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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-18 Daily Xml
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Criminal Law (Extended Supervision Orders) Bill

Committee Stage

In committee.

Clause 1.

The Hon. T.J. STEPHENS: In the summary of this particular bill we have had an explanation of amendments that the government has tabled and I rise to indicate the opposition's support of these amendments. These amendments are the result of discussions between the opposition, the Parole Board and the government. I am glad that the government has listened to our concerns around the original legislation as there were several deficiencies present. There is no need for me to further explain the effect of these amendments.

I trust that honourable members of the crossbench have been given ample time to consider these amendments by the government, and I would encourage them to support these changes. I will not be proceeding with my amendments because of the negotiations we have had with the government. It highlights to me again the very valuable role that the Legislative Council plays as this bill went straight through the lower house even though we had concerns in the other place. Of course, we have had time together to work to improve the bill, so the opposition is now pleased to support it. I would like to thank the member for Morialta, who is ultimately responsible in the other place for this bill, for his good work and look forward to the passage of the bill.

The Hon. K.J. MAHER: I move:

Amendment No 1 [ManInnTrade–1]—

Page 2, line 4—Delete 'Extended Supervision Orders' and substitute:

High Risk Offenders

This amendment changes the name of the bill. It removes the reference to 'extended supervision orders' and replaces it with 'high risk offenders'. It reflects the government's amendments that follow that create a second type of order under the legislation—a continuing detention order. I will just place on record my thanks and appreciation for the work of the opposition as the Hon. Terry Stephens has pointed out in his contribution to clause 1. Sensible negotiation has taken place between the opposition, the government and the Parole Board to produce what we will hopefully put through today.

Amendment carried; clause as amended passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. K.J. MAHER: I move:

Amendment No 2 [ManInnTrade–1]—

Page 3, after line 9—Insert 'continuing detention order—see section 14D(2);'

This amendment inserts a reference to the new type of order created by these amendments being a continuing detention order. It provides a link to the definition contained within the bill proposed at the new section 14D(2).

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 3 [ManInnTrade–1]—

Page 3, lines 12 and 13 [clause 4, definition of extended supervision order]—Delete 'in respect of a high risk offender by the Supreme Court' and substitute 'by the Supreme Court for the supervision of a high risk offender'

This amendment changes the definition of 'extended supervision order' to reflect it under the bill, as per this group of amendments, that there are now two types of orders not just one, and that the extended supervision order is an order regarding supervision of a high-risk offender.

Amendment carried; clause as amended passed.

Clauses 5 to 14 passed.

New clauses 14A to 14E.

The Hon. K.J. MAHER: I move:

Amendment No 4 [ManInnTrade–1]—

New Part, page 9, after line 33—Insert:

Part 2A—Continuing detention orders

14A—Arrest and detention of person subject to supervision order on warrant

(1) If the presiding member or deputy presiding member of the Parole Board suspects on reasonable grounds that a person subject to a supervision order may have breached a condition of the order, the presiding member or deputy presiding member may—

(a) summon the person to attend before the Board; or

(b) for the purpose of bringing the person before the Board, issue a warrant for the arrest of the person.

(2) If a member of the Parole Board (other than the presiding member or deputy presiding member) suspects on reasonable grounds that a person subject to a supervision order may have breached a condition of the order—

(a) the member may summon the person to attend before the Board; or

(b) for the purpose of bringing the person before the Board, the member may apply to—

(i) the presiding member or deputy presiding member of the Board for the issue of a warrant for the arrest of the person; or

(ii) a magistrate for the issue of a warrant for the arrest of the person.

(3) If a police officer suspects on reasonable grounds that a person subject to a supervision order may have breached a condition of the order, the police officer may apply to—

(a) the presiding member or deputy presiding member of the Parole 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.

(4) If a person fails to comply with a summons to attend before the Parole Board issued under this section—

(a) the Board may proceed to deal with the matter in the person's absence; or

(b) for the purpose of bringing the person before the Board, the presiding member or deputy presiding member may issue a warrant for the arrest of the person.

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

(6) A magistrate must, on application under this section, issue a warrant for the arrest of a person unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.

(7) If a warrant is issued by a magistrate on an application by a police officer under this section—

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

(b) the warrant will expire at the end of the 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.

(8) If a warrant expires under subsection (7)(b) or a fresh warrant is not issued under subsection (7)(c)(i), the person must be released from custody.

(9) The Parole 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.

14B—Arrest and detention of person subject to supervision order without warrant

(1) A police officer may, on the authorisation of a senior police officer, without warrant, arrest a person subject to a supervision order if the police officer suspects on reasonable grounds that the person has breached a condition of the order.

