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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-05-12 Daily Xml
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Criminal Law (Extended Supervision Orders) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 May 2015.)

The Hon. T.J. STEPHENS (16:33): I rise on behalf of the opposition to speak to the Criminal Law (Extended Supervision Orders) Bill. This, of course, is a government bill, part of Labor's justice policy at the last election; it is disappointing that it has taken them well over 12 months to begin the process of implementing it.

The bill provides for the creation of extended supervision orders (hereafter referred to as ESOs). ESOs allow for particular offenders considered to be at high risk of reoffending to have supervision orders placed on them following completion of their sentence, usually at the expiration of parole. For parolees this would be an extension of their parole and for those offenders who were never paroled it essentially applies parole conditions on them.

It is important to note that offenders who will be subject to these ESOs will be high-risk offenders: that is, high risk of committing a serious offence upon release back into the community. So the question begs as to why these people are being released if this is the case. Whilst much of this is a matter for the judiciary, the Attorney-General has pointed out that these actually are not the worst of the worst offenders, but in fact a new class of high-risk offender.

Those very serious offenders are already covered by section 23 of the Criminal Law (Sentencing) Act. The Attorney-General has confirmed that those covered by this legislation are those not serious enough to be covered by section 23 but still at risk of reoffending. An application for an ESO is made by the Attorney-General to the Supreme Court on the advice of the Parole Board and/or the Department for Correctional Services. The Supreme Court must then determine that the offender poses an appreciable risk to the safety of the community if not supervised under the order, and a qualified medical practitioner must assess the likelihood of reoffending and report to the court.

As per subclause (5), the paramount consideration of the Supreme Court is community safety. The subsequent clause deals largely with the specifics of what is to be considered by the Supreme Court and what sorts of reports are to be delivered by medical experts.

Paragraph (j) of subclause (6) talks about any pattern of behaviour disclosed by his or her criminal history. This is relevant to the opposition amendments which I flag we will be moving at the committee stage of the debate. In which form they come is a matter of discussions between the member for Morialta and the Attorney-General. The specific conditions of an ESO, as expected, are quite similar to those of parole. I will not go into all the detail here. It can be found within the bill, in the minister's explanation of clauses and on the public record from the debate in the other place.

The opposition in principle is in favour of the adoption of ESOs. First and foremost, our criminal justice system should be about public safety and protection, but also about offender rehabilitation. The system must assume this is possible, but where it is proven to be doubtful or impossible, the system needs to protect the public.

The jurisprudential and moral dilemmas posed by this legislation are manifest. Should an offender who has served his penalty be subject to further restrictions based on possible future offending? The government, as indicated by the Attorney, believes that ultimately community safety should be the paramount concern of the system, and so do we on this side of the council. I note that the Law Society has concerns with the legislation based on the dilemma I outlined before, and also about executive encroachment on the judicial arm of government, which is a regular complaint about the Labor government.

There is an emotional side to this argument. One only has to look at the case of poor Jill Meagher in Victoria. Whilst the details of the case are specific in that Adrian Bayley was actually on parole at the time, the government, and we as legislators, need to act in order to prevent crimes like that from occurring. If that means supervision of repeat or notorious offenders, then so be it.

A point I do want to raise is, if offenders are coming out of the correction system with a high risk of recidivism and no overt signs of rehabilitation, surely this is an indictment on the state's correction system? This is a question that is for another debate at another time, but it is worthy of mention when we are discussing the philosophy behind these ESOs.

The bill is, of course, supported by the Parole Board, and in particular by its chair, Ms Frances Nelson QC. She has identified some concerns and areas of further interest for us to look at. Indeed, we have been in discussion with her about our proposed amendments, to which she has been very helpful.

The opposition has serious concerns with the enforcement of ESOs, given the issue of extreme overcrowding within the correction system. Apparently the total funding for the enforcement of ESOs is $300,000 for the next two financial years, trickling to zero after the first year. This does not make any sense, frankly, so I would like to hear from the minister why the budget allocation is minimal, given that the Attorney-General himself is unsure as to how many ESOs could be issued within the next two years and that the current corrections budget is not enough for the excessive number of prisoners currently in the system.

Further to the enforcement is the issue of bail upon the court's finding a breach of an ESO. The government's bill does not include a presumption against bail, and there is a real risk of offenders being released back into the community following the breach of an ESO. If the breaching of an ESO is to be considered a step on the way to serious reoffending, or may in fact be a serious offence itself, and this person clearly has a serious criminal history warranting an ESO, then bail should be refused save for highly unusual circumstances, which runs counter to all other criminal defendants. This is the view of the Parole Board, and we hope to address this deficiency at the committee stage. With these words, I commend the bill to the council.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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