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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-16 Daily Xml
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Criminal Law (Extended Supervision Orders) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 June 2015.)

The Hon. J.A. DARLEY (16:28): I rise to speak briefly on the Criminal Law (Extended Supervision Orders) Bill and to indicate my strong support for the additional layers of protection that it will afford our community against serious reoffenders. The purpose of the bill is to address future risk and enhanced community safety. This will be achieved by creating a new type of order called an extended supervision order, designed to place restrictions on certain high risk offenders and provide for their continued supervision beyond the expiry of any term of imprisonment or parole period.

Under the bill, the Attorney-General will be able to apply to the Supreme Court for an extended supervision order. The paramount consideration for the court in determining whether to make such an order will be the safety of the community.

Where a high risk offender poses an appreciable risk to the safety of the community if left unsupervised, the court will be able to make an order that will remain in force for up to five years. The Attorney will be able to make second or subsequent applications to the court for extended supervision orders beyond the initial five years. The Parole Board will also be able to impose conditions on extended supervision orders requiring a person to do or not to do certain things, as the case may be.

Whilst I appreciate the arguments against this bill, overall I, like other honourable members who have spoken in favour of this bill, think any measure aimed at ensuring community safety and minimising the risk of danger to victims and other individuals within our community has to be embraced. This is one of those occasions where we have the opportunity to be proactive rather than reactive and, with all due respect to those who oppose the bill, if an offender's criminal history is deemed to be so bad as to warrant them being classified as a high risk offender, then it is more than appropriate that they bear the consequences of that.

The Hon. Terry Stephens made reference to the tragic circumstances surrounding the murder of Jill Meagher in Victoria. I could not agree more that we need to do absolutely everything within our power to prevent crimes like that from occurring in the first place. If that means extended or indefinite supervision and restrictions on one's liberty, then so be it. It is important to bear in mind also that the bill does provide appeal rights for those individuals to whom a decision in favour of an extended supervision order relates. If an aggrieved individual is able to convince the Full Court that they ought not be the subject of an order, then that decision can be reversed or annulled.

Like the Hon. Terry Stephens, I too have consulted with the Chair of the Parole Board, Ms Francis Nelson QC, over this bill. She has raised some very valid concerns, which the opposition has tried to address by way of amendments in the other place. In a nutshell, those amendments sought to insert a presumption against bail for those persons who are brought before the Parole Board for a breach of the conditions of an extended supervision order, set either by the Parole Board or the Supreme Court. This would overcome the difficulty that the Parole Board would have in actually doing anything about the breach.

Given that it could be months before the matter is dealt with by the courts, the bill as currently framed would enable offenders back out on bail and posing a risk to the community. This is the exact type of thing we that we are trying to avoid, so it is extremely important that we address this flaw in the government's proposal. It is certainly not as though we do not have any precedent for a presumption against bail. The Bail Act currently provides a whole host of circumstances in section 10A that will give rise to a presumption against bail. It is only appropriate that that list be broadened to include breaches or extended supervision orders.

It goes without saying then that I support amendments consistent with what the opposition proposed in the other place. I think it is fair to say that the Attorney in the other place indicated that he, too, was sympathetic towards what the opposition were trying the achieve, but agreement could not be reached over the correct set of words to be used.

I understand that over the past weeks discussions between the government, the opposition and Ms Nelson have been ongoing in terms of reaching a suitable compromise with respect to those concerns. I am yet to hear of a final outcome, but I have indicated to the opposition that I am supportive of a suitable compromise. The concerns raised by Ms Nelson are too important to ignore, and I certainly hope they can be addressed appropriately and with bipartisan support. With that, I support the second reading of the bill.

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (16:34): I thank the Hon. John Darley and other members who have contributed to debate on this bill. The bill creates a new type of order, the extended supervision order. I will refer to these as ESOs. ESOs are designed to place restrictions on certain high risk offenders. By making ESOs available, the Supreme Court will be able to provide for the continued supervision of some high risk offenders beyond the expiry of a new term of imprisonment or parole period. The intention of this legislation is to address future risk and enhance community safety. Under this bill, the Attorney-General will have the power to apply to the Supreme Court for an order so that high-risk offenders may be supervised and subject to conditions.

The government has filed amendments to this bill as a result of discussions with the opposition between the houses. Under the filed amendment, we have created a second type of order, a continued detention order, and the breach of an ESO is no longer a criminal offence. As amended, upon breach of an ESO, a person will be detained in custody and within 12 hours will be brought before the Parole Board. This is the same as applies for a breach of parole. The Parole Board will then determine whether a person should remain at liberty on the ESO or whether they should be detained in custody to be brought before the Supreme Court. We have then given the Supreme Court the power to either order that the person be released again on an ESO or that the person be detained for the remaining length of their ESO or part of it under the new order called a continued detention order.

Under this amendment, we have created a continued detention order and provided that it is the Supreme Court who will determine whether a person will be eventually released again on the ESO or whether they spend time in custody on the continued detention order. However, the amendment as drafted gives the Parole Board the power to determine at first instance whether the person is at a risk to the community and whether they should be released again on the ESO. The Parole Board has the power to order that the person be detained for a longer period to be brought before the Supreme Court and also is entitled to make submissions to the Supreme Court about the continued detention of the person. The Presiding Member of the Parole Board has expressed support for these amendments and we thank the opposition for their support of these amendments.

During debate in the other house, the opposition sought updated figures concerning the number of offenders who may be captured by this reform. As explained, I am advised, during briefings with the opposition, whilst there may be a large number of offenders who could potentially be subjected to an ESO, the intention of this legislation is to protect community safety and address future risk. Therefore, whilst it is important to target those serious offenders, an important element of this reform is to determine their risk of reoffending.

It is anticipated that an application for an ESO would be made based upon the advice of the Parole Board and Department for Correctional Services. The need to consider future risk also means the list of matters to be considered by the court, including an expert report, is vital. I reiterate that the government anticipates that these orders would be used sparingly. We appreciate the seriousness of extending the supervision of an offender who has completed their sentence, and it will only be in cases where there is a real risk to public safety that such applications will be made.

With that in mind, I provide an update of figures provided by the Department for Correctional Services. I turn firstly to violent offenders. The Department for Correctional Services undertook an analysis of prisoners who were released into the community between 20 April 2014 and 19 April 2015. The department further refined their analysis to match the criteria of the bill and, in doing so, they now consider that over that 12-month period there were 370 violent offenders who could potentially be the subject of an application for an ESO. Of these 373 offenders, 26 were female.

Furthermore, of these 373 offenders, 109 were sentenced to less than 12 months and therefore there was no non-parole period. Of the remaining 265 offenders with a non-parole period, 15 did not apply for any parole and served out their entire sentence, meaning they were released into the community unsupervised. This means that, during that period of time, 5.6 per cent were released unsupervised.

I now turn to serious sex offenders. The Department for Correctional Services undertook an analysis of prisoners who were released into the community between those dates, 20 April 2014 and 19 April 2015. The department further refined their analysis to match the criteria of the bill and, in doing so, they now consider that over that 12-month period there were 96 serious sex offenders who could potentially be the subject of an application for an ESO. None of those were female.

Furthermore, of these 96 offenders, only three were sentenced to less than 12 months and therefore were not subject to a non-parole period. Of the remaining 93 offenders with a non-parole period, 17 did not apply for parole and served out their entire sentence, meaning they were released into the community unsupervised. This means, during that period of time, just over 18 per cent were released unsupervised, justifying the proposal in this bill to give the Supreme Court the power to order extended supervision. Again, I thank those members who have contributed to the debate on this bill.

Bill read a second time.

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