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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 17 March 2015.)

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) (11:03): I sought leave to continue my remarks. I probably covered off most of the points when I was speaking before, but, essentially, the proposition comes down to this: there are a small group of people who represent a risk to other members of the community and who are not currently serving either a term of imprisonment or on parole in respect of a term of imprisonment. When those people are released from prison, it is in the interest of community safety that there be some orders placed in respect of their behaviour.

We believe this is an unfortunately necessary additional opportunity for authorities to exercise some control over violent (in particular) and sex offenders, where community safety might be at risk. Just to emphasise again: we have the very extreme situation under section 23 of the legislation which says that, where somebody is deemed by a court to be incapable of controlling and/or unwilling to control their sexual urges, that person can, in effect, be detained indefinitely.

Needless to say, that is a very high bar, and so it should be, because indefinite detention without conviction of any current offence is a very, very serious matter and society should be very loath to do that. However, there are one or two people floating around the place in respect of whom that is an appropriate order, because we do know, given the way they have behaved and their complete lack of insight and contrition, that they, if released, will inevitably reoffend and do that again. That is one category of person.

We then have the people who commit offences which are of a violent or sexual nature, their behaviour is not such that they are a candidate for a section 23 order—in other words, they are not at that level of illness—and those people sometimes decide they will sit out their sentence, they will not apply for parole, they will not be released into the community, and, of course, if they did apply for parole they would be paroled on conditions and they would be supervised. What they do is they wait out their time and then they walk straight out the door with no supervision at all.

What we are saying is there has to be some intermediate option between the section 23 order, which has a person incarcerated pretty well at the Governor's pleasure, in the old language, and a person being able to walk out the door, who we know is a risk but not that much of a risk, with no supervision at all, and that is what we are trying to deal with here.

Bill read a second time.

Mr GARDNER (Morialta) (11:07): I move:

That it be an instruction to the committee of the whole house that it have power to consider new amendments related to the Bail Act 1985.

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) (11:07): I think I indicated on the record previously that I oppose this at this point in time. I understand what the member for Morialta wants to agitate, and I have indicated on the record that I am happy to speak with him between the houses. For the sake of moving this thing along, I would not accept that proposition presently, but I want it on the record that I do understand the point the member for Morialta is making. I am very happy to talk to him between here and the other place, and I would hope that he and I can come to a proposition which we will be able to mutually support in another place, as long as it is not 'improved' by then.

Mr Gardner: 'Attorney-General opposes improvements to his laws.'

The Hon. J.R. RAU: For the benefit of those hundreds of thousands reading this in Hansard, when I said the word 'improved', I made finger gestures indicating inverted commas either side of the word 'improved', and if that could be recorded in the record that would be very good.

Mr Gardner: That's the technical term.

The Hon. J.R. RAU: It is a term often used by certain individuals in another place. I think the main difference between the proposition the member for Morialta would like to agitate and my concern is this: we have seen, and it is something I am looking at now across the board, that if you have a look at some of the bail conditions that are set up for people and some of the parole conditions, you will notice that they tend to be almost pro forma documents. They go for a page or two, and they are very prescriptive documents. They might be, for example, 'You have to be home at 6pm and you can't leave before 6am, you can't drink alcohol, you can't see Billy the Goose who is your old mate, and you can't do this and you can't do that.'

Some of those conditions are more, to be fair, in the nature of guidelines than they are in the nature of, 'You upset that and you should go straight back to gaol.' I am not condoning a breach of any of these conditions, but I think all of us must understand that, if you look at those conditions, it is self-evident that some conditions are ones that you would be more concerned about, if they were broken, than others. A technical breach might be, for example, a person who gets home at 6.30 but is supposed to be home by six. That is a breach, just as much as a person who has consumed amphetamines is a breach. The person who has associated with a known criminal is also a breach, and so on. They are all breaches but, of course, the nature and quality of those breaches is different.

The main conversation I would like to have with the member for Morialta is how we can somehow make sure we do not kick an own goal here and set up a bunch of trip-wires which people fall over not quite innocently, absolutely, but relatively innocently, and then we have them back in gaol and not necessarily achieving much. That is the conversation I would like to have with the honourable member. We are going to have a break during the month of April and, hopefully, we can try to work that out.

I want to place on the record that number one, I think there is common sense in the general proposition the member is talking; and, number two, I do not want us to be in a position where we have trip-wires and we get unintended consequences which basically means that people who are not really badly misbehaving are going back into gaol automatically.

Mr GARDNER (Morialta) (11:11): I thank the Attorney for his advice on the government's current intention to vote against this contingent motion that we be able to open up the Bail Act to talk about the amendments that I spoke about in my second reading speech which the Attorney identified in his comments. I am disappointed that the government is heading down this way.

On a number of occasions in the five years I have been here, the Attorney has railed and railed against the opposition presenting amendments in the Legislative Council that have not had the opportunity for discussion in the House of Assembly. The government is within its rights to vote against opening up the Bail Act in this way, and we are not going to be churlish or too stressed about that because the amendments have been circulated. But you cannot have it both ways: if you want us to debate amendments when they are here rather than debating them there then it would have been nice to at least have that debate and put it on the record. I will take the opportunity, as the Attorney did, to talk briefly on the nature of the amendments here so that—

The Hon. J.R. Rau: The argument put by the member for Morialta is so compelling that I have changed my mind and I would hope that he appreciates that the unwritten quid pro quo is we do not have a lengthy, turgid session of 'improvement' somewhere else because we have had the improvement here.

Mr GARDNER: That was a very wise point of order and I congratulate the Attorney on taking it. The opposition looks forward to having a discussion about the amendments to the Bail Act and no other matters related to the Bail Act.

Motion carried.

Committee Stage

In committee.

Clause 1.

Mr GARDNER: Attorney, in the second reading debate we spoke a little about the numbers of people this bill is likely to affect. I think it would be fair to summarise your response as, 'Probably five to 10-ish, but it is a guess.' In your correspondence to the shadow attorney-general and me, you identified that there were 101 sex offenders in prison scheduled for release during 2013-14 who fell under the definition of 'high-risk offender'.

In addition to that, there were 624 prisoners scheduled for release during 2013-14 who were serving a sentence of imprisonment greater than five years for an offence against the person but, within that, some of those would fall into the definition of 'serious offensive violence' and some would not. Can the Attorney-General update the house as to whether there is any more specific information about that cohort of 624 violent offenders? How many of those would fall under the definition of 'high-risk offender'?

The Hon. J.R. RAU: Unfortunately, I cannot because it would be necessary, basically, in respect of each one of those people, for us to actually look at the sentencing remarks at the time of their initial sentence. We would also probably not only have to have a look at those original sentencing remarks but actually have a conversation with Corrections in respect of that person, and say, 'They started off with this sort of behaviour, which was the cause of their incarceration. How have they been behaving within the correction system? Have they been responsive to programs they might have been involved in? Have they been a troublemaker?' There are an infinite number of things so, unfortunately, that would be a very substantial exercise, and it has not happened. All I can say is I cannot give any more detail than that for the reason I have just given.

If you look at the scheme of this thing, we would basically be relying on Corrections, in particular, to actually give us a flag, in advance of one of these people coming out, by saying, 'Here is a chap who has been put in here for a serious offence. We have concerns that he is just not going to be a safe person out there.' It is a reactive rather than a proactive mechanism, in the sense that we rely on Corrections to effectively flag the individuals who are going to potentially be a menace.

Mr GARDNER: I appreciate some of these questions may be specifically relevant to some clauses, but I hope that I can have the Chair's indulgence with the Attorney's happiness to unpack these numbers here.

