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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 (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:28): I rise to speak on the Statutes Amendment (Home Detention) Bill 2015. The shadow minister has outlined our position with respect to this matter, but can I just add the following: this whole exercise reminds me of that famous phrase, which is something like, 'Houston, we have a problem.' The situation that we now come to in this parliament is that after 14½ years of a Labor government, including under the administration of two attorneys-general, of a rack, stack and pack policy of sending anyone to gaol, except for shoplifting, is just ridiculous.

The chickens always come home to roost with these things, and what has happened? We have got an absolutely jam-packed prison system, so much so that the government, firstly, announced that it would build a prison at Murray Bridge and then it cancelled it. Then it added on containers converted into prison cells in our regional prisons, and it has put in two for one in some of the cells in our correctional facilities.

It is absolutely absurd that 14½ years later the government, in recognition of its policies, has produced this disgraceful situation, both for those who are in prison and who would have some opportunity for rehabilitation and for those who, frankly, could have had an opportunity in rehabilitative services outside the prison system have been denied that, and the government has a problem.

So, it has come to us to say, 'Aren't we good. We have looked at it and reviewed the situation of how we might better deal with the sentencing options for prisoners,' when in fact it is code for, 'We are heavily in the poo and we need some help.'

The DEPUTY SPEAKER: Poo!

Ms CHAPMAN: A good word, I thought—sensitive. We are here because the government is in a mess and our correctional services operations are in a mess. They are overloaded and the workforce is under pressure every day. And, sadly, those who are in our correctional facilities have almost no access to the relevant rehabilitative programs that are necessary for them to become decent, civilised persons to live next door to us when they come out of prison. That is the situation we are in.

The government's idea is to say, 'Well, we're going to let some out. We'll cancel that idea about having to service a percentage of their sentence,' which was the mandatory insistence that it was coming into the parliament to deal with. 'We will relieve the restrictions on the period of detention that someone can actually do under a home detention order'—which was also under the mask of its being tough on law and order—'and, in recognition of the opportunities that are there for home detention, we will make this more available.' What a nonsense!

We have always known that this is an option available in sentencing that is a very important one, especially for young offenders. It just breaks any kind of common sense that the government has been so insistent for its own political motives to have insisted locking up whomever it can find whenever it can and then come back to us under the guise of giving a toss about these people and how they might be returned into the community.

In the end they all get out. In the end one, way or another, people leave prison and they are left, more often than not, sadly, broken and not adequately prepared for living in an employment world and in a world in which they can have respectful relationships with others. Why? Because they have been locked away without any help.

I at least welcome the fact that there is some relief and opportunity for people to have access to home detention as a civilised option in the sentencing toolkit at an earlier stage and more often. But I am totally with, of course, our shadow minister on the importance of ensuring that people who are convicted of serious offences are not in that category, because this was the other con that the government attempted to present to the public with this approach, and that is that it would only be those at the blunt end of the pencil—not the pointy end, not the serious offenders.

Clearly, that has been exposed, and the government in its haste to relieve itself from this burden of these overcrowded prisons is making, really, the home detention sentencing option available for those for serious offences. So, the foreshadowed proposed amendment by the shadow minister ought to be sending out signals for two things. One is that the government finally wakes up to itself and actually accepts it and understands the importance of it, leaving aside the mischief it attempted to pursue by blinding the public into this idea that it suddenly cares about the rehabilitation of prisoners—that it is dealing with serious offenders.

That is a threshold that we are not prepared to move to, especially as there are now parole and other opportunities to be considered under the usual course in dealing with a sentenced offender. Secondly, it is to destroy the myth of them actually caring about these people in an attempt to self-indulge in their own importance about how they deal with this important issue of rehabilitation. I thank the shadow minister for his wise consideration of this matter.

I will say one other thing in relation to the question of how the chief executive manages prisoners. We have dealt with amendments to the correctional services law in this parliament on a number of occasions since I have been in here. We have dealt with the smaller but important matters, such as the security of personal items of prisoners, the day-to-day management of prisons and the like. We have dealt with the increasing capacity for a chief executive to have a role, including the capacity to discipline prisoners, so that they can better manage all the prisoners, for the safety of the employees and the safety of other prisoners.

I suggest that got very close to the edge of what was acceptable, and we had a long debate about whether there should be the power for the chief executive to require a prisoner to be in solitary confinement. I will not repeat today all the law and international treaties that require that isolation not be used as a punishment tool and the protection of prisoners in those circumstances. However, I make the point that it is reasonable for whoever is in charge of the prison, for what we call 'operational matters', to have the capacity to be able to manage.

