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Statutes Amendment (Recidivist and Repeat Offenders) Bill

The Hon. A.L. McLACHLAN (16:22): I rise to speak to the Statutes Amendment (Recidivist and Repeat Offenders) Bill. This bill has been called on urgently and passed through the House of Assembly with little or no debate. The Liberal Party agreed to progress the bill urgently and review it between the chambers. As you are aware, Mr President, it has been called on urgently, and we are advised by the government that they wish the bill to progress through all stages this afternoon. These are exceptional circumstances, and I will outline some of the difficulties the Liberal Party has with this bill. In the committee stage we will be seeking to put certain amendments to the chamber for its approval.

The Liberal Party supports the second reading of the bill. The bill seeks to amend the Bail Act 1985, the Criminal Law (High Risk Offenders) Act 2015, the Criminal Law (Sentencing) Act 1988, and the Sentencing Act 2017. I should add that I am making the assumption, when making my second reading contribution, that the second reading speech the government has tabled is identical to the one incorporated without reading—indeed, that has just been delivered.

The Sentencing Act currently enables indefinite detention of certain serious repeat sexual offenders, adults and youths sentenced as adults. The Criminal Law (High Risk Offenders) Act currently enables the extended supervision of high-risk offenders, sexual or violent, beyond the completion of their sentence. It is these two acts which we are seeking to amend. Honourable members might note that there is a reference to two sentencing bills—the Criminal Law (Sentencing) Act 1988 and the Sentencing Act 2017, which we recently passed but is not yet law. So, this bill seeks to amend not only the existing law but also the law that is yet to come into force. I might touch on that a little later.

The bill seeks to expand the regimes for continued supervision and detention orders to apply to serious repeat offenders and recidivist youth offenders. It also seeks to expand the category of offenders for whom there is a presumption against bail to include serious repeat offenders and recidivist youth offenders. It also adds provisions enabling a court to make interim orders for detention whilst applications for continued detention are under consideration.

I might touch upon the current powers to assist the members of the chamber. Under the Criminal Law (Sentencing) Act 1988, a person is taken to be or liable to be declared a serious repeat offender if they are convicted on at least two or three occasions, depending on the offence, of specified serious offences. Once taken to be or declared as a serious repeat offender, the court is not bound to ensure the sentence imposed is proportional to the offending conduct, or any non-parole period must be at least four-fifths the length of the sentence. However, the court has discretion to dispense with these requirements if it is satisfied by the evidence given on oath that the defendant’s personal circumstances are so exceptional that it is not appropriate to sentence them as a serious repeat offender.

Section 20C relates to recidivist young offenders and is similar to the above. A youth is liable to be declared a recidivist young offender if they are convicted on at least two or three occasions, depending on the offence, of specified serious offences. Again, the court is not bound to ensure that the sentence imposed for the offence is proportional to the offence, although in the Youth Court the limitations on ordering a sentence of detention under section 23 of the Young Offenders Act apply and any non-parole period must be at least four-fifths the length of the sentence.

In relation to serious repeat sexual offenders—that is, adults and youths sentenced as adults—convicted and sentenced for specific sexual offences, they can be made subject to detention orders. An order can be made that a serious repeat sexual offender be detained indefinitely on the basis that they are incapable or unwilling to control their sexual instincts. The same regime also provides for consequent release on licence with conditions. Applications can also be made for the detention order to be discharged.

The current process for making detention orders is that at the time of sentencing the prosecution can apply to the Supreme Court for a detention order against a serious repeat sexual offender. The Attorney-General also has power to apply to the Supreme Court whilst the individual remains in prison. The paramount consideration for the court is community safety. Before an order is made, two medically qualified practitioners must report to the court on whether the offender is incapable of controlling or unwilling to control their sexual instincts.

The bill proposes to expand the detention order provisions to also apply to recidivist youth offenders and serious repeat offenders. It also provides for interim provisions that allow a court to make interim orders. The bill proposes to enable a court to make detention orders for offenders who are the subject of an application and precludes their release, for example on parole, whilst the application is being determined.

Under the existing Criminal Law (High Risk Offenders) Act, a court can order extended supervision orders of high-risk offenders beyond the completion of their sentence. Continued detention can also be ordered if an order is breached. This act only applies to high-risk sexual offenders and not youths. So, the current process is that, during the last 12 months of a sentence, the Attorney-General can make an application to the Supreme Court. One or more legally qualified medical practitioners examine the offender and report to the court.

For sexual offenders, they report on the likelihood of the offender committing a further sexual offence and, likewise, a violent offender committing a further offence of violence. The court makes an order if they pose an appreciable risk to the safety of the community if they are left unsupervised. If an offender breaches an order, the Parole Board can then elect to have the person appear before the Supreme Court and apply for a continued detention order.

