HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
2019-02-26 Daily Xml
Contents
Pdf Xml

Bills

Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:42): I was referring to the opposition's foreshadowed amendment, which persists in attempting to amend section 71 even further (and differently, really) than the government's proposed tightening of the application of this home detention position. With that, they had added to it an acknowledgement that there is an exception that needs to be taken into account, namely, that those who are engaged in young love—usually young teenagers—will, under the government's model, have some protection and be able to be considered differently if there is a three-year age gap between them.

However, clearly there are circumstances in which the conduct of even one of these young people could be reprehensible and would need to not attract the exception that otherwise would apply. Obviously, we can canvass that in committee, but it is something that just highlights how inappropriate that amendment could be.

There is a foreshadowed third amendment, which arises in relation to a matter raised in a case pending before the court, as to what law should apply in sentencing. It is now under review. It seems to be a proposed amendment dealing with a possible interpretation that may come from a case that is currently before the courts. In relation to that, I would like to say that I think it is important that, if there is a matter that needs to be dealt with arising out of court determinations, obviously the parliament needs to be prepared to act on that. At the moment, it is a hypothetical.

I am advised that, in relation to an attempt to progress an amendment in the form that is proposed, which I accept, even without hearing submissions from the opposition, is likely to be presented on a bona fide basis of attempting to avert a potential difficulty, what would be better is that we ask the Solicitor-General between the houses to consider whether such an amendment to deal with a possible problem can be validly made and not just create another problem. If it is the case, then I would undertake to bring that matter back before the parliament in the Legislative Council. We do not want to hold up this legislation, nor do I want to quell the enthusiasm of the opposition if they come up with a bright idea.

I think I know what they are trying to achieve here. I think it is premature. I think it is a matter that still needs to be investigated. I undertake to refer this particular amendment and the issue generally to the Solicitor-General between the houses, but in the meantime, for obvious reasons, we would not support the amendment going through at this point, particularly if it is going to be ultra vires.

Several members mentioned the victims in the Deboo case. I have made public statements and statements in here about the courageous contribution that one of the victims in particular has made as a result of him making public statements and being available for consultation, not only to members of the opposition but to me and another member of the government, to try to make sure that we are doing the best we can.

I think it is an exceptional circumstance, but a very welcome circumstance, when victims of such acts of perpetrated violence and exploitation of children are able to grow up to be fully functioning decent human beings who have successful lives and have partners and families of their own. We see victims who, especially as children, have been victimised, but they are able to reach past that and become significant contributing members of our community. It is a delight to see because, I have to say, it is the exception.

Whilst that is the case, I want to place on record the government's and my appreciation in particular for his full and frank discussions and for making himself available to ensure that his and his brother's circumstances are front and centre in our considerations as legislators. That has been valued. I have appreciated his public endorsement that it is important to get these things right and that therefore a comprehensive assessment, which has now identified some inconsistencies that we are now attempting to remedy, is the way to go. We certainly feel that is the case and therefore some careful consideration has been undertaken.

Nevertheless, I place on the record that, although a lot of water has gone under the bridge on this matter, there will be more circumstances where we need to address something fairly expeditiously, or where we have highlighted an inefficiency, or where that exposes another weakness. From time to time, as a parliament we will need to convene and be available to accommodate that.

For what it is worth, there were occasions outside of the house, when we were in opposition, when the then government, and particularly the attorney-general, came to us to say that there had been a decision in the High Court or some such forum that had challenged the validity of what we had done previously, there had been a national royal commission recommending X and we needed to act quickly, or someone was to be released from custody, so he needed to be able to action some statutory reform quickly. We accepted responsibility as the opposition to be available, to be briefed immediately and then to support the quick passage of legislation.

I do not think for one moment that just by being a new government, or being on top of this issue, there will not be occasions in the future when we need to act, and we have a responsibility to the public to do so. In any event, can I just say, in the course of this debate, that I am very proud that we have been able to act to deal with the National Redress Scheme, the abolition of the three-year time limit, to ensure that we give those who have been victims in cases such as this, which have been the catalyst for this legislation, an opportunity to seek some financial compensation. Other matters, of course, we will take up in due course.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.C. MULLIGHAN: With regard to clause 1, the Attorney made reference to some of the bodies and organisations that had provided the government and her some advice or views about the bill. My question is: which other stakeholders were consulted and what was their feedback to the bill, other than the ones she has already referenced in her closing contribution on the second reading?

The Hon. V.A. CHAPMAN: The agencies that I referred to during the second reading are government agencies and almost exclusively state, except for the Commonwealth DPP. I was advised during the luncheon adjournment that a submission has been received from the Law Society of South Australia, dated 25 February. This is not a government instrumentality, so it is consistent with our usual practice. I think you will find this will probably already be online, but I am happy to make sure a copy of it is made available. I have not even read it yet, but I understand and am advised that, in short, it raises a number of observations and goes through those. During the course of this, at least between the houses, I will make sure a copy of that is available.

In addition to the ones who have not yet provided a response, there are the Victim Support Service SA, the South Australian Bar Association, the Aboriginal Legal Rights Movement and the Women Lawyers Association. Except for the South Australian Bar Association, I think they are all entities of the government. I am pretty sure the Aboriginal Legal Rights Movement would make their submission available to you, if they make one at all. Whilst it is not usual practice to provide government agencies' advice on these matters, I have given an indication of who has supported it and who has not, but should any others come in between the houses, I propose that that information be conveyed to the shadow minister.

The Hon. S.C. MULLIGHAN: I appreciate that. As a result of the responses that are being provided to the Attorney and to the government, does the government intend filing or making any amendments to the bill either here or in the other place?

The Hon. V.A. CHAPMAN: As to what the Department for Correctional Services may say about the intensive supervision orders—we are yet to receive their submission—there may be something in that regard, but again, whatever that submission or proposal is, I would undertake to have that immediately conveyed to the shadow attorney.

The Hon. S.C. MULLIGHAN: My last question on this clause is: regardless of or despite any stakeholder feedback, are there any other amendments the government will be pursuing either here or in the other place?

The Hon. V.A. CHAPMAN: The only other matter that is under consideration is whether the legislation still requires a transitional clause or clauses, and that relates to the home detention end. As the member may appreciate, when the act went through, when the 2016 bill was debated, we transplanted the suspension of sentencing regime under a new system. We have identified inconsistencies between that and home detention, and we now need to look at whether there needs to be a transitional clause in relation to those suspended sentence modifications. It is not a new law or any change: it really is to just ensure the transition. But we are still getting advice on that.

Clause passed.

Clause 2.