I consider that one of the biggest problems for those in charge of prisons has not only been the overcrowding per se but the fact that the government, with its big rack, pack, stack and tough on law and order approach, has destroyed the hope of a number of our prisoners of ever being rehabilitated or released. That is because of their disgraceful abuse of executive power in dealing with those who are convicted of murder.

We have been through some legislation recently to deal with that. However, that has been dealt with at a time when we already have a massive accumulation of those in prison, so we add to the burden of the capacity of the chief executive, who is responsible for the day-to-day management. I think it has been unsurprising that as a result we have had to come back here and better facilitate that to occur.

Where the government gets close to the line—and I think probably goes over it, but we still have to consider this question ultimately—is in introducing the chief executive into the sentencing regime of making decisions; whether it is home detention, or any other option for sentencing in the development of the post period of release, is a decision I think that should always remain with an independent party—not with the gaoler but with either the court or, in our case, the Parole Board, which has a valuable role in this area.

We have a very significant reliance on those in charge of the prisons to provide information on what the prisoner has been doing, how they have progressed in their rehabilitation, their general conduct, their treatment of other prisoners and the like. That information is very helpful in making the ultimate decision about whether someone can progress to a home detention.

Additionally, it is also very valuable when we consider the day release of prisoners, which of course is again a very important program in helping prisoners to obtain employment and secure it and become financially independent, learn in a very real and meaningful way how to interact with, in that case, a workplace environment and, hopefully, some other family connection, so that when they are free of the incarceration they are better able to deal with it rather than just being emptied out from the prison at the time of their release.

All of the information about how the prisoner has performed or failed to perform is absolutely critical, but it remains of concern to me that chief executives come into the role of making the determination. I understand there has been some aspect of this bill which will ensure that that cannot be abused. I indicate that we will be supporting the bill with the valuable amendment to be proposed by the shadow minister.

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) (12:41): Thank you to those people who have contributed to the debate. First of all, I know the member for Morialta has moved a number of amendments. On the face of it, I am not devastated and shocked at these amendments, but I would like the opportunity to consider them between here and the other place.

I understand what the honourable member is trying to do, but I would like the opportunity to reflect on it a bit more. I do not wish anything I am saying to be interpreted as a rejection, necessarily, of the member's suggestions contained in the amendments, but I would like to reflect on it. As I said, on the face of it, it does no great disservice as far as I can see, but I would like to be certainly clear about that.

The second thing is that in general terms the judge or judicial officer hearing a particular matter is usually the best placed person to make decisions of the type that we are talking about here. After all, they have seen the accused person in their courtroom, they have personally observed the way the individual conducts themselves, they have heard the evidence of the witnesses, and they have heard the evidence directly from any character witnesses or any medical professionals who might be providing advice, so they are clearly in a far more informed position about each individual than the member for Morialta and I ever will be.

Mr Gardner: If that's the case, why have a mandatory life sentence?

The Hon. J.R. RAU: Indeed; and that is a reasonable question. I am just saying that as a matter of general proposition I think we have to try to give the courts room to exercise discretion. That said, there are limits to that; I totally agree with that, but I am just saying that as a general proposition they are in a better position than either of us might be or, indeed, dare I say this, some of the people who write for The Advertiser might be, who frequently go into print pontificating upon the merit or otherwise of a judgement and often only recording a very short paragraph: 'The judge said this person was not very nice,' and then they go on.

Mr Gardner: Name them.

The Hon. J.R. RAU: They know who they are; I do not need to do that. I gather the member for Morialta also spent some time reflecting on the Law Society's concerns. Again, the Law Society has a job to do and it does it well. It does not necessarily mean at all times one finds oneself in agreement with the Law Society; but it would be a dull world if we all agreed all the time, wouldn't it?

I want to make some remarks in respect of the comments made by the Law Society. The Law Society has expressed concern that the bill in its current form may not allow sufficient flexibility for the variation of a home detention order, in particular in relation to the nominated residence, without triggering an application for breach of a condition under the proposed section 33BD.

Proposed section 33BC(3) of the bill gives a court a power to vary or revoke a condition of a home detention order. This subsection will allow a person subject to a home detention order to vary his or her place of residence without giving rise to any application for breach of proceedings, or at least that is what is intended. If the nominated address becomes unavailable or unsuitable and no other suitable address can be found, the court must revoke the home detention order and order that the sentence of imprisonment for that person be carried into effect.

