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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-02 Daily Xml
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Criminal Law (Extended Supervision Orders) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2015.)

The Hon. T.T. NGO (17:13): I rise to speak to this bill and outline my support for the government's initiatives within it. The Criminal Law (Extended Supervision Orders) Bill will create a new type of order which is 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. Extended supervision orders (ESOs) are designed to apply to certain high-risk offenders who have either served their entire sentence in prison and are due to be released into the community under no supervision, or have been released on parole and their parole is expiring.

In both cases, under the current law there is no option other than to leave the high-risk offender to live in the community under no supervision. There are cases where certain high-risk offenders, especially sexual offenders, choose to serve their entire head sentence without applying for parole. As a result, at the end of their sentence these offenders are released back into the community unsupervised while they arguably still pose a risk to the community.

There are also cases where the Parole Board may identify high-risk offenders who would benefit from extended supervision beyond the expiry of their parole or who remain a risk to the community and should continue to be supervised beyond the expiry of their parole. These ESOs are intended to cover the offences of rape, unlawful sexual intercourse, indecent assault, acts of gross indecency, abduction, procuring sexual intercourse, production or dissemination of child pornography, procuring a child to commit an indecent act, sexual servitude, deceptive recruitment for commercial sexual services, use of children in commercial sexual services and incest.

This bill allows the Attorney-General to make an application to the Supreme Court for an ESO to be made in respect of a person who falls within the definition of a high-risk offender. Therefore, it will ultimately be the courts that decide whether an ESO is warranted in a specific case. Any such application made by the Attorney-General can only be made within 12 months of the relevant date of expiry for the accused. Appeal rights exist to the Full Court against an ESO granted by the Supreme Court.

Before determining whether to make an extended supervision order, the Supreme Court must direct that one or more legally qualified medical practitioners examine the respondent and report to the court on the results of the examination. The main consideration of the courts in determining whether to make an extended supervision order must be the safety of the community. This clause provides that the object of this measure is to provide the means to protect the community from being exposed to a significant risk of harm posed by serious sexual offenders and serious violent offenders.

There are a number of other contributing factors listed within the bill. I would argue that some of them ultimately fall back to whether the community safety is compromised by not issuing an ESO. For example, treatment and rehabilitation is listed in the bill as a contributing factor. However, I would argue that it still becomes a determining factor. I think the community would be pretty right to think that an offender has only really been successfully rehabilitated if they do not pose further risks to the community.

It is also important to note that this bill does not apply to youth, as it is sensible to believe that there is more chance of rehabilitation within this group. If a court is satisfied that an offender poses a significant risk to the safety of the community if not supervised under an order, the court may make such an order. Any breach of the ESO constitutes an offence with a maximum penalty of five years' imprisonment. Interim supervision orders can also be made while an application for an ESO is being determined. An ESO can only be established for five years or anything less, as determined by the Supreme Court. There is also the ability within the act to vary and revoke ESOs based on changing circumstances.

This bill is very careful to ensure that an incentive remains for a person on an ESO to continue to improve themselves through treatment and rehabilitation. I say this because there has been some commentary suggesting that Australian jurisdictions should follow the Scottish model. The Scottish model incorporates ESOs or continued supervision within the original sentence. By imposing what would effectively be lifelong supervision at the time of sentencing, a court may destroy any incentive for an offender to rehabilitate themselves. I do not believe this is desirable. It is for these reasons that I will be supporting this bill.

Debate adjourned on motion of Hon. J.M. Gazzola.

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