Bills

Sentencing (Release on Licence) Amendment Bill

Committee Stage

In committee.

(Continued from 19 June 2018).

Clause 3.

The Hon. J.A. DARLEY: To assist the committee, I indicate that I will be opposing the Hon. Mr Maher's amendment No. 1. In general terms, I was going to oppose the other amendments, but I have a few question marks alongside some of them, so I might change my mind.

The Hon. K.J. MAHER: It was mentioned yesterday that, in order to assist the committee, there are a number of further amendments in the set of [Maher-1] that, if this fails, are either consequential or I flag I will not be moving them. I think that amendments Nos 3, 5, 6 and 8 require No. 1 to be passed for them to do any substantial work.

Amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 3, lines 1 to 3 [clause 3(1), inserted subsection (1a)(b)]—Delete paragraph (b)

This amendment has the effect of deleting part of the Liberal bill. The Liberal bill does much the same things as the bill that was drafted before the Liberal bill as a private members' bill in that it requires the Supreme Court to take into account whether an offender on indefinite detention is now willing and able to control their sexual instincts. Both the opposition bill, which was drafted first, and the subsequent government bill have that in common—that the Supreme Court must be satisfied that an offender seeking either discharge or release on licence under the Sentencing Act who is serving indefinite detention has to be willing or able to control their sexual urges.

The Liberal bill goes further than that in terms of allowing effectively another get-out-of-gaol-free card, if you will, in that if an offender can demonstrate that they are aged or infirm, that is also another way an offender serving indefinite detention is able to be released from gaol.

The opposition thinks this is unnecessary and believes that any offender, regardless of who they are, how old they are or whatever condition they are in, should be able to demonstrate they are now willing or able to control their sexual instincts that saw them serving the indefinite detention in the first place. If they are extraordinarily old, it might be very easy to demonstrate that, but we do not think there should be this get-out-of-gaol-free card, particularly on the basis of age.

As the original bill was drafted, someone could make a miraculous recovery, and we are not entirely sure—under the original drafting of the bill—how this miraculously recovered, infirm person would then be able to be put back in gaol after they had miraculously recovered. It is something that a lot of people can remember seeing years ago with people such as Christopher Skase. It often captures the community's interest when someone who has been otherwise healthy for a very long time suddenly has severe medical conditions that they use to seek to escape the application of the law.

We were exceptionally concerned that someone may appear to be infirm and may be able at a particular point in time on the balance of probabilities—and I am keen for the government to outline this; I assume the test would be on the balance of probabilities—to convince a court that they are in some way infirm and miraculously recover afterwards. So we think it is absolutely reasonable that the test should be whether a person is now willing or able to control their sexual instincts, the reason the court made the order in the first place for what is an exceptionally draconian measure: indefinite detention. The reason you are there in the first place should be the reason in relation to which the order is either discharged or the person is released on licence.

I commend to the chamber the amendment to delete the aged and infirm provision. Every other provision that is currently in the act remains. The provision that the government and the opposition agree on—that is, that you now have to be able to demonstrate you are willing and able to control your sexual instincts—remains. All this does is delete the other get-out-of-gaol-free card that the government is proposing where someone can demonstrate they are aged or infirm.

The CHAIR: Treasurer, in your response, could you also move your amendment because technically we need it to be moved before we proceed to putting it to the committee.

The Hon. R.I. LUCAS: I am happy to comply with the technical requirements of the committee stage, Mr Chairman, and I move:

Amendment No 1 [Lucas–1]—

Page 3, line 3 [clause 3(1), inserted subsection (1a)(b)]—Before 'infirmity' insert 'permanent'

It will be self-evident that if the Hon. Mr Maher's amendment gets up then, clearly, our amendment will have no work to do and we would not be able to proceed with it.

My advice is that the government's position is to oppose the amendment that has been moved by the honourable member. Under this amendment the opposition is seeking to delete proposed new section 58(1a)(b), which is a provision about the ability of the Supreme Court to order the discharge of a person's order of indefinite detention.

The comments that I make, I am advised, will apply equally to further opposition amendments Nos 7 and 10 which, in our view, should be treated as consequential amendments to this amendment No. 2 from the honourable member, as they make the same change but in relation to a person being released on licence and with regard to applications to cancel or confirm a release on licence.

The paragraph (b) of the bill that the opposition wishes to delete is part of a new first step for discharge of an order for indefinite detention. This first step, a hurdle to overcome in order for the discharge to occur, is that the person needs to demonstrate that they no longer pose an appreciable risk to the safety of the community due to their advanced age or infirmity. This paragraph (b) is repeated for people who are indefinitely detained, wishing to also be released on licence. The government has filed amendments to change this in all respects to being a permanent infirmity.

It must also be noted that if and only if the Supreme Court is satisfied that this first hurdle is overcome there is still a second hurdle. The Supreme Court, as per the current provisions, must consider the evidence before it and consider the paramount consideration of the safety of the community and then decide whether to discharge the order. The reason for inserting this provision is that under the bill the bar is set so high for any release on licence or discharge of an order that it is foreseeable that over time there will be people in prison who are indefinitely detained who will never pass the test to be released but who will become so aged or permanently infirm that they pose no appreciable risk to the community.

If the opposition amendment is passed, there will be no mechanism to get these people out of prison, for example, into an aged-care home. This paragraph (b) is designed to address this issue. However, the government is proposing, as I said, an amendment so that any infirmity must be permanent to address concerns raised in the other house about this issue. The government stands by the need for this particular provision to remain as part of the legislation.

The Hon. K.J. MAHER: I have few questions to go on this. As I look at my crossbench colleagues in this chamber I am wondering, if I ask a few questions, that might help crossbenchers make up their minds, but I am conscious that I want to give everyone a go. So maybe I will ask a couple of questions and then open it up, and then go back to further questions. My first question is: is it medical evidence that the court will rely on to determine someone's advanced age or infirmity?

The Hon. M.C. Parnell: The birth certificate would be the first one.

The Hon. R.I. LUCAS: I am advised that, yes, it is for the court to decide but it would be based on medical evidence. I am also advised that, in relation to part of your earlier question, it would be on the balance of probabilities.

The Hon. K.J. MAHER: Can the minister point to where in their bill there is a requirement for medical reports to be furnished?

The Hon. R.I. LUCAS: I am advised that they are in the existing provisions of the act and it is for the person applying for the release to provide the evidence to convince the Supreme Court of the merit of their case.

The Hon. K.J. MAHER: I thank the honourable minister for his answer. I have the act in front of me. Is the minister able to point to the existing provisions of the act that would require, under sections 58 and 59, that medical reports be furnished when making application under here, as the minister stated?

