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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
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Sentencing (Release on Licence) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 June 2018.)

The Hon. R.I. LUCAS (Treasurer) (16:20): I thank the honourable members who have contributed to the debate on the bill. I rise on behalf of the government to respond to issues that have been raised in this debate and also some unanswered issues raised in the debate in another place. On behalf of the government, I make some comments concerning amendments which have been filed by the opposition and will be debated during the committee stage of the debate.

The opposition have made it plainly clear that they do not want the Supreme Court to entertain the release of a person who has been indefinitely detained on licence unless the Parole Board recommends it. I can today make a commitment on behalf of the government that the government will work with the Parole Board and the court to consider how these types of decisions should best be made in the future and over the long term. But at this point in time, the government just cannot support the discretion of the Supreme Court being removed in the way proposed by the opposition for one very important reason.

There is absolutely no doubt, in the advice given to the government, that the insertion of a Parole Board veto right over Supreme Court decision-making, as per the opposition amendments, is an open invitation for the defendants to launch a constitutional challenge.

If this bill is passed, including the opposition amendments, our advice is that any attempt to apply the new stronger test to cases currently before the courts and in the future may be derailed and delayed by such constitutional challenges. There is a clear danger that the court will construe the proposed text that the opposition wants to insert into sections 58(1) and 59(1) as the Parole Board dictating to the Supreme Court. This would render the provision invalid. I ask the opposition and the members of the crossbench, given the advice given to the government and my words today on behalf of the government, do they want to take this risk, this gamble, with the safety of the community at stake?

The government advises that everyone is now on notice that the opposition amendments could lead to challenges against the application of the new provisions to any matters before the court now and in the future. This bill, as drafted and including the amendments filed by the government, is specifically designed to address community concerns about certain matters currently before the courts, and these hastily drafted opposition amendments could completely derail this intent.

Leaving you to ponder these matters, I now turn to a number of questions that have been raised during debate and raised in the other house as well. Whilst answers to those questions were supplied between the houses, it is worthwhile placing them on the record. A query was raised about reports required under sections 57, 58 and 59 of the Sentencing Act. The reports are undertaken by psychiatrists employed by the Northern Adelaide Local Health Network, Forensic Mental Health Service, SA Health. The reports cost $989 each. Forensic Mental Health Service is reimbursed for these reports through the Victims of Crime Fund via the Attorney-General's Department.

It is the responsibility of the clinical director of the Forensic Mental Health Service to nominate a practitioner, a forensic psychiatrist, to examine the respondent and provide a report. The report provided to the court outlines the offending history, triggers, risk factors and an opinion as to whether or not the person is incapable of controlling or unwilling to control his or her sexual instincts.

The psychiatrists are required to review considerable material as part of these assessments, which might include index of briefs/exhibits; affidavit, application and originating application; certificates of record; apprehension reports, complaints and informations; transcript of proceedings; DCS reports such as treatment report, intervention summary reports, brief treatment summaries and post-treatment assessment report; risk assessment reports; diagnostic assessment reports; pretreatment assessment summaries, including sex offender and violent offender screening risk assessments; offender risk need inventory reports; housing suitability reports; community corrections reports, including breach reports; warrants, offending history, apprehension reports and bail inquiry reports; applications for reconsideration of authorisation for release on licence; and management assessment panel meeting minutes.

I remind members that the introduction of that paragraph said that psychiatrists are required to review considerable material, and they might include all those issues that I have now placed on the public record.

Queries were also raised about consultation with victims. Under section 14 of the Sentencing Act, a victim of certain serious and prescribed offences may provide the sentencing court with a victim impact statement about the impact of the injury, loss or damage suffered as a result of a crime. If the victim wishes, they will be allowed an opportunity to read their statement aloud to the court. The Victims Services Unit in the Department for Correctional Services maintains a victim register. This is provided for in section 85D(1) of the Correctional Services Act 1982.

To register as a victim, a person must show that they are the victim of a criminal offence and the offender against whom they wish to register is either under the supervision of the Department for Correctional Services, on a community service order or bond, or in custody. Once registered, a victim will be entitled to information about the offender, including details of the sentences of imprisonment, security classifications, the name and address of the prison where the prisoner is held, details of any transfer of the prisoner from one prison to another, date and circumstances in which the offender will or is likely to be released and details of any escape from custody by the prisoner.

It is a decision of the chief executive of the Department for Correctional Services as to whether a person can register and receive information. Registered victims are also invited to make submissions to the Parole Board when the prisoner is nearing release onto automatic parole or makes an application for parole. The Parole Board must take into account the impact the release of the prisoner may have on any registered victims (see Correctional Services Act 1987, section 67(4)(ca) and 68(2)(ca)).

The Victims of Crime Act 2001, part 2, division 2, provides a declaration of the principles that should govern the way victims are dealt with by public agencies and officials. The principles include a victim's right to be informed of a number of matters relating to the offender's charges, sentence and parole conditions. This information is provided to the victim upon their request. While they are contained in legislation, the principles are not enforceable in criminal or civil proceedings.

Questions were also asked about the number of prisoners on orders of indefinite detention. As of 5 May 2018, there were 20 prisoners on indefinite detention orders under section 23 of the Criminal Law (Sentencing) Act, which was replaced by the Sentencing Act. The Sentencing Act commenced on 30 April 2018. No orders have been made under section 57 of the Sentencing Act as yet.

I am advised that there are seven applications for release on licence currently on foot, including the matter of R v Humphrys, which was mentioned by the Hon. Mr Maher during debate. There are no applications for discharge on foot and there is one person currently on licence. The DPP has never made an application for release on licence or discharge of an indefinite detention order, and it would be a very rare occurrence if that was to happen.

The government was also asked in the other house how long it is until a person can make a further application for release on licence following a breach of a licence condition, resulting in a person being returned to custody. I can confirm that there is no time frame provided in the Sentencing Act in relation to these circumstances, meaning a person can apply at any time.

However, where the Supreme Court refuses a person's application for release on licence pursuant to section 59(9) of the Sentencing Act, a person may not further apply for release for a period of six months, or a lesser or greater period as the court directs upon refusing the application.

The government was also asked who approves the location of where an offender released on licence will live and what the process is if that has to change. While it is not a statutory requirement, I am advised that the address where the person is to reside is always specified as a condition of the licence. This is necessary to ensure the appropriate supervision is provided. The Supreme Court does not fix the conditions and so does not impose a condition about any specific address. The Supreme Court makes the order for release on licence, but does so mindful of the likely conditions of release, one of which will be the address.

If an order for release is made, the responsibility for fixing the actual conditions, which will include the address at which the person is to reside, rests with the Parole Board, in accordance with section 59(8) of the Sentencing Act. If an address changes after release, the Parole Board has the power to vary the address as it has the power to vary the conditions of the licence under section 59(10)(a). Where possible, the Office of the Director of Public Prosecutions, or SAPOL on their behalf, the (a) is with the victim if there is a change to a condition, including the address.

The Office of the Director of Public Prosecutions is advised of the possibility of a change as no change can be made unless they are given an opportunity to be heard under section 59(11). It is not always the case that the Office of the Director of Public Prosecutions will have the details of all past victims as some offending goes back many decades and, in some cases, some of the offending might have occurred interstate and the identity of that victim is suppressed.