The Hon. J.R. Rau: Sure.

Mr GARDNER: I appreciate there are two thresholds: firstly, whether the original offence meets the certain criteria and; secondly, whether Corrections identifies a person, or the Parole Board and Attorney applies all those other criteria about what the person's behaviour in prison has been, such as their self-awareness and their efforts at rehabilitation. Putting aside the second threshold for the moment, I am just interested in the core offence.

The Attorney has been able to identify 101 prisoners convicted for serious sexual offences. This second category has the 624 people who have a sentence for imprisonment greater than five years for an offence against the person. Rather than restating my question, I ask the Attorney: without consideration of their behaviour in prison, there surely will be work done through the year if this bill passes that will identify those prisoners for whom an ESO might be relevant, or is it the Attorney-General's anticipation that Corrections is just going to look for people who they might want to put an ESO on and then check if they meet that threshold, so there is no intention of ever distilling the number from which we might check how many ESOs might come?

The Hon. J.R. RAU: First of all, those numbers I supplied in that correspondence were numbers that were supplied to my department by the Department for Correctional Services. I do not have any independent source for that material; it was Corrections.

The second point is I anticipate that, rather than Corrections going through the rather substantial exercise of analysing the whole cohort of people they have in their facilities at any one time, I suspect what they will do is say, 'Over the next six months or 12 months, who is in the pipeline to come out?'

They can then run the ruler over those people and say, 'Amongst those people, does anyone hit the first threshold?', which is a base offence which has caused them to be worthy of further consideration. They can then look at the sentencing remarks for those people and/or their behaviour in the prison system. Again, it would be a matter for Corrections how they do this, but my expectation is that that is the way they would do it: they would simply create this administrative arrangement whereby people who were of a certain category, a period of time before their scheduled date of release, would be the subject of an analysis.

Mr GARDNER: Clause 5(b) refers to four specific offences and paragraph (c) identifies 'a serious violent offender who is sentenced to a period of imprisonment in respect to the serious offence of violence'. In terms paragraph (a), that is, sexual offenders, we have a number for that. In terms of 5(d) and (e)—people who are under an ESO or are in prison for failure to comply with an ESO—we know there are none of those because there are no ESOs yet.

Clearly, the Attorney does not have a number now but, if there is any number for prisoners who are scheduled for release in the current financial year, so that we can have a better understanding of the potential cost of the system and the potential risks to other parts of the system I would appreciate if between the houses the Attorney might go back to Corrections to see if they do have a straight number of people who are either currently in prison and scheduled for release or are on parole and their head sentence is scheduled to finish under categories (i), (ii), (iii) and (iv) of paragraphs (b) and also under paragraph (c).

The Hon. J.R. RAU: I am happy to ask that question, but can I add for the record that that obviously is the first point: that is, who is a high-risk offender? It does not take into account the second point about how their behaviour might have been in prison. For the sake of the record, let us not forget that, even if those first two bars are cleared, there is, of course, the requisite application to the Supreme Court.

I do not think I am letting any cats out of the bag when I say that I would imagine the Supreme Court, in respect of its use of this power, would be quite sparing, in exactly the same way that it has made it clear that section 23 orders are to be exceptional orders. Assuming this bill passes, I guess the first few applications will be watched carefully to see how the court interprets its role. We will not really have a good idea as to how fine a filter the court is intending to put over these people fully until we have seen that roll out.

I simply make the point that, if the original catchment is, say, 100 people, of those Corrections might say, 'Having regard to their behaviour, 50 are out of the category.' Of the 50 who are left, the DPP would then say, 'Having regard to what we believe the court's approach might be, given these tests, particularly in section 7(6), we only have a hope of advancing, say, 10 of those because the rest of them we don't think are going to actually meet the standard.' However, I will try to get the primary numbers for you.

Mr GARDNER: Thank you, Attorney. I appreciate the point the Attorney makes, but I do make the further point that at the moment we know there are somewhere between 100 and 700 in that first category, that first threshold. If you are talking about the reduction in numbers, as they pass each other jump thereafter. The difference between 100 and 700—somewhere in between that is the number that it might be—is very informative for us.

Moving on slightly, one of the Attorney's significant arguments, firstly, as a policy proposition and, secondly, in his second reading explanation, was that there is a growing number of prisoners who do not seek parole and who have no experience in the community under supervision prior to the end of their parole. Indeed, I think the Attorney has suggested that some of them do so specifically with the view that they would rather not have to face the supervision of parole that might see them breach parole and go back; they would rather just serve out their term in prison and then go out.

I seek advice from the Attorney, firstly, as to whether there are any numbers or other evidence that back this up. Anecdotal evidence of course is worthy, but are there any numbers that back up these statements? Secondly, are there raw numbers of how many offenders fall into that description?

The Hon. J.R. RAU: I thank the honourable member for his question. I am not sure I said that there are increasing numbers and, if that is the impression I left, I do not wish to leave that. I do not know whether the numbers of these people are going up. I am advised by Corrections that there are routinely a number of people who, for reasons that are difficult to explain, do not ever ask for parole and literally walk out the door who fit into this category. I will ask between the houses what information I can get from Corrections about that.

In the end, the final question the member for Morialta posed, which was, 'Is there reason for not seeking parole because they are trying to evade the imposition of the type of restriction you receive on parole?' might be a very difficult question to answer in that I am not sure if these people necessarily would be volunteering their particular motives to anybody. All I can say is that I have been advised by Corrections that there are a number of people who do this. These people routinely fit into this category, and they have concerns about these people going into the community in a single jump without any supervision. That is basically the proposition.

I have thought of another matter that might be relevant to the member for Morialta's question about the 100 or 700 people. Bear in mind our first test is: do they fit into that category of offence? The second one we have talked about is whether or not they have behaved okay in prison, which is suggestive of the fact that they have been somehow rehabilitated or improved. The third point, and one we have not considered but the member for Morialta has reminded me of now, is that they may have actually said, 'Okay, we will go out on parole,' so we cannot assume that all those 700 or 100 are ultimately not going to want to go out on parole.

I think we are going to be whittling those numbers down because there will be, first, the people in that category, then the people who have not responded to things, then the people who have not asked for parole, and then the people who, after passing through all those things, are in the sort of space where they think that there can be a court order of this type. I will ask as best I can to get those numbers.

Mr GARDNER: I note that the ESO can still apply to somebody who has gone out on parole; indeed, the way that they have met the conditions of parole is one of the things that the Supreme Court can take into account. In terms of getting these numbers, I certainly appreciate the Attorney's indication.

Can the Attorney advise what costs will be incurred as a result of the introduction of the ESOs? We have talked about court costs for the hearings; Parole Board costs for their increased case load; that Community Corrections will bear a cost for their increased case load; if there are matters of electronic supervision, we have the payment to the private contractor G4S for those monitors; and for the supervision staff in the Corrections' budget for monitoring those electronic GPS monitors.

Presumably the preparation of briefs for the Attorney-General's consideration is a cost that will be borne somewhere in his department, and there are the regular Public Service costs of administration, which presumably there will not be a dollar figure on. Are there any categories of costs the ESOs will impose on the system, and what work has been done on factoring in those costs for the application of the new model?

The Hon. J.R. RAU: Again, I thank the honourable member for his question. Unfortunately, at this point in time the question is a little bit like, 'How long is a piece of string?' We do not completely know. However, I can say that there are some agencies which we would expect, whatever the possible workload that might come from this, would be capable of managing it within their existing complements and budgets. I would expect that would apply to AGD, DPP, Legal Services, the courts—

Ms Chapman: The Crown.