The Hon. R.I. LUCAS: My advice is that it is not a requirement but it is what the court would ask for.

The Hon. K.J. MAHER: Just to be clear, a person could get the benefit of this provision, potentially, because it is not a requirement, without having to furnish a medical report—that is possible?

The Hon. R.I. LUCAS: My advice is that the practice of the court is that that would be the procedure that would be adopted. If the member wants to, in legal terms, argue that anything is remotely possible, I will leave the member to argue that particular case. I am not in a position to give legal advice in relation to that issue, but the advice we have—the best advice we have—is that is the practice, and that will be the practice that the court will adopt. It would seem to be a common-sense practice that if someone is arguing issues in relation to medical conditions you would expect or assume the court would actually follow that particular practice. That seems to be a common-sense understanding of the processes they might adopt.

The Hon. K.J. MAHER: I will ask this final question and then some crossbenchers might have questions. Then I will go back to some of the questions about how a court would be judging someone's advanced age as the get-out-of-gaol-free card and what are the tests that would be applied and whether you would necessarily have to have a medical report given that you are merely going on someone's age.

I think it is worth placing on the record some disappointment at the way this council and the opposition and crossbenchers are being treated in this debate. We have heard again just now, and we heard regularly yesterday from the minister responsible in this chamber for the carriage of this bill, that he cannot give detailed answers. Yesterday, he claimed, 'I can't give detailed answers because I'm not a lawyer and others are lawyers, so they can figure it out for themselves.' He talked about the fact that he can only go on the advice that he has. He occasionally refused to listen to advice from his advisers or would not let the chamber know what that advice was.

I think it is going to be very difficult to conduct bills on behalf of the Attorney-General if the minister will regularly say, 'Well, I'm not a lawyer, I don't understand this as well, you just have to use your common sense.' I think it is going to be extremely difficult for the opposition, and crossbenchers particularly, to make judgements about whether this is good law or bad law, whether we should pass this.

It seems to me common sense that a minister representing another minister would be able to explain the bill, would have informed themselves of the effect and nature of the legislation we are being asked to consider. I think it holds this chamber somewhat in contempt to say, 'I'm not a lawyer, I don't know, just use your common sense,' or, 'You're a lawyer, you should know.'

If the honourable minister responsible for this bill at this time is struggling to explain the effects of the law we are being asked to pass because, as he said yesterday, 'I'm not a lawyer,' perhaps the honourable member should let someone who is legally trained like the Hon. Stephen Wade have carriage of bills where he might not be able to use that excuse that, 'I'm not a lawyer.'

I am wondering if the member might be able to, without referring to the 'I'm not a lawyer' excuse, let us know how a court would judge being released under this get-out-of-gaol-free scenario because of someone's advanced age?

The Hon. R.I. LUCAS: I thank the honourable member for his commentary. My advice is that it is not a get-out-of-gaol-free card, as the honourable member continually refers to, and that the individual would have to convince the court that advanced age or infirmity has to be proven to lead to the person to pose no appreciable risk to the safety of the community. That, ultimately, is the requirement. It is not just an issue of advanced age or infirmity, they actually have to prove that it would lead to the person posing no appreciable risk to the safety of the community.

The Hon. M.C. PARNELL: I, too, was going to start with the get-out-of-gaol-free analogy, because it implies getting out of gaol free of any due consideration being given to the circumstances. Get out of gaol free is a lucky card that you pull out of the Monopoly pile of Chance or Community Chest cards—I cannot remember which one—and it is just dumb luck that you got out. What we are looking at—

The Hon. J.E. Hanson: Chance.

The Hon. M.C. PARNELL: I am reliably informed it is a Chance card in Monopoly. What we are talking about here are two alternative tests to be applied to someone who wants to be released from gaol. The first test we have talked about already: the person is both capable of controlling and willing to control their sexual instincts. The second alternative test, which presumes a failure of the first, is that they are of advanced age or permanently infirm and therefore no longer represent an appreciable risk to the safety of the community. So they are drafted in the alternative.

In terms of whether or not to remove paragraph (b), the people we are talking about here are people whose minds are still not right. They still have evil thoughts and still harbour this notion that they would quite like to get their hands on young children. These are people who have not met the first test. The way I think of it is that their heads are still not right.

The question then is: if they can, by whatever mechanism, and the Leader of the Opposition has been exploring this mechanism, convince a court that, despite the fact that their head is still not right, they actually do not pose any danger or pose no appreciable risk to the community because they are so old or infirm—and if the government's amendment gets up, that infirmity needs to pass a higher test; that is, one of permanent infirmity—what good purpose is served by keeping them locked up simply because their mind is not right? I think that is an alternative way of posing the question: what good purpose is served?

The minister made a similar statement, saying that if we do not have paragraph (b) and someone does not get their mind right, then that is a barrier to people at an advanced stage of decrepitude having to stay in gaol and not being able to go to an aged-care facility, where they would presumably be treated more appropriately then they are in gaol. That is a complete barrier. Every so often, someone would presumably go to this old person in their wheelchair, to their bed if they are bedridden, or whatever they are, and ask them if their mind is right and if they have changed their thoughts. If they have not, and they still harbour these evil, wicked notions, paragraph (b) would give an opportunity for the court to say that, nevertheless, there is no real risk to the community.

The Christopher Skase example is a good one—he did ultimately die, I recall; I am not sure how long after we saw the oxygen tanks and whatever—but I think the government has sought to address that through the inclusion of the word 'permanent'. It is important to note that a person's advanced age does not need to be permanent—that sort of goes without saying—but certainly their infirmity needs to be permanent.

We could chew the fat and go up hill and down dale about the test to be applied, the satisfaction that the court needs to have and the medical practitioners that would be called in. However, at a practical level, the application is going to be made by the person who wants to be released or, more than likely, their legal representatives or someone acting on their behalf who says, 'Look, we know grandpa hasn't changed his way of thinking, but he is no longer any threat to anyone. Can he please go to an old person's home?' The worst case scenario is a remarkable recovery and they discharge themselves from the old person's home and reoffend.

Is that at all conceivably possible? Yes, it possibly is. The best laid plans can go astray and the court might get this wrong. However, when we are weighing these things up, on balance the idea that someone must stay in gaol effectively until they die because their head is not right, I do not think that is the way to go. I think that, for many of these people, aged-care facilities, or maybe even hospitals or palliative care, would be preferable to people having to stay in gaol simply because they have not been able to convince people that they are able to control their urges.

