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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Bills

Sentencing (Release on Licence) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:02): Obtained leave and introduced a bill for an act to amend the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:03): I move:

That this bill be now read a second time.

I introduce this bill, which amends the Sentencing Act 2017, to strengthen the provisions relating to the release of convicted sex offenders who are incapable of controlling, or who are unwilling to control, their sexual instincts. Members will appreciate that amendments have been required as a result of the application for release on licence granted by the Supreme Court on 27 March this year. The Director of Public Prosecutions appealed that decision and the matter was heard on Wednesday 23 May. No decision has been delivered as yet, and there is no indication that the Full Court will deliver their decision this week, but the government needs to be prepared, and is therefore prepared for, the consequences of an unsuccessful appeal.

At the outset, let me be clear about the approach of this government when it comes to dealing with these types of issues. We will ensure that the community is protected. We will ensure that convicted offenders who are unable or unwilling to control their sexual instincts do not pose a risk to the community. We will ensure that sensible, thoughtful legislative solutions are introduced into the house. What we will not do is play political games, as the opposition leader did yesterday.

Labor is clearly still coming to terms with its election loss and the relevance-deprived former ministers are looking for media exposure whenever they can. The conduct of the opposition leader has been unconscionable. I can inform the house that on 27 March he wrote to me about the Humphrys matter and I replied by letter the next day. I advised him that I would be happy to work with him—

Mr KOUTSANTONIS: Point of order: this is a second reading explanation of the bill, not an attack on the Leader of the Opposition.

Members interjecting:

The SPEAKER Order! The Deputy Premier will be seated for a moment. I will listen carefully, but I am sure the Deputy Premier is going to give information that is relevant to the second reading debate. The Deputy Premier will be heard in silence and, if she is not, I am quite happy to call members to order and warn them.

The Hon. V.A. CHAPMAN: In addition to writing to the opposition leader, I also caused a similar letter to be sent to the federal minister, Ms Ellis, and the state Minister for Child Protection, the member for Adelaide, all of whom had a direct interest in relation to the judgement of Justice Kelly delivered on 27 March, given the precinct which was identified for the purposes of release.

I advised him that I would be happy to work with him and other local members in relation to this matter. Then, on 21 May, a briefing was provided to the shadow minister, the Hon. Kyam Maher in another place. We heard nothing. The government heard nothing from these failed former Labor ministers about this matter until we saw the story in yesterday's Advertiser.

Mr Malinauskas: Check your emails.

The Hon. V.A. CHAPMAN: It was rank political opportunism. The former Labor government had 16 years to get its legislation right and it failed. The opposition leader interjects to say that I should check my emails. Let me just point this out—

Mr KOUTSANTONIS: Point of order, sir: second reading explanations are an explanation of the bill. This is a speech on the bill. This is appalling.

Members interjecting:

The SPEAKER Order! The opposition will not interject and the Deputy Premier will not respond to interjections. All remarks must be made through the Chair.

The Hon. V.A. CHAPMAN: As I say, the first the government had notice of this was in The Advertiser yesterday. I make this point: when the opposition leader checks his emails in respect of alleged advice to me as the Attorney-General, he will identify that in fact he sent the email to the Chief Executive of the Attorney-General's Department. I do not, as a matter of course, require any of the Attorney-General's Department, including the chief executive, to sit at their desk on Sunday night and read emails that might turn up from the opposition leader.

Nevertheless, it was ultimately located yesterday as advice from the chief executive's office that she had received the material which the opposition refers to and which they made a public claim to yesterday and, having identified it, then received a further draft bill—because clearly the one that had come from the opposition leader was not good enough—the Hon. Kyam Maher, as the shadow attorney-general for the opposition, sent me another one, which apparently was the correct one, yesterday afternoon. Both of them I have described as amateur, and I maintain that position.

Nevertheless, that is the type of tactic that the opposition leader is clearly employing in the attention deprivation state that he is in. The whole exercise was rank political opportunism and he should hang his head in shame. There is not a day goes by that—

Mr KOUTSANTONIS: Point of order: personal reflections.

The SPEAKER: What is the personal reflection?

Mr KOUTSANTONIS: Personal reflections on the Leader of the Opposition. It has nothing to do with the bill—nothing.

The SPEAKER: The member will be seated. If there is a personal reflection, if someone is to take issue with a personal reflection, it must be an individual member, but I will ask the Deputy Premier to perhaps address her remarks closer to the bill in question.

The Hon. V.A. CHAPMAN: This is a bill that is designed to fix up a piece of legislation that the opposition, then government, had introduced into this state. It was inadequate. It needed fixing. The former attorney-general did nothing, notwithstanding that he was given notice of this after the Schuster case in late 2016. The government did nothing, and people sit opposite in this chamber today who were in the government and had absolute opportunity to resolve this matter, and they did nothing.

South Australians will see through this late and sudden interest in changing the law to protect the community. The conduct of the Leader of the Opposition is disingenuous and unconscionable. It is no wonder they were voted out of office. The amendments posed in the bill will ensure that those who have been and will be granted an order for indefinite detention to be released on licence into our communities, or to have their detention orders discharged, will have to reassure the court and relevant experts that they are suitable to be released.

The bill will contribute to the increased safety of the public and provide victims and the community at large with greater security and freedoms by minimising the risk of a sexual offender being released into the community and then reoffending. Section 57 of the existing Sentencing Act enables the Supreme Court to make an order that a person who has been convicted of a 'relevant offence' is to be detained in custody until a further order is made. A relevant offence is defined by reference to a number of offences of a sexual nature.

Before making such an order, the court must consider the reports of at least two legally qualified medical practitioners concerning the mental condition of the person, and whether they are incapable of controlling or unwilling to control their sexual instincts. A person is regarded as unwilling to control their sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.

In some cases, this may not be an immediate risk. However, we must be vigilant to those who will bide their time and potentially risk society in the future. The paramount consideration of the court when determining to make an order under section 57 must be the safety of the community. The court must then take relevant factors into consideration, including:

the reports of the medical practitioners;

any relevant evidence or representations that persons may wish to put to the court;

any other report ordered by the court; and

any other matter the court thinks relevant.

After an order for indefinite detention is made pursuant to section 57, the detained person or the Director of Public Prosecutions may apply to the court to discharge the detention order pursuant to section 58, or to be released from custody on licence pursuant to section 59.

Under the existing provisions within the Sentencing Act, in determining to release an offender, subject to an order of indefinite detention on licence, the paramount consideration of the court must be the safety of the community. The court must also then take the following factors into account:

the reports of at least two qualified medical practitioners as to whether the person is incapable of controlling or unwilling to control his or her sexual instincts;

any relevant evidence or representations that the person may desire to put to the court;

any other report ordered by the court;

evidence tendered to the court of the estimated cost directly related to the release of a person on licence;

reports resulting from the periodic reviews on the progress of the person while detained (conducted by the Parole Board);

a report of the Parole Board identifying the board's opinion on the effect the release on licence would have on the safety of the community, reporting on probable circumstances of the person if released on licence;

the recommendation of the board as to whether the person should be released on licence; and

any other matter the court thinks relevant.

In the past, the court has expressed the view that, despite the risks an offender might pose to the safety of the community, it was appropriate to release the offender into the community on licence as the community could be adequately protected through a number of steps to be taken by the Department for Correctional Services and other agencies to manage those risks.

This bill amends the Sentencing Act to address concerns that have been raised about this approach. The reforms create a two-step process. Firstly, a detained person will need to satisfy the court that they are both capable of and willing to control their sexual instincts. It is a reversal of onus. If the court is so satisfied, the court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision. This means that if the person cannot satisfy the court that they are both capable and willing to control their sexual instincts, then the court is unable to make an order to release the person on licence or to discharge their order of detention subject to one exception.

If the court is satisfied that the person no longer presents an appreciable risk to the safety of the community due to their advanced age or infirmity, the court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision. I remind members that this concept in relation to advanced age or infirmity was a matter introduced into our sentencing laws by the former attorney-general, the member for Enfield.

