the Emergency Management Act 2004, the South Australian Public Health Act 2001 and the Payroll Tax Act 2009.
The temporary modifications - or emergency measures which were accompanied by regulations - were aimed at dealing specifically with the current pandemic and, at the insistence of the crossbench and Opposition, were subject to regular review by the Parliament.
The Act has been amended from time to time with some provisions ceasing to operate as no longer required. The last of those powers ceased to have effect in December 2021.
Prior to their expiration, the Government indicated it would consider and introduce legislation aimed specifically at dealing with pandemics and the current COVID-19 pandemic. This did not eventuate.
It is worth noting at the time the changes were introduced, the Social Development Committee was in the process of undertaking a statutory review into the South Australian Public Health Act 2001. Given the pandemic was still in its infancy at the time, the Committee resolved not to hear evidence on the amendments.
However, the final report of the Committee did recommend all changes associated with the COVID-19 pandemic be considered for review by the Social Development Committee.
SA-BEST strongly supports this next step although it considers the review may be required prior to the expiration of the current state of emergency declaration.
It is clear the Emergency Management Act 2004 was never intended for long-term pandemics.
It is our understanding the Government has taken the view the existing legislation is sufficient to rely on throughout the COVID-19 pandemic, and to date, this has not been challenged in any meaningful way.
Notwithstanding either of these two factors, SA-BEST maintains there is a very clear need for separate dedicated legislation to deal with pandemics particularly when they are protracted in nature.
SA-BEST is particularly focused on there being sufficient transparency, accountability, oversight and review mechanisms incorporated in any future legislation.
Access to Justice
More funding to LSC to a level that enables the Commission to fund legal aid to all those below or at the poverty line.
Strongly supported
Funding for legal representation for people subject to guardianship, medical treatment and residence orders, who appear at SACAT in 1st instance matters.
Strongly supported
Increased and sustained funding for LSC, Women's Safety Service, Women's Legal Service, and other service providers that support survivors of domestic violence to understand and safely access legal processes and tools relating to domestic violence.
Strongly supported
Measures to ensure timely access to professional interpreters for applicants, protected persons and defendants from non-English speaking backgrounds.
Strongly supported - especially for Aboriginal and Torres Strait languages, and languages of disadvantaged, oppressed, minority and newly arrived migrant groups.
Publicly available assessments of legal need in South Australia, broken down into State and Commonwealth matters, to inform the a/location of State funding to the LSC, Community Legal Centres and ALRM.
Strongly supported. Public funding of all provided legal services should be publicly available and disclosed.
Privacy Protections
The introduction of laws to allow victims of serious invasions of privacy to seek compensation.
Strongly supported
New laws that require Government agencies to safely manage personal data that has been collected for the purpose of Covid management, including deleting contact tracing data after 28 days.
Strongly supported
As a general comment, SA-BEST wants the State Government to substantially improve and safely manage all personal data security, including for the purpose of COVID-19 management. Recent data breaches of the personnel records of over 80,000 State Public Servants illustrated the need to vastly improve data security across the board.
SA-BEST strongly supports deleting contact tracing data after 28 days, including there being very strong laws about sharing, storing, using and destroying backups of data for COVID-19 tracing and other purposes. There should be no doubt the data can only be used by relevant agencies and strictly for the purposes of COVID-19 management.
Youth Justice
An increase in the age of criminal responsibility in SA from 10 to 14 years.
In principle support
Increasing the age of criminal responsibility to 14 years is consistent with the position of the United Nations Committee on the Rights of the Child.
The age of criminal responsibility is meant to reflect the age at which a child is able to understand their actions are wrong and they may face criminal charges as a result of such actions as well as the consequences of those actions.
It is universally acknowledged children aged 10 or even 12 or 13 simply do not possess that cognitive function. This is evidenced by the fact that like many other parts of the world, Australia does not allow children in these age groups to vote, gain access to a motor vehicle licence, smoke or consume alcohol, among other activities.
In Australia, Aboriginal and Torres Strait Islander children aged between 10 and 14 years make up almost two thirds of children in that age group in juvenile detention. There is no question this issue impacts our most disadvantaged and vulnerable community members more than any other group. It also serves to perpetuate generational cycles of disadvantage.