In that context, the bill seeks to have serious repeat offenders and recidivist youth offenders fall under the definition of a high-risk offender. This would then allow the Attorney-General to apply for a supervision order in the last 12 months of their sentence. The same procedural and evidentiary rules are proposed to apply in relation to the court making such an order, except that the assessment is on the likelihood of the respondent committing a further offence of any kind that resulted in their becoming a serious repeat offender or a recidivist youth offender. Breaches of an order will be dealt with in the same manner, except for youths, who will be dealt with by the Youth Parole Board. I think that is government amendment No. 4.

The bill before us also seeks to make changes to bail provisions. The bill also proposes an amendment to the Bail Act that extends the presumption against bail for a serious repeat offender or a recidivist youth offender. Mirrored amendments are also proposed for the Sentencing Act 2017, which, as I have mentioned, is not yet in operation.

I think it is important for the benefit of the committee stage, which I am imagining is going to come at the conclusion of the second reading, for us to understand the nature of this bill. During my submission, I will be reading into Hansard some submissions by interested parties, which may go over again the operation of the bill.

We have a situation with a bill that is—after we have just debated the Sentencing Act, which came after consultation and a variety of reports for the benefit of the government—seeking to broaden the class of individuals who become high-risk offenders, in particular for youths, and also those who are serious repeat offenders. In essence, the application of that act and for the provisions in relation to serious sexual offences in relation to detention—we are talking about the concepts of detention and supervision—the class is being considerably expanded.

I touched upon, at the beginning of my second reading contribution, that this is urgent. It is, in my view, a complete undermining of the democratic processes in this state to bring a bill involving complicated and serious amendments to the Sentencing Act, which will have far-reaching implications, before this chamber and say that it has to be debated in an afternoon.

Effectively, the government’s line is that there is the case of a youth. I will not go into the details of the case because we have not been provided with all the details of the case, and that is rightly so because they are confidential. I do not intend, during the course of my second reading contribution, or during committee, to abuse privilege and speak in any form of depth in relation to this particular case. We are told that the justification for the immediate passage of this bill today, through all of the stages, is that there is one individual, a youth, who they wish to apply the provisions to.

Honourable members need to take into consideration, when deciding their position on this bill, that we have a case, we do not have the details of this case, and we are being asked to take on good faith from the government that these bill provisions need to be made law. At the same time, there are considerably important provisions in here that relate to adults.

This is not a tailored bill for this one particular instance. It is a significant and, some in the community might say, radical step in changing the nature of sentencing. Traditionally, if you are sentenced, if you do your time, you then can go back into the community, potentially on parole, which is a sort of interim period where you have good conduct. In the past, the parliament has wrestled with detention orders for those convicted of serious sexual offences who are unable to change their ways.

The parliament decided in those circumstances that they were sufficiently exceptional, when the individual could not control their sexual feelings, that detention orders may well be appropriate after an application to the Supreme Court. Again, under high-risk offenders, which involves sexual and violent offending, similarly an application to the Supreme Court may be appropriate. But this is pushing it further, this is changing the dynamic. As a consequence, there should be proper community debate before we legislate. There needs to be significant consultation with key stakeholders in the community so that we can make an informed decision.

I have to say, I am deeply suspicious that this is an attempt to ram through a bill without proper community consultation, examination by the Law Society and members being properly informed with a case involving one individual. I am deeply suspicious. Despite that, the Liberal Party has decided that it will support the second reading and put forward amendments that it thinks are reasonable in the circumstances. I will touch on those later in my speech.

It is an unacceptable position to be in where we have to pass this bill today so that it can go to Executive Council during the week to apparently allow an application to be made soon after. It is almost farcical. It begs the great question, ‘How did we get ourselves into this position?’ but because it relates to a youth and because it probably relates to elements of government accountability in relation to its care of this child, then we are unable to debate the same.

We are muted out of respect for the individual, which I accept, but it is still not satisfactory and the government is refusing to hold itself to account by putting us in this position—no apology, no acceptance, but rather a second reading debate after the second reading explanation of the government has been tabled and no proper parliamentary processes in the ordinary course of placing this bill. I protest it, but again I say the Liberal Party is acting reasonably in seeking to amend the bill rather than simply opposing it.

What I am confident of is that there is a conga line of incompetence that brings us to this point. It dismays me that the minister responsible in the other place, the member for Port Adelaide, is not taking responsibility and at least setting out that the government holds itself to account for the position we find. No, there is silence. As I said, I suspect that the level of care we have provided this unfortunate youth may well have been a contributor. I do not know, but I suspect.

I point out to members again that we have just gone through the Sentencing Act 2017 and we are amending it substantially. Why were these provisions not incorporated as part of the government’s policy initiative? I know why: because no-one recommended it to the government. This is a power grab using the excuse of an unfortunate youth.