The Hon. J.R. RAU: Like the Crown, sorry. Whatever the workload coming out of this is, I do not imagine that it is going to be such that any of those agencies are going to be in a position where they have to make a step up in terms of their overall complement of resources.

As far as the specific budgeting for this is concerned, I am looking at the Budget Measures Statement for 2014-15, page 17: there is an explicit amount of $150,000 for the 2014-15 and 2015-16 financial years to implement these provisions. In addition to that, on page 30 of the same document, there is a related matter concerning GPS tracking of offenders, which is specifically budget for $2.25 million in the 2014-15 year, $2.167 million in the 2015-16 year, $2.2 million in 2016-17, and $2.25 million in 2017-18.

Mr GARDNER: The Attorney has identified the two items in Budget Paper 6 that I think we both discussed in the second reading. In relation to the GPS tracking, my understanding was that those 200 devices had been identified for use in a range of areas. So, the Attorney is confirming that this is one of the areas for which those new GPS devices will be available, by my reading of his response just then.

The other costs that will be in the corrections department are related to both the Parole Board and Community Corrections costs relating to the increased case load and presumably administration within the Department for Correctional Services, and for that the Attorney has identified $300,000—$150,000 this financial year and $150,000 next financial year. Perhaps if I can pose the question like this: given that there are clearly going to be costs borne by Corrections, and without wanting to do the corrections minister's job for him and encouraging the Treasurer to be more generous to his people, why has the government made provision for these costs to be met only up until 30 June next year?

The Hon. J.R. RAU: Well, that is the way it was budgeted. I think that I have mentioned this to the member for Morialta before, but the minister responsible for police and for correctional services and I have been working for a little while on looking at a range of alternatives to try to lighten the burden on Corrections of people who are not dangerous. We are working on things such as questions about giving broader options in terms of sentencing for the courts—

Mr Gardner: Two hundred new GPS trackers.

The Hon. J.R. RAU: Two hundred new GPS trackers—indeed.

Mr Gardner interjecting:

The Hon. J.R. RAU: Some of them will be hit. I guess that the point I am trying to make is that, at this point in time, it is my expectation that there will be swings and roundabouts for Corrections in terms of our doing other things which will be able to offer some relief to pressures within Corrections.

I think that our community has got to the point now where I think we are prepared to have a grown-up conversation about the whole question of corrections, imprisonment, incarceration and the range of penalties that people are offered. The sense I am getting, anyway, is that most people in our society these days do not carry within them the sort of Mosaic code view of an eye for an eye; they do not have a vindictive element to them—some do, but most do not. The broad consensus, I think, out in the community these days is that we see the prison system bit of Corrections as being a way of the community being protected from those people who are a danger to other citizens.

I think if we, as a parliament and a community, try to focus more on saying punishment and rehabilitation have a role to play but the primary consideration is that a person who is a danger to their fellow citizens is rendered not dangerous to their fellow citizens as much as any system can do, that is the priority thing. This is completely consistent with that view.

The flipside of this is that there may be some people who are inside the corrections system now, in prison, who do not represent an enormous risk to the safety of their fellows. That does not mean they are good people, it does not mean they have not committed an offence and it does not mean they should not be punished in some fashion, but whether the appropriate way of dealing with that person is to actually have them in prison I think is a conversation we need to start having. We are doing work on that. I know it is a fairly longwinded answer to your question but I think there are swings and roundabouts for the corrections people.

Ms CHAPMAN: During the contribution to the debate on this matter, I had also referred to the data that had been provided by the Attorney in his letter of 25 February 2015 in response to a request to attempt to identify an estimate of the number of offenders likely to be captured by this legislation. I must say that it was not until I had read it in particular detail that I realised that the 101 high-risk sex offenders and the 624 above-five-years imprisonment was actually data from the 2013-14 year, so that was seven months ago that that finished. I had certainly read it on the basis that the correspondence had indicated that there will be a large number of offenders that could be potentially captured by this and then gone on to provide that data that, as you have indicated, had been made available by the Department for Correctional Services.

Now that I am alert to that, I would certainly like to know from the Attorney: in this current year, how many are in that category or, in fact, whether that was a mistake in the letter and the data that was provided was for this financial year (which I had certainly read it as). The member for Morialta has quite properly raised this question of what provision has been made for them. Could that data available? If, in fact, it is the intention under clause 2 to have a delayed implementation of this bill in any way until we are able to identify what the cohort is and what costs will be needed to deal with it, we would also like to have that.

The Hon. J.R. RAU: Perhaps I could answer that quickly. As for the first one, I will ask DCS for the most current data. I do not know what it is, but I will ask them. As to clause 2, there is no mystery. It is just the standard clause that you have in these bills. It comes into operation on a date to be fixed by proclamation. If the date to be fixed by proclamation does not occur sooner or later, I think under the Acts Interpretation Act it is deemed to come into operation after two years.

Ms Chapman: What's the intention?

The Hon. J.R. RAU: I have no intention of slowing it down.

Ms CHAPMAN: So, basically, it is published in the Gazette and you are expecting in the near future—post the Legislative Council, of course, but we have obviously indicated we are prepared to support the bill so any contribution that might be made with a differing view in another place would not impede its passage. So you would expect in the next couple of months that would be progressed?

The Hon. J.R. RAU: Once this goes through, we would need to check with the Parole Board and DCS that they are ready to go. As soon as they say, 'Yes, we are ready to go,' as far as I am concerned, we gazette it.

Ms CHAPMAN: Of those we are yet to identify to which the ambit might apply, have DCS or the Parole Board indicated at this stage any number of cases which they would intend it to apply to once this legislation is passed?

The Hon. J.R. RAU: At this stage, no.

Ms CHAPMAN: So, the Attorney is not aware of any particular case, and I do not need to know any names, but any particular case of which either is seeking the sort of passage of this bill to be able to, ultimately, protect the community against?

The Hon. J.R. RAU: I have not been advised of any particular person. I want to make it very clear: as far as I am concerned, this is not an ad hominem proposition, it is about a general concern about violent people—unknown to me. I do not even know who these people might be; I do not know.

Ms CHAPMAN: Of the data that is provided to date, how many of them are women?

The Hon. J.R. RAU: I do not know, but I will take a punt here and say a small minority.

Ms CHAPMAN: In the course of the progress of this matter to the other place, could the Attorney inquire of the Department for Correctional Services how many are women? It may be that, in providing this data, they went through the male prison population. I do not know whether they have, in fact, provided it to you from the women's prison population and that is included in this data, but if it is not, I would like to have that information for the current year. Secondly, if there are any children (that is, under the age of 18 years) who are currently in this category of five years imprisonment and/or a high risk sexual offender.

The Hon. J.R. RAU: As to the women's situation, I will certainly ask for that. I will ask for the other one as well, obviously. As to the children's situation, the act does not apply to youths (that is, subsection (6)), so I would hope, anyway, that none of those numbers include youths.

Ms CHAPMAN: I will just have a look at subsection (6) because if there is a youth that is being dealt with as an adult, and there are some in that category, does it capture those?

The Hon. J.R. RAU: I should not think so; if they are a youth they are a youth. Even if it did, and I do not think it does, the number of youths who are treated as adults who are in the system at any given time would be relatively few and most of those people would be in there, one would think, by reason of the fact they would have committed a murder as a 17 year old, or something—

Ms Chapman: Or rape.

The Hon. J.R. RAU: Or rape, as a 17 year old, and they would be in there for quite a long time, but their numbers are not great.

Ms Chapman: Will you inquire?

