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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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CRIMINAL LAW (SENTENCING) (SENTENCES OF INDETERMINATE DURATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The DEPUTY SPEAKER: The Deputy Leader of the Opposition has unlimited time.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:05): You are going to be deeply disappointed, Mr Deputy Speaker, because I was actually just saying 'In conclusion' when I sought leave to continue my remarks before the break in proceedings for the Auditor-General's Report committee hearings. Nevertheless, as much as I was impressed with your excellent stewardship of the committee that we just listened to, I think I was saying, in conclusion, that the Attorney-General has tabled a number of amendments which I have not yet readily viewed in conjunction with the principal bill, but I will, as the Attorney proceeds to illuminate us to their worthiness, listen with interest. With those concluding remarks, we support the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:06): Can I thank the member for Bragg for her contribution in relation to the matter. It is probably useful that I explain these things so that there is at least some record of what we are seeking to achieve by the amendments. Generally speaking, this piece of legislation, with the amendments, enables a more effective scheme to operate when dealing with sex offenders who are subject to an indeterminate sentence or who might be the subject of a release on licence.

The bill will seek to raise community confidence and raise the threshold test to bring the safety of the community as a paramount consideration when the courts entertain applications for a discharge of the detention order or for the release of the prisoner into the community. These amendments to the bill that I propose to move are a product of late helpful suggestions made by various interested parties. The amendments demonstrate that, even that this late stage, the government is open to considering any reasonable suggestions that are likely to improve the operation of the bill. I will deal with them seriatim, as we legal people say.

The Hon. T.R. Kenyon: Why can't you just speak normal language?

The Hon. J.R. RAU: Well, that is part of being a lawyer; you learn to speak Latin.

Ms Chapman: And charge more.

The Hon. J.R. RAU: Yes, and you charge more. Amendment No. 1: this amendment will amend the bill to provide that the relevant board will provide a report on the annual review it will conduct, making a recommendation about the person's suitability for release on licence, or a recommendation as to their suitability to remain in the community for those who are already on licence, or for those authorised by the court to be released.

This amendment also amends the bill to the affect that the recommendation arising from the review under section 23(9) must be embodied in a written report, of which a copy will also be provided to the Attorney. Can I say, in that respect, obviously it is really important that the Attorney of the day be cognisant of any changes in relation to these individuals, rather than relying on the chain working of its own record to naturally include the Attorney; so, we have set it specifically in the legislation.

Another little comment I would make at this juncture, too, is to remember that we are dealing at any one time with a very small number of individuals here in South Australia. This is a very exceptional type of individual, and there is no point in me naming them in the chamber, but I think honourable members have some idea of the sort of individual we are talking about. Of course, at any given time, they vary. Some come into the frame and some move out of the frame, but at any given time there are relatively few.

Amendment No. 2: this amendment amends the bill to insert a provision to include that one of the considerations for the court to take into account when considering an application for a discharge of the detention order is the recommendation of the relevant board on whether the order for detention should be discharged. So, in other words, it gives some weight to the recommendation.

Amendment No. 3: following a briefing by officers from my department with the Hon. Stephen Wade, it was brought to my attention that clause 6 and schedule 2 of the bill do not make reference to the court receiving relevant evidence or representations that the person may desire to put to the court for an application for release on licence. The current legislation provides in section 23(5) that the person who is the subject of an indeterminate sentence may put any relevant evidence or make representations to the court. This provision is not included in section 24.

In actual fact, the current section 24 does not specify the criteria upon which the court should act when considering an application for a release on licence. The court has a very broad discretion. This bill aims to make section 24 more specific, and it is logical that a provision is included in clause 6 of the bill to allow the person to put evidence before the court. In saying that, I would expect in the ordinary course the court would do that in any event, but this makes it clear.

Amendment No. 4: the amendment will amend the bill to provide that the relevant board will provide a recommendation in their report, which is furnished to the court on any application for a release on licence as to whether the person should be released on licence into the community.

Amendment No. 5: this amendment will amend the bill to enable the Supreme Court to receive evidence tended to the court of the likely monetary cost of releasing a person into the community when considering an application for release on licence.

I just wanted to say briefly here, I was recently at a meeting of Attorneys in Sydney, and people around the country are grappling with issues like this in their own jurisdictions. The New South Wales and Western Australian Attorneys both related to the others in the meeting terrible situations that they had experienced in their own jurisdictions, and I will just give a very brief summary of basically what the Western Australian Attorney told us.

