Hansard Daily: Legislative Council - Tuesday, October 17 2017

Statutes Amendment (Recidivist and Repeat Offenders) Bill

Second Reading

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

In the criminal justice system in South Australia there are two existing regimes that provide for the extended supervision and the continued detention of offenders beyond their existing sentence. This Bill extends these regimes to enhance community safety.

The Bill also expands the category of offenders for whom there is a presumption against release on bail.

The Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 builds upon existing provisions in the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) concerning both youth and adult repeat offenders.

By force of section 20B(a1) of the Sentencing Act, a person will be taken to be a serious repeat offender (SRO) if they have been convicted of committing, on at least three separate occasions, any of a number of specified serious offences. Section 20B(1) then continues to provide that a person is liable to be declared a SRO if they have been convicted of committing any of a number of other serious offences on at least two or three separate occasions, depending on the offence type.

Once a person is either taken to be, or declared to be, a SRO, the sentencing court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence and any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.

However, the sentencing court retains a discretion to declare that these provisions do not apply if the offender satisfies the court, by evidence given on oath, that his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety and it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.

Under section 20C of the Sentencing Act, a youth is liable to be declared a recidivist young offender (RYO) if the youth has been convicted of committing, on at least two or three separate occasions (depending on the offence type) any of a number of specified serious offences.

If a youth is declared a RYO, then the sentencing court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the RYO). In addition, any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.

Under the Bill, new consequences will flow from being a SRO or a RYO under the Sentencing Act, the Criminal Law (High Risk Offenders) Act 2015 (the HRO Act) and the Bail Act 1985 (SA) (the Bail Act).

Part 2 Division 3 (including section 23, 23A and 24) of the Sentencing Act establishes a regime whereby adults (and youths sentenced as adults) who are convicted of, and/or sentenced for, specific serious sexual offences (we will refer to these offenders as serious repeat sexual offenders) can be the subject of an order to be detained indefinitely, on the basis that they are incapable of controlling, or unwilling to control, his or her sexual instincts. This is referred to as a detention order.

The same regime also provides for a consequent release on licence (with conditions) and for applications to be made for the detention order to be discharged.

Section 23 of the Sentencing Act provides that:

at the time of sentencing the prosecution can apply to the Supreme Court for a detention order against the serious repeat sexual offender;

the Attorney-General may also apply to the Supreme Court for a detention order against a serious repeat sexual offender, whilst they remain in prison;

the paramount consideration of the Supreme Court in determining whether to make an order that the serious repeat sexual offender be detained in custody until further order must be the safety of the community; and

before making the order, the Supreme Court must direct that at least two legally qualified medical practitioners inquire into the mental condition of the serious repeat sexual offender and report to the Court on whether they are incapable of controlling, or unwilling to control, his or her sexual instincts.

Under the Bill, section 23 is expanded to apply to RYOs and SROs (referred to in the Bill as prescribed offenders).

The Bill provides that, before making any order under section 23 concerning a SRO or a RYO, the Supreme Court must direct that at least two legally qualified medical practitioners inquire into the mental condition of the RYO or SRO and report to the Court on whether they are incapable of controlling, or unwilling to control, their sexual instincts or violent impulses.

In addition, section 23 does not currently allow the Supreme Court to make interim orders, so the Bill creates a scheme whereby an interim order can be made detaining the offenders who are the subject of an application under section 23. The Bill also precludes the release of the offender (for example, the release of an adult offender on parole) whilst the section 23 application is being determined.

In all cases, the paramount consideration for the Supreme Court in making an order for an offenders continued detention is, and will continue to be, the safety of the community.

Once an offender is the subject of a detention order made under section 23, sections 23A and 24 of the Sentencing Act allow for a conditional release on licence and also for the detention order to be discharged. The Bill amends these provisions to also apply to RYOs and SROs who are made the subject of a detention order.

The Bill also amends the HRO Act.

The HRO Act provides a regime whereby an application can be made for the extended supervision of high risk offenders (both violent and sexual offenders) beyond the completion of their sentence, and their continued detention if an order is breached.

Under the HRO Act an application can be made to the Supreme Court by the Attorney-General, in the last 12 months of the offenders sentence (whether that is being served in custody or on parole) for an extended supervision order (ESO) which has conditions attached.

Under the HRO Act, before determining whether to make an ESO, the Supreme Court must direct that one or more legally qualified medical practitioners examine the offender and report to the Court on the results of the examination.

For a high risk serious sexual offender the medical practitioner undertakes, and reports on, an assessment of the likelihood of the respondent committing a further serious sexual offence.

For a high risk serious violent offender the medical practitioner undertakes, and reports on, an assessment of the likelihood of the respondent committing a further serious offence of violence.

Under the HRO Act, the Supreme Court can order that the offender be the subject of an ESO if satisfied that:

the respondent is a high risk offender; and

the respondent poses an appreciable risk to the safety of the community if not supervised under the order.

Again, the paramount consideration of the Supreme Court in determining whether to make an ESO must be the safety of the community.

If the offender breaches the conditions of their ESO, the matter is either dealt with by the Parole Board amending their conditions, or the Parole Board can elect to have the person appear before the Supreme Court and an application can be made for a continued detention order (CDO). The Attorney-General then becomes a party to the proceedings.

At the moment the HRO Act does not apply to youths and only applies to a certain category of high risk offender.

Under the Bill it is proposed that the HRO Act be extended to apply to SROs and RYOs, such that SROs and RYOs automatically fall under the definition of high risk offender.

This would allow the Attorney-General, during the last 12 months of the sentence of a RYO or a SRO, to lodge an application for an ESO.

Under the Bill, the Supreme Court must then direct that one or more legally qualified medical practitioners examine the RYO or SRO, and report to the Court on the results of the examination.

For both a RYO and SRO, under the Bill, the medical practitioner undertakes, and reports on, an assessment of the likelihood of the respondent committing a further offence of any kind that resulted in them becoming a SRO or RYO (as the case may be)

This ensures the medical report consider the types of offences that resulted in the offender being either declared a RYO or deemed or declared a SRO in the first place.

Under the Bill, the Supreme Court can order that the RYO or SRO be the subject of an ESO if satisfied that they pose an appreciable risk to the safety of the community if not supervised under the order.

Once a RYO or a SRO is the subject of an ESO, under the existing provisions of the HRO Act if the RYO or SRO breaches the conditions of their ESO, the matter is either dealt with:

in the case of adult, by the Parole Board amending their conditions or electing to have the person appear before the Supreme Court with an application being made for a CDO; or

in the case of a youth, by the Training Centre Review Board amending their conditions, or electing to have the person appear before the Supreme Court with an application being made for a CDO.

The Attorney-General then becomes a party to these proceedings.

Again, in all cases, the paramount consideration of the Supreme Court in determining whether to make an ESO will remain as the safety of the community.

The Bill also proposes an amendment to section 10AA of the Bail Act to introduce a presumption against bail for any RYO or SRO.

Lastly, the Bill amends the Sentencing Act 2017 (SA), which has not yet commenced. These amendments mirror the amendments to the Sentencing Act and ensure the new regime contained in the Bill that applies to RYOs and SROs will continue when the Sentencing Act 2017 (SA) commences.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

4—Amendment of section 10A—Presumption against bail in certain cases

This clause amends the Bail Act to provide a presumption against bail for recidivist young offenders and serious repeat offenders.

Part 3—Amendment of Criminal Law (High Risk Offenders) Act 2015

5—Amendment of section 3—Object of Act

This clause makes a consequential amendment to the objects provision.

6—Amendment of section 4—Interpretation

This clause inserts definitions for the purposes of the measure.

7—Amendment of section 5—Meaning of high risk offender

This clause includes serious repeat offenders who are serving a sentence of imprisonment and recidivist young offenders who are serving a sentence of detention in the definition of 'high risk offenders' for the purposes of applying the Act to them.

8—Amendment of section 6—Application of Act

This clause ensures that the Act applies in relation to a youth who is a recidivist young offender.

9—Insertion of section 6A

This clause prescribes modifications of the Act for the purposes of applying it to youths who are recidivist young offenders and allows the regulations to prescribe further modifications if necessary.

10—Amendment of section 7—Proceedings

This clause makes consequential changes to the requirements relating to proceedings.

11—Transitional provision

This is a transitional provision.

Part 4—Amendment of Criminal Law (Sentencing) Act 1988

12—Amendment of section 21—Application

This clause ensures that the Division can be applied to a recidivist young offender.

13—Amendment of section 23—Orders to protect safety of community

This clause amends the current section allowing orders for ongoing detention of offenders who are incapable of controlling, or are unwilling to control, sexual instincts by extending that section to recidivist young offenders and serious repeat offenders who are incapable of controlling, or are unwilling to control, sexual instincts or violent impulses.

14—Amendment of section 23A—Discharge of detention order under section 23

This clause makes consequential amendments.

15—Amendment of section 24—Release on licence

This clause makes consequential amendments.

16—Amendment of section 25A—Inquiries by medical practitioners

This clause makes consequential amendments.

17—Amendment of section 29—Regulations

This clause makes consequential amendments.

18—Transitional provision

The amendments will apply after commencement regardless of when the relevant offence or the offence that resulted in the person becoming a serious repeat offender or a recidivist young offender was committed or when the person was sentenced for that offence.

Part 5—Amendment of Sentencing Act 2017

19—Amendment of section 56—Application of this Division

This clause ensures that the Division can be applied to a recidivist young offender.

20—Amendment of section 57—Orders to protect safety of community

21—Amendment of section 58—Discharge of detention order under section 57

This clause makes consequential amendments.

22—Amendment of section 59—Release on licence

This clause makes consequential amendments.

23—Amendment of section 62—Inquiries by medical practitioners

This clause makes consequential amendments.

24—Amendment of section 67—Regulations

This clause makes consequential amendments.

25—Transitional provision

The Hon. A.L. McLACHLAN (16:22): I rise to speak to the Statutes Amendment (Recidivist and Repeat Offenders) Bill. This bill has been called on urgently and passed through the House of Assembly with little or no debate. The Liberal Party agreed to progress the bill urgently and review it between the chambers. As you are aware, Mr President, it has been called on urgently, and we are advised by the government that they wish the bill to progress through all stages this afternoon. These are exceptional circumstances, and I will outline some of the difficulties the Liberal Party has with this bill. In the committee stage we will be seeking to put certain amendments to the chamber for its approval.

The Liberal Party supports the second reading of the bill. The bill seeks to amend the Bail Act 1985, the Criminal Law (High Risk Offenders) Act 2015, the Criminal Law (Sentencing) Act 1988, and the Sentencing Act 2017. I should add that I am making the assumption, when making my second reading contribution, that the second reading speech the government has tabled is identical to the one incorporated without reading—indeed, that has just been delivered.

The Sentencing Act currently enables indefinite detention of certain serious repeat sexual offenders, adults and youths sentenced as adults. The Criminal Law (High Risk Offenders) Act currently enables the extended supervision of high-risk offenders, sexual or violent, beyond the completion of their sentence. It is these two acts which we are seeking to amend. Honourable members might note that there is a reference to two sentencing bills—the Criminal Law (Sentencing) Act 1988 and the Sentencing Act 2017, which we recently passed but is not yet law. So, this bill seeks to amend not only the existing law but also the law that is yet to come into force. I might touch on that a little later.

