Criminal Law (High Risk Offenders) (Miscellaneous) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (20:36): I move:

That this bill be now read a second time.

I am really pleased to bring to this house the Criminal Law (High Risk Offenders) (Miscellaneous) Amendment Bill 2024, a bill that is part of our government's clear agenda to deal in the strongest possible way with those who create the highest risk and pose the most serious threat to members of our community.

This bill amends the Criminal Law (High Risk Offenders) Act 2015 to address deficiencies in that high risk offenders act and improve processes for dealing with those high-risk offenders. Pursuant to the high risk offenders act, the Supreme Court is empowered to make certain orders to ensure that high-risk offenders remain subject to appropriate supervision following the expiration of their sentence, whether the offender is in prison or released on home detention or, indeed, on parole.

High-risk offenders are those imprisoned because they have been convicted of a serious sexual offence, of a serious offence of other violence, terror suspects and others. The express object of the high risk offenders act is to protect our community from being exposed to an appreciable risk of harm posed by various serious offenders. It has not been substantially amended since it first came into operation in 2016.

In 2021, the former government introduced the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2021 to parliament, which contained a series of proposed amendments to the high risk offenders act. That bill did not pass the parliament before the 2022 state election. This present bill implements the remaining amendments to the high risk offenders act that were contained in the former government's bill and also introduces new amendments to further improve the act's operations.

Clause 3 amends various definitions that are used within the high risk offenders act. In particular, subclause (3)(1) extends the definition of 'detainee' in section 4(1) to include a person who has been detained in immigration detention within the meaning of the commonwealth Migration Act 1958. This is intended to clarify that the obligations of a person who is subject to a supervision order are suspended whilst the person is in government custody, including in federal immigration detention.

Subclause (3)(2) amends the definition of 'extended supervision order' to clarify that an extended supervision order means an order made under section 7 of the act by the Supreme Court for the supervision of a high-risk offender. This is intended to address an apparent ambiguity about whether or not the current definition could encompass both extended supervision orders and interim supervision orders.

Subclauses 3(3),(4) and (7) amend section 4(1) to address a potential ambiguity regarding the meaning of a high-risk offender who is 'serving a sentence of imprisonment'. Subclause 3(7) inserts a new section to provide that a reference in the Criminal Law (High Risk Offenders) Act to a person who is serving a sentence of imprisonment includes a person who is serving a sentence of imprisonment on release on home detention or indeed on parole.

Subclause 3(4) makes a related amendment to the definition of 'relevant expiry date' in section 4(1) and clause 3(3) further amends section 4(1) to insert a definition of 'home detention', which is consequential upon clause 3(7).

Subclause 3(5) makes a further amendment to add commonwealth offences to the definition of 'serious sexual offence' in section 4(1). Subclause 3(6) deletes the definition of 'youth' and subclause 3(7) adds new subsection 4(3) to the effect that a reference in the Criminal Law (High Risk Offenders) Act to a person convicted of an offence includes a person who was at the time they were convicted of the offence under the age of 18 years.

Read in conjunction with clause 5 of this bill, the effect is that an application for a supervision order cannot be made in respect of a person who is under 18 years of age. However, offences committed by a person under 18 can be taken into account when considering whether they should be the subject of a supervision order as an adult.

Clause 4 substitutes section 5 of the current Criminal Law (High Risk Offenders) Act, which defines the meaning of a 'high risk offender'. The amendments remove certain ambiguities and clarify those offenders covered by the definition and the type of offending. For example, it clarifies that the definition only covers serious violent offenders while they are currently serving a sentence of imprisonment for a serious offence of violence.

Clause 6 amends section 7 of the current act to clarify that an application for an extended supervision order may only be made in the 12 months preceding the expiry of the term of imprisonment. It also clarifies that, when deciding whether to make an order under section 7, the court must not take into consideration any intention of the respondent to temporarily or permanently leave the state.

Clause 7 amends section 9 of the current act to clarify that the court may impose an interim supervision order where the relevant expiry date of an offender is likely to occur before the application is determined or where the expiry date has already occurred. For commonsense and very obvious reasons, the bill also clarifies that the obligations of a person subject to a supervision order are suspended whilst they are in custody.