(2) If a person is arrested under subsection (1)—

(a) the person must be taken to the nearest police station; and

(b) within 12 hours of the arrest—the presiding member or deputy presiding member of the Parole Board (or, if neither of those members is available, a magistrate) must be notified of the arrest; and

(c) as soon as is reasonably practicable after being so notified—the presiding member or deputy presiding member (or the magistrate) (as the case requires) must, by order, direct that the person—

(i) be detained in custody pending attendance before the Board; or

(ii) be released and summoned to attend before the Board; or

(iii) be released from custody.

(3) In this section—

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

14C—Proceedings before Parole Board under this Part

(1) The following provisions apply in relation to proceedings relating to an alleged breach of a supervision order before the Parole Board under this Part:

(a) the person subject to the order and the Attorney-General must be afforded a reasonable opportunity to make submissions to the Board on the matter;

(b) if the Board is satisfied that the person has breached a condition of the order, the Board may vary or revoke a condition of the order imposed by the Board under this Act or impose further conditions on the order and, if the person is in custody—

(i) direct that the person be released from custody; or

(ii) direct that the person be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person.

(2) The Parole Board must, on imposing a condition or further condition on, or on varying or revoking a condition of, the order—

(a) provide the person the subject of the order with a copy of the order as varied by the Board; and

(b) take all reasonable steps to explain to the person the subject of the order the terms and conditions of the order and, in particular—

(i) the person's obligations under the order; and

(ii) the consequences that may follow from a failure to comply with the order; and

(c) forward a copy of the order as varied by the Board under this section to the Supreme Court and the Commissioner of Police.

(3) Subject to any order made by the Supreme Court, an order directing that a person be detained in custody under this section authorises the detention of the person in custody pending determination of the Supreme Court proceedings relating to the continuing detention order.

14D—Continuing detention orders

(1) If the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person, the matter is referred to the Court by force of this subsection.

(2) The Supreme Court may, if satisfied that the person—

(a) has breached a condition of the supervision order; and

(b) poses an appreciable risk to the safety of the community if not detained in custody,

order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.

(3) The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.

(4) The Supreme Court may, if the Court thinks fit, order that a person the subject of proceedings under this section be detained in custody pending the determination of the proceedings.

(5) The Attorney-General and the person the subject of proceedings under this section are parties to the proceedings, and the Parole Board has a right to appear and be heard in the proceedings.

(6) As soon as is reasonably practicable after making a continuing detention order or an order under subsection (4) in respect of a person subject to a supervision order, the Supreme Court must issue a warrant committing the person to a correctional institution for the period specified in the order.

(7) To avoid doubt—

(a) if a person is detained in custody under this section until the expiration of his or her supervision order, the supervision order expires on the person's release from custody (but nothing in this paragraph prevents the Supreme Court, on application by the Attorney-General, from making a second or subsequent supervision order against the person); and

(b) if a person is detained in custody under this section for a lesser period, the person continues to be subject to the supervision order on release from custody for the balance of the duration of the order (and the date of expiry of supervision order under section 12 is not affected by the fact that the obligations of the person under the order were suspended during the period that the person was in custody).

14E—Variation and revocation of continuing detention order

(1) The Supreme Court may, on application made by the Attorney-General, the Parole Board or a person subject to a continuing detention order, vary or revoke the order.

(2) A person subject to a continuing detention order may only apply under subsection (1) with the permission of the Court.

(3) The Court may only grant permission under subsection (2) if satisfied that—

(a) there has been a material change in circumstances relating to the person; and

(b) it is in the interests of justice to grant permission.

This amendment inserts a new Part 2A—Continuing detention orders. This was the subject of my second reading speech yesterday. This amendment creates a second type of order under this legislation for continuing detention order. The amendment removes the breach of an ESO being a criminal offence, and creates a new regime as to how a breach of an ESO is treated.

We have made this amendment at the request of the presiding member of the Parole Board who has seen the amendment and supports it. If the presiding member of the Parole Board suspects that an offender may have breached their ESO, they can summons that offender to appear before the Parole Board or to issue a warrant for their arrest.

Members of the Parole Board and police officers also have the powers to seek a warrant to bring the offender before the Parole Board. In addition, upon a suspected breach of an ESO, an offender can be detained in custody by authorisation of a senior police officer and within 12 hours must be brought before the presiding member or deputy presiding member of the Parole Board. If these persons are unavailable they must be brought before a magistrate within 12 hours. These are the same conditions as apply for a breach of parole. Under the amendment, the Parole Board or magistrate in the first place then determines whether a person should remain at liberty on the ESO or whether they should be detained in custody and brought before the Supreme Court.