As reassurance to the community, these amendments will apply to anyone currently detained whose application for release on licence or discharge of licence is yet to be made, or has been made but is not yet finalised. Significantly, the amendments will also allow for the Director of Public Prosecutions to apply to the Supreme Court to either cancel or confirm the release on licence of a person who the Supreme Court has authorised to be released on licence. If such an application was made by the DPP, the person subject to the licence would need to satisfy the Supreme Court that they are capable of controlling, and willing to control, their sexual instincts or that they no longer present an appreciable risk to the safety of the community due to their advanced age or infirmity.

If the court is so satisfied, the court can then consider whether they should confirm the release on licence, with the paramount consideration remaining the safety of the community in making that decision. If the court is not so satisfied, then the person's release on licence would be cancelled. The person would then be detained and be at liberty to apply at a later date, under these new provisions, for release on licence or discharge of their detention order. In other words, the new laws will apply to them. At present, where a person has been subject to licence conditions for a continuous period of three years, unless the DPP applies to the Supreme Court to order otherwise, there will be an automatic discharge of the detention order. That is set out in section 59(19) of the Sentencing Act.

This bill also removes that automatic discharge of a detention order. There is no reason to assume that just because a person has not breached a licence condition for three years they suddenly pose no or no significant risk to the community at the three-year mark. This is particularly so in cases where there has been very close supervision and conditions that would virtually prohibit a breach during the term of the licence.

When considering this bill, it must be noted that if an applicant were able to satisfy the test of being willing and capable of controlling their sexual instinct, one would assume they would be likely to always apply for a discharge of the order altogether, rather than release on licence. If such application were granted, the detainee would be released into the community without any preparation or supervision at all. To address the risk this may pose, a further amendment has been included to provide that, in these circumstances, the court may order that the discharge is not to take effect for such time as it considers necessary for the purpose of enabling the person to undergo a suitable prerelease program. This is reflected in the proposed new section 58(6) of the Sentencing Act.

This is an important bill and one that has had some of the best legal minds in the Attorney-General's Department consider it. I thank them for that consideration. It has been longstanding in the development of this bill and the number of drafts and those who have been consulted on it. It is proposed, given the advancing of this bill today, that further consultation will continue. I thank those members of the crossbench who have shown an interest in this matter as well. I ask them to consider giving this matter their support. Given public comments of the Leader of the Opposition, I hope that the opposition will also give favourable consideration to this bill.

In due consideration of those matters, firstly, I am confident that the bill will ensure the community is kept safe from offenders. But secondly, in light of the advance of the matter and with no foreseeable determination by the Full Court at least this sitting week, I indicate that the government is quite prepared to hold this matter over until tomorrow to enable the Leader of the Opposition and/or any of his advisers to peruse the model outlined in this bill and the comprehensive other areas of change that I have outlined. However, if he is happy to progress this bill today, we are ready to do it right now. I commend the bill to members. I table a copy of the explanation of clauses.

The SPEAKER: The leader. Are you going to adjourn?

Mr MALINAUSKAS (Croydon—Leader of the Opposition) (11:20): No. Thank you, Mr Speaker. The opposition is willing to deal with the bill now, and I will be the lead speaker on behalf of the opposition.

The SPEAKER: I am advised that the suspension was only to read the second reading of the bill, not to bring on the debate.

Standing Orders Suspension

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:21): In light of the Leader of the Opposition's indication that he is prepared to debate the matter immediately, we welcome that. Therefore, I am happy to move a further suspension of standing orders to accommodate that. I move:

That standing orders be so far suspended as to enable the passage of the bill through all stages without delay.

An absolute majority of the whole number of members being present:

Motion carried.

Mr MALINAUSKAS (Croydon—Leader of the Opposition) (11:22): Thank you, Speaker. This matter is of great public importance. This legislation—

The SPEAKER: Before I call the leader, just on a slight issue about what can be said in the second reading, if I may, leader? I anticipate that this issue will repeat and then I will call the leader back. I refer to the House of Representatives Practice, 4th edition, where it points out:

The second reading debate is primarily an opportunity to consider the principles of the bill and should not extend in detail to matters which can be discussed at the consideration in detail stage.

It goes on:

However, debate is not strictly limited to the contents of the bill and may include reasonable reference to:

matters relevant to the bill;

the necessity for the proposals;

alternative means of achieving the bill's objectives;

the recommendation of objectives of the same or similar nature; and

reasons why the bill's progress should be supported or opposed.

That is to help members out. Over to the leader.

Mr MALINAUSKAS: This matter is of great public importance. This legislation is vitally important to prevent dangerous paedophiles, who are unwilling or unable to control their sexual instincts, from being released into the community. This legislation will make it substantially harder for people like notorious paedophile Colin Humphrys who would otherwise be released into the Bowden Brompton community, my community, unless prosecutors succeed in their appeal to the Full Court of the Supreme Court.

One of the worst sexual predators in the state's history, with a criminal history that spans five states and three decades, his history includes convictions for sexual offences, child abduction and dishonesty, including the 1991 kidnapping of a boy aged just nine years. After being released, he committed sexual offences against a 14 year old within 30 minutes of having met the young person. That offending, I understand, continued for the next three years. His release is opposed by the Parole Board.

In 2009, Supreme Court Justice John Sulan refused to impose a non-parole period and ordered Humphrys be detained indefinitely as an uncontrollable sexual predator. In December 2013, Colin Humphrys applied for release on licence pursuant to section 24 of the act. That application was withdrawn by Mr Humphrys on the basis of unfavourable medical and Parole Board reports.

Dangerous paedophiles who are unwilling or unable to control their sexual instincts should not be released into the community. I was horrified by the potential release of Colin Humphrys into the community against the views of the Parole Board. It is clear that existing legislation is not adequate. As a leader within this parliament and as a local MP for the area that Colin Humphrys was to be released into, I had a responsibility to act—we had a responsibility to act. That is exactly what we have been doing over recent weeks, and announced yesterday. In fact, our leadership on this issue was announced to the government on Sunday evening. We will say more about that in a moment.

If the law allows the release of a dangerous paedophile like Colin Humphrys into the community against the wishes of the Parole Board, then the law clearly needs to change. We support the passage of the bill through the House of Assembly as a matter of urgency. However, we do reserve our rights to make amendments to strengthen the bill in the Legislative Council if required. We will work with the government to pass this important legislation. We are, indeed, very familiar with it. We will do it as a priority to ensure that children are kept safe from dangerous predators.

Yesterday, the opposition publicly announced its plans to introduce legislation to keep dangerous paedophiles, who are unwilling or unable to control their sexual instincts, in prison. We believe that now the government has also come to the realisation this is a matter of urgency and has introduced their own bill in the parliament and we will work with the government on that. We reserve the right to introduce our own legislation, but we are committed to working with the government on theirs.

We believed that this issue was a matter of urgency, given the impending decision of the Full Court of the Supreme Court as to whether Colin Humphrys would be released into the Bowden Brompton community against the recommendation of the Parole Board and despite the fact that he is unwilling or unable to control his sexual instincts. In less than 24 hours the Attorney-General went from labelling Labor's legislation as a political stunt to having legislation of her own.

She initially told ABC radio yesterday morning that introducing legislation before the determination of the Supreme Court was 'really just a publicity stunt'. However, by lunchtime yesterday she announced she had taken her own draft legislation to cabinet. Late yesterday, Ms Chapman said, 'I expect we'll be introducing it into the parliament in the morning.' This morning we received a copy of the government's proposed legislation. Somewhat less notice—

The Hon. V.A. Chapman interjecting:

The SPEAKER Order! The leader will be seated for just a moment, please. The Deputy Premier is called to order. I have given members some latitude. I will start calling them to order and warning them if they continue to interject. All speakers will be heard in silence.

Mr Mullighan interjecting:

The SPEAKER: The member for Lee is called to order. Leader.

