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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Criminal Law (Extended Supervision Orders) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 February 2015.)

Mr GARDNER (Morialta) (15:55): It is with pleasure I have the opportunity to be the lead speaker representing the opposition on the matter of the Criminal Law (Extended Supervision Orders) Bill. This bill was foreshadowed during the election as part of Labor's justice policy, entitled Major Parole Reforms if Labor Elected, and the provision of $300,000 for its implementation was made in the 2014-15 budget over a two-year period. Labor's election promise identified that the measure would be in place by the end of 2014 if the Labor government were returned; notwithstanding that, the bill was introduced on 11 February 2015. I do not intend to dwell any further on their tardy introduction of the legislation that was promised to be in place by now but turn first to the bill in question.

The bill provides for the creation of extended supervision orders, or ESOs as I will refer to them in this speech because we will get to them a couple of times. ESOs allow for certain offenders considered to be at high risk of reoffending to have supervision orders placed on them at the conclusion of their sentence, usually at the expiration of their parole. In effect, the order would extend the parole period for the offender, although the situation is also encompassed where an offender who has either not sought or who has not received parole might come under such an order when they are released.

People to whom these orders are applicable are what are known as 'high-risk offenders'. The following categories fall within the definition of high-risk offenders who may be subject to an extended supervision order: serious sexual offences, where the maximum sentence includes imprisonment for at least five years; lesser sexual offences, where the offender has previously served a term of imprisonment for a serious sexual offence; serious violent offences which are indictable offences, where the maximum possible sentence includes imprisonment for at least five years, where the conduct constituting the offence involved either the death of, serious harm to or risk of serious harm to a person; serious damage to property in circumstances involving the risk of death or harm to a person; perverting the course of justice in relation to conduct that would, if proved, constitute a serious offence of violence; or breach of an ESO.

The Attorney-General—and I am sure he will be listening keenly to this debate, as a number of questions will be posed through the second reading stage which he can either choose to answer in his second reading response or we can spend a long time, as long as he likes, in committee—must apply to the Supreme Court for an extended supervision order to be applied within the last 12 months of the offender's sentence, whether they are in prison or indeed if they are on parole. An application may also be made in relation to an offender who is the subject of a current ESO as long as the application is made within 12 months of the expiry of the ESO.

In assessing an application, the Supreme Court must determine that the offender 'poses an appreciable risk to the safety of the community if not supervised under the order', and a qualified medical practitioner must assess the likelihood of reoffending and report to the court. The government suggested in the briefing—and I appreciate the information provided by government staff through that process—that, while there may well be hundreds of offenders who have committed the necessary offences which would qualify them for a potential ESO application and which meet the threshold I described earlier, the actual numbers would be much smaller. Orders would only be sought where a serious offender had made no effort to reform their behaviour, and where the Attorney-General, on advice from the Department for Corrections or the Parole Board, had formed the view that there was ongoing serious risk to public safety in the absence of ongoing supervision.

It does merit consideration of what these numbers, in fact, are likely to be. Having sought some further information, the Attorney-General took the opportunity to write to the opposition, and I will put his words on the record because, of course, this is subsequent to his second reading speech, just to ensure that there is an understanding of the numbers that potentially might be involved. The Attorney-General wrote:

You also queried how many offenders could potentially be the subject of an extended supervision order (ESO). As explained during the briefing, whilst there may be a large number of offenders who could potentially be subjected to an ESO, the intention of this legislation is to protect community safety and address future risk. Therefore, whilst it is important to target serious offenders, an important element of this reform is to determine their risk of reoffending. Therefore, it is anticipated that an application for an ESO would be made based upon the advice of the Parole Board and DCS. The need to consider future risk also means that the list of matters to be considered by the Court, including an expert report, is vital.

I have been advised that the DCS made an assessment of their prison population and determined there were 101 sex offenders in prison, scheduled for release during the 2013/14 financial year, who fell under the definition of high risk offender.

That is last year, of course. He goes on to write:

Due to the nature of the definition of serious violent offender under the Bill it is difficult to determine an exact number of violent offenders who fit within the definition of high risk offender. DCS noted that there were 624 prisoners scheduled for release during the 2013/14 financial year who were serving a sentence of imprisonment of greater than five years for an offence against the person. However, DCS were not aware of the conduct constituting the offences and could therefore not determine how many of these offenders would fulfil the additional requirements under the definition of "serious offence of violence".

It is not anticipated that applications would be made with respect to all offenders who fall under the definition of "high risk offender" but rather those identified by either DCS or the Parole Board as potentially being of a risk to the safety of the community. As such, it is difficult to predict the number of applications that will be made.

The opposition is likely to ask questions to get some further detail. At the moment, the Attorney-General has identified 725 prisoners who were released last financial year who might potentially be captured by this legislation.

I got the sense, certainly from government staff, that that was in no way their expectation, and the Attorney-General's letter backs that up. However, with 725 people potentially meeting the criteria, I think it is important in debating the merits of this bill to have a better understanding of the sorts of numbers we are talking about. We have a basic idea of the character of the people involved, and we will talk more about that, but 725 would be an extraordinary number of extended supervision orders.

If we are talking about 50, it would be a significant burden on the Corrections budget and on the courts budget to be able to deal with these issues, and it would be an indictment on the level of rehabilitation that is not offered in our prison system. If we are talking about 10, if we are talking about five, then there is another question of whether that is going to be sufficient to ensure the community safety outcomes the government is seeking through the passage of this legislation. We will explore that further, and I invite the Attorney-General to comment further in his second reading reply. I know that he is listening intently, so I am sure that he will, in his second reading reply, provide some responses to this matter.

These are the worst of the worst offenders. These are the most dangerous of offenders—offenders whose crimes were so serious, and their lack of remorse or willingness to engage with rehabilitation so profound, that the Supreme Court deems them to require this new level of post-release supervision and post-sentence supervision in addition to their sentence.

The bill, at clause 7(4), requires that the Supreme Court must be satisfied that the offender is not only a high-risk offender but also that 'the respondent poses an appreciable risk to the safety of the community if not supervised under the order'. In relation to matters that the Supreme Court must therefore consider when contemplating whether to impose an extended supervision order on an offender, the bill deals with them at clause 7(6). Subclause (5) states:

The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.

That is the paramount consideration, that is what we are most concerned about—the safety of the community.

Subclause (6) describes a range of matters that the Supreme Court must also take into consideration: the likelihood of the respondent committing a further serious sexual offence or serious offence of violence if an ESO is not imposed; the reports of any medical practitioner—and we will get to those later—furnished to the court; the reports of the Parole Board; reports required by the court under clause 15 of this bill, which effectively means whatever report that the court chooses to order; any relevant evidence or representations the respondent puts forward; and any treatment or rehab programs which the respondent has had an opportunity to participate in.

We will talk more about rehab but I just note at this point that for a prisoner population approaching 2,700 on a daily basis, 65 rehabilitation places is the number that the Department for Correctional Services allows—that is, 65 out of 2,700. Of course, 1,000 more prisoners than that go through the system every year. It is 2,700 on any given day; 65 rehabilitation programs are offered.

In the case of a respondent released on parole, the extent to which he or she has complied with the conditions of their parole release is taken into account by the Supreme Court. In the case of somebody subject to an existing ESO into the future, the extent to which they have complied with the terms of that is taken into account.

In the case of a respondent who is a registrable offender within the meaning of the Child Sex Offenders Registration Act, the extent to which he or she has complied with any obligations under that act—and I will be interested in the Attorney's comments on the interplay between the Child Sex Offenders Registration Act and the proposed ESO scrutiny. Presumably, given that this subclause is here, it is anticipated that there will be a number of people—and it certainly makes sense if there is a serious sexual offence as a part of it—who are eligible to be both registered as a child sex offender under that supervision and also under the supervision of an extended supervision order. There is some interplay, especially given that the breaches of supervision have consequences and whether they will have consequences on the other act.

At paragraph (j) the Supreme Court must take into account the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history and any pattern of offending behaviour disclosed by that history. The matters that the Supreme Court must take into account are very broad. Further, paragraph (k) identifies any remarks made by the sentencing court in passing sentence and, in case anything has been forgotten in this list of things that the Supreme Court may take into account, we have paragraph (l) here to help us in specifying any other matter that the court thinks relevant. There is, in fact, no matter which the court may not choose to find relevant and may have the capacity to find relevant in considering whether an extended supervision order should be applied. That is well and good as per what is trying to be achieved by this legislation.

We move on to the nature of the ESO itself, the conditions of an offender under an extended supervision order. Offenders subject to an extended supervision order are subject to conditions such as they may not commit an offence; they are prohibited from possessing a firearm or ammunition or any part of a firearm; an offensive weapon, except where in the case of offensive weapons the courts permit otherwise. I note there is also a subsequent paragraph in relation to firearms that the court may vary or revoke those conditions if there are cogent reasons and they are convinced there is no risk to the community.

Again, I invite the Attorney to comment on whether there is any case he can possibly foresee where somebody is such a serious and violent or sexual offender that we would seek to impose an extended supervision order on them after the end of their head sentence, who it is possible that we would give this firearms exemption to, that we would decide that they are so serious an offender that we will put an ESO on them but not a serious enough offender that we would restrict them from having a firearm. That strikes me as unlikely. Further, offenders subject to an ESO are subject to the condition that the person is under supervision of a community corrections officer, must obey their reasonable direction and submit to tests for gunshot residue as required and, of course, any other condition of the court.

