Home Invasion: Criminal Trespass Bill rushed through

	Extract from Hansard Legislative Council 18 November 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Spring Session Index Browse by Subject About the SA Parliament Hansard on line

CRIMINAL LAW CONSOLIDATION (SERIOUS CRIMINAL TRESPASS) AMENDMENT BILL
(edited transcript)

(2) A place is to be regarded as open to the public if the public is admitted even though-

(b) the occupier limits the purposes for which a person may enter or remain in the place by express or implied terms of a public invitation.

(3) A person who enters or remains in a place with the consent of the occupier is not to be regarded as a trespasser unless that consent was obtained by-

(4) A reference in this section to the occupier of a place extends to any person entitled to control access to the place.

The Hon. IAN GILFILLAN: It appears that the amendments certainly improve the bill. I want to repeat what I indicated earlier: the Democrats believe that this is legislation with almost indecent haste, and I would ask the Attorney- General to answer my question as to why this bill and the succeeding one need to be dealt with before Christmas. Why is there this peremptory insistence that it be dealt with when it was quite clear that, on reflection, quite substantial amendments were needed to the original draft.

It is not often that one finds a spelling mistake in bills introduced in this place, but on page 3, in clause 170, `commits' has three m's. I do not point that out with any emphasis of pedantry but an emphasis that the way we have been dealing with this legislation is really an embarrassment. It is an embarrassment to me, and I would far rather that this legislation be held over and dealt with after even further opportunity for the Attorney and his very efficient department and staff to look more closely at it. It is interesting that the whole of this impetus was given its horsepower through the term `home invasion'. `Home invasion' does not appear in the legislation, for which I am very grateful. The term `serious criminal trespass' is a worthwhile legal phrase and one which I can see having meaning and interpretation away from the emotional hype and the media pressure which really, in my view, has got us into this rather embarrassing situation.

I am also very interested to know that the Office of Crime Statistics is doing further work: I am very pleased to hear that, because I am optimistic that, given the opportunity and the freedom to make decisions, we will get some very sensible leadership from the Attorney's department and his advisers in improving legislation in South Australia. The fact that currently reliable, objective research is being carried out surely indicates that it would have been much wiser for us to have held over and analysed that information. The Attorney referred to the report from the Office of Crime Statistics dated 31 August. It is one which I found most enlightening and I am sure he did. It really puts the lie to the impression that has been put onto the people of South Australia that there is a sort of outbreak, a plague, of home invasion, and that its major targets are elderly people. There is a colloquial phrase, and the two letters `BS' are about as accurate as one can get for that interpretation of the facts.

The Hon. IAN GILFILLAN: I have the authority to say it, but I think I will leave it to an interjection. I cannot express my disappointment strongly enough. In the many years I have been in this place, through the Attorney and prior to him, the Hon. Chris Sumner, when he was Attorney, I believe we have approached legislation dealing with the law in a tripartisan, cooperative way to achieve the best, also recognising the independence of the judiciary. I highlight that, under the next bill, there is an instruction to judges in a unique way to consider imprisonment as if the crime commonly known as `home invasion' and now `serious criminal trespass' deserves specific and particular attention in terms of sentencing.

I indicate that the Democrats will be supporting the amendments on the basis that we believe they are in part an improvement. I would not be at all surprised if amendments to this legislation were debated before long. I certainly will not resist that move. I look forward to helping, if we can, to make it better legislation. I ask the Attorney again why there is pressure on this parliament to pass this legislation before Christmas. What is the advantage to the people of South Australia in having this passed in haste, before Christmas, when we could have continued to consider it in the new year?

The Hon. K.T. GRIFFIN: The reason is that there was a public commitment given to do it. The honourable member knows that I have tried to keep this debate on a balanced keel. In dealing with the issue publicly, it was obvious that there needed to be some circuit breaker to address the concerns which were being promoted and which were genuinely affecting many, particularly senior people, in our community. I said when I replied that the rally which was held on the steps of Parliament House had a very frightening aspect to it, almost bordering on hysteria. Notwithstanding that there were a number of older people who were particularly venting their spleen at me, nevertheless a number of those people, with a quite genuine sense of concern, were present both at that rally and in other forums. They are sensible people, including many single women, older single women, and widows in particular, and they have expressed to me the concern that they are very afraid and they want something done about that.

I have indicated, both in the second reading explanation and in my reply, that just passing a law such as this will not solve the problem. We need to have a much broader approach to dealing with the causes of crime, but ensuring that there is a criminal offence which is not breaching the integrity of the criminal law may go some way towards sending a signal to people that at least the criminal law aspect of the broad issue has been addressed. Many of those people who have spoken to me quite obviously were afraid because of a lot of the hype that had occurred through the media and public comment. I have sought to urge everybody who talks about this sort of issue, and crime in general, to act with a sense of responsibility in the way in which they promote a particular issue or set of circumstances, so that we do not unnecessarily beat up crime to the extent where ordinary citizens, who are only exposed to the facts or what they believe to be the facts through the media, suffer heightened fear as a result of that hype.

The Hon. IAN GILFILLAN: I appreciate that the Attorney's answer to my question was `We made a commitment.' I interpret that to mean that the commitment was made in the face of pressure from the opposition, the media and the crowd on the steps of parliament and that if the Attorney had had his way we would have had more time to deliberate. When these two bills are passed in their amended form, does the Attorney expect that those people who are frightened of home invasion will be able to rest easier in their homes as a result? If so, in what way will the two pieces of legislation have an effect on the commitment of the offences?

I recognise that the Attorney has already partially answered that question, but we need to crystallise it. If there is to be little or no effect on the offence, is not the charade of putting up these two bills, with both the push from the opposition and support from the nervous Nellies in the government, an act of deception on a rather gullible public, who think they will be safe as a result of these two bills?

The Hon. K.T. GRIFFIN: I would not accept that it is a charade. I would not accept-

The Hon. Ian Gilfillan: The bills are not a charade, but the image that they will make people immune from home invasion is a charade.

The Hon. T.G. Cameron: Do you believe that home invasions will fall now as a result of this legislation?

The Hon. K.T. GRIFFIN: I do not think anybody can make a judgment about that, but it is not a deception, because symbolism is important in endeavouring to ensure that the level of fear is diminished.

One can never really judge what impact changes to the criminal law will have on crime. I said in my second reading explanation when I introduced the bill that the impact of deterrence and whether it is actually achieved is something which frequently is difficult to discern. However, that is one of the sentencing principles that the court must take into consideration when imposing a sentence. There is no doubt that-

The Hon. Ian Gilfillan: If you find it tough to determine, how much tougher will it be for the court to determine?

The Hon. K.T. GRIFFIN: The courts deal with these sorts of cases daily. On a practical basis, they are endeavouring to balance the various principles which must be taken into account under the Criminal Law (Sentencing) Act. So, the principle of deterrence is one which the court must take into consideration.