I also note that during the debate the opposition spoke of its proposed amendments seeking to remove the provision that a person might be considered for release on licence where they no longer present an appreciable risk to the safety of the community on the basis of their advanced age or infirmity. Should the opposition's amendments seeking to remove this provision fail, it has proposed to insert at section 59(10)(b) a clause providing that where a person is released on licence on the basis of their advanced age or infirmity the Parole Board must cancel the release on licence if satisfied that there is evidence suggesting that the person may now present an appreciable risk to the safety of the community.

The government also considered that there should be an opportunity for a person to be returned to custody where they were released on the basis of advanced age or infirmity and their circumstances changed so that the risk to the community is increased. For this reason, the government has proposed an amendment, amendment No. 3, which provides that, in cases where a person is released on licence due to advanced age or infirmity, the DPP or the appropriate board has the ability to apply for a cancellation of licence if there is evidence that the person may now pose an appreciable risk to the community.

The government amendment addresses concerns that a person's infirmity may change, their risk to the community may change and, as a result, their release needs to be reconsidered. That concludes the government's reply to the second reading and we look forward to the debate in the community stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I might, as we often do, use clause 1 to tease out a few issues that apply generally to the bill and the drafting of this bill. I wonder if the government is able to answer: when was this bill finalised before its introduction; that is, when was the draft completed prior to being introduced?

The Hon. R.I. LUCAS: The best advice I have got—and if there is any change we can bring it back on the record—is that it was just prior to the introduction to the house, which we understand was around 29 May.

The Hon. K.J. MAHER: I thank the minister for his answer. I think notice was given on 29 May, if I remember correctly, or standing orders were suspended immediately to allow debate on it the day it was introduced, if I remember correctly.

The Hon. R.I. LUCAS: On that basis it would have been the day before it was introduced, which would have been 28 May, it is likely, but, again, if on advice we find something different from that we are happy to come back and correct the record.

The Hon. K.J. MAHER: So the bill was finalised on Monday 28 May?

The Hon. R.I. LUCAS: I am not sure about the day, but the day before. The final i's were being dotted and the t's were being crossed, I am told, up until the day before it was introduced into the parliament. So if it was introduced into the parliament on 29 May, as I think the leader indicates, then it would have been 28 May. I am not sure whether that was a Monday or a Tuesday. I assume that the day it was introduced was a Tuesday, so then it is likely to have been a Monday.

The Hon. K.J. MAHER: One of the reasons I ask this is that I think it was the morning of Monday 28 May that the Attorney-General indicated that legislation would not be rushed, and that the government would be waiting until the Full Court had handed down their decision before legislation would be introduced. I am wondering whether, when those comments were made on the morning of 28 May, this bill was finalised?

The Hon. R.I. LUCAS: I would need to take advice from the Attorney-General in relation to the state—

The Hon. K.J. Maher: What's your advice?

The Hon. R.I. LUCAS: My advice is: is it in the head of the Attorney-General in relation to statements that she may or may not have made on that time? My understanding is that, in the debate in the House of Assembly, this issue about the government's position as to statements made prior to the introduction and then why the debate was being brought on were, at that stage, outlined by the Attorney-General to the house. I am not in a position to provide a direct response or to consult with the Attorney-General, who is away at the moment.

If this issue is an issue of importance to the leader, I am happy to take it on notice and get a response from the Attorney-General when she is in a position to give such. My advice is that she was asked questions about statements she had made prior to the debate in the house, and then statements, reasons and explanation as to why the bill was introduced.

She is in the best position to know the reason she made statements before on behalf of the government and then introduced it. My understanding is that she has put those on the public record, and I am not in a position to add to those at this particular point.

The Hon. K.J. MAHER: I am wondering whether your advisers are able to inform from their own knowledge of that Monday whether the Attorney-General gave them instructions or asked for further advice, and are they aware from discussions any of your advisers have had with the Attorney-General or the Attorney-General's office about why the change of heart came about to have the bill drafted and finalised?

The Hon. R.I. LUCAS: I am not in a position to be able to add to that. From the leader's viewpoint, I cannot add anything more than I have already added. Having had a quick discussion with my adviser here, we are not in a position to add anything more to what I have put on the record at the moment. Again, I can only say that my understanding is that this issue is to statements the Attorney had made prior to the actual debate in the house, and then the government's position, the Attorney's position on behalf of the government in the house, was explored by the leader's colleagues.

The Attorney-General then indicated the reasons why the government is deciding to proceed with the legislation. I cannot add to that. I am happy to have extracted from Hansard a copy of the Attorney-General's statements and forward them to the leader or, if this debate goes for longer than today, have it pulled out and provided to the shadow attorney-general tomorrow or Thursday when we continue the debate.

I am not in a position at the moment to add anything more to the stated knowledge of the Attorney-General prior to the introduction of the legislation and the reasons why the government then proceeded with the bill on that week commencing 29 May.

The Hon. K.J. MAHER: It might be easier to answer it in a slightly different way. Given the advice to the committee that the bill was still being finalised on that Monday—that is, the day before it was introduced—are your advisers aware whether prior to the 28th there had been an intention to introduce the bill in the sitting week in which it was introduced?

The Hon. R.I. LUCAS: I might just point out to the Leader of the Opposition—he has been in this house for quite some time—that the committee stage of this bill is not an opportunity for him to question my advisers. He has the opportunity to question me as the minister representing the Attorney, and I can take advice from the advisers. This is not an opportunity for the Leader of the Opposition or indeed any member, through me as minister, to direct questions to advisers. The questions are directed to me representing the Attorney-General in this house. I can take advice if I so choose and then answer the questions to the best of my ability, which I will seek to do.

I can only say I cannot add anything more in relation to these particular issues. I would assume—the Leader of the Opposition is a lawyer and I am not—that in terms of the issues of what is and is not covered by legal and professional privilege, lawyers advising attorneys-general, my recollection is the leader might have been a lawyer in the Crown in some dim, distant past. He probably has some understanding of the nature of advice that legal officers provide to attorneys-generals as to what they are and are not covered by.

I am at a disadvantage, not being a lawyer, but all I can say is I cannot add anything more to the leader's questions in relation to the statements made by the Attorney prior to the debate and statements she made in the house that were asked as part of the public record. She has indicated her stated knowledge and the reasons why she, on behalf of the government, proceeded with the bill during the week commencing 29 May.

The Hon. K.J. MAHER: For the record, is the Treasurer saying that he will not ask the advisers he has in this chamber about their knowledge of whether the bill was intended to be introduced in the week before it was introduced? He will not ask the advisers if they have knowledge of that?

The Hon. R.I. LUCAS: Absolutely. As I said, I am surprised that the Leader of the Opposition would even contemplate that the committee stage of a bill is an opportunity for him to quiz staff members about the nature of their advice. The committee stage of a bill is for members of the chamber to ask questions of the minister representing the government in relation to the government's position on a bill. Ministers can take advice from their advisers, and if they share that advice with the committee that is a judgement call for the ministers.

A sensible minister would of course be guided by the advice from their advisers, but it is not always the case that a minister will agree with the advice of advisers, with the greatest respect to advisers. It is a judgement call for the ministers, ultimately, as to how he or she will answer questions in the chamber. I do not know that a long and erudite deposition on the intricacies of the committee stage of the bill is appropriate or not, but I thought, given this is the first committee stage, it is useful to indicate how I would be approaching, as a minister of the Crown, answering questions in the committee stage of the debate.

The Hon. K.J. MAHER: I thank the minister for his explanation on how he is intending to proceed in the committee stage of bills. Given that he has given quite a lengthy explanation about how he intends proceed, it might be worth asking if he intends, if he thinks one of his advisers might have an answer, to frequently refuse to ask the adviser the question so he does not have to answer questions in the committee stage?