There are stakeholder groups who, given the time pressures, have struggled and valiantly put forward some submissions in relation to this bill. Because we are dealing with it urgently, I intend to read them into Hansard. The first one is from Ms Penny Wright, the Guardian for Children and Young People. I have received two submissions from Ms Wright, and I intend to read both. The one I received this afternoon at 1.48pm is by email and is as follows—excuse me, I will not include the salutations:

I am writing to you as Guardian for Children and Young People and as the Training Centre Visitor in relation to the Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017, which is due for debate in the Legislative Council today. I have previously sent you my comments on the bill, but I attach here a further document prepared by my office, which discusses crucial framing principles for the secure therapeutic care. It sets out the minimum requirements that should be present in a situation where secure accommodation is being contemplated on the basis of condition, propensity, instinct in a young person that requires management. I hope this may contribute to thoughtful consideration of the implications and limitations of the proposed legislation.

I understand that one of the rationales for the hasty introduction of this bill is that it is necessary to make arrangements for the continued management of a young person (currently detained in the Adelaide Youth Training Centre but due for imminent release), on the basis that his likely future behaviour poses serious risk to himself and/or the community.

I have now visited this young person. I have also acquainted myself with his history—both before he came to the attention of the state and what has happened to him subsequently. It seems indisputable that his history of family trauma and the experience he has subsequently endured have contributed to his current ‘condition’.

I was not consulted about the Bill, nor were any of the other stakeholders who would ordinarily be considered to have expertise and interest in protecting human rights or civil liberties in South Australia.

The Bill observes none of the principles that I have identified in the attached document, and few of the human rights protections that are warranted in the case of detaining someone indefinitely.

In particular, the Bill provides no guarantee or provision that the young person in question (or others who may possibly end up in the same situation) will receive any therapeutic intervention at all. As is clear from my comments, I have significant and serious concerns about this proposed legislation.

Then there is just a salutation and ‘please don’t hesitate to contact me’ paragraph, which I will not read into Hansard.

The document to which Ms Wright (or the Guardian) refers to is a government document from the Office of the Guardian for Children and Young People, dated 16 October 2017 and titled, ‘Secure therapeutic care framing principles’. I know other members have received that. As it is a government document, I am working on the assumption that it is familiar to the minister and his advisers.

That is a damning piece of correspondence in relation to the government’s handling of the situation—damning. Ms Wright also sent a more formal piece of correspondence, which I understand other honourable members have received. I also intend to read that into Hansard. It is accompanied by a series of tables, which I will seek leave to table. The correspondence is dated 15 October 2017 and is from the Office of the Guardian. It states:

The Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 was introduced into the parliament on 28 September and debated and passed in the lower house several days later. Please find set out below my initial response to the bill—

That is the matrix. It continues:

These comments are necessarily brief, due to the timetable in which they have been prepared. They take the form of observations and questions about the bill, having particular regard to the implications for children and young people.

As I have not seen this proposed legislation before it was introduced, I am able to respond solely to material available on the parliamentary website, the bill itself and the accompanying Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 report. In making these comments I am fulfilling the statutory obligations entrusted to me in my dual roles as Guardian for Children and Young People and Training Centre Visitor.

A disproportionate number of young people who come to the attention of the youth justice system, and particularly those who are detained in the youth training centre, are under the guardianship of the minister (approximately one quarter), which far exceeds the proportion who are in alternative care, and of those an average of two thirds have experience of being in residential care.

As the Guardian for Children and Young People, my statutory functions include promoting the best interests of children under guardianship or in the custody of the Minister for Education and Child Development, and in particular those in alternative care pursuant to paragraph 52C(1)(a) of the Children’s Protection Act 1993, as amended by the Children and Young People (Oversight and Advocacy Bodies) Act 2016, which is yet to be commenced.

In carrying out those functions, the enabling legislation also requires the guardian to pay particular attention to the needs of such children who have a physical, psychological or intellectual disability, pursuant to paragraph 52C(2)(b) of the same act. Such children and young people are likely to be particularly and severely impacted by this current bill.

As a Training Centre Visitor my statutory functions include promoting the best interests of the residents of a training centre and to act as an advocate for the residents of a training centre to promote the proper resolution of issues relating to the care, treatment or control of such residents pursuant to sections 14(1)(c) and (d) respectively of the Youth Justice Administration Act 2016. My introductory discussion offers a broad perspective about the bill followed by more focused comments in the three accompanying tables.

Honourable members will note that I will be seeking to table those three tables, or matrices. It goes on under the heading, ‘Broad perspective’:

It is not possible in the time available to explore all the potential impacts of the bill in the lives and enjoyment of the rights of children and young people. Under the bill, serious new consequences will flow from a young person being designated as a serious repeat offender (SRO) or a recidivist young offender (RYO) under the Criminal Law Sentencing Act 1988, the Sentencing Act 2017, the Criminal Law High Risk Offenders Act 2015 and/or the Bail Act 1985 (the Bail Act).