The bill seeks to expand the regimes for continued supervision and detention orders to apply to serious repeat offenders and recidivist youth offenders. It also seeks to expand the category of offenders for whom there is a presumption against bail to include serious repeat offenders and recidivist youth offenders. It also adds provisions enabling a court to make interim orders for detention whilst applications for continued detention are under consideration.

I might touch upon the current powers to assist the members of the chamber. Under the Criminal Law (Sentencing) Act 1988, a person is taken to be or liable to be declared a serious repeat offender if they are convicted on at least two or three occasions, depending on the offence, of specified serious offences. Once taken to be or declared as a serious repeat offender, the court is not bound to ensure the sentence imposed is proportional to the offending conduct, or any non-parole period must be at least four-fifths the length of the sentence. However, the court has discretion to dispense with these requirements if it is satisfied by the evidence given on oath that the defendant's personal circumstances are so exceptional that it is not appropriate to sentence them as a serious repeat offender.

Section 20C relates to recidivist young offenders and is similar to the above. A youth is liable to be declared a recidivist young offender if they are convicted on at least two or three occasions, depending on the offence, of specified serious offences. Again, the court is not bound to ensure that the sentence imposed for the offence is proportional to the offence, although in the Youth Court the limitations on ordering a sentence of detention under section 23 of the Young Offenders Act apply and any non-parole period must be at least four-fifths the length of the sentence.

In relation to serious repeat sexual offenders—that is, adults and youths sentenced as adults—convicted and sentenced for specific sexual offences, they can be made subject to detention orders. An order can be made that a serious repeat sexual offender be detained indefinitely on the basis that they are incapable or unwilling to control their sexual instincts. The same regime also provides for consequent release on licence with conditions. Applications can also be made for the detention order to be discharged.

The current process for making detention orders is that at the time of sentencing the prosecution can apply to the Supreme Court for a detention order against a serious repeat sexual offender. The Attorney-General also has power to apply to the Supreme Court whilst the individual remains in prison. The paramount consideration for the court is community safety. Before an order is made, two medically qualified practitioners must report to the court on whether the offender is incapable of controlling or unwilling to control their sexual instincts.

The bill proposes to expand the detention order provisions to also apply to recidivist youth offenders and serious repeat offenders. It also provides for interim provisions that allow a court to make interim orders. The bill proposes to enable a court to make detention orders for offenders who are the subject of an application and precludes their release, for example on parole, whilst the application is being determined.

Under the existing Criminal Law (High Risk Offenders) Act, a court can order extended supervision orders of high-risk offenders beyond the completion of their sentence. Continued detention can also be ordered if an order is breached. This act only applies to high-risk sexual offenders and not youths. So, the current process is that, during the last 12 months of a sentence, the Attorney-General can make an application to the Supreme Court. One or more legally qualified medical practitioners examine the offender and report to the court.

For sexual offenders, they report on the likelihood of the offender committing a further sexual offence and, likewise, a violent offender committing a further offence of violence. The court makes an order if they pose an appreciable risk to the safety of the community if they are left unsupervised. If an offender breaches an order, the Parole Board can then elect to have the person appear before the Supreme Court and apply for a continued detention order.

In that context, the bill seeks to have serious repeat offenders and recidivist youth offenders fall under the definition of a high-risk offender. This would then allow the Attorney-General to apply for a supervision order in the last 12 months of their sentence. The same procedural and evidentiary rules are proposed to apply in relation to the court making such an order, except that the assessment is on the likelihood of the respondent committing a further offence of any kind that resulted in their becoming a serious repeat offender or a recidivist youth offender. Breaches of an order will be dealt with in the same manner, except for youths, who will be dealt with by the Youth Parole Board. I think that is government amendment No. 4.

The bill before us also seeks to make changes to bail provisions. The bill also proposes an amendment to the Bail Act that extends the presumption against bail for a serious repeat offender or a recidivist youth offender. Mirrored amendments are also proposed for the Sentencing Act 2017, which, as I have mentioned, is not yet in operation.

I think it is important for the benefit of the committee stage, which I am imagining is going to come at the conclusion of the second reading, for us to understand the nature of this bill. During my submission, I will be reading into Hansard some submissions by interested parties, which may go over again the operation of the bill.

We have a situation with a bill that is—after we have just debated the Sentencing Act, which came after consultation and a variety of reports for the benefit of the government—seeking to broaden the class of individuals who become high-risk offenders, in particular for youths, and also those who are serious repeat offenders. In essence, the application of that act and for the provisions in relation to serious sexual offences in relation to detention—we are talking about the concepts of detention and supervision—the class is being considerably expanded.

I touched upon, at the beginning of my second reading contribution, that this is urgent. It is, in my view, a complete undermining of the democratic processes in this state to bring a bill involving complicated and serious amendments to the Sentencing Act, which will have far-reaching implications, before this chamber and say that it has to be debated in an afternoon.

Effectively, the government's line is that there is the case of a youth. I will not go into the details of the case because we have not been provided with all the details of the case, and that is rightly so because they are confidential. I do not intend, during the course of my second reading contribution, or during committee, to abuse privilege and speak in any form of depth in relation to this particular case. We are told that the justification for the immediate passage of this bill today, through all of the stages, is that there is one individual, a youth, who they wish to apply the provisions to.

Honourable members need to take into consideration, when deciding their position on this bill, that we have a case, we do not have the details of this case, and we are being asked to take on good faith from the government that these bill provisions need to be made law. At the same time, there are considerably important provisions in here that relate to adults.

This is not a tailored bill for this one particular instance. It is a significant and, some in the community might say, radical step in changing the nature of sentencing. Traditionally, if you are sentenced, if you do your time, you then can go back into the community, potentially on parole, which is a sort of interim period where you have good conduct. In the past, the parliament has wrestled with detention orders for those convicted of serious sexual offences who are unable to change their ways.

The parliament decided in those circumstances that they were sufficiently exceptional, when the individual could not control their sexual feelings, that detention orders may well be appropriate after an application to the Supreme Court. Again, under high-risk offenders, which involves sexual and violent offending, similarly an application to the Supreme Court may be appropriate. But this is pushing it further, this is changing the dynamic. As a consequence, there should be proper community debate before we legislate. There needs to be significant consultation with key stakeholders in the community so that we can make an informed decision.

I have to say, I am deeply suspicious that this is an attempt to ram through a bill without proper community consultation, examination by the Law Society and members being properly informed with a case involving one individual. I am deeply suspicious. Despite that, the Liberal Party has decided that it will support the second reading and put forward amendments that it thinks are reasonable in the circumstances. I will touch on those later in my speech.

It is an unacceptable position to be in where we have to pass this bill today so that it can go to Executive Council during the week to apparently allow an application to be made soon after. It is almost farcical. It begs the great question, 'How did we get ourselves into this position?' but because it relates to a youth and because it probably relates to elements of government accountability in relation to its care of this child, then we are unable to debate the same.

We are muted out of respect for the individual, which I accept, but it is still not satisfactory and the government is refusing to hold itself to account by putting us in this position—no apology, no acceptance, but rather a second reading debate after the second reading explanation of the government has been tabled and no proper parliamentary processes in the ordinary course of placing this bill. I protest it, but again I say the Liberal Party is acting reasonably in seeking to amend the bill rather than simply opposing it.

What I am confident of is that there is a conga line of incompetence that brings us to this point. It dismays me that the minister responsible in the other place, the member for Port Adelaide, is not taking responsibility and at least setting out that the government holds itself to account for the position we find. No, there is silence. As I said, I suspect that the level of care we have provided this unfortunate youth may well have been a contributor. I do not know, but I suspect.

I point out to members again that we have just gone through the Sentencing Act 2017 and we are amending it substantially. Why were these provisions not incorporated as part of the government's policy initiative? I know why: because no-one recommended it to the government. This is a power grab using the excuse of an unfortunate youth.

There are stakeholder groups who, given the time pressures, have struggled and valiantly put forward some submissions in relation to this bill. Because we are dealing with it urgently, I intend to read them into Hansard. The first one is from Ms Penny Wright, the Guardian for Children and Young People. I have received two submissions from Ms Wright, and I intend to read both. The one I received this afternoon at 1.48pm is by email and is as follows—excuse me, I will not include the salutations:

I am writing to you as Guardian for Children and Young People and as the Training Centre Visitor in relation to the Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017, which is due for debate in the Legislative Council today. I have previously sent you my comments on the bill, but I attach here a further document prepared by my office, which discusses crucial framing principles for the secure therapeutic care. It sets out the minimum requirements that should be present in a situation where secure accommodation is being contemplated on the basis of condition, propensity, instinct in a young person that requires management. I hope this may contribute to thoughtful consideration of the implications and limitations of the proposed legislation.

I understand that one of the rationales for the hasty introduction of this bill is that it is necessary to make arrangements for the continued management of a young person (currently detained in the Adelaide Youth Training Centre but due for imminent release), on the basis that his likely future behaviour poses serious risk to himself and/or the community.

I have now visited this young person. I have also acquainted myself with his history—both before he came to the attention of the state and what has happened to him subsequently. It seems indisputable that his history of family trauma and the experience he has subsequently endured have contributed to his current 'condition'.

I was not consulted about the Bill, nor were any of the other stakeholders who would ordinarily be considered to have expertise and interest in protecting human rights or civil liberties in South Australia.

The Bill observes none of the principles that I have identified in the attached document, and few of the human rights protections that are warranted in the case of detaining someone indefinitely.

In particular, the Bill provides no guarantee or provision that the young person in question (or others who may possibly end up in the same situation) will receive any therapeutic intervention at all. As is clear from my comments, I have significant and serious concerns about this proposed legislation.

Then there is just a salutation and 'please don't hesitate to contact me' paragraph, which I will not read into Hansard.

The document to which Ms Wright (or the Guardian) refers to is a government document from the Office of the Guardian for Children and Young People, dated 16 October 2017 and titled, 'Secure therapeutic care framing principles'. I know other members have received that. As it is a government document, I am working on the assumption that it is familiar to the minister and his advisers.

That is a damning piece of correspondence in relation to the government's handling of the situation—damning. Ms Wright also sent a more formal piece of correspondence, which I understand other honourable members have received. I also intend to read that into Hansard. It is accompanied by a series of tables, which I will seek leave to table. The correspondence is dated 15 October 2017 and is from the Office of the Guardian. It states:

The Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 was introduced into the parliament on 28 September and debated and passed in the lower house several days later. Please find set out below my initial response to the bill—

That is the matrix. It continues:

These comments are necessarily brief, due to the timetable in which they have been prepared. They take the form of observations and questions about the bill, having particular regard to the implications for children and young people.

As I have not seen this proposed legislation before it was introduced, I am able to respond solely to material available on the parliamentary website, the bill itself and the accompanying Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 report. In making these comments I am fulfilling the statutory obligations entrusted to me in my dual roles as Guardian for Children and Young People and Training Centre Visitor.

A disproportionate number of young people who come to the attention of the youth justice system, and particularly those who are detained in the youth training centre, are under the guardianship of the minister (approximately one quarter), which far exceeds the proportion who are in alternative care, and of those an average of two thirds have experience of being in residential care.