The Hon. J.R. RAU: I will ask, I will certainly ask, yes.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

Mr GARDNER: Perhaps if I ask a general question and the Attorney can answer and I will go into detail if there is anything he misses. Clause 7(1) states:

The Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender…

Clause 5 identifies high risk offenders by nature of the category of the offence that was committed originally. The remainder of clause 7 identifies the things the Supreme Court will take into account once an application is made. So, between the offence being committed and the Attorney making the decision that he is going to apply for an ESO to be provided—we have already discussed that he is not going to make it in respect to all hundreds of the people—what is the process that takes place that leads the Attorney-General to choose to make that application for an ESO, presumably starting with the recommendation from the Parole Board or the DCS to the Attorney and then, eventually, the Attorney makes an application, what happens in between?

The Hon. J.R. RAU: My thinking on that is that it would not be dissimilar to the current process with respect to a section 23 order, which would be either the Parole Board or Corrections would write to me and they would say, 'Look, we have particular concerns about an individual. This person is expected to become free of any restrictions on whatever date.'

If they did not accompany that correspondence with some supporting material, I would obviously ask for that supporting material. I would ask for that insufficient detail so that I could then go to the Crown and say, 'DCS or the parole people have provided me with this information. Do you think, having regard to the provisions of Part 2 of this act, that this person is a candidate for an application to be made and is there a reasonable prospect of that application being successful?' I do not think it is my job to take frivolous or vexatious applications under this or any other provision. I, as the Attorney, and indeed the Crown, as the Crown, have a duty as a model litigant. So, it would only be in circumstances of having been requested by either the Parole Board or the corrections people to look at this person, having been given supporting material such as they might think is appropriate, having sought advice from the Crown as to whether or not that material exposes circumstances that have a reasonable prospect of being successful—on that advice, I would push forward.

I can say that in the past I have had information provided to me by Corrections concerning section 23 people, or potential section 23 people (these are people unable or unwilling to control themselves), and I have read that material with some considerable concern and sought advice from the Crown. On more than one occasion the Crown has said to me, 'We don't believe that there is sufficiently strong evidence in this case, usually strong evidence in the sense of there being an unequivocal psychiatric opinion, for you to be safe in making the application.' In those instances, because I have been advised that there is insufficient evidence for me to safely make an application, I have taken the Crown's advice and not made what, on their advice, might have been a frivolous application. That is the way I would anticipate this matter would be dealt with as well.

Mr GARDNER: Obviously, whether it is the current Attorney or any previous attorney, somebody is going to be coming to it with some background, experience and views of their own. Is there capacity for the Attorney—having been given advice that any SO would potentially not be guaranteed getting through the Supreme Court—to retain the capacity to take their own initiative and proceed regardless?

The Hon. J.R. RAU: The answer to that is yes. The Attorney cannot and should not abdicate the responsibility ultimately for being the determiner of whether or not these matters go forward, but the point I am trying to make is that I do not take that lightly. There may be an exceptional circumstance that I could not foresee where the Crown formed one view and I formed another and, in that circumstance, I would back my view. However, I think it is generally prudent for me to seek advice from the Crown about these matters, and I have to say that, generally, I have felt very comfortable with the advice I have received from the Crown.

Mr GARDNER: Is there any expectation or possibility of involvement from cabinet or any other function of the executive in forming this view, or is it entirely within the personal view of the Attorney?

The Hon. J.R. RAU: There is some arcane scripture about the distinction between the Attorney and everybody else in the cabinet—

The CHAIR: Surely not.

The Hon. J.R. RAU: Yes, indeed—and it goes to the fact that there are certain powers and responsibilities that are actually vested in the Attorney personally, not as a member of cabinet. Indeed, there are some matters that it would be improper for the Attorney to actually put to cabinet. Arguably, it would be alright to raise matters and seek people's advice, but not ultimately to be in any way bound by cabinet views. Without actually researching this particular topic, I suspect this topic falls into that category.

Mr GARDNER: So it would not be improper to seek advice or points of view from cabinet but, certainly, it would be improper to seek direction from cabinet?

The Hon. J.R. RAU: To give you a definitive answer to that, I would have to do my research, but I suspect that, because this is the exercise of the Attorney's personal discretion, it probably fits into that category.

Mr GARDNER: In relation to the trigger to make the Attorney seek this advice and consider the matter, we have talked about advice from the Parole Board or the Department for Correctional Services. Is it restricted to advice from the Parole Board and the Department for Correctional Services or could anybody theoretically put a case to the Attorney that an ESO should be considered for a specific offender, even if the Parole Board and the DCS have not?

The Hon. J.R. RAU: As I understand it, I can seek information from those entities of my own motion, so whilst in the normal course of events they would come to me, if the member for Morialta, for example, became aware through a constituent that an offender was likely to be released whom the constituent regarded as being a very dangerous person (hopefully for good reason) and the member approached me, it would be entirely reasonable and appropriate for me, if there was what on the face of it appeared to be a justifiable cause, to ask Corrections, 'Can you tell me something about this person?'

Or, as occasionally happens, it could be that some media issue was ventilated by somebody about a particular offender who might be coming out and, in the context of that being brought to the public attention, it may be appropriate for me then equally to seek advice from Corrections or the Parole Board or both as to the background and circumstances of that individual and to consider it that way. I would not consider that the Attorney of the day would be prohibited from doing something of their own motion or because their attention had been drawn to the particular offender by somebody other than those two institutions.

Mr GARDNER: We have talked a bit about the issues that the Supreme Court will take into consideration. Once it is established that they have committed the necessary offence, the threshold issue appears to be in clause 7(4)(b)—'the respondent poses an appreciable risk to the safety of the community if not supervised under the order'. Then, subclauses (5) and (6) immediately following identify a series of factors that will inform that decision, headed by subclause (5) which provides that, 'The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.'

Forgive me if I am misstating it. The Attorney-General in his second reading response likened ESOs more to a restraining order, in answer to the Law Society's suggestion that it was a double jeopardy type arrangement. It is more like a restraining order. In the case of a restraining order, we establish that there is a risk to an individual and impose the restraining order. Here, in relation to extended supervision orders, there is a need to demonstrate an appreciable risk to the safety of the community and then we are looking at imposing a supervision order. I think that is the Attorney's analogy. Is it the Attorney's view that any of the matters listed under subclause (6) should be given any particular weight over any others, or is discretion as to what factors carry more weight entirely within the purview of the court?

The Hon. J.R. RAU: The honourable member has, I think, touched on some very important matters here. Can I say that in subclause (4) the term 'appreciable risk' is terminology that I was particularly keen to see in here. If you start thinking about the proposition of risk—

Ms Redmond: You wouldn't get out of bed if you started thinking about the proposition of risk.

The Hon. J.R. RAU: True, you would not get out of bed, but also risk is a relative proposition and it is relative in terms of low risk, intermediate risk and high risk, but also risk of what. If the 'of what', in other words the possible consequence of the risk eventuating, is that you might get a paper cut, you might be able to accept that it had to be a high-risk situation before any intervention occurred because of the relatively minor consequence at the end. However, when you are talking about some of these child sex offenders who are in prison who have a demonstrated career—I know it is not here, I am talking about section 23 people—because the consequences of them reoffending are so horrific for the victim and because we know so much about their propensities, the risk has to be, in my opinion, given the consequences, very low indeed before you start getting into the 'risk is worrying' category.

This is trying to provide some sort of balance there, to say an appreciable risk is meant to imply it is common sense that there is risk here, not that the risk is something which is the same risk as us being hit by an asteroid this afternoon. It is not trivial risk. It is real risk, but not so risky that it is almost inevitable this person is going to do it again. That is the first element of the thing.