The Hon. S.C. MULLIGHAN: The Attorney anticipates my next line of questioning, which was about commencement and what the government is considering in terms of commencement and whether there needs to be transitional provisions. The Attorney just indicated that there needs to be some consideration of that. Perhaps not only for my benefit but for the benefit of others interested in this matter, could the Attorney shed some light on what needs to be considered and how that may influence what the government decides to do with commencement and transitional provisions?

The Hon. V.A. CHAPMAN: As the member may know, Legislative Services assist the Attorney-General's Department to prepare the policy and give advice on these matters. I think some discussions are currently happening with parliamentary counsel, or there have been, as you can imagine, because they have been dealing with this bill that was tabled the week before last. It seems as though transitional provisions are being considered at the moment, but we do not have anything to present at this point. The Attorney-General's Department, but largely Legislative Services and parliamentary counsel, are attending to that.

The Hon. S.C. MULLIGHAN: Are there particular parts of the bill or particular matters that the bill seeks to address which are the subject of those transitional considerations?

The Hon. V.A. CHAPMAN: They relate to clauses 13, 14 and 15 of the bill. Hopefully, this assists: I am advised that in relation to those clauses you will see that there is deleting in respect of the case of a bond with a home detention condition. This relates to suspended sentences, as I said earlier. We are looking at trying to make sure that anyone already on a suspended sentence subject to these terms is not removed from the act with no transition. That is the purpose of this clause.

The Hon. S.C. MULLIGHAN: I seek some further information in regard to that from the Attorney, on clauses 13, 14 and 15. On my very brief reading of it, clause 13 appears to refer to offences involving acts of terrorism and murder, including conspiracy to murder, aiding and abetting, counselling and procuring the commission of a murder, and clause 14 goes into a long list of offences. I may have this confused in my own mind, which is probable, but is it more about the transitional provision of how it affects someone who has been sentenced rather than the offences themselves?

The Hon. V.A. CHAPMAN: I have just been provided with a substituted final draft of the bill. Instead of clauses 13, 14 and 15 (and this may be why there is some confusion), it is clauses 15, 16 and 17 on page 15 of the final bill. Does that make it a little clearer? It is similar, but I was reading the wrong clauses. Clause 15 is the same:

Section 106(2)(b)—delete "except in the case of a bond with a home detention condition,"

The problem here, potentially, which may need the attraction of a transitional clause, is that if somebody is already out there on a suspended sentence with this condition, and it gets deleted, we are going to leave them vulnerable and not covered. Obviously, we do want them covered.

Clause passed.

Clause 3 passed.

Clause 4.

The Hon. S.C. MULLIGHAN: I am advised that, with regard to clause 4, 'Repeal of Part 2 Division 2 Subdivision 3', the Director of Public Prosecutions, or the Office of the Director of Public Prosecutions, requested these amendments and that the courts have expressed some concern about the provisions of the act. Is the Attorney able to confirm whether that is the case and provide a brief explanation of those views and how the Attorney is mediating them?

The Hon. V.A. CHAPMAN: Firstly, in respect of the Chief Justice, he just gave a sentence and it was pretty clear: 'Leave us alone. We will make the decisions.' I paraphrase that of course. The Chief Magistrate's statement on this issue was that a repeal of part 2, division 2, subdivision 3 will reduce uncertainty. I take that as support.

Clause passed.

Clause 5.

The Hon. S.C. MULLIGHAN: With regard to the amendment of section 52, interpretation and application, I understand that this updates or improves the definition of a terrorist act to be consistent with commonwealth legislation. Can I ask the Attorney how the need for this particular amendment came about? Was it drawn to her attention by the commonwealth government, given that this bill seems to deal with sexual offences, although not exclusively?

The Hon. V.A. CHAPMAN: I do not recall it being drawn to our attention by the commonwealth but, in the submission they have given us, they agree that it is to be included. As I said in the second reading contribution, I think that most of these were brought to our attention by the state DPP. But, as you might appreciate, and as I think I have mentioned, aspects of the terrorism legislation, which applies at both commonwealth and state level, obviously need to be consistent. From time to time, we have to tidy it up, which is what is included. I further advise that it picks up any consequential amendments in the commonwealth law as well.

Clause passed.

Clause 6.

The Hon. S.C. MULLIGHAN: With regard to clause 6, my understanding is that this updates the definition of a terrorist act to make it consistent with commonwealth legislation. Again, was this suggested by the DPP, parliamentary counsel or the federal government?

The Hon. V.A. CHAPMAN: I understand that this was picked up by parliamentary counsel, but the Commonwealth DPP was consulted with the draft of the bill. As I understand it, that is acceptable.

The Hon. S.C. MULLIGHAN: Other than parliamentary counsel's eye for fine detail, has anything led the DPP in the earlier instance when I asked a question, or now parliamentary counsel, to suggest that this definition be updated? For example, are we at some risk of imminent prosecutions under this element and it needs to be updated?

The Hon. V.A. CHAPMAN: I am advised no, and certainly not that I am aware of. Obviously, I get regular briefings. There has only been one significant case before the courts, which I think is on appeal at the moment on sentence, for the woman who was in custody for being a member of a terrorist organisation. I am pretty sure it is under appeal. In any event, no, I am not aware of any prosecutions that are pending or imminent.

The Hon. S.C. MULLIGHAN: Just to provide some context to my next question, I ask these questions because the bill mainly deals with other types of offences but seeks to amend this particular definition rather than any other definitions or terminology that need to be updated. Are there other matters that have been raised by the DPP, the commonwealth government or parliamentary counsel that are going to need attention later in a subsequent amendment of the Sentencing Act that we are not addressing here?

The Hon. V.A. CHAPMAN: Not that I am aware of. As I have said previously, there is, for example, the deletion of sections of the Sentencing Act that are surplus to requirements according to the advice we have had. I referred to those in the second reading. There are whole sections of the Sentencing Act that do not add any value to the actual regime.

But what has occurred here is not just how to deal with serious sexual offenders in relation to access to community-based options. Each of these areas has been considered. Clearly, the brief was to make sure that we identify what is to happen in relation to someone who claims to have special reasons as to why they should be considered to have access in matters of sexual offending, but these areas are not to be amended in ignorance of the fact that they are within a broader regime. So, if there are other matters that are brought to our attention, especially if something we are doing in relation to one area affects another, then obviously that needs to be attended to. I expect parliamentary counsel to bring that to our attention.

That has been relatively minor, from my reading of the bill and from what I have been briefed on and what I have received in correspondence, principally from our own state DPP, as to potential deficiencies and/or identified areas of risk. As I said, some of those were during 2018—not urgent, not pressed to us as being urgent—but sometimes, as I am advised, these sorts of things can be amended in an attorney-general's general bill to mop up things. But in this instance we were looking at community-based alternative sentencing, so the opportunity is to fix it up while we are there.