Mr MALINAUSKAS: As I was saying, late yesterday the Attorney-General had changed her position by saying, 'I expect we'll be introducing it into the parliament in the morning.' I commend the Deputy Premier for coming around and doing so.

Members interjecting:

Mr MALINAUSKAS: Calm down. This morning we received a copy of the government's proposed legislation; somewhat less notice than what the Attorney-General was provided. While it is disappointing that the Deputy Premier's initial reaction to this important piece of legislation was to label it a 'publicity stunt', I welcome the Marshall Liberal government's decision to introduce their own bill and I am willing to work cooperatively with them.

The Attorney-General, in her remarks earlier, referred to the timing of emails and email addresses that were sent. We will have more to say about the email addresses of the Attorney-General published on her own website in two different places later on, but the government must now prioritise the passage of this bill as a matter of urgency.

Members interjecting:

The SPEAKER: Order!

Mr MALINAUSKAS: I am glad the Deputy Premier decided to change her view and introduce her own legislation. This legislation cannot be left sitting idle in the parliament. There is no higher priority than keeping our children safe, and I hope the government treats this legislation with the urgency it deserves.

Mr TEAGUE (Heysen) (11:30): I rise to support the bill, and I will speak briefly to the amendments proposed, which are the subject of the government's bill. The Sentencing (Release on Licence) Amendment Bill would amend the Sentencing Act 2017 in three important regards: firstly, in relation to the discharge of a detention order; secondly, in relation to the assessment necessary for release on licence; and, thirdly, in relation to the reconsideration of authorisations in relation to licences.

These are amendments to the act that should not be debated in an unnecessarily partisan manner. They ought to be substantially not controversial, and so I welcome the opposition bringing the matter on for debate and I welcome their support for the government's bill in principle. The key to the government's bill in this regard is that, while reversing the onus and requiring that the Supreme Court be satisfied as to the relevant matters, the government's bill leaves as the paramount requirement that the Supreme Court itself is satisfied of the necessary matters that are to be satisfied.

For example, an important difference between the government's bill and the private member's bill is that the private member's bill would impose that greater obligation upon the Parole Board, for example, to act as an inevitable gatekeeper. So I just bring to the attention of the house that the government's bill leaves the Supreme Court as the arbiter of these matters, informed, as it ought to be, by the provision of medical reports. It is for the Supreme Court to form the view ultimately as to whether those tests are met.

Importantly, also, the government's bill introduces a further proviso that again bears out the value of having a considered approach to the development of the legislation. This proviso is that the consideration of the subject's advanced age or other capacity ought also to be a consideration. I would encourage the opposition to consider that additional element. I just note in opening my remarks that I have made observations about how this ought not be a matter that is debated in an unnecessarily partisan way.

I hear the Leader of the Opposition's remarks about the notice that may have been given to the government about the introduction of the private member's bill. If it was Sunday or if it was in the media on Monday, there is no magic in a time frame of that nature. It is important in this regard that where the house can deal with matters of this nature, it ought do so in a way that is not based on ambush but, rather, on the proper opportunity for all sides to consider the merits of legislation in a timely way.

I will refer to one other specific matter that highlights the importance of proper consideration of an amendment to the Sentencing Act of this nature. The government's bill, having reversed the onus, actually has a thorough review of sections 58 and 59 and includes the repeal of section 59(19), which would, as is presently the case, automatically discharge a licence after three years.

It would appear that there may have been matters that have been overlooked in the haste with which the private member's bill has been drafted and brought to the parliament, again unnecessarily so, because it is revealed in what ought not be controversial consequential amendments to the act that have been properly the subject of consideration in the government's bill that they ought to remain uncontroversial. With that, I commend the bill to the house and commend an approach to legislation of this nature being done in a cooperative way and not based on ambush.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:36): I thank members, including the Leader of the Opposition, for their contributions to this matter and for the timely advance of the bill in the circumstances. The passage of the bill in this chamber will ensure the opportunity for deliberations to be undertaken in the other place.

I indicate on behalf of the government that in the event the Full Court determination is tabled and delivered prior to the debates in the Legislative Council, we will ensure that copies of that judgement are provided, appropriately, to the Leader of the Opposition and also, significantly, the person who has been briefed on this matter, that is, the Shadow Attorney-General, the Hon. Kyam Maher, not just because he is in the other place but because of his position and his attendance at briefings to date.

With that, I indicate that we appreciate the passage of the bill today. Advisers from the Attorney-General's Department are on their way—I understand that crossbenchers have had briefings in relation to the bill—and I am happy to make them available. There is one of two ways of doing it given that they have not arrived yet—

Mr Malinauskas: I thought you were ready to go.

The Hon. V.A. CHAPMAN: I am just saying—

The SPEAKER Order!

The Hon. V.A. CHAPMAN: —before you interject stupidly, Leader of the Opposition—

Members interjecting:

The SPEAKER Order!

The Hon. V.A. CHAPMAN: Here they are.

Members interjecting:

The SPEAKER: The Deputy Premier will be heard in silence.

Members interjecting:

The SPEAKER: The Deputy Premier is being provoked. The opposition will stop interjecting.

The Hon. V.A. CHAPMAN: The Leader of the Opposition, Mr Speaker—

Members interjecting:

The SPEAKER Order! The Deputy Premier will be heard in silence. I have given members more than enough latitude. I have attempted to also ensure that the leader was heard in silence. The Deputy Premier will be heard in silence.

Mr Malinauskas: You have all the gravitas in the house.

The SPEAKER: I do, leader, I do.

The Hon. V.A. CHAPMAN: Mr Speaker, as you may be aware, and I think it is evident to the house, the advisers are now present. I would ask that their attendance be respectfully acknowledged and that they not be ridiculed in relation to their prompt passage down here to the house, given the government's offer to the opposition to have 24 hours to consider the bill. However, they are here and we are ready to go into committee should any of the members of the house have any questions in relation to the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr MALINAUSKAS: Can the Deputy Premier inform the house whether or not opposition by the Parole Board to someone's release would have a material impact in regard to the decision of the court under this proposed legislation?

The Hon. V.A. CHAPMAN: Yes, it would.

Mr MALINAUSKAS: If the Parole Board opposed the release of an offender, would that then in effect prohibit or enable the court to release such an offender?

The Hon. V.A. CHAPMAN: The Leader of the Opposition identifies whether the Parole Board's decision is or is not the ultimate arbiter of the effect of the release. If the Parole Board were to make no recommendation, or were to make a recommendation for release, or a recommendation that there should not be release (as they did in the case of Humphrys), those matters will be taken into account by the Supreme Court, which will be the ultimate arbiter of the matter. It would not be the determining factor. It is a matter that must be taken into consideration by the Supreme Court, together with the new addition of the Parole Board reports in respect of the conduct of the applicant during their incarceration.

Mr MALINAUSKAS: I do not believe the Deputy Premier understood my question entirely. The question was not about who would be the ultimate arbiter of someone's release but, rather, does the bill prevent an offender's release where it is opposed by the Parole Board? It is a simple yes or no proposition.

The Hon. V.A. CHAPMAN: No is what I answered to the first question. No.

Clause passed.

Clause 2 passed.

Clause 3.

Mr MULLIGHAN: I have a question in relation to clause 3(1)(1a)(b), relating to the provision that the Deputy Premier and Attorney-General made particular note of in her second reading contribution about:

(b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or infirmity.

Could the Deputy Premier, or her advisers perhaps, give us some information on how a court might assess what level of risk (and whether it is appreciable or not) that somebody of advanced age or infirmity might pose in these sorts of matters?

The Hon. V.A. CHAPMAN: Thank you for the question and I am happy to answer it. When the advanced age and infirmity clause was introduced into the legislation under the new sentencing law, a case of Judge Barrett of the District Court was referred to as an example. I cannot remember the name of the case, but I particularly recall the circumstances in relation to the judgement. The then attorney-general relied upon it for the purpose of illustrating why it was reasonable for a court to take into account if the defendant in those circumstances, once convicted, actually had a level of infirmity that would render them incapable, essentially, of acting to further exploit a child.

