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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-02-22 Daily Xml
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Bills

Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:03): I move:

That this bill be now read a second time.

In so doing, I am pleased today to introduce the Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill 2024. This bill was announced earlier this week by the Premier and myself, and I understand the opposition and crossbench members have been provided the opportunity for briefings throughout the week.

The bill amends the Criminal Law (High Risk Offenders) Act 2015 to extend the definition of 'high-risk offender' to include a person who has been convicted of assisting an offender or impeding an investigation contrary to section 241 of the Criminal Law Consolidation Act 1935, where the offence committed by the principal offender was a serious offence of violence or serious sexual offence within the meaning of the high-risk offenders act.

Pursuant to the high-risk offenders act, the Supreme Court is empowered to make certain orders to ensure that high-risk offenders remain subject to appropriate supervision following the expiration of their sentence, whether the offender is in prison or released on home detention or parole. High-risk offenders are offenders who have been imprisoned in respect of a serious sexual violence offence or a serious offence of violence, and terror suspects. The express object of the high-risk offenders act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by a serious sexual offender or a serious violent offender.

Under the high-risk offenders act the Attorney-General may make an application to the court for a high-risk offender to be subject to an extended supervision order. An extended supervision order can be made for up to five years and allows for the imposition of certain conditions; for example, a requirement for the offender to attend treatment and undertake drug screening.

The court can order that a person be subject to an extended supervision order if it is satisfied that the person is a high-risk offender and the person poses an appreciable risk to the safety of the community if not supervised under such an order. The paramount consideration of the court when determining whether to make an extended supervision order is the safety of the community.

If the conditions of an extended supervision order are breached, the offender may be summoned to appear before the Parole Board. Where the breach is found to be proven, the Parole Board may vary or revoke a condition imposed by the Parole Board or impose new conditions. Alternatively, the Parole Board may detain a person in custody and refer the matter to the court to determine whether a continuing detention order should be made. Where a continuing detention order is made, the offender may be detained in custody for the remainder of the duration of the extended supervision order.

There have been concerns expressed recently within the community about the potential application of the high-risk offenders act to offenders whose relevant offending involves assisting offenders in relation to the commission of a serious violent offence or a serious sexual offence. This public discussion has shone a light on the importance of putting beyond doubt that such offenders are within the scope of the scheme created by the high-risk offenders act.

Under the high-risk offenders act, a 'serious sexual offence' is defined to mean a person who has been convicted of a relevant sexual offence within the meaning of the definition where the maximum penalty prescribed for the relevant offence is, or includes, imprisonment for at least five years.

For the purposes of the high-risk offenders act, a 'serious offence of violence' has the same meaning as in section 83D of the Criminal Law Consolidation Act, which includes a serious offence where the conduct constituting the offence involves:

the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or

serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or

perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to above.

On its face, it is uncertain whether a person who assists an offender or impedes an investigation in relation to a serious sexual offence or a serious offence of violence would be regarded as a high-risk offender within the meaning of the high-risk offenders act.

The government is of the view that such a person ought to be regarded as a high-risk offender. However, for the avoidance of doubt, the bill amends the definition of a 'high-risk offender' in the high-risk offenders act to expressly include a person who is serving a sentence of imprisonment in relation to an offence against section 241 of the Criminal Law Consolidation Act where the offence committed by the principal offender was a serious sexual offence or a serious offence of violence.

The effect of these amendments will ensure that, where the relevant criteria is met, these offenders will be taken to be high-risk offenders for the purposes of the high-risk offenders act. In the event that an application is made, it would then be a matter for the court to determine whether there are sufficient grounds for making an extended supervision order in relation to the offender. That is, the court would need to be satisfied that the offender poses an appreciable risk to the safety of the community if they are not supervised under such an order. This would require the court to undertake an assessment of the risk posed by the offender based on the individual circumstances of the case.

To that end, the bill amends subsections 7(3) and (6) and inserts new subsection 7(7) into the high-risk offenders act to allow for the court to direct a prescribed health professional to examine the offender and prepare a report assessing their likelihood of committing a prescribed offence. New subsection 7(7) of the high-risk offenders act defines a prescribed offence to include:

an offence against section 241 of the Criminal Law Consolidation Act where the offence committed by the principal offender (within the meaning of that section) was a serious offence of violence or serious sexual offence;

a serious offence of violence; or

a serious sexual offence.