I will listen carefully to what the Leader of the Opposition says, but my inclination is to oppose the opposition amendment to delete subparagraph (b) but to support the government's insertion of the word 'permanent' in front of the word 'infirmity'.

The Hon. F. PANGALLO: I rise to support the opposition amendment to this. I have already given an example, probably more graphic than that of Christopher Skase, where in fact a court in South Australia was misled by a terrible offender by the name of Ric Marshall, who was a children's TV presenter back in the 1970s. We all remember those graphic images of Mr Marshall arriving in court on a gurney, supposedly incapable of any action. He was subsequently released and was later photographed frolicking in the front yard of his residence as if nothing was wrong with him. I have also been given examples by the Parole Board of a person who appeared to be permanently infirm, who was released and as a consequence was able to reoffend.

The other thing is, I do not know whether I would want a sex offender in a nursing home where one of my loved ones was, particularly when I am visiting with a young family. You just do not know. I would not think there would be many nursing homes that would want to take sex offenders in to look after them. I am a bit perplexed by the notion that, 'It's okay, let's let them out and nursing homes will look after them.' I am not sure whether nursing homes would. I imagine that it would be up to Corrections and the government to look at ways of handling people like this and where we should put them. Perhaps they might have to look at particular geriatric wings in Corrections. In essence, I do not agree with the notion. I support the opposition's amendment.

The Hon. K.J. MAHER: I thank the Hon. Frank Pangallo for his contribution and also the Hon. Mark Parnell. I might address some points the Hon. Mark Parnell raised. He is right, I think, that the correct way in the bill that the government has introduced is that it is either one or the other. I think that is a distinction that was teased out in the House of Assembly. As I remember the debate there, I think the Attorney-General may have been mistaken in that it had to be both, but I think the 'or' makes it very clear that it is one or the other.

It is either you are capable of controlling or willing to control your sexual instincts or it is (b), in the alternative, even if your mind is not right, which is an easy way to summarise it, due to either, as bill originally says, infirmity—or the alternative amendment is 'permanent infirmity'—or advanced age. I am keen in a moment to tease out a bit more what 'advanced age' could mean. It is one or the other of those that may see you either released on licence or having the detention discharged. I think the Hon. Mark Parnell is right when he says that the standard upon which you judge a person's advanced age or infirmity is against the appreciable risk they pose. That is, as I think the bill reads there, the test of how aged or infirm you are in relation to an appreciable risk.

I would say to the Hon. Mark Parnell, and also the Hon. John Darley, who will be considering how to vote on these amendments, that a couple of years ago when we were considering whether to release someone on licence or have the order discharged, the parliament changed this law to make the paramount consideration, when determining such an application, to protect the safety of the community. That was the paramount consideration that the court should take into account. We thought, I think, at the time that we passed those laws that that would remedy the problem of offenders who posed a serious risk being released. That clearly has not been the case.

We have seen the Supreme Court order the release of Colin Humphrys, completely against the recommendations of the Parole Board, and that is why we are here today because the reduction of risk that we thought we put in place to protect the safety of the community has not been enough. The way the courts have interpreted that law has meant that they have ordered that Colin Humphrys be released, and I think we are unanimous in our view that that it is not a good thing.

Based on reading the judgement of the Supreme Court, the fact that the Parole Board thinks that Colin Humphrys is not willing or able to control his sexual urges and the expert medical reports say he is not willing or able to control his sexual urges, even though we inserted the protection of the community clause to make sure that they would only consider it if the risk was low, we are back here today to take it further because that has not been enough.

I would say to the Hon. Mark Parnell and the Hon. John Darley that we are inserting the same test again. The provision that we have found to be deficient in the release of dangerous paedophiles, we are being asked today to have that same test about the risk to the community inserted against age or infirmity. That is not something we can live with as the opposition.

If one person—if a Colin Humphrys or a Ric Marshall—is released because somehow they have been able, at a select point in time, to convince the court that they ought to be released and, as we have heard, not necessarily on the basis that there is no actual requirement for medical evidence to be presented (you would think in the ordinary course of things it would be), and if someone was to be released and we had the chance to make it the case that they would not otherwise have been released because of this, I think it will be a difficult position we will be in if in the future that happens, knowing that we had an opportunity to not have that person released.

I would not like the Hon. John Darley or the Hon. Mark Parnell to be in a situation where, because of a very similar clause, the safety of the community, the appreciable risk that we are seeking to remedy here now, knowing that we had to remedy it because it was not sufficient, we inserted it again in relation to another area of this law and someone is released and offended. It will be not be an easy thing to live with.

The Hon. J.A. DARLEY: I thank the Leader of the Opposition, the Leader of the Government and the Hon. Mark Parnell for their explanation on this clause. That leads me to reaffirm my view that I will oppose this amendment.

The Hon. R.I. LUCAS: Just briefly, the Hon. Mr Pangallo raised the issue of Mr Ric Marshall. I do not want to comment about that case—I do not know the detail of that particular case—but in terms of the general principle my advice is that in the circumstances where someone convinced the Supreme Court, on the basis of medical evidence, and others that they were permanently infirm in relation to it and then, miraculously, two days after they got that judgement they were seen frolicking in the backyard, my advice is that there are other provisions in the bill that allow the government through the DPP to immediately, having had Today Tonight cameras expose this person frolicking in the backyard, to immediately institute proceedings to put that person back into custody.

I do not know whether those provisions existed in relation to the 1970s or 1980s case the honourable member referred to, and I do not seek to comment on that case in particular, but I am advised that in the circumstances I have just outlined, where someone then was caught, clearly contrary to the evidence that had been presented to convince the Supreme Court, the government of the day—I am sure Liberal or Labor—would immediately institute proceedings under the provisions to reverse that.

The Hon. F. PANGALLO: I do not know why it has to be up to the media to try to expose these wrongdoers. In the case of Mr Marshall, it was some time afterwards that this matter was exposed and who knows what he could have done in that period. I am not sure whether the government has the mechanisms to be able to determine that, when it took a tip-off, basically, to highlight the fact that this person had deceived a court. I still think there is a risk. The other thing I mentioned was the nursing homes. I do not know how somebody can be confident that nursing homes will accept a sex offender in their midst.

The Hon. M.C. PARNELL: I do not want to prolong the consideration of this clause because people have basically put their positions on the record, but I will say that there is a continuum of responses. At one end of the spectrum is lock them up, throw away the key and under no circumstances can they ever be released. The other end of the spectrum is very low bars, it is quite easy to get released, just say that you are reformed and that is enough and you will be out. What we are really looking at is where in between those two extremes we draw the line.