It surrounded a case where the defendant was convicted of sexual exploitation of a young girl over about four or five years, 40 years prior to the conviction. Unsurprisingly, the victim was now a mature age woman and the offender was a man, I think in his late 70s, early 80s or something of that order. Judge Barrett took into account the fact that his age was such that he was quite feeble in respect of his physical characteristics. In his judgement, he determined that this person would not be a risk and therefore suspended the sentence. This issue was fleshed out in this judgement to the extent of allowing, in the view of Judge Barrett, that this person should not be incarcerated at all.

I had some comments to make about that at the time because I felt that was an illustrative case that would not have passed the threshold, in my view. However, that is just my personal view and Judge Barrett had a different view. I raised questions with the then attorney about the reliance on that decision as the basis for this type of consideration to exempt somebody. I made the point at the time that, whilst I did not agree with his illustration and the case in that instance, his directions that he not take alcohol and all the things he required as a condition of his suspended sentence were not something that I endorsed.

What I did say was that, if they were no longer ambulant or had a medical condition which otherwise meant that they were physically unable either to walk or approach somebody, these were factors that could reasonably be taken into account. We accepted that that would be a reason to say that this person is no longer a threat to the community and, therefore, that that ought to be taken into account.

As I understand it, at the time and even still today, there are a number of people incarcerated in South Australia's prisons who are in the category of being mature age and having been found guilty and sentenced in relation to child sexual offences. A number of those arose out of the change of legislation to enable prosecutions prior to 1982, which I think has been in effect for 10 years or so now, probably even more—it was fairly early this century that that law was changed. A cohort of convictions also arose out of the Mullighan inquiry, which the member would of course be familiar with as his own late father undertook that investigation on behalf of the people of South Australia.

There are a significant number of people in custody serving sentences who are rapidly approaching an age at which only a few of us would probably be very active. Therefore, I would expect there will be applications made to say that these people are no longer a threat and probably in need of aged-care services, and they move then to other accommodation. That is yet to happen. I have not had that application come before me at this stage, but I expect that the minister for corrections may well have that presented to him in due course to facilitate the deterioration, physically and possibly even mentally, of those in custody.

In respect of the mental deterioration, obviously I am not aware at this stage of any who are diagnosed with severe Alzheimer's or another such condition that might render them incapable of even forming an intention to prey on a young child or even have the desire to do so but, in any event, medical professionals will no doubt be the important feature of any application before a court to facilitate subparagraph (b).

Mr MULLIGHAN: I appreciate the Deputy Premier providing that background. The reason I ask is that, on my reading of the bill—and perhaps I have read it in a manner that does not give me the best understanding of how this law would potentially operate—in clause 3, particularly paragraph (1a), between subparagraph (a) and subparagraph (b) there seem to be three criteria from which the court could select one to make its decision on whether there is a release, or otherwise, of an offender. Those are: the criterion in subparagraph (a) regarding the control of sexual urges or otherwise and two criteria in subparagraph (b), namely, advanced age or infirmity—not advanced age and infirmity, but the separation of those two, which to my mind raises some concerns, particularly in the current context of the ill we are attempting to address in this bill.

If that is the case—that there are three criteria, only one of which is necessary because of the prescription between the subparagraphs of 'or' rather than 'and'—is it not the case that the court may make a decision to release someone purely on the basis of their advanced age while perhaps not paying sufficient regard to infirmity or sexual instinct?

The Hon. V.A. CHAPMAN: The provision expressly prohibits the release, unless one of two things applies: first, as identified in subparagraph (a) regarding the capacity to control sexual instincts. I do not think the member is asking anything in relation to that. I think it is pretty clear what we are talking about. There are obviously myriad things to be considered if that exception is there. The second exception is subparagraph (b) regarding advanced age or infirmity. I think the member is asking, 'Could there be a situation where the exemption would apply to someone who is not infirm but is of advanced age?' The answer to that is yes.

The reason that the former attorney-general gave, when we discussed this matter when it came into the legislation as the same clause, was that you can be advanced in age but not infirm. Advanced age may actually render you incapable still of forming intent and/or desiring to undertake some illegal conduct, and that is the effect. You still can be ambulant at a very advanced age. If you suffer some form of dementia with that, or Alzheimer's, then of course you might be living in a world of your own.

So the description of 'advanced age or infirmity' was provided because someone could be extremely old and still not be infirm in the sense of still having a mental capacity and/or physical capacity that would otherwise make them infirm. That is how I understood the position at the time we debated it at the introduction of this clause. It was not terribly controversial at the time; I do not think anyone even raised any objection to it. If anything, I raised objection to it in the sense of being satisfied as to what cohort it would apply.

Probably, in practical terms, firstly at the time of the hearing of the matter, the court would have to be satisfied that it was in this category. It would probably have to be alerted to the applicant and his or her representatives, and/or information brought to the attention of the Department for Corrections via the head of the Corrections department to indicate that one of their prisoners was now in that category. That would trigger the need to have them assessed, as we do with those suffering a mental health incapacity, as to whether they should be transferred to an aged-care facility and, if so, where.

Mr MULLIGHAN: I appreciate that further detail from the Deputy Premier. My concern, particularly around the clause, is not so much its genesis in the formation of another bill some time ago but in its application to this particular circumstance and its application on an ongoing basis. I think the concept of advanced age is one that bears some further fleshing out, particularly if it can be adopted as a single criterion. There are those of us who might have different perceptions of what advanced age is, and courts may or may not have their own case law to date which helps them in how they might determine what constitutes advanced age.

The Deputy Premier made reference to the spent convictions legislation, for want of a better term. To bring back into consideration the pre-1982, I think it was, prosecutions and offences mean, as she has pointed out, that there are likely to be people potentially somewhere in the corrections system who, perhaps to somebody of my vintage, would be considered to be of advanced age but whose appearance and demeanour—let alone any other attributes—might, to the general community, give the impression that they pose less of a risk but whose lack of infirmity and continued intent and physical capacity means they may well be of risk.

My concern is that the way clause 3 is currently drafted, particularly between subparagraphs (a) and (b), that these are not three criteria that all need to be satisfied, that one individual one can be satisfied, will present a potential risk in the future.

The Hon. V.A. CHAPMAN: I suppose age is relative; my granddaughters think that at my age I am positively a fossil. However, the reality is that advanced age does not actually trigger the entitlement for release under the obligation in the first part of this clause.

Let me quickly explain. The test here is not just that they are old and therefore they can have an exemption: the test is that the court has to find that the person no longer presents an appreciable risk to the safety of the community. That is the matter being determined, and it can only be as a result of those two things. Those are the confines of the factors that can be relied upon when the court makes the determination of appreciable risk if the applicant is relying on subclause (1a)(b). I hope that allays any concern that an application before the court which simply records that the person is 102 is sufficient to be able to have exemption from the obligation that they cannot discharge the detention order.

That aspect of appreciable risk is the determinant made by the Supreme Court judge and in the envelope of the whole of the sentencing law, which maintains the obligation for safety of the community to be paramount. It is a double hit, so to speak, in relation to the assessment and it is done by a Supreme Court judge.

Mr MALINAUSKAS: I have a similar question to that of the member for Lee regarding a similar issue. It is fair to say that there is a degree of concern, in at least my mind, that the way the bill has been drafted leaves open the possibility that someone who is unable or unwilling to control their own sexual instincts could be released into the community because of their age. My question to the Attorney-General is simply: is there a circumstance where someone could be released even if they are unwilling or unable to control their own sexual instincts?

The Hon. V.A. CHAPMAN: I am tempted to say that that is exactly the same question as has been put. Essentially, they can only be released under subparagraph (b) if they satisfy the court that there is no appreciable risk. That is the thing that is being determined under the second paragraph, not the first. There are two circumstances in which the court can consider discharging this provision—and only two. The first, of course, is one which has been raised in the Humphrys case and regarding which Justice Kelly decided, notwithstanding submissions that were put by a number of parties, that there was a reason that he should be able to.