The requirement of the bill to give paramount consideration to the safety of the community when imposing a home detention order means that an order cannot remain in force if there no longer exists, obviously enough, a suitable address at which the offender can be housed and monitored because part and parcel of the safety of the community is, in fact, a known address for those particular purposes.

However, the bill gives the court a power to excuse a breach if it is found that the failure to comply with the conditions of the home detention order was trivial or that there are proper grounds on which the failure should be excused. Where such a finding is made, a court may refrain from revoking an order and may impose a further condition or vary or revoke an order. The provision will thus allow a court, when appropriate, to impose an alternative residential condition on an offender where that alternate address has been secured a short time after the breach occurred.

In practical terms, a court will likely not dispose of a breach application immediately. This will allow an offender some time to secure alternate accommodation. Where an offender has not been able to secure alternate accommodation, and the period of imprisonment is called into effect, there is no impediment on the same offender being released at a later date at the discretion of the chief executive to serve the balance of a sentence on home detention.

The Law Society raises the question of whether an offender will be remanded in custody or released on bail when charged with a breach of home detention conditions. The bill does not prevent a person charged with a breach of a home detention order from being released on bail pending determination of the proceedings. Indeed, a release on bail is explicitly contemplated by proposed sections 33BD and 33BE. It will be a matter for the court in consideration of all relevant facts and circumstances to determine the question of custody status of an offender who was charged with a breach of a home detention order pending the outcome of those proceedings.

Having said that, I would add as an aside that if one of these offenders were breaching by reason of having left the nominated address, and there having been found no alternate nominated address, that would, of course, would be a relevant consideration in the bail application because, obviously, it is difficult to bail somebody to no fixed abode. It is rather complicated.

The DEPUTY SPEAKER: And not very safe either.

The Hon. J.R. RAU: And not very safe, indeed. The Law Society asks that parliament give consideration to a provision that allows a court to have regard to any period that a person has spent on home detention bail if that person is ultimately sentenced to a home detention order. It is a well-established sentencing principle that a court has the discretion to take into account the time an offender has spent on home detention bail when imposing a sentence of imprisonment.

This bill creates a regime whereby a period of imprisonment can be served on home detention. It requires a court to set a term of imprisonment and then turn to the question of whether an offender is a suitable person to serve that term of imprisonment on a home detention order after, of course, considering and disposing of the question of suspension.

In imposing the sentence of imprisonment under proposed section 33BB, a court will have regard to relevant sentencing law as it would when imposing a custodial term of imprisonment or ordering a sentence of imprisonment to be suspended, including time spent on home detention bail or in custody. There is no intention for a court to adopt a different approach under the provisions of this bill.

I think there were some other matters raised by the member for Morialta, including: will this free up a large number of prison beds? The answer to that, which I think I have already given earlier, is I do not expect that will be the case although, obviously, if there are people in prison who can be safely managed in the community, then it is a good thing that they do become people who are managed in the community rather than remaining in prison. That is as good for them as individuals as it is for us as well, because the rest of us should be happy in the knowledge that people who can be safely managed in the community are less likely to wind up reoffending and less likely to wind up in prison again, so I think that is all to the good.

On the question as to whether the Corrections people currently have suitable arrangements in place, it is my understanding that Corrections, obviously, are preparing and prepared for this eventuality. They have obviously been consulted in the process of the development of this measure and, therefore, I am confident that Corrections will be able to manage this. It may well be, because this is a new initiative, that the estimates that have been made by Corrections up until now about the numbers of people involved may be marginally high or low and, to the extent that they are marginally high or low, there may be some finetuning in due course, but that is a matter we can deal with as we proceed.

The question about rehabilitation of offenders I think is a very good question. Can I just make this point, and I am I guess straddling portfolios a little bit here, but in my—

Mr Gardner: It will be useful to have the knowledge of that portfolio remain in the cabinet.

The DEPUTY SPEAKER: Just ignore him because he is interjecting, and we don't take any notice of interjections.

The Hon. J.R. RAU: Okay.

The DEPUTY SPEAKER: And we don't respond to them either.

The Hon. J.R. RAU: No, I am not responding: I was just about to straddle portfolios. I was going to say—and it might be of some assistance to the member for Morialta, who I know is genuinely interested in these matters—in the context of the present process that I am attempting to undertake and accelerate of devolving a large number of currently Housing SA properties out to the not-for-profit sector, part and parcel of that, I hope, as we get further down the track, will involve some of the not-for-profits who are able to add value services becoming engaged with that process. Some of them might indeed be able to offer very useful rehabilitation-type programs or other support programs.

