Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 May 2019.)

The Hon. R.I. LUCAS (Treasurer) (15:34): As no-one has indicated any further speakers to speak to this second reading, I thank honourable members for their contributions to the second reading and their indications of support for the legislation. I look forward to its speedy passage through the Legislative Council.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

The Hon. K.J. MAHER: In relation to the commencement date, my question is: when does the government envisage this bill will come into effect, and is there any plan to delay the commencement of any parts of this bill?

The Hon. R.I. LUCAS: My advice is that there is no plan from the Attorney or the government to delay the proclamation of any particular parts of the legislation. Should the legislation pass in its current form, then the proposal would be just to do the usual things and see its implementation as soon as possible.

The Hon. K.J. MAHER: My next question is: with the benefit of certificates of early commencement, what is the earliest possible date this bill could come into effect?

The Hon. R.I. LUCAS: I am advised that there is no particular delay. There are just the usual things in terms of proclamations and/or cabinet processes. My advice is there is no particular issue which would delay it.

The Hon. K.J. MAHER: I thank the Treasurer for his response but, with respect, that was not my question. What would be the earliest possible date that this could come into effect?

The Hon. R.I. LUCAS: I cannot give a precise earliest possible date because we have not worked through that process yet, but it would be as soon as the legislation has passed, has been assented to, and then it would go to cabinet. The member has been a cabinet minister before; there are processes with cabinet. If there was any particular urgency that was required, cabinets and executive councils can be brought on out of cycle or earlier, if there is a particular emergency or reason for doing so. But there is a normal cycle for cabinet meetings. They meet every Monday.

I am not sure about the processes under the former government, but our normal cycle is generally 10 days' notice is given for items that go to cabinet. However, there are occasions where urgent action needs to be taken and all of that can be short-circuited if there is a particular reason for doing so. At this stage, we do not have an actual date where I can say to the minister, 'This is the earliest possible date,' because we actually have not worked our way through that particular process. Should it pass the parliament and the Attorney saw some urgent need for it to be enacted out of cycle, if I can put it that way, there are options available to the Attorney to pursue.

The Hon. K.J. MAHER: Following on from that, can the Treasurer then confirm that there is no intention of the government to make sure that this legislation is enacted before the Deboo case returns to the Supreme Court? Is he not aware that the government or the Attorney-General thinks that is urgent?

The Hon. R.I. LUCAS: I cannot provide any specific advice in relation to particular cases and the Attorney's thinking in relation to particular court cases. I just do not have any information that I can share with the Leader of the Opposition on that issue, or indeed any other particular case for that matter. We would have to speak to the Attorney-General and see whether or not she had any information in relation to either that case or other particular cases.

The Hon. K.J. MAHER: Will the minister take on notice and seek a reply about whether the government feels that the return of the Deboo case to the Supreme Court warrants this being enacted early?

The Hon. R.I. LUCAS: I am happy to take that particular question on notice and refer it to the Attorney.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

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

Amendment No 1 [Treasurer–1]—

Page 3, line 8—Delete 'definition of terrorist act' and substitute:

definition of serious offence, (c)

This amendment corrects a drafting error in the bill. Existing clause 5 of the bill purports to update the definition of 'terrorist act' in section 52 of the Sentencing Act 2017. However, in section 52 'terrorist act' is part of the definition of 'serious offence' rather than a stand-alone definition provision. This amendment merely corrects that reference. The substance of the amendment is the same, namely, to update the reference to 'terrorist act' to refer to part 5.3 of the Criminal Code of the commonwealth rather than the Terrorism (Commonwealth Powers) Act 2002.

The Hon. K.J. MAHER: I have a question on the amendment. I note that this remedies a drafting error. When was the government aware of this error?

The Hon. R.I. LUCAS: It was between the passage of the bill between the two houses, but I cannot give you an exact date.

The Hon. K.J. MAHER: Can the Treasurer inform the house of who brought to attention the drafting error?

The Hon. R.I. LUCAS: I am advised it was picked up by parliamentary counsel.

The Hon. K.J. MAHER: Is there a date when parliamentary counsel was asked to draft this bill originally? I will repeat the question: when did parliamentary counsel receive instructions from the Attorney-General to draft this bill?

The Hon. R.I. LUCAS: My advisers do not have the precise date, hour and minute the instructions were given, but their best recollection is that it was some time early this year, perhaps January or February. If it is a matter of great consequence to the Leader of the Opposition, we would have to take that on notice. If that would suffice, the best recollection of the advisers is that it was around the early part of this year, January or February.

The Hon. K.J. MAHER: I will take up the Treasurer's invitation to bring back an exact answer in relation to that.

Amendment carried; clause as amended passed.

New clauses 5A, 5B and 5C.