What we are saying here is that that test is there to apply and would be exercised in the Humphrys case. In relation to the second option, which is that the court is satisfied, only if they were infirm or old could they apply to rely on that and, secondly, the judge would have to make that determination that there was no appreciable risk to the safety of the community. That is the decision that has to be made. You cannot go along there to say, which probably would be relevant to say, 'I am a fit and able 18 year old.' However, if you were an 18 year old who was in a wheelchair, who was, as a result of an accident, for example, paralysed and significantly disabled, then you would have an infirmity, even though you are not old. I hope that makes that clear.

Mr MALINAUSKAS: I think the answer to my question from the Attorney-General was yes, but, for the sake of clarity, I will continue to pursue the line of questioning because I think it is important that we get this on the record and clear. Would it be fair to say that if someone is of advanced age or has an infirmity, and if the court makes a determination that that is applicable and that leads to the fact that there is no longer an appreciable risk associated with that person, they could be released back into the community, even if they are unwilling or unable to control their sexual instincts?

The Hon. V.A. CHAPMAN: The answer to that is strictly yes. The reason why it is couched in a way that could not occur is that if someone had sexual instincts that they were still unable to suppress or deal with or treat, or consent to have treated, they would clearly continue to pose an appreciable risk for the purposes of the safety of the community. This is why it is important that if an application is made and there is a question mark around their capacity to control their sexual instincts, that is, you cannot even assess it—it may be because of the mental capacity or level of infirmity of the person—then there is no capacity to be able to identify that subparagraph (b) may be employed for the purposes of presenting to the court.

I remind the member, and all members if they have any concern about this, that the test is not whether you are infirm or old in your age, in the sense of advanced age. The test is, in the circumstances of that, whether there is an appreciable risk. That is the determinant that has to be made by the Supreme Court.

Mr MALINAUSKAS: We have now had it confirmed by the Attorney-General that someone who is unwilling and unable to control their sexual instincts could be released into the community under this legislation, albeit that they have would have to pass the test that the Attorney-General has outlined. My question is: what happens in the circumstances where things change?

For instance, if a court makes a determination that this said provision would apply to an individual offender, and they are unwilling and unable to control their sexual instincts but they are determined by the court to have no appreciable risk a result of age or infirmity, and then their personal circumstances change, that is, they have a recovery, or they get access to treatment that improves their physical mental condition, would that then render them—released in the community, unable and unwilling to control their sexual instincts—no longer a non-appreciable risk but, indeed, a very real risk?

The Hon. V.A. CHAPMAN: Let's look at the rapid recovery model. That is, somebody is identified as a serious—

Mr Koutsantonis: Or they faked it.

The Hon. V.A. CHAPMAN: Well, the member interjects that they faked it. I suppose that is possible—it is remote, but it is possible. The member for West Torrens could get a bit older, he might get a bit doddery and then fake his presentation, and then make a miraculous recovery. That is why it is important that there is the capacity in these cases for the DPP to apply to bring him back.

The CHAIR: The member for Lee has already had three questions on this clause. I will allow one more.

Mr MULLIGHAN: Good on you; thank you, Chairman of Committees. Perhaps, given that it is my last question on this particular clause, the Attorney-General could spend some time providing some information to the house about how a court might determine that, quite separate to subparagraph (a), a court might determine that a person presents no appreciable risk only on the basis of a person's advanced age, given that that is separate from the infirmity, which is specified separately in subparagraph (b).

In her earlier remarks, the Deputy Premier said that advanced age was relevant, and in previous discussions about previous bills there were considerations about whether a person was ambulant or not, i.e., whether they were infirm or otherwise. Now that we have established that those are two separate things—infirmity and age—how would a court go about the business of determining the level of risk and whether it is an appreciable risk solely due to somebody's advanced age?

The Hon. V.A. CHAPMAN: Because they may not be infirm but still frail. They may be impecunious—have no money—and have no capacity to move or go anywhere. They are examples in relation to age. Just as I have asked before in this house about how that would apply, that is the response we are given. I can see a situation where that could occur. You are advanced in age, you are sitting in an aged-care home, nobody comes to visit you, you have no capacity to go anywhere and you are financially alone, but age, I hate to tell the member, is something that brings with it frailty. You can still be determined not as infirm but as frail aged.

Mr PICTON: I think it is very important that we ask a number of questions on this subject because it is a very important issue. This is one of the areas in which there is a difference between what the opposition has proposed and what the government has proposed in its bill. Obviously, the first of those differences the leader has outlined. We would say that if the Parole Board says that you should not be released, you should not be released. The government leaves the door open that that could potentially happen. We say that if you show an unwillingness or inability to control your sexual urges, then you should not be released.

The government's bill has another option available. This other option is that if you are able to show that, because you are old or infirm, you are not a risk—even though you display an unwillingness, an inability, to control your sexual urges—then the Supreme Court will be able to release you. I am very concerned that this is going to lead to a loophole. Lawyers will absolutely test this legislation because, if you are detained under this section of the Sentencing Act, you have nothing but time to challenge every aspect of this legislation before the courts.

I think it is incumbent upon the Attorney to give a better explanation as to exactly what the requirements would be for demonstrating to the court how you would, on the basis of age alone, convince the court that you should be released even if you are unable to control your sexual urges. So, if you are old and unable to control your sexual urges, you are able to be released if you can say, 'Because I'm old it's not a risk, even though I'm unable to control it.'

Alternatively, as the member for West Torrens and the leader have outlined, there is a risk that people will be able to demonstrate before the court that they have an illness or infirmity, even though they are unable to control their sexual urges. They then may potentially recover from that. This legislation does not specify that it is a permanent infirmity or disability. It could be a temporary infirmity. My question is: can the Attorney better explain this, and can she explain why we need to have this section at all? Would the community not be safer if we just deleted this and kept the other section which, in my view, better protects the community?

The Hon. V.A. CHAPMAN: On the latter matter first, I think it is a reasonable question to ask because I asked the former attorney why we need this at all. Apart from referring to Judge Barrett's case, he pointed out that there was a cohort of people coming through the system who were mature age and very soon would need aged-care services. When I say 'soon', not imminent but it would occur, and therefore this was necessary for that purpose. Sure, that is a matter we can reconsider, and we can keep these people locked up until they just die rather than move them to an aged-care facility. That is not something I have addressed my mind to as a general matter.

The first question is in relation to if somebody fakes it, or they are temporarily infirm, get through the system and then develop a circumstance where they actually are capable of committing a further offence or posing an appreciable risk. Can I say to the member that the matters before a judge for consideration, obviously in relation to subparagraph (b), have to be on medical evidence, etc. There are a whole lot of other clauses that cover these matters, which include the provision of medical evidence.

I suppose that to some degree we have to rely, as we do on a daily basis, on the medical expertise as to whether someone is in a deteriorating health circumstance that is unlikely to turn around. That is the assessment they have to make for the purposes of presenting their medical opinion to be relied upon by a Supreme Court judge. We do that on a regular basis in relation to the identification.

I indicate to the member, and I hope it will be of some reassurance, that we are not just talking about a risk that may happen: it has to be an appreciable risk. That is the threshold that has to be identified for the purposes of disqualifying this option to be released. It does not have to be a strong case, just an appreciable risk. So it is not just a minor risk, not just an appreciable risk, but certainly not something that is going to be substantial for the purposes of allowing a release under those circumstances.

Yes, we may revisit as a parliament whether we have that clause at all in relation to older people who largely are in custody, or for it to be taken into account at the time of sentencing generally, but there are a number of other clauses in the sentencing law, now under the Sentencing Act, which I suppose wrap around this provision and I would ask that you take that into consideration. If you have any other concerns about that, I am happy for you to sit with someone in the Attorney-General's office and advise how exactly the process would be from the application all the way through—

Mr Mullighan: Actually in your office?