Under the amendment, the Supreme Court then has the power to either order that the person be released again on an ESO, or that a person be detained for the remaining length of their ESO or part of it under an order called a continued detention order. Under this amendment we have created the continued detention order and provided that it is the Supreme Court who determines whether a person will eventually be released again on the ESO or whether they spend time in custody on the continued detention order.

A continued detention order will only provide for the person to be detained until the date of the expiry of their ESO or a lesser period. The paramount consideration of the Supreme Court in determining whether to make a continued detention order is the safety of the community. In addition, the Parole Board is entitled to make submissions to the Supreme Court about the continued detention of the person.

New clauses inserted.

Clause 15.

The Hon. K.J. MAHER: I move:

Amendment No 5 [ManInnTrade–1]—

Page 9, lines 36 and 37 [clause 15(1)]—Delete 'obtaining assistance in determining an application' and substitute 'proceedings'

This amendment means that the Supreme Court is entitled to require any person to furnish the court with a report on any matter, not only in regards to the making of an ESO but also in regards to the making of a continued detention order.

Amendment carried; clause as amended passed.

Clause 16 passed.

Clauses 17 and 18.

The Hon. K.J. MAHER: I move:

Amendment No 6 [ManInnTrade–1]—

Clauses 17 and 18, page 10, line 12 to page 11, line 23 (inclusive)—Delete clauses 17 and 18

This amendment deletes clauses 17 and 18 of the bill to reflect that a breach of an ESO is no longer a criminal offence but rather is dealt with by way of the option of making a continued detention order.

Amendment carried; clauses negatived.

Clause 19.

The Hon. K.J. MAHER: I move:

Amendment No 7 [ManInnTrade–1]—

Page 11, lines 25 to 27 [clause 19(1)]—Delete

'on an application by the Attorney-General for an extended supervision order under section 7' and substitute:

'to make an extended supervision order or a continuing detention order'

This amendment reflects that the bill now includes two types of orders, the ESOs and the continued detention orders. As a result, this clause had to be changed so that appeals are held in the Full Court.

Amendment carried; clause as amended passed.

Clause 20 passed.

Schedule 1.

The Hon. K.J. MAHER: I move:

Amendment No 8 [ManInnTrade–1]—

Schedule 1, page 12, lines 7 and 8—Heading to Schedule 1—delete the heading to Schedule 1 and substitute:

Schedule 1—Related amendments

This amendment is to the heading of schedule 1 of the bill and reflects that the bill now amends not only the Correctional Services Act but also the Bail Act.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 9 [ManInnTrade–1]—

Schedule 1, page 12, after line 8—After the heading to Schedule 1 insert:

Part 1—Preliminary

A1—Amendment provisions

In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Bail Act 1985

A2—Amendment of section 4—Eligibility for bail

Section 4—after subsection (2) insert:

(3) Where a person is being detained under Part 2A of the Criminal Law (High Risk Offenders) Act 2015, the person is not eligible for release on bail.

Part 3—Amendment of Correctional Services Act 1982

This amendment to schedule 1 also reflects that the bill not only amends the Correctional Services Act but also the Bail Act. This amendment inserts the amendments to the Bail Act such that any question of release of a person who is suspected of breaching their ESO occurs not only in accordance with the Bail Act but is also dealt with in accordance with this legislation, and as noted above the release of the offender into the community who has breached their ESO is dealt with by either the Parole Board or the Supreme Court. This amendment also inserts a new heading that is required before the bill spells out the amendments to the Correctional Services Act.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 10 [ManInnTrade–1]—

Schedule 1, page 12, line 14 [Schedule 1, clause 1]—Delete 'Extended Supervision Orders' and substitute:

'High Risk Offenders'

Amendment No 11 [ManInnTrade–1]—

Schedule 1, page 12, line 17 [Schedule 1, clause 1]—Delete 'Extended Supervision Orders' and substitute:

'High Risk Offenders'

These amendments are both required merely to reflect the change in name of the bill due to the introduction of continued detention orders.

Amendments carried; schedule as amended passed.

Long title.

The Hon. K.J. MAHER: I move:

Amendment No 12 [ManInnTrade–1]—

Long title, page 1—After 'orders' insert 'and continuing detention orders'

Amendment No 13 [ManInnTrade–1]—

Long title, page 1—Delete 'a related amendment to' and substitute 'related amendments to the Bail Act 1985 and'

These amendments merely reflect the change in the bill to reflect the creation of continued detention orders, and that it makes amendments to the Bail Act to reflect the introduction of the continued detention orders.

Amendments carried; title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (16:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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