The CHAIR: I think it is on the verge, but I am going to allow it because we are in the committee stage.

The Hon. K.J. Maher: He went through in great detail how he is going to proceed.

The CHAIR: I am going to allow it. I am just warning the Leader of the Opposition.

The Hon. R.I. LUCAS: No, I think the Leader of the Opposition is extending the debate and the argument into areas which I certainly was not venturing into. I, and I am sure all of my ministers in the upper house, will take appropriate advice from advisers to this chamber.

As I said, ultimately a minister is responsible for putting an answer on the record which, in most cases, I imagine, would accord with the advice they have received from their advisers. Ultimately, a minister can make an independent assessment as to the way a particular answer will be provided to the committee stage of the debate. That is a judgement call for the minister. It is the way I approached it as a former minister and it is the way I intend to approach it for as long as I shall be a minister.

The Hon. K.J. MAHER: I thank the minister for his answer and I will move on from this. I will just say that I think it is quite extraordinary. I can just imagine if the roles were reversed and a minister in the former government stood up and said, 'I might be able to find an answer. I might have an adviser here who can give me the advice, but I don't want to ask them in case they give me an answer that I don't want to say.' I can just imagine what would happen if the roles were reversed. It might be easier if the minister can respond to things that are in his own realm of knowledge. Was a final bill for this presented to cabinet?

The Hon. R.I. LUCAS: Again, I am stunned that a former member of the cabinet would be asking questions about what did or did not occur with cabinet. All I can answer, in general, is that legislation which is introduced in parliament—I would have hoped under a former Labor government, but certainly under the Marshall Liberal government—will have the approval of cabinet. Read into that as the leader might wish, I am not going to debate what cabinet did or did not discuss and the details of that.

The long established principle, which I would have hoped was followed by the former Labor government, is that legislation would only be introduced after cabinet had approved it. That certainly will be the modus operandi of the Liberal government; that is, legislation which is introduced into parliament will have the approval of cabinet.

The Hon. K.J. MAHER: Just so we are clear: the advice that the minister provided near the start of this committee stage from his adviser was that the bill was still being finalised on Monday 28 May—the final dotting of i's and crossing of t's was, I think, the language used for the bill. I assume, then, from the minister's answer, that all legislation will go before cabinet. However, I am having trouble reconciling the fact that the advice earlier was that this bill was not finished until during the course of that Monday the 28th—unless there was a cabinet meeting on the Tuesday, which the honourable member might indicate—that this finalised bill was considered by cabinet, when the earlier evidence was that it had not been finalised on that day.

There being a disturbance in the President's gallery:

The CHAIR: Excuse me, that is not a pathway. Sorry, Leader of the Opposition. You can start again. My apologies.

The Hon. K.J. MAHER: I am wondering if the minister can reconcile the advice he gave earlier that the bill was not finalised until during the day on Monday the 28th, yet he indicated that it was approved by cabinet. I am presuming, unless the minister indicates that there was a special cabinet meeting on the evening of Monday the 28th or the morning of Tuesday the 29th, that it would have been impossible for the regular cabinet meeting on Monday the 28th to consider that finalised bill.

The Hon. R.I. LUCAS: Again, I am not going to go into the details of this particular issue. I can indicate to the Leader of the Opposition—I think he pursued this issue in part yesterday, or so I am advised, in a committee, which I cannot refer to—the cabinet now meets twice a week. It meets on a Monday and a Thursday. I think the former Labor government had moved away from Monday cabinet meetings. Read into that what the leader might wish, but I can indicate to the Leader of the Opposition that the new Liberal government has been meeting twice a week in terms of cabinet; substantively on the Monday and then it meets on the Thursday.

The Hon. K.J. MAHER: I thank the member. Albeit a very interesting disclosure of the dates that cabinet meets, it still has not come close to answering how he reconciles the advice he gave that this bill was not finalised until during the day on Monday the 28th, yet has indicated that cabinet considered the final bill?

The Hon. R.I. LUCAS: That is a challenge for the Leader of the Opposition to reconcile. I am not going to go into the debate as to what was discussed and when in relation to the cabinet. I just indicated that I would have thought it is a simple equation of two and two makes four. The cabinet meets on a Monday and on a Thursday, so the issues in relation to amendments that might have been still being accomplished 24 hours before are not inconsistent with the information I provided to the committee in relation to the timing.

The Hon. K.J. MAHER: I will not go on much more on this topic, but it seems an extraordinary admission that the bill was not finalised until that Monday the 28th, that cabinet only meets on Monday and Thursday and that there may have been a finalised bill presented to cabinet.

When you consider the other statements that have been made, that the Attorney-General made early on the morning of Monday the 28th in the media that in her view no legislation should go before parliament until after the Full Court of the Supreme Court had handed down its decision in the Humphrys case, how can it be reconciled that you go from in the morning saying there will be no legislation until the Full Court's decision, and then the advice during the day that the bill still was not finalised, to saying that it was considered in cabinet?

I think, without going into cabinet discussions, the minister can inform the chamber, because we are all interested in the process of making sure, as he said, that governments do give due consideration to very important pieces of legislation. I think the chamber is within its rights to know if the final bill went before cabinet on that Monday before being approved for introduction.

The Hon. R.I. LUCAS: I cannot add anything more to the position that I have outlined to the committee. I am not going to enter into discussions about what cabinet did or did not discuss, or indeed when it did or did not discuss it. It was a position the Leader of the Opposition adopted on occasions when he was a minister. It is consistent with the traditions of cabinet confidentiality, and I do not intend to breach those.

The Hon. K.J. MAHER: I thank the minister for his answer, leaving us to draw the conclusion that this bill, one of the first bills we are dealing with in this chamber on behalf of the Attorney-General in the other place, did in fact not get cabinet approval for the final bill. I think that is the only conclusion you can draw from the half answers the member has given. Moving on to a different topic, I am wondering what was the consultation with any groups before this bill was introduced to parliament?

The Hon. R.I. LUCAS: I am advised that, consistent with the advice that was given during the House of Assembly debate, the consultation was conducted with the DPP and the Solicitor-General prior to cabinet consideration.

The Hon. K.J. MAHER: In addition to public sector lawyers, what other consultation was undertaken about this bill?

The Hon. R.I. LUCAS: The plain interpretation of the answer was, 'Who was consulted?' I have indicated who was consulted. It does not take much to assume that the DPP and the Solicitor-General were consulted. It therefore means that persons or groups other than the DPP or the Solicitor-General were not consulted. I do not know whether I have to spell that out any more plainly for the leader.

The Hon. K.J. MAHER: For the sake of clarity then, was the Parole Board consulted prior to the introduction of this legislation?

The Hon. R.I. LUCAS: I am not sure how many times I can answer the question. The leader can list off a thousand other groups or individuals, but if they are not included in the DPP or the Solicitor-General, can he just take it as read that they were not consulted—so I am advised—prior to the introduction of the legislation?

Whether he lists the Parole Board, the Bowden Brompton Community Centre, the kindergarten school at Penola, or whatever it is—he can list all the names—if they are not on the list of DPP and the Solicitor-General, they were not consulted. If we could perhaps just agree on that, we do not need to go through a whole list of other groups that he might want to ask.

The Hon. K.J. MAHER: I thank the member for his response and the frivolous way in which he is treating the discussion about a bill to keep dangerous paedophiles in gaol. That reflects on him and his government's attitude, I think. We take it as read then that, for example, the Law Society was not consulted. Does the minister know if it is going to be his government's habit to not consult with the Law Society prior to introducing these sorts of bills?