Clause passed.

Clause 7.

The Hon. S.C. MULLIGHAN: On behalf of Mr Picton, I move:

Amendment No 1 [Picton–1]—

Page 3, after line 16—Insert:

(a1) Section 71(2)(b)—after subparagraph (i) insert:

(ia) for a serious sexual offence where the victim is a child, or the offence is committed in the course of, or in circumstances involving, the sexual exploitation or abuse of a child, other than a prescribed serious sexual offence; or

(a2) Section 71(2)(b)(ii)—after 'offence' insert:

(other than a serious sexual offence to which subparagraph (ia) applies)

Before making some brief remarks about these amendments, I can foreshadow that if the first amendment is not successful, then I will not be proceeding with the second amendment, as I am advised that it is a consequential amendment the first one.

I made some comments earlier that, in bringing this bill to this place, the Attorney is seeking to strike a delicate balance in ensuring that we are amending this act to try to tighten up those provisions that the community and, as a result, this parliament are concerned are not tight enough in guiding the judiciary about making decisions on releasing certain types of offenders on home detention orders.

In the Attorney's initial second reading contribution, she made it clear that there has been some consideration by her and the government about whether there should be a clause in this bill that would prevent the release of certain types of offenders on home detention or whether the parliament should be asked instead to tighten the existing provisions which still provide some discretion for the judiciary to allow somebody to be let out of a correctional facility under a home detention order.

Our first amendment makes it clear that, on this side, we think there are certain types of offenders who should not be let out on home detention orders and that those offenders are those who have been found guilty of sexual crimes, particularly against children. As the Attorney has set out in her subsequent second reading contribution, there has been some effort by parliamentary counsel, and now via the amendments that we have tabled here, to try to carefully navigate the need to ensure that those people are not released on home detention yet to make allowances for what are colloquially called the 'young love' provisions or the Romeo and Juliet provisions for those people who may not be adults and who may have been found guilty, strictly speaking, of a sexual offence, albeit one that is consenting, as the Attorney pointed out before the lunch break.

Amendment No. 1 seeks to do that to ensure that these particular offenders are not able to access a home detention order. I think we have received the message loud and clear from the community that there is an expectation that this category of offender, if I can put it like that, is not released and that access to a home detention order is denied to them. Notwithstanding that, obviously we must ensure that we do not unwittingly capture those people for whom we would make an exception.

As the Attorney said just before the lunch break in her subsequent second reading contribution, this is certainly one area of the law where we are constantly having to navigate this difficult terrain of making sure that we are doing our best to provide the legislative instruments to keep behind bars those people who the community expects to be incarcerated, but we are not inadvertently incarcerating those people to whom the community would feel some sense of leniency, given the circumstances of their offending. This amendment, we believe and we are advised by parliamentary counsel, strikes that right balance.

The Hon. V.A. CHAPMAN: I think I have outlined in the second reading and the final rebuttal the government's position in relation to this. We have taken advice. The bill, as we have currently presented it, in relation to those who are convicted of serious sexual offences and have special reasons clearly needs to be tightened. We accepted that and we think we have done that. To exclude it and then have a Romeo and Juliet exception is not a model that we think is appropriate. For those reasons, amendment No. 1 is opposed.

The Hon. S.C. MULLIGHAN: I find the position of the government regrettable with respect to the amendment. As I said, the community expectation about how the parliament makes laws governing the release of these people has been made absolutely clear, particularly over the period of the last six months or so. As a result, there has been a public call to action, for want of a better expression, that we need to be getting on with and changing the laws which would allow a court, the judiciary, to release someone on a home detention order.

We are not convinced that relying on the slight modification that exists in the government bill to section 71 of the current act will be sufficient. I would have thought—and perhaps I read this in a way that is inconsistent with the approach of some in the judiciary—section 71(2)(a) should be guidance enough. It provides:

(a) a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice;

I would put it to this place that the public confidence in the administration of justice would be, if anything, eroded if someone like Mr Vivian Deboo were able to navigate this act or even this act subsequent to the passage of the government's bill and successfully apply for release. That is an unacceptable outcome, and that is why the opposition has placed this amendment before the house seeking support for it. I would encourage all members to give serious consideration to the concerns that the community continues to express about this category of offenders and whether they are able to be released into the community.

The committee divided on the amendment:

Ayes 18

Noes 25

Majority 7

AYES
Bettison, Z.L. Bignell, L.W.K. Boyer, B.I.
Brown, M.E. (teller) Close, S.E. Cook, N.F.
Gee, J.P. Hildyard, K.A. Koutsantonis, A.
Malinauskas, P. Michaels, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Stinson, J.M. Szakacs, J.K. Wortley, D.
NOES
Basham, D.K.B. Brock, G.G. Chapman, V.A.
Cowdrey, M.J. Cregan, D. Duluk, S.
Ellis, F.J. Gardner, J.A.W. Harvey, R.M. (teller)
Knoll, S.K. Luethen, P. Marshall, S.S.
McBride, N. Murray, S. Patterson, S.J.R.
Pederick, A.S. Pisoni, D.G. Power, C.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
Teague, J.B. van Holst Pellekaan, D.C. Whetstone, T.J.
Wingard, C.L.

Amendment thus negatived.

The Hon. S.C. MULLIGHAN: My first question is: how did the Attorney form the judgement that, on balance, as she has reflected in her second reading speech, the government has decided not to prohibit certain sorts of offenders being able to access home detention orders?

The Hon. V.A. CHAPMAN: Firstly, when we went to the then government to present an argument for certain offenders being excluded completely, one of the things that was persuasive was that both the Legal Services Commission and the former attorney, the former member for Enfield, pointed out to us that there were a number of pre-2003 historical cases in relation to sexual abuse and exploitation.

I do not think the member was a member of parliament at the time, but Mr Atkinson was the then attorney-general, and he and the then government presented a case to the parliament that a number of historical allegations of abuse and charges in relation to those ought to be able to be prosecuted, even though they were outside a certain time limit. It brought about a significant number of cases that were then proceeded with. There was a bit of a balloon moving through the system, and it resulted in a number of men of fairly mature age being convicted and coming through the system. They were in custody and they were getting a lot older, and there was this question of how they were going to be accommodated.

Not contemporaneous with that but at the same time, there was discussion about the establishment of an inquiry into child abuse against children in institutional care. Indeed, the member's father was appointed to ultimately undertake a royal commission to that effect. So we had a second group of people, ultimately, of those who were able to identify their perpetrator, able to have the capacity to take action. That also resulted in a number of prosecutions, some of them successful, from which there was a consequential incarceration of offenders.

