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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-02-20 Daily Xml
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Bills

Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill

Introduction and First Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (11:02): Obtained leave and introduced a bill for an act to amend the Criminal Law (High Risk Offenders) Act 2015. Read a first time.

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (11:02): I move:

That this bill be now read a second time.

Today, I am pleased to introduce the Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill 2024. This bill was announced by the Premier and the Attorney-General yesterday. I understand that opposition and crossbench members have been briefed on the bill this morning.

The bill amends the Criminal Law (High Risk Offenders) Act 2015 to extend the definition of a high-risk offender to include a person who has been convicted of assisting an offender or impeding an investigation contrary to section 241 of the Criminal Law Consolidation Act 1935, where the offence committed by the principal offender was a serious offence of violence or serious sexual offence within the meaning of the HRO act.

Pursuant to the HRO act, the Supreme Court is empowered to make certain orders to ensure that high-risk offenders remain subject to appropriate supervision following the expiration of their sentence, whether the offender is in prison or released on home detention or parole. High-risk offenders are offenders who have been imprisoned in respect of a serious sexual offence or a serious offence of violence, and terror suspects.

The express object of the HRO act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders. Under the HRO act, the Attorney-General may make an application to the court for a high-risk offender to be subject to an extended supervision order.

An extended supervision order can be made for up to five years and allows for the imposition of certain conditions—for example, a requirement for the offender to attend treatment and undertake drug screening. The court can order that a person be subject to an extended supervision order if it is satisfied that:

the person is a high-risk offender; and

the person poses an appreciable risk to the safety of the community if not supervised under such an order.

The paramount consideration of the court when determining whether to make an extended supervision order is the safety of the community. If the conditions of an extended supervision order are breached, the offender may be summoned to appear before the Parole Board. Where the breach is found to be proven, the Parole Board may vary or revoke a condition imposed by the Parole Board or impose new conditions.

Alternatively, the Parole Board may detain a person in custody and refer the matter to the court to determine whether a continuing detention order should be made. Where a continuing detention order is made, the offender may be detained in custody for the remainder of the duration of the extended supervision order.

There have been concerns expressed recently within the community about the potential application of the HRO act to offenders whose relevant offending involves assisting offenders in relation to the commission of a serious offence of violence or serious sexual offence. The public discussion has shone a light on the importance of putting beyond doubt that such offenders are within the scope of the scheme created by the HRO act.

Under the HRO act, a 'serious sexual offence' is defined to mean a person who has been convicted of a relevant sexual offence within the meaning of the definition where the maximum prescribed for the relevant offence is, or includes, imprisonment for at least five years. For the purposes of the HRO act, a 'serious offence of violence' has the same meaning as in section 83D of the Criminal Law Consolidation Act, which includes a serious offence where the conduct constituting that offence involves:

the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or

serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or

perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to above.

On its face, it is uncertain whether a person who assists an offender or impedes an investigation in relation to a serious sexual offence or a serious offence of violence would be regarded as a high-risk offender within the meaning of the HRO act. The government is of the view that such a person would be regarded as a high-risk offender. However, for the avoidance of doubt, the bill amends the definition of 'high-risk offender' in the HRO act to expressly include a person who is serving a sentence of imprisonment in relation to an offence against section 241 of the Criminal Law Consolidation Act where the offence committed by the principal offender was a serious sexual offence or a serious offence of violence.

The effect of these amendments will ensure that, where the relevant criteria is met, these offenders will be taken to be high-risk offenders for the purposes of the HRO act. In the event that an application is made, it would be a matter for the court to determine whether there are sufficient grounds for making an extended supervision order in relation to the offender. That is, the court would need to be satisfied that the offender poses an appreciable risk to the safety of the community if they are not supervised under an order.

