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

Statutes Amendment (Home Detention) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2015.)

Mr GARDNER (Morialta) (12:00): I am pleased to speak on the Statutes Amendment (Home Detention) Bill and put a point of view on behalf of the opposition. The government engaged in a discussion paper process, which they called 'Transforming criminal justice: better sentencing options'. They released that paper in June 2015, and they then had a community advisory panel, organised by an organisation called democracy Co, which had 19 people selected as a representative sample of the community to have a look at it, and they had a key partners workshop with stakeholders.

On 10 September, one of the outcomes was that the Attorney-General indicated that legislation would be introduced to provide greater flexibility in the use of home detention as a sentencing alternative and to reduce existing restrictions surrounding home detention for suitable prisoners. This bill really deals with those two aspects separately. They both deal with home detention, but they are in two different bills and so there are two different processes and procedures that have been set up.

There are a number of positive things that this bill does and there are some that the opposition strongly believes need improvement to warrant the approval of the parliament. We hope that the government will take our suggested amendments on board and, indeed, support them. A number of matters probably might be dealt with in questions the Attorney can either deal with in his second reading response in 20 minutes' time or, alternatively, we can deal with them at the committee stage. I indicate to the Deputy Speaker that we will probably need a committee, especially given that there are amendments on file from the opposition, and I believe the government also has an amendment that we will be dealing with.

As the Deputy Premier indicated in his press release on 10 September, the bill is supposed to provide for greater flexibility in the use of home detention, presenting an alternative sentencing option for low-risk and nonviolent offenders. That is the Attorney's claimed intent for the bill. The bill actually allows for a broader application, in that it does not exclude nonviolent offenders. The only overriding consideration is whether they are considered to be low-risk.

Of course, we have had submissions to this parliament before—indeed, the government put forward a proposition just months ago in relation to parole laws—that somebody who might have committed an offence of extreme violence and murder may well be considered to be a low-risk prisoner. If the circumstances that led to the murder no longer exist, sometimes those prisoners can be assessed from a security point of view as low risk.

I do not think I am just presenting the Liberal Party's view here. I am fairly confident that I am presenting the entire community's view that it would be inappropriate for a violent offender, such as a murderer, to be given the opportunity to serve their sentence in home detention rather than in gaol. I identify that the Deputy Premier did initially claim that this was just for nonviolent offenders, so when we get to the committee stage we will have amendments to exclude violent offenders, murderers, terrorists, rapists and other serious sexual offenders, from having the opportunity to serve their sentence in home detention rather than in prison.

In relation to the things that the bill does, it amends the Correctional Services Act to expand the home detention program in the following ways: it removes the requirement for offenders to have served 50 per cent of their sentence before being eligible for home detention, and it removes the requirement that offenders can only serve 12 months on home detention.

I think it was the Law Society (I will check in a moment) that identified that, currently, home detention provisions are available in our community only for those prisoners who are identified by the CEO of the Corrections department as potentially being able to serve the end part of their term in prison. I think it was the Law Society that identified that that largely is an administrative arrangement and, of course, there are significant restrictions.

It is restricted to less than 50 per cent of the sentence duration and for no more than 12 months, and there are further restrictions capable of being placed on the Corrections CEO by way of ministerial direction. Presently, that ministerial direction excludes murderers, excludes terrorists and excludes rapists and other serious sexual offenders. Again, returning to the amendments we propose to move to the court sentencing aspect of the bill, we would propose that that instruction that is given by the minister to the Corrections CEO should in fact be imposed by the act on the courts as well.

This amendment, by removing the requirement for offenders to have served 50 per cent of their sentence, and removing the requirement that offenders only serve 12 months on home detention, will allow a greater number of offenders to be eligible for home detention. Whether this is its purpose, or whether there is a more altruistic philosophical purpose, I will leave for the government to explain, but it will potentially relieve some of the burden of the current prison overcrowding situation the government has to deal with. There is a financial benefit to the community of that because, whether or not there is electronic monitoring on the prisoner in home detention, there is of course a level of supervision, but that level of supervision has a significantly lower financial cost than having that convicted offender in prison.

Potentially, there are also opportunities to give offenders the opportunity to reconnect with their community through continued employment, study or indeed just through the fact that they are spending time with their family rather than being in a cell with other convicted criminals. There is clearly the benefit for the offender there and potentially, we would hope, the benefit for the community, in that in an environment where they have maintained that connection with the community they will be less likely to reoffend. Fundamentally, that is a very serious consideration and a very important consideration for us all because the best outcome of any situation where somebody has committed a crime is that they do not commit another offence.