The Hon. R.I. LUCAS: I am advised that, no, that would not be a reasonable assumption to make and that when there are matters that can be considered with much more time and there is not the pressing urgency that there clearly was evident in relation to this legislation, there would be much more the normal, standard or usual process. This government, I am sure, will be consultative to the maximum extent that is possible, and various groups, depending on what the nature of the legislation is, would be consulted in the normal course of events.

I would imagine that on occasions the former government may well have consulted with various groups, although there was often a criticism of the former government that it rushed to legislation without having properly consulted. I seem to recall that criticism being made of the former government. But no, it would not be fair to assume that that would be the normal modus operandi for the new government and the Attorney-General. There would generally be wider consultation.

The Hon. K.J. MAHER: Given that there was no wider consultation before this bill was introduced, can the member expand on his comments relating to the pressing urgency? What was the pressing urgency in this case that he has referred to?

The Hon. R.I. LUCAS: I am advised—and again I was not, and neither is my adviser, actively engaged in the sorts of judgements that governments necessarily make—the government obviously made a decision, through the Attorney-General and others, that this was legislation that needed to be urgently considered by the government.

There has been a debate—and the leader was referred to that earlier—in relation to exactly when it might be introduced and exactly when it might need to be passed. Nevertheless, because of a court case, there was a view that this was something which was obviously going to come to a head relatively quickly in terms of needing to be resolved in terms of what the government's position would be.

That was a judgement where the government, through the Attorney-General and I imagine others with whom she consulted within the government, decided that there was some urgency in relation to this particular issue. I am surprised, given the position the leader's party adopted in relation to this, that he would not acknowledge that there was some urgency in relation to this particular issue, but that is a judgement call for the leader to adopt or to take. As I said, I cannot put on the record much more than that in relation to the Attorney's position and then ultimately the government's position.

The Hon. K.J. MAHER: The minister referred to a particular court case. I think, from what he said and from how he is interpreting the advice, that there was a particular court case that was the reason for the urgency in introducing the bill. Is that correct?

The Hon. R.I. LUCAS: I am advised—and we can double-check these exact dates—that the Solicitor-General was appearing in the Humphrys case on 23 May. So if the member's question is particularly about what case it is, it was the Humphrys case, and the Solicitor-General had appeared in that case on 23 May, so I am advised.

The Hon. K.J. MAHER: I am wondering if the minister can inform the committee of the relative merits of waiting until the Full Court hands down their decision and then introducing the legislation, taking into account the Full Court decision in the Humphrys case, rather than going ahead with legislation now.

The Hon. R.I. LUCAS: I thank the member for his kind invitation, but, no, I could not. I am happy, if it is an issue of importance to the member, to seek advice from the Attorney-General when she returns. However, I am not in a position to indicate the judgement call that, ultimately, the Attorney-General had to take after consultation with others, including those within government, in relation to the timing issues.

The Hon. K.J. MAHER: I thank the minister for his answer. I am not asking the minister to look inside the head and the decision-making process of the Attorney-General about whether to wait for the decision of the Full Court or to go ahead with this legislation before the decision. I am merely asking—given that, on the morning of Monday the 28th of last month, the Attorney-General indicated that the government would be waiting until the Full Court decision before introducing legislation—what are the reasons you would wait for the Full Court decision? I am not asking why you are weighing up whether you should not, but what are the reasons that you might wait for a Full Court decision, rather than going ahead with legislation now?

The Hon. R.I. LUCAS: I cannot offer anything more than that. As I said in response to the first questions that the honourable member raised, the issue is regarding statements the Attorney-General made in relation to the timing of legislation and the court case, prior to the bill actually being introduced and commencing debate on 29 May.

The Attorney-General is on the public record indicating her reasoning, both in the house, I think, and also by way of media interview, either on that day or around that day. She was quizzed both inside and outside the house in relation to the statement she had made on behalf of the government prior to the debate in the house, and then the debate in the house. I really cannot add anything more to it than that.

The Hon. K.J. MAHER: I thank the honourable member for his answer, and I do not think that he cannot; I think the member chooses not to. I think the member talked earlier about receiving the views of advisers and then choosing, as a minister, whether to present those in parliament. I think he is now very deliberately choosing not to receive that advice, so that he does not have to make that decision and answer. Be that as it may, and considering that as an indication of how he is choosing to treat this chamber, can I ask what consultation was undertaken, since the bill was introduced, with anyone outside the DPP or the Solicitor-General?

The Hon. R.I. LUCAS: Once the bill is public, of course, consultation can take two forms; that is, consultation initiated by the Attorney-General and the government, or consultation in relation to responses that various groups or individuals might make to legislation, which is then part of the public record. Without actually categorising, I am told there have been discussions with, for example, the Parole Board, the Law Society and, I think, the Bar Association and SAPOL, but we do not have a comprehensive list.

Clearly, once the bill is public, if a particular group or individual has a view that they wish to express, they may send a letter to the Attorney-General or the government, indicating their views about the legislation. There might have been local community groups and associations, or schools or others, who may have expressed a view to the Attorney-General's office, or something. I am not in a position to answer that, but I am advised that of those four or five groups that I have listed, we are aware there has been some discussion in relation to the legislation since its introduction.

The Hon. K.J. MAHER: Of the groups that were named by the minister, what was their view on the legislation during this consultation, and what form did the consultation take? Was it a briefing with an ability to interact and discuss the legislation, or was it a telephone conversation? Are there any written submissions that were made by any of the groups referred to or any other groups?

The Hon. R.I. LUCAS: I am advised that the advice we have is that the Attorney-General, after its introduction, wrote to the Department for Correctional Services, the Department of Human Services, SAPOL, the Legal Services Commission, Victims' Rights Commissioner, the Aboriginal Legal Rights Movement, the Law Society and the three separate heads of courts, and also spoke to the chair of the Parole Board.

The Hon. K.J. MAHER: What was the reason for no formal communication, like a letter, to the Parole Board?

The Hon. R.I. LUCAS: My advice is that I am not aware of why the difference, that the Attorney-General spoke to the chair of the Parole Board as opposed to writing, evidently, to the other groups.

The Hon. K.J. MAHER: What was the view as a result of the consultation with the Victims' Rights Commissioner? I might also ask on the record, while advice is being sought, to save time, did the Victims' Rights Commissioner have any views on the opposition amendments?

The Hon. R.I. LUCAS: My advice is that, evidently consistent with previous approaches by former governments, the government generally does not outline the position of other groups about the legislation. We leave it to them to do so, but in general terms I am advised the Victims' Rights Commissioner was supportive of the legislation. Ultimately, in terms of the detail of his submission, it is a discretion for him, I guess, to make as to what detail he might indicate. In relation to whether he was consulted on the opposition amendments, our understanding is that that was not the case.

The Hon. K.J. MAHER: In relation to the telephone-only consultation with the Parole Board, can the minister indicate what the view—with the telephone consultation with the Parole Board—was in relation to the government bill? Also, was there any view of the Parole Board about whether the government bill was sufficient?

The Hon. R.I. LUCAS: Again, based on advice, I will give a general indication as I understand it of the Parole Board chair's position, but the Parole Board chair is a very forthright person. I am sure, if the Leader of the Opposition wanted to consult with her and get her view, she would be very happy to speak with him. However, in general terms—and I say it advisedly—I am advised that she was generally supportive of the legislation.