As the Guardian for Children and Young People, my statutory functions include promoting the best interests of children under guardianship or in the custody of the Minister for Education and Child Development, and in particular those in alternative care pursuant to paragraph 52C(1)(a) of the Children's Protection Act 1993, as amended by the Children and Young People (Oversight and Advocacy Bodies) Act 2016, which is yet to be commenced.

In carrying out those functions, the enabling legislation also requires the guardian to pay particular attention to the needs of such children who have a physical, psychological or intellectual disability, pursuant to paragraph 52C(2)(b) of the same act. Such children and young people are likely to be particularly and severely impacted by this current bill.

As a Training Centre Visitor my statutory functions include promoting the best interests of the residents of a training centre and to act as an advocate for the residents of a training centre to promote the proper resolution of issues relating to the care, treatment or control of such residents pursuant to sections 14(1)(c) and (d) respectively of the Youth Justice Administration Act 2016. My introductory discussion offers a broad perspective about the bill followed by more focused comments in the three accompanying tables.

Honourable members will note that I will be seeking to table those three tables, or matrices. It goes on under the heading, ‘Broad perspective’:

It is not possible in the time available to explore all the potential impacts of the bill in the lives and enjoyment of the rights of children and young people. Under the bill, serious new consequences will flow from a young person being designated as a serious repeat offender (SRO) or a recidivist young offender (RYO) under the Criminal Law Sentencing Act 1988, the Sentencing Act 2017, the Criminal Law High Risk Offenders Act 2015 and/or the Bail Act 1985 (the Bail Act).

The potential impact of the bill invites the simple question: does South Australia need a new statutory basis for depriving children and young people of their liberty? The effect of the bill will be that the Supreme Court will be empowered to impose a new type of order on children and young people if certain conditions are met. A simple and blunter trigger is required, that a child or a young person meets the criteria of a repeat serious offender or recidivist. This alone increases the likelihood that children and young people from some backgrounds will have orders imposed, notably those from Aboriginal and Torres Strait Islander communities, and those who deal with the effects of mental health issues and certain disabilities.

The bill also envisages the extension of the problematic designation ‘high risk offender’ to children and young people, thereby requiring the Supreme Court to test whether they pose an appreciable risk to the safety of the community if not supervised under an order. Arguments raised in my recent response to the government’s Statutes Amendment (Youths Sentenced as Adults) Bill 2017 could be revisited here, in particular the need to balance any invocation of community safety with the balance in recognition of the rights guarantee in relevant articles of the Convention of the Rights of the Child and other international and domestic instruments.

The bill ignores any need to resonate with, let alone apply principles embodied in the Young Offenders Act 1993, and other relevant legislation that compels responsiveness to a child or young person’s developmental stage and factors that impinge upon the relationship to crime. This includes the central importance of the best interests of the child as a guiding principle to support their development.

There is a heading, ‘What is the point of medical assessment?’:

The bill provides a fig leaf of objectivity for the process of imposing an order by invoking the involvement of medical practitioners without clarifying the nature of the necessary medical assessment or other inquiry. Given the lack of specificity, it is hard to see this as anything more than a device for ignoring expectations and protections associated with mental health processes. Instead, a new potentially convenient ‘too-hard’ basket will be created into which the courts can consign individual children and young people who may present the risk of acting out problematic and challenging behaviour.

The lack of safeguards in this bill makes the creation of this new basis for depriving children and young people of liberty highly concerning. This is not the least because the bill resorts to vague concepts such as sexual instincts or violent impulses as a basis for justifying the imposition of an order. On what basis will the Supreme Court interpret such bio-socialogical concepts? If these are objective categories appropriate for and amenable to medical assessment why are they not dealt with through existing legislative arrangements, notably the Mental Health Act 2009? Even if the relevant propensities are not deemed to be mental illnesses as defined in this act, any illness or disorder of the mind or excluded through the operation of schedule 1 of the act has certain conduct not indicating mental illness, what are they and why is a medical professional required to assess them? What recourse does the bill provide to an SRO or a RYO to dispute or challenge the presumably medical opinion offered?

Similarly, if a medical opinion is seen to be sufficiently probative to justify indefinite detention, why is there no mandated requirement that it is to be accompanied by a prescribed treatment or therapeutic regime to address identified medical and other deficits? This is not required as part of an initial order and ongoing monitoring and review. How can a child or young person, protect their interests in the face of potential detention in perpetuity? Is there no need to create and sustain the conditions for rehabilitation?

There is a heading, 'What protections do children and young people need in this context?':

There is a stark contrast between the absence of protections for the rights of a child or young person in the bill and provisions available in various parts of the Mental Health Act 2009, including as detailed with respect to: Part 5, Treatment Orders, Part 6, Treatment of Care Plans, and Part 8, Further protections that cover issues as varied as a community visitor scheme and access to interpreters.

Minimal and statutorily enshrined protective conditions should apply to any new order enabled by the bill. The following tables mention a number of potential protections. For example, requirements for a detailed and funded therapeutic and developmental plan, and access to independent advocacy. There is a heading, 'Repeat offending and recidivism: what does it really tell us?':

The bill says nothing about why and how the youth justice system has failed to prevent a child or young person who is being subject to that system from becoming a serious repeat offender or recidivist young offender. Attending to this question probably would do more for community safety in the long term rather than penalising and stigmatising a handful of individuals.

There is a remaining paragraph but that refers to the tables, which I now seek leave to table. The first one is Table 1, 'Major concern for the proposed amendments to the Criminal Law (Sentencing Act) 1988'. The second table is Table 2, 'Major concerns for the proposed amendments to the Sentencing Act 2017'. The third table is, 'Major concerns with proposed amendments to the Criminal Law (High Risk Offenders Act) 2015'.

Leave granted.

The Hon. A.L. McLACHLAN: I should have alerted the chamber that, whilst this letter was distributed to honourable members, the letter is addressed to the Hon. John Rau, the Deputy Premier and Attorney-General, and so these questions that have been raised in this report have been brought to the attention of the government post 15 October 2017. It was delivered via email so I think we can safely assume that it was on that day. I would be interested for the government to address some of those issues which were raised, I assume in the second reading—well, I ask for it to be in the second reading summing-up.

I have a letter from the Law Society, which I also intend to read into Hansard, given that we are dealing with this bill urgently. I alert honourable members that it is 10 pages long and is dated 13 October 2017, is addressed to the Hon. John Rau MP, Attorney-General, and was via email, so I think we can safely assume that it was received on 13 October. I ask honourable members to note the dates of these submissions, as it is a credit to the Guardian and the Law Society—and I understand there may also be one from the Bar Association that another member is going to draw our attention to—that they have taken the time, under extreme pressure, to at least give some guidance or information to honourable members. This is a courtesy, I should say, that has not necessarily been extended to members by the government. The paragraphs are numbered and I intend to read it all into Hansard:

1. I refer to the Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 ('the Bill') introduced to the Parliament on 28 September 2017.

2. The Bill builds upon existing provisions in the Criminal Law (Sentencing) Act 1988 ('the Sentencing Act') which concern both youth and adult offenders and expands upon the category of offenders for whom there is a presumption against release on bail.

3. Under the Bill, a person will be taken to be a serious repeat offender (SRO) if they have been convicted of committing, on at least three separate occasions, any of a number of specified serious offences. Furthermore, a youth will be declared a recidivist young offender (RYO) if the youth has been convicted of committing, on at least two or three separate occasions any of a number of specified serious offences.

4. The Bill proposes to extend the provisions of the Sentencing Act, the Criminal Law (High Risk Offenders) Act 2015 (SA) ('the HRO Act') and the Bail Act 1985 (SA) ('the Bail Act') to apply to declared SROs and RYOs. This includes being subject to the provisions of the HRO Act whereby an application can be made for the extended supervision and detention of high risk offenders (both violent and sexual) beyond the completion of their sentence, and orders for indefinite detention under the Sentencing Act.

5. The Society has considered the Bill and has a number of concerns in relation to the proposed provisions, in particular in their application to young offenders. The Society's comments and concerns in relation to the proposed amendments are outlined below.

6. The serious implications of the Bill, addressed below, are such that the Society urges the government to defer the presentation of the Bill to the Parliament pending a detailed process of consultation with relevant stakeholders. This will allow the Society the time needed to provide a more comprehensive submission. The Society is concerned that this Bill is being rushed into the Parliament, without explanation for such a course of action, despite its serious implications.

Orders to protect the safety of the community

7. The Bill seeks to expand section 23 of the Sentencing Act, which provides for the making of indefinite detention orders for offenders incapable of controlling, or unwilling to control, sexual instincts, to include both SROs and RYOs.

8. Indefinite detention orders should be reserved for exceptional cases which involve serious and repeat sexual offenders. The Society does not support the extension of this provision to both adults and youths regarded as 'unwilling to control violent impulses' as proposed in the Bill.

9. The Society considers that to impose pre-emptive limitations on a person's right to liberty, even after they have completed and served their punishment, should be severely restricted to the exceptional case in which a person has been medically assessed as incapable or unwilling to control their sexual instincts.

10. The Society notes that the provisions of the High Risk Offenders (HRO) Act already allow for extended supervision orders of declared violent offenders, as well as serious sexual offenders, meeting the needs for protection of the community in certain necessary cases.

11. The proposed amendments to section 23 orders, go much further, allowing for indefinite detention of a person without charge until further order, and therefore represent an extreme curtailment of individual liberty and human rights. This type of order should be reserved for the extreme cases of repeat sexual offenders, and should not be similarly expanded to violent offenders.

12. If the proposed expansions to section 23 of the Sentencing Act are pursued, the Society submits that the circumstances in which a person can become subject to such an order should be limited. The application of this provision should not be automatic, particularly in relation to RYOs.

Youth offenders

13. The extension of the section 23 orders as noted above to young offenders, convicted of non-sexual offences, who are still in the early stages of development and for whom rehabilitation should be the primary objective in sentencing, is strongly opposed by the Society.

14. I refer to the Society’s letter to you of 10 August 2017 in relation to the Statutes Amendment (Youths Sentenced as Adults) Bill 2017…which highlighted a number of serious concerns with this Bill and the proposed amendments to the Young Offenders Act 1993 (SA) ('the Young Offenders Act').

15. At present, the Young Offenders Act recognises the developmental stage of young offenders and makes provision for the 'care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential'.

16. The current Bill is another attempt by this Government to seek to treat children and young offenders as adults. They should not be treated as such, for very good reason. As noted in the letter of 10 August 2017, youths who commit serious offences or offences that form part of a pattern of repeated illegal conduct are not adults; their offending frequently demonstrates they are children who have not yet developed the requisite moral reasoning (such as prudence, empathy, self-regulation), or cognitive brain development of the frontal lobe (where higher mental processing is carried out, such as problem-solving, judgement, impulse control, planning) rendering them incapable of making 'adult decisions'.

17. From their pattern of repeat offending it is evident that they have not yet achieved the mastery of skills, emotions and thought processes to desist offending, nor have the positive scaffolding around them when in the community to develop and maintain a life beyond offending.

18. The safety of the community, the very premise and justification for this Bill, will be much better served by addressing what is causing the delay in the development of those skills, emotions and thought processes.

19. This Bill disregards fundamental principles established under the United Nations Convention on the Rights of the Child…and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ('the Beijing Rules') when considering changes to sentencing laws.