The court would be required to take this assessment into account when determining whether or not to make an extended supervision order in relation to that offender.

A consequential amendment has also been made to the objects clause of the high-risk offenders act to reflect that an application for a supervision order may be made in relation to various serious offenders, as opposed to serious sexual offenders and serious violent offenders only. The bill also includes a transitional provision which is intended to ensure that the amendments will apply to an offender regardless of when they committed, or when they were sentenced for, the offence against section 241 of the Criminal Law Consolidation Act.

I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

Part 2—Amendment of Criminal Law (High Risk Offenders) Act 2015

2—Amendment of section 3—Object of Act

This clause broadens the objects of the Act to encompass additional categories of high risk offenders.

3—Amendment of section 5—Meaning of high risk offender

This clause includes in the definition of high risk offender persons serving a sentence of imprisonment in relation to an offence against section 241 of the Criminal Law Consolidation Act 1935 where the offence committed by the principal offender was a serious offence of violence or serious sexual offence. Including them in this definition means that an extended supervision order could be sought under Part 2 in relation to such a person.

4—Amendment of section 7—Proceedings

This clause amends section 7 consequentially to clause 3. In determining whether to make an extended supervision order for the new category of high risk offender the court will be required to consider (amongst other things) the likelihood of the respondent committing—

an offence against section 241 of the Criminal Law Consolidation Act 1935 where the offence committed by the principal offender (within the meaning of that section) was a serious offence of violence or serious sexual offence; or

a serious offence of violence; or

a serious sexual offence.

Schedule 1—Transitional provision

1—Application to offenders

The new provisions will apply to an offender regardless of when they committed, or were sentenced for, the offence against section 241 of the Criminal Law Consolidation Act 1935.

The Hon. J.M.A. LENSINK (11:09): I rise to place some remarks on the record in relation to this piece of legislation which is receiving rapid support to pass through the parliament. Indeed, in terms of the Liberal Party's knowledge of it, I understand from our shadow attorney-general that we did not know about it until 5.15pm on Monday when we had a meeting, so we were not even able to have a joint party paper produced for that meeting. But, nevertheless, it is clearly a very serious issue, a loophole that has been closed in relation to extended supervision orders. The shadow attorney-general was fully cooperative in the House of Assembly when the legislation went through and we will be likewise in this house as well.

I note that regarding the extended supervision orders under the current rules, which have clearly been continued, it will remain an assessment for the court to determine whether the application that is made for an extended supervision order or not is determined by that process. This legislation extends those who are captured under the Criminal Law (High Risk Offenders) Act to those who assisted in covering up a crime afterwards, or hindered a police investigation, given that there is some ambiguity as to whether those people are currently captured.

I do not propose to canvass the issues which are very much in the public domain because I am quite cognisant of the fact that the parliament ought not to interfere in legal processes, but suffice to say there has been a lot of activity in a related space relating to an historic set of murders which shocked South Australia when we all became aware of them. But, clearly in relation to those who are engaged in such a level of covering up of heinous crimes, they ought to be considered through this process, and the court is an appropriate place for those matters to be considered. With those comments, I support the passage of this legislation.

The Hon. R.A. SIMMS (11:12): I rise to speak on the Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill 2024 on behalf of the Greens. In doing so, I recognise that the Greens believe that the rule of law, the protection of human rights and the timely access to justice for all people are fundamental values in our democracy. We also share the belief in the importance of the separation of powers between the judiciary and the parliament, and for the reasons that the Hon. Michelle Lensink has outlined, I do not intend to talk about particular cases when speaking about this bill.

Once again, we are seeing a bill being brought to this parliament in haste and the parliament is being asked to make a decision on this within a very short time frame. Usually in the Greens we are very reticent to do that, but I do accept the government's explanation that a recent matter and the heinous crimes to which the Hon. Michelle Lensink referred have focused the government's mind on this issue, exposed a potential loophole and given them a sense of urgency around this matter. So I accept that and on that basis the Greens are comfortable with supporting the passage of this bill through the parliament.