It is my advice that it is the government's view that the government's legislation did not place significant additional burden upon the Parole Board. Therefore, it is the government's view that the telephone discussion with the chair of the Parole Board was sufficient in terms of the discussion with the Parole Board on the government's legislation. However, I am very cautious and I would never hesitate to want to speak on behalf of the chair of the Parole Board. I can just say that I am advised that she was generally supportive of the legislation.

The Hon. K.J. MAHER: To the second part of that question, is the minister or his advisers aware of whether the head of the Parole Board had concerns about aspects of the bill that were in the bill or that the head of the Parole Board thought should have been included when changing this legislation?

The Hon. R.I. LUCAS: Again, my advice is that, no, we are not aware that there was anything raised of that particular nature in the discussion with the Attorney. But, again, to be fair to the chair of the Parole Board, I am not sure at what stage the discussion was and whether or not the chair of the Parole Board had a detailed copy of the legislation. I am just not in a position to be able to comment on the nature of the discussion that the Attorney-General had with the chair of the Parole Board, so I hesitate to say anything beyond what I have been advised in relation to the nature of the chair of the Parole Board's response.

Clause passed.

Clause 2 passed.

Clause 3.

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

Amendment No 1 [Maher–1]—

Page 2, after line 9—Insert:

(a1) Section 58(1)—after 'person' second occurring insert:

and on the recommendation of the appropriate board

I think this is the appropriate time to have a discussion. There is a whole suite of amendments that apply to both the sections for discharge of such an order or release on licence from an order of indefinite detention that are very similar to this. Probably this amendment is the time to have the discussion on basically the proposal that someone cannot be discharged or released on licence from indefinite detention unless the Parole Board thinks that that is what should happen.

I think the honourable member referred to legal advice about this and as we go through debating this clause it will be useful to tease out that advice, its nature and the impact it would have. In effect, the series of amendments the Labor Party is moving is to require the Supreme Court to look at the recommendations of the Parole Board and very simply, in effect, if the Parole Board does not recommend that a sex offender who has been detained under the indefinite detention provisions for release, then it does not go any further. So it is a condition precedent on the Supreme Court making its decision for release.

Of course, if the Parole Board recommends that that person ought to be released, then it is up to the discretion of the Supreme Court, taking into account all the other things that the sections of the original act provide to see if they should be released. However, under the suite of Labor amendments it is a condition precedent, before the court applies all the other conditions and turns its mind to all the other things to take into account, that the Parole Board agrees with their release. I think that is a very sensible amendment.

The Parole Board, in many of these cases—in fact, probably all of these cases—will have a much greater understanding and appreciation of the risk that an offender poses and is the sort of matters that they deal with constantly, rather than a Supreme Court judge, who is a very learned person but only turns their mind to these matters at one point in time very occasionally. We would suggest that it is a sensible amendment to allow the Parole Board to turn its mind to whether someone should be released.

If the Parole Board is satisfied that someone should be released then the Supreme Court takes into account all of the factors that they would ordinarily take into account and it is up to the Supreme Court as to whether that indefinite detained sex offender is released or not.

The case which I think has prompted, as the honourable member described, the haste of this legislation, is a good case in point. I think Justice Kelly, in the decision that is under appeal to release Colin Humphrys, stated that the response of the Parole Board to the application has been fairly consistent throughout to the effect that the applicant remains at high risk of reoffending and is not suitable for release on any terms or conditions.

In this case, the Parole Board's view was that Colin Humphrys remains at high risk of reoffending and it is their view that Colin Humphrys is not suitable for release on any terms or conditions. With that being the view of the Parole Board, we think it is entirely reasonable then that the court needs to take that into account and, in fact, if the Parole Board thinks someone is not suitable for release, that the court should then not order that release. If the Parole Board thinks someone is suitable for release, then the court would apply all of the other factors that the court ordinarily applies.

However, to have this quite peculiar contrast between the Parole Board—in this case believing that an applicant remains at high risk of reoffending and is not suitable for release on any terms and conditions—to then have a judge order the release of that person under indefinite detention, we think needs to be resolved.

As I said, this is what the Parole Board does in terms of looking at offenders and understanding the likelihood of an offender's reoffending. It is the Parole Board that sets the terms and conditions of release when an offender under this section is released on licence. So the Parole Board has to turn its attention to the terms and conditions under which an offender should be released, and they are the terms and conditions of that licence under which a judge would make those orders.

It is exceptionally peculiar that the Parole Board could be of the view, as it was in this case, that Colin Humphrys is not suitable for release under terms and conditions, and yet to have to come up with terms and conditions while they believe there are none suitable for release. That is the nature of the opposition's amendments: to make sure that it is, in effect, a condition precedent before a person is released that it is the Parole Board's view that they should be released.

It is not taking away the court's discretion. If the Parole Board deems someone suitable for release, then the Supreme Court would turn its mind to all the other aspects to which it would usually turn its mind, but if the Parole Board deems them not suitable for release, then it goes no further.

The Hon. R.I. LUCAS: This is a critical part of the committee stage debate. I have referred, on advice, in the second reading reply obliquely to the significance of potential impact of some of the opposition amendments, and this is one of the key amendments, I am advised, in relation to that second reading reply. Let me place on record the advice I have received.

To be clear from the outset, the government is opposed strongly to this particular amendment and related or consequential amendments to which the honourable member has referred. Section 58(1) currently states that:

Subject to this Act, a person subject to an order for detention under section 57 will not be released from detention…until the Supreme Court, on application by the DPP or the person, discharges the order for detention.

This opposition amendment changes section 58(1) to add in a requirement that a person's order of indefinite detention will not be discharged unless the appropriate board recommends it. This is a theme of a number of amendments filed by the opposition, so I will speak to this issue just the once, noting that amendments Nos 3, 5, 6 and 8 of Mr Maher's first set of filed amendments relate to the same policy.

Under these amendments, an order for release on licence or discharge of an order cannot be made without a recommendation for such by either the Parole Board or the Training Centre Review Board, which is the parole board for children. This means that the discretion of the Supreme Court to either release a person on licence or to discharge a person's order of indefinite detention is fettered. The government cannot support the discretion of the Supreme Court being removed in this way.

This was made clear during committee by the honourable the Attorney-General speaking in the other house. First, the insertion of a Parole Board veto right over Supreme Court decision-making, as per these amendments, is, in no doubt, inviting a constitutional challenge. There is a clear danger that the court will construe the text inserted into sections 58(1) and 59(1), requiring a recommendation of the board for release or discharge, as the board dictating to the Supreme Court. This would render the provision invalid.

Interposing on my official advice here, it is clear that, if that interpretation is correct and if that is what is held to be the case, then it is a very significant issue should this end up being the nature and the form of the legislation that passes this chamber.

There is a high risk that this provision could lead to challenges against the application of the new provisions to any matters before the court now and in the future. This bill is specifically designed to address community concerns about certain matters currently before the courts. This amendment could completely derail this intent. However, the government can state that we have committed to working with the Parole Board and the court to consider how these decisions should be best made in the future and over the long term.

Secondly, the Sentencing Act already requires the Supreme Court, when making a decision to either discharge an order or release a person on licence, to take into consideration a report by the Parole Board or the Training Centre Review Board, which includes: any opinion the relevant board may have about the effect the discharge order or release on licence would have on the safety of the community; the probable circumstances of the person, if the order was discharged or the person were released on licence; and, the recommendation of the board as to whether the person should be released on licence or the order discharged.