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

Amendment No 1 [Maher–2]—

Page 3, after line 10—Insert:

5A—Amendment of section 57—Offenders incapable of controlling, or unwilling to control, sexual instincts

(1) Section 57(9)—delete 'The' and substitute:

Subject to this section, the

(2) Section 57—after subsection (9) insert:

(9a) In determining an application under this section, the Supreme Court may, but need not, have regard to any other scheme available under this Act, the Criminal Law (High Risk Offenders) Act 2015 or any other Act under which—

(a) the person may be further detained (whether indefinitely or for a fixed period) on the expiration of a term of imprisonment, or of all terms of imprisonment, that the person is liable to serve; or

(b) a court may order that the person be subject to supervision on the expiration of a term of imprisonment; or

(c) other measures may be taken to reduce the risk the person poses to the community, but the mere fact of the availability of one or more such schemes cannot be the sole ground on which the Court refuses to order that the person be subject to detention under this section.

5B—Amendment of section 58—Discharge of detention order under section 57

(1) Section 58(4)—delete 'The' and substitute:

Subject to this section, the

(2) Section 58—after subsection (4a) insert:

(4b) In determining an application under this section, the Supreme Court may, but need not, have regard to any other scheme available under this Act, the Criminal Law (High Risk Offenders) Act 2015 or any other Act under which—

(a) the person may be further detained (whether indefinitely or for a fixed period) on the expiration of a term of imprisonment, or of all terms of imprisonment, that the person is liable to serve; or

(b) a court may order that the person be subject to supervision on the expiration of a term of imprisonment; or

(c) other measures may be taken to reduce the risk the person poses to the community, but the mere fact of the availability of one or more such schemes cannot be the sole ground on which the Court discharges an order for detention.

5C—Amendment of section 59—Release on licence

(1) Section 59(4)—delete 'The' and substitute:

Subject to this section, the

(2) Section 59—after subsection (4a) insert:

(4b) In determining an application under this section, the Supreme Court may, but need not, have regard to any other scheme available under this Act, the Criminal Law (High Risk Offenders) Act 2015 or any other Act under which—

(a) the person may be further detained (whether indefinitely or for a fixed period) on the expiration of a term of imprisonment, or of all terms of imprisonment, that the person is liable to serve; or

(b) a court may order that the person be subject to supervision on the expiration of a term of imprisonment; or

(c) other measures may be taken to reduce the risk the person poses to the community, but the mere fact of the availability of one or more such schemes cannot be the sole ground on which the Court authorises the person's release on licence.

These new clauses are to fix what is somewhat of an anomaly in that we have seen cases where an offender may well be unwilling or unable to control their sexual instincts and poses a grave danger to the community and a judge of the Supreme Court has declared that, but on appeal the Full Court of the Supreme Court has said that there are other regimes available, which could be monitoring while they are in the community.

The effect of these amendments is that, if a court at first instance finds out that the provisions under the act are made out, that is, someone is unwilling or unable to control their sexual instincts, that alone is enough for them to have that apply. It may be that other regimes could also apply, but if it is made out that that should apply, then that should be good enough and not overturned on appeal because the Full Court prefers another scheme.

We think this is a problem, that part of the act may well apply to a dangerous paedophile who might be released into the community, and we would hate to see a dangerous paedophile released into the community, even though a single judge and the Full Court accepts that they are unwilling or unable to control their sexual instincts, just because another scheme could apply.

I know the Treasurer has attempted to play politics on other bills, saying that we are soft on these sort of offenders. This is now the real test for the government: this will make sure, if a judge is satisfied that this is made out, that a court cannot overturn it merely on the basis that another scheme might apply to that person, even if on appeal the judges agree that this section should apply. This is about making the community safe.

On this one, it is reasonably simple that, if a court finds that a person is unwilling or unable to control their sexual instincts and poses a danger to the community and that part of the act is made out, that is enough in and of itself and cannot be overturned merely because another part of another regime of another act could also apply.

The Hon. R.I. LUCAS: This amendment is said to be addressing the issue raised by a recent decision of the Court of Criminal Appeal in the matter of Thomas v Attorney-General (SA) 2019.

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: Can I finish? The government is of the view that the amendment will not have any impact on the making of orders under section 57 of the Sentencing Act 2017, or indeed on an application under sections 58 or 59. The amendment appears to be based on a misunderstanding of what the Full Court did in Thomas. The Full Court found that an indefinite detention order was not necessary for the protection of the community in Thomas. This was not by mere fact that Mr Thomas could have been made the subject of an extended supervision order, as appears—based on the proposed amendments—to be the understanding of the opposition.

Rather, the Full Court took the view, having regard to all the evidence, that an indefinite detention order was not required to appropriately manage the risk posed by Thomas and that the community could be adequately protected by a different type of order. The proposed opposition amendments would have no impact on this situation and for this reason the government is opposing the amendments.

The Hon. K.J. MAHER: If I understand the Treasurer's view on this, he says, 'These won't do anything, so oppose it.' Is that the gist of what the Treasurer is saying?

The Hon. R.I. LUCAS: I have put on the record the government's position. I can repeat it again if he wishes, but I can add nothing more to the government's position other than what I have already put on the public record on behalf of the government.