20. These well-established principles require the best interests of the child to be a primary consideration and that any sentences imposed on young offenders be proportionate to both the seriousness of the offence and to the circumstances of the offender.

21. The Bill proposes that if a youth is declared a RYO, then the sentencing court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence.

22. Furthermore, the Bill provides that a young person who has been previously convicted of three prescribed offences (which would include, for example, non-violent vehicle offences such as driving to escape Police pursuit which do not result in death or injury to any person) would be automatically eligible for medical assessment and a declaration under section 23 of the Sentencing Act to be detained until further order, even after completion of their sentence. The Society strongly opposes this provision.

23. The sentencing of young offenders is an area of policy that has been the subject of consideration and debate for many years by a broad range of experts drawn from a variety of societies; where, over the past 25 years, a comprehensive set of principles has been developed based on the debate and existing research; where those principles have now been adopted by the international community; and where research continues to demonstrate that the fundamental direction and intent of the principles remain appropriate.

There are footnotes, but as honourable members have had access to this letter, I will not seek to read them out. It continues:

24. It should be expected in those circumstances that policy development in this area would be well considered, not reactive but most importantly, evidence based.

25. This Bill (like the Statutes Amendment (Youths Sentenced as Adults) Bill) fails to address the contradiction between its failure to have adequate regard to rehabilitation and whilst professing the safety of the community as the primary consideration.

26. As noted in our letter of 10 August, not only is failing to provide children with adequate rehabilitation is a breach of their human rights, as established under the international principles note above, but will also fail to deter future offending. A number of studies have shown that young offenders given more severe penalties are more likely to offend than those given less severe penalties, and that a longer term in detention does not deter from future offending.

27. Locking up young people for longer is more likely to impede the prospect of rehabilitation upon release from detention. Thus the proposed Bill runs contrary to the aim of decreasing recidivism and increasing community protection.

28. The Bill seeks to mandate the safety of the community as outweighing all other considerations where, for the reasons set out above, in the case of youths there are a number of other very important factors that need to be taken into account, in order to achieve what is in the best interests of the child and the community.

The disproportionate effect of the Bill on the Aboriginal community

29. The Society notes the overrepresentation of Aboriginal people in the criminal justice system. These blanket provisions will impact disproportionately on Aboriginal people and further contribute to the already catastrophic levels of Aboriginal incarceration in this country.

30. Aboriginal youths are one of the most vulnerable groups in our community and are grossly overrepresented in the youth justice system. One in five children and young people in secure care are under the Guardianship of the Minister and almost half (47.9%) of children and young people in secure care identify as Aboriginal and Torres Strait Islander.

31. These statistics are of great concern and point to the fact that the social and systemic drivers of offending in the community at large, but particularly in the Aboriginal community, are not being addressed.

32. South Australia currently has the third highest rate of Aboriginal incarceration in Australia. The Bill will only continue to exacerbate what can already be aptly described as an Aboriginal incarceration epidemic and further disadvantage and marginalise the Aboriginal community.

The presumption against Bail

33. The Society strongly opposes any extension to the presumption against bail. The proposed amendments to section 10A of the Bail Act, seek to expand the presumption against bail to any applicant who has been declared an RYO or who is a SRO.

34. The wording of these provisions suggests that they are intended to apply to a person who has at any time been declared a RYO or a SRO, regardless of whether they are still subject to any proceedings with respect to those classifications under either the Sentencing or HRO Acts.

35. The provisions also suggest that the presumption against bail will operate regardless of the offence the person is seeking bail for. On this basis, the Society understands that the provisions could operate against a person (including a youth) who had been declared a RYO or SRO 10 years ago, and was seeking to bail for a charge as minor as disorderly behaviour or similar.

36. Such a situation is clearly beyond the means necessary for protection of the community, which section 10A is designed to protect, and will only serve to increase the pressure on the already overcrowded prison system.

37. The amendment in its present form is strongly opposed. If amendments to section 10A in light of proposed changes to this legislation are pursued (which is opposed), it is suggested that they only apply to RYOs or SROs who are currently subject to proceedings with respect to those categorisations, seeking bail only in respect of certain serious prescribed serious offences which should be designated in section 10A.

38. For the reasons noted above, the Society strongly opposes the presumption against bail for RYOs. This constitutes a breach of their human rights as well as being contrary to well-established international principles such as the Beijing Rules which consider the detention of children a last resort. RYOs would be much better served by being kept in the community, complying with strict bail conditions whilst being in engaged in rehabilitation and support services.

39. This Bill needs to be considered in the context of a raft of recent Bills which [are] fundamentally inconsistent in approach to the traditional view of the criminal law. Instead of looking at the circumstances of the offending, the circumstances of the offender and matters of deterrence, which will have regard also to the safety of the community, the Government seeks to override this approach by looking predominantly at the safety of the community via incarceration only.

An 'unwillingness' to control violent impulses

40. The Society notes the absence of any medical or external evidence accompanying the Bill to support the need for the HRO’s expansion beyond sexual offending to an unwillingness to control violent impulses.

41. The Society questions whether an 'unwillingness' to control violent impulses, is a matter which doctors are willing, or able to express opinions?

42. Whilst an unwillingness to control violent impulses may be, for an example an aspect of an antisocial personality disorder, is it recognised within psychiatry as a treatable or untreatable condition as such?

43. A basis in medical opinion—which clearly exists in relation to sexual instincts, may or may not exist in relation to violent impulses and is a matter which the Parliament should consider before enacting this Bill.

44. Implicit in all of the existing case law and legislation is a strong policy requirement for treatment. The Society questions whether judges will consider it desirable that they be called upon to make preventative detention orders, purely on the basis of 'community safety', without regard to medical opinion, if indeed none exists on this topic.

45. As a further note, the Society submits that any assessment of a youth offender under the proposed amendments to the HRO Act, be done by a psychiatrist or psychologist experienced in childhood and adolescence and that any assessment should be done holistically and take into account the protective factors and views of other professionals involved with the young person and their family.

46. The Society is particularly concerned by the definition of what constitutes 'unwilling'. It is by reference to whether there is a 'significant risk' that the person would, in circumstances that are reasonably likely to arise, fail to exercise appropriate control of the person's violent impulses. It is important to note that the word 'significant' has been judicially defined, albeit in different circumstances, to mean that anything which is not trivial, is significant. Given the circumstances of an offender who, by definition, will have already committed at least two serious violent criminal offences before being the subject of the provision, and that there is no indication, either in the Bill, or elsewhere, that the government intends to do any more by way of early intervention or rehabilitation, it will be difficult for a court not to conclude that there would be a relevant significant risk. The Society is concerned that the practical effect of the definition is that, overwhelmingly in cases where the provision applies, the end result will be indefinite detention. This is reminiscent of the so-called 'three strikes' policy adopted previously in some States of America and which was demonstrated to have failed demonstrably.

Transitional provisions

47. The Society has serious concerns about the transitional provisions contained in the Bill, which as drafted, will apply regardless of when the relevant offence was committed or when the person was sentenced for that offence. These clearly reactionary provisions are against the principle that a person should be sentenced against the laws that prevailed at the time of the commission of the offence, particularly when there is a proposed curtailment of fundamental human rights and liberties.

48. Another serious concern in relation to the Bill being applied retrospectively, is that current prisoners could be held indefinitely even though the sentencing judge at the time would obviously could not have foreseen that possibility. Applying punishments retrospectively is a violation of human rights.

Non-parole periods

49. The Society notes that the Bill proposes that any non-parole period for SROs must be fixed at least four-fifths the length of the sentence. This is also proposed to apply to RYOs.

50. The Society has consistently argued this year that the government approach to an automatic discount of 40 per cent for early guilty pleas should be reviewed. However, the Society has also consistently argued that there is already too much interference, generally, in the exercise of the judicial discretion with respect to sentencing. In the circumstances, the Society does not support the proposal that, in the circumstances identified the non-parole period must be at least four fifths the length of the sentence.

Interim Orders

51. The Bill creates a scheme whereby an interim order can be made detaining the offenders who are the subject of an application, under section 23 of the Sentencing Act. The Bill also precludes the release of the offender, for example, the release of an adult offender on parole, whilst the section 23 application is being determined.

52. In effect, the proposed amendments will make the head sentence, the only sentence that applies to persons subject to section 23 applications.

53. The Society is informed of many cases of prisoners who do not get access to programs until after the commencement of their non-parole period. This is concerning as it denies prisoners access to rehabilitation for most of their sentence. It also denies them a period of parole, being a supervised period post release in which their return to the community can be monitored and (hopefully) supported in the interest of the safety of the community.

54. Furthermore, what recourse is available to a prisoner who is subject to an application which delayed their release until the end of their sentence and the application is unsuccessful?

55. It is clear that the Bill aims to increase the length of imprisonment for offenders. The Society questions whether the Government plans to have a stronger focus on addressing the cause of offenders' criminal behaviour whilst they are in prison, or will it proceed with locking people up indefinitely at a significant cost to the community?

Additional remarks

56. The Society supports the release on license with conditions as a sentencing option in the case of SROs but that should apply to the period between the completion of the non-parole period and the head sentence. Offenders should be participating in rehabilitation programs during that period. That approach incorporates the dual aspects of deterrence from further offending and assistance in being rehabilitated effectively back into the community.

57. As noted above, it is of concern, that, despite recent emphasis on the importance of rehabilitation by many commentators and stakeholders, including the Victims of Crime Commissioner, the current government approach to recidivism is to focus on incarceration. To be clear, the Society acknowledges the importance of an appropriate custodial sentence and that necessarily involves, at times, lengthy custodial sentences for serious offending. The concern of the Society is that the government has failed to strike an appropriate balance between the deterrent effect of a custodial sentence and the need for both early intervention and rehabilitation. Moreover, except in the most exceptional of cases, a prisoner is entitled to know that there is a prospect of release on parole before the completion of the head sentence and that there is a right to release at the end of the head sentence. The knowledge of release into the community is an important factor. It, together with rehabilitation, provides hope and a prospect of a better life post release. The approach demonstrated by the Bill is likely to impede the prospects of rehabilitation and a successful return to the community.

58. It is unfortunate to note, in light of a Bills such as the current Bill and the Statutes Amendment (Youths Sentenced as Adults) Bill, that focus has been lost on addressing recidivism through an appropriate balance of deterrence of imprisonment and early intervention and effective rehabilitation into the community.

59. This Bill will perpetuate the chronic overcrowding in our prisons and is inconsistent with the Government's policy of reducing reoffending by 10% by 2020, which the former Minister for Correctional Services, the Hon Peter Malinauskas MLC, stated would involve a comprehensive approach incorporating early intervention, rehabilitation and reintegration back into the community.

60. This Bill will effectively lock up youths and adults who need help, for longer, and deprive them of the assistance they need, at considerable cost to the community. The Government has acknowledged the cost of over $100,000 per annum for every prisoner.

61. The Bill fails to address the systemic issues that lead to serious repeat offending and will further implode a prison system already at breaking point.

62. The Society notes that where we undermine the focus on rehabilitation, we invariably undermine community safety. We noted the short-sightedness of this approach in our letter of 10 August in relation to the Statutes Amendment (Youths Sentenced as Adults) Bill.