The bill before us extends the definition of a high-risk offender to include someone who has assisted an offender. In our briefing, we were advised that the intention is not necessarily to be punitive but rather this is to add an additional protective measure to enhance the protections that are available to the community.

As I mentioned in my opening remarks, the separation of powers between the executive, the parliament and the judiciary is crucial to the maintenance of justice in our state. It is important that any legislation that passes this parliament reflects that separation. Even though this bill has eventuated in response to a high-profile case, as appears to be the case, the bill retains the decision-making capacity of the courts. This is a sensible approach when dealing with this issue. However, I do want to put on the public record some of the concerns of the Law Society.

Firstly, the Law Society recognises the principle that a person who is sentenced to a crime should be confident that they have served their term at the end of that sentence. The Law Society states in their correspondence that:

Members of the Criminal Law Committee also noted a general principle that a convicted person in most cases should be reasonably entitled to believe that their sentence and the deprivation of liberty that entails is to be fully completed at the expiration of their sentence.

That is a very important principle in our justice system, but, as the Law Society recognises, there is another important principle for us to consider of course and that is the question of the risk to the broader community. The Greens recognise that there is significant community concern around this matter and that there is a need to ensure the community is protected, but I also would argue that that is important for the maintenance of public confidence in our justice system as well. To quote from the Law Society's contribution:

Members of the Criminal Law Committee queried how an examination of the likelihood of reoffending in this regard can be determined with accuracy, so as to serve the paramount consideration being the safety of the community under existing section 7(5). Making such a determination becomes particularly difficult in the case of a person who has been imprisoned for a considerable amount of time.

The important factor here is that this bill ensures that a decision remains with the courts, so the individual factors and circumstances of the offender are taken into account. The Law Society, I understand, is supportive of that approach and, indeed, again I quote from their correspondence that:

…concerns with the practical implications of this proposal are largely mitigated by the fact that the Supreme Court of South Australia retains the authority to make decisions relating to whether or not an offender is to be subject to an extended supervision order, having regard to the factors set out in the act.

In considering this bill, whilst it was in a short time frame, the Greens considered carefully the views of the Law Society, but I also read with interest the views of other people within the legal profession, in particular within the civil liberties space, and I am persuaded that this bill is worthy of support. For the reasons outlined, the Greens will support its passage through this place.

The Hon. C. BONAROS (11:17): I rise very briefly to speak in support of the Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill 2024. As a very wise person explained to me in recent days, the bill is a logical extension of where the law stands at the moment and it not only puts beyond doubt but also seeks to expand the class of high-risk offenders who may be subject to supervision orders to include offenders who assist other offenders in committing serious sexual offences.

I think this is one of those occasions where we are all unanimously in support of this and I acknowledge the comments that have been made by the Hon. Ms Lensink and the Hon. Mr Simms and endorse those comments entirely. Based on all the material before us, despite the fact that we are dealing with the swift passage of a bill through parliament and there has been commentary around that very high-profile case involving heinous crimes, I think it is also important to say that, whilst not directly related to that case, what that case has done has actually shone a spotlight on this area. It resulted in this swift action by the government, and I acknowledge the work of the Attorney in that respect, and the need for that.

Consistent with what other members have said, I am satisfied that the bill strikes the right balance between the rights of a person—namely, an offender—and keeping our communities safe. I am particularly pleased that the bill will extend to impeding investigations or assisting offending in cases involving serious sexual offending. Again, I acknowledge the government's and particularly the Attorney-General's important work in this space.

I will not repeat everything that the Hon. Rob Simms said as he has probably raised all the points that I would have been concerned about in terms of the swift passage of a bill through this place, but we have had commentary in the media by people who are in the civil liberties space as well and are very outspoken about this in terms of the appropriateness or otherwise of this piece of legislation. All in all, the consensus appears to be the same: it does strike that right balance between protecting somebody's rights in law and the appreciable risks to the broader community, and keeping our community safe.

I should also say that I endorse again the comments from the Hon. Robert Simms regarding the importance of those well-enshrined legal principles but also the separation of powers and what role we have to play in that. I note the court's ultimate decision-making in this piece of legislation, which is critical and no doubt the factor that sees us here supporting this as a parliament in whole.

