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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-07-22 Daily Xml
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CORRECTIONAL SERVICES (APPLICATION OF TRUTH IN SENTENCING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from page 3546.)

The Hon. CARMEL ZOLLO (Minister for Emergency Services, Minister for Correctional Services, Minister for Road Safety, Minister Assisting the Minister for Multicultural Affairs) (17:36): I move:

That the second reading of the bill be resumed.

The council divided on the motion:

AYES (9)

Bressington, A. Darley, J.A. Finnigan, B.V.
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I.K. Wortley, R.P. Zollo, C. (teller)

NOES (9)

Dawkins, J.S.L. Kanck, S.M. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. (teller) Stephens, T.J. Wade, S.G.

PAIRS (2)

Gago, G.E. Schaefer, C.V.


The PRESIDENT: There being 9 ayes and 9 noes, I cast my vote with the ayes.

Motion thus carried.

The Hon. S.G. WADE (17:41): In addressing this bill, I want to highlight what the opposition sought to do with the previous motion. We have made it quite clear to the government all along that we are not opposing this bill but, as parliamentarians, we have responsibilities, and we thought that overnight consideration was appropriate. Nonetheless, the council has made its decision and the opposition is ready to address the bill.

The government has brought this bill before the parliament urgently. The key facts are as follows. On 19 November 1991, Shane Andrews was convicted of the murder of Mr Brian Lyden. Andrews was found by a jury to have shot Mr Lyden, who had formed a relationship with Andrews’ estranged wife. He shot him with a rifle outside the Aberfoyle Park Primary School. Justice Cox sentenced Andrews to life imprisonment with a nonparole period of 23 years.

At the time of sentencing in 1991, the Correctional Services Act 1982 provided for automatic release on parole at the expiry of a prisoner's nonparole period. This regime was controversial. Three years after Mr Andrews was convicted, the Brown Liberal government implemented its election commitment to truth in sentencing by passing the Statutes Amendment (Truth in Sentencing) Act 1994. One major change brought in by that amending act was the abolition of automatic parole for sentences above five years. So, at the expiry of a nonparole period a prisoner became entitled to apply to the Parole Board for release.

Under the act, the sentences of offenders were recalculated. In Mr Andrews' case, his nonparole period was recalculated to 14 years, 11 months and 20 days. That nonparole period expired on 13 February 2006. Andrews has applied for parole three times and has been refused each time. Andrews has taken legal action against the state of South Australia because he argues that he is entitled to parole under the act as it stood at the date on which he was sentenced. The Andrews case was heard by the Full Court of the Supreme Court comprising Justices Duggan, Anderson and David on 15 July 2008. The decision has been reserved.

In her second reading explanation, the minister highlighted the government's reliance on the case of Summers v Frances Nelson QC and others, when the Supreme Court on 23 December 1994 rejected the same argument that is now being put by Mr Andrews. One of the reasons that was given at the time was that when the amending act was passed the prisoner had accrued no right to release at all, merely an expectation that there would be a right once the nonparole period had expired. The government asserts that it has relied in good faith on the decision of Justice Lander in that case ever since.

In the second reading explanation, the government states that the Andrews' assertion is wrong in law, wrong in policy and wrong as a matter of principle. The bill now brought before us is as a response to the possibility of an adverse ruling in the Andrews' case. The bill provides that the amendments to the Correctional Services Act provided for by the Statutes Amendment (Truth in Sentencing) Act 1994 apply, and have always applied, with respect to all prisoners serving sentences of imprisonment immediately before the commencement of those amendments, regardless of when the prisoners were sentenced.

This set of facts raises the issue of retrospectivity at common law under the Acts Interpretation Act and, indeed, in the practices of parliaments. The English legal tradition has a consistent presumption against retrospectivity, but the opposition's view is that this bill does not offend this principle, because it primarily seeks to reaffirm parliament's intention expressed some 14 years ago.

The parliament, in the 1994 bill, was expressing a clear intention to meet the community's expectations that, when a judge sentences someone to a term of imprisonment and sets a nonparole period, that person will, indeed, serve that nonparole period in prison.