It is important to note there are considerable developments nationally to increase the age of criminal responsibility to 12 years.
At a recent COAG meeting, state Attorneys-General supported development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements .
The Northern Territory committed to raising the age of criminal responsibility to 12 based on the recommendations of the Royal Commission into the Protection and Detention of Children in the NT in 2017 but has yet to act on that commitment.
The Australian Capital Territory has signalled its intention to introduce legislation to raise the age to 14 this year following a Review of the Service System and Implementation Requirements for Raising the Minimum Age of Criminal Responsibility in the ACT in 2021.
In principle, SA-BEST supports the adoption of a nationally consistent approach where appropriate, based on all available evidence. In this instance, we note the national approach falls well short of the model approach which has the overwhelming support of industry experts and stakeholder groups.
SA-BEST calls on the State Government to undertake comprehensive consultations and to work collaboratively with stakeholders - including service providers and staff in corrections settings, experts and researchers - on this issue to develop nationally consistent legislation consistent with the model approach.
We are being constantly made aware of grave concerns of parents, family, child protection workers, counsellors, youth training officers, courts, lawyers, the Legal Guardian and the Commissioners for Children and Young People about the failures of the juvenile justice system.
There must be a focus away from detention, and a renewed focus on providing more appropriate and more readily available support services and programs (including voluntary and mandatory drug rehabilitation programs), diversionary programs, educational programs and living resources for children and young people who are at risk of, or who have engaged with, the criminal justice system.
There needs to be a genuine and appropriately resourced focus on breaking cycles and generations of disadvantage. Increasing the age of criminal responsibility does not equate to a "soft on crime" attitude towards minors who offend.
As highlighted above, it does however perpetuate those cycles of disadvantage that are almost guaranteed to see our most disadvantaged and vulnerable community members stay in the criminal justice system well beyond their teens, if not their entire adulthood. It perpetuates social disadvantage, poverty and physical and mental health problems.
SA-BEST is of the strong view the South Australian Parliament cannot defer consideration of this issue indefinitely and notes some jurisdictions are already taking proactive steps to implement their own legislation.
As stated at the outset, national consistency is the preferred option. In the absence of national consistency and consensus, SA-BEST will continue to support legislation increasing the age of criminal responsibility at a state level consistent with the model approach.
Securing the long-term future of the Reunification Court by entrenching it in legislation.
Strongly supported
SA-BEST's policies around child protection and reunification are premised on the best interests of the child and the paramountcy principle.
In many instances, the removal of a child from their family is the only suitable option in the best interests of the child. That said, removal - especially permanent removal - should be deemed a choice of last resort.
As of October 2021, there were 4646 children in state care - an increase of 300 compared to the previous year. The year before had similar results. There has also been an increase in applications for 18-year orders particularly as they relate to indigenous children.
It is little surprise then that the Commissioner for Aboriginal Children and Young People has signalled her intent to conduct an inquiry into these growing numbers.
SA-BEST is increasingly concerned at the growing number of children in state care, the increase in 18-year order applications and the complete lack of "wrap around" services and support services provided to vulnerable families, particularly indigenous families.
SA-BEST supports a stronger focus on family reunification where appropriate and also calls for family reunification models to be further developed (particularly for indigenous families) and implemented in SA as part of a "root and branch" reform of the child protection system in South Australia.
SA-BEST is committed to working closely with our indigenous communities to ensure their concerns around the need for reunification and the importance of family and culture are understood and are central to any such root and branch reviews.
SA-BEST also remains committed to prescribing in legislation the Aboriginal placement principles and ensuring they are adhered to.
SA-BEST is opposed to the Liberal Government's policy of making the adoption process easier when it comes to children in state care, as proposed in its most recent legislative agenda, especially given the recent spike and increasing numbers of applications for 18-year orders.
Greater resources to ensure all young people under long term guardianship of the State receive services and support to transitions from care to independence.