The potential impact of the bill invites the simple question: does South Australia need a new statutory basis for depriving children and young people of their liberty? The effect of the bill will be that the Supreme Court will be empowered to impose a new type of order on children and young people if certain conditions are met. A simple and blunter trigger is required, that a child or a young person meets the criteria of a repeat serious offender or recidivist. This alone increases the likelihood that children and young people from some backgrounds will have orders imposed, notably those from Aboriginal and Torres Strait Islander communities, and those who deal with the effects of mental health issues and certain disabilities.

The bill also envisages the extension of the problematic designation ‘high risk offender’ to children and young people, thereby requiring the Supreme Court to test whether they pose an appreciable risk to the safety of the community if not supervised under an order. Arguments raised in my recent response to the government’s Statutes Amendment (Youths Sentenced as Adults) Bill 2017 could be revisited here, in particular the need to balance any invocation of community safety with the balance in recognition of the rights guarantee in relevant articles of the Convention of the Rights of the Child and other international and domestic instruments.

The bill ignores any need to resonate with, let alone apply principles embodied in the Young Offenders Act 1993, and other relevant legislation that compels responsiveness to a child or young person’s developmental stage and factors that impinge upon the relationship to crime. This includes the central importance of the best interests of the child as a guiding principle to support their development.

There is a heading, ‘What is the point of medical assessment?’:

The bill provides a fig leaf of objectivity for the process of imposing an order by invoking the involvement of medical practitioners without clarifying the nature of the necessary medical assessment or other inquiry. Given the lack of specificity, it is hard to see this as anything more than a device for ignoring expectations and protections associated with mental health processes. Instead, a new potentially convenient ‘too-hard’ basket will be created into which the courts can consign individual children and young people who may present the risk of acting out problematic and challenging behaviour.

The lack of safeguards in this bill makes the creation of this new basis for depriving children and young people of liberty highly concerning. This is not the least because the bill resorts to vague concepts such as sexual instincts or violent impulses as a basis for justifying the imposition of an order. On what basis will the Supreme Court interpret such bio-socialogical concepts? If these are objective categories appropriate for and amenable to medical assessment why are they not dealt with through existing legislative arrangements, notably the Mental Health Act 2009? Even if the relevant propensities are not deemed to be mental illnesses as defined in this act, any illness or disorder of the mind or excluded through the operation of schedule 1 of the act has certain conduct not indicating mental illness, what are they and why is a medical professional required to assess them? What recourse does the bill provide to an SRO or a RYO to dispute or challenge the presumably medical opinion offered?

Similarly, if a medical opinion is seen to be sufficiently probative to justify indefinite detention, why is there no mandated requirement that it is to be accompanied by a prescribed treatment or therapeutic regime to address identified medical and other deficits? This is not required as part of an initial order and ongoing monitoring and review. How can a child or young person, protect their interests in the face of potential detention in perpetuity? Is there no need to create and sustain the conditions for rehabilitation?

There is a heading, ‘What protections do children and young people need in this context?’:

There is a stark contrast between the absence of protections for the rights of a child or young person in the bill and provisions available in various parts of the Mental Health Act 2009, including as detailed with respect to: Part 5, Treatment Orders, Part 6, Treatment of Care Plans, and Part 8, Further protections that cover issues as varied as a community visitor scheme and access to interpreters.

Minimal and statutorily enshrined protective conditions should apply to any new order enabled by the bill. The following tables mention a number of potential protections. For example, requirements for a detailed and funded therapeutic and developmental plan, and access to independent advocacy. There is a heading, ‘Repeat offending and recidivism: what does it really tell us?’:

The bill says nothing about why and how the youth justice system has failed to prevent a child or young person who is being subject to that system from becoming a serious repeat offender or recidivist young offender. Attending to this question probably would do more for community safety in the long term rather than penalising and stigmatising a handful of individuals.

There is a remaining paragraph but that refers to the tables, which I now seek leave to table. The first one is Table 1, ‘Major concern for the proposed amendments to the Criminal Law (Sentencing Act) 1988’. The second table is Table 2, ‘Major concerns for the proposed amendments to the Sentencing Act 2017’. The third table is, ‘Major concerns with proposed amendments to the Criminal Law (High Risk Offenders Act) 2015’.

Leave granted.

The Hon. A.L. McLACHLAN: I should have alerted the chamber that, whilst this letter was distributed to honourable members, the letter is addressed to the Hon. John Rau, the Deputy Premier and Attorney-General, and so these questions that have been raised in this report have been brought to the attention of the government post 15 October 2017. It was delivered via email so I think we can safely assume that it was on that day. I would be interested for the government to address some of those issues which were raised, I assume in the second reading—well, I ask for it to be in the second reading summing-up.