I think that at the time, certainly confirmed by the then attorney-general, the former member for Enfield, this was an issue that needed to be managed, so when the 2016 bill, which was the forerunner to the legislation we are currently looking to amend—that is, the Sentencing Act 2017 as it became—came before the parliament there was a provision for people who were basically no longer a risk and were so old or infirm that they were no longer able to be a problem. I am paraphrasing, but that was the assertion.

As I said earlier, the then attorney used an example of an historical case involving Justice Barrett, where somebody was allowed home detention. I cannot remember the name of the case, but I personally took enormous offence to it. I did not think there could be any worse case or example of where somebody should be allowed to qualify for exemption on the basis of age. There were not even any restrictions placed on him in relation to the consumption of alcohol. I remember reading the sentencing remarks that suggested that nothing was going to stop him having a drink anyway. I was offended by the whole process, to be honest, and I said so at the time.

The attorney-general said that there could be other cases where somebody has had a stroke or is bedridden and is still alive, obviously, but is not in a position to be able to access a child or child pornography and cause any further problem. I think there is a case for that and I think that is something that has to be considered. Leaving persons in this category in an institution, especially if there is a cohort of them, potentially could place a considerable burden on Corrections—I think this was the general thrust of the case—which really does not have the extensive facilities for this to be dealt with.

Is there a more convenient or better facility with better trained people to be able to manage someone who is invalided, mentally unwell or who has had a stroke or has dementia than a prison? I think the answer to that is probably, yes, we do have facilities that are better able to manage and supervise such persons.

The other thing that was persuasive of the consideration of this, notwithstanding the front-page agitation arising out of the public disquiet of the Deboo case, was the very passage that the member just read out. The provision in section 71 that is already there, which this bill does not touch or in any way diminish, provides a direction to the court that an order must not be made if the court considers that the making of such an order would or may affect public confidence in the administration of justice. That provision remains. It is not 'think about it' or 'take it into account' or 'have regard for it': it is 'must' not make an order in those circumstances.

It is quite consistent not only in complying with that but in the Deboo case the judiciary have actually done just that. They made a decision ordering that he have a near seven-year imprisonment term with no home detention, no suspended order and no release on the basis of an intensive supervision order. They made a decision that he be in custody, in prison and in a cell for that period of time and subject to a non-parole period.

I would suggest to the member that not only is that consistent with what is a sensible approach to take but that even the Deboo case is a demonstration of how the law has worked. Sure, there is another aspect that is currently under review, subject to an appeal of an aspect of that case. We are yet to see a determination in that regard.

However, as I have made abundantly clear in the past, the DPP's position is very clear as to what he is progressing in relation to that case. The government's position is very clear. I suggest that everything the court has done to date in dealing with that case, and indeed others—there have been other notorious cases out there. I have 19 cases under my watch at the moment dealing with people who, for whatever reason, have been assessed and may be assessed again in the future on the question of whether they are unable or unwilling to control their sexual urges, instincts or conduct. They are difficult matters, but, so far, I think the public can be confident in the court's administration of these matters.

They have done the right thing, in my personal view, and I think that there would not be too many people out there—if there are, I have not heard from them—suggesting that in some way Mr Deboo in his case, or in any of the others who have had notoriety, has in some way been dealt with unfairly. I have not had one single citizen ring me up to say, 'I think it's unfair. He shouldn't have got a near seven-year prison term'. If there are, let me know, but they would probably get fairly short shrift from me. I think the court system has worked, and it has complied with the law that we have already directed them to do. I think it needs to be tightened; the DPP agrees and that is why we are here.

The Hon. S.C. MULLIGHAN: With regard to clause 7 of the bill, and in particular the new subsection (4), which is included at the bottom of page 3 and the top of page 4, what submissions will a court seek to satisfy itself of (i) and (ii), the first two subparagraphs of the bill on page 4?

The Hon. V.A. CHAPMAN: Are we talking about clause 7(4)(a)(i) and (ii)?

The Hon. S.C. MULLIGHAN: Yes.

The Hon. V.A. CHAPMAN: I cannot answer what the courts will seek. What is necessary on these applications is for counsel to present and satisfy the court in relation to these matters on those two points. It will be a matter for the court to make that determination. Obviously, even without the tightening, but under the current section 71, the court was clearly not satisfied in the Deboo case and ordered that he go into custody.

The Hon. S.C. MULLIGHAN: I guess a subsection of the second question is: will it be up to counsel, both prosecuting and defending, to make the submissions to the court? The court will not require either the prosecution or the defendant, or indeed perhaps even the Department for Correctional Services, to furnish professional submissions to the court about the defendant's status with regard to age or infirmity about whether the community would be better served by them being outside prison rather than in?

The Hon. V.A. CHAPMAN: Perhaps I will just explain for the benefit of other members, because I am sure the member actually understands this, having grown up in a legal family. We have an adversarial system. This is not an inquisitorial approach. A case is presented on behalf of the applicant. If we use the Deboo case, Mr Deboo and/or his counsel can present evidence to the court to satisfy the court in relation to these. That evidence and submissions that might go with it may include expert evidence. In fact, I think anyone looking at this, even someone not legally trained, would have to expect that there would be some independent evidence—that is, of a medical practitioner—to identify the permanent infirmity that will be required, or even infirmity under the current act.

Obviously, we are raising the bar by this legislation for that to be satisfied because, unless the applicant was a medically qualified person—which I do not think would happen very often, but it may—there would have to be sufficient evidence for the court to be satisfied on the balance of probability with these two requirements. I expect that medical evidence would need to be presented as well as an antecedent report, which is covered in other parts of the Sentencing Act, in relation to their behaviour while they are being held in custody, for example. These are the sorts of things that are brought into effect. I suspect that, in relation to infirmity, the court would not be persuaded to do anything unless they had medical evidence to support that.

However, this should be seen to be quite a different matter from something like a Colin Humphrys application for release on licence, which is not a sentencing issue at all. That is an entirely different matter. In that case, there is a statutory requirement for two forensic psychiatrists—or medical practitioners, but they are forensic psychiatrists—to be nominated in the process by Dr Nambiar, to get the reports, etc. That is a different process and that all relates to somebody who has already been convicted, who has had breaches, who is in custody and under some form of continuing detention and they are applying to be released on licence. That is an entirely different process.

I do not know that the public fully appreciate some of the differences of these. They usually see in the paper or hear somebody on the radio saying that some manipulative monster is out there and has done horrible things to children and needs to be put into custody. Obviously, from the public's point of view, they do not care whether they have just been arrested and it is a bail application, whether they are in custody and they are awaiting sentence, whether they are applying for parole or whether they are someone who is seeking a licence. They do not really care about all that; they just want to know that they are safe and that somebody who is going to cause them or their children harm is not going to be around them.