Conditions of the Parole Board are also anticipated. The first thing to say is that conditions of the court or the Parole Board that may be imposed are fundamentally likely to be of the same nature as imposed on parolees at the moment. I want to establish clearly that the expectation is that the advantages of having supervision anticipated by this bill are of the nature of the advantages anticipated by having supervision of parolees.

It is not just that it is a matter of checking in to ensure that they do not have drugs or alcohol, if that is the case, or whatever other conditions are imposed for the community's safety, it is also to the advantage of the offender or parolee to rehabilitate themselves and become a constructive member of society. When there is a partnership between the Parole Board and the offender, the parolee, then we hope those are possible outcomes.

In relation to conditions that are potentially to be imposed by the Parole Board, they are identified at clause 11 of the bill, and the bill is kind enough to provide some examples. For example, the condition may require the person to reside at a specified address or to undertake activities or programs—rehabilitation or otherwise—as determined from time to time by the board or, indeed, be monitored by the use of an electronic device, one of the GPS tracking devices (which we have several hundred of in South Australia and which we will talk about further).

Furthermore, the Parole Board would usually provide that a community corrections officer or a police officer may, at any time, visit the person, access the computer or related equipment at the residential address and for that purpose, to visit the person or to access their computer materials, they may enter the premises at that address. The conditions of supervision orders imposed by the Parole Board are also anticipated to prohibit or restrict the person subject to the order from potentially associating or communicating with a specified person or class of person. They can restrict where they live, restrict them from possessing a specified article or weapon, or articles or weapons of a specified class, restrict them from engaging in any particular type of conduct or undertaking certain types of employment or, indeed, from applying for a change of name.

The Parole Board may vary some of those conditions as we go but, again, in the Attorney-General's keenly anticipated response I would be very grateful if he could identify, in relation to subclause (4) where it describes the way the Parole Board may exercise its conditions and requires that the Attorney-General and the respondent have the opportunity to make submissions on their conditions, whether that is in general or whether there is, in fact, a response expected for any condition made. That could make the bill quite unworkable, and these are the sorts of details we need to get to before legislation of this nature can get through the parliament in total.

In terms of duration, the Supreme Court sets the time that an extended supervision order may be in place, but the maxim is five years. As stated, when there is less than 12 months remaining on an ESO there may be an application for a further ESO, which would then go to the Supreme Court for further consideration as to whether it meets all the necessary requirements. That goes within the last 12 months of the extended supervision orders application.

In relation to appeal, an appeal may be instituted either by the Attorney-General or the person to whom the decision relates, whoever is unhappy. Subject to a contrary order of the Full Court, an appeal cannot be commenced after 10 days from the date of the decision against which the appeal lies. The Full Court may then confirm, reverse, annul or add additional conditions as it sees fit and considers appropriate. I note that there are similar provisions in section 27A of the Criminal Law (Sentencing) Act, which restrict it to 10 days rather than more usual 21 in relation to appeals to the Full Court against decisions of the Supreme Court on an application to discharge an order for detention, a decision of the Supreme Court and application to release a person on licence or a decision of the Supreme Court on an application by the Director of Public Prosecutions under 24(11) of the Criminal Law (Sentencing) Act. So there is some other precedent of that nature.

Turning to the principle, the first question that has to be answered in considering whether or not such a piece of legislation can be supported is fundamentally one of moral principle, and a number of people have strong views on the matter. ESOs impose restrictions on an offender's freedom over and above the penalties imposed by the courts, and break with many of the traditional legal precedents by imposing such restriction based on potential future conduct rather than in response to past offending.

On the other hand, the prime purpose of the ESO is to improve community safety, to improve the lot of victims and potential victims. The fact that ESOs may only be applied through reference to the Supreme Court, with the outlined restrictions and things to be taken into consideration, puts them into the category of legislation that must be taken very seriously. The small number of high-risk offenders on whom an ESO might be imposed, once you have gone through all of those categories that are required to be considered, must necessarily have been convicted of a serious sexual or violent offence, and it must be demonstrated that they are at a high risk of doing so again unless an extended supervision order is imposed.

There are, of course, a range of points of view about which side of the fence you are supposed to land. We have taken the opportunity to not only consider the matter ourselves, in the opposition, but also to discuss this issue with a range of stakeholders. I wish to put the comments of the Law Society on the record. Of course, they will be critically involved in dealing with a great many of these issues. I propose to put on the record a letter to the Attorney, in a usual response to legislation, written by Rocco Perrotta from the Law Society. I propose to put this on the record so that others may consider the comments made by the Law Society. I think the Attorney will enjoy the opportunity in his response to reflect on the matters raised and presumably provide some response. Mr Rocco Perrotta, the president of the Law Society, writes to the Attorney:

I refer to the Criminal Law (Extended Supervision Orders) Bill 2015, and thank you for the opportunity to meet with your Advisers…The Society opposes the Bill on the basis that it offends the inviolable principle of double jeopardy/double punishment. Any abrogation of the principle will occasion substantial unfairness on the citizen and will necessarily have the effect of undermining the sentencing process.

In sentencing, the Court takes into account a range of matters in fixing a sentence. If there is any concern about the individual during the sentence, that will be reflected in the decision of the Parole Board. Further, and importantly, any concerns should be raised at the sentencing stage for the Court to have proper regard to them when fixing a sentence.

The sentencing process is the time for matters such as mandating satisfactory completion of courses to be made. It is also the time to fashion the sentence in a way which will maximise the chances of a person being released into the community on parole.

Similarly, if a prisoner chooses not to apply for parole, it is at sentencing that a Court can make orders with a view to ensuring that such a prisoner will have completed the necessary rehabilitation programmes. If there is any concern about existing prisoners, perhaps legislation might be passed to enable the original sentencing court to make orders concerning the completion of the relevant programmes (but only where it is felt that failure to complete will materially impact on the level of risk).

Failure to complete the necessary rehabilitation courses, or a prisoner's decision not to apply for parole, should not give rise to a power to, in effect, revisit the sentence by extending the sentence. If there is to be any factor which is to keep a prisoner in custody it should be solely whether he/she is considered a threat to the community. As mentioned, this could and should be achieved through the sentencing process.

In this regard it should be noted that the Court has the power to order indeterminate sentences for sex offenders. Reform along similar lines may be made with respect to violent offenders.

That is in relation to the principle. I will be interested in the Attorney's response, although I do identify that the Law Society's comments on this matter do not deal with the issue raised by the Attorney about offenders who come out into the community at the end of their head sentence having not even served under supervision orders of parole, so the comments would not be relevant to that cohort of prisoners.

I again advise the Attorney that he has identified that there is a significant and growing cohort of such prisoners. We would like to know how many. How many, particularly in the nature of people who have been picked up by ESOs, are going to the end of their head sentence either choosing not to seek parole or, having sought parole, its being denied until the end of their head sentence? These are those sorts of serious sexual and violent offenders that the legislation seeks to capture. The Law Society president, Rocco Perrotta, goes on to write:

In relation to the individual provisions of the Bill we comment as follows:

Section 7(6): as mentioned, the sole factor should be safety to the community. The prisoner should not be further punished for not undertaking a course, displaying an attitude during a course, past behaviour, or any other factor that does not bear upon the issue of safety. In other words, s7(6)(a) should be the sole determinative factor. How a court informs itself about such should not be limited.

Clause 16 provides that the prisoner should have the right to be examined by a medical practitioner of his or her choosing and that examination should be taken into account in the same way as any other examination. Clause 19 states that the appeal should be the same as the current rules concerning appeals:

It should be 21 days with the possibility of an extension of time to appeal. In other words, the legislation should link the appeal rights to those of existing criminal appeals. Clearly the proposed action is serious and has grave consequences on a prisoner. It therefore warrants the full appeal rights being available to the prisoner.

As I have identified, I will be very interested to hear the Attorney's responses to the issues raised by the Law Society. I note the issue raised in relation to clause 7(6) that the sole factor should be safety to community. Subclause (5) identifies that it is the paramount factor and that is as it should be.

It goes on to say that the court should inform itself in a way that should not be limited and, as we have discussed previously, clause 7(6)(l) provides the court with the opportunity to investigate and take into consideration any other matter it considers appropriate. In relation to clause 16, I will be very interested in the Attorney's response in relation to the medical practitioner. In relation to clause 19, as we have discussed, the Criminal Law (Sentencing) Act provides similar provisions as related in this bill.

Other submissions received from a range of other stakeholders, who I do not propose to identify, use language such as 'unsound'. It is described as '…a backdoor method of Executive interference in the judicial process.' I do note, of course, in reporting on these submissions, that it does require the Supreme Court's decision to take place.

It has been put to me that in the case of ESOs, the trial judge when sentencing has already taken into account all of the factors outlined in the proposed legislation. The head sentence is the result of this consideration. Early release on parole is an opportunity for supervision and that of course is one of the arguments against the legislation altogether. It has been put to me that, 'There is no point in deferring parole on the basis of "perceived risk of reoffending". It has been established by research that no-one can predict who may reoffend.'

I must say I find that argument unconvincing. It has been put to me that, 'It is a principle of our law that offenders are punished for what they have done and not what someone thinks they may do. It is called preventative detention. We should not keep people in prison for what they might do in the future,' but there are already exceptions to that in our laws. In fact, one of the same points made by a similar person who submitted this to me identified that with sex offenders there is already a provision under section 23 of the sentencing act for indeterminate detention for those who present this risk. In addition, there are paedophile restraining orders which provide supervision by the police.