The Supreme Court must also take into account the mandatory two medical reports, any evidence the person themselves puts forward, reports of the periodic review that is required to be undertaken about the person while indefinitely detained, as well as any other reports the court has ordered, using their broad discretion to do so under the act, together with any other matter the court thinks relevant. Inserting a requirement that the appropriate board recommends the discharge or release on licence is, in the government's view, unnecessary at this point in time.

In this bill, the government has created a strong test that must be met before a person is released on licence or their order discharged. Whilst the views of the appropriate board are relevant, in the government's view the Supreme Court should remain the arbiter, the final decision-maker, in the circumstances until such time as further discussions can be had about the issue over the long term.

The burden now rests with the person seeking to be released from detention to prove that they are indeed capable and willing to control their sexual instincts or that they do not pose an appreciable risk to the community due to advanced age and infirmity—noting we will come to a government amendment to make this permanent infirmity—before the Supreme Court can then consider whether to release the person, with the safety of the community being paramount. This strong test is the appropriate means by which to ask the Supreme Court not to release people who are not capable or willing to control their sexual instincts.

The Hon. K.J. MAHER: I thank the minister for his response and reference to advice. Because I know that this is something many of us are very interested in and because there is a desire to support this, should there be no consequences that would adversely impact the safety of the community, for the benefit of the chamber can the minister tease out what he means by possible constitutional issues with the wording as it currently stands in the opposition's amendment?

The Hon. R.I. LUCAS: I think that was outlined in the reply to the second reading. My advice is that what these amendments seek to do and would do if they are passed is fetter the final decision-making power of the Supreme Court. In essence, it takes away the power from the Supreme Court, ultimately to be the final decision-maker, and potentially places the Parole Board in the position of being the final arbiter or decision-maker in relation to these questions.

The advice that we share with the chamber, and as the second reading indicated, is that if members vote for this particular set of amendments they need to do so in the full knowledge that the advice available to the government is that this leaves open the legislation to constitutional challenge.

The government would have to consider its position, and that is not, obviously, a decision for me to make. If this chamber decided to enforce amendments which the government's advice was would potentially lead to a constitutional challenge, the government would have to decide whether or not it would proceed with the legislation. If the clear legal advice available to the government is that the amendments, which might have been moved successfully in the Legislative Council, would open up the whole issue of potential successful constitutional challenge, that would be a decision the government would have to make.

As I said, I am not the Attorney-General. That would be a decision the Attorney would have to make in consultation with the government. That is the clear advice. The Leader of the Opposition and other members will need to make a judgement and maturely reflect upon whether they want to take that risk. We say: do not take the risk; take the sensible cautious position at this stage based on the advice provided, with the understanding that there will be further work done on how this may or may not be improved in the future.

At this stage, the government's advice, which I share with the chamber and with particular crossbench members, is to urge them to not take the risk because to support these particular amendments may well create even more significant problems than I am sure I members would be contemplating.

The Hon. M.C. PARNELL: A new player enters the field. I rise briefly to put the Greens' position on these amendments on the record. I am conscious that I did not make a second reading contribution or a contribution at clause 1. This is a difficult piece of legislation. It is one in which we have been very grateful for the advice that we have received from the Attorney-General's advisers and also very appreciative of the discussions that I have had with the shadow attorney-general. It is, in many ways, a wicked dilemma. What we are looking at are the most appropriate measures to keep society safe from some of the most dangerous criminals out there. I say that in terms of the abhorrent nature of the crimes that some people in society have committed. The overwhelming priority must be to keep society safe.

I also make an observation that other people have made before, that hard individual cases often do make for bad law. I am not saying that this is bad law. I am just saying that I am always very nervous when individual cases are put forward and we are invited to change legislation on the basis of that. We did that last year, and I think it was a bad outcome.

In terms of this legislation and the Greens' position generally, it would be no surprise to people that we have supported judicial discretion with as few fetters as possible in just about all of the criminal law bills and amendments that have come before us. We are big fans of allowing the arbiter of law and fact to determine appropriate penalties. We have opposed mandatory minimum sentencing, and, whilst we fully accept the role of parliament in providing some guidance to the judiciary as to what they should take into account when they are making decisions, we do like to keep as much judicial discretion as possible.

In relation to the specific amendments before us, a range of labels have been thrown around, some of which are more egregious than others. For example, it could be said that under this opposition amendment the Parole Board is being given a veto. Another set of words that has been used is that the Parole Board can fetter the discretion of the court.

My favourite, and I think the most generous interpretation, which the shadow attorney-general put forward, is that it is really just a condition precedent. It is not really fettering the judiciary; it is just that something has to happen before they can make a certain decision.

Regardless of which of those it is—condition precedent, fettered discretion or a right of veto—what seems clear from the legislation and from what the Leader of the Government said, is that the Parole Board's voice will be heard. What the Parole Board has to say is something that the court must take into account. They cannot ignore what the Parole Board says. My understanding is that the Parole Board invariably writes a report and that that is something that the court will take into account.

Regarding the question of constitutional validity and whether a challenge is likely, I do not know whether it does infringe the constitution. My understanding of the cases that involved bikies that were heard by the High Court some time ago is that generally the High Court comes down pretty hard against laws that try to force courts to make certain decisions, in other words tell the court what to do. The High Court does not like that. I think in this case that the Leader of the Government is right, in that regardless of the merits of a legal challenge, a challenge is very likely. Why? You have nothing to lose. If you are in gaol and you are likely to stay there for a very long time, you have absolutely nothing to lose.

The fact that someone might want to exercise their legal right to challenge the validity of a law is no reason for us to make a decision in a particular direction, because that is a sacrosanct right that people have, to challenge the validity of law, but I think there is very likely to be a challenge.

I come back to what I said at the start, which is that if we were looking at a situation where the Parole Board could easily be ignored, I think that would be a serious problem, but that is not the current situation, and it is not the situation under the government's bill. So the Greens' position is not to support the Labor Party amendment for those reasons. I do note that a submission that arrived I guess late in the piece from the Law Society does also consider at some length the opposition amendments, and I note that the Law Society also opposes those amendments.

I will just take the opportunity now for the benefit of the chamber to at least foreshadow our position on amendments. We are not going to be supporting the vast bulk of the Labor amendments. There are a couple of others where my extensive notations read, 'Convince me'. There are a couple of those, but generally we are not convinced in relation to most of them. We will be opposing them, and we will be supporting the government's amendments.

The Hon. K.J. MAHER: I wanted to tease out a little bit the consequences of the foreshadowed possible unconstitutionality of the Labor amendments. The honourable member said there was legal advice to the effect. I am wondering if he is either able to share that legal advice for the benefit of the chamber, given the gravity of what has been outlined, or, if he cannot share the legal advice, to go into more detail about what is the nature of the constitutional concerns that have been raised in the legal advice?

The Hon. R.I. LUCAS: It will not surprise the honourable member; I heard the words come out of his mouth on so many occasions when he was handling bills in this particular chamber. I thank him for his kind invitation to share the nature of the legal advice provided to the government, but I am not in a position to do that other than to say no more than I have stated in the second reading explanation, which I repeated in the opening response to this particular amendment; that is, that the general nature of the advice that we have got is that in fettering the discretion of the court there is this chance of constitutional challenge, and there is a chance that it might be overthrown.

As to any more detail than that, no, I am not in a position to be able to provide any more detail other than the general nature of the advice that the government has received on this particular issue.