This would require the court to undertake an assessment of the risk posed by the offender based on the individual circumstances of the case. To that end, the bill amends subsections 7(3) and (6) and inserts new section 7(7) into the HRO act to allow for the court to direct a prescribed health professional to examine the offender and prepare a report assessing their likelihood of committing a prescribed offence. New section 7(7) of the HRO act defines a prescribed offence to include:

an offence against section 241 of the Criminal Law Consolidation Act where the offence committed by the principal offender (within the meaning of that section) was a serious offence of violence or serious sexual offence;

a serious offence of violence; or

a serious sexual offence.

The court would be required to take this assessment into account when determining whether or not to make an extended supervision order in relation to the offender.

A consequential amendment has also been made to the objects clause of the HRO act to reflect that an application for a supervision order may be made in relation to various serious offenders as opposed to serious sexual offenders and serious violent offenders only. The bill also includes a transitional provision, which is intended to ensure that the amendments will apply to an offender regardless of when they committed, or when they were sentenced for, the offence against section 241 of the Criminal Law Consolidation Act.

I commend this bill to the chamber, and I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

Part 2—Amendment of Criminal Law (High Risk Offenders) Act 2015

2—Amendment of section 3—Object of Act

This clause broadens the objects of the Act to encompass additional categories of high risk offenders.

3—Amendment of section 5—Meaning of high risk offender

This clause includes in the definition of high risk offender persons serving a sentence of imprisonment in relation to an offence against section 241 of the Criminal Law Consolidation Act 1935 where the offence committed by the principal offender was a serious offence of violence or serious sexual offence. Including them in this definition means that an extended supervision order could be sought under Part 2 in relation to such a person.

4—Amendment of section 7—Proceedings

This clause amends section 7 consequentially to clause 3. In determining whether to make an extended supervision order for the new category of high risk offender the court will be required to consider (amongst other things) the likelihood of the respondent committing—

an offence against section 241 of the Criminal Law Consolidation Act 1935 where the offence committed by the principal offender (within the meaning of that section) was a serious offence of violence or serious sexual offence; or

a serious offence of violence; or

a serious sexual offence.

Schedule 1—Transitional provision

1—Application to offenders

The new provisions will apply to an offender regardless of when they committed, or were sentenced for, the offence against section 241 of the Criminal Law Consolidation Act 1935.

Mr TEAGUE (Heysen) (11:10): I rise to indicate that the opposition supports the bill. I think it is clear that the house has suspended standing orders in order to facilitate the bill's passage as a matter of priority this morning, and the opposition supports that course. I just want to indicate that the minister has put on the record the context of the relevant legislation, the steps that are required to be taken and the clarity or certainty that this bill will provide in terms of the definition of a high-risk offender.

It leaves unchanged, in terms of the process that the minister has just described, the assessment that is for the court to determine in relation to the suitability of a subject of an application being made subject to an extended supervision order or not. That is, of course, fundamental, and that is a matter that a court will determine according to the particular circumstances of any individual the subject of the application and on evidence, as it ought to be.

I can indicate that I have been afforded a briefing this morning, and I am grateful for the provision of that in the course of what has clearly been brought to the parliament at short notice. I do just take the opportunity to emphasise that, in circumstances where legislation is prepared and brought to the house at short notice, these are very much matters for the government, and whatever advice the government is responding to is a matter for the government.

I just seek to highlight and emphasise that there is always a variety of ways in which it may be possible to work together, in the light of as much information as possible, in order to facilitate what the parliament is then needing to confront. I do take the opportunity to thank those who have put in the hard yards to set this legislation out.

There is nothing in what the minister has said in terms of the necessary process that I would wish to take any issue with but, again, I just emphasise that where this will have an effect in terms of the scope and definition of the subject of an application, it is the important task of the court to determine the suitability of any subject for an ESO or not.

I might perhaps emphasise that to say that it really ought to be the legislative task to determine with certainty whether or not any particular prisoner is going to be the subject of the legislation. It is an entirely statutory scheme and it ought not be for the courts to be confronting any degree of uncertainty about who is and who is not caught by the statute. It leaves the court to determine then wholly and solely the evidence that might be put in support of an application in any individual case.