The fundamental principle question, and I will again quote from one of the submissions we received in relation to this bill, is that:

Our judicial system must rely on the Trial Court to determine the appropriate penalty. It is not appropriate to look back to before the trial and impose additional penalties.

That is not the only point of view that stakeholders have presented. Mr Michael O'Connell, the Commissioner for Victims' Rights, has put an alternative point of view and I quote from Michael O'Connell with his permission:

You will note, as I have, that the Bill proposes to cover sex offences; thus, I support the intent of the Bill. Such intent is also consistent with my submission regarding the impact of the 7/8th (or similar) rule on parole terms for certain violent offences.

He goes on to write, and I think it is fair to say this is his key point:

It seems to me that this Bill seeks to set an additional 'preventive' penalty—preventive law is common and can reduce victimisation. The imposition of penalties or sanctions should in the main be the responsibility of our Courts, so I support the concept of empowering such to extend sentence conditions beyond that initially set.

Of course, the individual or, indeed, the body that is going to have the most significant day-to-day interaction with this matter, that is going to deal with the supervision orders, the relationship with the offender, and is one of two bodies that recommends to the Attorney-General and, I suspect, will be the main body to recommend matters to the Attorney-General is, of course, the Parole Board. I appreciated the opportunity to talk to Frances Nelson QC, who is very highly respected in her chairmanship of the Parole Board, and has been for decades, in fact. I appreciate their support for the bill and also for identifying some challenges with the bill.

I will talk about potential amendments to the bill that the opposition will be seeking to move in due course. I am sure the Attorney is in rapt anticipation of further discussion on the same, and I know that he will be engaging with us in that dialogue. I hope that he will take the amendments that we will put forward seriously because they will inherently strengthen the bill, make it a much more workable bill, and make it a better bill.

There are a couple of other issues in relation to the application of the bill which I would like to touch on before I move to the amendment. In relation to the financial implications, it is fairly clear to the opposition that if the extended supervision orders are to be applied to any number of offenders then insufficient financial provision has been made. Last year's budget identified $150,000 in the 2014-15 year and $150,000 in the 2015-16 year. The Attorney has subsequently written to me to identify that, in the budget papers, it is set out in the Attorney-General's Department for the administration of this bill. He writes:

I am advised that these funds are allocated to AGD in the Budget Papers as I am the lead Minister on this election promise. These funds will be provided to DCS [the Department for Correctional Services, in this context] for the administration of this election promise.

So, $300,000 is the price the government puts on the application of extended supervision orders. This leads to two possibilities: either there is not enough money, or they are not intending to apply for many extended supervision orders. Not even for the 10 that I talked about before would $150,000 for two years be sufficient to supervise them. Firstly, it is only for two years; this funding cuts out on 30 June 2016. There is no further funding provided in the budget at the moment.

The Department for Correctional Services is so overstretched at the moment that they are having to use police cells every single day of the year to cope with their prison overcrowding. The Department for Correctional Services does not have any extra money. They are not even paying for all of their use of the police cells. The police commissioner had to send a begging letter, which we found out about two weeks ago, to the Department for Correctional Services asking them to pay up for their use of police cells to deal with prisoners overflowing from the prisons.

The very idea that the Department for Correctional Services is going to do this on the zero dollars that are provided after 30 June 2016 is a joke. I am sure that the Attorney will be able to respond to this matter when he makes his second reading response and tell us where these mountains of gold are that are going to pay for the administration of the extended supervision orders. I am not saying they are a bad thing; I am just saying you are going to have to pay for them. Apart from anything else, it is anticipated that a number of these will have to have GPS tracking devices applied to them.

The Attorney has in fact identified the money that was in last year's budget for the GPS tracking devices. It may be news to the Attorney, but the Department for Correctional Services is currently using all the tracking devices that they have. They have another 200 coming online sometime between now and 2018. It has actually been impossible, despite how many times I have asked in estimates or in briefings, to get any sort of sense of when the 200 will be online.

It all depends on future policy decisions, but even if those 200 were all online tomorrow—if G4S, who are the private providers of the contracts, or if the staff at Corrections who are responsible for monitoring the services of the GPS tracking devices and making sure that everyone is going where they should, staying away from where they should and behaving in the way they should, and who are ready to respond if somebody makes the utterly stupid, foolish decision, having been given one of the tracking devices and having that freedom, to try to cut it off—people supervise this. There is a massive cost to that. There is a cost to the budget going into the millions, and if we are going to be extending it, it will be a greater cost.

As to the GPS tracking devices that are currently being used, I will go through how the 410 already in place are currently being used before the other 200 come online. The Attorney-General, the Minister for Police and the Premier have all identified new uses for these GPS tracking devices in relation to domestic and family violence and in relation to getting our prison numbers down.

Before Christmas, the Attorney-General stated there is a body of work being done that is going to identify a number of low-risk prisoners who can be taken out of the prisons and put in home detention, or whatever the current jargon is, and put under one of these GPS tracking devices to reduce prisoner numbers. This is not a magic pudding of GPS devices that are available for anyone the Attorney-General decides, 'Yes, we're going to give another 20 of those to here.' They are all being used at the moment, and if they are used for this purpose, they are no longer going to be available for intensive bail supervision, for which hundreds of them are being used at the moment.

They are no longer going to be available for any of the other range of programs in which the Attorney-General, the Premier and the Minister for Correctional Services have identified they are going to be used. That will mean that those offenders are going back into prison, exacerbating our first problem, which they said the devices would be used to reduce—the prison overcrowding. They could spend enormous amounts of new money over and above what they have already promised to improve prison infrastructure and increase the number of beds in prisons, but they have said that they have already done massive increases in infrastructure and that now they are going to use the GPS devices to deal with this issue.

There is an inherent inconsistency here, and the financial implications need to be cleared up, otherwise the Attorney-General is seeking that the courts will have to deal with these matters through the Supreme Court. His own department is presumably going to have to prepare briefs for him to make these applications to the Supreme Court and make appearances in the Supreme Court, Corrections is going to have to maintain this supervision and the Parole Board is going to have to undertake the supervision.

All these bodies operate at great expense and they are critically important bodies, and that is a necessary expense for the taxpayer; it is just an expense that no provision has been made for past 30 June 2016. Between now and 30 June 2016, the $300,000 to manage this bold new program the government has identified clearly is going to be nowhere near enough if it is to be applied to any number of violent or sexual offenders.

In addition to the extra cost, there will of course be an impact on the workload of the already stretched Supreme Court and Victims of Crime, and of course it will have an impact on those seeking to have their cases heard. I will not go into today the extraordinary deficit of capacity in the Supreme Court this government has created over 13 years; it is a matter for another day. We could go on and on about it, but my time is limited. I know the Attorney is eager to hear the rest of the contributions, answer the questions we have put forward and deal with those matters expeditiously. I am sure he is chomping at the bit to do so and his enthusiasm is noted.

Mr Odenwalder: 'Champing'.

Mr Picton: 'Champing at the bit'.

Mr GARDNER: 'Champing at the bit', 'chomping at the bit'—I was confused. I thought the Attorney might have been discussing some sort of car-related metaphor or French film or perhaps reading his French poetry, and we will no doubt learn more about Star Wars. I am sure he will have some excellent metaphor to do with Star Wars Episode VII that we are all just gagging to hear, but in the meantime I will confine my comments to the bill and not let the interjections of the Attorney and his backers dissuade me from focusing on this very important matter.

In relation to the GPS tracking devices, I wish to identify that, as of the annual report the year before last, on 30 June 2014, when there were 353 of these in operation, 247 of those were intensive bail supervision, 86 were home detention, 14 were being used by parole, 4 by probation, one on a home detention bond and one (and I am intrigued) community service. Somebody undertaking community service was also under GPS tracking. As I have said, this is an area where there is now significant expense. These electronic monitoring bracelets are great; they provide a great service. There are also, of course, youth offenders—25 youth offenders last year were operating with a GPS tracking bracelet.

Out of all of those, I suppose the simple question is this. If there is to be a significant number of these without extra budgetary provision being made, I would like the Attorney to identify which ones of those are no longer going to receive the GPS tracking devices and which programs that have been identified for future use, whether it is domestic violence offenders or low-risk offenders in the prison who they are going to release to reduce the prison population, are no longer going to have GPS tracking and how will they manage those as well? So much for the GPS tracking devices.

In relation to rehabilitation, this is critical to this point because willingness to participate in rehabilitation programs is a key point versus whether an extended supervision is going to be imposed on somebody; and it is, in fact, one of the key reasons that people are in prison. It is not only punishment and to prevent violence against the community for the term of their duration but we also want to prevent violence against the community after their duration. It is the whole point of what an extended supervision order is also about. It is about preventing violence against the community, preventing sexual violence against vulnerable members of the community or any member of the community, and preventing violent offences against members of the community.

The way to do that, the best bang for your buck that you can possibly get, is to take that cohort of people who have committed such an offence and stop them from doing so again in the future—to rehabilitate them. We expend tens of millions of dollars in this area. How we spend it and where it is directed is questionable and whether it is a sufficient provision within the corrections budget is also questionable. It has not been an issue of focus for the government that was so proud of their rack 'em, pack 'em', stack 'em mentality that they kept taking that to election after election as proof of their machismo and their ability to sell a line that focuses the mind on toughened law and order issues.