The Hon. K.J. MAHER: Finally, I might just add that I think the Treasurer has outlined basically the same argument that I made—so I think we are both agreeing that these amendments should be supported—and that is, that the Supreme Court found that there is another scheme that could be preferred over indefinite detention.

We say that if that is made out and indefinite detention is one of the options, it should not be overturned on the basis that there is another one that might also apply. As legislators, we would feel awful if we did not pass this and someone who might be captured by this was let out into the community and then committed further offences.

The Hon. R.I. LUCAS: It is incorrect for the minister to say that the government agrees with the opposition amendment. As I indicated in my contribution on behalf of the government, the government is opposing this particular amendment.

The Hon. T.A. FRANKS: In the absence of my parliamentary colleague, Mark Parnell, I have an indication that the Greens will be opposing this amendment. We have had conversations with the Attorney-General's office and understand, very much as the Treasurer just informed the chamber, that while this amendment proposes to address the situation it is in fact not effecting the change it seeks to, and we have accepted that advice from the Attorney-General.

The Hon. J.A. DARLEY: For the record, I will be opposing this amendment.

The Hon. K.J. MAHER: I have a further contribution. I have a question for the government: does the government consider that this amendment applies to the making of an order or the release of someone under an indefinite detention order?

The Hon. R.I. LUCAS: I have outlined the government's position in relation to this particular amendment. For the reasons I have outlined, the government will be opposing the amendment that has been moved by the Leader of the Opposition.

The Hon. K.J. MAHER: The reason I asked that, and the reason I think the Treasurer will not answer this question, is we understand that the Attorney-General, somewhat misleadingly, has been giving briefings suggesting that this applies to the release of someone on an indefinite detention order, when that is not the case at all. It applies to the making of an indefinite detention order. I ask the Treasurer again: does the government believe that this applies to the making of an indefinite detention order or the release of someone on an indefinite detention order? I will take an inability to respond as confirming my assertion.

The CHAIR: Leader of the Opposition, there was an injurious reflection. You are asking the Treasurer to reflect on the mind of the Attorney, which is impossible for any other human being, and then you are putting to the Treasurer that however he answers you are going to draw whatever conclusions you wish. You can draw whatever conclusions you want, but the question is out of order. I am ruling it out of order. Have another go.

The Hon. K.J. MAHER: Does the government consider that these amendments apply to the making of an indefinite detention order or someone on release from an indefinite detention order? Mr Chairman, it has come to my attention that some may have been suggesting that it is a release.

The CHAIR: That is the question. If you wish to make a commentary, then—

The Hon. K.J. MAHER: I will do it later.

The CHAIR: —do it subsequently.

The Hon. R.I. LUCAS: That is the second attempt at the same question. My answer remains the same. I have outlined the government's position.

The Hon. K.J. Maher: Why won't you answer a simple question?

The Hon. R.I. LUCAS: I have outlined the government's position and we do not support the amendment that has been moved.

The CHAIR: The Hon. Ms Bonaros has caught my eye.

The Hon. C. BONAROS: I apologise; I indicate for the record that we do agree that this amendment tightens the legislation, and I do not necessarily accept the position that has been put by the government. For those reasons, we will certainly be supporting the opposition's amendment.

The CHAIR: Leader of the Opposition, do you wish to make a further contribution before I put the question?

The Hon. K.J. MAHER: No, thank you, Mr President. I think the Treasurer's unwillingness to answer says it all.

Ayes 9

Noes 10

Majority 1

Clause 6 passed.

Clause 7.

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

Amendment No 2 [Treasurer–1]—

Page 4, after line 11—After subclause (4) insert:

(4a) Section 71(5), definition of designated offence, (a)—delete '12, 12A'

This amendment corrects an existing anomaly in the Sentencing Act 2017, which was identified during consideration of the bill. In short, when the home detention provisions were amended as part of the Sentencing Act 2017, section 70(3) specified that murder includes an offence of conspiracy to commit murder and an offence of aiding, abetting, counselling or procuring the commission of murder.

Section 12 of the Criminal Law Consolidation Act 1935, which is the offence of conspiring or soliciting to commit murder, was also included in the list of designated offences, which were copied across from the suspended sentence provisions at that time. Section 70(3) of the Sentencing Act operates such that the court may not even consider exercising its powers under the provision for the offence of conspiring to commit murder, thus it does not make any sense for it to also be included in the list of designated offences in section 71(5) of the Sentencing Act.

When considering this issue, it also become apparent that the list of designated offences also includes section 12A of the Criminal Law Consolidation Act. However, section 12A of that act is not actually an offence provision itself, rather it deems certain other offending to be murder, so it should not be separately provided for in the list of designated offences. It is therefore appropriate to remove it at the same time as removing section 12 of the Criminal Law Consolidation Act.

