Sentencing (Release on Licence) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 May 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:08): The Sentencing (Release on Licence) Amendment Bill 2018 amends the Sentencing Act 2017 to further tighten conditions of release on licence or discharge of detention for an offender who has been declared unwilling or unable to control their sexual instincts and who is being detained indefinitely. This bill has been prompted by the potential release of notorious paedophile Colin Humphrys. However, the opposition does not believe the government bill in its current form goes far enough, and the opposition has lodged a number of amendments to strengthen this bill.

I will briefly recount how we came to this point then outline Labor's amendments to this bill. Colin Humphrys has a history of sexual offending across five states over 30 years. He was gaoled in 1992 for offences against a child who was kidnapped from Adelaide and delivered to him in New South Wales. The victim of this offence has been referred to in court transcripts and recent media reports as XX. Through the Carly Ryan Foundation, whose work is to be very highly commended, I have met with Colin Humphrys' victim XX. His strength and determination to bring about change is truly inspirational.

After being released, Colin Humphrys committed sexual offences against a then 14-year-old boy within 30 minutes of having met the young person. That offending continued for the next three years. In 2009, Justice Sulan sentenced Colin Humphrys to 10 years' imprisonment for five counts of unlawful sexual intercourse with a person under the age of 17. His Honour declared that Colin Humphrys presented an unacceptable risk to the community and ordered indefinite detention under then section 23 of the Criminal Law (Sentencing) Act 1988.

In December 2013, Colin Humphrys applied for release on licence pursuant to then section 24 of the Criminal Law (Sentencing) Act 1988. That application was withdrawn by Colin Humphrys after unfavourable medical and Parole Board reports. In July 2015, Colin Humphrys made a second application for release on licence. Despite the Parole Board remaining unsupportive of Colin Humphrys' release and medical reports unable to conclude that he was willing or able to control his sexual instincts, Justice Kelly ordered his release on licence in March 2018.

These matters that I just mentioned—the Parole Board and the willingness or ability to control sexual instincts—are not legislated determinants for the decision-making for the Supreme Court to release on licence. In her judgement, Justice Kelly noted:

… the response of the Parole Board to the application was fairly consistent throughout, to the effect that the applicant remains at a high risk of re-offending and is not suitable for release on any terms and conditions.

The judgement to allow the release on licence has been appealed by the DPP and was heard by the Full Court of the Supreme Court on Wednesday 23 May 2018. It is understood that the decision is likely to be handed down in the very near future, and that is why this bill is so urgent.

Unfortunately, the Attorney-General in the other place, the member for Bragg, has largely mishandled this matter over the last couple of weeks. Just over a week ago, the Labor opposition released a private members' bill that would strengthen the regime under which an offender like Colin Humphrys could be released. Justice Kelly's judgement to release Colin Humphrys on licence was handed down on 27 March 2018, a full two months before the Liberal government took any action in this matter.

On the morning of Monday 28 May, the Attorney-General, the member for Bragg, told ABC radio that the government would not yet be introducing legislation on this issue, that it would be premature to do so and that the government would wait until the full bench of the Supreme Court had handed down its decision. Later on the morning of 28 May, the Attorney-General gave a very confused interview on FIVEaa; it was hard to ascertain any new or changed particular position of the government.

Then, of course, the government had a cabinet meeting later on Monday 28 May. After the cabinet meeting, the government had a new position that was completely contrary to what the Attorney-General had told the public just that morning. The government said they would in fact have legislation that would largely mirror the Labor opposition's bill, albeit deficient in a number of ways.

In her contribution in the House of Assembly, the Attorney-General made a number of claims that I think are important to put on the record now. The Attorney-General claimed that the opposition had not sent her a copy of the bill. She claimed that she could not possibly have seen the bill because it was emailed to someone else the day before it was released. The Attorney-General, in her contributions in the House of Assembly, claimed that the bill was emailed to the wrong address.

Whilst this is a minor point, it is one the Attorney-General has seen fit to make a big issue of and reflects on the chaotic nature of how the Attorney-General is handling this matter and her portfolios. The draft bill was emailed the day before it was publicly released to the email address agd@agd.sa.gov.au. The Attorney-General claims that this is not the correct address for her to be contacted on.

The Attorney-General's own personal website has the email address agd@agd.sa.gov.au as the correct way to contact the Attorney-General. The website of this parliament has the same email address as the way to contact the Attorney-General. So, according to the Attorney-General, the email address that she holds out to the rest of the world to contact her on should not be used to contact her. It is quite a remarkable proposition.

In addition, the Attorney-General has already garnered herself quite a reputation for poor communication in relation to legislation. After introducing the first raft of Attorney-General bills into this parliament, the Attorney-General's office ignored repeated requests from the opposition for briefings. It was only when I raised with the Attorney-General publicly during a radio interview that we had been refused briefings that briefings were then offered.