With those words, I think it needs to be noted that we have all, in a very short space of time available to us, taken on board all of the advice that has been provided, not just from the government, because we always look beyond the government when we are considering these sorts of changes, but certainly looking beyond the government in terms of what we are doing here today. I am satisfied that what we are doing is the appropriate thing and that the government's actions are not only appropriate but necessary.

I should also say that, notwithstanding anything that we are doing today, I think there is a level of satisfaction, or I acknowledge at least the government's position that notwithstanding that high-profile case, it has shone a spotlight on this and we are dealing with it swiftly, but the law as it stands is indeed broad enough to capture that high-profile case which is well underway.

I suppose, if anything, we ensure that any ambiguities are dealt with going forward and, in addition to that, take the opportunity to extend these laws to serious sexual offending, which I am particularly pleased with and, above all, keep our communities safe from any further offending and those appreciable risks that do exist. With those words, and they are brief, I indicate my support for the bill.

The Hon. S.L. GAME (11:23): I rise briefly to support the Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill 2024. This bill aims to expand the definition of high-risk offender and subject them to potential extended supervision orders when appropriate.

One Nation supports the right to safety for all members of the community. People who engage in crimes that threaten the safety of others or willingly support criminals in their illegal endeavours need to be held responsible for their actions. I certainly agree that anyone convicted of assisting an offender or impeding an investigation relating to a serious sexual or violent offence is a high-risk offender and should be appropriately punished.

The safety of members of the community must be the priority, and those who commit atrocious acts of violence, those who aid and abet them, and those who assist in covering up these crimes have lost the right to walk freely amongst us. This bill targets individuals who actively help to commit serious crimes, and the goal is to manage the risk posed by these individuals after their release from prison. I support this legislation to extend the definition of a high-risk offender. We must protect public safety, and I believe that is the intention of the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:24): I thank all members for their indications of support and also thank them for dealing with the legislation in a very timely manner. We occasionally do this; we do not do it very often. There is almost always very good reason when we consider legislation within days. I thank members for their consideration of that in this manner with this bill, and I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: I think a number of members have referred to the haste with which we are being asked to deal with this legislation, which I certainly appreciate needs to be done, but my colleague in the other place the member for Heysen, the shadow attorney-general, did ask why the government only chose to bring this to his attention I think via an email at something like 5 o'clock on Monday night. My question for the Attorney is: can he elaborate on why other members of this parliament were not brought into appreciating that this urgent bill was going to be brought before us until that time?

The Hon. K.J. MAHER: I thank the honourable member for her question. It is a reasonable question, as I think other members have indicated. There were particular circumstances that shone a spotlight on what I think is a defect in the legislation, the fact that if you aid and abet, essentially assist, an offender before or during the commission of a serious violent offence, you are in effect automatically captured in the definition of a high-risk offender, but if you assist after the offence, by assisting after the offence or hindering an investigation it is entirely conceivable you could be doing things that mean that offenders go on to offend further when otherwise they may have been apprehended.

It was a significant omission, we think, and shortcoming in terms of this legislation that had a spotlight shone on it by events that have occurred this year. As you would expect, we have taken a lot of advice in terms of framing it. I know my learned friend the Hon. Robert Simms has talked about the issue of the separation of powers and the Kable principle that applies to state courts as well as chapter III courts, federal courts, so we took quite a deal of advice in terms of how we might deal with this matter, how we would frame it legislatively.

On Monday afternoon this week, it was discussed and cabinet agreed to this legislation. I am advised, but I am happy to go and check, that there was a phone call with the shadow attorney-general's office at 4.21 about this legislation. I am not sure if there was a follow-up email just after 5 o'clock. That may well have been the case; I am not disputing that at all. The reason it proceeded in the manner it did was we had to have the bill settled and drafted. We had what was significant advice on how we would go about doing that, and then it went through our cabinet processes.

The Hon. J.M.A. LENSINK: Further to that, regarding the elephant in the room, which is the case that we have referred to but we are not actually talking about, the Attorney might not wish to answer this, but is he satisfied that the government is taking all actions in relation to that particular case to keep the community safe?

The Hon. K.J. MAHER: I thank the honourable member for her question. Yes, I am satisfied that we have responded, based on the advice we have received, as fully as we can.

Clause passed.

Remaining clauses (2 to 4), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:30): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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