The Hon. S.C. MULLIGHAN: I appreciate the Attorney reaffirming the practice of the courts in terms of receiving what is, I assume, part of the process of sentencing submissions in regard to a court making these determinations. I am pleased to say that no such submissions were required in the legal family to which the Attorney makes reference. I can assure her the justice was more inquisitorial, rather than adversarial in that respect.

My last question is in regard to the current section 71(2)(a) that I read earlier and that the Attorney referred to, which provides:

(a) a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice;

For the non-legal layperson like myself, could the Attorney provide some advice on how the court furnishes itself with such information in reaching a judgement about whether public confidence may be affected?

The Hon. V.A. CHAPMAN: I think that is quite a good question. The fact is that the court would have to be satisfied. I would expect that, in this instance, submissions would be made, most likely from the DPP, on circumstances that prevailed that would affect public confidence and the detail of the evidence for that may come from the Commissioner for Victims' Rights, for example.

I think I read out earlier that there is the capacity for the prosecution or the Commissioner for Victims' Rights to make submissions on community orders—that is, instead of just the victim impact, the community impact both as a neighbourhood or as a community generally. There is a whole section in the legislation that allows for that, so I would expect the carriage of the burden of proof in this regard would come from the prosecutor and/or the Commissioner for Victims' Rights if he or she, that is in the latter, should determine that they should make a submission in that regard, but they have the capacity to.

The Hon. S.C. MULLIGHAN: Chair, I want to formally withdraw my second amendment.

The CHAIR: No, I do not think you do. What we will do is just not move it and let it fall by the wayside.

Clause passed.

Clause 8 passed.

Clause 9.

The Hon. S.C. MULLIGHAN: Similar to my earlier questions about the source of the amendment of the definition of an 'act of terrorism', can the Attorney outline how the need for this amendment in clause 9 was arrived at. Was it suggested by the commonwealth, the DPP or by parliamentary counsel?

The Hon. V.A. CHAPMAN: I am advised, by parliamentary counsel. In relation to terrorism, I think that the member will be very familiar with the fact that we have had a lot of legislation go through this parliament, usually as part of a complementary arrangement with the national parliament, to deal with acts of terrorism and their applicability, enforcement and prosecution. Not unlike other areas of federal mutual interest, we have a model that enables the amendment of our laws which, largely, are to ensure some consistency with the commonwealth, and that applies around the country.

As I understand it, it is not quite like company law where any state can pull out, for example, and say, 'We don't want to be part of the federal system anymore. We don't care about the national companies law. We are going to go it alone.' There are probably lots of other financial reasons that disincentivise us from doing that. Some of these structures vary a bit, but largely, when it comes to acts of criminal sanction, where there is criminal sanction, we try as best as we can to be consistent with both the process and the definition of consistency and, where possible, similar penalties and/or available sentencing options.

It would be easier for me to give you an example in the reverse—for example, in relation to prisoner voting. We have an idea, which is a little bit stagnant at the minute, where we think that certain people should not get the vote in state parliament, and we think that the period of imprisonment should include people who are on home detention. They do not have the commonwealth home detention, so they do not apply. The same person who might be in custody in a South Australian prison would not be able to vote in a federal election under their laws.

However, if somebody were on home detention in South Australia, they could not vote in South Australia but they could vote in the federal election. So there are instances where we do not have consistency, but we try to do the best we can on matters of terrorism, the management of radicalisation of youth, on containing cells and prohibiting people from associating in outlawed organisations, etc.

The Hon. S.C. MULLIGHAN: Again, I ask because this bill has its genesis in community concern about perpetrators, convicted child sex offenders amongst others. It seeks to tighten up areas of the law to better define what access they have to certain types of release, if indeed they have access to any form of release. Were there any other areas of the Sentencing Act that were flagged by the commonwealth, the state Director of Public Prosecutions or parliamentary counsel as needing attention but that, other than terrorism, are not in this bill?

The Hon. V.A. CHAPMAN: I think I said initially in response to the previous question that it came from parliamentary counsel. If I had not made that clear, I do now. It is repeated elsewhere in the bill again to deal with this question of home detention as it applies to a terrorist act. I mentioned in my second reading contribution that a whole section was removed. I am just going to find it in the bill for you. I am sure that it was first brought to my attention by the DPP. It was the repeal of sections 31 to 35 of the Sentencing Act for being unnecessary. It is in clause 4, so we have already dealt with it.

In clause 4, in answer to other areas, the matter that was brought to my attention by the DPP was to repeal all those sections that he said were completely unnecessary. If there are any more and we are able to find them, I will raise them. I know that there were two or three letters of correspondence outlining aspects as this bill came into effect. Some areas were potentially shaping up to be a problem and needed to be tidied up, but either they were not urgent at the time or they were matters that had not yet been identified as a problem.

The Hon. S.C. MULLIGHAN: I tried to make it clear that I was referring to matters that are not dealt with in this bill, not other issues that are being attended to in the course of the bill. Have other matters been drawn to your attention that we are not dealing with in this bill but that we will need to deal with in the Sentencing Act and several others at some point in the future?

The Hon. V.A. CHAPMAN: None have been raised in relation to the Sentencing Act and this question of home detention. There are some other matters that have been raised. In fact, one example that I think I mentioned was the whole question of discounting in relation to sentencing for both early guilty pleas and providing assistance to the police in the prosecution of other persons. Those sorts of things are there. There is another area in relation to serious repeat offenders, which I know I have had some briefings on.

So there are issues; there is major indictable reform, for example, and we are about to have a look at how we manage that. That is procedure legislation but it relates to the prosecution of major indictable matters, not specifically sentencing. I think I would be a very lucky Attorney-General to get through a term of office, however short lived that might be, without having to come back into this parliament to deal with something about sentencing on a number of occasions. As expeditiously as possible, we will deal with them to manage those matters.

In an ancillary but not exactly related matter, because it does not relate to sentencing but to the licence issue I referred to in relation to Mr Humphrys' case, I have given notice of intended legislative amendment to deal with psychologists' reports and I have made public statements on that. Again, it is not directly related to sentencing but it does relate to this whole question of ensuring that we have a legal structure that gives confidence to the public in the administration of justice and protects the community generally.

Clause passed.

Clause 10.

The Hon. S.C. MULLIGHAN: My question relates to clause 10 and the amendment of section 81. Why has the Attorney-General not seen fit to include what special reasons are in the intensive correction orders regime, similar to those found in the home detention orders regime?