The second thing is in subclause (5) which echoes some of the comments I have made before. The priority here is the safety of the community; that is what we are on about. Then we get down to subclause (6). My view about subclause (6) is that this is very much like the similar provisions in the sentencing act and, when you consider what the courts have had to say about that, they basically say that there is a word for what they call this. What is it? Visceral or something they reckon they do in sentencing, some terminology where they look at it and they just get a general sense of it. It is intuitive sentencing.

Mr Gardner interjecting:

The Hon. J.R. RAU: No. The courts talk about there being a notion of intuitive sentencing, so what we are talking about in subclause (6) is basically saying to the court, 'Look, we expect you to take all of these things into account, including anything else you think is relevant, which is the last one, and balancing all of that up in your mind, and exercising your discretion. What do you think?' None of those, (a) through to (l), are meant to be the first or the second or the third of those things, but I can tell you that in drafting this I deliberately moved subclause (5) out of one of the subplacita of subclause (6) because I wanted to make it crystal clear—and hopefully if ever this comes to court and somebody reads Hansard this will be one of those eureka moments—that subclause (5) was not a little subset of subclause (6), it was a stand-alone and paramount provision.

Mr GARDNER: It is the very reason we ask these questions. Subclause (3) refers to legally qualified medical practitioners to be nominated by a prescribed authority for the purpose. Can the Attorney advise what the prescribed authority is that will determine which medical practitioner makes this assessment?

The Hon. J.R. RAU: I am advised that is the same as the provision that applies to section 23 and I understand that means a forensic psychiatrist. That is the intention anyway. That is what it is meant to mean.

Mr GARDNER: The Attorney may have just answered the next question I was going to ask, but for clarity I will ask it anyway: are there any other similar pieces of legislation where such advice is sought with weight to be given in the Supreme Court?

The Hon. J.R. RAU: Section 23; and I think the Chief Forensic Psychiatrist, to be absolutely specific.

Mr GARDNER: That answers the clarity question then. The Law Society argues that the prisoner should have the right to be examined by a medical practitioner of his or her choosing and that that examination should be taken into account in the same way as any other examination, so presumably given equal weight to an examination done by the Chief Forensic Psychiatrist. Does the Attorney-General have a response to the Law Society on that matter?

The Hon. J.R. RAU: The answer is that we have basically picked up the same process as is in section 23. What we have actually said here is that it is up to the court whether it wants to have one or more opinions; that is up to the court. I know this might sound a bit odd, but in a way these proceedings here and under section 23 are quasi inquisitorial proceedings, if you wanted to characterise them that way, because it is really an inquiry about an objective fact.

The Attorney or the Crown is there as the applicant, and the prisoner or the accused person is there as the respondent, but it is a bit difficult to characterise this in the normal interparty adversarial way, so my expectation is that the court will take a significant role in making sure that the objective evidence it needs to make it satisfied that it is making an appropriate order is in its hands.

Mr GARDNER: I refer to clause 7, subclause (6)(e):

(6) The Supreme Court must also take…into consideration…

(e) any relevant evidence or representations that the respondent may desire to put to the Court;

Presumably that would include any medical examination that the respondent seeks. The Attorney confirms then that that would be capable of being taken into consideration by the court, and the court would give it the weight that the court sees fit?

The Hon. J.R. RAU: Absolutely correct.

Clause passed.

Clause 8.

Ms REDMOND: Clause 8 is relatively straightforward, simply setting out that the Attorney-General and the person to whom the application is going to apply are parties to the application. My question is simply, since it does not say that only they are parties, it seems to me that there is a capacity for the court to allow other parties, for instance, a victim or the Commissioner for Victims' Rights or someone like that to apply to the court to be parties to be heard in relation to these orders. Can the Attorney advise whether that is the intention of this section?

The Hon. J.R. RAU: My intention was that it should involve the Attorney and the applicant. I did not intend that other people would be there, other than if they were able to satisfy the usual rules that the court applies to interventions. It may well be that in a particular case, an individual may be able to meet those rules. If they do, again that is a matter for the discretion of the court, but I was not by that seeking to intend to create an automatic right for anybody who is a victim, or the Commissioner for Victims' Rights, to bob up and say, 'I'm here; I've got a right to be heard.' I would expect that to be a matter which is particularly in the hands of the court. It may or may not be that, for example, a particular victim of a particular offender may be able to pass that test, but that would be a matter for the court.

Ms REDMOND: Just to confirm, I am correct in my reading of that section then, that whilst they are the two people who are automatically involved—the Attorney and the person about whom the extended supervision order is sought—it is, as in any other court case (or virtually any other court case) open to any person to apply to the court and if the court is satisfied that that person meets some threshold of sufficient interest, then they may be heard in relation to these applications?

The Hon. J.R. RAU: That's certainly my intention.

Clause passed.

Clause 9 passed.

Clause 10.

Mr GARDNER: The Attorney earlier identified that many of these sort of parole orders, I think, were conditions almost in a standard form and, presumably, there is some suggestion that ESOs will similarly be of a standard form. Clause 10 identifies a series of conditions that will, presumably, always be there and then further identifies any other conditions the court thinks fit and specifies in the order, and then there is further provision for the Parole Board to impose further conditions. Can the Attorney outline what he considers a typical set of conditions under an ESO might look like, conditions that a court is going to impose?

The Hon. J.R. RAU: When I said there are relatively standard conditions I might have been misleading but I was speaking in particular about bail. In the case of these things, because it will be crafted by the court, I would expect that the orders made in respect of each individual would be quite specific and relevant to that person's circumstances. To give some examples: it might include references to that person not approaching certain places where victims are known to be; it might involve that person, if they have a history of alcohol or substance abuse, containing their usage of those substances; it might contain other restraints in terms of communication with particular individuals, whether that be association with criminal people or association with people who have been victims or family or friends of victims—that sort of thing.

Mr GARDNER: In the second reading debate we also discussed clause 10(3) a little bit, particularly regarding firearm prohibition. I think the Attorney agreed that he could not imagine a circumstance whereby it might be appropriate for somebody who has an ESO on them to have access to a firearm. Given that the Attorney is the one who will be making an application for people who should fall under ESO supervision in the first place, having been convinced that an offender is so dangerous, so likely to repeat their sexual or violent offence that he applies to the Supreme Court for a supervision order to be placed on them, can the Attorney imagine there being any possibility that he would ever want to seek an ESO on somebody that he would be relaxed about whether they had a firearm or not?

The Hon. J.R. RAU: Again, the member for Morialta makes an excellent point. Personally, I have an abhorrence of firearms and I cannot foresee any circumstance, quite frankly, in which anyone should have a firearm—I am about as far away from Charlton Heston as you can possibly get on this topic—but this leaves it entirely to the court.

I am happy to talk to the member for Morialta between here and elsewhere. I can only assume that that might be there because I thought that potentially some 'improvement' elsewhere might be offered by those of a rural disposition to enable farmers who are under control from this reason to shoot rabbits or something. I am pretty relaxed about whether this is removed because I thought it was safe enough to leave it to the court. There might be some weird extenuating circumstance that I cannot think of, but if the member for Morialta would be happier removing this so that there is no possibility at all of any of these people having firearms, he will not have a big argument from me.

Ms REDMOND: Just on that topic, it seems to me that what you have done in the beginning of the bill is to define the two basic sorts of people who are going to be affected by this legislation as sexual offenders and violent offenders, but then clause 10, particularly the provisions relating to the firearms, applies to the sexual offenders just as it applies to the violent offenders.