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

Amendment No 1 [Maher–1]—

Page 3, after line 16—Insert:

(a1) Section 71(2)(b)—after subparagraph (i) insert:

(ia) for a serious sexual offence where the victim is a child, or the offence is committed in the course of, or in circumstances involving, the sexual exploitation or abuse of a child, other than a prescribed serious sexual offence that occurred in prescribed circumstances; or

(a2) Section 71(2)(b)(ii)—after 'offence' insert:

(other than a serious sexual offence to which subparagraph (ia) applies)

Amendment No 2 [Maher–1]—

Page 4, after line 11—Insert:

(4a) Section 71(5)—before the definition of designated offence insert:

child means a person under 18 years of age;

These are very, very simple. At the moment, serious child sex offenders are eligible for home detention. We do not think that should happen. There is a list of offenders who are not eligible for home detention and we think serious child sex offenders should come into that list. The government has a very different view to us. They think that there should be the possibility of serious child sex offenders receiving home detention.

There are some minor changes to the way that works, but there is a very, very stark difference. The opposition thinks that there should be no possibility that a serious child sex offender should be allowed to have home detention. We believe monsters, predators like Vivian Deboo, should not have the option of staying at home for their sentence, they should go to gaol. We put a private members' bill up to make sure that was the case that the government has refused to deal with in the lower house. The government prefers the option of serious child sex offenders having the possibility of home detention. What we are seeing at the moment is the aforementioned Vivian Deboo going through the appeals process to try to be released into his home rather than staying in gaol.

If we pass these amendments, what it will mean, if the government enacts this soon enough—and that went to the questions that I put to the Treasurer earlier on—if we pass this bill with the amendments that the opposition has proposed, along with the transitional provisions, we can stop Vivian Deboo from continuing with his appeal and having the prospect of getting home detention.

If you support the opposition, you support Vivian Deboo not having the possibility of home detention; if you wish to give Vivian Deboo the possibility of home detention, if you wish to give other serious paedophiles the option of serving their sentence on home detention, then you should support the government in opposing the opposition's amendments.

The Hon. R.I. LUCAS: I only moved amendment No. 2 [Treasurer-1] standing in my name so—

The CHAIR: We will deal with the Hon. Mr Maher's amendments and then I will ask you to formally move your amendments later. I intend to put amendments Nos 1 and 2 of [Maher-1] to the committee for decision.

The Hon. R.I. LUCAS: Before the one that I have already moved and the one that I have not yet moved?

The CHAIR: Yes. I will deal with those separately, so there is no need to address them just yet.

The Hon. R.I. LUCAS: I have addressed the first one already but—

The CHAIR: Yes.

The Hon. R.I. LUCAS: —I will now address the amendment moved by the Leader of the Opposition. The government's position is to oppose this particular amendment. I am advised as follows: this amendment is a convoluted way of saying that home detention is not available for an adult committing a serious sexual offence against (1) a child, unless the young love exception applies, and (2) an adult, unless special reasons apply. In short, leaving the young love exception to one side, it is trying to shut the door on the application of the special reasons test so that it cannot be used if the victim of a serious sexual offence is or was a child.

The sentiment behind this amendment is clear and in some respects understandable. All sexual offences are inherently heinous but sexual offences against children are particularly so. However, the government's position is that the sentencing restrictions for home detention, as amended by the bill, are well adapted to address this, while balancing the circumstances of offenders who are so aged or permanently infirm that they no longer present an appreciable risk to the safety of the community.

That is not to say that everyone who is able to establish that they are so aged or permanently infirm that they no longer present an appreciable risk of safety to the community will automatically receive a home detention sentence. In many cases, the court will still form the view, as part of the sentencing process, that the interests of the community as a whole would not be better served by permitting the defendant to serve their sentence on home detention. That may be because of the seriousness of the offending or for other reasons. In those cases, the offender will be required to serve their sentence in prison notwithstanding the lack of current risk and their incapacity.

However, if it is accepted that there is a place for the special reasons exemption, and it must be—because it was the opposition who first introduced that clause into the Sentencing Act when they were in government—it must also be recognised that the situation whereby an offender was able to offend against a child but by the time of their sentencing that they are now so aged or permanently infirm, is inherently most likely to apply in the situation involving historical sex offences against children.

That has arisen since the abolishment of the immunity from prosecution for historical sexual offences in 2003. That is the very cohort of offenders to whom this provision is most likely to apply. It is for those reasons that I am advised that the government is opposing this particular amendment.

The Hon. C. BONAROS: SA-Best's position is that there is a special place in hell for the perpetrators of child sexual offences, and so we absolutely support the amendments proposed by the member opposite. When a child is a victim of a sexual offence, it is our position that there is absolutely no margin for that person to be released on home detention. On that basis, we do not agree with the government's position. We think that this parliament should make it abundantly clear that that person ought not be released on home detention ever.

The other point that will raise, though, is in relation to the young love exception. I use that term loosely. The Leader of the Government has also moved an amendment which proposes to increase the age to 20 years. That is a position that we also support. It is my understanding—and I will be corrected if I am wrong—that those two provisions can coexist, so we have the provisions in relation to child sex offenders and then the provisions that relate to young love exceptions. So there is no issue, as I understand it, with those provisions coexisting. If that is the case, if I am correct, then our position is to support both the opposition's amendment but also the government's amendment in relation to the young love exception.

The Hon. K.J. MAHER: What amendment No. 2 [Maher-1] does is make sure of that so-called young love exception. We are going to support the government's amendment to the ages in that young love exception in relation to our first amendment.

On clause 7 generally a question to the Treasurer: given that what we seek to do is to have no chance for a dangerous child sex offender of gaining home detention, under the regime as it currently exists, would a dangerous child sex offender have access to an intensive correction order?

The Hon. R.I. LUCAS: My advice is that, under the bill, no sex offenders will be entitled to access an intensive correction order.

The Hon. K.J. MAHER: I thank the Treasurer. That is my understanding as well, that under other provisions that we are going to come to, that are amendments that we filed that the government has now copied, and we will support the copying our amendments, it takes out the possibility that a dangerous child sex offender can get an intensive correction order. My question to the Treasurer is: if it is good enough for a dangerous child sex offender to not under any circumstances be able to get an intensive corrections order, then why on earth should that same dangerous child sex offender be able to get home detention?

The Hon. R.I. LUCAS: I am advised that the intensive correction order is directed towards a group of people who are able enough to be able to participate in rehabilitation and community service orders. You need to be in a physical enough condition to be able to participate in those sorts of programs. By the very nature of the debate that we are having, someone who is so aged and infirm—this particular cohort that we are talking about—is clearly not in a position to undertake intensive correction orders because they are so aged and infirm they would not be able to go out for rehabilitation of community service orders. We are talking about two different groups of individuals, so I am advised.

The Hon. K.J. MAHER: Under intensive correction orders, there is a necessary component that is community service. Is this what the Treasurer is advising the chamber?

The Hon. R.I. LUCAS: I cannot add to what I have said. My advice is rehabilitation and community service orders.

The Hon. T.J. STEPHENS: This is of particular interest and concern to me because I have had a bit to say about child sex offenders in recent times. I have been assured by the Attorney that the reason we are not going to support this amendment—and I have probed and shown keen interest—is that if the person is virtually in a vegetative state they want the ability to let those people have home detention so that the state, in particular, is not taking care of them. I will be supporting the government's position but I am watching extremely closely.

The Hon. K.J. MAHER: I place on record that I know the term 'in a vegetative state' is being bandied around but there is nothing about that in this bill. It does not refer to a vegetative state, it refers to aged or infirm. It is either of those two; it is not that you have to be infirm. You could get home detention just because you are old enough under this legislation, and we just do not agree with that.

The Hon. R.I. LUCAS: My advice is that that claim from the Leader of the Opposition is just not true.

The Hon. T.A. FRANKS: For the assistance of the Chair, I indicate that the Greens will be supporting the government's amendments and opposing the opposition's amendments. These are the instructions I have been given by my colleague the Hon. Mark Parnell.

The Hon. J.A. DARLEY: I will be supporting the government's amendments.

The committee divided on the Hon. K.J. Maher's amendments Nos 1 and 2 [Maher-1]:

Ayes 9

Noes 10

Majority 1

Amendments thus negatived.

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

Amendment No 3 [Treasurer–1]—

Page 4, line 36 to page 5, line 3 [clause 7(7), inserted subsection (6)(a)]—Delete paragraph (a) and substitute:

(a) the defendant was, at the time of the offence, 20 years of age or less; and

(ab) the circumstances of the offending, including the victim's age and the age difference between the defendant and the victim, are such that it is appropriate that a home detention order be made; and

This amendment will change the young love carve out provided for in the bill. The government has obtained data based on court outcomes that indicate that the three-year age gap proposed and the limitation on the application of the provision to 18 and 19 year olds were not quite broad enough to cover the types of young love offences being handled by the courts.

The data showed that there were cases where the age gap between defendant and complainant was between three and four years and where the defendant was up to age of 20 years, which would currently result in a suspended sentence or home detention sentence being imposed. The government is of the view that it would not be in the best interests of the community to require this type of offender to be imprisoned in all cases and that it is appropriate to retain the discretion of the court so that they can impose a suspended sentence or home detention order on the limited cohort of defendants capped at 20 years of age and limited by reference to the prescribed offence's inappropriate circumstances.

The Hon. R.I. Lucas's amendments Nos 2 and 3 carried; clause as amended passed.

Clauses 8 and 9 passed.

Clause 10.

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

Amendment No 4 [Treasurer–1]—

Page 7, lines 4 to 6 [clause 10(2), inserted paragraph (ab)(i)]—Delete subparagraph (i)

This amendment corrects a drafting error in the bill which occurred when copying over the relevant restrictions applicable to home detention orders into the intensive correction orders regime. It removes a reference to an intensive corrections order not being available for a sentence with a non-parole period of two years or more.

Section 47(5)(a)(ii) of the Sentencing Act provides that the court may not fix a non-parole period in respect of a person liable to serve their sentence on an intensive corrections order. Thus, the reference to 'non-parole period' as a limiting factor is an error. However, the existing two-year sentence limitation applicable to intensive corrections orders remains in place and will therefore continue to provide a limitation on when any offence could be the subject of an intensive corrections order.

The Hon. K.J. MAHER: I have a question on the clause generally, but in particular on the amendment that has already been moved. It is similar to a question I asked about a previous government amendment. When did the government become aware that these amendments were necessary, on what date were these amendments drafted and at whose suggestion?

The Hon. R.I. LUCAS: Unsurprisingly, the answer is the same: in between houses, and I suspect it was also raised by parliamentary counsel. It may well have been a combination of parliamentary counsel and Attorney-General advisers who picked it up between the houses, so shared responsibility is the best way of describing it.

The Hon. K.J. MAHER: I suspect this was not the result of an inadvertent drafting error. This is a policy change and a policy shift, not some sort of inadvertent drafting error. As I stated in my contribution before, what we are doing by the work of these amendments is removing the possibility of an intensive correction order for a dangerous child sex offender. The government saw fit to give a get out of gaol free card for dangerous child sex offenders for home detention.

We filed amendments that would stop that get out of gaol free card for both home detention and intensive corrections orders. The government has now been dragged kicking and screaming to the intensive corrections order, which we welcome. I foreshadow that I will not be moving [Maher-1] amendments Nos 3, 4, 5, 6, 7, 8 and 9. I will be voting with the government's amendments, which do what we had put in before the government put them in. We thank the government for taking up our suggestions, but it is a pity that they kept that get out of gaol free card for the home detention orders.

The Hon. R.I. LUCAS: For clarification, I am advised that maybe the Leader of the Opposition is referring to my next amendment, amendment No. 5.

The Hon. K.J. MAHER: The set of amendments that do these things.

The Hon. R.I. LUCAS: The Leader of the Opposition has indicated, for the reasons he gave, that he is supporting the government amendment, so I will not pursue the debate.

The CHAIR: For my benefit, Leader of the Opposition, do you have any other amendments to clause 10 that you wish to pursue?

The Hon. K.J. MAHER: We will not be moving any of the amendments on clause 10, which are [Maher-1] amendments Nos 3 to 9 inclusive.

The CHAIR: I thank the Leader of the Opposition. I want to clarify it before we start moving everything. In respect of clause 10, we will only have amendments Nos 4, 5, 6 and 7 [Treasurer-1], all of which you will be supporting?

The Hon. K.J. MAHER: Yes.

The CHAIR: Treasurer, I will get you to move them all, explain the package and then I will give the other members an opportunity to comment.

The Hon. R.I. LUCAS: Given what the Leader of the Opposition has just indicated, I think it would make sense for me to move the package of amendments. I will explain the package of amendments. There are different reasons for different amendments. We can then potentially move them together. I have spoken to amendment No. 4, which I have moved. I will now move amendment No. 5 [Treasurer-1] and explain that. I move:

Amendment No 5 [Treasurer–1]—

Page 7, lines 7 to 9 [clause 10(2), inserted paragraph (ab)(ii)]—Delete 'unless the court is satisfied that special reasons exist for the making of an intensive correction order'

This amendment removes the special reasons card out from the intensive corrections provisions. It means that serious sexual offenders will not be eligible for an intensive corrections order at all. The Attorney-General has indicated in the other place that the government was awaiting some final consideration on the overall changes to the intensive corrections order regime proposed by the bill before finalising what might amount to special reasons in the intensive corrections orders provisions.

It is not proposed to mirror the special reasons considerations that are contained in the home detention order regime in the intensive corrections orders regime because of the different nature of the two sentencing regimes. The nature of an intensive corrections order, with a focus on rehabilitation and a requirement to perform community service if the offender is not employed, is not suitable for an offender who is so aged or infirm that they no longer present an appreciable risk of safety to the community. As no other category of sexual offender who would merit serving this sentence in the community pursuant to intensive corrections has been identified by the Department for Correctional Services, the government is of the view that there should be no special reasons exception to enable a serious sexual offender to get an intensive corrections order. I also move:

Amendment No 6 [Treasurer–1]—

Page 7, lines 24 and 25 [clause 10(3), inserted subsection (5), definition of designated offence, (b)]—

Delete paragraph (b)

This amendment is similar to amendment No. 3 [Treasurer-1]. It removes a reference to section 12A of the Criminal Law Consolidation Act and the list of designated offences for the same reason given for amendment No. 2. It is, in essence, consequential on the earlier debate. I also move:

Amendment No 7 [Treasurer–1]—

Page 8, lines 6 to 9 [clause 10(3), inserted subsection (5), definition of prescribed designated offence]—

Delete the definition of prescribed designated offence

Again, this amendment is consequential on amendment No. 4. The only reference to 'prescribed designated offence' was in the paragraph to be deleted by amendment No. 4. Removal of that paragraph means that there is no need to define 'prescribed designated offence'. Therefore, this amendment removes that definition.

The Hon. C. BONAROS: I indicate for the record that we will be supporting the government's amendments.

Amendments carried; clause as amended passed.

Clause 11.

The Hon. K.J. MAHER: This clause is in relation to conditions of intensive corrections orders. My question to the Treasurer is: who supervises intensive corrections orders?

The Hon. R.I. LUCAS: I am advised the department for corrections.

The Hon. K.J. MAHER: Was the department for corrections consulted on this bill before it was introduced into parliament? My recollection is that the Attorney-General in another place said that the department for corrections was not consulted before the bill was introduced.

The Hon. R.I. LUCAS: If that is an accurate reflection of what the Attorney said, I will have no evidence to the contrary. They have clearly been consulted as a result of ongoing discussions, but the honourable member's question was in relation to before the bill. If the Attorney-General has put on the record a particular statement, she would know much more about the degree of consultation than would I. I would certainly not say anything that would contradict what she has put on the record, if that is indeed what she has put on the record.

The Hon. K.J. MAHER: If that is indeed the case, which I am sure we will find out soon, why was the department for corrections not consulted before this bill was introduced, given clauses such as this one refer to what they do?

The Hon. R.I. LUCAS: Based on the advice I have with me today, I am not in a position to give the Leader of the Opposition an answer to that particular question. It may well be a question that can be directed to the Attorney in question time in the future, but I do not have any advice today to be able to throw any light on who was consulted and why some were and some were not.

The Hon. K.J. MAHER: I would be grateful if the Treasurer, as he has already in the conduct of this bill, would take that question on notice and bring back a reply and that particular answer. I think it is quite a reasonable question because the opposition previously introduced legislation in relation to these issues to parliament, particularly in the lower house, which the government has refused to allow to be progressed, on the basis of the Attorney-General claiming that the Attorney-General will do a thorough review and have a very considered look at how these laws operate.

If it turns out that this thorough review and very considered look at the way these laws operate failed to consult with a key department—in fact, a department whose work will be affected by this review—it casts doubt on whether this was actually a thorough review or whether it was just the Attorney at the time stalling for time.

The Hon. R.I. LUCAS: As I said, I am happy to take the question on notice and bring back a reply on behalf of the Attorney. Again, the leader has been a minister before, and the other point I could make is that in the normal course of events if something goes to cabinet, generally at least 10 days before, if it has not gone to a cabinet committee beforehand—I am not sure whether this did or did not—it is circulated, certainly to ministers and to CEOs of departments, prior to any cabinet deliberation of particular issues.

Certainly, that would provide an opportunity, potentially, for agencies that are impacted or have a view—they do not even have to be impacted—on a particular bill that the minister is bringing to cabinet. As I say, that is the normal course of events. Whether or not that occurred in this particular case, I cannot say, but if the Attorney-General has indicated in another place or elsewhere that they were not consulted prior to it, if that is a correct reflection of what she said, I am happy to accept what the Attorney has said.

The Hon. K.J. MAHER: I thank the Treasurer, but my question actually was: will he take that on notice and bring back a reply? My second question is: is the Treasurer now in receipt of any information that would indicate whether Corrections was consulted or not?

The Hon. R.I. LUCAS: I have said yes to the taking on notice. In relation to advice, I have said I do not have any advice that can throw any light on who was consulted or, if people or departments were not consulted, why they were not.

Clause passed.

Clauses 12 and 13 passed.

Clause 14.

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

Amendment No 8 [Treasurer–1]—

Page 12, after line 22—After subclause (2) insert:

(2a) Section 96(9), definition of designated offence, (a)—delete '12, 12A'

Amendment No 9 [Treasurer–1]—

Page 14, lines 12 to 18 [clause 14(6), inserted subsection (10)(a)]—Delete paragraph (a) and substitute:

(a) the defendant was, at the time of the offence, 20 years of age or less; and

(ab) the circumstances of the offending, including the victim's age and the age difference between the defendant and the victim, are such that it is appropriate that the sentence be suspended; and

Amendment No. 8 replicates amendment No. 2 but in respect of suspended sentences. It is necessary because clause 13 of the bill replicates a section in the existing home detention provisions that specifies that the offence of murder is to be taken to include an offence of conspiracy to murder and an offence of aiding, abetting, counselling or procuring the commission of murder. In doing this, the reference to section 12 of the Criminal Law Consolidation Act is made redundant for the same reasons already given in the context of amendment No. 2. Similarly, the reference to section 12A of the Criminal Law Consolidation Act is also necessary.

Amendment No. 9 will change the young love carve-out provided for in the bill for the same reasons explained in relation to amendment No. 3. Both of these the government would see as consequential on earlier amendments.

Amendments carried; clause as amended passed.

Clauses 15 to 17 passed.

Schedule 1.

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

Amendment No 10 [Treasurer–1]—

Page 16, lines 13 to 22 [Schedule 1, Part 2, clause 2(2)]—Delete subclause (2) and substitute:

(2) Section 75—after subsection (1) insert:

(1aa) If—

(a) a person is sentenced to imprisonment for an offence committed while on parole; and

(b) the court orders that the person serve the sentence subject to a home detention order or an intensive correction order under the Sentencing Act 2017, the person is liable to serve the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the offence was committed (and the person will serve that balance subject to the conditions of the home detention order or intensive correction order (as the case requires)).

Note—

Section 45(2) of the Sentencing Act 2017 provides that the sentence for the offence committed while on parole will be cumulative on the sentence, or sentences, in respect of which the defendant was on parole.

(3) Section 75(1a)—delete 'Subsection (1) applies' and substitute:

Subsections (1) and (1aa) apply

(4) Section 75(2)—after 'subsection (1)' insert:

or (1aa)

(5) Section 75(3)—delete 'in prison under this section' and substitute:

under this section in prison or under a home detention order or intensive correction order (as the case requires)

Amendment No 11 [Treasurer–1]—

Page 16, line 23 [Schedule 1, Heading to Part 2]—Delete 'Transitional' and substitute:

Savings and transitional

Amendment No. 10 clarifies the intended amendment to section 75 of the Correctional Services Act 1982 contained in the bill. Following feedback on the bill, the amendment as it appears in the bill was considered to be unclear. It has been redrafted to address this.

Presently, the combined operation of section 45(2) of the Sentencing Act and section 75 of the Correctional Services Act means that where a defendant commits an offence while on parole they must serve the unexpired parole in prison prior to commencing the sentencing for the breaching offence. Where a sentence of imprisonment is imposed for the breaching offence, as it generally is, this is not problematic. However, if the sentencing court determines it would be appropriate to impose an intensive corrections order or home detention order, notwithstanding the seriousness of breaching parole by committing further offences, the existing legislative requirements may undermine the very intent of the sentencing court in imposing a community-based custodial sentence.

The amendment is designed to facilitate the defendant serving the unexpired parole under the same terms as the home detention order or intensive corrections order in those circumstances rather than requiring them to be returned to prison first.

Amendment No. 11 is a consequential amendment on amendment No. 12, which I have not moved yet but that I will move at a later stage of debate, I suppose, or do you want me to move that as well?

The CHAIR: I am going to have to put the questions separately.

The Hon. R.I. LUCAS: The leader has indicated he is supporting them as a block.

The Hon. K.J. MAHER: We will be supporting all of the three amendments. In regard to amendments Nos 11 and 12 as consequential amendments, whichever way they are put we will be supporting the whole package.

Amendments carried.

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

Amendment No 10 [Maher–1]—

Page 16, lines 26 to 28 [Schedule 1, Part 2, clause 3(1)]—

Delete 'the offence for which the defendant is being sentenced was committed before or after that commencement.' and substitute:

—

(a) the offence for which the defendant is being sentenced was committed before or after that commencement; or

(b) the defendant is being sentenced at first instance or on an appeal against sentence.

The effect of this amendment is to ensure that the bill applies to the sentencing of a person or a breach of home detention or an intervention order, regardless of whether the sentencing or breach occurred before or after the commencement of the bill. We think that this is a reasonable proposition to make sure that someone is not treated differently only because this had not been passed and that it applies to those regardless of the stage of proceedings against them or regardless of the point in time that a breach that the bill otherwise would have applied to applies.

The Hon. C. BONAROS: We will be supporting this amendment on the basis that it does provide the clarity that the member opposite has referred to.

The Hon. T.A. FRANKS: The Greens are also supporting this amendment.

The Hon. J.A. DARLEY: I will be supporting the amendment.

The Hon. R.I. LUCAS: I am just advised that, on the basis of that overwhelming support, the government will not be voting against this particular amendment.

Amendment carried.

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

Amendment No 12 [Treasurer–1]—

Page 16, after line 36 [Schedule 1, Part 2, clause 3]—After subclause (2) insert:

(3) An amendment effected by a provision of this Act does not apply to or in relation to a home detention condition included in a bond under section 96(7) of the Sentencing Act 2017 (as in force immediately before the commencement of section 14(2) of this Act).

As I said, amendment No. 11 was actually consequential on this so I had better explain amendment No. 12. This amendment was foreshadowed by the Attorney-General in another place. The bill repeals part of sections 106 and 114 and all of section 109 of the Sentencing Act, consequential upon the repeal of section 96(7), the ability to have home detention on a suspended sentence.

The consequentially amended provisions provide for supervision and enforcement in respect of offenders on suspended sentences with a home detention condition. It remains appropriate to remove the provisions, but it must be clear that the powers to supervise are in force and the orders continue for those offenders who might already be serving a sentence of that kind.

Parliamentary counsel are of the view that existing orders and the right to enforce them would likely continue by application of the Acts Interpretation Act 1915. However, to ensure that there is no uncertainty about this, it is considered appropriate to include this transitional provision.

Amendment carried; schedule as amended passed.

Titled passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:49): I move:

That the bill be now read a third time.

Bill read a third time and passed.