Again, just last week, the Attorney introduced bills without offering briefings to the opposition, and I presume without offering briefings to the crossbenchers. In my experience, that is not a particularly conducive way to have legislation dealt with efficiently in this place. To the credit of the Attorney-General's office, they have now apologised for again introducing bills and starting the process without offering any briefings.

There is no doubt that the bill we see before us from the government has been cobbled together because of pressure under which the Attorney-General found herself at that cabinet meeting on 28 May to do something about this issue rather than put it off into the future. As a consequence of rushing the bill in such a way, the Attorney-General has left a number of deficiencies that we are now faced with fixing up.

The Labor opposition has lodged a number of amendments to this bill to improve it and to strengthen it. I trust the Attorney-General in another place has taken the time to look closely at the amendments, and I look forward to receiving support from the Liberal government for these amendments, which will then make the bill much more like the draft opposition bill.

The amendments, which I will outline, are: first, it requires the support of the Parole Board for a person under licence or for a discharge of a detention order to be a condition precedent, that is, if the Parole Board does not agree that someone ought to be released, then they ought not be released. As I stated earlier, in the case of Colin Humphrys, the Parole Board, all through proceedings over the last couple of years, remained steadfast in their view that Colin Humphrys posed an unacceptable risk and that there were no licence terms and conditions under which that offender should be released.

I implore people like the Hon. Dennis Hood, who has taken a very strong stand on these issues in the past, to use whatever influence he has in the Liberal Party party room to make sure that they come up with a sensible response to this and back in the opposition amendments. I am sure the Hon. Dennis Hood, if he was still on the crossbench with Family First or the Australian Conservatives, would be appalled at the possibility that a dangerous paedophile could be released against the wishes of the Parole Board. I would urge the Liberal government, and people like the Hon. Dennis Hood, to use whatever influence they have to make sure the government backs these very sensible amendments.

Secondly, the opposition amendments remove 'aged or infirm' as a legitimate reason for a detention order to be discharged or for a person to be released under licence. Under the Liberal bill a person has to either satisfy the court that they no longer pose a risk because they are not willing and able to control their instincts or because they are aged and infirm. The opposition takes the view that, if you cannot demonstrate that you can control your sexual urges or instincts, and that is why you have an indefinite term of detention, you should not have another way to get out through being aged or infirm.

A judge cannot give any weight to the length of time a person may spend in indefinite detention when making a decision about discharging a detention order or releasing a person under licence. I do not think this needs much explanation. We want to make sure that there is no reason given that a person might be detained indefinitely for a very long time. That is exactly what we think this legislation should do.

Our amendments introduce a new clause whereby a person who has been released into the community or into an institution and breaches any condition of their release licence is immediately returned to custody and has a seven-year waiting period before they can again apply for release. The amendments introduce a new clause to allow the appropriate board (in most cases that will be the Parole Board) to vary, revoke or cancel any conditions of release on licence on the application of the Director of Public Prosecutions.

Our amendments introduce a new clause to cancel release on licence where someone was released due to their age or infirmity and where there is evidence suggesting the person may now pose a risk to the community. Of course, we would prefer that the Liberal government supported our earlier amendment to remove aged or infirm as a reason for discharge or release on licence, but if that amendment fails we will be moving amendments to the bill so that a person who is released, being aged or infirm, can be, on application, taken back into custody if their circumstances change.

In the other place, an example was offered where someone was released due to being infirm and made a remarkable recovery in six months' time. We should make sure that there is an ability in those sorts of cases for that person to be brought back and detained. Finally, our amendments will ensure that, on rehearing applications for someone who is on licence, the court must consider the costs directly related to the release of the person on licence.

There is a provision in the Liberal government's bill for rehearing an application of someone who has been released on licence. Most of the things the court must take into account when rehearing that application mirror what the court must take into account when originally making the decision to release on licence, but for some reason the provision that the court must take into account, the cost directly related to the person on licence, is only in the original legislation and not in the bill in the section where it can be reheard.

This is almost certainly a consequence of the rushed nature of this bill and a legislative oversight which again demonstrates why having cabinet force you to introduce a bill in only a few hours leads to the sort of legislation we have before this chamber. With those words, I look forward to the speedy passage of this bill.

I note the Attorney-General, in her 180-degree backflip on this issue, has said that she is keen to ensure that this bill passes parliament before a decision of the full bench of the Supreme Court, which could be any week now, so I look forward to some discussions over the next day or so with members of the crossbench about the effect of these amendments and the speedy passage of this bill with the amendments.

Debate adjourned on motion of Hon. D.G.E. Hood.