I have a letter from the Law Society, which I also intend to read into Hansard, given that we are dealing with this bill urgently. I alert honourable members that it is 10 pages long and is dated 13 October 2017, is addressed to the Hon. John Rau MP, Attorney-General, and was via email, so I think we can safely assume that it was received on 13 October. I ask honourable members to note the dates of these submissions, as it is a credit to the Guardian and the Law Society—and I understand there may also be one from the Bar Association that another member is going to draw our attention to—that they have taken the time, under extreme pressure, to at least give some guidance or information to honourable members. This is a courtesy, I should say, that has not necessarily been extended to members by the government. The paragraphs are numbered and I intend to read it all into Hansard:

1. I refer to the Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 (‘the Bill’) introduced to the Parliament on 28 September 2017.

2. The Bill builds upon existing provisions in the Criminal Law (Sentencing) Act 1988 (‘the Sentencing Act’) which concern both youth and adult offenders and expands upon the category of offenders for whom there is a presumption against release on bail.

3. Under the Bill, a person will be taken to be a serious repeat offender (SRO) if they have been convicted of committing, on at least three separate occasions, any of a number of specified serious offences. Furthermore, a youth will be declared a recidivist young offender (RYO) if the youth has been convicted of committing, on at least two or three separate occasions any of a number of specified serious offences.

4. The Bill proposes to extend the provisions of the Sentencing Act, the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’) and the Bail Act 1985 (SA) (‘the Bail Act’) to apply to declared SROs and RYOs. This includes being subject to the provisions of the HRO Act whereby an application can be made for the extended supervision and detention of high risk offenders (both violent and sexual) beyond the completion of their sentence, and orders for indefinite detention under the Sentencing Act.

5. The Society has considered the Bill and has a number of concerns in relation to the proposed provisions, in particular in their application to young offenders. The Society’s comments and concerns in relation to the proposed amendments are outlined below.

6. The serious implications of the Bill, addressed below, are such that the Society urges the government to defer the presentation of the Bill to the Parliament pending a detailed process of consultation with relevant stakeholders. This will allow the Society the time needed to provide a more comprehensive submission. The Society is concerned that this Bill is being rushed into the Parliament, without explanation for such a course of action, despite its serious implications.

Orders to protect the safety of the community

7. The Bill seeks to expand section 23 of the Sentencing Act, which provides for the making of indefinite detention orders for offenders incapable of controlling, or unwilling to control, sexual instincts, to include both SROs and RYOs.

8. Indefinite detention orders should be reserved for exceptional cases which involve serious and repeat sexual offenders. The Society does not support the extension of this provision to both adults and youths regarded as ‘unwilling to control violent impulses’ as proposed in the Bill.

9. The Society considers that to impose pre-emptive limitations on a person’s right to liberty, even after they have completed and served their punishment, should be severely restricted to the exceptional case in which a person has been medically assessed as incapable or unwilling to control their sexual instincts.

10. The Society notes that the provisions of the High Risk Offenders (HRO) Act already allow for extended supervision orders of declared violent offenders, as well as serious sexual offenders, meeting the needs for protection of the community in certain necessary cases.

11. The proposed amendments to section 23 orders, go much further, allowing for indefinite detention of a person without charge until further order, and therefore represent an extreme curtailment of individual liberty and human rights. This type of order should be reserved for the extreme cases of repeat sexual offenders, and should not be similarly expanded to violent offenders.

12. If the proposed expansions to section 23 of the Sentencing Act are pursued, the Society submits that the circumstances in which a person can become subject to such an order should be limited. The application of this provision should not be automatic, particularly in relation to RYOs.

Youth offenders

13. The extension of the section 23 orders as noted above to young offenders, convicted of non-sexual offences, who are still in the early stages of development and for whom rehabilitation should be the primary objective in sentencing, is strongly opposed by the Society.

14. I refer to the Society’s letter to you of 10 August 2017 in relation to the Statutes Amendment (Youths Sentenced as Adults) Bill 2017…which highlighted a number of serious concerns with this Bill and the proposed amendments to the Young Offenders Act 1993 (SA) (‘the Young Offenders Act’).

15. At present, the Young Offenders Act recognises the developmental stage of young offenders and makes provision for the ‘care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential’.

16. The current Bill is another attempt by this Government to seek to treat children and young offenders as adults. They should not be treated as such, for very good reason. As noted in the letter of 10 August 2017, youths who commit serious offences or offences that form part of a pattern of repeated illegal conduct are not adults; their offending frequently demonstrates they are children who have not yet developed the requisite moral reasoning (such as prudence, empathy, self-regulation), or cognitive brain development of the frontal lobe (where higher mental processing is carried out, such as problem-solving, judgement, impulse control, planning) rendering them incapable of making ‘adult decisions’.