The reality is that the government's programs have delivered increased danger to the community through their failure to effectively rehabilitate these prisoners. Sixty-five prisoners are undergoing the cognitive behavioural therapy programs offered by rehab services every year. As of today there is no rehab program available for domestic violence offenders in our prison. It was announced last year there was going to be one this year, but I can tell you it has not started yet. They have not yet trained the people who are going to be delivering the program at Cadell and when that happens, how many are there going to be? Ten or 12 out of the 65 places available? Sixty-five out of 2,700?

We have 700 prisoners in the 2013-14 year who meet the offence criteria, according to the Attorney-General, that would make them eligible for an extended supervision order—the worst of the worst, the violent offenders and the serious sexual offenders. Seven hundred of them are due to finish their head sentence and there are 65 rehabilitation places. It is extraordinary and we are not going to hear the end of it. Given that there is a prison population of over 4,000 people going through the prison system every year and 2,700 on any given day, I put the government on notice that this is clearly not enough. It is not satisfactory.

The Law Society pointed out that somebody's inability to participate in a program should not be the basis on which a further condition is set on them into the future. This is an issue that the Parole Board faces every single day. The Parole Board has to deal with violent offenders and sexual offenders, people who are going to get out one day and for whom this bill may help us manage in the future if it is passed. The Parole Board has to deal with these people and consider that if we let these people out not having participated in a rehabilitation service that may improve their behaviour—that service not having been available in the prison—what sort of behaviour is going to be warranted?

Mr Picton interjecting:

Mr GARDNER: The member for Kaurna thinks it is funny. The member for Kaurna does not want rehabilitation services provided. It is outrageous. What he does not understand and what the government has to face is the fact that rehabilitation services must be provided. The Parole Board will tell you if you ask them that the requirement is that they know somebody is going to be let out at the end of their head sentence. If they are let out without having any supervision and not having undertaken any rehabilitation in prison, then how are they going to do better in the community and how, under an extended supervision order, would they necessarily do better in the community either unless the ability for them to undertake the necessary rehabilitation program is there?

In relation to recidivist behaviour, the outcomes of which this legislation is designed to protect the community, the fact is that we do not do a good enough job of rehabilitating prisoners in the first place. Breaching the conditions of an extended supervision order is to be an offence with a maximum penalty of five years' imprisonment. While ESO supervision is comparable in many ways to parole, it is notable that, where there is a breach of an order and where there is noncompliance with a condition, there is a difference in the way that parolees and people operating under an ESO are to be treated. If a parolee breaches their parole they go back into prison. If these people who are under an ESO breach their ESO there is an offence, and it is an offence with up to five years. However, it is a new offence and it is an offence for which you do not go back into prison immediately; you can apply for bail and this is where we get to some concerns.

In considering whether to support the bill, you have to consider that we are in the business of managing people who are extraordinarily dangerous, people who have committed heinous crimes and shown no interest in rehabilitating themselves. We believe the Supreme Court will take into account the availability of programs and the commitment that somebody has made themselves. The programs help a great deal, but the person must also take responsibility for their own actions and their own rehabilitation to some extent.

When you are managing people who are extraordinarily dangerous, the worst of the worst, the worst offenders, the people who have committed the worst crimes and the people who represent the most significant ongoing risk to the community, then you have to take seriously the community's need for safety. You have to take seriously the community's expectations that people of this nature will be kept in check. Sometimes the rights of victims and potential victims must take precedence over the relevant traditionally accepted legal principles. It is critically important that we do not try to mould our community to suit our laws; we must mould our laws to suit the needs and expectations, to some extent, of our community.

While this bill gives the Parole Board the responsibility to manage offenders, it does not give them the power to do anything about it. When somebody breaches a condition imposed either by the Parole Board, the act or the Supreme Court they are then out again on bail. It is unsatisfactory, frankly. It has been identified as a problem by the Parole Board, and that is why the opposition is going to be seeking to move amendments to the Bail Act when we go into committee of the whole. I have given notice that tomorrow, subject to the passage of the second reading, we will do this. As the Bail Act is not opened by the legislation that the government seeks to pass, we have to give notice in that way.

The Clerk informs me that a day's notice is required. If indeed we are on to the committee stage today then we will seek to suspend standing orders to achieve the same outcome, so that we can look at amendments that are going to be circulated shortly in relation to the Bail Act, which reverse the presumption against bail. At the moment, as the bill stands, the presumption will be for bail and these people who are so dangerous that they need an ESO, if they breach the conditions of the ESO then this bill will leave them back out on the streets. The Parole Board will be waiting months and months—six months. We talked about the delays in the courts. It will be six months before they will even look at the matter again.

There is a range of provisions—there is a whole page of them in the Bail Act—where the presumption is in fact against parole, not in favour of parole. Our amendment simply seeks to add people who have breached a condition of an ESO, which is the new offence we are creating today if the bill is passed. It will be added to those offences for which there is a presumption against bail. This is critically important. This is demanded by the Parole Board chair in her expectations of what this bill seeks to achieve.

There cannot be an ambiguity here. The court has to understand that, in saying that we are going to allow extended supervision orders to be a part of our criminal code and to be part of the impositions on people who break the law in South Australia, we have to take them seriously and the court will have to presume that bail is not suitable. I implore the government to take this very seriously and I implore the government to support the Liberal amendments when they come up. However, before that, because the Bail Act is not opened by the bill and our amendments go the Bail Act, which we are informed is the best by a long way—the only real way that you are able to achieve the outcome that is required to improve the bill in this way—I implore the government to support the reference to the committee of the whole of the house to the Bail Act so that the Liberal Party's amendments can be properly considered and the bill can be necessarily improved.

Given the government has indicated we may be rising at six, and I know that the Attorney-General will break from his shopping for Hummers and other cars that he told us earlier he is interested in buying, to be clear, the Criminal Law (Extended Supervision Orders) Bill 2015 amendments, of which there are three, are very simple. Firstly, in relation to schedule 1, we propose that, rather than just having one schedule with a related amendment, there be a schedule with related amendments.

Secondly, after the heading to the schedule 1 insert, we talk about the amendment to the Bail Act, which adds a new paragraph to 10A—Presumption against bail in certain cases. In 10A(2)—the definition of 'prescribed applicant'—after paragraph (c), we insert a new paragraph (ca), which provides:

an applicant taken into custody in relation to an offence of contravening or failing to comply with a condition of a supervision order issued under the Criminal Law (Extended Supervision Orders) Act 2015…

Then, in amendment No. 3, rather than amend a related amendment to an amendment in the long title, we add related amendments to the Bail Act as well. That is the sum total of the amendments that the Liberal Party seeks to impose on this but, in application, these amendments will massively and dramatically improve the bill.

They will mean that, when the government comes to us and says, 'We want to take the most serious offenders and treat them as if they were on parole, under supervision, gaining the benefit for the community that we will be able to check whether these people are drinking or on drugs or undertaking whatever behaviour it was that got them into trouble in the first place,' we will be able to guarantee that, not only can we stop them from living with people or talking to people who we do not want them talking to when they are on parole, after they are on parole, we provide the stick to say, 'Okay, if you breach that condition of your supervision order, you are going back to gaol. We are going to presume against bail, and you are going to be subject to an offence that will send you to gaol for up to five years.'

Otherwise, it is all just words and it is all just talk. Without the stick there, without the fact that your Parole Board is actually going to be given the tool that it needs to be able to impose this discipline on the offenders, the bill is not going to work. The Liberal Party will support the Criminal Law (Extended Supervision Orders) Bill. We will support it in this house and we will support it in the Legislative Council, but we do so saying that, unless the government supports our amendment that will toughen this bill, that will get rid of the ambiguity, that will in fact deliver the stick that the Parole Board needs, it is going to be insufficient.

ESOs are supposed to be restricted to the most dangerous of offenders—offenders whose crimes were so serious, and their negligence in refusing to comply with rehabilitation or lack of remorse was so profound that this new level of post-release supervision is going to be required of them by the Supreme Court. A breach of that supervision order must be taken to be the most serious of offences.

There is a page of them in the Bail Act, as I have said. For discretion exercisable by the bail authority where there is a presumption against bail in certain cases, there is a whole page of offences at 10A of the Bail Act where this is applied. These are the worst of the worst, so they should be included too so that, if they breach their order that is so important that we are moving this legislation, then we are actually going to put them in prison and not just have them jamming up the justice system for six months while they are still out in the community terrorising or traumatising people in a way that we are concerned to try to stop. With that, I support the bill and I look forward to other contributions on the same.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:48): I rise to indicate my support of the Criminal Law (Extended Supervision Orders) Bill 2015 and commend the member for Morialta on his excellent summary of the position of the opposition in supporting the bill, and the basis upon which he foreshadows an amendment to strengthen the effectiveness of the bill.

Can I say that, for the sake of the record, this is a bill consistent with an election promise of the government that they make provision for an extra level of supervision post the release from gaol of certain 'high-risk offenders', as they have anecdotally referred to them. These are people who have committed crimes, for which there is an imprisonment term, usually with a threshold of some five years, involving committing either a serious sexual offence or a serious violent offence.

The extent to which this can apply includes conduct where constituting an offence could actually cause death or serious harm or risk of death or serious harm to a person, or indeed even damage to a property. So, this could be broadly applied, not just to what we would consider to be clearly heinous crimes but also serious property damage. I imagine this would be things such as burning down a house where there would be a risk to an occupant or showering gunfire near a house where somebody may or may not be at risk if they exited the property or the dwelling.