The Hon. V.A. CHAPMAN: The only reason that has not been addressed here is that, as I said earlier, we are still awaiting any proposed recommendations from the corrections department as to recommendations they may have as to how we deal with these. Remember that it is Corrections who manage these cases. I think I said earlier that intensive correction orders came from Victoria, but they are called intensive correction orders in New South Wales. In fact, they are called something else in Victoria. I was reading an article about them this morning. They are called community corrections orders in Victoria. The member for Light looks up with interest because I know these were discussions with him at the time he was the minister for corrections.

Those other jurisdictions have had a chance to have it operating in their state for some time and it is brand new here for us. My understanding is that we do not have any immediate data on this yet—it is not easy to extract—but we are trying to get some data together. I think either you or the shadow attorney had sought some information as to numbers of people who may have been prosecuted and may have wanted access to this particular form of sentencing, so we are still working on that. In any event, there have been intensive correction orders made and we are yet to find out whether they have been very effective. I suppose we may not even know that.

Say there were 20 or 30 orders made during the last nine months; as I said, I have no idea how many have been made, but apparently it is more than one in the operational sense. There is a considerable number of hurdles or thresholds one has to get over to be able to access it, but let's hope it has been successful. The recommendations on the interstate programs for this are quite glowing to the extent of dealing largely with the Indigenous persons who are incarcerated. Apparently it has been a worthy option for them. Anyway, that is a matter that we will have a look at. In the meantime, that is the agency that looks after these and we are waiting for their advice on any regulatory arrangement for what 'special reasons' will be defined as.

The Hon. S.C. MULLIGHAN: With regard to the lack of a special reasons regime, for want of a better term, in the intensive correction order section of the act, even as amended, would that leave open any possibility that a child sex offender could be released under an intensive correction order rather than a home detention order?

The Hon. V.A. CHAPMAN: For an intensive correction order to be available, the non-parole period has to be for a period of two years or less, so we are not talking about the serious end. Obviously, somebody like Mr Deboo would not be eligible because it is for offending at the lower end. It has to be someone who is recommended by Corrections. They have to get through the report as somebody who is suitable from their perspective.

Our expectation, particularly given the current ministerial directions that applied under the previous government, is that someone who was involved in sexual predation of children would not qualify for that purpose. I hear what you are saying. We just do not have a final definition yet until we have heard from Corrections.

The Hon. S.C. MULLIGHAN: It is concerning. My reading of section 81 of the current act is that the court has imposed a sentence of imprisonment on a defendant of a term that is two years—

The Hon. V.A. Chapman: Or less.

The Hon. S.C. MULLIGHAN: —or less. So the total sentence does not necessarily need to be less than two years. For example, the sentence could be longer than two years, with only the term of imprisonment less than two years. It would be up to the Department for Correctional Services rather than this place or even a court to contemplate whether an intensive correction order was desired for that person. So, conceivably, somebody who has received a sentence for a serious sexual offence could have an intensive correction order made available to them and effectively be released into the community under the conditions of that order; that is correct, is it not?

The Hon. V.A. CHAPMAN: I think when the member reads section 81 currently in the Sentencing Act 2017, I suppose this is one of the aspects that happens when you are just looking at a bill—

The Hon. S.C. Mullighan: No, I have the act.

The Hon. V.A. CHAPMAN: You have the act there? Section 81(1)(a) sets out 'on a defendant of a term that is 2 years or less'. I think I have referred to parole before—it is actual sentence rather than parole. It states that the court considers that the sentence should not be suspended and that 'the court determines that there is good reason for the defendant to serve the sentence in the community while subject to intensive correction'.

For the purposes of subsection (1)(c), which is the determination of serving the sentence in the community, it points out:

…the court may determine that, even though a custodial sentence is warranted and there is a moderate to high risk of the defendant re-offending, any rehabilitation achieved during the period that would be spent in prison is likely to be limited compared to the likely rehabilitative effect if the defendant were instead to spend that period in the community while subject to intensive correction.

There are further provisions that relate to the concurrent sentences of others. Further, subsection (3)(b) provides:

(b) an intensive correction order should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while subject to an intensive correction order by a community corrections officer.

So there are quite a few thresholds that have to apply before you even get a chance to have this as an option for a judge to consider. I am advised that the principle relating to this is not something that would lend itself to anyone who was involved in either the sexual exploitation of children or, indeed, acts such as the collection of pornography, using children for the purposes of preparing photographs, etc.

Clause passed.

Clause 11 passed.

Clause 12.

The Hon. S.C. MULLIGHAN: Can the Attorney explain the difference between the existing necessary medical treatment provision and the proposed urgent medical treatment provision and the genesis of that change?

The Hon. V.A. CHAPMAN: The purpose of this is to make sure that we have a matching up with the home detention order provisions so that they are all the same. I think I actually explained—it may have just been on radio—that what happened with the dispute we had in the parliament over the conditions upon when a person should be able to leave the premises when they are on a home detention order was quite a robust one here in the parliament. I think that it was again within the envelope of some very considerable public interest in how these new home detention orders were going to work.

Some people listening on the Leon Byner show took the view that home detention was just code for having hotel accommodation and a holiday—come and go as you felt like—across to those who took a very different view about there being significant rehabilitative opportunity, but even within that parameter that there would have to be very good reason to leave the house and that it was an at-home prison as distinct from just somewhere you could just live and come and go and do what you liked with or without an ankle bracelet on with terms and conditions.

When we were negotiating some of these matters, issues like attending for medical treatment were considered (not necessarily to go off to a yoga class or whatever) or attending for study purposes, attending for the purpose of employment, as well as special circumstances, like attending a family funeral and the like. These were the sorts of things we had to look at and were discussed as being a reasonable process that should be able to apply under the supervision of Correctional Services officers that could have a little bit of flexibility in them but that the intent had to be fairly clear.

When you set up a whole lot of extra rules for something and you do not touch others, you end up with inconsistent things, and that is exactly what this is trying to do: to have consistency with the home detention order for medical treatment purposes.

The Hon. S.C. MULLIGHAN: So it is urgent in the home detention regime, is it?

The Hon. V.A. CHAPMAN: Yes.

The Hon. S.C. MULLIGHAN: Who currently makes the determination as to whether something is necessary and who will make the determination in the future under the 'urgent definition?

The Hon. V.A. CHAPMAN: My advice is that that would be the Corrections officer. That can arise in different circumstances: it could be during the morning visit, for example, or by telephoning in. There are lots of different ways in which these operate. Each person who is on home detention has a Corrections person assigned to them. Obviously, there is a degree of reporting in and those sorts of things. If they have a bracelet on, they are obviously electronically monitored as well, so you can see if they leave the premises or remove their ankle bracelet or whatever. So, essentially, it is the Corrections officer.