I can understand an argument that if someone over whom you are going to seek these orders has had a background of violence, then automatically you might want to say that that person should never have a firearm. However, if someone has been a sexual offender who has had no history whatsoever of violent behaviour in the sense of firearms, it seems to me to be a little odd that your legislation requires that that person automatically be prevented from doing something which others in the community are automatically entitled to do, whether it be to shoot rabbits on their farm, to belong to a shooting club, or just because they want to have a firearm and have target practice, or whatever. Why is it that all offenders under your legislation are going to be captured by that particular provision, rather than defining that someone who has a violent history automatically has that condition whereas someone you are seeking an order for over a sexual offences history does not?

The Hon. J.R. RAU: I think the member for Heysen and the member for Morialta are both contending for the alternate propositions around the merit or otherwise of subclause (3). The member for Heysen makes a good point: if it is a sex offender who has never had any history of violence and they want to shoot rabbits, the court may well say, 'Fine.' However I have to say, in every piece of legislation, I do not apologise for having a strong bias against firearms.

For the person the member for Heysen is talking about, it might be that that is enough to allow them to continue to use a firearm. I do not have any problem with there being a presumption against the possession of firearms for people generally, quite frankly. However, if there is a sex offender who can prove that they have an excellent record with firearms and they satisfy the court, then fine, they can have a firearm.

Ms REDMOND: Just on what the Attorney has just responded, if he were to say that everyone in the community was going to have a prohibition on firearms, there is no problem from my point of view; I would be all in favour of that. My difficulty with this is that you are taking a particular group of people and saying, 'You are not allowed to have a right that everyone else in the community has.'

When you go through them, there are not only the provisions of clause 10 and the prohibition from possessing a firearm, there is subclause (3), of course, which says that the court may only vary or revoke the condition if satisfied that there are cogent reasons for doing so, and then if you go over to clause 13 it provides that the Supreme Court may only vary a conditional order or revoke an order if an application is made. Furthermore, the person wanting to make an application must, first of all, get the permission of the court to even make the application to simply be in the same position as someone who has no extended supervision order. As I said, it just seems to be (pardon the pun) overkill to prevent someone who has a completely unrelated offence from possessing a firearm if other people in the community are entitled to hold a firearm.

The Hon. J.R. RAU: All I can say is that whoever is ultimately going to be subject to one of these orders is not going to be just your average person. There will be relatively few of these people, and they will have committed some pretty horrible crime at some point in time. I am sure that if there were a sex offender, who would have to be a serious sex offender—

An honourable member: It's inherently a violent crime anyway.

The Hon. J.R. RAU: Yes, some would argue it is an inherently violent act in any event. Leaving that to one side, that sex offender, who for some reason had a very good reason to have a gun, could have one if the court were satisfied that they had a good reason. Let us leave that to the court. I would even go so far as picking up the proposition from the member for Morialta, if indeed that was a proposition he was putting to me, that we could delete subclause (3) altogether, because I am happy for nobody to have guns.

This is just there as an escape valve in the event of there being some circumstance that I cannot foresee where it is necessary for a person to have a firearm. I think, quite frankly—again, this is just my personal view—an individual saying, 'I want to have a firearm because I want to have a firearm—

Ms Redmond: Well, the rest of us can.

The Hon. J.R. RAU: Well, that does not add to the sum total of human happiness in any way.

Ms REDMOND: I will move off from the firearms because my proposition is simply that the rest of us can have a firearm. I have no desire to have a firearm, but I am entitled to apply and, as long as I comply with the conditions, I am allowed to have one, and that should be the case for people who do not have a firearms history, in my view. As I read clause 10, particularly subclause (1), it says that 'the following conditions apply,' so they must apply; it is not 'may apply' but these 'conditions apply'. Paragraph (a) states, 'a condition that the person subject to the order not commit any offence'.

The definitions clause does not show 'offence' as being anything. Given that we live in a state where the police can occupy their time picking up people for jaywalking, the effect of the clause at its worst seems to me to be that someone who is subject to one of these orders could be in breach and therefore hauled before the Parole Board for jaywalking or some other trifling offence. I just want to confirm that that is indeed the case.

I know that the Attorney will likely say, 'But that's not what's going to happen, and that wouldn't really be it,' but the wording of the clause actually says that the person must not commit any offence and that if they breach any of the clauses they can be hauled before the Parole Board under whatever clause it is further on. Is the Attorney able to confirm that?

The Hon. J.R. RAU: Yes, I am. I can say that terminology apparently is entirely consistent with the current terminology used in relation to good behaviour bonds. If a police officer were so vigilant—if that is the neutral term—as to haul a person before the Parole Board for jaywalking, I would expect the Parole Board to use common sense in determining whether or not that constituted a matter they wished to be spending their time on. However, if we introduce something like anything other than a trivial offence, we then get to the point of asking, 'Okay, what's a trivial offence and what's not a trivial offence?' I would rather leave that to be sorted out on a case-by-case basis by the Parole Board.

Ms REDMOND: Clause 10(1)(d) states that another compulsory condition of each of these extended supervision orders is that the supervision be conducted by a community corrections officer and that the person has to obey the reasonable directions of the community corrections officer and then submit to such tests, and it is not restricted to but including gunshot residue tests. That seems to me to be potentially quite onerous. Can the Attorney tell me what the qualifications of the community corrections officers will be, given that they are going to have an enormous amount of power to make life an utter misery for someone who has already served their sentence in full?

The Hon. J.R. RAU: They are basically the same people who are community corrections officers now. I think a point does need to be made here; that is, the reasonable directions of the community corrections officer under paragraph (d)(ii) must be viewed in light of the actual terms and conditions of the order, so 'reasonable' in order to give effect to the restrictions placed upon the individual under the order made by the court. It does not mean reasonable at large.

For example, if the court said that a person must not approach a victim, or a place or something, it would be reasonable for the community corrections officer to give directions which were pertinent to that particular proposition, such as, 'Don't live next door to them,' or, 'Don't keep riding your bike past our house every day and waving at them,' or whatever the case might be. That is what it is intended to capture.

Ms REDMOND: I appreciate that the Attorney says 'reasonable directions', but compliance with the order as under paragraph (a) means that, if they commit any offence, they are in breach. Any offence, whether it be jaywalking or kicking a garbage can or creating too much noise or whatever it might be, which most of the community at large may consider quite trivial, is nevertheless within the ambit of a community corrections officer, because it is only reasonable that he require the person who is the subject to the extended supervision order to obey the terms of the order absolutely. The terms of the order say at the very beginning, 'you must not commit any offence'. Is it not the case that there is potential for a community corrections officer, who had a particularly warped view of what his obligations might be, to make life a misery for someone who is the subject of one of these orders?

The Hon. J.R. RAU: No more or less than is the case for a parolee today. I make one other point, too. Just bear this in mind. As to a person being subject to some of these orders, I know people are saying this is an infringement of their rights and so forth, but just bear in mind from the community's perspective the difference between that person behaving in a way which leads to their reoffending and re-entering the criminal justice system and not doing so might well be the presence or absence of one of these orders. They should not be viewed completely as being some sort of abhorrent, oppressive blanket dropped over this individual which does no good for that individual. I would argue, quite the contrary, that some of these individuals may actually be prevented by reason of these orders from reoffending and, therefore, re-entering the criminal justice system. It might actually be of considerable value to the individual concerned as well.

Clause passed.

Clause 11.

Mr GARDNER: Clause 11 is the Parole Board, but I suppose this could have been a question at clause 10. We have spoken a little bit about GPS tracking devices. In relation to a condition imposed by either the court or the Parole Board, for what duration does the Attorney anticipate that a GPS tracking device might be imposed on somebody? These orders can last for up to five years. A condition theoretically can go for that long. Is it more the intention of the legislation that if GPS tracking is to be involved it be for a shorter term as would normally be the case under intensive bail or other current arrangements?