17. From their pattern of repeat offending it is evident that they have not yet achieved the mastery of skills, emotions and thought processes to desist offending, nor have the positive scaffolding around them when in the community to develop and maintain a life beyond offending.

18. The safety of the community, the very premise and justification for this Bill, will be much better served by addressing what is causing the delay in the development of those skills, emotions and thought processes.

19. This Bill disregards fundamental principles established under the United Nations Convention on the Rights of the Child…and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules’) when considering changes to sentencing laws.

20. These well-established principles require the best interests of the child to be a primary consideration and that any sentences imposed on young offenders be proportionate to both the seriousness of the offence and to the circumstances of the offender.

21. The Bill proposes that if a youth is declared a RYO, then the sentencing court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence.

22. Furthermore, the Bill provides that a young person who has been previously convicted of three prescribed offences (which would include, for example, non-violent vehicle offences such as driving to escape Police pursuit which do not result in death or injury to any person) would be automatically eligible for medical assessment and a declaration under section 23 of the Sentencing Act to be detained until further order, even after completion of their sentence. The Society strongly opposes this provision.

23. The sentencing of young offenders is an area of policy that has been the subject of consideration and debate for many years by a broad range of experts drawn from a variety of societies; where, over the past 25 years, a comprehensive set of principles has been developed based on the debate and existing research; where those principles have now been adopted by the international community; and where research continues to demonstrate that the fundamental direction and intent of the principles remain appropriate.

There are footnotes, but as honourable members have had access to this letter, I will not seek to read them out. It continues:

24. It should be expected in those circumstances that policy development in this area would be well considered, not reactive but most importantly, evidence based.

25. This Bill (like the Statutes Amendment (Youths Sentenced as Adults) Bill) fails to address the contradiction between its failure to have adequate regard to rehabilitation and whilst professing the safety of the community as the primary consideration.

26. As noted in our letter of 10 August, not only is failing to provide children with adequate rehabilitation is a breach of their human rights, as established under the international principles note above, but will also fail to deter future offending. A number of studies have shown that young offenders given more severe penalties are more likely to offend than those given less severe penalties, and that a longer term in detention does not deter from future offending.

27. Locking up young people for longer is more likely to impede the prospect of rehabilitation upon release from detention. Thus the proposed Bill runs contrary to the aim of decreasing recidivism and increasing community protection.

28. The Bill seeks to mandate the safety of the community as outweighing all other considerations where, for the reasons set out above, in the case of youths there are a number of other very important factors that need to be taken into account, in order to achieve what is in the best interests of the child and the community.

The disproportionate effect of the Bill on the Aboriginal community

29. The Society notes the overrepresentation of Aboriginal people in the criminal justice system. These blanket provisions will impact disproportionately on Aboriginal people and further contribute to the already catastrophic levels of Aboriginal incarceration in this country.

30. Aboriginal youths are one of the most vulnerable groups in our community and are grossly overrepresented in the youth justice system. One in five children and young people in secure care are under the Guardianship of the Minister and almost half (47.9%) of children and young people in secure care identify as Aboriginal and Torres Strait Islander.

31. These statistics are of great concern and point to the fact that the social and systemic drivers of offending in the community at large, but particularly in the Aboriginal community, are not being addressed.

32. South Australia currently has the third highest rate of Aboriginal incarceration in Australia. The Bill will only continue to exacerbate what can already be aptly described as an Aboriginal incarceration epidemic and further disadvantage and marginalise the Aboriginal community.

The presumption against Bail

33. The Society strongly opposes any extension to the presumption against bail. The proposed amendments to section 10A of the Bail Act, seek to expand the presumption against bail to any applicant who has been declared an RYO or who is a SRO.

34. The wording of these provisions suggests that they are intended to apply to a person who has at any time been declared a RYO or a SRO, regardless of whether they are still subject to any proceedings with respect to those classifications under either the Sentencing or HRO Acts.

35. The provisions also suggest that the presumption against bail will operate regardless of the offence the person is seeking bail for. On this basis, the Society understands that the provisions could operate against a person (including a youth) who had been declared a RYO or SRO 10 years ago, and was seeking to bail for a charge as minor as disorderly behaviour or similar.

36. Such a situation is clearly beyond the means necessary for protection of the community, which section 10A is designed to protect, and will only serve to increase the pressure on the already overcrowded prison system.

37. The amendment in its present form is strongly opposed. If amendments to section 10A in light of proposed changes to this legislation are pursued (which is opposed), it is suggested that they only apply to RYOs or SROs who are currently subject to proceedings with respect to those categorisations, seeking bail only in respect of certain serious prescribed serious offences which should be designated in section 10A.