Ms Chapman: They do now.

The Hon. J.R. RAU: Beg your pardon?

Ms Chapman: That's what they do now—the NGOs.

The Hon. J.R. RAU: Yes, but I am talking about a—sorry, I responded to that. I am talking about a particular context, Madam Deputy Speaker, the context being that we are increasingly, and at a fair clip, engaging with a group of not-for-profit organisations—Junction, for one—with whom in the past we have not really had much to do at that level and on the scale that we are presently wishing to engage with them.

I have to say, my conversations with my counterparts in New South Wales have told me that you can have some very, very useful engagement with some of these NGOs and have very significant improvement in the sort of range and depth of services they are offering to people who are in public housing. My point is many of the people we are talking about here, inevitably, are going to be in public housing. I am just saying that there are many things going on in many different areas which, hopefully, will be the—

Mr Gardner: You are juggling Housing, Corrections and—

The DEPUTY SPEAKER: Order!

Mr Gardner: —Attorney-General's, and straddling them all at once.

The DEPUTY SPEAKER: Order!

The Hon. J.R. RAU: That's it. The whole is more than the sum of the parts—that is where I am heading. I think that is the denouement of that particular conversation. Anyway, I do thank members for their contributions. I think all of us in this place really are of a mind that we would like to see a more tactile corrections system which is offering a more particularised response to individual offenders, with that response maximising the opportunity, where there is any opportunity, of that person being rehabilitated and conducting themselves in a way which contributes to everybody else and to them as well.

I personally am of a view that there are some people in our Corrections system for whom any amount of rehabilitation is going to be a complete waste of time. The sooner we identify those individuals and get over the fact that they might be locked up for a very long time and stop wringing our hands about that the better.

Those who have either been down on their luck, or they have been just stupid or made some poor decisions in life, those are people we should be trying to engage in such a way as to take them out of that little cul-de-sac they have got themselves into and put them back into a 'useful member of the community' category, which is where they should be. I see this and many other measures we are taking as being small but cumulatively significant steps in that direction.

I do welcome the fact that the opposition has been, in general terms, supportive of these initiatives. I think this is one of those areas of public policy where, happily for the people of South Australia, the government and the opposition are broadly in agreement about where we would like to go, so it is quite a constructive situation. I think it bodes well for, in particular, this type of conversation about Corrections that we have this degree of cross-party support. I thank members for their contributions.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

Mr GARDNER: I move:

Amendment No 1 [Gardner–1]—

Page 3, after line 22 [clause 6, inserted section 33BA]—Insert:

serious sexual offence has the same meaning as in section 33(1);

terrorist act has the same meaning as in the Terrorism (Commonwealth Powers) Act 2002.

(2) For the purposes of this Division, a reference to an offence of murder includes—

(a) an offence of conspiracy to murder; and

(b) an offence of aiding, abetting, counselling or procuring the commission of murder.

(3) This Division does not apply in relation to—

(a) a defendant who is serving or is liable to serve a sentence of indeterminate duration and who has not had a non-parole period fixed; or

(b) a defendant who is being sentenced—

(i) for an offence of murder; or

(ii) for a serious sexual offence; or

(iii) in relation to an offence involving a terrorist act.

I direct the casual reader of Hansard to my comments during the second reading debate as to its effects.

The Hon. J.R. RAU: I formally oppose the amendment, but I also direct people to what I said before. That does not mean that I think this proposition has no merit at all; I just want to look at it. I oppose it here, but I am going to entertain it with them.

Mr GARDNER: We look forward to that entertainment, and I hope the Attorney-General will support it in the Legislative Council through his proxy. I note that usually he prefers to do it here, but in this case we will not take offence at the immediate opposition because I know that, with his grand proxy in the upper house, hopefully they will support it there.

Amendment negatived; clause passed.

Clause 7.

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

Amendment No 1 [AG–1]—

Page 8, after line 21—Insert:

(2) However, if, after the commencement of this Part, a sentence imposed on a defendant before the commencement of this Part is quashed on appeal and a new sentence imposed, the amendments to the Criminal Law (Sentencing) Act 1988 made by this Part do not apply in relation to sentencing the defendant to the new sentence.

Mr GARDNER: Without necessarily indicating that it is going to hurt the bill in any way, we will consider it between the houses, as the Attorney is considering ours.

Amendment carried; clause as amended passed.

Remaining clauses (8 to 16) and title passed.

Bill reported with 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) (12:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 13:00 to 14:00.

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