Clause 8 amends section 10 of the current act, which sets out the conditions that automatically apply to supervision orders. The amendment adds a condition that the person subject to the order is prohibited from leaving the state without the permission of the Supreme Court or the Parole Board. Those bodies are only able to give permission if the person provides information about their proposed travel, including any information prescribed by regulation.

Clause 9 amends section 11 of the current act to remove the reference to an application being made to the Parole Board to vary or revoke a condition of an extended supervision order. These amendments are consequential upon the amendments made by clause 11 of the bill.

Subclause 10(2) amends section 13 of the current act to allow for the Supreme Court, on application by the Attorney-General or a person subject to a supervision order, to vary or revoke a condition of an order or impose further conditions upon it.

In addition, subclause (10)(3) amends section 13 to allow for the court to transfer an application for variation or revocation of a supervision order to the Parole Board and to make rules in respect of such a transfer. Once applications are transferred, they can proceed as if they had been made to the Parole Board.

Clause 11 inserts new section 13A in the Criminal Law (High Risk Offenders) Act to allow the Parole Board on application to vary or revoke the conditions of an extended supervision order, including a condition imposed by the Supreme Court or to impose further conditions on the order. An application can only be heard by the Parole Board where there has been a material change in circumstances and it is in the interests of justice to do so. When considering an application to vary an extended supervision order, the Parole Board must give all parties an opportunity to be heard and to make submissions.

Clause 12 amends section 14 of the act to allow the Parole Board a level of discretion to make consequential or ancillary orders as it sees fit when varying an extended supervision order.

Clause 13 amends section 18 to address operational difficulties with the powers of the Supreme Court where an offender breaches an extended or interim supervision order. These amendments allow the Supreme Court to order that a person be detained in custody via a continuing detention order until the expiration of the breached supervision order or a further supervision order or for such lesser period as may be specified by the court. In addition, proposed subsections under section 18, (4a) and (4b), allow the Supreme Court to vary or to revoke conditions of a continuing detention order or to order an offender to be detained in custody pending circumstances necessary for ensuring compliance with the order.

Clause 14 of the bill inserts new part 3A into the Criminal Law (High Risk Offenders) Act containing provisions for interagency cooperation. These provisions rightly allow for formal information sharing processes with other jurisdictions modelled on part 4A of the New South Wales Crimes (High Risk Offenders) Act 2016.

Clause 15 amends section 22 of the Criminal Law (High Risk Offenders) Act. The amendment will allow for appeals from a refusal by the Supreme Court to make an extended supervision order or continuing detention order.

Finally, schedule 1 contains a number of transitional provisions intended to support the implementation of reforms.

Whilst the intention of this bill is to address various shortcomings and to improve processes in the Criminal Law (High Risk Offenders) Act, these reforms are essential to ensuring our laws remain fit for purpose in order to keep our community safe from the risk of harm posed by serious offenders. I commend the bill to the house and I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law (High Risk Offenders) Act 2015

3—Amendment of section 4—Interpretation

This clause inserts new definitions and amends existing definitions in section 4 of the principal Act for the purposes of the measure.

4—Substitution of section 5

This clause substitutes new section 5 of the principal Act which contains a new definition of high risk offender under which a high risk offender is—

(a) a serious sexual offender who is serving a sentence of imprisonment imposed in respect of a serious sexual offence; or

(b) a serious sexual offender who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:

(i) an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;

(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;

(iii) an offence under section 99I of the Criminal Procedure Act 1921;

(iv) an offence prescribed by the regulations for the purposes of this paragraph; or

(c) a serious sexual offender who is serving a sentence of imprisonment imposed in respect of any other offence to be served concurrently or consecutively with a sentence of imprisonment in respect of a serious sexual offence; or

(d) a serious violent offender who is serving a sentence of imprisonment imposed in respect of a serious offence of violence; or

(e) a serious violent offender who is serving a sentence of imprisonment imposed in respect of any other offence to be served concurrently or consecutively with a sentence of imprisonment in respect of a serious offence of violence; or

(f) a terror suspect who is serving a sentence of imprisonment; or

(g) a person who is serving a sentence of imprisonment in relation to an offence against section 241 of the Criminal Law Consolidation Act 1935 where the offence committed by the principal offender (within the meaning of that section) was a serious offence of violence or serious sexual offence; or

(h) a person who is subject to an extended supervision order; or

(i) a person who is serving a sentence of imprisonment during the course of which an extended supervision order applying to the person expires.