38. For the reasons noted above, the Society strongly opposes the presumption against bail for RYOs. This constitutes a breach of their human rights as well as being contrary to well-established international principles such as the Beijing Rules which consider the detention of children a last resort. RYOs would be much better served by being kept in the community, complying with strict bail conditions whilst being in engaged in rehabilitation and support services.

39. This Bill needs to be considered in the context of a raft of recent Bills which [are] fundamentally inconsistent in approach to the traditional view of the criminal law. Instead of looking at the circumstances of the offending, the circumstances of the offender and matters of deterrence, which will have regard also to the safety of the community, the Government seeks to override this approach by looking predominantly at the safety of the community via incarceration only.

An ‘unwillingness’ to control violent impulses

40. The Society notes the absence of any medical or external evidence accompanying the Bill to support the need for the HRO’s expansion beyond sexual offending to an unwillingness to control violent impulses.

41. The Society questions whether an ‘unwillingness’ to control violent impulses, is a matter which doctors are willing, or able to express opinions?

42. Whilst an unwillingness to control violent impulses may be, for an example an aspect of an antisocial personality disorder, is it recognised within psychiatry as a treatable or untreatable condition as such?

43. A basis in medical opinion—which clearly exists in relation to sexual instincts, may or may not exist in relation to violent impulses and is a matter which the Parliament should consider before enacting this Bill.

44. Implicit in all of the existing case law and legislation is a strong policy requirement for treatment. The Society questions whether judges will consider it desirable that they be called upon to make preventative detention orders, purely on the basis of ‘community safety’, without regard to medical opinion, if indeed none exists on this topic.

45. As a further note, the Society submits that any assessment of a youth offender under the proposed amendments to the HRO Act, be done by a psychiatrist or psychologist experienced in childhood and adolescence and that any assessment should be done holistically and take into account the protective factors and views of other professionals involved with the young person and their family.

46. The Society is particularly concerned by the definition of what constitutes ‘unwilling’. It is by reference to whether there is a ‘significant risk’ that the person would, in circumstances that are reasonably likely to arise, fail to exercise appropriate control of the person’s violent impulses. It is important to note that the word ‘significant’ has been judicially defined, albeit in different circumstances, to mean that anything which is not trivial, is significant. Given the circumstances of an offender who, by definition, will have already committed at least two serious violent criminal offences before being the subject of the provision, and that there is no indication, either in the Bill, or elsewhere, that the government intends to do any more by way of early intervention or rehabilitation, it will be difficult for a court not to conclude that there would be a relevant significant risk. The Society is concerned that the practical effect of the definition is that, overwhelmingly in cases where the provision applies, the end result will be indefinite detention. This is reminiscent of the so-called ‘three strikes’ policy adopted previously in some States of America and which was demonstrated to have failed demonstrably.

Transitional provisions

47. The Society has serious concerns about the transitional provisions contained in the Bill, which as drafted, will apply regardless of when the relevant offence was committed or when the person was sentenced for that offence. These clearly reactionary provisions are against the principle that a person should be sentenced against the laws that prevailed at the time of the commission of the offence, particularly when there is a proposed curtailment of fundamental human rights and liberties.

48. Another serious concern in relation to the Bill being applied retrospectively, is that current prisoners could be held indefinitely even though the sentencing judge at the time would obviously could not have foreseen that possibility. Applying punishments retrospectively is a violation of human rights.

Non-parole periods

49. The Society notes that the Bill proposes that any non-parole period for SROs must be fixed at least four-fifths the length of the sentence. This is also proposed to apply to RYOs.

50. The Society has consistently argued this year that the government approach to an automatic discount of 40 per cent for early guilty pleas should be reviewed. However, the Society has also consistently argued that there is already too much interference, generally, in the exercise of the judicial discretion with respect to sentencing. In the circumstances, the Society does not support the proposal that, in the circumstances identified the non-parole period must be at least four fifths the length of the sentence.

Interim Orders

51. The Bill creates a scheme whereby an interim order can be made detaining the offenders who are the subject of an application, under section 23 of the Sentencing Act. The Bill also precludes the release of the offender, for example, the release of an adult offender on parole, whilst the section 23 application is being determined.

52. In effect, the proposed amendments will make the head sentence, the only sentence that applies to persons subject to section 23 applications.

53. The Society is informed of many cases of prisoners who do not get access to programs until after the commencement of their non-parole period. This is concerning as it denies prisoners access to rehabilitation for most of their sentence. It also denies them a period of parole, being a supervised period post release in which their return to the community can be monitored and (hopefully) supported in the interest of the safety of the community.

54. Furthermore, what recourse is available to a prisoner who is subject to an application which delayed their release until the end of their sentence and the application is unsuccessful?