Whilst there is talk of—and I am familiar with the Marshall case and we all know about Christopher Skase—people feigning their infirmity, I tell you what is far more likely, and that is someone feigning the reformed nature of their mind. They have a bar to cross in that they have to convince some psychiatrists, doctors and whatever, but if there is danger, that is where it is. The danger is in people saying, 'I've reformed. I've reformed. I don't think like this anymore. I've learnt the error of my ways.' I think that is more the danger area.

At the end of the day, unless we are going to go for throw away the key and you must die in gaol regardless, we have to draw the line somewhere else. I take the Hon. Kyam Maher's exhortation of, 'How will we sleep at night if this goes wrong and someone is let out and reoffends, and it will all be our fault.' Yes, I take that responsibility, as I think all members of parliament do if we get it wrong. However, I think that where this line is currently being drawn is a sensible one, especially given that the consequence of removing this means that there will be people who, on no possible estimation, will ever be a danger ever again to anyone but they must stay in gaol because their mind is not right. I think that is too far in the other direction.

I am comfortable with the position that the Greens have landed at, which is that we will not support the Labor amendment but we will support the Liberal inclusion of the word 'permanent' in front of 'infirmity'.

The Hon. K.J. MAHER: I am keen to tease out two things: the test for 'aged' and is there a specific date or chronological year that someone needs to be, and how will the courts interpret that where it is not 'aged and infirm', this is 'aged or infirm', so it is 'aged' by itself? Before I do that, the minister mentioned that, under the bill as it is drafted, if this miraculous recovery—

The Hon. R.I. Lucas: With amendment No. 3.

The Hon. K.J. MAHER: Can I confirm that, under the bill as it was originally drafted before the amendment, there was no way a miraculously recovered person would be able to be brought back into gaol?

The Hon. R.I. LUCAS: I am advised that the DPP could have launched an action under common law, but to further clarify, there is a further amendment that we are about to consider, which speaks to the substance of the response I gave earlier to the Hon. Mr Pangallo.

The Hon. K.J. MAHER: I thank the minister for his comments and I think that confirms what we thought. I think schedule 2 of the bill was rushed and incorrectly drafted, so I think the bill was mistakenly put into parliament. I think the correct application was that it is not prospective in nature in terms of allowing an application from someone who is released in one or two years, pretending to be of no appreciable risk because of age or infirmity and then miraculously recovers.

Under the bill, as it was originally put into parliament, I think schedule 2 would only apply to someone who was released before this bill came into operation, and it left wide open that anyone who had an order after the bill came into operation would not be able to have schedule 2 applied. I note that the minister has said that there is an amendment to fix it up, and I thank the government for moving that amendment. Certainly, without that amendment, I think we would have had no choice but to pass the opposition amendments to stop that miraculous recovery scenario.

I think that does point to the fact that we canvassed this when the committee last met that this bill was, it seems, very, very hastily drafted. It was a response to something that the opposition did. The bill was put into parliament without due thought. I appreciate that there is now a government amendment to fix up what was clearly an oversight that would have left a hole wide open for not being able to get that miraculously recovered scenario back into gaol. Given it is a stand-alone test—not to do with being aged and infirm—what is the test that is going to apply for someone who is just aged?

The Hon. R.I. LUCAS: I am advised that it is obviously a decision for the court. The court has to find that the advanced age results in the person no longer presenting an appreciable risk to the safety of the community. It is a judgement for the court. There is no definition. If the leader is looking for a definition as to exactly what that age is, that is a judgement for the court.

The Hon. K.J. MAHER: I am presuming that if you are of an advanced age such that a court might decide, without necessarily having any medical evidence before it, that someone's advanced age was such that they do not pose an appreciable risk, does that mean—as I think the Hon. Mark Parnell spoke about—that physically they are not able to pose a risk? Generally, is that what is going to be the case?

The Hon. R.I. LUCAS: I am advised that the intention of this provision is that, either through advanced age or infirmity, they no longer present an appreciable risk to the safety of the community. Ultimately, that is a judgement call for the court to make.

The Hon. K.J. MAHER: I am assuming then that there is something in the nature of the person's physical ability, in that advanced age part, that means they do not pose an appreciable risk anymore?

The Hon. R.I. LUCAS: Again, I think that would be a reasonable assumption to be made by the leader.

The Hon. K.J. MAHER: If it is reasonable to assume—for the advanced age part—that it is the physical nature of the ageing process that has rendered them no longer an appreciable risk, surely that also means that they are infirm enough not to pose a risk. Why do we need both of those; why not just 'infirm'?

The Hon. R.I. LUCAS: Based on advice from parliamentary counsel, I understand it is a replication of an existing provision in the Sentencing Act as it relates to a different area in relation to home detention. The provision there refers to advanced age or infirmity. That particular provision carried over into the drafting of this particular provision. I am told that the former drafting was used under the amendments introduced by the former Labor government. The same drafting has been used in relation to this particular provision.

The Hon. K.J. MAHER: I thank the honourable member for his kind of answer. I think it is going to be difficult for both the opposition and crossbenchers if reasons of, 'Oh, because someone else did it before' or, 'It's done somewhere else' are given. My question is: why are we using that term? Why is it not just 'infirmity'? Whether it is used here or whether it is used elsewhere in legislation, in this act or anywhere around the world, what is the reason for it?

The Hon. R.I. LUCAS: I cannot offer much more than that. That was a drafting decision that has been taken based on the best advice the government had in terms of the drafting. The advice given to me is that we are unconvinced that it creates any problem in terms of the way the drafting has been done. In the absence of any indication as to what the problem or mischief is that is created through the drafting, the government commends the current draft to the committee.

The Hon. K.J. MAHER: I thank the honourable member for his answer. It gets back to a point I made very early on. When we were last in committee the honourable member did not answer questions or would not supply answers on the basis that he is not a lawyer. He was handling an Attorney-General’s bill and was unwilling to provide answers on that basis or on the basis that other members of the chamber were lawyers and they should know and work it out for themselves. Just saying, 'This is how we chose to draft it' does not give us any explanation whatsoever.

I might do it as a very, very simple question. In what scenarios would someone be considered of advanced aged and not be an appreciable risk where they would not also be infirm and not presenting an appreciable risk?

The Hon. R.I. LUCAS: I really cannot offer any greater clarity in response to the leader's question. It is a judgement call he will have to make in relation to the amendment. This is the bill that the government through the Attorney-General, based on its legal advice, has drafted. I just return to what I said, based on advice, earlier—that is, in the absence of any argument that the drafting causes or creates a problem—we recommend the current drafting of the bill and this particular amendment to the committee.