Obviously, they are not going to know whether somebody who is grabbing their chest and writhing on the ground has had a heart attack or whether they are just faking it, but in those circumstances I assume that the correctional officer would call in a medical attendant and have them assessed by an ambulance officer or someone of that nature, and they would make the assessment about whether they need to have hospital treatment or whatever other intervention is required. It is hard for me to give a description of the entire gamut of what would occur here, but I expect there are prisoners who, for example, have pre-existing conditions. There might be an asthmatic without their appropriate medication or puffer or something else.

There may be medical treatment for known conditions, across to people who have an accident in the household—for example, someone who has put their finger in the electric switch or cut their finger off. I am just throwing it open. The Correctional Services officer is the gatekeeper, I suppose, for making that assessment.

The Hon. S.C. MULLIGHAN: Subsequent to a necessary—or, in the future, urgent—medical or dental treatment being sought by somebody who is the subject of one of these orders, is it the current practice that the prisoner, for want of a better term, is required to furnish to their Corrections officer some evidence that they have attended their medical or dental centre?

The Hon. V.A. CHAPMAN: Perhaps I will just use an example again. Somebody calls and they are having a heart attack, or thinks that they are having a heart attack. They call the ambulance, the ambulance comes and they are taken to hospital. Is that in breach? Possibly. If in fact it was not urgent at all and they were just faking it, and it was established that they were faking it, they would be subject to a breach notice, and of course there are repercussions from that process. That is as I am advised.

Clause passed.

Clause 13 passed.

Clause 14.

The Hon. S.C. MULLIGHAN: My understanding is that clause 14 seeks to amend section 96. It currently deals with the suspension of imprisonment and also a defendant entering into a bond arrangement. Why has the Attorney-General not seen fit to include what special reasons are in the suspended sentence regime, similar to those found in the home detention orders regime?

The Hon. V.A. CHAPMAN: I think I mentioned earlier that, in the progression of legislation to accommodate new forms of sentencing, having moved from capital punishment, there was the era of the development of community service orders. This was quite a boon in the 1980s to enable people to have the option in sentencing not to be imprisoned or even to have got through all the qualifications of a suspension of a prison order and then enter into a bond. The bond might be to keep away from certain people, not leave the state or attend the local RSL and do the lawnmowing every Sunday. A whole lot of conditions can be set to deal with that order of sentencing.

This is very much at the low end of the range and these are not people who are in the category of getting a suspended sentence through the rest of the Sentencing Act, so this is really the end of the pencil. They are not getting a prison term. They are very much at the minor offence level.

Clause passed.

Clause 15.

The Hon. S.C. MULLIGHAN: As I understand it, clause 15 seeks to amend section 106 of the current act relating to supervision in the community. I am advised that the deletion contained within this clause in the bill is because there are concerns that a bond with a home detention condition could be a loophole for an offender to receive home detention who would not otherwise be eligible. Can the Attorney confirm whether that is, indeed, correct?

The Hon. V.A. CHAPMAN: In response to your question, I am advised that, no, that is not the case.

The Hon. S.C. MULLIGHAN: Who brought the Attorney's attention to the matters being dealt with in this particular amendment to the bill? Was it the DPP, the courts or parliamentary counsel?

The Hon. V.A. CHAPMAN: Clauses 15, 16 and 17 are consequential on clause 14, which is the amendment to section 96, which we have just discussed. It relates to section 96(7), which is to delete subsection (7). I mentioned earlier that clauses 15, 16 and 17 are in the category where we might need to have a transitional clause.

The Hon. S.C. MULLIGHAN: If the contention in my first question, that this may have currently presented a loophole, is incorrect, I assume that the Attorney can advise me that the said loophole has never been exploited.

The Hon. V.A. CHAPMAN: I am advised that my adviser is the one who raised the potential of the reference I just gave you to clause 14(2), which is the deletion of the subsection (7) provision and that, consequentially, we may need to have the transitional clause, which is referred to in the clause 15 circumstance, that is, when you have removed the bond. If you have somebody who is under a bond and on home detention, if we get rid of the provision they are suddenly not covered. If we have to fix that, we will. My learned adviser here was the brilliant mind that brought it to my attention.

The Hon. S.C. MULLIGHAN: She has the gratitude of the house, I am sure. Could you perhaps advise how you might deal with that transitional issue when you seek to remedy it?

The Hon. V.A. CHAPMAN: I am advised that the Acts Interpretation Act, at first understanding, is expected to cover it. If it does not, which is what we were talking to parliamentary counsel about and which I referred to earlier in the committee, then we are going to be looking at the transitional clause. As soon as we have that available, one way or the other, we will undertake to provide that to the shadow attorney and to you, if you wish to have a copy. I am just assuming, at this stage, that the shadow attorney is going to want to have to consider that in the other place.

The Hon. S.C. MULLIGHAN: So is it the intention that we may be able to deal with it when this is upstairs?

The Hon. V.A. CHAPMAN: Yes.

Clause passed.

Clauses 16 and 17 passed.

Schedule 1.

The Hon. S.C. MULLIGHAN: On behalf of Mr Picton, I move:

Amendment No 3 [Picton–1]—

Page 16, lines 26 to 28 [Schedule 1, Part 2, clause 3(1)]—

Delete 'the offence for which the defendant is being sentenced was committed before or after that commencement.' and substitute:

—

(a) the offence for which the defendant is being sentenced was committed before or after that commencement; or

(b) the defendant is being sentenced at first instance or on an appeal against sentence.

We are advised that, if successful, this amendment would seek to put it beyond any doubt that these provisions would apply to any appeals currently on foot. That is the purpose of the opposition's amendment.

The Hon. V.A. CHAPMAN: I will be brief. I think, as indicated in the second reading, we understand the objective in relation to these amendments. There is clear legal authority that if you are going to make a prescription in legislation—that it is to have retrospective effect, for example—it has to be very clear and the intent of the legislature has to be clear. It is a pretty complex area and, as I indicated, I will be asking the Solicitor-General to have a look at how we might best address this or whether in fact the whole aspect of this is premature in seeking to bind via this manner.

I am not anti the approach to the ill that I think is trying to be cured here. It is the subject, to some degree, and one of the grounds of appeal in the Deboo case listed in May, so it is not as though we do not have some time to deal with this. It may be in other cases, but that is the only one that I am aware of. I am not critical of the attempt to try to resolve this, but let's just make sure that we get it right. If it is necessary to put it into legislation, then we will have the advice from the Solicitor-General on that matter. Obviously, we have only just had the amendments today, so I need to get some advice on that.

The Hon. S.C. MULLIGHAN: Again, as I expressed with the previous amendment, which the opposition moved seeking to put beyond doubt which offenders would be denied the opportunity to access a home detention order, I am a little disappointed that we are in the position where, rather than the Attorney being willing to contemplate and support this amendment, she advises that she will seek further advice from the Solicitor-General. As members on both sides have previously contributed in the second reading debate, in some respects time is of the essence in this bill.