With those words, I reiterate that the opposition supports the bill, including its priority of the suspension of standing orders, as already indicated this morning, and I commend the bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (11:16): I thank the member for his contribution and also note his expression of support on behalf of the opposition for this bill. I thank him for his ability to be briefed on this at short notice this morning. I commend the bill to the house.

Bill read a second time.

The SPEAKER: My attention has been drawn to the state of the house.

A quorum having been formed:

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: I indicate to the committee at the outset that the bill first came to my attention at about 5 o'clock last evening, and that was under cover of an email from the Attorney's office at about quarter to five. I was aware of the matter in the broadest of terms perhaps for half an hour or so before that. It had been brought to my attention as a result of media reports.

As I said in the course of my fairly short second reading contribution, it is a serious set of circumstances in terms of the legislation. I am interested to know if the minister can take any opportunity to put on the record what might have prevented this from being brought to my attention even an hour earlier than it was to be found in the media and how we might, as it were, learn from the experience in terms of being able, even more coherently, to deal with circumstances such as this so that as little as possible we are needing to deal with things, as it were, on the run.

The Hon. J.K. SZAKACS: I note the member's contribution in respect of his notification of this. I am not in a position to illuminate him any further of the processes by which he was informed. It was not by myself or my office. I can, of course, raise this matter with the Attorney—which I presume the member has as well—but I am not in a position to talk about a hypothetical future prospect either. We as a government will endeavour to brief the opposition as quickly and as fulsomely as we possibly can.

Clause passed.

Clause 2.

Mr McBRIDE: Obviously, thank you to all who are behind the proposed changes here, which will hopefully be of great benefit to society with the outcomes that are sought here. How pertinent that I was talking to the Attorney-General's staff and representatives earlier on this. The proposition that is being put here has some really good outcomes, but I am wondering where the government sits on the other side of the equation.

Are they seeking to improve the outcomes for incarcerated individuals who find themselves on the wrong side of the law, who go through the incarceration and the indignity of doing the wrong thing? What sort of strategies does the government have in place to rehabilitate offenders so that they do not fall under this new legislation and that it does not become, perhaps, a safety net, that authorities might turn a blind eye to rehabilitation, to addressing mental unwellness and all the other things that society sees with individuals who find themselves on the wrong side of the law?

The Hon. J.K. SZAKACS: I might be very specific about the question and answer in direct relation to the bill before the house. Then, if the member is interested, I may as Minister for Correctional Services—not necessarily taking this bill through—offer him a comprehensive briefing on the suite of work being undertaken by the Department for Correctional Services and others to ensure that, when people are in custody, there is the greatest level of support, rehabilitation and opportunity to change the trajectory of their life.

Very deliberately, in this bill there is the application of the offences. Of course, those offences are at the time of the charge, at the time of conviction by a court. In particular, the member's questions regarding the state's success around reducing recidivism and rehabilitation of prisoners, albeit very important, do not have a material impact on the nature of the bill before the house. I would be very happy to speak about the good work that the government and Department for Correctional Services are doing in this space.

Mr McBRIDE: Further to that question, in regard to the idea of two strikes and you are out, which is a new concept which I think is in the bill here today, when an individual is let out of incarceration, maybe fulfilled their full term and time and are deemed fit to re-enter society—I would like some clarity from the minister that I am not misleading anyone here and that that is the new concept—I am just wondering whether the minister could enlighten the parliament about that two-strike process and the severity of what that second strike might be and what is captured by these new changes and new legislation that we are ringing in here today.

The Hon. J.K. SZAKACS: This bill does not contain a policy-elucidative approach to two strikes. If I may be as bold as to suggest, I think the member is asking me about the government's policy initiative regarding child sex offenders, and that two strikes is a matter that I understand the Attorney is working through in the final drafting of the bill brought before this house. As we currently see this bill, and without any amendments that have been filed, there are no changes to the application or the interpretation of 'strikes'.

Clause passed.

Remaining clauses (3 and 4), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (11:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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