The Hon. V.A. CHAPMAN: —in the Attorney-General's Department—to go through that. The shadow attorney-general, of course, has had a briefing on these matters and was invited to go through that. He had a briefing on the Humphrys matter, as have, obviously, our crossbenchers as well. We are more than happy to go through that at some length with the member if there is a concern as to whether we should remove that from the legislation altogether.

Mr PICTON: Going back to the first part of the Attorney's answer, and specifically to why we have the aged-care requirement, she basically said that it is in relation to the need for potentially releasing people to an aged-care facility as people get old. She alluded to the large number of prisoners who are in elderly years. My question to her is: could you not already, under the existing legislation, declare an institution (i.e. an aged-care place) which had the appropriate safeguards under the Correctional Services Act as an institution without having to go down this path that is inherently different, which is releasing on licence?

If you had somebody who you believed was aged, but they were unable to control their sexual urges and potentially their inability to prey upon people, who needed a different type of accommodation that was secure, you could use existing legislation without this section to declare an institution under the Correctional Services Act and you would not need to do what is very different, which is releasing on licence into the community into what presumably would be a normal aged-care home where family members of our community would be as well. What would be the risks and safeguards applying to them in that situation?

The Hon. V.A. CHAPMAN: Although that is not under this act, I am happy to take the suggestion on board, but let me say that we have a number of people who are in secure aged care for different medical reasons and we also have people who are released from James Nash House in relation to aged care and it is a fine line between someone who moves from a disability or, in the James Nash House case, mental incompetence capacity to aged capacity; that is, they move from having a treatment approach based on one cohort to aged.

The disability to aged-care entitlements transfer at 65 to 70, which, in my view, is fairly young. Mr Humphrys, for example, is 66, but, frankly, as far as I know, he is still physically able to move around and is certainly not in the infirm or advanced age category. We would need to consider how they would be best addressed—not necessarily Mr Humphrys himself, because it may be appropriate that he simply remains in detention—when he and any others get to an advanced age as to whether they go into a different type of facility.

The member has been a member of cabinet, and as a former minister he would be aware of the case of Schuster in late 2016, where an application was made for his release. Under the previous administration, orders had been made to enable him to be released into secure facilities, which are still being built. They are going to be very, very costly, but that was under the member's former government's administration.

Since coming into government, we have obviously been briefed on that matter. It has been in the public arena, so there is nothing secret about it. Mr Humphrys has sent a shiver up the spine of most South Australians in relation to the prospect of him being released. Mr Schuster is in a whole new world. Let's be realistic about this: we have dangerous people. A question would have to arise if they moved out of a secure prison facility and were in such a state that they could safely go into an aged-care facility, just like we currently have with a number of dementia patients, who, from time to time, are quite violent, which has nothing to do with any prison record but is caused by their own infirmity, particularly dementia. If they are a risk to themselves and others, they sometimes have to be kept secluded or in a separate facility within the agency.

That is similar to the situation where we have mental health patients who mature in age, go into aged care and need special care and security to protect themselves and other residents and sometimes staff. Yes, all these things have to be taken into account. We will give some thought to the suggestion that we build a facility for these people to avoid any of them going on licence, thank you. But let me say, in relation to this issue before us today, we want to make sure that these people do not get out.

Mr PICTON: Firstly, in relation to the Schuster case, I am not aware of the court making any determination on his release. I would hope that this legislation is going to be tough enough to prevent that from happening as well—not just in relation to the case that we are talking about. In relation to my question on release into aged-care facilities, the Attorney said, 'That's not about this act.' Well, actually, with respect, it is in this legislation under section 57(14)(b), which states that the person will be detained 'in such institution as the Minister for Correctional Services from time to time directs'.

So the minister could direct a particular institution, presumably with the proper safeguards, if that were the view, but of course it would have to be secure. This section that the Attorney is promoting in this bill would be inherently different, as it is a release on licence in the community, in a community aged-care facility, not under the control and directions of the minister for Corrections. Can the Attorney-General outline why it would not be appropriate to use the current section 57(14)(b) in such a circumstance, as opposed to releasing into the community, into community aged care?

The Hon. V.A. CHAPMAN: There are two things that the member is a bit confused about in relation to that question. As I say, I take into account the question of whether alternate facilities are a better way of providing the confinement of people in the category that we are dealing with in this legislation. That is an initiative we can have a look at—it is able to be considered—but, if it is going to be under a correctional facility, that is a matter that we would have to look at.

In relation to the Schuster case which the member has referred to, and with which he is familiar, that is exactly what is being applied in his case. The court has determined that he should be released, and the conditions of his licence include that he live in a secure, supervised facility—along with a lot of other things, too, but, for the purposes of this exercise, that he live in a property which is in a locked environment where there are three shifts a day of supervision.

Mr PICTON: So the court has decided that?

The Hon. V.A. CHAPMAN: The court has determined that he is to be released in those circumstances. As we speak, as the member should be aware because he was a minister in the government during the time when this was executed—

Mr PICTON: I was not aware that they had made any decision.

The Hon. V.A. CHAPMAN: I do not know what the member was told when he was in cabinet but, in any event, if he did not inquire or was not informed that is not my fault. Can I make this point—

Mr Malinauskas: Nothing ever is.

The Hon. V.A. CHAPMAN: I can take responsibility for a lot of things, Leader of the Opposition, but I am not taking responsibility for your former government—let me tell you that right now—because it had so many disasters and I am not about to absorb that mess.

Members interjecting:

The CHAIR: Order!

The Hon. V.A. CHAPMAN: What I will say to the member is that in the Schuster case a determination was made by the Supreme Court that he ought to be able to be released from prison on licence with certain conditions. Those conditions include that a secure facility is provided. It is still being built. Apparently the planning applications have taken some time. I have asked for the material on that to be collated, with a contemporary assessment about what on earth is going on in that case, and presented to the Supreme Court Chief Justice. I understand that has occurred.

If the member is not familiar with the circumstances that his previous government had responsibility for, then I cannot help that. Let me say that at the time that this early decision was made—and we are talking late 2016—I expressly had a discussion with the former attorney-general, (member for Enfield), as to whether it would be appropriate to bring this issue back into the parliament and consider how we might address it in relation to the then new sentencing law that was coming in.

For whatever reason, he and/or the cabinet—whether it was considered or not—elected not to do so. I cannot take responsibility for that, but what I do say is that we are here to fix it up today. As soon as the decision was made on 27 March by Justice Kelly, we on this side of the house, apart from making inquiry as to whether the DPP was going to appeal the matter, started working on this. Our new government started working on this, on this side of the house, and we have undertaken extensive work to ensure what frankly should have been done when the former government was on notice in 2013. They were on clearer notice but impending disaster potentially in late 2016, and they did nothing.

So, yes, we have acted and, yes, we will bring this matter to some conclusion to ensure that the public is protected. The previous government have gone—thank goodness—but they failed to do it and we will not take responsibility for that.

Mr KOUTSANTONIS: Can the Deputy Premier advise the house who would assist the court in making a determination that the person was of advanced age or had an infirmity?

The Hon. V.A. CHAPMAN: Under the proposed clauses, the medical evidence—the list I read out—two medical reports would have to be prepared by two different medical professionals for that purpose. I would expect that would be the most valuable information; however, the two other areas that I think would be significant would be, firstly, the ongoing assessment through Corrections. In particular, the Parole Board gets regular reports on prisoners, which are now required under this bill to be presented before an application is heard, together with the express opinion of the Parole Board, whether that is no recommendation, recommendation to reject or recommendation to approve.

Mr KOUTSANTONIS: Of the two medical reports to be presented to the court for its assistance, would the applicants seeking a licence for release have an opportunity to provide their own medical assessments?

The Hon. V.A. CHAPMAN: Yes, they can. They can present whatever they like, but the court has a list of things that it can seek. It also has, under the bill, as under the current act, the capacity to direct further information itself. They may say, 'I have before me two medical reports in relation to the alleged level of infirmity,' for example, 'but I'm not satisfied about that. I want to have a psychiatrist examine the defendant and provide me with a report'. Obviously, there are other areas, such as neurological assessments and the like, that come to mind, so the court has its own capacity as well to call for that evidence.