The Hon. K.J. MAHER: I think the minister would understand it makes it extraordinarily difficult for the opposition and for crossbenchers if all the detail that the government is willing to go into is that there is a chance that it might be bad and that there is a chance that it might be overthrown. In my experience lawyers often give an indication as to the relative merits or the chances—not just that there is a chance.

There is always a chance anything will be challenged, and there is obviously always a chance that anything will be overthrown. I think you could say that about every single piece of legislation that comes up before this chamber or every amendment. I think it is an insult to members of this chamber not to go into more detail about what the relative merits or the possibilities of those happening are.

The Hon. R.I. LUCAS: I cannot offer any more advice than that. As I said, it is consistent with the position the leader adopted when he was a minister in relation to it. We are not talking about a one in a billion chance—and I am not going to put odds on the advice, but the leader alluded to the situation that there are lawyers, evidently, that will say there is always a chance of something. Well, the leader is a lawyer and he is in a better position to be able to opine on that particular position of lawyers and legal advice.

As a non-lawyer, I can say that, whilst I have not been privy to the discussions in relation to this, I know from past history that you get legal advice and in some cases it is a million to one shot and in other cases they say, 'Hey, this is a genuine issue, a genuine concern, and past practice or past precedent or past court cases would indicate that there is a higher prospect that there is going to be a problem with what you're attempting to do.' That is generally the nature of the advice ministers and others would get.

I have not been privy to the discussions in relation to this but, on the basis of my understanding, we are in the realms of there being enough precedents and cases, and in the mature judgement of the legal advice that has been provided to the Attorney-General and the government, which I have shared with the honourable member and other members, this is a genuine concern, and members need to be on notice that if they support these amendments there is a genuine risk of a constitutional challenge.

I think the Hon. Mr Parnell, someone with whom I often agree in relation to legal issues now that I am in government, has conceded the fact that there have clearly been issues. He indicates, probably quite rightly, that if you have nothing to lose and if there is any prospect at all you will probably give it a whirl in terms of trying to overturn the legislation.

The Hon. K.J. MAHER: I am interested in briefly exploring the consequences of how such a constitutional challenge would play out, should this amendment become part of the bill. I am presuming that, if this amendment became part of the bill and the legislation, the concern would be that someone who is serving an indefinite sentence might apply for release on licence, for instance, and the Parole Board might say, 'No, I don't think you should be released,' and they then take a constitutional challenge that it should be the Supreme Court that makes that decision, not the Parole Board. The Supreme Court did not get to turn their mind as to whether they should be released under the constitutional challenge. Would that be the basis for a challenge? Is that, in a nutshell, the concern?

The Hon. R.I. LUCAS: I am advised, in broad terms, that what the leader has outlined are the concerns. I am further advised that the constitutional challenge might be brought in relation to both the Humphrys case and future cases—I forget the names now, but there are others that are evidently before the courts, or soon to be before the courts. So it would potentially apply to the Humphrys case but also to future cases that are before the courts at the moment.

The Hon. K.J. MAHER: Let's say that it passed and this amendment became part of the legislation eventually and, whether it is the Humphrys case or a future case, there is someone who is locked away in indefinite detention.

The Parole Board does not recommend release and they commence proceedings for a constitutional challenge to that release. What happens to that offender, whether it is Colin Humphrys or someone in the future, while they are lodging that challenge? Are they free to be let out, or, if the Parole Board has ruled that it should not go further and the Supreme Court should not take the application, do they stay under indefinite detention, or are they somehow magically released into the community?

The Hon. R.I. LUCAS: I am very cautious in terms of providing legal advice in this area—

The Hon. K.J. Maher: When you are representing the Attorney that is unfortunately what you have to do.

The Hon. R.I. LUCAS: Indeed. I am advised that, ultimately, the safest response is to say that it is up to the court, but the court has the power to make all sorts of decisions, one of which might be to release the offender whilst the challenge was being conducted.

There may well be other opportunities that the state and the government might have in terms of delaying that, or—and I am sure it is not the correct legal term—take other forms of legal action that might prevent that. However, the general nature of the advice I am given is that it would ultimately be a decision for the court and that one of its options might be the release of the offender.

Clearly, in those circumstances, the government would want to take advice as to what else it might be able to do to prevent that whilst there is a constitutional challenge. I am not saying that is definitely the case; I do not want the leader to indicate that that is what I am putting on the record. I am just saying, in answer to his question, that that is a possibility, if it is in those circumstances.

We can prevent all of that by defeating these amendments. I think all this is adding to the debate where we say to members in this chamber that, if there is any doubt, do not risk it. If there is any doubt, take the safe way and the cautious way. Do not risk the fact that there might be a constitutional challenge. Do not leave yourselves and the community in the hands where ultimately we are not in a position to say to you that it is a court decision and the court might decide to release a particular offender into the community.

It might have been a very interesting debate about the constitutionality of the laws that we pass by way of an amendment that the Hon. Mr Maher is moving. But the advice I give to crossbenchers is to take a deep breath and have a long think about it because I am sure you do not want to be in a position where an offender was released because you happen to have supported an amendment from the Leader of the Opposition when there had been clear advice given that you were risking, potentially, the set of circumstances that we are all trying to prevent.

So that is the position, and I think members need to take a deep breath. Let's be cautious in relation to all of this. It ain't worth the risk to take a punt that the amendments that the Leader of the Opposition is moving will prove to be legally sound and beyond constitutional challenge.

The Hon. K.J. MAHER: In the example given, while a constitutional challenge was underway, it is possible that a court could release a Colin Humphrys or an offender like that in the future. Is that right? Is that what we are saying, that it is possible while it is underway that they could be released?

The Hon. R.I. LUCAS: I cannot really add much more. The circumstances are that we have the Humphrys case, but there are other cases as well and new applications, for example. The best advice I have is that it is ultimately a decision for the court. We are not just talking about Humphrys here. We are talking about other cases which are currently before the courts, as I understand it, which are at varying stages in terms of their processing and their hearing.

The Hon. K.J. MAHER: If there was some sort of constitutional challenge, I think the advice is that a court may well release someone while that challenge is underway. Can I just get that confirmed? I am not sure if that is the advice we are getting. While there is a constitutional challenge underway, a court could release the person and, if that is the case, how would the court make that decision? Would a court then look back to the provisions of the Sentencing Act and apply the provisions of the Sentencing Act in making that decision to release while it is underway?

The Hon. R.I. LUCAS: I cannot offer anything more than I have put on the record, and that is that, as I said earlier, ultimately my advice is that it will be a decision for the court. We are not saying it is highly likely, we are not saying it is likely. We are just saying that ultimately it is a decision for the court. I am not in a position, based on the advice that I have been given, to say that it is impossible, that the court would not or could not do it. I cannot put odds on it and I am not going to put odds on what the chances are.

Clearly, if there was any prospect the government would be looking at whatever devices were at its disposal to prevent that occurring, and I do not know what those options are. We would obviously have to take advice as to if there was a chance of that occurring. We would do whatever it is that we could to prevent that occurring because everyone is wanting to achieve that. What we are getting into is that I am not in a position to offer any guarantees or likelihood or odds as to what might or might not happen. All I can say is that, based on the advice, there is a risk, and I am saying to the Leader of the Opposition and to other members: do not take the risk.

We all share a common view that we do not want some of these people to be released into the community, as might happen. That is what the legislation is intended to do. Why take the risk by way of a series of amendments? Why not all, in a bipartisan way, take responsibility for having passed legislation which we are all as comfortable as we can be in terms of achieving what we want to achieve?