5—Substitution of section 6

This clause substitutes section 6 of the principal Act which provides that an application for a supervision order may not be made in respect of a person who is under the age of 18 years except where a person is a terror suspect and is of or above the age of 16 years, in which case the Act applies with any modifications prescribed by the regulations.

6—Amendment of section 7—Proceedings

This clause amends section 7 of the principal Act to—

(a) clarify that an application for an order under the section may only be made within the 12 months preceding the relevant expiry date for the respondent; and

(b) update a cross-reference to paragraph (g) in the definition of high risk offender in substituted section 5; and

(c) provide that, in determining whether to make an order under this section in respect of the respondent, a Court must not take into consideration any intention of the respondent to leave this State (whether permanently or temporarily).

7—Amendment of section 9—Interim supervision orders

This clause amends section 9 of the principal Act to provide that the Supreme Court may make an interim supervision order in circumstances where, following an application for an extended supervision order in relation to a high risk offender, the relevant expiry date for the respondent occurs before the application is determined. The Court may only make the order if satisfied that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.

This clause also inserts new section 9(3) which provides that the obligations of a person subject to an interim supervision order are suspended during any period that the person is in government custody.

8—Amendment of section 10—Supervision orders—terms and conditions

This clause amends section 10 of the principal Act to provide that every extended supervision order will be subject to a condition that the person subject to the order is prohibited from leaving the State without the permission of the Supreme Court or the Parole Board, which may be subject to the terms and conditions that the Court or the Parole Board thinks fit.

This clause further provides that the Supreme Court or the Parole Board may only give permission for a person to leave the State under new section 10(1)(da) if the person provides information about their proposed travel out of the State, including any particulars prescribed by the regulations, to the Court, the Parole Board or any other person specified by the Court or the Board.

9—Amendment of section 11—Conditions of extended supervision orders imposed by Parole Board

The amendment to section 11 of the principal Act under this clause is consequential to the insertion of new section 13A by clause 11 under which applications may be made to the Parole Board for the variation, revocation or imposition of a condition of an extended supervision order.

10—Amendment of section 13—Variation and revocation of supervision order

This clause amends section 13 of the principal Act so that the Supreme Court may, in addition to varying a condition of a supervision order or revoking a supervision order, impose further conditions on a supervision order on application by the Attorney-General or a person subject to the supervision order.

This clause also amends section 13 of the principal Act to allow for applications to the Supreme Court under the section to be transferred by the Supreme Court to the Parole Board for determination.

11—Insertion of section 13A

This clause inserts new section 13A which provides for the Parole Board, on application by the Attorney-General or a person subject to an extended supervision order, to vary or revoke a condition of the order (including a condition imposed by the Supreme Court) or impose further conditions on the order.

A person subject to an extended supervision may only apply to the Parole Board for the variation or revocation of a condition imposed by the Supreme Court with the permission of the Parole Board and the Parole Board may only grant permission if satisfied that there has been a material change in circumstances relating to the person or extended supervision order and it is in the interests of justice to grant permission.

Proposed section 13A provides that the Parole Board may refer an application to the Supreme Court if it considers that the matter should be determined by the Supreme Court. The Supreme Court may also order that an application to the Parole Board be heard and determined by the Court.

12—Amendment of section 14—Consequential and ancillary orders

This clause amends section 14 of the principal Act to provide that the Parole Board may, on varying an extended supervision order, make any consequential or ancillary order it thinks fit in the circumstances of the particular case.

13—Amendment of section 18—Continuing detention orders

This clause amends section 18 of the principal Act as follows:

(a) to permit the Supreme Court to make a continuing detention order detaining a person in custody until the expiration of any further supervision order that may be made against the person. Currently, the Court may only detain the person until the expiration of an existing supervision order or for a shorter period, and both of those options will remain in place;

(b) to permit the Supreme Court, on declining to make a continuing detention order in respect of a person, to—

(i) vary or revoke a condition of the supervision order applying in respect of the person or impose further conditions on the supervision order; or

(ii) order that the person be detained in custody beyond the determination of the proceedings in certain circumstances;

(c) to permit the Supreme Court to vary or revoke a condition of a supervision order or impose further conditions on a supervision order where the Court makes a continuing detention order in respect of a person and the continuing detention order will expire before the supervision order applying to the person expires.