He said that in Western Australia, there was one particular chap who was a serious repeat offender, obviously, had become classified under the Western Australian equivalent of this provision, and he had been successful in an application for release on licence. The scheme that operated in Western Australia is slightly different to ours in the sense that the court is the body that determines the conditions, not the board. But, the point he made anyway, which I think really explains this, is that this fellow was considered by corrections and others, in spite of having been released, to be such a danger to the community that they literally had to have a couple of people following this chap around all the time. He was basically a portable prison, at enormous expense to the public.

The question is: if that is the sort of 'release on licence' that the person is being offered then is it particularly fair to that individual that they have these couple of shadows following them everywhere they go, and I mean literally everywhere they go, at enormous expense to the community, or is it in the community interest, taken as a whole, that those individuals are managed in some other institutional setting (of some description)? That is really the question.

All this facilitates is the provision of that information to the Supreme Court as it may be a factor that might be considered in the context of the broader consideration of the interests of the community and to the extent that the interests of the applicant are relevant. It might also be relevant for them to understand the nature and expense associated with the person being in some form of conditional liberty.

Amendment No. 6 is to ensure consistency with the third amendment. Amendment No. 7 is to ensure consistency with the other amendments included in the bill which discuss the relevant board providing a report and their opinion on whether the person who is subject to an application under schedule 2 is suitable for release on licence. Amendment No. 8 is to ensure consistency with the fifth amendment. So, with those few words, I move that we go into committee.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 3, lines 41 and 42 [clause 4(3)]—Delete subclause (3) and substitute:

(3) Section 23(9)—delete subsection (9) and substitute:

(9) The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months—

(a) if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or

(b) in any other case—by the Parole Board,

for the purpose of making a recommendation about whether the person is—

(c) if the person is in custody—suitable for release on licence under section 24; or

(d) if the person has been authorised to be released, or has been released, on licence under section 24—suitable to be so released.

(3a) Section 23(10)—after 'under subsection (9)' insert:

, including the recommendation of the relevant Board,

(3b) Section 23(10)—after 'person the subject of the report' insert:

, the Attorney-General

Amendment carried; clause as amended passed.

Clause 5.

The Hon. J.R. RAU: I move:

Amendment No 2 [AG–1]—

Page 4, after line 34 [clause 5, inserted section 23A(4)(c)]—After subparagraph (ii) insert:

and

(iii) the recommendation of the relevant Board about whether the order should be discharged;

Amendment carried; clause as amended passed.

Clause 6.

The Hon. J.R. RAU: I move:

Amendment No 3 [AG–1]—

Page 5, after line 19 [clause 6, inserted subsection (1c)]—After paragraph (a) insert:

(ab) any relevant evidence or representations that the person may desire to put to the Court;

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 4 [AG–1]—

Page 5, after line 28 [clause 6, inserted subsection (1c)(b)]—After subparagraph (ii) insert:

and

(iii) the recommendation of the appropriate board as to whether the person should be released on licence;

Amendment No 5 [AG–1]—

Page 5, after line 31 [clause 6, inserted subsection (1c)]—After paragraph (c) insert:

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

Amendments carried; clause as amended passed.

Clauses 7 and 8 passed.

Clause 9.

The Hon. J.R. RAU: I move:

Amendment No 6 [AG–1]—

Page 7, after line 13 [clause 9, inserted Schedule 2, clause 1(7)]—After paragraph (a) insert:

(ab) any relevant evidence or representations that the person the subject of the proceedings may desire to put to the Court;

Amendment No 7 [AG–1]—

Page 7, lines 14 to 16 [clause 9, inserted Schedule 2, clause 1(7)(b)]—Delete paragraph (b) and substitute:

(b) a report furnished to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—

(i) any opinion of the appropriate board on the effect that the release on licence of the person has had, or would have, on the safety of the community; and

(ii) —

(A) if the person has been released on licence—a report as to the current circumstances of the person; or

(B) if the person has not yet been released on licence—a report as to the probable circumstances of the person if the person is so released; and

(iii) the recommendation of the appropriate board about whether the person is suitable for release on licence;

Amendment No 8 [AG–1]—

Page 7, after line 16 [clause 9, inserted Schedule 2, clause 1(7)]—After paragraph (b) insert:

(ba) evidence tendered to the Court of the estimated costs directly related to the release of the person the subject of the proceedings;

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:19): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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