Why is there this never-ending goal of one-upmanship to try to move a series of further amendments that could potentially create a problem, which I do not think anyone wants to create but they may well create because they happen to have their legal hat on rather than—let me rephrase that. There are obviously differing legal views in relation to this. The Leader of the Opposition is a lawyer and he has a different view, perhaps, to the legal advice that the government is receiving; let's leave it at that. Our view is that it is not worth the risk and we urge members not to support this particular amendment.

The Hon. K.J. MAHER: In the situation where the risk that is being agitated here is that a court decides to release someone while there is a constitutional challenge underway, how would the court come to that decision to release that person? Would they just look at that person and weigh up whether they think he should be released or would the court rely on the provisions of the Sentencing Act?

I can tell you where we are going with this. If a court, in making that decision, would rely on the provisions of the Sentencing Act in making that decision then we are no worse off. That court, when releasing that person, would be considering every other provision in the Sentencing Act, so in effect this risk that we are talking about would mean that we are no worse off whether or not this amendment passes, if it is the case that the court would fall back onto the rest of the provisions of the Sentencing Act.

Or is the advice that the court would just start afresh and disregard the rest of the provisions in the Sentencing Act and come up with a whole lot of other reasons that they would release them? In effect, I am asking: are we going to be no worse off in passing this amendment because, in any event, the court would have to fall back on everything that remains here, or not?

The Hon. R.I. LUCAS: I can only add what I said at the conclusion of the second reading and what I have said in response, based on advice, to the opposition's amendment. Our advice is that we are definitely worse off if the opposition amendments are passed. The Leader of the Opposition is trying to manoeuvre the debate back to a situation where the government says, 'We're no worse off if his amendments pass.' That is not the advice that I have. I can only share the advice that I have, and that is that we will be worse off if we are in a position where the opposition amendments have passed.

The Hon. K.J. MAHER: It must be the case then that a court considering a challenge would not rely upon the provisions that remain in the act, because if they would rely on the provisions that remain in the act then we cannot be worse off. So it must the case that a court would somehow come up with a new test about whether a person should be released and not rely on the provisions that remain in the act; is that the case?

The Hon. R.I. LUCAS: I cannot offer anything more than I have shared with the member. I am advised that constitutional challenges are very complicated beings, to use a most inappropriate word to describe them—or processes. They can take their own course in terms of where they start, where they end up and the final decision that the court might take in relation to a constitutional challenge. I cannot share any more information other than the information that I have.

I know the leader is searching desperately for something to save the amendments that he has before the chamber and to justify them, but I cannot give him that guarantee or solace. He will have to rely on his own legal judgement that he has obviously made that his advice is superior to the advice the government has in relation to the risk involved in his amendments. He is entitled, as a lawyer, to make that judgement but we are just saying to other members: do not take the risk of relying on the advice of the Leader of the Opposition in relation to the potential risks should his amendments pass.

The Hon. K.J. MAHER: I note the minister's advice to the chamber. I note that he is prepared to discuss legal advice and legal opinion when it suits the arguments he is putting forward, but a very simple question that he may be able to take on notice about what a court would take into account in deciding to release someone while a constitutional challenge is ongoing, he is not prepared to share it or seek legal opinion about it. Is that the statement?

The Hon. R.I. LUCAS: It is not a simple question, so I am advised, and I am not in a position to provide any greater clarity to the member in relation to the particular issue that he has asked, other than what I have already placed on the record a half a dozen times already.

The Hon. K.J. MAHER: It may be the case that we are no worse off if this passes but the honourable member is not prepared to share that legal position.

The Hon. R.I. LUCAS: Mr Chairman, it might be an opportunity for other members to be able to participate in the committee stage debate. The Hon. Mr Pangallo has been anxious for the last half an hour to get in.

The Hon. F. Pangallo: I've been taking deep breaths.

The Hon. R.I. LUCAS: Yes, taking deep breaths, and so I will be very quick and say no, it is not the case that we will be no worse off with the Hon. Mr Maher's amendments, but I would be very interested to hear the wisdom of the Hon. Mr Pangallo, and indeed others in relation to this particular amendment.

The Hon. F. PANGALLO: This is a very important piece of legislation that has come before the chamber. I have been taking deep breaths and I have also been wavering between what the government has proposed with its amendments and, of course, what the opposition has proposed.

Our position is that I will be supporting the amendments of the opposition. The reason for that is because I am not a lawyer, unlike other members in this chamber, but I am putting on my hat as a former journalist and also as a member of the community.

Over the years, I have seen instances where the courts have released serious offenders—paedophiles and criminals—and it has caused public outrage, and that is probably the reason that we are here today and why we are actually debating this bill. It is because the public is outraged that there is a possibility that a serious offender could come out and reoffend.

I am torn between what has been proposed by the opposition and the government because I really want to see this bill expedited and that we get a result and that we see that these offenders are actually locked away. In doing so, I sought advice from senior legal sources about this and the message that I got was that courts and judicial officers, when it comes to risk assessments, it really is not a part of their expertise and that is why we have a Parole Board.

The Parole Board meets on a regular basis and it makes these risk assessments about offenders. That is what they are there for and that is why we put them in that position. We expect that, when they make a recommendation to the courts, the courts in fact take heed of that and follow that. We can see that over a period of history in this state that has not happened and sometimes these people are actually released.

As I mentioned, the Parole Board spends a great deal of time assessing these prisoners and it really is part of their brief to ensure that there is no risk to the community when they are released. The dilemma we now have is that we need to ensure that the court takes notice of the Parole Board's recommendations—and do they follow it? How do we ensure that the courts do that?

The opposition, in its amendment, is essentially asking the court to rubberstamp the Parole Board's decision, and I can see from the legal advice that comes from the government that there could be an opportunity for somebody to challenge that through a higher court—and probably that will happen.

I am of the view that, if that is what they want to do, let's put it to the test, let's allow them to try to challenge that aspect of it. What I do not want is to have on my conscience that a paedophile or a serious offender is released and is able to reoffend because our parliament did not make a watertight law, a law that put the onus not just on the court but also on the Parole Board, and that that decision protects the community.

I am putting on my hat as a member of the community. My view is that I think we need to make it as difficult as possible for these people to get out. There are other provisions in some of the amendments, and what the government has proposed in terms of infirmity and inserting clauses about permanent infirmity—will that keep somebody in there? I doubt it very much, because I have had experience and seen where offenders can feign an illness or even feign probably terminal illness, and have been released and have reoffended. That is something we need to take into account.

I think we need to ensure that these offenders are not released back into the community if a Parole Board assesses them as being a risk to the community, and the court needs to take that into account.

In closing, from our point of view I am going to be supporting what the opposition has put up and hoping that we can get some clarity over what the Parole Board and the courts can do in this matter. I think that is the most important thing. This is what we are here arguing about: do we give authority over the courts to the Parole Board, and I am sure that a lot of people are wrestling and grappling with that.

Some of the legal people I have spoken to have also had the same view that, is this what we are doing? Are we really putting the Parole Board ahead of the courts? That is a difficult prospect that some are unable to grapple with, but if it is going to result in a constitutional challenge, perhaps we need to be able to put it to the test.

In closing, our position is that we will support the opposition's amendments, hoping that it gives us a law that will keep people like Humphrys (and I understand there are also others who are up for release shortly) from coming back into the community, and protecting our community, which is vital and important.

The Hon. R.I. LUCAS: As I advised members that we would not be proceeding beyond 6 o'clock, I move:

That progress be reported.

Motion carried; committee to sit again.

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