Strongly supported
Such resources should include educational support for post-secondary fees and costs, housing and counselling for children who have often been deprived of life skills that might have been attained but for their removal from their families and therefore require higher levels of supports than their peers.
Legislative reform to enable the Minister for Child Protection to provide reliable support for young people in State care until 25 years.
Strongly supported
As above, including educational support for post-secondary fees and costs, housing and counselling, but also tailored supports according to need, and provided when and where needed.
Legislative Transparency and Accountability
Establishment of a Scrutiny of Bills and Delegated Legislation Committee in the SA Parliament.
Strongly supported
SA-BEST notes there is a report by the South Australian Parliament's Effectiveness of the Current System of Parliamentary Committees Committee - initiated and chaired by Connie Bonaros - that is highly relevant to this issue.
The report produced in August 2021 had the unanimous and bipartisan support of all Members of Parliament.
South Australia is the only jurisdiction that doesn't have a scrutiny of bills committee.
The Inquiry highlighted the need for a new approach to parliamentary committees to ensure an effective and more efficient accountability and scrutiny mechanism. The consultation and comparison with other jurisdictions highlighted a lack of committee scrutiny over Bills to assist the Parliament in its debate and ultimate legislative outcomes for the people of South Australia.
SA is currently the only bicameral Australian mainland Parliament without a Scrutiny of Bills/legislation committee, with academics, stakeholders and members of the community seeking the Parliament to provide more opportunities for engagement with the law makers of this State.
The State Parliament's approach to scrutinising the Budget Estimates process was also compared with the other jurisdictions , with the Committee noting it as the only bicameral jurisdiction not involving its Upper House members in this scrutiny process.
The Committee considered it prudent to bring SA in line with accepted practices seen in all other jurisdictions . This extended to appropriate staffing and resourcing practices and processes.
Currently, the only Committee with a scrutiny role is the Legislative Review Committee. South Australia is well overdue for reform in this area.
The findings and recommendations of the report comprehensively canvassed these important issues. Please find a copy attached to this document.
Importantly , a Bill is currently under development which seeks to overhaul South Australia's committee structure in line with other jurisdictions , including the Federal Parliament.
These reforms include the establishment of a Scrutiny of Bills and Delegated Legislation Committee as well as changes to the existing Legislative Review Committee and a number of other important changes outlined in the report.
Connie has served on the Legislative Review Committee since becoming a Member of Parliament.
In 2021, that Committee undertook a review into its functions and workload. Connie submitted a Minority Report highlighting a number of concerns around the Committee's processes and core functions. Among those concerns was the fact that delegated legislative instruments have become the primary form of lawmaking
In 2020 alone, a total of some 514 pieces of legislation were enacted. Of those, 45 enactments were primary legislation enacted by the Parliament while the remaining 469 instruments were delegated instruments reviewed by the Committee.
Putting aside questions of the over-reliance on delegated legislation in our lawmaking, this raises serious issues around appropriate levels of transparency and scrutiny - the core functions of the Committee.
The ever-increasing volume and the complexity of work of the Committee means there is not adequate time assigned to properly review the subordinate legislation before the Committee, let alone undertake its new role of inquiring into petitions, adequately and effectively.
The time allocated for the Committee is also not commensurate with the level of work and scrutiny that is required.
The inherent risk in the Committee's current practice and time restraints is that despite its best intentions, issues of significance could easily be overlooked.
From an accountability perspective, this simply is not acceptable. Similarly, working under the current time and resourcing constraints is not feasible for staff and Members alike.
Connie highlighted the makeup of the Committee does not promote a multi-partisan approach to the review and scrutiny work of the Committee. Indeed, it has become common practice for successive Chairs of the Committee to exercise their casting vote to wave through legislative instruments that clearly don't meet the scrutiny expectations of at least half of the Committee Members.
The lack of appropriate reporting on the work of the Committee means other Members of Parliament are not alerted to these contentious votes.
Even more concerning, over the past 20 odd years, successive State Governments of all persuasions have bypassed regulations by using by-laws, codes, and guidelines which involve no oversight other than government-controlled Committee processes.
In terms of transparency and accountability, Connie's Minority Report highlighted the Committee requires government agencies to provide a report accompanying the subordinate legislation reviewed by the Committee.