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: Yes, these are urgent matters and we are seeking to act with urgency. It would be even more regrettable to find that not only has the government not supported the opposition's amendment, which sought to ensure that convicted child sex offenders are not released on a home detention order, but that now this provision cannot be dealt with in a timely manner either and is not supported by the government.

Ayes 17

Noes 24

Majority 7

AYES
Bettison, Z.L. Bignell, L.W.K. Boyer, B.I.
Brown, M.E. (teller) Close, S.E. Cook, N.F.
Gee, J.P. Hildyard, K.A. Koutsantonis, A.
Malinauskas, P. Michaels, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Szakacs, J.K. Wortley, D.
NOES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Power, C. Sanderson, R.
Speirs, D.J. Tarzia, V.A. Teague, J.B.
van Holst Pellekaan, D.C. Whetstone, T.J. Wingard, C.L.

The Hon. S.C. MULLIGHAN: My understanding is that clause 1 of the schedule, amongst other things, clarifies that employment must be approved by a Community Corrections officer as well as allowing a person serving under a home detention order to attend assessment and treatment of physical or mental health, an intervention program, education and so forth. Does the Attorney-General envisage that in the event that, having been released under a home detention order, a child sex offender could attend remunerated employment?

The Hon. V.A. CHAPMAN: This comes to the question of release on home detention under the Corrections Act because, obviously, this is why there is a related amendment to the Corrections Act. I did address, I hope comprehensively, that home detention occurs as a result of the chief executive of Corrections authorising that to occur. However, it is subject to a ministerial direction, and I highlighted a recent case where there had been very severe criticism. I am advised by the Minister for Correctional Services that there is no intention to release or relax that ministerial direction.

In the longer term, we need to look at how we deal with back-end home detention, as they call it. Here, it is simply to be in the same language as applies to the home detention order provisions under the Sentencing Act generally so that we have the same definition. Specifically, in answer to your question, the Correctional Services officer has to approve whether it is employment and at what time and on what conditions they are there.

One thing we canvassed in the debate was what if you said that you worked at a local bar for 20 hours a day. That clearly was not the intention of the legislation. It was to ensure that there is a very clear understanding that, except for the purposes of travelling to and from their workplace (and we discussed this at length) and having sufficient time to do so, there would be a very strict curfew in relation to leaving the property for the purpose of attending employment.

The Hon. S.C. MULLIGHAN: The situation that we find ourselves in is that it is still possible, regardless of the tightening of the other elements of the act that we have traversed so far, that a court may choose to release a convicted child sex offender on a home detention order on the basis that if somebody is released on home detention then such an offender can access remunerated employment if approved by the department.

The Hon. V.A. CHAPMAN: No, this area has nothing to do with court-ordered home detention: it is what we call the back-end home detention provisions, which are in the Correctional Services Act. Apart from dealing with consistency in relation to employment when it does occur—and it does occur, but not for sex offenders because we have ministerial directions in place—it ensures that there is a consistency in language as to who is the authorised officer and what they are to approve. This Correctional Services Act home detention has nothing to do with court-ordered home detention.

The Hon. S.C. MULLIGHAN: Is the Attorney telling us that home detention under the Correctional Services Act cannot be accessed, including under these terms, by somebody who has been convicted of a child sex offence?

The Hon. V.A. CHAPMAN: At the moment, under ministerial direction, that is the case.

The Hon. S.C. MULLIGHAN: Is that solely because of a ministerial direction? It does not find its voice anywhere legislatively or via regulation?

The Hon. V.A. CHAPMAN: It is a power of the chief executive of Corrections. It is not a new power: it has been there for some time. In the course of discussing what courts do—and we have looked at the whole question of suspended sentences, home detention and intensive supervision orders by courts, all of which have a level of not being in custody—it has been identified that, far away from sentencing law over in the Correctional Services Act, there is another power, which has been there for years, to release a prisoner on home detention but for the fact that there is a ministerial direction, which I understand is continued from a time when the previous government was in power.

The statutory power of the chief executive has not been interfered with other than being subject to a ministerial direction. I referred to one case where there had been criticism of the chief executive allowing the release of a prisoner, I think after six weeks of being in custody, when an application for a suspended sentence had been refused by the court. That obviously brought some attention to this issue of back-end home detention. I suppose it is another body of work we can have a look at if, in fact, there was any reason to suggest that there would be any abuse or exploitation of it. At present, there is a ministerial direction in place and an indication from the minister for corrections that he has no intention of changing that.

The Hon. S.C. MULLIGHAN: Perhaps between the houses, could the Attorney provide to the parliament a copy of the ministerial direction precluding that category of offender and indeed any other offenders if it goes so far?

The Hon. V.A. CHAPMAN: That would be fine.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:39): I move:

That this bill be now read a third time.

In thanking the member for Lee and other members who have contributed to the debate, I want to say a special thankyou to Ms Tania Macrae, who has been present to support the advice to the committee through what has required fairly urgent attention to the comprehensive review and work done to prepare this bill. The work is continuing, in addition to providing a copy of the Law Society submission and a copy of the ministerial direction sought by the member for Lee. I think that was all. If there is anything else that comes in in relation to an amendment for a transition clause, all those things will be immediately provided to the shadow minister so that we can progress this matter to the other place for their consideration as expeditiously as possible.

The Hon. S.C. MULLIGHAN (Lee) (17:41): I will make a brief third reading contribution. I pass on my appreciation to the Attorney, particularly for her cooperation and her endeavour in seeking to answer the questions that the opposition put to her and the government about the various intentions and proposed operations of the clauses within their bill.

I will register once more that the opposition is very disappointed that the government has not supported the three amendments which sought to do two things. One was to put beyond any doubt the category of offender that has most recently agitated the concerns of the community about the potential for those types of people to be released, in particular in regard to Vivian Deboo. The opposition's amendment sought to put that beyond the discretion of the court to ensure that these offenders are not released under a home detention order. It has not been supported by the government, and I think that is regrettable.

It was also the case with the consequential amendment No. 2 which we moved. But the third amendment was to ensure that the application of our amendment and the bill would apply not just to prospective matters but matters that are currently being considered on appeal, which is very directly targeted to the matter concerning Mr Vivian Deboo.

Without those amendments, this parliament will be putting a tremendous amount of faith in the very slight amendments to section 71 of the existing act having the constraining effect on the courts so as not to release these child sex offenders into the community under a home detention order. It is a significant risk in the opposition's view that we are relying on a conjunction between two subparagraphs within a clause to provide that better clarity to the judiciary. I will leave my comments there. No doubt the arguments of the opposition, let alone the government, will be reventilated in the other place.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT