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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-31 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Conference

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (11:04): I have to report that the managers for the two houses conferred together and it was agreed that we should recommend to our respective houses:

As to Amendment No 1—That the House of Assembly no longer insist on its disagreement to the amendment.

As to Amendment No 2—That the Legislative Council no longer insist on its amendment but makes the following amendment in lieu thereof:

Clause 22, page 10, line 32 [clause 22, inserted section 35A(3)(a)]—After 'represents the prisoner' insert:

, or who is communicating with the prisoner for the purpose of determining whether or not to represent the prisoner

As to Amendment No 5—That the Legislative Council no longer insist on its amendment but makes the following amendment in lieu thereof:

Clause 41, page 15, after line 13—After subclause (2) insert:

(3) Section 67—after subsection (7) insert:

(7a) If the Governor does not approve the recommendation of the Board that a prisoner be released on parole, the Minister must, within 30 days after being requested to do so by the Board, advise the Board of matters (if any) that the Minister believes might assist the prisoner in making any further application for parole.

(7b) The Board must not disclose advice given by the Minister under subsection (7a).

(7c) The Minister and the Board cannot be required to disclose advice given by the Minister under subsection (7a) by any law of the State or for the purposes of any proceedings before a court, tribunal or any other body.

As to Amendment No 6—That the Legislative Council no longer insist on its amendment but makes the following amendments in lieu thereof:

Clause 49, page 19, lines 1 to 23 [clause 49, inserted section 76A]—Delete section 76A and substitute:

76A—Apprehension etc of parolees on application of CE

(1) If the CE or a police officer suspects on reasonable grounds that a person who has been released on parole may have breached a condition of parole, the CE or police officer may apply to—

(a) the presiding member or deputy presiding member of the Board; or

(b) if, after making reasonable efforts to contact the presiding member and deputy presiding member, neither is available—a magistrate,

for the issue of a warrant for the arrest of the person.

(2) A warrant issued under this section authorises the detention of the person in custody pending appearance before the Board.

(3) A magistrate must, on application under this section, issue a warrant for the arrest of a person or for the arrest and return to prison of a person (as the case may require) unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.

(4) If a warrant is issued by a magistrate under this section—

(a) the CE or police officer (as the case requires) must, within 2 working days of the warrant being issued, provide the Board with a written report on the matter; and

(b) the warrant will expire at the end of period of 2 working days after the day on which the report is provided to the Board; and

(c) the presiding member or deputy presiding member of the Board must consider the report within 2 working days after receipt and—

(i) issue a fresh warrant for the continued detention of the person pending appearance before the Board; or

(ii) cancel the warrant, order that the person be released from custody and, if appearance before the Board is required, issue a summons for the person to appear before the Board.

(5) If a warrant expires under subsection (4)(b) or a fresh warrant is not issued under subsection (4)(c)(i), the person must be released from detention.

(6) The Board may, if it thinks there is good reason to do so, by order, cancel a warrant issued under this section that has not been executed.

Clause 49, page 19, lines 25 to 31 [clause 49, inserted section 76B(1)]—Delete subsection (1) and substitute:

(1) A police officer may, on the authorisation of a senior police officer, without warrant, arrest a person who has been released on parole if the police officer suspects on reasonable grounds that the person has, while on parole, breached a condition of parole and the police officer is satisfied that—

(a) the breach is not trivial; and

(b) unless the person is immediately arrested, the person is likely to continue to breach conditions of parole, commit further breaches or commit an offence.

Clause 49, page 19, line 36 [clause 49, inserted section 76B(2)(b)]—Delete 'the CE' and substitute 'a magistrate'

Clause 49, page 19, lines 39 and 40 [clause 49, inserted section 76B(2)(c)]—Delete 'the CE' and substitute 'the magistrate'

Clause 49, page 20, after line 5 [clause 49, inserted section 76B]—After subsection (2) insert:

(3) In this section—

senior police officer means a police officer of or above the rank of Inspector.

Consideration in committee of the recommendations of the conference.

The Hon. I.K. HUNTER: I move:

That the recommendations of the conference be agreed to.

The Hon. S.G. WADE: I will comment briefly on the minister's motion. I indicate straight up that I obvious support it because I was part of the conference and I think this is a good suggestion for an agreement. Deadlock conferences have been relatively rare in the first two terms of the Labor government. They have been more common in the last year or two. It would be fair to say that we are both developing a better awareness of how conferences work and also perhaps identifying some of the pitfalls. I think the would be good for the council to further consider how we can make these deadlock conferences more effective. As I think I indicated in relation to an earlier message, I suggest that we consider not holding conferences while the houses are sitting.

Coming back to the amendments, I thank the government for working with the opposition and crossbench MPs to reach agreement on these amendments. In relation to the first amendment, it is recommended that the House of Assembly does not insist on its disagreement with the Legislative Council's fine tuning of the provision in relation to prisoners who are removed from prison for the purposes of interrogation by police. I thank the conference managers for their recommendation, and I appreciate that the House of Assembly is yet to consider that recommendation.

Amendment No. 2 relates to whether or not communication with a lawyer is privileged. The concern of the Legislative Council and the Law Society is that we want to provide protection where a prisoner is in the process of engaging a lawyer but where the engagement has not actually been completed. We appreciate the government's concern that the wording of our original amendment could have opened up a wider gamut of lawyers. That was not the intention, and I think the deadlock conference did a workmanlike job in suggesting amendment No. 2.

Amendment No. 5, of course, has its origin not in the opposition amendments but in the work of the Hon. Ann Bressington, and I commend the Hon. Ann Bressington for highlighting this issue through the bill. It has given us a better understanding of how this government is using the powers in relation to Parole Board recommendations on life-sentence prisoners for parole. I stress that the Liberal Party supports the maintenance of the reserve power of Executive Council in relation to life-sentence prisoners, but I believe that the way this matter has developed through the houses and through the deadlock conference shows that the government is very reluctant for transparency in this area.

I remind the committee that our original amendment provided that the government did not need to provide reasons if public safety was in question. Most of the public debate by representatives of the government has focused on situations where they are concerned that public safety is under threat. Just on the plain reading of our original amendment, public safety would have been a reason not to provide reasons. Nonetheless, in the context of the government's position, I believe that the deadlock conference has come up with at least some progress, and amendment No. 5 reflects that, and I support it.

Amendment No. 6 relates to the apprehension of people who are in breach of parole. Obviously, the Liberal Party supports efforts to improve public safety by giving police the powers they need to apprehend people who are in breach of their parole and represent a threat. The most stunning realisation regarding this amendment was that, in the context of the deadlock conference, we became aware that the police regarded the government's original amendment as not workable. If this government thinks that unworkable law enhances public safety, it does not deserve the confidence of this committee or the public.

This government is consistently driven by rhetoric rather than outcomes. I believe that the work that the Legislative Council and the deadlock conference did on what is now amendment No. 6 shows the value of the legislative process and the need for this parliament to be healthily sceptical of government claims about the outcomes of legislation and the support of stakeholders such as the police. I think it is incumbent on us to do due diligence on legislation.

The police certainly reaffirmed their desire to enhance their powers, but they said that the government's original amendment would not have worked. We had confirmation at the deadlock conference this morning that the police, the Parole Board and the Department of Correctional Services have been consulted. My understanding is that they believe these provisions to be workable. I look forward to them being proclaimed and implemented.

The Hon. A. BRESSINGTON: Just very briefly, on these amendments as well, I concur with what the Hon. Stephen Wade has just said and also agree that it would probably be beneficial for members of this house, some of us newer ones, to get some clarity on what the rules of these deadlock conferences actually are and how they are supposed to be managed. We have new members in here (new as in 2006) who are not really aware that there are protocols to follow in these deadlock conferences. I think it was proven at the last two meetings of the deadlock conference that if everybody is clear on the ground rules they can actually run a lot more smoothly.

On the amendments themselves, as members would be aware regarding amendment No. 5, I did move to have this power completely revoked from executive government. We are the last jurisdiction in Australia that holds onto this power. It is there from the days when we actually used to hang prisoners. I think those days are long gone and never to return. As the Hon. Stephen Wade said, the debate on these amendments showed that this government is not prepared to hand over its power or its ability to control the Parole Board or even to second-guess the sentencing of the courts. I find that very concerning when we appear to have an executive that believes that it is the only body that is capable of getting these decisions right.

I have looked into the risk that lifers actually pose once they are released. I have put in an FOI, but from memory my information is that very few, if any, seriously reoffend when they are released from prison. They may commit minor offences in order to breach their parole and go back in, because they are not functioning well on the outside because they are so institutionalised—which is an indictment of the rehabilitation in our prisons. They rarely go out and axe murder anybody or commit one of those heinous crimes again after they have served their sentence and their non-parole period.

When I get that FOI I will make it known to the chamber and I think it will show that the whole idea that executive needs to override the decisions of the Parole Board as a public safety measure is nothing more than PR and political rhetoric as to why the government maintains that power. As for the issuing of warrants, it greatly disturbs me that this government would even consider allowing a public servant to issue a warrant for somebody's arrest. As the police have said, the amendment that the government was putting forward would have been unworkable, but we would never have found that out from the government or during the conference unless those specific questions were asked.

So I again concur with the Hon. Stephen Wade of this place, and members of this place should be highly sceptical of what this government does to sell a bill. It is incumbent upon us all to make sure that we make our own inquiries and seek our own information from the stakeholders involved in legislation, because quite frankly I do not believe that this government can be trusted to tell us the truth. In saying that, I am pleased with the outcome of the conference, that agreement could be reached and yet again that the Legislative Council has done its job and done it well.

The Hon. I.K. HUNTER: I cannot help myself but to make some comments and put them on the record as well. I also would like to make my gratitude known for the work of the conference. The truth is that the government gave some ground and the opposition gave some ground also, and I think we have come up with a position that will be at least workable.

It is disappointing, therefore, to hear honourable members stand up here and go through some of their spurious arguments in relation to their original position which, in fact, they gave ground on but still maintain for their own electoral purposes, I can only assume, but I will leave that where it is.

The honourable minister in the other place can put some rebuttal comments on the record if she thinks it is important enough. However, I will say this: the government was firmly of the view that it would not give up the prerogatives of the executive, and it maintains that position. My understanding is that the opposition had a similar view as well.

Motion carried.

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