The departments and agencies who report to the Committee are meant to demonstrate they have considered the scrutiny requirements . One of the greatest abuses in reports is the absence of information relating to any consultation the department and agencies have undertaken in drafting those regulations.
The Committee's difficulty in obtaining information relevant to proposed subordinate legislation can often prevent proper scrutiny by the Committee, thereby creating additional work and ultimately making the Committee's deliberations partisan in nature.
These matters were also canvassed extensively by expert witnesses appearing before the subsequent inquiry undertaken by the Select Committee into the Effectiveness of the Current System of Parliamentary Committees, instigated by SA-BEST.
The draft legislation to be considered by the next Parliament is aimed directly with these very important issues.
See also, above response to the next three dot points.
Review of the Subordinate Legislation Act 1978 with a view to raising the standards and requirements for making delegated legislation in SA.
Strongly supported (See above response).
Proper resourcing of committees tasked with reviewing proposed legislation, including delegated legislation, to ensure these committees can undertake meaningful and robust reviews of proposed legislation.
Strongly supported
This issue was canvassed extensively in the final report of the Effectiveness of the Current System of Parliamentary Committees Committee. Those recommendations that do not require legislative change are already under consideration. Changes to the resourcing of committees, in line with the findings and recommendations of the Committee, will also form part of the Bill currently under development.
SA-BEST has been an outspoken advocate to improve transparency and accountability of government. We have repeatedly pointed out almost 90% of all laws passed in SA are done via regulation , and that this provides for very limited oversight.
Implementation of a parliamentary policy to ensure proper public consultation within an agreed framework in relation to timeframes and processes of consultation
Strongly supported
Successive governments have long used 'Cabinet in confidence' as a means of preventing access to submissions and consultation processes which go to the heart of important legislative reform.
The same mechanism has also been used to prevent committees from accessing submissions and feedback pertinent to their consideration of subordinate legislation, amongst other things.
During Parliamentary debates, it has become common practice for MPs to seek out the information they require from stakeholders who have contributed to public consultation processes, via their own requests because they are unable to access it via the government, on the basis that it is confidential.
This is neither feasible nor practical and often results both in unnecessary delays and unsound outcomes. The implementation of any policy needs to ensure all of these issues are appropriately addressed.
See also, above responses.
Whistleblower Protection
A review of the Public Interest Disclosure Act 2018, in the wake of ICAC reform with a view to determining whether legislative amendment is necessary to return the Act's scope and vision.
SA-BEST notes there is a review mechanism under the ICAC amendments recently passed but agrees a full review of the Public Interest Disclosure Act 2018 would be worthwhile, after some three years of operation of the Act.
SA-BEST notes the need to also review protections for journalists and public servants under whistleblower legislation.
Full and proper disclosure and consultation with the community as to any permanent changes to the Public Interest Disclosure Act 2018 and the consequences for those in the public sector.
Strongly Supported
Court Funding
A policy that requires the Government to publicly disclose the process by which Court fees are determined and where the monies are allocated.
Strongly supported
In addition, SA-BEST calls for a review of funding provided to all courts with a particular focus on better resourcing the Coroner's Court jurisdiction.
Lowering the overall cost of court trial and listing fees in the civil jurisdiction.
Strongly supported
A review of fees in South Australia by comparison with other jurisdictions - including the Federal Court system - would also be most worthwhile.
Elimination of court transcript fees.
Strongly supported - especially where available and able to be provided electronically.
Probate filing fees to be set at a more equitable level, by either setting a flat fee or setting fees according to the net value of an asset.
Strongly supported
Establishment of a building tribunal to resolve building disputes.
Strongly supported
SA-BEST's predecessors were instrumental in the passage of security of payment legislation in this jurisdiction. Since then, SA-BEST has continued to look for improvements in resolution mechanisms and consulted with the equivalent bodies in other jurisdictions - including Queensland - in response to high levels of complaints and disputes regarding building works. A new tribunal or body must be independent of industry and government, with its own legislation, staffing, resourcing, compliance and enforcement.