The conditions that are on a prisoner identified before may include electronic monitoring. Again, I note that the Deputy Premier, in his news release of 10 September, suggested that those prisoners who are on home detention conditions are subject to electronic monitoring. Currently, I identify to the house that there are 124 prisoners (these are figures I have been given within the last month or so; it has been a little while since the bill was introduced) undertaking the last part of their sentence on home detention. Only 76 of those 124 are subject to electronic monitoring, so 48 are presumably under intensive supervision without there being felt the need for there to be the ankle bracelet assisting that supervision.

Obviously, any breach of home detention carries with it its own negative repercussions for the prisoners, and these things are managed on a risk management basis, so one would presume that there ought to be a reason for the 48 at the moment not having the electronic monitoring. I hope that the Attorney can give some comfort in his second reading response that he is indeed satisfied that the arrangements they are operating under are currently satisfactory. There is nothing in the bill to identify that there must be electronic monitoring on those prisoners who are then put under home detention.

It will be up to the court, of course, to mandate whatever conditions the court sees fit, and that may include electronic monitoring. I indicate to the house that in recent times we have increased from 400 the number of electronic bracelets (and I think it will eventually get to 600) that the Corrections system and youth justice and the courts have access to, and they are all in use at the moment. The government is going to need to buy a whole bunch more of these if they want to make the claim that anyone to be released on home detention will continue to have that electronic monitoring. There is not a large number of spares in the system at the moment.

There are approximately 18 offenders for every Community Corrections staff member and it is, of course, necessary, as has been identified by the Law Society and the Public Service Association, that if the number of people in home detention increases, as it surely will with the passage of this bill, staffing will need to increase. As I have indicated before, there is of course a lower financial cost to the taxpayer to the community and to the government compared with having them in prison, so that is a positive.

However, as I think the Law Society made very clear in their correspondence and their submission, if one were just to take the cost saving of having people in home detention rather than in prison and try to operate under the existing resources without ensuring adequate supervision and, indeed, without using some of the savings to make sure that suitable re-engagement and rehabilitation programs were undertaken, then the government is not taking the opportunity to reap the benefits of reducing that future recidivism risk.

The bill also seeks to amend the Criminal Law (Sentencing) Act, and this is the more significant change, I would suggest. It will give a court the option to sentence an offender to a period of home detention as a middle ground between the harsher custodial sentence and where a suspended sentence would be unsatisfactory. In effect, the bill does not exclude any particular class of offence or length of imprisonment from being eligible for a home detention sentence. The discretion is entirely in the sentencing court's hands.

The paramount consideration for a court imposing a home detention order must be the safety of the community, which is explicitly included in the bill at new section 33BB(3). As I identified earlier, the safety of the community, when interpreted in these fields, does not necessarily exclude any particular class of offender or any particular crime: it takes into account, rather, the assessed likelihood of that offender committing a further offence against the community.

New section 33BB(4) lists some other matters a court must take into consideration when determining whether to make a home detention order and 33BC outlines conditions that a home detention order may be subject to. Section 33BF creates an offence for contravention of, or failure to comply with, the conditions of a home detention order, punishable by a significant fine or further imprisonment.

The Attorney-General identified that his argument is that this bill will minimise the harm and economic loss associated with imprisonment and allow offenders to retain community ties and benefit from greater rehabilitation opportunities. That does, of course, presuppose the government's provision of those opportunities but, broadly and conceptually, those claims are supported by the opposition, as long as the government does its bit.

While a middle ground option for sentencing is, on face value, a good initiative and the improved flexibility for the courts is supported, one cannot help but note that this came up at a time when the government is scrambling to catch up with the rate of prison growth through the addition of 100 extra cells at Mount Gambier, a group extra at Port Lincoln and Port Augusta—continued expansion of our existing prisons to keep up with the rapid rate of prisoner growth they failed to keep up with over a period of years due to their own lack of planning. This bill will, hopefully, alleviate some of that burden on the taxpayer because, of course, when you do have people in that excess capacity area, they do cost more to deal with.

Publicly, as I have said before, the Attorney-General has promoted this bill as being very narrow in its application to offenders. On 27 June 2015, he was quoted on the ABC News as saying:

We're talking here about a relatively small group of people who are not violent offenders.

Further, he went on to say:

Those convictions of traffic offences, minor drug matters, could be among those eligible for home detention arrangements.

Of course, they are eligible, but so are the murderers, rapists and terrorists under the bill as it stands at the moment. Indeed, in his second reading speech the Attorney-General was explicit in stating:

The bill does not exclude particular classes of offences or lengths of terms of imprisonment in its application.

The discretion of the courts is significant there. They are restrained by new section 33BB(3) which states:

The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.

Then new section 33BB(4) requires that the court also considers the impacts on the victims and the defendant's spouse, or anyone else who might be living at the residence they are at. We are pleased that consideration is to be given to the impact on victims, but it is, of course, not the overriding consideration. The only overriding consideration is what the court views as being the safety of the community.