The definition is fairly broad but in essence it is legislation to say in these cases a number will already have applied to them a period of parole, that is a period for which they are not to be released before they can apply for parole of the head sentence. They could lead to circumstances where they have completed a nonparole period, undertaken a process of application to have parole, be granted parole and have conditions set on them. That is all well known, it works fairly well. From time to time people are brought back into custody as a result of breach of terms of parole like consuming alcohol, approaching certain persons who have been banned from their association, etc., and it largely works pretty well.

However, what does the community do with someone who has completed their period of sentence in this category—and there are apparently some 700-odd due in this financial year to be released within this category—and, of those, some have not rehabilitated or demonstrated some capacity to understand the seriousness of what they have done and indicated a capacity that they would modify their behaviour to ensure it does not happen again?

I, for one, do not believe what you see on television frequently. Recently for probably the hundredth time on television was The Shawshank Redemption and Morgan Freeman is seen outside the prison with his suitcase, released after decades in prison, presumably standing up in the clothes he went there in when he was originally imprisoned and goes off to live in a hostel and to work in a supermarket, suddenly with the bright light of the outdoors after decades of being shut away. That just does not happen in the real world now. In contemporary times it is fair to say that our corrections officers do a lot of work in helping people after they have been incarcerated for a significant time and, shortly prior to that, work on day leave, discussing with them what skills they might need to secure employment, reasonable accommodation, reassociation or connection with family members or other friends or colleagues to try to help them re-establish some level of normalcy in the general community.

I think they do as best they can and quite a good job at that. Notwithstanding all the protests I hear from the Law Society and what I would call the 'usual suspects' in saying one should caution an approach down here in the parliament of having a double penalty for these people, and that certainly can be interpreted that way, to deflect from that and accept the argument that under the current system we do not really have an adequate way of ensuring that the public will be protected against a small group of this 700-odd a year that are being released. Therefore, how do we deal with it?

Plenty of people give you advice about that. They will say if it is a serious sexual offence, they should be castrated, they should have chemical treatment, drug treatment in relation to their sexual urges. If they are violent, they should be restricted in their capacity to be able to approach anybody they had previously caused harm or threats to, etc.

However, the reality is that there is still that group that even if they were to voluntarily enter into treatment—whether it be drug or even physical removal of genital organs—they will still be a risk, not necessarily of causing penile penetration. Of course, the other problem is that even if they are willing and saying, 'Look, I want to be able to go down a line which will stop me from doing this again to any other child or any other person I might hit or rape or assault,' there is always that group who could move on to other very serious offences—including child pornography and exploitation of children in sexually explicit material—many of which carry these penalties. That is a whole new world not only of criminal behaviour but of exploitation of the vulnerable, usually children and frequently women. So I say that there is a case to provide for some supervision.

The other thing is that I do not necessarily see it as a double penalty. At first blush I did, and I thought, 'This really offends every rule or principle,' but I think we do need to take into account that every one of these people is, one day, going to be released into the community. One day they are going to be living in a home next to someone else's family or near a school, or anywhere where they are going to have some access to people in the community who are vulnerable to their predatory behaviour. In that situation I think they need all the help they can get and in those circumstances having parole conditions—as they are going to be called, an extended supervision order—essentially post the head sentence period, could be seen, I think, as being of some advantage to these people, to ensure that they are given support rather than curtailed. There will be someone allocated to them, they will have a reporting obligation, they will have to meet certain standards, they will be checked upon, someone out there will give a damn about them, and they will actually have a role, whether it is via an electronic bracelet or through personal interaction with somebody or some part of the process which will take some responsibility.

I heed the words of the member for Morialta, who says that $300,000 is a drop in the ocean for what will be required for this, and that does concern me. Just what the member for Morialta advised our side of politics would happen has happened; that is, the provision for electronic bracelets and so on for the general community could easily be absorbed by a number of offenders with these particular characteristic who apply under this. That is a shameful situation, where we will be using up that small bit of money to provide for the supervision of these offenders by taking it away from others who deserve it.

I have sat on juvenile inquiries here, looking at how we might better make available electronic bracelets and the like as a means by which we are not having people locked up but able to still participate in the community, and it does concern me that that could be absorbed. In short I see it as a circumstance where there is a possibility of this being better utilised as a supervision and support rather than a restriction and impost, as the Law Society has seen it.

The other aspect I think is important is, as mentioned by the member for Morialta, the ability to act as though it were a parole provision and be able to withdraw the freedom of the person in the event that there is a breach. If we are talking only about the pointy end of the pencil, we are talking only about the most serious offenders, then this has to be dealt with.

In dealing with this issue, I place on the record one circumstance with which I am personally familiar. Some years ago there was a person—sadly, one amongst a number—who was incinerated in a major bushfire in South Australia. Prior to his death he had served a short term in prison for digitally raping a six-year-old girl, a girl who was actually known to him (it was not his daughter, but it was a child who was known to him). As I said, he had served some time. Subsequently, totally independent of this scenario, he was burnt to death in a bushfire. I can remember him saying to me, 'I'm afraid of myself. I don't know how I can control myself in dealing with this situation I'm in.'

The tragedy of this case is that during the time he was in prison (about two years) he had no treatment whatsoever, and this case occurred 21 years ago. I feel very sad that I still hear today about these types of people in prison, and there are a lot of them because of the historical cases. We changed the law about 10 years ago in order to go back in time, over the old limitation of action time, to capture a whole lot of people, from 30-odd years ago, who were able to have their cases heard, so we ended up with a whole lot more people in prison with this profile.

We have to deal with that fact and understand that we must be prepared to invest some money while they are incarcerated to be able to deal with the issues of containing their violent predilection or sexual orientation towards children or vulnerable people, certainly without the consent of other adults. If we are serious about dealing with this, there must be an investment while these people are in prison, and what better time to do it, than when they can be re-educated and taught skills for future employment. We need to provide them with therapy and interventions that can assist them to go back into the community, act in a respectful manner, and no longer act in reckless or criminal behaviour that is going to result in someone's ongoing harm.

It seems that all we are doing is standing here making speeches, providing for a piece of law, but with none of this working unless the government is prepared to say, 'Yes, we have got a problem and we do need to address it.' The best time to address it is while these people are incarcerated and captive in that circumstance, to help them become decent citizens in the community, otherwise this is going to happen all over again.

As it turned out, the person I referred to did die. That is a terminal way of interrupting his behaviour, of course, and no-one would wish that upon anyone. But what if he had not? Would he be back in prison today for reoffending, for behaviour that he claimed he had no capacity to control and that he worried about managing in the future? No; it is unacceptable that, as part of the leadership of the community, we allow this to continue to happen and do nothing about it.

I commend the member for Morialta for thinking through about what really has to happen here, and going past the promises of elections and the razzmatazz of pamphlets and actually thinking about what it is we are trying to do. And what we are trying to do is make sure that, when we have already been on notice, been alerted to and have a clear understanding of someone who has got a problem in re-entering safely into the community, we do something about it. It is incumbent upon us to do it, and it shows a reckless indifference, in my view, if we do not insist that the governments of our day address that issue and address it urgently.

Ms COOK (Fisher) (17:03): I rise today to speak in favour of the Criminal Law (Extended Supervision Orders) Bill. These laws will allow for a new kind of order to be made which would be placed on serious offenders who are about to come out of traditional mandated supervision only. Coming out of this supervision may mean the end of an offender's full sentence or that they are about to come out of parole supervision. The proposed laws are aimed at very serious offenders where there is a high likelihood that they will reoffend and pose a risk to community safety.

The aim of the legislation is to provide a mechanism for ongoing supervision of high-risk offenders who pose a threat to our community. These proposed laws are a part of a suite of legislation that this government has introduced since being elected to make community safety central to our justice system. It is a great honour to sit in a government that has pursued this new strategic direction for the way justice is delivered in our state.

The proposed laws are aimed only at the criminals who exist in two categories: serious sexual offenders which include offenders who have been convicted of rape, indecent assault, abduction, unlawful sexual acts involving a minor and incest; and serious violent offenders, which refers to offenders who have been convicted of a crime which has caused death or serious injury, or has put people at risk of death or serious injury.

If throughout their time spent incarcerated or on parole offenders have avoided the opportunities provided to rehabilitate themselves and the Attorney-General considers that they may reoffend, the Attorney-General may then apply to the Supreme Court to have an extended supervision order placed upon them, only once their time under supervision has been completed. The application by the Attorney-General must be made within the last 12 months of the offender's supervision.

The central consideration that the Supreme Court must have when assessing an application is community safety. The Supreme Court must also hear from a medical practitioner about the likelihood that the offender will reoffend. This will take into consideration their psychological state, as well as their ongoing commitment to rehabilitation during their time in prison or programs during parole. The term of an extended supervision order can remain in force for a maximum of five years, as determined by the Supreme Court. The penalty for violating a supervision order, on my understanding, is a maximum penalty of five years imprisonment.

So why do we need these laws? Last year the world saw the insightful yet gut wrenching campaign on Twitter under the hashtag 'Why I stayed'. It provided the world insight into the lives and decisions made by those who were victims of domestic violence. Some of the testimonials made by women included:

He manipulated me and controlled me for so long he brainwashed me into thinking the beatings were my fault.

I was determined to make it work, wanted kids to have their dad, convinced myself that what he did to me wasn't affecting them.

Because he made me believe no one else would understand.

