South Australian Current Acts South Australian Current ActsSchedule 2—Provisions relating to proceedings before a
qualified magistrate
In this Schedule—
exemption order means an order under section 13A;
prescribed order means an exemption order or a spent convictions order;
spent conviction order means an order under section 8A, 8B or 8C.
1A—Application for a spent conviction order—designated sex-related
offences and prescribed public decency offences
(1) The following
persons, in addition to a convicted person, may apply for a spent conviction
order to be made in respect of a conviction for a
designated sex-related offence or a prescribed public decency offence:
(a) if
the convicted person is a person with a mental incapacity—
(i)
the convicted person's spouse or domestic partner; or
(ii)
an adult who is a sibling or child of the convicted
person; or
(iii)
a person appointed as a guardian of the convicted person;
or
(iv)
any other person a qualified magistrate considers to be
an appropriate person to make an application in the circumstances of the
particular case;
(b) if
the convicted person is deceased—
(i)
the person who was the convicted person's spouse or
domestic partner at the time of death; or
(ii)
an adult who is a sibling or child of the convicted
person; or
(iii)
the executor or administrator of the convicted person's
estate; or
(iv)
any other person a qualified magistrate considers to be
an appropriate person to make an application in the circumstances of the
particular case.
(2) For the purposes
of this section, a person is, on a certain date, the domestic partner of
another if—
(a) the
person is, on that date, in a registered relationship with the other; or
(b) the
person is, on that date, living with the other in a close personal
relationship.
(3) In this
section—
close personal relationship means the relationship between 2 adult
persons (whether or not related by family and irrespective of their sex or
gender identity) who live together as a couple on a genuine domestic basis,
but does not include a relationship where 1 of the persons provides the
other with domestic support or personal care (or both) for fee or reward, or
on behalf of some other person or an organisation of whatever kind;
mental incapacity means the inability of a person to look after the person's
own health, safety or welfare or to manage the person's own affairs, as a
result of—
(a) any
damage to, or any illness, disorder, imperfect or delayed development,
impairment or deterioration of, the brain or mind; or
(b) any
physical illness or condition that renders the person unable to communicate
the person's intentions or wishes in any manner whatsoever;
registered relationship means a relationship that is registered under the
Relationships Register Act 2016 , and includes a corresponding law
registered relationship under that Act.
(1) An application for
an exemption order may relate to more than 1 relevant clause under
Schedule 1 and be made in relation to more than 1 offence.
(2) An application for
a spent conviction order may be made in relation to more than
1 conviction.
(3) An application for
an exemption order and an application for a spent conviction order made by the
same person may be heard jointly.
(1) The
Attorney-General and the Commissioner of Police—
(a) must
each be served with a copy of an application for a prescribed order; and
(b) may
each intervene in the proceedings relating to an application for a prescribed
order and, in so doing, be represented at a hearing of the application.
(2) In addition, in
the case of an application for an exemption order that relates to
clause 7 of Schedule 1, the designated Minister—
(a) must
be served with a copy of the application; and
(b) may
intervene in the proceedings relating to the application and, in so doing, be
represented at a hearing of the application.
(3) In this
clause—
designated Minister means—
(b) in
relation to an application for an exemption order that relates to
clause 7 of Schedule 1—the Minister for Disabilities;
Minister for Children's Protection means the Minister who has portfolio
responsibility for the office within the public service that is primarily
concerned with undertaking working with children checks under the
Child Safety (Prohibited Persons) Act 2016 ;
Minister for Disabilities means the Minister who has portfolio responsibility
for matters associated with the interests of persons with a disability.
(1) An application for
a prescribed order must be heard in private unless the applicant consents to
the hearing being in public or the qualified magistrate considers that, in the
circumstances of the case, the hearing should be in public.
(2) If a hearing is
held in private, the qualified magistrate may give directions as to who may be
present.
(3) If a hearing is
held in public, the qualified magistrate may order that there must not be
published by any means any particulars likely to lead to the identification of
the convicted person.
5—Principles governing hearings
(1) In any proceedings
for a prescribed order—
(a) the
qualified magistrate is not bound by the rules of evidence but may inform
himself or herself as the qualified magistrate thinks fit; and
(b) the
qualified magistrate must act according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal
forms.
(2) Without limiting
subclause (1) and despite any other clause, but subject to
subclause (3), a qualified magistrate may, if he or she thinks it
appropriate, conduct all or part of any proceedings entirely on the basis of
documents without the applicant or any representative attending or
participating in a hearing.
(3) Subclause (2)
does not apply if the Attorney-General or another Minister, or the
Commissioner of Police, has intervened in the proceedings.
(4) A
qualified magistrate may, if satisfied that an application for a prescribed
order is vexatious, misconceived or lacking in substance, dismiss the
application without holding a hearing.