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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-12 Daily Xml
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YOUNG OFFENDERS (RELEASE ON LICENCE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 30 October 2013.)

The Hon. S.G. WADE (19:48): I rise on behalf of the Liberal opposition to indicate our support for the passage of the Young Offenders (Release on Licence) Amendment Bill 2013. As the Hon. Mark Parnell reminded me, this has nothing to do with the Hon. Kelly Vincent.

This bill was introduced by Attorney-General John Rau on 17 October 2013 in response to a court action by the convicted killers of a young Sudanese person, Akol Akok, who was killed in 2009. The offenders are attempting to use a provision of the Young Offenders Act to apply for release on licence, despite receiving life sentences and not yet having served their nonparole period. These licence provisions only apply to young people serving their sentence in juvenile detention, and this is the first time that an application has been lodged under the provisions in the act.

Although the laws were introduced in response to a particular matter, the legislation would apply generally to all offenders in that situation. As such, it should not offend the principle against legislating for specific persons.

In 1998, South Australian courts determined that youths convicted of murder should be sentenced as adults, which includes having a minimum nonparole period of 20 years. Murder is, of course, one of the most serious crimes that can be committed. It is appropriate that those who commit murder are treated as adults. The bill seeks to make this practice of the courts explicit in legislation. The bill will ensure that youths convicted of murder are sentenced as adults and it will remove the possibility of young people convicted of murder being released on licence.

The bill has retrospective effect to allow the new legislation to operate on the offenders who have already applied for release on licence under the current act. It goes without saying that the Liberal Party is cautious in supporting any retrospective provisions; however, in our view, it is acceptable in this case as parliament is fundamentally reaffirming what was generally considered to be the law.

Just yesterday I was advised that the government intends to move amendments to the bill. The first is to replace the phrase 'taken to be sentenced as an adult' with 'dealt with as an adult' to ensure the consistency of language throughout the legislation. I understand that the suggestion was made by the Chief Justice. The second is to ensure that the mandatory nonparole period in section 32 of the sentencing act 1988 does not apply to youth even when they are being dealt with as an adult. The opposition supports these amendments but I should indicate the opposition's concern about the lack of prior notice.

The Attorney-General had sought written confirmation of the opposition's support of the bill and we gave it, but then further amendments arrived without warning. In the past, the government has provided us with prior notice of amendments even when they are still being considered by the government, and that has facilitated the Liberal Party party room consideration of amendments in an orderly fashion, but that course of action was not taken in this case.

The opposition accepts the urgent need to pass this bill before a court hearing on 25 November. The opposition acknowledges that the bill has not received universal support. The Aboriginal Legal Rights Movement considers that it is inappropriate to introduce retrospective and reactive legislation in a particular case, to use their words. The ALRM also does not see this bill as providing adequate opportunities for rehabilitation and, thereby, in their view, it is contrary to Article 40 of the Convention on the Rights of the Child. Nonetheless, the opposition supports this bill and the amendments to it.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (19:52): I believe there are no further second reading contributions to this bill and I would like to thank the opposition for contributing to the debate. I do not know whether there were any other contributions. If there were, I thank those members as well. This bill is designed to address an issue with the Young Offenders Act that the government has only recently been alerted to. The bill has been drafted not because of one or two cases but because the issue identified raises a point of general principle. The point is that a youth convicted of murder should not be entitled to be released from detention before the expiration of his or her nonparole period.

In the other place, the opposition sought information concerning just how many young offenders are detained in juvenile facilities for murder, and details of their sentences. I can inform the council that there are currently a total of seven youths in the Adelaide Youth Training Centre serving life imprisonment for murder with nonparole periods as follows: 15 years; two at 20 years; one at six years, two months; five years, two months; eight years, two months; and six years. Of these seven, two have filed applications under section 37. This bill fixes a drafting oversight when the policy changed concerning young offenders and nonparole periods. It was never intended that a young offender convicted of murder and sentenced to life should have the benefit of both a nonparole period and a potential release on licence, so I commend the bill to members.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: I move:

Amendment No 2 [AgriFoodFish–1]—

Page 2, lines 3 and 4—Delete 'Young Offenders (Release on Licence) Amendment' and substitute:

Statutes Amendment (Young Offenders)'

This amendment changes the name of bill. I test the will of the chamber. This amendment is due to the fourth amendment, which amends the Criminal Law (Sentencing) Act. Would the committee like me to talk to the fourth amendment so people understand the context of why we need this amendment?