The Hon. J.R. RAU: Again, first of all, it might be a matter that is determined by the court in the sense that the court may be persuaded at the time of the making of the original order that there is sufficient evidence before it to be able to make an order in respect of that matter. Alternatively, it may be left to the Parole Board to determine the duration.

Mr GARDNER: In relation to clause 11(4)—and this was somewhat answered in the Attorney's response but for the sake of clarity if he could assist—the Parole Board cannot exercise its powers to impose conditions unless the person, the defendant, the respondent and the Attorney-General have been afforded reasonable opportunity to make submissions to the board on the matter and the board has considered any submissions so made for clarity's sake. The Parole Board identifies to the Attorney and the respondent that they are going to be considering their case, submissions come in, the Parole Board considers all of those as they would any current matter and makes its determinations. They do not have to flag to the Attorney or the respondent what conditions they are thinking about in advance: they can just have that consideration all in one discussion and then impose those conditions and move on.

The Hon. J.R. RAU: I do not think they have to, but I would guess that from time to time the Parole Board might find it convenient to put a draft or suggested proposition to the parties and say, 'Look, do you have any particular violent objection to this for any reason', but that would be a matter for them.

Mr GARDNER: I am pleased to hear it. A bit earlier in clause 11(1)(c)(iv), in relation to conditions the Parole Board might apply, it says that they can prohibit or restrict the person subject to the order from 'engaging in specified conduct or conduct of a specified kind', and subclause (vii) refers to 'engaging in any conduct of a kind specified by the Board'. I do not mean to make light of this, but is there any distinction between 'specified conduct', 'conduct of a specified kind' and 'conduct of a kind specified by the Board', which are all listed as three separate things they can deal with?

The Hon. J.R. RAU: Potentially, yes: 'specified conduct' might be, for example, consuming amphetamines or whatever it might be. Likewise, 'conduct of a specified kind', I guess, is capable of traversing the same ground, so the two undoubtedly have some overlap, but whether they are completely coextensive is an argument that philosophers could muse on for a long time. On the last one, yes, the Parole Board is able to do things that it considers relevant.

Mr Gardner: 'Conduct of a kind specified by the board' as opposed to 'specified conduct by the board' or 'conduct of a specified kind as determined by the Board'.

The Hon. J.R. RAU: I agree that there is a lot of specifying going on, but for the sake of completeness we are specifying as much as we can.

Clause passed.

Clauses 12 to 18 passed.

Clause 19.

Mr GARDNER: I would like to specify that in his conduct the Attorney-General answer me. In relation to clause 19, the opportunity for appeal cannot be commenced after 10 days from the date of the decision against which the appeal lies. The Law Society argues that should be 21. I appreciate that there are other matters that have the 10-day limit, but can the Attorney identify why he has chosen the 10-day limit this time rather than the Law Society's preference for 21 days?

The Hon. J.R. RAU: We have simply replicated section 23's equivalent provision. If the member for Morialta wishes to have a talk about that, I am open to discussing that, although in general terms I think the sooner the person identifies they have a problem with it the better. That is there because it makes this consistent with section 23 in that equivalent respect.

Clause passed.

Clause 20 passed.

Schedule 1.

Mr GARDNER: I move:

Amendment No 1 [Gardner–1]—

Schedule 1, page 12, lines 7 and 8—

Heading to Schedule 1—delete the heading to Schedule 1 and substitute:

Schedule 1—Related amendments

Amendment No 2 [Gardner–1]—

Schedule 1, page 12, after line 8—After the heading to Schedule 1 insert:

Part 1—Preliminary

A1—Amendment provisions

In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Bail Act 1985

A2—Amendment of section 10A—Presumption against bail in certain cases

Section 10A(2), definition of prescribed applicant—after paragraph (c) insert:

(ca) 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; or

Part 3—Amendment of Correctional Services Act 1982

These amendments have been filed and circulated and we have had some discussion, so I will not use the full half an hour remaining before the lunch break. To put it simply: as we have discussed, the Liberal Party will be supporting the legislation for extended supervision orders.

The purpose of the extended supervision order is to improve community safety. The proposition is that the community is at risk while people of this nature who have committed these heinous crimes and are the worst of the worst, with the exception of those who have been identified as being so spectacularly dangerous that they are in indefinite detention, pose a considerable risk within the community. They pose a risk to individuals within the community, to victims of crime, to former victims of these offenders, and to potential victims. These are the five to ten people a year who the Attorney identifies are at such risk, who have such lack of insight into their behaviours and pose such an ongoing risk that we seek to have this ongoing order restraining their behaviour or supervising their conduct in the years ahead.

If the Parole Board, upon receiving advice that somebody has committed such a breach of their order, decides that it is worth bringing them back in off the streets and charging them with the offence under the act, that will have a maximum penalty of five years in prison and leave them under the category of a high-risk offender going forward. A high-risk offender is categorised as such if they have been convicted of breaching their order or, indeed, that they have an extended supervision order on them. There is no question that there is a small category, and they are effectively the worst of the worst. If they commit an offence or they breach their condition to the point where the Parole Board brings them in, there is that long period of time before their court hearing happens.

If the Parole Board drags you in while you are on parole, you go back to gaol if they consider the breach of your condition to be to the point where you have met that threshold. The Parole Board does not have that opportunity in relation to these guys. The point is: if you are going to have this stick then it has to be something that the Parole Board can utilise. The opposition amendments mean that the presumption then becomes against bail. In the Bail Act, under division 1, 10A—Presumption against bail in certain cases, there are around 15 or 16 different categories of offence, whereby the expectation is against bail. Discretion is still left with the judge to deal with if they have a cause to grant bail.

The discretion remains, but the presumption is reversed against bail, and this gives the Parole Board the opportunity to actually have some control over these individuals, who the Attorney has told us are effectively the worst of the worst. Therefore, for the benefit of community safety, we consider that the opposition amendments will strengthen the provisions. The minister has said that he is not going to support them in this house, and that we will have time between the chambers to chat and to come up with something that may well manage the situation. I encourage the Attorney and the government to accept the inevitable: that movement must be made and these amendments are the best way forward.

If the Attorney comes back with a proposition that will address the substance, then we will certainly have a look at that between the houses. But, in the meantime, frankly I think this amendment is the one that is going to fix the matter that needs to be fixed.

The Hon. J.R. RAU: Inevitable or not, I have never suggested that the member for Morialta has brought his proposition here lightly or without due consideration, or that it is without merit. I have never said that. It might be that the solution to the problem is something like this: we say, perhaps, that it is a serious breach of the order which invokes the presumption against bail. We might be even more particular and say it is a serious breach of the order in the nature of a sexual offence or an offence of violence, for instance, which will immediately trigger a presumption against bail.

My concern is us sweeping up relatively minor—if we get back to the original proposition: what are we trying to help the community be protected from with these people? Answer: they are sexually predatory or they are randomly violent or excessively violent. If the member for Morialta and I can come to a proposition where there is a presumption against bail if any of these people under these orders revert to type, I am relaxed about that. I am fine about that.

I am just worried, though, that if we just say any breach of any condition—because bear in mind some of those conditions that the court might put around these people are more in the nature of prophylactic provisions to prevent them encountering certain circumstances or dealing with certain people and, whilst they might be important, the mere transgression of one of those on an isolated occasion does not mean that person has gone off and hit somebody or sexually assaulted somebody or whatever the case might be.

