Sentencing (Home Detention) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 December 2018.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (10:44): I rise to confirm the government's position in relation to this bill and in particular to confirm that we oppose the same. In doing so, I bring to the attention of the house that the government have advanced and, with the blessing of this parliament, produced reforms in relation to sentencing law, which cover not only the issues that were extant and the basis upon which this bill was presented for our consideration but also a number of other matters.

It follows a second attempt by the opposition to rush into this parliament to subvert prospective determinations by courts on matters the subject of the legislation; that is, sentencing laws passed by the previous Labor government were identified as being inadequate. One included the events of last year surrounding the Schuster case. This was a matter also particularly important to the Leader of the Opposition because a judge of the Supreme Court had announced the prospective potential of Mr Schuster being released from custody into a residential facility within his electorate.

I fully understand the concerns raised at that time by him and, indeed, by the Minister for Child Protection because this was a proposed move that was concerning to her and her electors and, indeed, the then federal member for Adelaide, the Hon. Kate Ellis, who had also raised concerns. I wrote to each of them to indicate that the government would be following up on this matter. I highlighted that we would fix some inadequacies of the law passed by the previous Labor government, and we did.

The second time surrounding this legislation was when the now infamous Deboo case was approaching a period in which there had been concern raised in the member for Elder's electorate. Resident in that electorate was Mr Deboo, who was the subject of charges in relation to serious child sex offences, historical offences that had happened some time before, to which Mr Deboo had pleaded guilty and was on bail. He continued to reside in his residence with certain conditions relating to his bail.

Only when public statements were made by one of the victims of Mr Deboo's behaviour—after he had pleaded guilty and remained on bail—did the Leader of the Opposition see fit to enter into this debate and make any public statement. In doing so, he did two things: he came to this parliament, into this house, with a bill to support a bill to change the Sentencing Act, which he thought was so urgent that there needed to be a suspension of standing orders. That request to the parliament was rejected. The grounds claimed were that there was no time to waste, that we needed to immediately progress this bill and not wait for the government's more comprehensive investigation of the assessment of the law and how it be remedied and that we needed to immediately attend to it.

That is notwithstanding that the debate we had on that matter on 13 November was clear that the case was not even listed until the end of that month, at a time to receive submissions in regard to sentencing, and, obviously, that there was no immediate threat, let alone the process that occurs after that for obtaining various reports to advise the sentencing judge and then the delivery of sentence. So the feigned urgency to deal with this matter was seen as political opportunism.

Nevertheless, the general principle needed to be addressed. This was the second tranche where the previous Labor government's sponsored laws had significant weaknesses. Not stopping at that, the Leader of the Opposition took the view that we should provide details of exactly what was going to be produced and when the draft legislation was going to be available, etc.

A situation has transpired where legislation has been introduced, and passed by this house, that comprehensively dealt with the issues that were extant, including weaknesses highlighted in respect of the previous government's legislation. To some degree, we come to a circumstance where this bill is neither useful nor will it be effective because we have remedied the problem.

Let me just reflect on two things for the house. One is that the weakness in the law, the ill that needed to be cured in this matter, related to section 70 of the Sentencing Act, which set out certain offences where home detention, as a sentencing option, was not to be available. They were murder, treason, offences involving a terrorist act and any other offence in respect of which an act expressly prohibits the reduction, mitigation or substitution of penalties or sentences.

The further circumstance where home detention was not available was set out in section 71(2)(b). Essentially, the broad position there is that home detention can only be granted to a person who is being sentenced for a 'serious sexual offence' if the court is satisfied that special circumstances exist, namely, that the person is of advanced age or infirm and no longer presents a risk to the community and the interests of the community as a whole are better served by a home detention sentence.

This bill purported to introduce a new model, which was to insert a new section 70A that effectively prohibited home detention being available to a whole lot of prescribed sexual offences. Some of the weaknesses in relation to the model (and, in fact, they are still in this bill) are that perhaps in the haste of dealing with it, I do not know, in listing the prescribed offences—which were obvious offences in relation to indecent assault, rape, gross indecency, abduction of a male or female person, etc., procuring sexual intercourse, all the usual offences—it failed to capture, for example, people who had committed incest, or a person who had committed an offence in part 3 of the Criminal Law Consolidation Act where the victim was an adult.