The Hon. K.J. MAHER: If it is the case that someone does not pose an appreciable risk because of their infirmity—and I recognise the government has now come to their senses and acknowledged they got the bill wrong in the first place and are moving an amendment to have permanent infirmity—if the government cannot outline any scenarios where advanced age or infirmity, or permanent infirmity if that is what passes, are any different, it seems unnecessary.

But if the government is insisting that advanced age needs to remain there because there are differences between the two, then I think this chamber needs to know what are the scenarios. We might be agreeing to something that could potentially let dangerous paedophiles back onto the street because of advanced age. What are those scenarios?

The Hon. R.I. LUCAS: Again, this is the third time the member has put the question. I cannot offer any further information other than the answers I have provided to the first two questions.

The Hon. K.J. MAHER: I will make this the final question on this: can the minister outline any reason why we should not remove 'age' from it?

The Hon. R.I. LUCAS: I cannot offer any further information to the three questions that the member has now put. The advice I have provided is the best advice that I have been provided with, and I shared that with the committee.

The CHAIR: Are there any other contributions on the amendments from honourable members? Just to alert honourable members as to how we are going to proceed, as there are two amendments, one moved by the Treasurer and one moved by the Leader of the Opposition, the first question I am going to put—before I put it, just to alert you—that all the words in paragraph (b) up to but excluding 'infirmity' stand. If you are in favour of the Treasurer's position you will vote aye, and if you are in favour of the Leader of the Opposition's position you vote no—that is for the benefit of our newer members. I will put the question, unless any other honourable member has a contribution, that all words in paragraph (b) up to but excluding 'infirmity' stand.

The committee divided on the Hon. K.J. Maher's amendment:

Ayes 10

Noes 9

Majority 1

The Hon. K.J. Maher's amendment thus negatived.

The CHAIR: The Hon. Mr Lucas's amendment has already been moved, so I am going to put it as a question.

The Hon. R.I. LUCAS: Just speaking very briefly, we have had the debate already in relation to this, so I do not propose to add anything further.

The Hon. K.J. MAHER: Just a quick question on the amendment that is now going to be put to insert 'permanent'. The minister who has carriage of this bill in this chamber spoke about the reason to put this in is because it appears elsewhere in legislation as being the reason to put 'aged and infirm' in. The explanation you gave about why you would put 'aged and infirm' in is because it appears elsewhere in this legislation—can I confirm that?

The Hon. R.I. LUCAS: To answer the honourable member's question, no. This amendment is about inserting the word 'permanent' and has nothing to do with the issue that the honourable member just talked about. This is about inserting the word 'permanent'. We had the debate in relation to the earlier amendment. I thought from the earlier comments from the Leader of the Opposition that he was actually supporting the insertion of the word 'permanent'. This is simply about inserting the word 'permanent'.

The Hon. K.J. MAHER: I can indicate that the opposition will be supporting this amendment. The opposition is simply asking: does the word 'permanent' appear in other places in this legislation or other legislation where 'aged and infirm' appears?

The Hon. R.I. LUCAS: My advice is no.

The Hon. K.J. MAHER: Is the government considering, seeing that the government saw fit—and we support inserting the word 'permanent' here—have they considered, at all, putting the word 'permanent' for that consistency, which the minister was so fond of moments ago?

The Hon. R.I. LUCAS: Obviously, it is not proposed in this bill, so the answer to the question as to whether we are going to include it is no, that is not our suggestion. I am advised that there was some consideration but they believed that on consideration it has work to do in relation to this particular area; it does not have the equivalent amount of work to do in the other area.

The Hon. K.J. MAHER: I am wondering if the minister could expand on that: why it is needed here and why it is not needed in other places in this bill that it appears.

The Hon. R.I. LUCAS: We have had the debate about why it is needed here and I think the member has indicated that he supports it here. I am not in a position and we are not discussing at this stage why various other parts were not amended. The only reason that issue was referred to earlier was that the member had asked a question whether the words that he asked about earlier appeared in other parts or where that had come from, or words to that effect, and that was the advice I was given. But, we are not actually discussing the home detention issues in relation to this particular bill. We are talking about a particular set of circumstances which do not directly relate to home detention.

The Hon. K.J. MAHER: I understand what the minister is saying. It does seem incongruous that the minister would, in the absence of actually being able to explain the notions of what the stand-alone age part means and what the test will be, he fell back on the fact that it appears elsewhere in this legislation and that is the reason that it is being inserted here. It seems incongruous that the reason you cannot explain what something does is because, 'I am only doing it because of drafting suggestions because it appears elsewhere,' that no consideration then would be given to going back and applying that consistency of which the minister was so fond only moments ago.

The Hon. R.I. Lucas's amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Maher–1]—

Page 3, after line 3—Insert:

(1d) Section 58—after subsection (4) insert:

(4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person subject to the order may spend in custody if the order is not discharged.

This amendment has work to do in relation to some other amendments, but stands on its own and is not consequential, in that it is an amendment out of an abundance of caution. We often legislate not for what is most likely to happen but what may happen. This makes it very clear that, when a court is determining an application under this section, the court should not have regard to the length of time that a person subject to an indefinite detention order has served.

In effect, what it means is that the court must only take into account the other provisions—that is, that a person can now control or is willing to control their sexual instincts—but cannot take into account the length of time that someone has served. We do not want any sort of danger, in the worst-case scenario, where a court may view the amount of time that someone has spent in gaol as a consideration. This makes it abundantly clear that this is not something that can be taken into account.

We think it is a pretty common-sense amendment in that, even if you put up the argument that you think the rest of the act is enough, and a court cannot take into account anything that is not in the act, then this does no harm. It does not take away from any of that and, at the very worst, it does no harm. The only possible argument that we can see against it is that they should not be doing it anyway. If that is the case, then there is no harm in putting it in there.

The Hon. R.I. LUCAS: I am advised that, under this opposition amendment, a new section (58), subsection (4a) is inserted, stating that when the Supreme Court is determining whether to discharge an order for a person who has been indefinitely detained, the length of time the person has spent in custody must not be taken into consideration. Amendment No. 1 of the second set of amendments filed by the honourable member and amendment No. 11 insert the same provisions, but regard an application for release on licence or an application that a release be cancelled. The government's position is that it considers the amendments are unnecessary, in light of the new, stricter test to be applied prior to a discharge or a release on licence being ordered.

The Hon. F. PANGALLO: I rise to concur with the opposition, and I support that amendment.