63. It is also a matter of concern that a Bill which fundamentally alters established legal principles is being rushed through the Parliament. The Society is not aware of any consultation having been undertaken with key stakeholders and urges the Government to delay further debate of the Bill until it has properly consulted such stakeholders.

That is signed with the signature block of Tony Rossi, the President of the Law Society. The correspondence that we have received from both the Guardian and the Law Society resoundingly, in my view, condemns this bill. Pointed out by the Law Society, and probably to the disappointment of the Hon. Mr Malinauskas, is the effect of the end of this government's attempt to rehabilitate youths.

This bill represents a significant policy shift by this government. They can talk all they like outside of this chamber. They can produce as many glossy brochures as they want, but you cannot seek to pass a bill through this chamber and expect to be taken seriously that you are committed to rehabilitation. I have always believed, from my earliest days of practising criminal law, that it is critical that rehabilitation be a significant focus because it is a key plank of ensuring community safety. Putting people inside prison and then releasing them without any attempt for them to make a better life for themselves will only lead to reoffending.

The government has adopted an insidious approach to this legislation. It has used the justification of one youth for a major reform to sentencing. I remind members of my comments earlier in my second reading contribution, that this is after we have just debated a reform of the Sentencing Act. There was nowhere that I could see in the justification for those provisions for this extension. This is opportunistic. The government is using a child in a particular circumstance, of which we are not fully apprised—and nor should we be, to protect that child's privacy—ruthlessly to justify this bill. I know that I have not been in this chamber long, but this is, I think, the worst case, certainly, I have seen for underpinning a bill.

It is a contempt of the committed stakeholders in the group. It is holding the Guardian in contempt. They were alerted to this bill by members of this chamber. The Law Society was not consulted by the Attorney: the Attorney came to the Liberal Party and sought the passage of this bill. It is the Liberal Party and other crossbenchers that have sought commentary from people in the community. What does that tell you about this bill? That this is a legislative overreach of the worst kind.

By holding us in contempt, this is holding the people of South Australia in contempt. This parliament deserves better and this chamber deserves better. However, the Liberal Party has taken a restrained course. With correspondence received like that, we would be more than justified to oppose this bill outright. We are not seeking to do that, we are seeking to amend it, to allow applications to be made in relation to use as high-risk offenders, and then we have a sunset clause that will remove the operation of this bill under the guidance of the next parliament so that parliament can properly debate these provisions.

I understand why. This government in its more than 15½ years has been an abject failure when it comes to caring for the most vulnerable children in our society. The government members may proclaim all their progressive credentials in the community, but this bill cuts it away. You cannot be a member of the Labor Party and say that you support the most vulnerable in the community. That is no longer part of the Labor brand. The Labor brand stands for oppressing the most vulnerable and treating them with contempt.

Rehabilitation used to be a key plank of Labor Party policy—it is gone. It is gone with this bill the moment it was brought into this chamber. This bill is a symbol of this Labor government's complete swing to a hard right philosophical position on the justification that it is going to bury its pitiful record looking after the youths in its care. In other words, its record with youths and now, more recently, the elderly with Oakden, is pitiful, absolutely pitiful. What is even more shameful, even after, there is really no apology or contrition, just political rhetoric.

The philosophy of this bill with unlimited detention (which in some cases is justified for those who cannot control their sexual impulses) was more commonplace in Europe in the thirties. We need to have a constructive debate in our community about vulnerable children and the care that the state provides them, not political rhetoric, not hard on crime rhetoric, which is simply designed to make the Labor government look good in less informed parts of the community, less informed—

The Hon. K.J. Maher interjecting:

The Hon. A.L. McLACHLAN: The Hon. member Kyam Maher says that—who have not had the benefit of experience in the criminal law system, who live their lives and rely on the expertise of others. Yes, they have had the effects of crime, but what you are doing is creating a crime factory in prisons. The Hon. Kyam Maher should be disgraced since he is a leader of the left, a disgrace in the left, because he should be holding up the progressive ideals of the Labor Party, but he washes his hands of them. I do not hold the community's views in contempt.

What I am saying is that not all of them have experienced crime, not all of them have experienced the prison system, and we need to educate them and bring their understanding up that rehabilitation is critically important—critically important. That is the responsibility of those of us who have had experience in the criminal justice system and as leaders in the community. We should not preach to them with propaganda. My position is supported by the Guardian and the Law Society—I repeat, the Guardian and the Law Society.

The irony of this legislation is that it claims to be founded on community safety, as I said. It is the failure of the government in developing its youths who are in the criminal justice system and seeking rehabilitation. That is the failure we are really debating today. There was a time when the Labor government was championing the rights of the vulnerable, but now it is the oppressor. So much for its progressive legacy! I ask the minister to address some of the issues raised in the letters of the Law Society and the Guardian in the summing-up of the second reading debate.

The Hon. M.C. PARNELL (17:25): I rise to speak to the second reading of this bill, which I describe as a case study of how not to manage complex legal matters. The bill is disrespectful of the parliament in the manner in which it has been introduced and is proposed to be debated, but more importantly it is disrespectful of the community, especially those in the community who have real and legitimate interests in the criminal justice system. None of these individuals or groups have been consulted by the Attorney-General, and instead the proposal is for the bill to be rushed through to completion today.

At the outset, I will say that I associate myself with the remarks of the Hon. Andrew McLachlan. Good on him for reading into the Hansard what the Law Society said. I do not know how many people the Law Society was able to get working on that submission, I suspect it was either one or a very small number of people, but they probably were working day and night to get that to us because they knew how important this legislation was and they wanted members of parliament to have the best available information. Similarly the Hon. Andrew McLachlan read onto the record the submission of the Guardian for Children and Young People and tabled the tables that were part of that submission.

The question that needs to be asked first of all is: why are we rushing this bill through, against all of the principles this chamber has worked on for many years, including the ability for members of parliament to seek to have matters adjourned so that they can properly consult with stakeholders? Why is it that the bill is being rushed through now? The answer, we are being told, is that it is urgent. Why is it urgent? Well, we are told that there is a single hard case that is driving this legislation. I will come back to some of the details of that case—not too many of the details because, as the Hon. Andrew McLachlan said, there are issues of privacy and privilege. In fact, I do not think I have anything that is new, given what has been said—maybe a little bit more information—but I certainly do not know the name of the person involved, I do not know much at all about them.

The difficulty is that the bill goes much further than the one hard case that is the sole rationale for us rushing the bill through. Do not take my word for it: take the Attorney-General's word for it. When we discovered just a few days ago that this bill was to be rammed through today, I went back and had a look at the Attorney's second reading speech, which again, like today, he incorporated without reading, and the entire bill was passed in probably maybe 15 minutes in the lower house. But, when the minister summed up the second reading speech, he said:

It is an unusual matter, and it is a matter that obviously is proceeding in a way that is unusual. I can assure the house that I would not be proceeding in this way if I did not feel it necessary to do so.

Okay, that sounds fair enough: he has to proceed because it is urgent. But then he goes on:

In terms of the question about the genesis of bits and pieces of this—

I think that is Attorney-General talk for clauses and parts of the bill—

I think it is fair to say that, inasmuch as this refers to some matters, they are matters of concern to me which were not necessarily of acute concern to me because they were not presently matters which were threatening to cause any disruption to the community. They were matters that had some longer standing, and it was my intention that in due course I would get around to looking at those matters.

The Hon. Andrew McLachlan used the words ‘opportunistic’ and ‘legislative overreach’. Let’s look at opportunistic. The Attorney has said that he has brought a whole package of measures, many of which are completely unrelated to the one hard case that is driving this legislation, and it was convenient for him to bundle it all in and convenient for him as well to not consult anyone in the community about it.

That is an appalling way to legislate, so, I understand why the Hon. Andrew McLachlan and his party have tried to disaggregate this bill. I will come later to whether I think that is the right approach but I understand why they are doing it. The Attorney said there are urgent things, yet there are a whole lot of things in here that are completely unrelated to that urgent case. Let’s have a bit of a look at the time frame for this. It is easy to stand up here and say, ‘The government has rushed it through,’ but let’s have a look at the time frames.

On the information that has been provided to me, it seems as if the Attorney-General’s Department first found out about this hard case around about 21 or 22 September. It then, I understand, pulled out all stops to get legislation drafted in a week and it was tabled in the lower house of parliament on Thursday 28 September, so that is only a week. As I said, it went through. The Attorney, when asked, ‘Have you consulted anyone?’ said, ‘No, no, no, there’s no time at all to consult anyone, so, no, we haven’t consulted anyone.’ Mind you, there was that whole week, since presumably some instructions were provided to parliamentary counsel, but anyway there were several days there where consultation could have at least commenced.

However, you then fast-forward nearly two weeks to last Wednesday 11 October, and that was when the members of the Legislative Council were told that we had to finalise the bill today. I sought an urgent briefing and I obtained a briefing two days later on Friday 13 October. I will take the opportunity to thank the Attorney’s staff for a very detailed and frank briefing; I have no problem with the briefing they gave me. What I then did was quickly send off letters to a small targeted group of stakeholders who I knew would have something to say about this: the Bar Association, the Law Society, the Guardian and the Council for Civil Liberties.

The Hon. Andrew McLachlan has read into the record two of those submissions but a third one that arrived in fact only yesterday was from the Bar Association. It is my intention to read not the whole of it, but some part of it into the record. I will say that we probably would not need to do this if we had been through a proper process but, otherwise, the official record of the parliament in this place will show that some pretty dodgy legislation may have got through and the casual reader will be saying, ‘Surely stakeholders had something to say about it. This is quite draconian in its terms.’ So, it is important for us to put these submissions on the record.

All the groups that put in submissions complained about the process. The submission I refer to is from yesterday afternoon. Ian Robertson SC, the President of the South Australian Bar Association, states:

Dear Mark,

Further to [your] email advising of the above Bill, I attach a letter in response. The letter attaches the commentary of the Law society (which we support) and makes some general observations about this Bill and the process that sees it come before Parliament [potentially] tomorrow. A substantive response of our own will not be available in time for that deadline.

The submission, which is addressed to me but which I understand has been circulated to other members, includes a range of observations, some of which are similar to things that the Law Society and the Guardian said, but some of them are different. In its submission in relation to the idea of using a hard case to drive legislation, the Bar Association states:

Reactive legislation is couched with hidden dangers. In endeavouring to address a single mischief, the drafter may inadvertently expose the public, or an individual, to multiple other mischiefs. The unintended consequence of that may be to erode public confidence not only in the State, but also confidence in the State's ability to protect all of its citizens.

The Bar Association goes on to talk a little about the fact that it is a child that is the single hard case that is supposedly driving this bill. The association states:

The treatment of children as adults is a fundamental shift away from accepted social, moral and jurisprudential norms. It should not be undertaken without full consultation and based on empirical evidence. If there is any evidence to justify the extension of existing extreme measures applicable to sexual offenders to child-age and violent offenders, then that should be identified. If the Government has any evidence, they should produce the results they have collated and make them available for public scrutiny and comment. There should be a better reason to undertake systemic and fundamental changes in law and policy than a single, albeit tragic case. There is an old adage that 'hard cases make bad law.'