I am happy enough with a proposition—and I think it is really a matter of whether we can find some words that capture the point—that, if the people who are under these orders commit offences or behave in a way which represents a danger to the community or a manifestation of them continuing their bad behaviour, I am okay with the presumption against bail. I am okay with it. I just think we need to separate that from what might be a rather technical and insignificant (insignificant viewed from the perspective of how much harm it does to the public in and of itself) breach. I am happy to have that conversation.

Mr GARDNER: Just briefly, I note the Attorney's comments and look forward to chatting about it with him further. But I do suggest to the Attorney that he dwell on the answer he gave to the member for Heysen earlier, which was in relation to her concerns about a minor offence being captured in the breach of the condition which would lead to the charge in the first point. The Attorney's answer was that he has confidence in the Parole Board to make a common-sense point of determination on that matter. I have confidence in the Parole Board to do the very same thing and, from that point of view, I have every confidence that the Attorney's concern is redundant. So I hope that in the coming weeks he will come to that view also.

Amendments negatived; schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

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) (12:38): I move:

That this bill be now read a third time.

Ms REDMOND (Heysen) (12:38): I do wish to put on the record my opposition to this bill. It is not that I am opposed to what is trying to be achieved by it; I agree that if there are people who might pose a risk, particularly of reoffending, in these violent or sexual matters, then it is important that the community be protected and indeed the individuals who could be the victims be protected from such offending. However, this bill, to me, is fundamentally flawed because it breaches the very essence of our structure and our system of the separation of powers.

What this bill does is enable the Attorney, an elected person, to reach across the barrier from the government and interfere in what should be part of the judicial process. It seems to me we already have a comprehensive set of rules in the Criminal Law (Sentencing) Act, and I will refer to some of those in my comments. I think it is important to understand that when someone is being sentenced, by and large our sentencing system says, 'Look, people should only be imprisoned, incarcerated, where it is a serious offence and there is no other option'—to put it in layman's terms.

In terms of what the actual Criminal Law (Sentencing) Act says, first of all, section 6 states that the court, in determining sentence, is not bound by the rules of evidence; it may inform itself as it thinks fit; and it must act according to equity, good conscience and the substantial merits of the case. Section 7 goes on to provide that the prosecutor must provide to the court details of the victim's injury, and section 7A provides that there can be a victim impact statement, and before determining the sentence for the offence, the court will take account of that.

Under section 7B, there can be community impact statements and these, in turn, are subdivided into neighbourhood impact statements as well as social impact statements in case an offence has an impact on particular neighbourhoods or particular categories or groups of people. Then there is an obligation or an option for a court to consider presentence reports and that will enable the court to consider reports on the physical or mental condition, personal circumstances and history of the defendant. There are a number of other provisions but, primarily, we then get to the actual sentencing consideration.

With all that information before it, section 10 of the Criminal Law (Sentencing) Act lists the things that have to be taken into account, and the court must have regard to these matters in determining what the sentence should be:

the circumstances of the offence;

other offences (if any) that are to be taken into account;

if the offence forms part of a course of conduct consisting of a series of criminal acts—that course of conduct;

the personal circumstances of any victim of the offence;

any injury, loss or damage resulting from the offence;

if the offence was committed by an adult in circumstances where the offending conduct was seen or heard by a child—those circumstances;

the degree to which the defendant has shown contrition for the offence (including any actions to make reparation);

the degree to which the defendant has cooperated in the investigation;

the deterrent effect any sentence may have on the defendant or other persons;

the need to ensure the defendant is adequately punished for the offence;

if a forfeiture of property is, or is to be imposed, the nature and extent of that forfeiture;

the character, antecedents, age, means and physical or mental condition of the defendant;

the rehabilitation of the defendant;

the probable effect any sentence under consideration would have on dependants of the defendant; and

any other relevant matter.

Having put all those down, the court is then obliged to consider:

the need to protect the safety of the community;

the need to protect the security of the lawful occupants of their home from intruders; and

the need to protect children.

There are also other specifics about bushfires, and the court must then have regard to any other legislation such as the Child Sex Offenders Registration Act and so on. It can also take into account the fact that the defendant has or has not participated, or had the opportunity to participate, in an intervention program, or has performed badly or failed to make satisfactory progress in such a program.

I will not go on with the rest of the act, but there is an entire act, and it is a comprehensive act, setting out the provisions for sentencing for criminal offences in this state. As I say, my difficulty with this legislation is not with what we are aiming to achieve with the, according to the Attorney, five or 10 people a year who may be released and may still pose a threat but, because they have completed their sentence, are not going to come before the Parole Board. The need to protect the community from those people is understood and accepted.

My difficulty is with the fact that this is the Attorney reaching across what I see as something that should be an impenetrable barrier; that is, allowing the government to reach into the judicial function of the state. The separation of powers, for me, is sacrosanct, and I believe that there is a great danger in any government and in any parliament deciding that they will allow an elected person to interfere in the judicial process.

The Attorney could come at this matter by saying, 'We are going to amend the Criminal Law (Sentencing) Act, and we are going to put in a provision to say that, when these people who we consider high-risk offenders have done the crime, been found guilty, done the time and have not applied for parole come to the end of their sentence, we are going to allow the court to reconsider.' But the fact that the Attorney is authorising himself, by this legislation, to reach across that barrier into the judicial precinct to me makes this legislation fundamentally flawed and something that this parliament should not enact.

I have seen it happen before with this government over the last 13 years. We have in this state an act that sets up the Office of the Director of Public Prosecutions. If you look at that particular legislation, you will see that it says, in its formulation, that the Director of Public Prosecutions is independent and not subject to direction from the government.

However, in the case of Nemer, you may recall that this government decided that it would direct the Director of Public Prosecutions to appeal a decision of the court. Notwithstanding that the Chief Justice felt as I did that the act was quite clear and that the Director of Public Prosecutions was independent and not subject to the direction of the parliament and the Attorney-General, the fact is that this government chose to direct the Director of Public Prosecutions. The matter went to the Full Court of the Supreme Court and, by majority, with the dissenting judgement of the Chief Justice, it was found that, yes, this government can direct the Director of Public Prosecutions as to who should have their sentence appealed.

As far as I am concerned, that is fundamentally wrong. What it leads to is the potential for political prisoners. I know that people will find this a nonsense and will say, 'But that is never going to happen here,' but this for me is a fundamental principle that should never, ever be breached. The government and, in particular, the Attorney-General should have no part in the judicial process and should not be able to interfere in the judicial process.

This bill, in particular, authorises the Attorney-General, and no-one else, basically, to make an application. So, someone has done their crime, been found guilty by a court, been subjected to all those considerations that I put on the record about the Criminal Law (Sentencing) Act, and have had all of that considered when they have been sentenced. The person has been sentenced, put in prison and has served the entirety of their sentence, so they have paid the penalty set by the judiciary as to what their crime warranted. They have paid it in full, and then the Attorney, as an elected person, can reach across that barrier and say, 'No, you are not out yet,' and then put that person under a supervision order, which is to be effectively carried out by a community corrections officer who could be particularly nasty in the way that they deal with the person and could be psychiatrically terribly damaging to the person.

I believe that what is trying to be achieved is appropriate, but the mechanism by which this government is choosing to achieve it is entirely inappropriate because of the fact that it is authorising the Attorney-General to interfere in what should be a process completely separate from anything that he can reach. As I said, I have no difficulty with the intention of the legislation in protecting the community but I believe that we should be looking at a better way to do it, by amending the Criminal Law (Sentencing) Act, by amending provisions relating to the Parole Board or whatever it might be. However, it should not be something that the Attorney-General is able, of his volition, to authorise, because it is a fundamentally flawed proposition that there should not be maintained an absolute barrier and an absolute separation of powers in this state.

Bill read a third time and passed.

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