The Hon. M.C. PARNELL: I might take this opportunity to put on the record the Law Society's view of this particular amendment, which I think we have been invited to do by the Leader of the Opposition, who could think of no arguments other than those he put forward. Members would have seen the submission of the Law Society. It was addressed to the Attorney-General, dated 8 June. Paragraph 27 of their submission reads as follows:

The removal of the ability for the Court to take into account how long a person has been in custody has serious implications in terms of the supports and rehabilitation that might then be provided to an incarcerated person. If the Court is able to take this factor into account it provides some encouragement to the Department of Corrections to provide the rehabilitation and re-integration supports that a person needs to ultimately transition into the community. If this consideration is mandatorily excluded, there is no encouragement for the Department to offer any supports to transition someone out of custody and the potential exists for people to be in custody indefinitely with no support or release plan.

What the Law Society is saying is that once it has been realised that this person is not getting out, then the approach from Corrections would be, 'Well, what is the point in wasting any money on their rehabilitation or their education? They are not getting out.' People might think it is a long bow to draw, because the amendment we are looking at here is that the court is not allowed to take into account how long they have been in gaol or how long they might be in gaol.

I guess the assumption is that if the court were thinking, 'If we do not let them out, then they will die in gaol, and if they are going to die in gaol, then Corrections will know that and no effort will be made to rehabilitate them.' I think that is the way the logic flows.

The Greens' position on this particular amendment was not as solid as it was with the previous one. I did mention earlier on that the notes that I have include the words 'convince me'. It possibly does no harm, because I think the predominant consideration of the court is going to be the safety of the community, as we have discussed. The court is going to have to look, most importantly, at whether the incarcerated person has changed their attitude, whether they are willing and able to control their instincts. That is a dominant consideration.

I guess age and infirmity, as we have been discussing, are also considerations. My feeling would be that once the court has taken those things into account there is probably not much left to think about in terms of 'but they might be in gaol for the rest of their lives'. And that might be the correct answer—that they die in gaol. I am not saying that is the wrong answer. It might be the best answer. I am not entirely convinced that the amendment is necessary, but also not entirely convinced that it improves the situation. I am keen to hear anymore arguments.

The Hon. J.A. DARLEY: I am of the view that this amendment does no harm and so I will be supporting it.

The Hon. K.J. MAHER: I might just conclude. I will not take long. I thank the honourable member for putting on the record the Law Society's view, which had been taken into account in the opposition continuing with this amendment. The opposition does not agree with the Law Society's view about what may be in the minds of Correctional Services in looking at rehabilitation programs for individuals. In my experience, Correctional Services take the prisoners as they find them and apply rehabilitation services based on what they know, not what they think may or may not be in the minds of courts about whether to release them.

The opposition thanks the Law Society for its view, but disagrees with, as I think the honourable member put it, possibly the long bow they draw in relation to this. I think, as the government has said, that they do not think it is necessary. I think that is the nub of it. It may not be necessary, but we think, out of an abundance of caution, that it should be supported. If the government does not think it is necessary, then it is probably a very good indication that it does no harm, and if it does no harm but may make something abundantly clear, then it ought to be supported, we think.

The Hon. F. PANGALLO: Again, I am in support of that. I do not think it does any harm to include that amendment. I am just unsure about the role of the Parole Board when there is a long-serving prisoner, as to whether they need to satisfy or make admissions to a Parole Board before they are released. I am not talking about sex offenders, but I think there are instances where long-serving prisoners before they are released on parole need to satisfy or make admissions to the Parole Board. Is that correct?

The Hon. R.I. LUCAS: My advice is that we are happy to have an officer discuss that with the Hon. Mr Pangallo, but it is not directly relevant to this particular issue, which relates to the issue of release on licence. Having been in this chamber for a long time, I recognise that the numbers are not with the government in relation to this, so I do not intend to delay the proceedings of the committee, at least from the government's viewpoint.

Amendment carried.

The Hon. K.J. MAHER: I indicate that I will not be moving amendment No. 5 [Maher–1] about the role of the Parole Board, given the chamber has decided it should not have such a role. I indicate as well that I will not be moving amendment No. 6 [Maher–1] either. They are both consequential on the involvement of the Parole Board, as the opposition had suggested.

Clause as amended passed.

Clause 4.

The Hon. K.J. MAHER: I move:

Amendment No 7 [Maher–1]—

Page 3, lines 16 to 18 [clause 4(1), inserted subsection (1a)(b)]—Delete paragraph (b)

There are a number of amendments in relation to the Parole Board and in relation to the issue of aged and infirmed which relate to an indefinitely detained offender being released on licence, the indefinitely detained offender having that order discharged and also for an indefinitely detained offender having the application of being able to be brought back before a court and having these new laws apply.

There are three ways our amendments apply in relation to the act. This is the second way in relation to being aged or infirmed and, given that we have had debate on this and I have seen how the numbers are in the chamber, I was considering reprosecuting it and dividing again, but I do not think that would be a good use of everyone's time. So I will put the amendment but then lose it very quickly, I suspect.

The CHAIR: I need the Treasurer to move his amendment as well.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Lucas–1]—

Page 3, line 18 [clause 4(1), inserted subsection (1a)(b)]—Before 'infirmity' insert 'permanent'

We have prosecuted the case, as the leader indicated earlier, and I will not add anything further.

The Hon. K.J. Maher's amendment negatived; the Hon. R.I. Lucas's amendment carried.

The Hon. K.J. MAHER: I confirm that I will not be moving amendment No. 8 [Maher-1].

The CHAIR: I understand that we are then at amendment No. 1 [Maher-2].

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–2]—

Page 3, after line 18—Insert:

(1b) Section 59—after subsection (4) insert:

(4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.

(1c) Section 59(10)—delete subsection (10) and substitute:

(10) The appropriate board must, on application by the DPP or on its own initiative, cancel the release of a person on licence if satisfied that—

(a) the person has contravened a condition of the licence; or

(b) where the person was released on licence due to the person's advanced age or infirmity—there is evidence suggesting that the person may now present an appreciable risk to the safety of the community (whether as individuals or in general).

(10a) The appropriate board may, on application by the DPP or the person, or on its own initiative, vary or revoke a condition of a licence or impose further conditions.

(10b) If the appropriate board has cancelled the release of a person on licence, the person may not further apply for release on licence for a period of 7 years, or such greater period as may be specified by the Board.

(1d) Section 59(11)—after 'subsection (10)' insert 'or (10a)'

(1e) Section 59(13)—after 'subsection (10)' insert 'or (10a)'

The CHAIR: It has been indicated that you might be amending '7 years' to '5 years' in (10b).