Mr KOUTSANTONIS: In a previous life, I happen to have had the privilege of being corrections minister—one of the roles I enjoyed the most, I have to say, as minister. It was my experience with my then chief executive, Mr Peter Severin, that everyone I met claimed to be innocent and everyone I met was ready for parole and everyone I met had a reason to leave prison, which is what they all say and what you would expect them to say.

My concern with the clause that the government is putting to us is that it really boils down to whether or not the infirmity or advanced age does prohibit someone from being able to act out whatever fantasies or sexual urges they have. What I think the government is relying on is that that risk is mitigated by an infirmity or advanced age.

I do not think that anyone in this parliament, other than maybe the cabinet—and I suspect that even the cabinet would be divided on this—thinks that we should not make this watertight. I suspect that there are backbenchers who are looking at these clauses and hearing this debate and will think to themselves, 'Why don't we just change it so you can't use infirmity or advanced age as a reason to get a licence?'

Mr Cregan: We think it's been well drafted, Tom.

Mr KOUTSANTONIS: I'm sure you will all say that, but I suspect that there are some backbenchers who would think, 'Why are we even allowing the possibility of a loophole?' The reason I think this amendment has its issues is that it has been rushed in response to what the Leader of the Opposition has done.

The DEPUTY SPEAKER: Member for West Torrens, do you have a question?

Mr KOUTSANTONIS: I do, sir—I am fleshing it out to the house, providing the context the house deserves.

The DEPUTY SPEAKER: Could you ask the question, please, member for West Torrens.

Mr KOUTSANTONIS: I will get to my question soon. When you tell your agency publicly—because agencies do monitor the radios and the TV and see what their ministers are saying—and you say that you will not be rushed into making legislation, that it would be a publicity stunt, the agency responds and says, 'Oh, there's no rush here.' Then, of course, other actions intervene in the meantime, with perhaps the Premier or the Premier's media unit saying, 'We're getting killed on this. We need to act quickly,' so legislation is drafted.

I would have thought, given the debate we have heard today, that government members might be a bit concerned that a professional criminal, who has preyed on children their whole life, who has spent their entire life attempting to conceal their intent from people and loved ones—and they are very good at it (Justice Liddy being a fine example of someone who spent their entire life concealing their intent to get to kids); these people are experts at lying, experts at covering their tracks, and perhaps people of high intelligence who are motivated to get to kids—could somehow use infirmity or age, despite knowing that they cannot prove they do not have the sexual urges in place, to get out.

Is this clause really a government amendment to allow aged or infirm paedophiles out of gaol, or is it really an attempt to keep people who have an intent to commit crimes in gaol? I would say to the Deputy Premier that I think she can see the amendments coming to her at a million miles a hour in the other place: why not just do it now?

The Hon. V.A. CHAPMAN: The member for West Torrens alludes to what is some proposed amendment. I do not have it, but we offered an opportunity to consider it overnight if he wanted to present something. Nevertheless, the opposition, through the Leader of the Opposition, have indicated their willingness to allow the passage in this house. Should there be matters that are raised between the houses, we will always give them consideration.

So far, that speech in my view has not alluded to anything I would properly consider sensible enough to actually respond to, but I accept that he is genuinely concerned about how we might ensure the absolute safety of the community: I accept that. It is disappointing that he did not do anything about it in all the years he was sitting there in cabinet but, nevertheless, I accept that he would not in any way deliberately want to cause harm to people in the community, especially in his neighbouring district that the Leader of the Opposition represents and who has taken a more latent interest.

What I will respond to is this: in relation to the assertion—

Mr Malinauskas: No, no. You acknowledged that I wrote to you at the beginning.

The Hon. V.A. CHAPMAN: You only care about them when it's in your electorate!

Mr Malinauskas: It's another change of position.

The Hon. V.A. CHAPMAN: You only care about it in your electorate, of course. Nevertheless, you raised it at that time. You have been a minister. You have covered Corrections yourself and all these other things.

I put this to the member for West Torrens in response: the consideration of an appreciable risk test if aged and infirm is not a new feature. This is a part of the legislation introduced in the new sentencing reforms in the current act by the former Attorney-General. If we revisit that entirely, then there is a bigger picture aspect to that, and it is not one that we consider would be a matter that puts the community at risk.

If we were to be allowing this to be an administrative decision of, say, the head of Corrections—and it is no reflection on the current head of corrections, Mr Brown, who is doing an admirable job—

An honourable member: A good man.

The Hon. V.A. CHAPMAN: Indeed, a good man—when one looks to determinations such as this by someone other than a Supreme Court justice, then I would have some concerns, quite frankly. I think other pressures, as have been outlined, are matters that would press on a person who has administrative responsibility and not judicial independence.

I have raised this issue before, as the member knows, when it comes to a consideration by correctional services officers in the determination of whether someone might have home detention. The pressures of the fullness or otherwise or oversubscription of people who are in prisons might be a factor which would weigh on the mind of someone in that position and outweigh the appropriateness or otherwise in terms of whether someone should have home detention as part of their sentence.

That is an example of where there would be a concern if there were other pressures. What we have here is legislation which proposes to leave the Supreme Court as the arbiter in relation to this to severely restrict the capacity for release and to clearly place the onus on the applicant—that is, the person who has been convicted of a serious sexual offence in these circumstances—to put their case and to have to justify it and with a number of threshold steps to overcome.

I do not know that that helps the member for West Torrens, but then I do not really appreciate that his speech provided me with much other than to try to give him some reassurance and to consider that he would reasonably be concerned about the safety of the community. I think we all are. This model has had a number of iterations, notwithstanding his suggestion that this is hastily prepared, as I have indicated, and I do not want officers who have worked on this for a number of weeks now to be insulted by the suggestion that this is some kind of latent progress.

After this decision was made by Justice Kelly of the Supreme Court on 27 March, the immediate concern of the government was to identify whether the DPP was going to consider the matter and appeal. He did. That process has taken place. Meanwhile, the government have advanced the drafts and the models and the consideration of how we might deal with legislative reform. I think the last draft we had was the eighth draft. The brightest people the government can offer, including the Solicitor-General who argued the appeal on the state's behalf before the Full Court last week, were able to ensure that the best model was developed and other options were considered, including the three-year detention expiry rule to be abolished.

Clause passed.

Clause 4.

Mr MALINAUSKAS: I think this is probably the appropriate moment to ask a few questions of the Attorney-General on her thoroughly well-crafted legislation, according to her remarks. I trust the government has had the opportunity to contemplate the bill that the opposition and I had drafted and that the Attorney-General has had the chance to familiarise herself with the differences between the opposition's legislation and the government's legislation.

In this particular section, I think there is a distinction. I refer to the ability for an offender to reapply for release on licence where they have breached a condition, if they have already been released on licence. With your indulgence, Mr Chairman, I believe the opposition's bill had a clause within it that prevented an offender from being able to apply to be released on licence for a period of seven years, if they had breached a condition of their release on licence. My question to the Attorney-General is: does the government's bill have any such restriction or provision?

The Hon. V.A. CHAPMAN: No, we do not have a time restriction. If there is a breach, they go back through the normal process and are supervised under the Parole Board.

Mr MALINAUSKAS: To be clear then, could there be a circumstance under the government's bill where an offender is released on licence into the community, breaches a condition of their licence, then subsequently is sent back to gaol, and then literally within a matter of weeks or months could reapply to be released on licence?

The Hon. V.A. CHAPMAN: All of the features under the current section 59 of the Sentencing Act still apply, so there is not a time limit, just as we have removed the three-year rule, which under subsection (19) is automatic after three years. Our provision adds to section 59, which sets out all the parameters of release on licence, including that the paramount consideration of the Supreme Court when determining an application, etc. must be to protect the safety of the community. That is all still there. That is unaltered; that remains. The bill which relates to this adds in this extra clause which detains the person and prohibits the release unless they are in those two circumstances which we have traversed in a previous clause.