Then, because it is the Bar Association, they have to actually put in a reference for that quote, which I did not realise goes all the way back to the case of Winterbottom in 1842. We have known for a very long time that hard cases make for bad law. The Bar Association, quite reasonably I think, feels that the Attorney regularly disregards their commentary in relation to law reform because the submission includes this observation:

On another occasion, the Attorney has expressed the view that Bar association is a mere interest group concerned only about the income of its members. I have expressed our dissatisfaction with those comments publicly. However, lest the refrain be reprised, you will observe that there is nothing in our opposition to the manner in which this Bill comes before the Council that advances the financial position of our members. The passage of the Bill might in fact provide those members substantial employment challenging its terms. The interest we are championing is fairness, the rule of law and the proper operation of the machinery of democracy in this State.

As the gatekeepers of our democratic parliamentary system, the Legislative Council should not be called on to debate proposed legislation of such wide-reaching significance when it comes before the Council in this way. Of course if the Government insists on it being tabled and debated, that is its right. However, it is the Council's right to have the opportunity to consider the bill, obtain advice upon it, and to formulate its position. That is a right that applies no less to the Cross Bench than it does to the Opposition. The competition between these rights should, in my opinion, be determined in favour of informed debate.

The final sentence of the Bar Association's submission states:

The Association will publicly support any reasonable motion that you or your fellow members of the Cross Benches, or the Opposition, might move to oppose the pre-emptory passage of this ill-considered Bill.

Yours sincerely,

Ian Robertson S.C.

President

The rushed consultation undertaken by non-government members has resulted in three quite lengthy and considered responses, but one thing all those responses have in common is that, given more time, they would do even better. They would be able to consult their members and they would have presented an even wider range of arguments in relation to the merits of this bill.

It has now been three and a half weeks since the drafting of the bill started, or two and a half weeks since the drafting of the bill finished, but still not one skerrick of consultation undertaken by the government. So, I want to quickly look at the two aspects of the bill, that is, the part of the bill that deals with a single hard case, the 'young person', which has been referred to, and, secondly, to look at some of the general principles involved in the bill.

As I said, I do not know a great deal about the individual concerned. We have received a briefing from government, and the following information is what I feel comfortable putting on the public record. I think it is pretty much what the Hon. Andrew McLachlan said. We know that this one hard case has hijacked the parliamentary priorities, not just for today but I think for this week and for future weeks, when we should really have been debating it.

We know that it is a young person, which means they are under 18 years of age. We know that they are under the guardianship of the minister. In other words, it is a person for whom we, as a society, have taken responsibility. It is someone who has, presumably, been removed from their family. I do not know anything about their family circumstances, but they are wards of the state, if you like. They are under the guardianship of the minister. That is important because it suggests that we, as a society, owe some responsibility to this person, however badly they have behaved. I am not aware of the crimes they have committed, but they certainly would not be incarcerated in a youth detention centre if they had not committed serious crimes.

So, we know that. We know the person has been sentenced and detained and we also know that their sentence is about to expire. This is where the information starts to become very scant, making it very difficult for the Legislative Council to make proper judgement on this bill. We are told there is evidence that this young person will reoffend if released and that they are a danger to society. They have provided no evidence for that, other than the say-so of government officials. They are effectively asking us to trust them; they have not provided any evidence.

I had a joint briefing with people from the Hon. Kelly Vincent's office, and one of the suggestions we put forward was that if there are psychiatrists' reports that suggest what a danger this young person is to society if they are released, show them to us. Redact all the names, take out all the information that might identify them and let us have at least some expert report, even if it is a one-sided report. We do not even have that. All we have is a sort of whisper around the place that there is a hard case and we need to legislate today. That is a very poor way to manage these things.

We are told that it has to go through today because the way these things work is that the bill has to pass both houses, obviously. The government has its own amendments that will need to go back to the lower house. The Governor needs to give assent and, presumably, the Attorney-General then has to make an urgent application to the Supreme Court in order for this young person to continue to be detained beyond the period of their sentence.

However, the question I still have, and it has not been satisfactorily answered, is whether this is necessary. Is there another way? Let us assume that the objective is the right one and let us accept that this person, for their own sake and the community's sake, needs to be detained for longer. The question that I have is whether a bill like this is the only tool to achieve that. My understanding is that this person, whilst they have been charged, convicted and sentenced, may well have other charges pending, in which case my suggestion to the Attorney-General's staff was, 'If there are other charges, bring them on. Get him into court, and if he is as dangerous as everyone is telling us he is, then he is not going to get bail.' Problem solved.

If there are outstanding charges or things for which he could be brought back before a court before his sentence expires, it would seem to me—and I do not have the Hon. Andrew McLachlan's advantage of having practised very much in a criminal jurisdiction—that that would have been a simpler and, I would have thought, a fairly sure-fire way to make sure that the detention and supervision continues. But the government does not want to go down that path. Maybe the problem is that they think he might get bail. It seems to me that if a judge faced with all the evidence that we are being denied thinks that they deserve bail, maybe it is not as serious as the government is telling us. I do not know any of that; it is pure speculation. That is part of the problem: we are legislating by speculation.

This bill is, obviously, the government's preferred plan A for dealing with this young person, but I have heard no cogent arguments why what I have just suggested as a plan B should not be tried. It seems to me that there may even be other options to the bill that the government has presented. The Hon. Andrew McLachlan mentioned in passing—it was in one of the submissions—that we already have provisions that relate to detaining people against their will, even outside the criminal justice system. The Mental Health Act is a classic example. It is a longstanding regime where people do not have to have committed any offences; we have a system where the state says, 'Look, I'm sorry, but you need to be detained for your protection and for the community's protection.' That is how the mental health system works.

The Attorney and his staff can say, 'Well, someone having uncontrollable violent or sexual urges is not a mental illness.' Well, no, it is not, but what I am saying is: the advantage of using the mental health regime—and they could have brought amendments to that legislation towards this—is that it is partnered with a therapeutic response. It is not just locking them up and throwing away the key. That is the difference between the mental health system and the criminal justice system. So I am disappointed that that option was not pursued.

In terms of the actual merits of the bill, as I have said, it goes far beyond the young person who we are told is the rationale for it. For example, there is a whole provision in here in relation to the presumption of bail. That has nothing to do with the young person who is currently detained. It is not a question of bail. It is a question of their sentence expiring and the fact that they, in the normal course of events, would be released, because that is how the criminal justice system works. You do the crime, you do the time, and then you get released. So the fact that reforms to the bail regime are in this legislation is completely irrelevant. The minister himself admitted that he has found a bit of a grab bag of things that he had been thinking about for a while, and he has chosen to attach them to this bill so that we will let them go through without too much fuss, because there is a hard case, a bad case, that is driving the whole thing.

There are four questions, I think, that spring to my mind in terms of the actual legal merits of this bill. The first question is: is it ever appropriate to keep a person locked up even after their sentence has concluded and even if they have not committed any further offences? My answer to that is actually, yes, there are sometimes cases where we need to keep someone, for the protection of the community and for their own benefit, locked up. People have mentioned people with uncontrollable sexual urges who are a danger to the community. Yes, there is a regime where that makes sense, but this bill, with the complete absence of consultation and the absence of any therapeutic intervention, does not cut it. But as a matter of principle I am prepared to say, 'Yes, I am prepared to consider locking people up after their sentences have expired: it is sometimes the right thing to do.'

Even if we accept that, what evidence should be provided? What is the burden of proof? Who is the decision-maker? What are the rules of natural justice around what has been described as indefinite detention (because that is what this bill provides for)? You could have someone, in a worst-case scenario, who does their time in gaol and they then stay in gaol for the rest of their lives. This bill can achieve that result, so I want a few checks and balances in there, and they are not in the current bill. So that is the second question: what evidence, burden of proof, natural justice?

The third question is that once a person is detained, how and when is it reviewed? Again, I do not think the bill deals with this adequately. Certainly, judges might be like a dentist or an optometrist and say, 'See the receptionist on the way out'—well, not on the way out, because you are not going out—'we'll make an appointment for you in a year's time. We'll come back and see whether you should still be locked up.'

The fourth question—and this goes to the heart of it—is: what assistance are we providing these offenders to give us any chance that they will ever get back into the community and live normal lives? What regime is in this bill that provides assistance to these people? The answer is that there is none at all. The Hon. Andrew McLachlan referred to the secure therapeutic care framing principles. The fact is that a lot of people have spent a lot of time thinking about how these things should work. That is why they have gone to all the trouble of coming up with principles, referring to international treaties and best practice from other countries. Is that the way we do things in South Australia? No. We draft a bill in a couple of days and we rush it through parliament and tell the upper house, 'Don't even think about trying to delay it or to consult further in the community, because we won't let you.'

The Hon. Andrew McLachlan used a phrase I like, and I will probably shamelessly steal it on other occasions: he talked about the 'conga line of incompetence'. I think that does sum up how a lot of this is done. This is not the first time we have debated child welfare and youth criminal justice in this place. There is a sad tale to be told. I think the way I would sum up this entire legislation in four words—because apparently three and four-word slogans are the flavour of the month—is that this is 'the too hard basket'; what we are legislating for is the too hard basket. We are talking about people whom we have failed. Maybe with this young person in question the failure is the failure of us as a society, as their guardian, to care for them properly, a failure of intervention early enough, failures across the board. I am not saying it is a failure of their home life, of their parents, but a failure across the board.

We also have to remember, when applying this new regime to young people—especially to someone who is, say, 17½ or 17¾, even if they are 16—that if they are kept in long enough they are going to end up in an adult gaol, and the therapeutic regime in adult gaol, as we have heard from some of the submissions that have been read out, is very, very poor. I have mentioned it here before, but if we are to take to heart the words of the Thinker in Residence the Labor government brought out some years ago, Peggy Hora, the judge from America, who said that yes, sometimes we have to lock people up but we want them to come back out better, then we either lock them up forever or we put in a system that has them come back better. This is the first of those; this is the 'lock 'em up forever'.

I think this bill is ill-conceived. It deserves to be opposed at the second reading and the Greens will oppose it at the second reading. However, we understand that the Liberals have a plan as well to let it go into committee and then have a look at some amendments that confine its operation, so I am not going to divide on the second reading. I just want on the record that the Greens oppose this bill. We look forward to the committee stage of the debate because that will be an opportunity for us to tease out which elements of this bill the government says are absolutely essential to deal with this one case and which bits of it are, in fact, the minister's grab bag of issues that he has opportunistically attached to this bill. With those words, the Greens are opposed to this bill but we will not divide. We look forward to the committee stage.

The Hon. J.A. DARLEY (17:52): Advance SA is supportive of this bill as we understand there is an urgency for it to pass to address a particular urgent situation that the Department for Correctional Services has notified the government about. From time to time parliament is asked to put aside normal procedure and conventions and consider bills as a matter of urgency, as is the case with this bill. However, I want to put on the record that this is not good practice and does not allow for full consideration or consultation on matters. We in this place cannot be experts on everything that comes before us, and we need time to consider the implications of what the government is proposing.

Today, I received an email from Ms Penny Wright, the Guardian for Children and Young People, that essentially echoed this. She said that neither she nor the regular stakeholders were consulted about this bill. Notwithstanding this she raised a number of issues, and one particular issue that I thought needed attention was with regard to the expiration of extended supervision orders. Essentially, Ms Wright said that one of the framing principles of an order should be that it is a measure of last resort and should be for a specified and limited amount of time. I believe the government has addressed this first measure; however, the bill does not seem to address the issue of the expiration of extended supervision orders or whether rolling orders can be issued against an individual continuously. I would be grateful for clarification on this from the government.