Only this weekend in our community we have seen a 27-year-old mother of two children lose her life allegedly at the hands of a partner. This is a stark reminder of the real and present danger that women are facing in our community. What can we do to assist these women who may have been through so much, potentially over many years, prior to an incident resulting in the incarceration of an intimate partner?

If applied in such cases, these laws will go some way in ensuring that women are more effectively protected from abusive partners once they have been released. This kind of ongoing supervision and protection of women will most certainly assist the survivor to feel safer as they move forward with their lives. The perception of safety is vital to a victim's wellbeing. These kinds of laws are the very least we can do to assist those who have been so badly affected by some of the most awful circumstances.

Having been so deeply affected by violent crime against a family member, I have enormous empathy for survivors. I have spent many long nights over the past seven years supporting young people who have faced situations of violence and threats of violence following the loss of their mate. I know the anxiety and crippling panic that ensues. I can only imagine what it must be like to have experienced the physical and emotional trauma intimately, and to be faced with the prospect of the offender's supervision ending without any assurance of behavioural change, remorse or recompense. A terrifying and also very crippling prospect.

Of course, I want to see offenders in South Australia get the best possible assistance to help rehabilitate themselves. I am absolutely committed to a system formed on the principles of restorative practice. I am absolutely committed to work from within government to ensure that we prioritise justice reinvestment. But recidivism is a problem that I would like to see wiped out completely. Unfortunately, at the moment, 60 per cent of people in prison have been in prison for a prior offence. Given these recidivism rates, these laws are integral in ensuring that we are doing everything we can, firstly, to protect our community in the best way, whilst also trying to protect the rights of those who have served their sentence. I commend the bill to the house.

Mr VAN HOLST PELLEKAAN (Stuart) (17:09): I know that all members who rise to speak on this bill will do so very genuinely, because it is a very important issue. I would like to highlight particularly the contribution from our shadow minister, the member for Morialta, who as always has put a lot of time, effort and research into thoroughly representing us exceptionally well on this issue, and of course the member for Bragg knows these types of legal issues extremely well.

For my part, just to be really clear about what we are talking about, I will just go through a quick summary. The Criminal Law (Extended Orders Supervision) Bill 2015 talks about where an offender, who has either not sought or has not received parole, might come under such an order. When would this happen? We are really just talking about high-risk offenders. It would be a shame for anybody outside of this place to be under the misconception that this could be applied to just anybody. We are talking about serious sexual offenders, lesser sexual offenders, serious violent offenders and, of course, those who might breach an ESO (extended supervision order).

How would one come into place? The Attorney-General would have to apply to the Supreme Court for an ESO to be applied within the last 12 months of an offender's sentence, whether they are in prison or on parole. An application may also be made in relation to an offender who is the subject of a current ESO, so long as the application is made within 12 months of the expiry of that ESO.

The Supreme Court then of course would have to consider (and I know it would do this very seriously) many aspects, including: the likelihood of reoffending; the medical practitioner's report; the Parole Board's report; any other report required by the court; any evidence or representations put by the offender (very important that the offender would have the opportunity to put forward things from their own perspective); treatment and/or rehabilitation programs undertaken (including willingness or otherwise to participate in those programs); the extent to which the offender has complied with conditions of parole, ESO or child sex offender registrations where applicable; and, the offender's criminal history and remarks by the sentencing court.

Offenders subject to an ESO may be subject to the following conditions: the person must not commit an offence (seems pretty straightforward); the person is prohibited from possessing a firearm or ammunition or an offensive weapon; the person is under supervision of a community corrections officer (and they must obey their reasonable directions and submit to tests for gunshot residue and perhaps other tests as well); and, any other condition imposed by the court.

That is a quick summary of what exactly we are talking about here. I know that the member for Morialta and the Attorney-General have gone into far more detail. It is important for anybody who might be listening or reading these speeches later to just get a quick snapshot—that is what we are talking about. The legal argument is incredibly important. I am not legally trained and I do not pretend to be, but I think I have a fair grasp on principle and on what is right and what is wrong, and I understand very well the concept that, when a person commits a crime, is convicted and is given a sentence, if they serve that sentence then maybe they have done what they need to do. As some people put it, they have repaid society; other people might put it that they have done their time, but one way or another there is a pretty fair belief held by most people that, if you are sentenced and you fulfil that sentence, you are allowed to have a fresh start.

I certainly understand that very well, but of course there will always be situations where that is not quite enough, and that is really what we are talking about here: the situations where it is not quite enough. It is very likely that, if this bill is passed and if these ESOs become part of the world as we know it with regard to corrections and sentencing, we will not actually have that argument for too much longer, we will not have the argument to say, 'Oh well, a person has been sentenced to a certain time in gaol', or whatever the sentence might be.

The ESO could almost become part of the sentence down the track, if that is what the court chooses. The court, the judge, the magistrate or whoever it is might actually say, 'I've decided that a certain gaol term is appropriate for you and an ESO might be appropriate down the track as well.' It might well be that the judge says, 'No, that's never how it was intended to work; it's only something that would be considered in the last 12 months of a gaol term based on how the person has lived their life in prison or how they have fulfilled the conditions of the ESO.'

Of course, leave all that up to the courts down the track, but it may well be that the legal argument about whether it is appropriate to tack something on the end could, in years to come, actually disappear because they might be able to be amalgamated, but that would be the subject of another bill at another time.

We are really talking about the likelihood of somebody reoffending, the assessed risk of somebody reoffending and we are talking about community safety. When you are faced with those very difficult decisions to make and you just cannot come up with a clear-cut, easy explanation to everybody—from the offender and the offender's family and friends all the way through the community to the victim and the victim's family and friends at the other end of the scale—you have to err on the side of community safety.

If the Attorney-General, advised by, I assume, whoever would like to put a proposal to the Attorney-General that the Attorney-General go to the court and seek an ESO, if it is determined that it would be warranted in regard to ongoing community safety, then I would support that and we would support that as the Liberal opposition.

As the member for Morialta mentioned, currently, based on the prison population of approximately 2,500 people, there are approximately 100 people who would be considered for an ESO. That does not mean they would get it because, of course, it is up to the court, but there are roughly 100 people who would be considered. This would not apply to approximately 2,400 existing prisoners but, if you have to make a difficult decision, I would always want to err on the side of community safety.

In today's world, the imposition of an ESO would be far less restrictive and far less invasive upon a former prisoner than it would have been in years past. Today's technology, with GPS tracking and other means, means that I think the assumption that the broader community might have out there about what the former offender would have to go through to comply with an ESO would not be nearly as difficult to comply with as people might suspect.

This is about community safety and it is about recidivism. It is about preventing recidivism, and the member for Fisher touched on that. It is certainly high in my mind that, potentially, we could have a very significant impact upon recidivism through the use of these ESOs. These ESOs are not proposed to be established so that we can catch people. It is about encouraging people not to reoffend and it is about giving them a very structured framework within which they can be encouraged not to reoffend.

Some people need a very clear, structured framework so that they do not reoffend. It would be lovely if everybody who left prison with or without parole finished their time and said, 'Thank goodness, that's over. I've turned over a new leaf and I'll move on.' But, unfortunately, we know it does not happen and every member of this chamber, I am sure, thinks about that from time to time.

I know it is incredibly high in the priorities of the Department for Correctional Services in this state—both the people who are dealing with prison facilities and, very importantly, the people dealing with community corrections. It is very high in their minds. This is not about trying to find a way to catch people when they reoffend: it is about trying to stop them from reoffending and giving them the clear structure that they almost certainly need so that they will not reoffend.

I do actually have a fair bit of faith that the courts—advised by the Department for Correctional Services, the Attorney-General, and that whole list of people I mentioned who would be entitled to make representations when considering whether an individual person should be the subject of an ESO—would be able to make pretty good decisions. As former shadow minister for police and correctional services, I dealt with an enormous number of people who could genuinely spot the prisoners who were going to come back. They really did know. They had no hand in what the person did after they left prison, but they did not find it too difficult to identify who they thought they were going to see back in a few months or a few years. So, I do have some faith in the system that this would work.

I would also like to say that this is not entirely new. I am sure all of us are dwelling on the ethical issue of why a person who has done their time needs to be the subject of anything else other than the laws that apply to everybody else in the community. I have put my views forward very clearly on where I stand on that. We have something operating in our state, and have had for many years now, and it has worked incredibly successfully: Operation Nomad.

Operation Nomad is a program whereby, on high fire danger days and some other days as well, people who are known to be very likely to be attracted to lighting fires are watched incredibly closely. The numberplates on their cars are scanned as they go through highway checkpoints to see where they are—were they at home, were they a long way away, or were they anywhere near a bushfire discovered later to have been deliberately lit by somebody? They are phoned up to find if they are at home or if they are somewhere else.

Sometimes, somebody goes and knocks on their door to see if they are home and to actually say to them, 'Now, you need to be careful today, because we know that you will be incredibly tempted today, and you need to know that we know that and we are looking at you.' It works. It does not stop all deliberately lit bushfires—far from it, unfortunately—but that is a program that has improved the situation for the benefit of all of us by reducing the number of deliberately lit fires on high fire-risk days by known fire bugs.

Deputy Speaker, I mention that, because do you know what that is? It is almost an ESO. It is almost an extended supervision order, where a person who is known to be likely to be tempted to reoffend is, if nothing else, observed, tracked, watched and very often spoken to. It works. I know all of us can see the difference, but in principle it is just about the same thing: it is taking a previous offender who is at risk of repeating their offences and putting them into a structure at times of greater risk.