14—Insertion of Part 3A

This clause inserts new Part 3A which provides for arrangements (cooperative protocols) between relevant agencies (a public sector agency prescribed by the regulations as a relevant agency) and 1 or more interstate relevant agencies (an agency of the Commonwealth or of another State or a Territory of the Commonwealth, prescribed by the regulations as an interstate relevant agency) in respect of the sharing or exchange of information between the relevant agency and the interstate relevant agencies.

The clause limits the kinds of information that may be included in a cooperative protocol and authorises a relevant agency to request and receive information from an interstate relevant agency and to disclose information to an interstate relevant agency to the extent that the information is reasonably necessary to assist in the exercise of functions under the principal Act or the functions of the interstate relevant agencies concerned.

15—Appeals

This clause amends section 22 of the Act to provide that an appeal lies to the Court of Appeal against a decision of the Supreme Court to refuse to make an extended supervision order or a continuing detention order.

Schedule 1—Transitional provisions

1—Transitional provisions

This clause provides for transitional provisions as follows:

(a) an amendment to the Criminal Law (High Risk Offenders) Act 2015 made by the measure is to apply in respect of an extended supervision order made under the Criminal Law (High Risk Offenders) Act 2015 except where an application or proceeding before the Supreme Court is in progress and not finally determined by the Court at the commencement date in which case the application or proceedings will remain to be determined by the Supreme Court in accordance with the Criminal Law (High Risk Offenders) Act 2015 as in force at the date on which the application was made or the proceedings commenced;

(b) Section 5 of the Criminal Law (High Risk Offenders) Act 2015 as inserted by the measure will apply in relation to an offender who is serving a sentence of imprisonment imposed in respect of an offence regardless of when they committed, or were sentenced for, the offence.

Mr TEAGUE (Heysen) (20:48): I rise to indicate I am the lead speaker for the opposition and indicate the opposition's support. This is the subject of government legislation in the last parliament, subsequently the subject of a private member's bill I introduced in 2022, so it is a circumstance in which I say once again antligen, finally, we are here. The opposition supports these discrete changes. The minister has rehearsed for the record in the house the government speech delivered by the Attorney in another place now sometime ago. I will not stay to repeat that and will simply say that these are sensible changes.

They have been comprehensively addressed once again here insofar as they address matters in addition to the subject matter of the Statutes Amendment (Justice Measures) Bill 2022 that I introduced in the house on 1 June 2022. Those have been articulated by the government adequately and so I just indicate that the opposition supports the passage of the bill. That should happen promptly and I commend the bill to the house.

Mr BROWN (Florey) (20:50): I am pleased to rise in support of the Criminal Law (High Risk Offenders) (Miscellaneous) Amendment Bill. The Criminal Law (High Risk Offenders) Act, or the HRO act, provides important tools to allow our courts to impose strict monitoring provisions on violent offenders. The HRO act has not been substantially amended since it came into operation in 2016. In 2021, the former Liberal government introduced a bill to parliament which contained a series of proposed amendments to the HRO act. That bill passed the Legislative Council but did not pass parliament before the state election.

The bill now before us seeks to implement the remaining amendments to the HRO act that were contained in the bill of the former government while also implementing new amendments that aim to improve the operation of the act. Pursuant to the HRO act, the Supreme Court is empowered to make certain orders to ensure that high-risk offenders remain subject to appropriate levels of supervision following the expiration of their head sentence, whether the offender is in prison or released on home detention or parole.

The HRO act provides for the making of extended supervision orders (ESOs) including interim supervision orders (ISOs) and continuing detention orders (CDOs) in relation to certain high-risk offenders. High-risk offenders are offenders who have been subject to a sentence of imprisonment in respect of a serious sexual offence or a serious offence of violence, as well as persons who have a history or a suspected history of terrorist offences.

The express object of the HRO act is to provide a means to protect our community from being exposed to an appreciable risk of harm that may be posed by various serious offenders. Under the HRO act, the Attorney-General may make an application to the Supreme Court for a high-risk offender to be subject to an ESO. An ESO can be made for up to five years and allows for the imposition of conditions for the duration of the order.