The Hon. K.J. MAHER: The first part of this amendment, that is (1b) of the amendment to section 59 after subsection (4), is consistent with what has been the will of the chamber in relation to a court not taking into account how long someone has been detained under an order. The second part of the amendment, that is from (1c) down, is different. I do not think it is the same issue that has been agitated and that the chamber has been in agreement on. It introduces a number of new provisions, but if I can draw members' attention in particular to (10b): 'If the appropriate board'—that is almost always the Parole Board—'has cancelled the release of a person on licence, the person may not further apply for release on licence for a period of 7 years'.

If someone has been under an order of indefinite detention, has been released on licence and they breach any part of their licence conditions, under that part of this amendment that prisoner is not able then to apply again to be released on licence from indefinite detention for a period of seven years. I might indicate to the chamber that I will be seeking to move an amendment to this to change '7 years' to '5 years'.

The CHAIR: Leader of the Opposition, you can move that in an amended form.

The Hon. K.J. MAHER: I move my amendment in an amended form. The amended form is amended to change, in (1c)(10b), the number '7' to '5' so that (10b) now reads:

If the appropriate board has cancelled the release of a person on licence, the person may not further apply for release on licence for a period of 5 years, or such greater period as may be specified by the Board.

The Hon. R.I. LUCAS: Mr Chairman, I seek some guidance in terms of what is now an amended amendment. Given the decision that was taken earlier, is there any way in the procedures for the first part of this amendment, which is the amendment to insert subclause (4a), to be decided, because that is consistent with the decision taken earlier, and then we can address the remainder of the honourable member's amendment?

The CHAIR: It is my understanding that we can do that.

The Hon. R.I. LUCAS: Are you happy to do that first?

The Hon. K.J. MAHER: I further move this in a further amended form, Mr Chairman.

The CHAIR: No, I will put the question if the Leader of the Opposition is happy at this point.

The Hon. K.J. MAHER: Yes.

The CHAIR: I put the question that clause 4, page 3, after line 18, insert:

(1b) Section 59—after subsection (4) insert:

(4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.

I put the question to the committee that that be agreed to. Treasurer, are you happy with that approach?

The Hon. R.I. LUCAS: Yes.

The CHAIR: I put the question to insert subclause (1b): those for the question say aye, against no; the ayes have it.

The Hon. K.J. Maher's amendment No. 1 [Maher-2] subclause (1b) carried.

The CHAIR: Whilst the Treasurer is consulting and for the benefit of honourable members, after debate from honourable members I will put the question that the Leader of the Opposition's amendment will be (1c), (1d) and (1e).

The Hon. R.I. LUCAS: Thank you, Mr Chairman. I think that makes the process marginally easier. Let me place on the record that the government's position in relation to this amendment is that we oppose the amendment that subsection 59(10) of the act is replaced. This same section is the subject of the government's amendment No. 3. The government, of course, prefers its own amendment. Section 59(10) currently provides:

The appropriate board may—

(a) on application by the DPP or the person, or on its own initiative, vary or revoke a condition of a licence or impose further conditions; or

(b) on application by the DPP, or on its own initiative, cancel the release of a person on licence, if satisfied that the person has contravened, or is likely to contravene, a condition of the licence.

Government amendment No. 3 to be considered next, expands on this provision, so that in addition to these provisions, in cases where a person is released on licence due to permanent infirmity or advanced age, the DPP has the ability to apply for a cancellation of licence—and a board can also do so itself—if there is evidence that the person may now pose an appreciable risk to the community. The government amendment addresses concerns that a person's infirmity may change, their risk to the community may change and, therefore, their release needs to be reconsidered.

This opposition amendment goes too far. It removes the discretion of the board. Instead of allowing the board to take certain actions, it says:

The appropriate board must, on application by the DPP or on its own initiative, cancel the release of a person on licence, if satisfied that—

(a) the person has contravened a condition of the licence; or

(b) where the person was released on licence due to the person's advanced age or infirmity—there is evidence suggesting that the person may now present an appreciable risk to the safety of the community (whether as individuals or in general).

The government takes the view that some breaches may be very minor in nature and it is more appropriate that the Parole Board has the discretion to cancel a licence, but may choose not to in cases of very minor breaches.

Further to this, an additional part of this amendment prevents a person from applying for a release on licence for a period of seven years, or in the case of the amended motion, five years, or such greater period as specified by the board, following the cancellation of their release on licence by the appropriate board.

Again, our view is that this amendment not be supported as it is unnecessary under the current act, where the Supreme Court refuses a person's application for release on licence pursuant to section 59(9) of the act, which states:

…the person may not further apply for release for a period of 6 months, or such lesser or greater period as the Court may have directed on refusing the application.

Given that a breach could be very minor, this amendment goes too far and these amendments should be opposed.

The Hon. M.C. PARNELL: The opposition's amendment, I think, is harsh, but again it addresses a continuum of circumstances. At one end of the spectrum what the opposition is proposing is entirely appropriate and at the other end of the spectrum, it is not at all. The difficulty arises, as the minister indicated, from the use of the word 'must':

The appropriate board must, on application by the DPP or on its own initiative, cancel the release of a person on licence if satisfied that—

(a) the person has contravened a condition of the licence…

I do not pretend to be an expert about what all those conditions might be, but let's look at two ends of the spectrum. If one of the conditions is that the person does not hang around schoolyards, then I am thinking that is a serious breach. If a person released on licence is hanging around outside a school, then we get them back in, we get them back in gaol.

At the other end of the spectrum, if it is a condition of licence that they report somewhere—a police station, whatever—by 4 o'clock every Thursday afternoon and their bus breaks down and they get there at five minutes past four, that is a breach. Under the opposition's amendment a hardline approach would be, 'You've breached a condition of your licence, you're going back inside and you're not even allowed to ask to be let out again for five more years.' Now, that really is going too far. That is the dilemma that we have here.

The question then needs to be: on that spectrum of breaches of condition, can we have confidence that if the paedophile released on licence is found at a playground or near a schoolyard, is there capacity to get that person back in and to effectively lock them up again? I think the answer is yes, there is that capacity to do that.

On the question about how long a person should have to wait before reapplying, what we do not want, I guess, is someone every five minutes applying for release and occupying the resources of the state. I am not sure what other capacity there is in the Parole Board or wherever else to limit vexatious continuous applications. I would take some guidance from the minister as to whether there is some way of limiting it. At the other end of the spectrum, though, making them wait five years before being even able to ask to be let out again on licence is going too far, I think, in the other direction.

My inclination is therefore not to support this opposition amendment, but I would appreciate it if the minister can respond to any of those issues. Is there a way of preventing people from applying—I said every five minutes but, say, every month? Is there a way of stopping someone from applying every single month, or do they have a legal right to insist that any application they make, whenever they make it, must be fully dealt with? Is there a mechanism there? If there is, that is good, and if there is not, I am still struggling with five years as the default.