The object here is that if for any reason somebody is at large—and let me give an example. I give this example because the Schuster case is already well known in the public forum. Where someone like this is on licence but under supervision, which is what was proposed in that case—

Mr Malinauskas: That was proposed in the Schuster case.

The Hon. V.A. CHAPMAN: Yes. If the person were to assault the supervisor, which is a possibility—I would hope not, but nevertheless that could occur—then that in itself may render them to have to come back through the system.

We could have a situation where they do not even have to be at large or have predated on a child. It could be a condition of their licence that they do something else: drink alcohol, get access to the internet, assault their supervisor, cause property damage, set fire to the house or these types of things. These are all conduct which may well trigger reinternment. The seven-year rule, in short, does not apply to the model that is there. All the provisions of proposed section 59 are there but, in addition to that, we insert the extra paragraph (1a) which adds to that provision.

Mr MALINAUSKAS: I appreciate the Attorney-General's frankness in her response. For the sake of the record I want to provide additional clarity. The government has confirmed, as I understand it, that there is now circumstance under this section where someone could be released on licence into the community, even if they are unwilling and unable to control their sexual instincts, could breach their licence conditions, go back to gaol, presumably still retain their inability to control or be willing to control their sexual instincts, and then can apply to be released again. My question to the Attorney is: can you confirm that that is indeed the case?

The Hon. V.A. CHAPMAN: I have answered that question many times.

Mr KOUTSANTONIS: My question to the Attorney is: why is subclause (1a)(b) in clause 4 necessary?

The Hon. V.A. CHAPMAN: It is the same answer to (1a)(b) of clause 3.

Mr KOUTSANTONIS: Did the minister have drafts of this legislation that allowed people who were not able to apply for a licence to be considered by the court due to their age or infirmity?

The Hon. V.A. CHAPMAN: Of the nine drafts—instead of the eight as I said before—there was, in the early draft, no reference to this, but that draft was put to the DPP and the DPP's office identified, obviously in relation to the operation of the rest of the act, the importance of having this provision in there.

Mr KOUTSANTONIS: Thank you very much for the clarification that subparagraph (b) is not the government's idea but is indeed the DPP's idea. Given that the DPP insists on the insertion of subparagraph (b), will the government consider removing subparagraph (b) so that the only determinant for an application of licence be whether someone is capable of controlling and willing to control their sexual instincts?

The Hon. V.A. CHAPMAN: Although it is not entirely clear if the member for West Torrens is proposing to put an amendment to that effect, if he does, in general terms we would have a look at it. Let me make this absolutely clear: in the drafting of this legislation the government makes the ultimate decision about what is made. Of course we rely on getting advice from people such as the DPP, which is the agency responsible for the prosecution of these matters, and we value their advice.

We obviously take advice from other agencies as well, such as the Solicitor-General and parliamentary counsel, a whole team under Ms Joanna Martin, who is present here today, who admirably advise the government on proposals that are put for statutory reform and how they might sit lawfully, effectively and practically under the umbrella of the legislation that we are reforming. They frequently advise us, within the envelope of amendments, how that might sit with the principal act and highlight to us if there is any omission in the original drafting that would need to be taken into account.

I hope that the member for West Torrens was not being insulting in respect of commentary on the recommendations that are put and the need in a case such as this for there to be multiple drafts for consideration by the government and its advisers. We value that. We have taken some time to make sure that we get it right. This has to be considered reform. It has to be effective. I do not know why the former attorney-general did not act on this. Perhaps he thought it was a good idea and the cabinet said no. I do not know the answer to that. All I know is that it was not remedied and that we are remedying it. We are proud of that, because we want to protect the people of South Australia.

Mr PICTON: In relation to the Attorney-General's statement that the addition of (b) in both this section and, presumably, the previous section as well was on the recommendation from the Director of Public Prosecutions, can the Attorney outline when that recommendation was made, if the director made any other recommendations on this bill, whether the advice from the director could be tabled and who else the Attorney consulted with in the drafting of this bill?

The Hon. V.A. CHAPMAN: In relation to the provision of any copies of advice, we would have to take on notice whether that is appropriate or not. I assume that is in legal advice. Certainly, my understanding is that it was in the early drafts, because the DPP—who is currently on leave, incidentally, but at the time was here—was able to view the bill and make a contribution, so I am not aware whether there is anything else. Apparently, it is not here at the parliament for me to actually look and check if there were other areas of recommendation from him. The Solicitor-General has been very active in relation to advice on this matter and, as I say, is very familiar with the current legislation. He represented the state in relation to the Supreme Court Full Court appeal last week.

As I understand it, the Department for Correctional Services has viewed a copy of the draft bill as well at some stage during the course of the gestation of this, in one of the nine drafts. It is our intention, having tabled the bill, that we will send it out for further consultation again during the course of time that it takes before it is dealt with in the Legislative Council, for others to have a look at it and ensure that, as best as possible, obviously we take into account those views.

One of the aspects of considering the Full Court judgement—if and when that arrives—is that they, too, may have some helpful advice in relation to how these matters are best dealt with, particularly as the model we propose continues to provide a role of them to be the arbiter. In the ordinary course, we would then provide copies of the full final bill for their consideration. However, it is fair to say that, since becoming Attorney-General, I have had discussions with the Chief Justice and this topic has been included. To the best of my knowledge, he has not been provided with a copy of the final bill, but certainly we have had discussions with the judiciary in that regard.

Mr PICTON: Further to that question, I note in her reference to a previous answer she mentioned that the Schuster case has apparently been decided by the Supreme Court, which certainly was a surprise to me and I have been searching through Supreme Court records and judgements to try to find it, and I cannot find it. If that judgement has been made by the Supreme Court, as the Attorney outlines, then it must have been in the last couple of months, can she outline whether the decision and judgement of the Supreme Court in that matter have led to her deliberations in this matter in this legislation to try to prevent releases such as that happening in the future?

The Hon. V.A. CHAPMAN: In relation to the first, that is, the Schuster case itself, it is still continuing before the Chief Justice.

Mr Picton: That is not what you said.

The Hon. V.A. CHAPMAN: Just let me say that a decision was made in respect of the hearing of that case and release on licence, of which the Chief Justice has adjourned until the consideration has been given to the capacity for the building of a facility that would satisfy what he has proposed.

Mr Picton: You said he decided.

The Hon. V.A. CHAPMAN: I am just saying to you that he has given his reasons for what he wants to happen, and the government of the day, which was your government, was then vested with the responsibility to go away and, presumably, build a facility, and that is apparently what is still happening. The capacity for him then ultimately to make the decision to say, 'Yes, I want him now released,' frankly relies on that being concluded or, for example, some other submission being put to him to vary that determination.

That is the way I understand the position; that is, he has indicated his decision to grant a licence conditional upon certain things. Those conditions precedent have not yet been met but are being pursued. As to how they advanced, I do not know the full picture, but I suspect that if the member asked some of his former colleagues they would get some advance on that.

My understanding of what has occurred is that a site has been identified, a model facility has been drafted, drawn up, developed, whatever, the security identified, but that there has been a hiccup with the planning applications; that is, as the property is owned by Renewal SA, a certain other planning process has to take place; that has been identified. That has been a factor in the delay of the determination on that, and I have asked for information surrounding that to be presented to the judge. To be clear on the second part of the question, can you repeat that?

Mr PICTON: I thank the Attorney for clarifying that the Supreme Court has not made a decision in the Schuster case. It was certainly my understanding that there had been no such decision. My understanding was even that the DPP had not yet made his submissions on what should happen in that case. It is at quite an early stage, from what I understand.

There is one case before the Full Court of the Supreme Court at the moment which has been in the public debate and which has led to parliament debate in this bill, but it is very important that we consider the potential of that other case, and potentially a whole range of other cases that we do not know about where applications might be made. Therefore, I ask the Attorney: has she sought advice in relation to the provisions of this bill and whether they would assist the DPP in objecting before the Supreme Court to the release of Mr Schuster?

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.

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