Of course, if a court were to take the view that a murderer, terrorist or a serious sex offender was a suitable candidate for home detention, under this bill that would be available as a sentencing option, even though those categories of offenders are not eligible for consideration for home detention at the discretion of the Corrections CEO at the moment due to the direction from the minister I identified previously. The Liberal Party's view, my view and, as far as I can see, the community's view, is that those offences should continue to exclude an offender from consideration for home detention, whether it is by a court or, indeed, as is currently the case, by the CEO of Corrections.

I would like to thank those community stakeholders and public officers who have assisted the opposition in our consideration of this legislation. I identified that the government did some consultation prior to the bill, but a number of these stakeholders saw the bill for the first time when it was tabled in parliament. They gave consideration to it fairly rapidly because consideration of the aspects that are in the bill, in a number of cases, led to their having a different submission to the open question they were previously presented with as a result of the discussion paper. I thank those groups for putting forward suggestions, including the Victim Support Service, the victims of crime commissioner, the Law Society and the Parole Board chair, and of course the Public Service Association made some public comments.

I want to touch base on a couple of the things the Law Society has raised, and they reflect some of the matters that were raised in other submissions. Before I do so, I would like to thank the staff and officers in the Attorney-General's office and department for their assistance in briefing and providing information to the opposition subsequent to that briefing. They did so in a timely fashion, for which we are grateful.

The Law Society submission, which came in a few weeks ago in late October, firstly identified that the society expressed its general support for the bill, as I alluded to before. It said:

Until now, home detention has been a management tool of limited application for prison administrators. Its success over nearly 30 years has undoubtedly prompted the extension of the administrative powers of the Department for Correctional Services…and the creation of new powers for courts to make home detention orders as part of a sentencing order.

Of course, as I identified before, the opposition shares that general support for the bill, but they do raise some specific issues to which the Attorney may turn his mind when he very shortly responds to the second reading. The society suggests that it has some concerns with the bill in its current form not allowing sufficient flexibility for variation of a home detention order; for example, if a person is no longer able to reside at the nominated residence without triggering an application for breach under proposed section 33BD. They write:

Circumstances will frequently arise where a person is no longer able to reside at their nominated address, or wishes to vary their nominated address, while subject to an order. In particular, many Aboriginal people reside in short-term or insecure accommodation.

That is a point that was raised by a number of stakeholders. Of course, while there are some limited bail accommodation opportunities, and there have been some limited further bail accommodation opportunities funded by the government, we are not talking about very large numbers. So the Attorney, who I know has been listening intently, might consider responding to that, whether the bill does in fact have that restriction in its rigidity that the Law Society has identified and whether there is potentially any further improvement that can be considered between the houses or at a later time.

The society has a view that the exercise of the CEO's discretion to revoke a home detention order under proposed section 33BE might require careful monitoring, and of course the Attorney can respond to that suggestion if he wishes. In relation to home detention bail, the Law Society suggests that:

The parliament might give consideration to a provision which allows the court to have regard to any period that a person has been on home detention bail if that person is then ultimately sentenced to a home detention order. This would be with a view to reducing the length of the home detention order, or allowing a back-dating of the order to the date when the person was released on home detention bail.

I make no comment other than the fact that the Law Society volunteers put a lot of work into these bills, so when they make a suggestion I think it is worth noting for the record, and for the government's consideration to be noted as well, so I invite the Attorney to respond to the society's views on home detention bail.

The Law Society raises a number of other issues in relation to the effective operation of the bill likely requiring increased housing support including, if appropriate, bail hostels or other residential facilities where home detention orders can be served. The society's view is, further, that protocols as to the processing of 'direct home detention' prisoners will be required. They suggest:

Suitable information for both victims and families of prisoners will be of great assistance in establishing early trust in the system.

The government will need to ensure sufficient administrative support for the extended home detention program. To offer such an option to both administrators and judicial officers and fail to back it up with appropriate funding for support would be undesirable.

Obviously those are policy matters which are not necessarily relevant to the detailed consideration of the bill or its amendments, but the Attorney might like to respond.

The critically important matters that we wish to deal with today include that there has been a proposition put forward that this bill is to apply to only low-risk and non-violent offenders. To that extent it is supported. What is not supported is that offenders who, I think, the community would be appalled—as the Liberal Party is—at the prospect of them receiving a home detention order rather than gaol time (such as terrorists, murderers, rapists and other serious sex offenders, as defined in section 33 of the Criminal Law (Sentencing) Act), would receive home detention rather than gaol.

That is an appalling proposition. I urge the government to support the amendments the opposition has put forward that would restrict a court's capacity to give such an offender home detention, just as the government has restricted the CEO of the corrections department from giving such an offender home detention. I look forward to the passage of the bill with these amendments supported by the government.

Debate adjourned on motion of Hon. T.R. Kenyon.

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