The shadow attorney-general in another place highlighted that Mr Andrews' challenge to retrospectivity is not consistent. On the one hand he wants the benefit of the reduced remissions that the first part of the legislation provides so that his sentence goes from 23 years to 14 years, or thereabouts, but he does not want the retrospectivity in respect of the aspect where, as Mr Andrews says, 'Once I have reached the end of my nonparole period I now want to argue that I am entitled to automatic release subject to conditions that might be opposed.'

The shadow attorney-general noted comments by her predecessor in that post (the now Attorney-General) in relation to the debate on the 1994 bill. He was not entirely favourable towards the Liberal bill. The shadow attorney-general in the other place highlighted that the Attorney, while supporting the legislation, implicitly criticised the government for putting more people in prison, especially in the context of the current Treasurer's comments in relation to 'racking, packing and stacking prisoners'.

It is interesting that here we have another case of a current Labor front bencher expressing concerns about Liberal imprisonment rates in the 1990s, when this government now has the dishonourable distinction of being the heaviest imprisoner of any jurisdiction in Australia. I am not sure at what part of the year the comments were made by the then shadow attorney-general, but let us say that probably the last complete year's data available at the time would have shown a utilisation rate of 96 per cent—that is 1993-94 data in terms of prison overcrowding. We are now up to 122.

If one believes that prison can do any good, one believes that the government should be keeping the supply of prison cells up with demand. This government has failed dismally in that regard. Here we are, six years into this government, and we are getting emergency packages to try to increase prisoner cell supply and we are still waiting for the government to deliver on significant expansion of prison cells which will occur at least three years away. With those brief remarks I reiterate that the opposition supports this bill, because it does no more than reaffirm the parliament's intention in 1994.

The Hon. CARMEL ZOLLO (Minister for Emergency Services, Minister for Correctional Services, Minister for Road Safety, Minister Assisting the Minister for Multicultural Affairs) (17:47): I thank the honourable member for his contribution and those other members who have indicated to me that they will also support the bill. I will say in response to the honourable member who has just made his contribution that this government does not have emergency packages; it does have a strategy in place, though, to see that we have sufficient beds made available until the new prison complex comes online.

This bill is balanced and I think I explained adequately why it must proceed today. It is a crucial piece of legislation which puts beyond doubt the intention of parliament when it first passed the truth in sentencing laws. It is the intention of government that this bill before the chamber will take effect immediately after it is passed. Each day this chamber did not deal with this legislation the opposition would risk Andrews going free. I am advised that the judgment may be handed down at any time, even possibly tomorrow. Should there be a judgment in Andrews' favour it will more likely be swiftly followed by more than a dozen applications by prisoners in similar circumstances. By the end of the week, they could all be roaming our streets, I am advised.

For many of these men the Parole Board has decided, on more than one occasion, that they should not go free. We all know that convicted murderer Shane Andrews has claimed before the full bench of the Supreme Court that he has the right to automatic parole. Because he was sentenced before the truth in sentencing laws took effect in 1994, the court has reserved its decision. At that time, under the previous legislation under the Correctional Services Act 1982, Andrews and other prisoners were entitled to instant release upon the expiry of their nonparole period, which was further discounted through a remission system in gaol.

Now is an opportune time for us to clarify the law and remove any doubt about the intention of the parliament when it first passed truth in sentencing laws. Indeed, this bill does close a possible loophole left by a former Liberal government. What we are doing is cleaning up and, as I said, closing a loophole left by the previous government.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I have a question arising out of the minister's comments at the conclusion of the second reading. The minister indicated that the government sees this bill as closing a loophole left by a previous Liberal government and cleaning up after a previous Liberal government. When did the government first become aware of this loophole?

The Hon. CARMEL ZOLLO: I advise the honourable member that I received instructions to prepare a cabinet submission on 9 or 10 July.

The Hon. S.G. WADE: To clarify that, I actually asked the question in relation to the government, not in relation to the minister. I presume the government was involved in the preparation of the Andrews case, so I query whether the government was, in fact, aware of the loophole somewhat earlier.