I support this bill, and I know that my colleagues support this bill. Let me say, once again, that it is not about catching people and not about putting a system in place so that when they reoffend you have got them and you can send them back to prison; it is actually about helping them not reoffend.

Mr SPEIRS (Bright) (17:24): I rise to make a few brief comments. I do not have a huge amount to say on this bill, but I did want to reiterate some of the comments of my colleagues on both sides of the house, and also, in particular, to thank the member for Morialta and our shadow minister for his very detailed contribution. I think it went a great deal of the way towards summing up the views of this side of the house on this piece of legislation. It is certainly a piece of legislation that we are happy to support, and one that we have had time to consider and to look at its potential impacts.

From my own point of view, as a student and graduate of law from the University of Adelaide, in that sort of traditional legal training, we were always cautioned about legislation that would create retrospectivity. While this is not retrospective legislation, my concern is that it does drift down that track a bit by adding something perhaps unexpected to existing sentences. Obviously we do have checks and balances in place. Hopefully we do, because these extended supervision orders will be administered through our courts system, a system in which I have huge confidence. However, the idea that there is an unexpectedness within the system and that something unexpected can be potentially added on to existing sentences does not sit 100 per cent well with me. Regardless, this is something that my colleagues on this side of the house and I are happy to support as a community safety initiative of our state government.

As the member for Stuart said, speaking immediately before me this afternoon, this does, at the end of the day, come down to community safety, and community safety has to come first. Anything that will look at increasing community safety and being more vigilant around high-risk offenders is, I guess, something that we should be mindful of. We should give due consideration to it. We have a responsibility in this house to ensure that community safety does come first, and that was something that the member for Stuart belaboured quite considerably, and I would like to repeat it as well.

I would like to take the opportunity, with this bill before us today, to consider particularly the role of our judicial system and our prison system and just canvass briefly the question: does prison work? I believe that the gap in our judicial system, in our penal system, is definitely the need for restorative justice to be built into it in much more structured ways and the need to look at ways to rehabilitate our prisoners. I do not think that happens in a systematic way.

I believe that prison should have two goals. First, it should keep our community safe. It should keep away those who might cause harm to our community and our citizens. Equally as important, I think, is that our prison system has a significant role to play. It has the most important role to play in rehabilitating offenders and getting them to a position where they can re-enter society and be able to become productive members of society again. Obviously that will not work for some people who are in prison. There are some who cannot be rehabilitated, but I guess I hold out hope in the human race, that most people can, with the right support and the right frameworks around them, be rehabilitated.

I cast my mind back to year 12 at school in Scotland. I did a subject in year 12 called Modern Studies, which was a combination of politics and sociology. I had to write a dissertation for that and I picked the topic: does prison work? I spent quite a chunk of my year 12 writing a 6,000 word thesis on that topic. It was certainly my conclusion back then, as a 16-year-old student, that prison absolutely did not work and that rehabilitation was not happening.

Obviously, I was looking at the British prison system back then but, looking through the statistics here and looking at the rate of reoffending by those who leave prison in Australia, particularly in South Australia, it causes you huge concerns when around half of those people who have left prison reoffend within one year. I think that is about the current stat, and it is obviously incredibly concerning.

The younger a prisoner is the more likely they are to reoffend in the first year after leaving prison. Unfortunately, rather than rehabilitate prisoners, our prison system often becomes a school for crime, teaching them new methods, techniques and approaches. I do not want to be a supporter of a judicial system which results in people leaving prison with more skills to become better criminals than when they first entered prison. That should not be what it is about.

What worries me most of all is the fact that, when people start to talk about restorative justice and rehabilitation in prisons, we actually find a very archaic sort of political argument emerge, that if you are too keen on rehabilitation in prison somehow you are soft on crime and you are soft on the causes of crime. I think that is really very troubling. I cast my mind back to (I think it was in the lead-up to the 2010 election ) when the member for Heysen was the leader of the opposition and she expressed quite considerable interest and passion in rehabilitation within prisons and restorative justice. The 'rack 'em, pack 'em and stack 'em' mentality of those in government—

Mr Gardner: Still in government.

Mr SPEIRS: —still in government, absolutely—seemed to suggest that the member for Heysen was soft on crime and that if she became the Premier of South Australia there would be this terrible rise in crime. I actually remember DL flyers being distributed into the street where I lived at the time that condemned the member for Heysen for her interest in this area of the law and for her desire to have more emphasis on this part of the judicial system. That really concerned me hugely because I thought not only was it backward but it was a very harsh and selfish way to conduct politics, and of course it played directly to the politics of fear and that old emotion of fear to try to scare people into voting a particular way.

I think that if you support rehabilitation services within our prison system being expanded, it should not be something that then means you are automatically soft on crime. Having a desire to fix people and to make people better, to rehabilitate people to the point where they can re-enter society, is not something that should be shied away from. It is actually, I believe, a great opportunity for those who are in charge of our judicial system and in charge of our prisons. It is something that should be embraced and not shied away from.

I just wanted to put those remarks on the public record because it is something I have a particular interest in. It certainly does not mean that I am soft on crime and soft on the causes of crime. That is something that I think will be quite the reverse: invest in rehabilitation and invest in restorative justice and you will actually get a far safer society in the longer term, and I wanted to put that on the public record today.

Moving back to the Criminal Law (Extended Supervision Orders) Bill, which is before the house today, as I said earlier, at the end of the day this is a piece of legislation which is primarily about public safety. I guess it gives the judiciary another instrument in their remedies, something they can mete out if they feel required to and if they see that there is a need to add that further level of protection to our communities because of particular high-risk offenders. I think there is still a bit of explaining to come from the government and I am sure that will occur as this piece of legislation moves into the next stages within this house but, in the meantime, I would like to close and commend the legislation to the house.

Mr TARZIA (Hartley) (17:35): I also rise today to talk about the Criminal Law (Extended Supervision Orders) Bill 2015. I also rise to support the bill. I wish to talk a little bit about conditions under ESOs and also draw upon some of the principal arguments that have been raised in relation to ESOs, then I would like to speak to the house about some financial implications of the bill and also potential amendments.

As we have heard, the bill was mentioned during the last election campaign as part of Labor's bold agenda and justice policy. Major reforms, if Labor was elected, were promised, and the provision of $300,000, I think it was, over two years was made in the 2014-15 budget. I note that the bill was introduced on 11 February 2015. Good things take time. It is already late, but that is okay. Good things do take time: I understand that.

As we have heard, this bill provides for the creation of extended supervision orders and will, in theory, allow for certain offenders (and many of these offenders would be high risk in the community) to have supervision orders placed on them at the end of their sentence. It is usually at the expiration of their parole. In a practical sense, it would almost seem that the order would actually extend the parole period for the offender, even though the situation is also dealt with where an offender who has neither sought nor received parole may also come under such an order when they are released.

There are many different categories that fall within the definition of someone who you would call a high-risk offender (and that someone, as we have heard, would fall into the category here) who may be subject to an ESO (extended supervision order). We have heard some of them may include serious sexual offenders, for example, where the top sentence would include gaol for at least five years. There are also the less serious sexual offences as well. Then you have violent offences, indictable offences, where the maximum possible sentence includes, say, gaol for at least five years where the conduct constituting the offence involved, for example, death or serious harm.

Under the bill, I understand that the Attorney must apply to the Supreme Court for an ESO (as the member for Morialta pointed out) and, in assessing an application, the Supreme Court would determine that the offender poses an appreciable risk to the safety of the community if not supervised under the order. In relation to the actual numbers that this would affect, it is my understanding that the government has suggested in a prior briefing that there may be many hundreds of offenders who may have committed the necessary offences to qualify for an ESO. However, I believe that the actual numbers would be small in this case.

A number of things would be considered, such as what is the likelihood of an offender going out into the community and reoffending; what are the medical practitioners' reports in relation to the offender; what have the Parole Board reports been like, as well as, perhaps, any other expert report that the court might deem fit; any evidence or representations put forward by the offender; and, any prior treatment and rehabilitation programs. I will talk about rehabilitation programs and why that is important in just a second. Also considered would be, perhaps, the extent to which the offender has complied with conditions of parole, or the ESO, or the child sex offender register, whatever register is relevant or applicable, as well as the offender's criminal history and remarks by the sentencing court.

There are many issues that we need to consider here. I made mention of the fact that I was talking about the different kinds of conditions under an ESO, but it really does put into question the things that can be considered. It highlights to me that what we can see here is a failure amongst this government's policies of the past, especially its policy of rack 'em, stack 'em and pack 'em. You can see the weakness of that approach to continually keep our gaols full. You can see that it is all well and good and, no, I am not weak on crime at all. I believe it is important to be tough on crime, of course, but you can see how that mentality—when one of the leaders of the party says, 'Rack 'em, stack 'em and pack 'em,' and that is the approach, that is the ethos of the Labor Party in recent times, and it is more and more towards that and less and less towards things like rehabilitation—presents certain problems, does it not?

Mr Gardner: Consequences.

Mr TARZIA: Consequences. One of them being financial and one of them being rehabilitation of the prisoner. It is a fundamental legal argument. I am not really taking a view here, but some of my colleagues to the extreme left, and to the left, would say, for example, that they might believe in things like Hegelian retribution, where punishment annuls the wrong done. So, if punishment annuls the wrong done, then why do we have ESOs? These are the sorts of arguments that people in the law profession, criminal lawyers, especially criminal defence lawyers, are raising. If punishment does annul the wrong done, why do you need ESOs? If someone has served their time, why do they need an ESO? These are the sorts of arguments that it is important to enlist here.