It failed to deal with a person who had committed an offence in other parts of the division, where the victim was an adult, and also all attempts to commit such offences. On the other hand, it made a person ineligible for home detention even if their single offence was in contravention of 63A of the CLCA, which is the possession of child exploitation material, and a householder not to permit unlawful sexual intercourse on a premises, which is under section 61. So there were clearly deficiencies in relation to progressing this model.

But I think what is even more important is that the Leader of the Opposition, during the course of the public discussion on the Deboo case, which appeared only to take the interest of the Leader of the Opposition once one of the victims had raised the matter publicly, had this to say back in 2015, when the then opposition worked very hard to restrict home detention being available to a number of parties regarding murder, treason, etc. We went through all those and we had these debates. This is what the Leader of the Opposition had to say in refusing to support an amendment proposed by the then opposition via, at that stage, Mr Andrew McLachlan. I will refer to it later.

Mr MALINAUSKAS (Croydon—Leader of the Opposition) (10:55): The opposition welcomes the opportunity to be able to close the debate on this important piece of legislation here today and hopefully have a vote of this house. The Attorney-General has articulated a bit of a summary, much of which I dispute, of the sequence of events which got us to this point. But it is worthwhile starting with some basic principles that I would have thought everybody in this house subscribes to.

One of the first order obligations that we all collectively have in this place is to keep our community safe, and that is particularly true when it comes to young people. The government has moved legislation in this place which has passed the parliament, which was done with the support of the opposition, with the support of the Australian Labor Party, because it sought to address some of the issues we raised in the first instance.

I appreciate that it is to the extraordinary and eternal frustration of the Attorney-General that she was caught napping in the first instance. I understand that her pride has been dented because it took the opposition, and me as the member for Croydon, to act while she was napping on a number of occasions when it came to this. Nevertheless, that is the way our parliamentary democracy operates. Those on this side of the chamber have the opportunity to take the initiative. Those on this side of the chamber have an obligation to protect the community just as much as those on the other side.

Where the government and the Attorney-General are focused on doing other things and are not fulfilling that core function of keeping the community safe, we have no reluctance and no hesitation in taking the initiative in acting first. I want to put on the record my thanks to the shadow attorney-general for providing the necessary support and assistance to ensure that occurs. Nevertheless, the government did eventually act and we supported various changes to the legislation. But there remain problems inherent in the existing law that this bill seeks to address that are worth addressing.

On this side of the chamber, after some deliberation the opposition and the Labor Party decided to take an absolute position when it comes to the idea of home detention for people who have committed serious child sex offences. Our position is crystal clear. If someone is found guilty of serious child sex offences, they should not under any circumstances get access to home detention.

The Hon. V.A. Chapman interjecting:

The SPEAKER: Order!

Mr MALINAUSKAS: Those opposite have decided to take a different view, that there should be some very specific circumstances where that rule should not apply. Well, not here. We disagree with the Attorney-General and the Liberal Party, who want to take a slightly softer approach when it comes to home detention for people who have been found guilty, those who have been convicted of child sex offences.

I find it extraordinary that those opposite, members on the backbench of this parliament, would stand silent and allow the Attorney-General to perpetuate a piece of legislation that leaves loopholes within it that would potentially see people convicted of child sex offences getting access to home detention. We do not agree with that. You want to allow that to take place; that is on you. But there is an opportunity for this parliament to take a definitive position, to take an absolute position, that if you are found guilty of serious child sex offences, home detention is not an option.

This parliament now has an opportunity to express its view on it. Those opposite should think very carefully about that opportunity. They should think very carefully about whether or not we want to have a piece of legislation that would allow a child sex offender who has been found guilty and convicted within a court to potentially get access to home detention. We say no. Let's hope that the majority of the parliament agrees with that position.

The house divided on the second reading:

Ayes 20

Noes 23

Majority 3

Second reading thus negatived.