The CHAIR: Is everyone happy with that? Thank you, minister.

The Hon. G.E. GAGO: It is a substantive issue. The fourth amendment, which is the reason we need to move amendment No. 2, addresses the application to youths of section 32 of the sentencing act. It is the government's intention to leave undisturbed the court's current practice on how section 32 of the sentencing act is applied to a youth sentenced in accordance with section 29 of the Young Offenders Act. Section 32 of the sentencing act is triggered when a youth is dealt with as an adult under section 29.

The Full Court of the Supreme Court has determined that the mandatory minimum nonparole period provisions in section 32 do not apply when sentencing a youth. Therefore, out of an abundance of caution, to ensure that the current court practice is not disturbed, a decision has been made also to amend section 31A of the sentencing act to state that those provisions in section 32 that deal with mandatory minimum nonparole periods do not apply in relation to youth. I understand that it was the Chief Justice who raised this issue and drew this to our attention, and we have responded accordingly. Therefore, we need to amend the Criminal Law (Sentencing) Act and as a result the name of the bill has to be changed.

The Hon. S.G. WADE: Could I clarify? I thought the Chief Justice was concerned about amendment No. 3, the consistency of phrases. I thought this was the internal debate within the department.

The Hon. G.E. GAGO: I am advised the Chief Justice did indeed raise the issues in relation to amendment No. 3, but he also asked the question as to whether the government's intention was to disturb the practices of the court, and the answer is no, so therefore amendment No. 4.

The Hon. S.G. WADE: As I have indicated in the second reading stage, the opposition does support this, but considering that this is a court-initiated practice (I understand it was 1998) and the goal of government is to actually not disturb the practice of the court, I would have assumed that the safest course of action was to let the courts continue in their practice and not to attempt to codify. Could the government explain why it thinks that the best way to continue the practice of the court is for the parliament to meddle?

The Hon. G.E. GAGO: I have been advised that the reason we have taken this approach is that concerns were raised that by amending section 29 we might somehow change the approach of the court, so therefore amendment No. 4, through an abundance of caution, makes that very clear.

Amendment carried; clause as amended passed.

Clause 2 passed.

Clause 3.

The Hon. G.E. GAGO: I move:

Amendment No 3 [AgriFoodFish–1]—

Page 2, line 14 [clause 3, inserted paragraph (b)]—

Delete 'will, for the purposes of this or any other Act, be taken to be sentenced as an adult' and substitute:

must be dealt with as an adult

Under the bill, section 29(4) was being amended to refer to a youth as 'be taken to be sentenced as an adult'. In consultation with the Chief Justice, he expressed a preference that section 29(4)(b) be consistent with the remainder of section 29, as well as consistent with sections 36 and 41 of the Young Offenders Act. As such, the government amended changes so that section 29(4) refers to a youth 'be dealt with as an adult'. In addition, the Chief Justice was concerned about the insertion of the phrase 'for the purposes of this or any other Act'. The government agrees that this phrase was unnecessary and this amendment removes that.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 4 and 5 passed.

New clause 6.

The Hon. G.E. GAGO: I move:

Amendment No 4 [AgriFoodFish–1]—

Page 3, after line 3—Insert

Part 3—Amendment of Criminal Law (Sentencing) Act 1988

6—Amendment of section 31A—Application of Division to youths

(1) Section 31A—before subsection (1) insert:

(a1) The following provisions of this Division do not apply in relation to a youth (whether or not the youth is sentenced as an adult or is sentenced to detention to be served in a prison or is otherwise transferred to or ordered to serve a period of detention in a prison):

(a) section 32(5)(ab);

(b) section 32(5)(ba);

(c) section 32(5a);

(d) section 32A.

(2) Section 31A(1)—delete 'This Division does' and substitute:

The remaining provisions of this Division do

I have already explained what this amendment is about to the chamber.

The Hon. S.G. WADE: The opposition supports the amendment.

New clause inserted.

Schedule passed.

Long title.

The Hon. G.E. GAGO: I move:

Amendment No 1 [AgriFoodFish–1]—

Long title—After '1993' insert 'and the Criminal Law (Sentencing) Act 1988'

This amends the long title of the bill to insert reference to the Criminal Law (Sentencing) Act. This change is needed because of amendment No. 4.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (20:06): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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