The Supreme Court can order that a person be subject to an ESO if the court is satisfied that the person is a high-risk offender and the person poses an appreciable risk to the safety of the community if they are not supervised under such an order. Among other things, the conditions of an ESO can require an offender to attend treatment and to undertake drug screening.

The bill before us seeks to amend the HRO act to implement a range of measures that are intended to address a range of identified shortcomings and deficiencies in the existing HRO act as well as to improve the efficiency of processes for dealing with high-risk offenders. The majority of amendments in the bill seek to implement the remaining amendments to the HRO act that were contained in the bill of the former government, including amendments that propose to:

add commonwealth offences to the definition of 'serious sexual offence' in section 4(1), so that such offences may be taken into account in considering whether to make a supervision order;

delete the definition of 'youth' in section 4(1) and provide that a reference in the HRO act to a person convicted of an offence includes a person who was, at the time when they were convicted of the offence, under the age of 18 years;

amend the definition of 'high-risk offender' to remove certain ambiguities in relation to who is a high-risk offender;

provide that an application for a supervision order may not be made in respect of a person under the age of 18 years unless they are a terror suspect and are also of the age of 16 years or above the age of 16 years;

clarify that an application for an ESO may only be made within the 12 months preceding the expiry of the term of imprisonment, rather than within 12 months of the expiry;

provide that the Supreme Court is not to take into consideration any intention of the respondent to leave the state, whether permanently or temporarily, in determining whether to make an ESO;

provide that the obligations of a person subject to an ISO are suspended during any period that the person is in government custody;

require that an ISO and ESO must contain a condition that the relevant offender must not leave the state without the approval of the Supreme Court or Parole Board;

allow for the Supreme Court to transfer an application to vary or revoke a supervision order to the Parole Board for determination and to make rules in respect of such a transfer;

allow for the Parole Board to make such consequential or ancillary orders as it thinks fit when varying a supervision order;

allow the Parole Board to vary or revoke the conditions of a supervision order, including a condition imposed by the Supreme Court;

provide that the Supreme Court may order that a person be detained in custody pursuant to a CDO until the expiration of the breached supervision order or, if a further supervision order is made, until the expiration of the further supervision order, or for such lesser period as may be specified by the court;

provide that, where the Supreme Court declines to make a CDO, the court may:

vary, revoke or impose further conditions on a supervision order; or

order that the person be detained in custody beyond the determination of the proceedings;

pending such circumstances as may be reasonably necessary for ensuring the person's compliance with a condition of the supervision order; or

in exceptional circumstances, for such period as may be necessary in the circumstances of the case.

provide for the establishment of formal information sharing processes with other jurisdictions, modelled on part 4A of the Crimes (High Risk Offenders) Act 2006 (New South Wales); and

confer a right of appeal on the Attorney-General where the court refuses to make an ESO or CDO.

In the course of developing the bill, as well as in response to external consultation on the bill, a range of further amendments were identified that could be made to the HRO act to improve its operation and address various ambiguities and deficiencies. The bill was amended, after external consultation, to include additional amendments in response to this feedback, as follows.

The definition of 'extended supervision order' in section 4 has been amended to clarify that an ESO means an order made under section 7 of the HRO act; that is, an ESO only. This is aimed at addressing an apparent ambiguity about whether the current definition of extended supervision order could encompass both ESOs and ISOs.

The definition of 'detainee' in section 4 has been amended to clarify that a detainee includes a person who has been detained in federal immigration detention within the meaning of the commonwealth Migration Act 1958. This is intended to address uncertainty about the obligations of respondents who are the subject of a supervision order, or an application for an order, while they are currently detained in federal immigration detention.

Section 9(1)(a) has been amended to clarify that the court may impose an ISO in circumstances were the relevant expiry date for the respondent is likely to occur before the application is determined or has already occurred. Section 13 has been amended to allow for the Attorney-General to apply to the court to vary a condition of a supervision order or to impose further conditions on an order.

The principal intention of this bill is to address shortcomings and to improve the efficiency of processes. These reforms are important towards ensuring that our laws remain fit for purpose in order to keep our community safe from the appreciable risk of harm posed by serious offenders. I commend the bill to the house.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (20:57): Thank you very much to the Attorney-General in the other place for his work and his officers' work and that of the department on this bill.

Bill read a second time.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (20:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.