The Hon. K.J. MAHER: I just might answer—you go first.

The Hon. R.I. LUCAS: I think the question was to me, so I thank the honourable member for his offer of assistance. I know he is a lawyer and I am not—I am at that disadvantage. The advice I am given is that under the current act where the Supreme Court refuses a person's application for release on licence pursuant to section 59(9) a person may not further apply for release for a period of six months, or a lesser or greater period as the court directs upon refusing the application. So I would assume, in the circumstances, that if the Supreme Court had a series of six-month ones they may well—may well; they would have the power to—direct a longer period, saying, 'Don't come back and make another application for two years', or 12 months or something. So I assume that would be within the realms of possibility of the court if it chose to so act.

The Hon. K.J. MAHER: I just want to make a very quick point. I note that the Hon. Mark Parnell asked, 'Can you keep applying to the Parole Board for this sort of thing?' It is worth pointing out that we decided earlier today that the Parole Board should not have a role in this. You would ordinarily think, as I think the honourable member did, that the Parole Board ought to have a role in this—they are the ones on a day-to-day basis who deal with these sorts of things a lot more—but it is not the Parole Board. We decided that the Parole Board being able to stop someone getting out is not something we wanted, so it is actually the Supreme Court, not the Parole Board. Again, common sense might dictate that it should be the Parole Board, but we in this chamber decided that not be so.

The Hon. J.A. DARLEY: I will still be opposing the opposition's amendment.

The Hon. F. PANGALLO: I will be supporting the opposition amendment. I note that the honourable member mentioned the issue of missing a bus and not being able to report in. I am sure there would be a discretion by the Parole Board or any body that looks after the welfare of these prisoners and that that would be taken into account. I am sure this amendment will take into account a serious breach rather than a trivial breach. That is what it is intended to do, so I will be supporting it.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Lucas–1]—

Page 3, after line 18—Insert:

(1a) Section 59(10)(b)—delete 'the person has contravened, or is likely to contravene, a condition of the licence.' and substitute:

—

(i) in the case of a person released on licence on the ground referred to in subsection (1a)(b)—there is evidence suggesting that the person may now present an appreciable risk to the safety of the community (whether as individuals or in general); or

(ii) in any case—the person has contravened, or is likely to contravene, a condition of the licence.

The CHAIR: If there are no other contributions from honourable members, I put the question that new subclauses (1c) to (1e) as proposed to be inserted by the Hon. K.J. Maher be so inserted. If you are with the opposition you vote yes; if you are with the government you vote no—for the benefit of clarity for members.

The committee divided on the Hon. K.J. Maher's amendment:

Ayes 9

Noes 10

Majority 1

The Hon. K.J. Maher's amendment No. 1 [Maher-2] subclauses (1c), (1d) and (1e) thus negatived.

The CHAIR: The next question is that new subclause 1(a) as proposed to be inserted by the Treasurer be so inserted.

The Hon. R.I. Lucas's amendment carried; clause as amended passed.

Clauses 5 to 10 passed.

Clause 11.

The Hon. R.I. LUCAS: I move:

Amendment No 4 [Lucas–1]—

Page 5, line 33 [clause 11, inserted Schedule 2, clause 1(5)(b)]—Before 'infirmity' insert 'permanent'

I move the amendment standing in my name. It is consequential on an earlier vote and debate.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–2]—

Page 6, after line 23 [clause 11, inserted Schedule 2, clause 1(8)]—After paragraph (c) insert:

(ca) evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;

This area relates to when someone has been released on licence, but, on application, is sought to be reheard by the court under these new provisions. The private members' bill that the opposition drafted essentially used the mechanism when someone was going before the Supreme Court, again, having already being released on licence, that referred to the provisions under sections 58 and 59, that is, the original provisions, as we would amend them, that the court would take into account.

The structure of the drafting that the government has chosen is to restate provisions in this new section. I think in the haste of the government drafting this they missed out on part of the provisions and so we are seeking to help the government out in what was a very clear drafting error in the haste in which they sought to draft this bill, given that the opposition at the time had released a bill, and the government, as I think we found out earlier this week, attempted to very quickly, possibly without cabinet approval, draft their own version of the bill, but have made a pretty grave error and mistake in the way that they have done it. We are always happy to help the government when they have, through haste and in attempt to try to wrest the political advantage back somehow, made grave errors.

The Hon. R.I. LUCAS: I thank the honourable member for his commentary, but I will not respond in kind other than to say in the interests, as always, that the government adopts in terms of listening to the will and wisdom of the Legislative Council and having consulted with, as I understand it, the attitude of some of the crossbenchers, the government position is that it is prepared to support this particular amendment. It does not see that there is a significant issue being raised in relation to the amendment. As always, we thank the honourable member for his contribution to the debate.

The Hon. M.C. PARNELL: I do have a question of the mover—two questions, in fact. My understanding is that the insertion of this paragraph adds an extra consideration that the court must take into account in determining a review of a licence. The new consideration is that the court must take into account evidence tendered to the court of the estimated cost directly related to the release of the person on licence. When I saw those words, the first thing I thought was that, surely, it would always be more expensive to keep someone in gaol than to supervise them out of gaol, but I might be very wrong in that assumption.

My two questions are: does the mover have any information, if you want the court to take into account the expense of supervising someone who is out on licence, of whether that is usually more or less expensive than keeping them in gaol? Is the flipside to this that if the court is required to have regard to the cost of supervising someone on licence, should it also be required to have regard to the cost of not releasing someone on licence and keeping them in gaol?

The Hon. K.J. MAHER: I thank the honourable member for his questions. The government may be able to furnish this in greater details. Certainly, in my discussions with the various stakeholders on this matter, including the Parole Board, I am informed that yes, there are circumstances where release on licence could be more expensive than someone remaining in gaol. Should the court take into consideration how much it costs someone to be in gaol when they consider whether the community should be safe? My answer is no, I do not think they should.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 11 [Maher–1]—

Page 6, after line 26 [clause 11, inserted Schedule 2, clause 1]—After subclause (8) insert:

(8a) The Supreme Court, when determining an application under this clause, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person's release on licence is cancelled or not confirmed.

This is the final one of the three that talks about disregarding the length of time served. I commend it to the chamber and look forward to the support that there has been the last two times it was moved to give effect.

The Hon. R.I. LUCAS: The government recognises this is consequential on an earlier vote in the chamber.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (12:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:44 to 14:15.