I understand the matter that this bill seeks to address concerns a juvenile and, as such, only a few details as to why this urgency is needed can be divulged. In short, the government is asking us to trust it with the information it has without providing that to us. In my time here I can recall this situation of being asked to simply trust the government occurring on several occasions. Each time I have been very uncomfortable about giving my blind support to the government, but I have done so because I have been told that it is in the interests of community safety. I want it noted that while I agree on this occasion, this may not always be the case going forward.

The Hon. K.L. VINCENT (17:54): There is so much to cover with this bill that it is difficult to know where to begin, but can I start by saying, as other members have said, that the Dignity Party is very concerned that the government is again expecting the parliament to pass a bill that was in the lower house for all of about 10 or 15 minutes and was not discussed in that house, and that has arrived in our chamber today with an expectation that we will go through all stages and pass that bill today.

I will not rehash the many points that have been made by my colleagues, the Hon. Mr McLachlan and the Hon. Mr Parnell, and to some extent the Hon. Mr Darley, but I would certainly like to put on the record that the Dignity Party shares similar concerns. The several submissions on this bill have been read by the Hon. Mr McLachlan onto the record, and I thank him for that, because it means that the rest of us will not have to do the same, but I want it known that I take those submissions very seriously.

Usually, the forming of legislation goes something like this. I will oversimplify it, because of the time, and the lack of time that we have to discuss this bill. Usually, each house of parliament, the upper and the lower house, will discuss the bill at length after it is drafted, after it has gone through consultation, after it has reached a point where all the relevant people in the community, civil and professional, are happy with it. It will pass one house and then the other, then it will be assented to and then it will become law.

Then, there is a separate arm, the court, judges and magistrates, who are expected to make judgements based on those laws and see how they might impact individual people, individual cases, that come before it. It is the judge's or the magistrate's job to judge how an individual law should be handed down to a particular individual person. It is our job in the parliament, usually, to make broad laws that apply to everybody, and it is the judge's job to assess how that law should apply in individual cases.

The judge has to take into account the background of that person before them, the particular needs of that person before them, and what led that person to make the decision that has led them to be before a judge. Interestingly, this evening, the parliament is being asked—in fact, is being demanded, because we have been given no option, it would appear, but to pass this legislation today—to play both roles, to pass legislation that will apply to everyone, ultimately, all 1.7 million people in South Australia, and to be the judge, because we are passing this legislation on the strength of a particular, very difficult case. We are being asked to pass a law that affects everybody in this state because of one person.

I do not deny that it is a very difficult case. I do not deny that it is a very serious case, with very serious consequences, but I do very strongly object to the fact that I as a parliamentarian, and everyone in this room here this evening, am being asked to act as a judge. Not only that, we are being asked to act as judges with less information than a judge would have to do that job. As previous speakers have said, we have not seen the psychiatric or psychological reports that have been made about this particular young person, so we have no information, or very little information, about their background, one that I understand involves significant trauma. It is one that obviously has led them to come under the guardianship of the minister, and that is not something that happens lightly; it is not something that happens overnight. That is something that happens with significant difficulty and trauma in the life of that person. Other than that, we have no detail as to this young person.

We know, of course, that they are a young person. In other words, they are a child. They are under the age of 18, which means that their brain, technically, psychologically, biologically, has not finished forming. We know because of that they are likely to need significant investment and significant support in trying to rehabilitate wherever possible. It may not be possible. It may be possible for this person to rehabilitate, it may not be.

I do not know—I am not a psychologist and I am certainly not a judge, although I am being asked to act as one this evening—but I do know that, from the submissions and from the correspondence that I have received, it seems very clear from my perspective that this young person has not been given enough support, enough investment, enough opportunity to rehabilitate. It certainly does not appear that the significant trauma they appear to have lived through in their young life, in a child's life so far, has been adequately taken into account in dealing with this case.

As other speakers have said, I am also very, very concerned about the fact that ultimately this bill is not even only about this very difficult and very significant case. As the Hon. Mr Darley has said, sometimes we do have to deal with cases urgently and without the time frame that we would usually expect, but it is usually because there is a case or a situation that is very significant, very serious and that could not be foreseen and that is only about that one case.

But in this particular bill, neither of those things are true because we know that this young person's detention is due to expire on Friday (I think I am correct in saying) but we cannot possibly accept that it has suddenly occurred to the department for public prosecutions or SAPOL or the government, we cannot possibly expect that they did not know until today that that person's detention was due to expire on Friday. We cannot possibly be expected to accept that that is oversight, that could not be foreseen, that was not predictable.

When that person was put into detention, this young person, this child—and I am going to say that word a few times because I think it is important that we are discussing the future of the life of one person who is still, biologically, psychologically, a child—I cannot accept that the government, that SAPOL, that the department for public prosecutions simply forgot or did not remember or did not foresee that that detention period would have a time limit on it that would need to be dealt with long before three days before it was due to expire.

I also do not believe that this bill is only about the very difficult case of that one young person, that one child, because as other speakers have already said, and as the Attorney-General himself has said in the other place as outlined in the quotes read by the Hon. Mr Parnell, there are other elements to this bill that are not to do with the case of this child that are arguably similar subjects in relation to which the Attorney-General thought, 'Since I have got this bill going with this one case, I might as well whack it in there and give it a crack,' because that is apparently the way our Attorney-General legislates in this place and in this state in 2017. If there is something remotely similar to a bill that you are already drafting, just whack it in there, no consultation, not even discussion in the house where it is introduced, the lower house, and have it pass all stages in 10 to 15 minutes.

It is not only about this one young person: it could have very serious consequences for all South Australians, particularly all those who come before the legal system and the child protection system. Also, it does not adequately deal with the particular circumstances of that one young person. If the Attorney-General expects us to act as judge, jury and executioner, then he should at least put in place measures in the bill that deal with the particular circumstances of the person we are judging, that they do have a background of trauma, that they are still under the age of 18, that their brain is still developing and that they have been failed significantly, it would appear, by the system and by those people, formal and informal, who could rightly have been expected to do more if they have ended up under the guardianship of the minister.

That is not something that happens overnight, it is not something that happens lightly and it is not something that happens on a whim, unlike the amendments or the additional factors of the bill that are not to do with this particular young person. It is something that happens to people who have had a great deal of complexity and hardship in their life.

So, in addition to targeting one particular youth in this case, the government bill also brings into force a range of measures that disregard our human rights commitments, our rehabilitation commitments and our investment commitments in the prison system and the corrections system. But, do not take my word for it: there are a number of submissions that have already been read into the record. The Leader of the Government will be pleased to know that I do not intend to rehash all of those, but there are a significant number of submissions that, I would add, have been prepared with great haste because of the lack of consultation on this bill.

Those submissions come from the Guardian for Children and Young People in this state, Ms Penny Wright (the Guardian) who has a responsibility for all young people in the situation in which this young person finds themselves. Not only that, she has actually visited that young person and made an assessment on the situation of that young person, which is much, much more than we in this chamber have had the opportunity to do, yet we are being expected to pass this bill without amendment, if the Attorney-General gets his way.

Not only does the Guardian for Children and Young People in this state have significant concerns about this bill, particularly the unamended version of this bill, but the Law Society submission, prepared as I understand only once a crossbencher alerted them to the existence and the impending passage of this bill, points out that, in its current form, this bill is in breach of fundamental principles established under the United Nations Convention on the Rights of the Child and the Beijing Rules regarding standard minimum rules for the administration of juvenile justice.

I want to say that again: this bill disregards standard minimum rules for the administration of juvenile justice. This is not some lofty, abstract benchmark that we are asking the Attorney-General to meet here: these are the standard minimum rules and, according to the Law Society, which is much more versed in how to apply and interpret laws than I, this bill in its current form does not even meet the minimum standard. Fittingly, I note that today the Australian Institute of Health and Welfare has released figures on young people in child protection and under youth justice supervision for 2015-16. Those national figures indicate that, in Australia, young people in the child protection system were 12 times more likely to also be under youth justice supervision.

Additionally, young Indigenous South Australians are 16 times more likely to have contact with child protection and youth justice supervision. These statistics indicate that it is certainly not just about this one young person. It is about a system—a system that is significantly and unacceptably failing many young people in this state, including this one young person who is allegedly the catalyst for the bill we have before us this evening, even though the measures in it go far beyond the case of this one person.

Here we have a situation where the government has not only failed to use the existing provisions that could have been used to deal with this young person under the high-risk offenders legislation, for example, or to some extent potentially under the Mental Health Act legislation. I do not know because I have not seen the psychiatrist’s or the psychologist’s report about this young person, so I do not know, arguably, whether it would have been suitable to use those pieces of existing legislation. That is why we are here tonight being asked to make sweeping and very severe judgements about this one young person.

The government has failed to use existing provisions and has failed to limit it to this one young person because we know that the bill, as it stands, has many features that are not just to do with this one young person. We know that the government and the system have apparently failed to provide this young person with the investment and the support that may well have seen them not end up in this situation in the first place. Again, I do not know because I am flying by the seat of my pants, as we all are tonight because we do not know the level of information that we arguably need to pass this bill in an informed, comprehensive way—in other words, the information that we could benefit from to do our jobs.

The situation we find ourselves in is between a rock and a hard place because, as the Hon. Mr Parnell has said, I think there may well be a case to keep some people in detention past the expiry of their sentence, the expenditure of their time, so to speak, but whether or not it is right for this person I do not feel qualified to say because I do not have the right information to help me make that judgement, nor should it be my job or anyone’s job in this room here tonight to make that judgement.

I will say, at this stage, that I believe the opposition amendments make a completely unpalatable bill and process slightly less offensive and slightly more professional, so I will, at the very least, be supporting the opposition amendments to make sure that this young person and other young people in this situation at least get supervision as opposed to indefinite detention with no support, with no investment in their ability to develop, as they are still children. Let me say it again: they are still legally and biologically children. However, pending the passage of those amendments, I will reserve my right to make a decision about the third reading of this bill after that.

I will just say at this point that I support the opposition amendments because I think they make an abhorrent bill and an abhorrent process slightly less abhorrent. I am not denying that this young person has obviously done some very serious things and needs to be dealt with but I want to make sure—and in fact I feel I would only be doing my job if we made sure—that that was being done in a comprehensive way with every opportunity for investment, for rehabilitation, for support and for the acknowledgement of the trauma in this person’s background because, at the end of the day, if we do not acknowledge that, we are not actually addressing the problem.

We are only sending this person down a path of reoffending, of being misunderstood and of being isolated, because no-one has acknowledged the real issues that have played a part in leading them to where they are today. Am I saying that with these investments they would absolutely 100 per cent not reoffend? Absolutely not, but I am saying that we owe it to this young person and to everyone in the community to actually do our jobs and make sure that we give every possible avenue the adequate exploration, investigation and implementation. So I will support the Liberal amendments and reserve my right to make judgement on the passage of the third reading, pending that.