The Hon. CARMEL ZOLLO: We are asserting that what we are doing now is the correct thing to do and, again, confirming the original intention of the parliament.

The Hon. S.G. WADE: The minister is clearly in the process of backpedalling. I think it would save us all time if she admitted that expressions like 'closing a loophole' and 'cleaning up a mess' are inappropriate. In the context of bipartisan support for this bill, when we said that we are simply affirming the 1994 legislation, and if we are doing any more than that—

The Hon. B.V. Finnigan interjecting:

The Hon. S.G. WADE: I do not know whether we want to go for a general discussion, but I would prefer to keep my comments through the chair. I would invite the minister to indicate that her references to 'closing a loophole' were quite inappropriate.

The Hon. CARMEL ZOLLO: My view is that the government is expressing the law as it now stands. I think that we should move on.

The Hon. S.G. WADE: Clearly, the minister is not big enough to withdraw, so I will move on, but the record will stand: the opposition asserts that it is merely affirming the law of 1994. The government has not shown in any way that it is doing anything more than that. The minister wants to throw in political barbs for the sake of it. I understand that the minister, in her second reading summation remarks, stated that the Supreme Court might possibly give its judgment tomorrow. I would ask: on what basis does the minister consider that it is possible that the Supreme Court will give its judgment tomorrow?

The Hon. CARMEL ZOLLO: I am advised that anything is possible and that indeed it could do it.

The Hon. S.G. WADE: Will the minister advise whether it is the practice of the Supreme Court to advise parties to proceedings the day before it intends to give judgment and, if so, whether the government, as a party to this proceeding, has been advised of such an intention?

The Hon. CARMEL ZOLLO: My advice is not yet, but the advisers here have not checked their emails for the past four or five hours, so I cannot definitively say one way or another.

The Hon. S.G. WADE: I would reflect to the committee that it is my interpretation that the minister did not have facts on which she could state that it was possibly tomorrow. On the best knowledge available to us, we have no notice of a hearing tomorrow. 'Possibly tomorrow' was merely speculative. The minister indicated in the second reading explanation (not in the summation) that the bill would take effect from royal asset. When is royal asset intended to be given to this bill?

The Hon. CARMEL ZOLLO: My advice is this Thursday at Executive Council.

The Hon. S.G. WADE: Considering this bill will not receive assent until Thursday morning, in the context of opposition assurances that this will be dealt with tomorrow, why did the government insist on the debate progressing? At least members could have had the chance to consider the bill further tomorrow. On the minister's answer to the previous question, there is no prospect of this legislation getting assented to tomorrow. The government's performance in this was petulant and extremely unparliamentary.

The Hon. CARMEL ZOLLO: As we all know, tomorrow is private members' day and, by agreement, we always do private members' business first. If this bill was left until later on in the afternoon I am advised that there would be insufficient time for parliamentary counsel to do the royal arms and prepare papers for Executive Council.

The Hon. S.G. WADE: The opposition does not accept that. Parliamentary counsel has the bill tonight. The bill that they will have tonight is the same bill that they would have had tomorrow night. There are no amendments foreshadowed in the lower house by the opposition, nor were any intended for this place. For the government to suggest that parliamentary counsel can manage to do it in half a day on a Wednesday night but cannot manage to do it in a day and a half on a Tuesday night, when they already have the opposition position in both houses today—clearly, we indicated by comments to the ministers that we had no proposed amendments—I think is a reflection on the professionalism of the Office of the Parliamentary Counsel and extremely unhelpful.

Here we have the minister blaming the previous Liberal government for putting in a loophole, which she backed away from, and now she wants to reflect on parliamentary counsel. This is an indictment on a government that does not even want to give parliament the mere basics of time to discharge its duties. We wanted overnight to consider this bill and the government denied us that opportunity. Clearly it will not gain anything by it; all it will gain is another display, and that is extremely unfortunate for this parliament.

The Hon. CARMEL ZOLLO: I remind the honourable member that this really is about risk management, and leaving it to the last possible moment is not good risk management.

Clause passed.

Remaining clauses (2 and 3) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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