There are many theories of punishment. Some say you need to be more focused on deterrence, some say you need to be more focused on rehabilitation, some say you need to be more focused on isolation, some say you need to be focused on education and others talk about retribution. It is a worthy cause that we actually talk to these sorts of things and work out what is best for society and the community. At the end of the day, as the member for Bright pointed out, I think you have to be practical and balance this whole notion of the ESO. Obviously, for someone who is dangerous to start with, it is fair to say: have they done their time? Yes, they have done their time. However, for good reason, the Attorney is saying that perhaps an ESO is appropriate, and I commend him on that.

I would admit, and be the first to admit, that sometimes these prisoners slip through the cracks of the system and that is why I am prepared to support the ESO concept because, at the end of the day, it is extremely important that we provide the safest environment for our community. So, whilst the traditionalist argument of: you do the crime, you serve your time, you are let off and you are free to go, I think there are special cases where we have to be practical and put these traditional theories of punishment to the side and consider what is in the best interests of our community.

In saying that though, there will be financial implications for this. You do need to be pragmatic and consider the financial point of view. It appears, and some of my esteemed colleagues in the house may be able to elaborate on this, that the government has not made sufficient budget provision for the introduction of ESOs in any substantial way. I could be wrong there, but I would like to allow them to draw our attention to that. I understand that the 2014-15 budget made $300,000 available, $150,000 in each of 2014-15 and 2015-16, to implement new laws that will allow the courts to impose ESOs on serious offenders.

However, it has become clear that this funding would cover admin support and potential legal costs, but it would not be spent—out there in the street—on supporting the extra cost that would be incurred by Community Corrections or by the Parole Board in undertaking the supervision that is required here. In any case, it is my humble opinion that it does not look like $300,000 would cover that. The member for Morialta would probably agree that it does not look like that would be enough to cover, but I could be incorrect there.

Let's not be political, but it is highly probable that there will be a budget impact on an already stretched Department for Correctional Services if this legislation proceeds, and I acknowledge the good work of the people in our gaols, the workers, who do a good job under these tight fiscal constraints. They are restricted in many ways through these tight financial situations, so when you have a government that says, 'Let's rack 'em, pack 'em and stack 'em. The gaols are full. We do not want to build any more gaols. We want to impose ESOs, but we do not have the funding to really do so,' surely it is only going to put more stress on an already ailing system. It goes without saying that, whilst I understand where the Attorney is coming from and I support the general concept of the ESO, the final implications certainly have to be addressed.

There has been a little bit of talk about proposed amendments. I will not add any more to that. I think it has been covered already, but I hope that I have sincerely addressed some of the issues in the bill.

We would all agree that sometimes doing the time is not enough. We do need to keep an eye on these dangerous offenders and that is why I can see valid grounds for ESOs; however, we certainly need to consider those arguments of principles. If you are going to put your principles by the side then when else are you going to depart from the general principles of criminal sentencing? When else are you going to do that? It is very important. We do not want to create a precedent for too many of them, I would have thought. I can understand that there are always exceptions to the rule and there are financial implications. There are certainly financial implications that need to be addressed, and sooner rather than later, because the system is already broken in many respects. It is important that we get on top of these things straightaway. It is with those remarks that I am happy to support this bill and commend it to the house.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:47): I thank all of those members who have contributed in relation to this matter. I will address some of the questions that have been asked in a moment, I hope, but can we just get really clear who the target group for this is. The target group is people defined in section 5 as being a high risk offender. We are talking here about a serious sexual offender or a serious violent offender.

The philosophy underpinning this is basically that the corrections system and the supervision system should be trying to maximise community safety, and it is undoubtedly the case that there are some people who choose to serve their sentences and walk out of gaol—they are not on parole, they are not in any form of supervised environment, they have no restrictions on their behaviour—and yet, we know from the records of these individuals, and there may not be many of them in any particular year, that they are a risk to their fellow citizens by reason of their demonstrated track record of misbehaviour. This is about risk management.

There is another group who are, if you like, in the grade above this. These are the section 23 people, the people who are unwilling and unable to control their urges. They are in a very small group as well, but a very worrying group because if these people are released it is basically children in our community who are potentially the victims of these people.

Up until the provision of this bill, there has really been a gap between the section 23 stuff, and quite properly, because you are talking about indeterminate detention for people. There has been a gap between potentially indeterminate detention beyond a sentence and walking out of gaol saying, 'Goodbye, my period's finished, see you later,' and there is nothing in between. What this is seeking to do is to say in the case of high-risk offenders there can be something in between and that something might be very much in its appearance similar to the sort of conditions of parole; it might be.

To give a classic example, if we had a person who was a repetitive domestic violence person, who served out their sentence and was therefore no longer in any way restrained—there may or may not be a restraining order, and I guess that is a separate matter—that might be an appropriate circumstance for this type of application to be made, that that person can go about their business as they wish, but they cannot go to certain places and they cannot contact certain people.

I think a question was asked about how many people. It is really hard to say; it is very hard to say. My gut feeling is that there will not be a lot of them. Of the section 23 people, who I admit are a category above this, one or maybe two a year pop up. They are pretty infrequent propositions, the section 23 people. I obviously accept that there would be more of these people than the section 23 people, but it is virtually impossible to say how many more would be sufficiently worrying for me to have corrections ask me to make an application, and if I did make an application whether the courts could actually grant the application. It is a difficult thing to say, but my guess is that we are talking the fingers of one hand, maybe two, at most—more likely one.

Mr Gardner: Per year?

The Hon. J.R. RAU: Per year. I accept that is a very difficult thing to quantify. The interaction with this and registration as a child sex offender person: if there is any overlap at all in that, it would be a matter to be dealt with by the court and/or the Parole Board in setting conditions for an ESO. Obviously, common sense would need to bring itself to bear in that way, but there is no inconsistency between those two things.

The third question is that it has been suggested that there would be no condition in which the Supreme Court would vary or revoke the condition re not possessing firearms. I accept, on the face of it, it is highly unlikely, sitting here and thinking about it in the abstract, that they would, but all I am doing is leaving that discretion with the court. I would expect it would be exercised infrequently.

There has been a question about the requirement for the person to be afforded the opportunity to make submissions to the Parole Board if they are setting conditions. The situation here is that the Parole Board does set the conditions of an ESO and that ensures that I am notified of the intention, as is the offender. This does not make the act unworkable, but rather ensures scrutiny and opportunity for submissions to be made. I can indicate that the chair of the Parole Board did not raise any issue about that particular matter.

The Law Society apparently raised a couple of issues. Basically, we disagree with them. The first is the double jeopardy point. This is not to be characterised as a double jeopardy or a second punishment. This will exist once a person commits an offence that results in them being eligible. To get into the target zone for this sort of order, a person has to initially commit an offence and on committing that offence they bring themselves within the ambit of this legislation. A person is not receiving double punishment, in the same way that a person who assaults their partner and is punished for that can also be the subject of an intervention order to protect the victim, and so on. So, I do not accept that.

It has also been said that there are currently no DV perpetrator programs operating in Corrections. There is some suggestion that there are not enough rehabilitation places. One of the things we do have to look at as a parliament is the way we are managing this DV problem. It is something which has been an emerging problem. It has been emerging in the sense of it having been recognised. It has been emerging in the sense of it having been taken seriously. It is emerging in the sense of us getting, by reason of legislative changes, more information about the nature and extent of its prevalence.

I suspect some of it is emerging partly due to social things, not the least of which is the explosion in amphetamine abuse in our community. I do not think we can identify there really having been an epidemic of domestic violence in an abstract sense. There is a reason for this: part of it was previous under-reporting, but I also believe that part of this is actually that we are seeing the horrible consequences of the abuse of amphetamines occurring in our community. Whether or not the programs that are running are ideal for the resolution of that problem I think is a conversation we should have and should continue to have.

There has been a note that it is an offence to breach one of these and that the offender can apply for bail. I want to indicate that I will not be supporting that proposal at this stage, but I do want to talk between the houses about it. My main concern about it is basically this: one of the problems we have in the bail system at the moment is these trip-wires we have set up for bail breaches. We are getting very good at detecting breaches of bail conditions, and that is very good, but if the bail condition is, for example, 'You will be home by 6pm,' and you get home at 6.30, that is a breach of the bail condition—no question. The question is: should the consequence of that breach be indistinguishable from the consequence of the breach, 'You will not approach your former partner's house,' or, 'You will not consume non-medication drugs,' or, 'You won't consume alcohol,' or, 'You won't hang around with certain ne'er-do-wells'?

My point is that not every breach of bail is equally worrying, and we need to be careful that we do not set up a whole bunch of trip-wires in here where people, just through normal human frailties which are not risky, find themselves automatically incarcerated. To take away the discretion of the court to consider the gravity of the bail breach is a matter that I think we should reflect on because otherwise we might be kicking an own goal here. That is the conversation I would like to have with the member for Morialta between the houses. I do appreciate that generally there has been support for this bill. I do think it fills a gap in our current arrangements. I seek leave to continue my remarks.

Leave granted; debate adjourned.


At 17:59 the house adjourned until Wednesday 18 March 2015 at 11:00.


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