The Hon. R.L. BROKENSHIRE (18:15): I will be brief because there is still a bit of other business to do, and I will talk much more on this whole issue around young people who are incarcerated and young people who for many reasons cannot live in general society. We are talking about a small percentage but, at the end of the day, first and foremost to me are the victims and also community safety. I look forward to debating the Statutes Amendment (Youths Sentenced as Adults) Bill in the near future, but I want to put on the public record that we do not like having bills rushed through this place either.

The Australian Conservatives have said before that we need, whenever possible, to have proper deliberation and consultation on these bills. We can worry about the blame and who is responsible, and why that young person went off the rails when that young person went off the rails at some point in time, and we can have a look at all of the unfortunate circumstances there, but the reality is that, for some young people at a particular time, incarceration or very close supervision is paramount for them and, as I said, for the victims and community safety generally.

Clearly, whether there was a muck-up somewhere in the Attorney-General's Department or not, we are now faced with this piece of legislation and we have to make a decision as a priority, and yes, it is more encompassing. Had we had more encompassing legislation than this when the government used to talk about being tough on law and order, and had we addressed problems around a small percentage of young people—but, nevertheless, young people who cause havoc through society and cause tragedy to families and loved ones of that family—the fact is we have to deal with what we are dealing with right now.

I advise the council that we will be supporting the government and we will not be supporting the myriad amendments that have been put up, but we say to the Attorney-General and the government, 'You need to not abuse the houses and you need to follow proper protocols as a rule.' I know from my experiences in former parliamentary years that there are times when governments do need urgent legislation put through, and we say that this is one of those times and therefore we will be voting with the government.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (18:18): I thank honourable members for their contributions to this debate, and I acknowledge that members have been asked to pass this with the utmost urgency and speed. I acknowledge that we are occasionally called on to consider difficult matters in a short amount of time, and I acknowledge the work that members have done availing themselves to briefings to get things done quickly. I acknowledge many of the contributions that members made and the questions they raised; however, I think some in this chamber may reflect on some of the language that they chose to use and may regret the way they expressed themselves this evening. I think some of the language used does them and us little credit when debating such serious issues.

Very quickly, to address some of the specific questions that were raised by the Hon. Mark Parnell, particularly about burden of proof and natural justice and appeals: under the high-risk offenders act, the application is made by the Attorney-General to the Supreme Court. The court takes into account medical assessments and must be satisfied that the offender is a high-risk offender by considering their offending. The court must assess a risk, and it must be satisfied of an appreciable risk to the safety of the community. The act lists the matters to be taken into account in making this decision.

The act provides for appeals to the Full Court. The order cannot be made for longer than five years and the offender can seek the court's consent for a review of the order at any time. Orders under section 23 of the sentencing act for continued detention are only made by the Supreme Court. The court must consider medical reports and then decide whether to detain the person in custody, with a paramount consideration being the safety of the community.

Section 23 orders can be discharged on application by the offender or the DPP. In addition, an offender subject to a section 23 detention order can apply, and the DPP can apply, for a release on licence. In both cases, the Supreme Court gives paramount consideration to the safety of the community in deciding whether to discharge the order or release the offender on licence. Medical reports are considered. Again, appeals go to the Full Court.

The bill before us generally ensures that those serious repeat offenders, be they adults or youths, who are finishing their sentences but who continue to pose a threat to the safety of the community can be subject to court orders requiring them to either be supervised whilst living in the community or be detained. The bill does this by extending two existing regimes in the criminal justice system that provide for the extended supervision and continued detention of offenders beyond their existing sentence and by building upon the existing provisions in the Criminal Law (Sentencing) Act concerning both youth and adult repeat offenders.

The bill also expands the category of offenders for whom there is a presumption against release on bail, but only those people whose history of offending is such that, either by force of legislation or by court order, they are serious repeat offenders or recidivist young offenders. This bill is about community safety.

I think it may assist the chamber to put on record that the government intends to support the Liberal amendments that go to the sunset clause and the review, but will oppose the other Liberal amendments. It is the government's view that if those other Liberal amendments, apart from the sunset clause and the review, are supported and get up, the bill does not do any of the work that we think it needs to do. So, the government will be voting against the bill in the case that those amendments, apart from the sunset clause and review, are supported.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I appreciate the minister's comments in the second reading summing-up and that the Labor Party has agreed to those two amendments. The Liberal Party has made a decision to amend and push forward with all the amendments and, in this instance, as the lead speaker of the bill, I am bound by those instructions. It is the Liberal Party's view that these amendments are the best option, given a difficult set of circumstances, and that allowing for a child over the age of 16 to be considered a high-risk offender is the appropriate course of action, given what we know about the circumstances.

I reiterate to members of the chamber that we do not know the full set of circumstances. We do not have the benefit of the knowledge that certain members of the government have, and we have to act in accordance with our consciences on the information that we have before us; therefore we will be pursuing the amendments.

Just in relation to one matter, on a personal level, that the Hon. Kyam Maher raised: if I offended him I apologise. I am very passionate about this issue. I have a strong lifelong commitment to rehabilitation and it pains me greatly to see bills like this pass through. I worry that all of us do not have enough public commitment to rehabilitation and to taking the public with us. Perhaps I could have been more temperate.

That said, I understand that whilst technically the amendments are not all consequential, we are going to treat the first clause as a test—

The Hon. K.J. Maher: And divide once, on that first clause.

The Hon. A.L. McLACHLAN: We will divide, yes, and then I understand that we will know where we stand. I move:

Amendment No 1 [McLachlan–1]—

Page 2, line 4—Delete 'Statutes Amendment (Recidivist and Repeat Offenders)' and substitute:

Criminal Law (High Risk Offenders) (Young Offenders) Amendment

The Hon. M.C. PARNELL: The Greens will be supporting this amendment. As I have said, we do not like the bill at all, but these amendments make the bill more palatable, so we will be supporting all the Liberal amendments.

The Hon. K.J. MAHER: As indicated in the second reading speech, on all but the sunset and review, the government will be opposing those. I will not go into details except to say that we consider the suite of amendments render what we think the bill needs to do inoperable, so we will be voting against it. I indicate we will be dividing on this first one to establish that but agree that this can be a test clause for the rest of those, save the sunset and review clauses.

The Hon. A.L. McLACHLAN: I acknowledge my agreement to what the Hon. Kyam Maher said.

The Hon. J.A. DARLEY: I indicate that I will not be supporting this amendment.

The committee divided on the amendment:

Ayes 10

Noes 9

Majority 1

AYES
Dawkins, J.S.L.	Franks, T.A.	Lee, J.S.
Lucas, R.I.	McLachlan, A.L. (teller)	Parnell, M.C.
Ridgway, D.W.	Stephens, T.J.	Vincent, K.L.
Wade, S.G.

NOES
Brokenshire, R.L.	Darley, J.A.	Gago, G.E.
Hanson, J.E.	Hood, D.G.E.	Hunter, I.K.
Maher, K.J. (teller)	Malinauskas, P.	Ngo, T.T.

PAIRS
Lensink, J.M.A.	Gazzola, J.M.

Amendment thus carried; clause as amended passed.

Clause 2.

The CHAIR: I put that clause 2, being these are all consequential, stand as printed.

Clause negatived.

Clause 3 passed.

Clause 4.

The CHAIR: Amendment No. 3 [McLachlan-1] is seeking to delete clause 4.

Clause negatived.

Clause 5.

The CHAIR: The next amendment is No. 4 [McLachlan-1].

Clause negatived.

Clause 6.

The CHAIR: The next one is amendment No. 5 [McLachlan-1], which is to clause 6.

Clause negatived.

Clause 7.

The CHAIR: Amendment No. 6 [McLachlan-1], clause 7, is to delete, of course.

Clause negatived.

Clause 8.

The Hon. A.L. McLACHLAN: I move:

Amendment No 7 [McLachlan–1]—

Page 4, lines 10 and 11 [clause 8(2), inserted subsection (2)]—

Delete 'a recidivist young offender' and substitute 'of or above the age of 16 years as at the time an application for an extended supervision order is made'

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 8 [McLachlan–1]—

Page 4, after line 12 [clause 8(2)]—After inserted subsection (2) insert:

(3) For the avoidance of doubt, for the purposes of subsection (2) it does not matter how old the youth was at the time of commission of the relevant offences.

(4) However, after 1 July 2019—

(a) the Supreme Court may not make an order under this Act in relation to a youth (despite subsection (2)); and

(b) an extended supervision order made under this Act in relation to a youth in accordance with subsection (2) ceases to be of any force or effect.

Amendment carried; clause as amended passed.

Clause 9 passed.

Clause 10.

The CHAIR: The next amendment is amendment No. 9 [McLachlan-1] to clause 10 to delete the clause.

Clause negatived.

Clause 11.

The Hon. A.L. McLACHLAN: I move:

Amendment No 10 [McLachlan–1]—

Page 5, line 33—Delete 'the relevant offence was' and substitute 'any relevant offences were'

Amendment carried; clause as amended passed.

Clauses 12 to 25 negatived.

New schedule 1.

The Hon. A.L. McLACHLAN: I move:

Amendment No 11 [McLachlan–1]—

Page 5, line 35 to page 12, line 14—Delete Parts 4 and 5 and substitute 'Schedule 1—Review'

1—Review of Act

(1) The Attorney-General must undertake a review of the operation and effectiveness of the amendments effected by this Act.

(2) The review required under this clause must commence not later that 1 January 2019.

(3) The Attorney-General must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

New schedule inserted.

Long title.

The Hon. A.L. McLACHLAN: I move:

Amendment No 12 [McLachlan–1]—Long title—

Delete 'Bail Act 1985; the Criminal Law (High Risk Offenders) Act 2015; the Criminal Law (Sentencing) Act 1988; and the Sentencing Act 2017' and substitute 'Criminal Law (High Risk Offenders) Act 2015'

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

That this bill be now read a third time.

I will make a very quick comment. As I outlined to the chamber before, this bill was about a measure to protect the community. We accept that amendments were carried by this committee. We consider that they render what the bill was supposed to do effectively useless. We do not think the bill, with the amendments that were accepted, would protect the community as we wished. In our view, the bill in its amended form has nothing to do, so we will be voting against the third reading.

The Hon. A.L. McLACHLAN (18:38): I will set out the Liberal Party's position. The Liberal Party will obviously be supporting the third reading of the bill as amended. It is our view that the amendments are measured and would have provided, in the circumstances to the extent that we are aware, an opportunity for appropriate applications to be made in relation to the youth if the passage of this bill went through.

The council divided on the third reading:

Ayes 7

Noes 12

Majority 5

AYES
Dawkins, J.S.L.	Lee, J.S.	Lucas, R.I.
McLachlan, A.L. (teller)	Ridgway, D.W.	Stephens, T.J.
Wade, S.G.

NOES
Brokenshire, R.L.	Darley, J.A.	Franks, T.A.
Gago, G.E.	Hanson, J.E.	Hood, D.G.E.
Hunter, I.K.	Maher, K.J. (teller)	Malinauskas, P.
Ngo, T.T.	Parnell, M.C.	Vincent, K.L.

PAIRS
Lensink, J.M.A.	Gazzola, J.M.

Third reading thus negatived.

Committees

Members

Quick Links

Visit

Contents

PARLIAMENTARY BUSINESS

MEMBERS

GET INVOLVED

ABOUT PARLIAMENT

VISIT

LEGISLATIVE COUNCIL

HOUSE OF ASSEMBLY

CONTACT