An increase in funding for suitably qualified mediators within the court system.
Strongly supported
Fairer Compensation
An increase in compensation actually paid to victims of crime following a review into the current scheme, including its formula for determining compensation.
Strongly supported
SA-BEST believes there should be a full review of the Victims of Crime Act 2001 including the levies and eligibility criteria for victims of crime to streamline and tailor payments that better reflect the level of harm caused to victims of crime.
SA-BEST supports, in principle, the establishment of an independent tribunal to a consideration of any review.
A tribunal would consider the circumstances of each victim's claims in detail, being able to call on expert advice or assistance as needed .
Although maximum payments to victims have increased, SA-BEST is aware of many cases where these have been inadequate or unfair.
There should also be a full review of the administration and allocation of criminal assets confiscation funds.
SA-BEST believes proceeds of crime funds should be directed to rehabilitation services and education programs, as per the original legislation and subsequent agreements. These funds should not be treated as general revenue or to prop up funding of the state's judicial system.
Removal of victims of crime levies for young people.
Strongly supported
SA-BEST strongly supports waiving fees for Intervention Orders but notes the need to ensure the focus of any relevant legislation is on victims and does not create a perverse outcome whereby perpetrators can more easily apply for variations to current Intervention Orders to further traumatise and control their victims.
A more transparent process for review of and changes to the workers compensation scheme.
Strongly supported
SA-BEST strongly supports the reversal of the most recent government decision which enables the Minister for Industrial Relations to change threshold guidelines well above what was ever anticipated, and without any Parliamentary oversight.
The establishment of a process to ensure any proposed changes to the Impairment Assessment Guidelines be subject to Parliamentary review.
Strongly supported
SA-BEST believes these provisions need to be legislated and not just guidelines that can be easily changed without scrutiny.
See also above, comment on the Legislative Review Committee's report.
Criminal Justice Reform
A full review involving community and stakeholder consultation as to the scope and operation of the Spent Conviction Act 2009 with a view to developing a Bill to amend the Act.
Strongly supported
Funding to increase the capacity of rehabilitation courses within prisons to ensure prisoners have the opportunity to participate in relevant courses to rehabilitate and be considered for parole.
Strongly supported
See above, SA-BEST calls for proceeds of asset confiscation to be directed to this area as originally agreed.
The establishment of a formal process to give the Office of the Director of Public Prosecutions carriage of Major lndictable matters from commencement of a matter and adequate resources to enable the DPP to conduct such matters.
Strongly supported
The Crime and Public Integrity Policy Committee has repeatedly heard of difficulties and failed prosecutions, arising through lack of clarity regarding which agency has responsibility for what matters.
SA-BEST notes this lack of clear responsibility and accountability has severely disadvantaged victims.
Fidelity Fund
Implementation of financial measures to halt the decline in the Fidelity Fund, which do not involve further increases (beyond inflation adjustments) in the annual cost of practising certificates.
Strongly supported
Other Justice/Legal Profession reforms proposed and or supported by SA-BEST
SA-BEST will be calling for a full review and reform of the SA Parole Board, including the Correctional Services Act 1982 provisions covering the Parole Board, and other related Acts relevant to the eligibility, granting and declining of parole for prisoners. It considers the South Australian Law Reform Institute (SALRI) is best placed to undertake a review and recommend legislative change.
SA-BEST also advocates for a review of the operation and conduct of the Legal Practitioners Conduct Commission.
In 2020, SA-BEST successfully moved a motion calling for an independent review into harassment in the legal profession. The report of the Review of Harassment in the South Australian Legal Profession was finalised in April 2021. It made 16 recommendations aimed at supporting the development of safe and inclusive workplaces in the legal profession.
SA-BEST will continue to call for the full implementation of the recommendations made by the Equal Opportunity Commissioner as part of that review.
SA-BEST strongly supports the Commissioner's recommendations requiring legislative change and calls on the Law Society and the judiciary to ensure all such legislative changes are supported and endorsed by those bodies.
It also calls on the Law Society and the judiciary to continue to work towards implementing such other changes as recommended by the Commissioner (that do not require legislative change) in a timely manner.