55. It is clear that the Bill aims to increase the length of imprisonment for offenders. The Society questions whether the Government plans to have a stronger focus on addressing the cause of offenders’ criminal behaviour whilst they are in prison, or will it proceed with locking people up indefinitely at a significant cost to the community?

Additional remarks

56. The Society supports the release on license with conditions as a sentencing option in the case of SROs but that should apply to the period between the completion of the non-parole period and the head sentence. Offenders should be participating in rehabilitation programs during that period. That approach incorporates the dual aspects of deterrence from further offending and assistance in being rehabilitated effectively back into the community.

57. As noted above, it is of concern, that, despite recent emphasis on the importance of rehabilitation by many commentators and stakeholders, including the Victims of Crime Commissioner, the current government approach to recidivism is to focus on incarceration. To be clear, the Society acknowledges the importance of an appropriate custodial sentence and that necessarily involves, at times, lengthy custodial sentences for serious offending. The concern of the Society is that the government has failed to strike an appropriate balance between the deterrent effect of a custodial sentence and the need for both early intervention and rehabilitation. Moreover, except in the most exceptional of cases, a prisoner is entitled to know that there is a prospect of release on parole before the completion of the head sentence and that there is a right to release at the end of the head sentence. The knowledge of release into the community is an important factor. It, together with rehabilitation, provides hope and a prospect of a better life post release. The approach demonstrated by the Bill is likely to impede the prospects of rehabilitation and a successful return to the community.

58. It is unfortunate to note, in light of a Bills such as the current Bill and the Statutes Amendment (Youths Sentenced as Adults) Bill, that focus has been lost on addressing recidivism through an appropriate balance of deterrence of imprisonment and early intervention and effective rehabilitation into the community.

59. This Bill will perpetuate the chronic overcrowding in our prisons and is inconsistent with the Government’s policy of reducing reoffending by 10% by 2020, which the former Minister for Correctional Services, the Hon Peter Malinauskas MLC, stated would involve a comprehensive approach incorporating early intervention, rehabilitation and reintegration back into the community.

60. This Bill will effectively lock up youths and adults who need help, for longer, and deprive them of the assistance they need, at considerable cost to the community. The Government has acknowledged the cost of over $100,000 per annum for every prisoner.

61. The Bill fails to address the systemic issues that lead to serious repeat offending and will further implode a prison system already at breaking point.

62. The Society notes that where we undermine the focus on rehabilitation, we invariably undermine community safety. We noted the short-sightedness of this approach in our letter of 10 August in relation to the Statutes Amendment (Youths Sentenced as Adults) Bill.

63. It is also a matter of concern that a Bill which fundamentally alters established legal principles is being rushed through the Parliament. The Society is not aware of any consultation having been undertaken with key stakeholders and urges the Government to delay further debate of the Bill until it has properly consulted such stakeholders.

That is signed with the signature block of Tony Rossi, the President of the Law Society. The correspondence that we have received from both the Guardian and the Law Society resoundingly, in my view, condemns this bill. Pointed out by the Law Society, and probably to the disappointment of the Hon. Mr Malinauskas, is the effect of the end of this government’s attempt to rehabilitate youths.

This bill represents a significant policy shift by this government. They can talk all they like outside of this chamber. They can produce as many glossy brochures as they want, but you cannot seek to pass a bill through this chamber and expect to be taken seriously that you are committed to rehabilitation. I have always believed, from my earliest days of practising criminal law, that it is critical that rehabilitation be a significant focus because it is a key plank of ensuring community safety. Putting people inside prison and then releasing them without any attempt for them to make a better life for themselves will only lead to reoffending.

The government has adopted an insidious approach to this legislation. It has used the justification of one youth for a major reform to sentencing. I remind members of my comments earlier in my second reading contribution, that this is after we have just debated a reform of the Sentencing Act. There was nowhere that I could see in the justification for those provisions for this extension. This is opportunistic. The government is using a child in a particular circumstance, of which we are not fully apprised—and nor should we be, to protect that child’s privacy—ruthlessly to justify this bill. I know that I have not been in this chamber long, but this is, I think, the worst case, certainly, I have seen for underpinning a bill.

It is a contempt of the committed stakeholders in the group. It is holding the Guardian in contempt. They were alerted to this bill by members of this chamber. The Law Society was not consulted by the Attorney: the Attorney came to the Liberal Party and sought the passage of this bill. It is the Liberal Party and other crossbenchers that have sought commentary from people in the community. What does that tell you about this bill? That this is a legislative overreach of the worst kind.

By holding us in contempt, this is holding the people of South Australia in contempt. This parliament deserves better and this chamber deserves better. However, the Liberal Party has taken a restrained course. With correspondence received like that, we would be more than justified to oppose this bill outright. We are not seeking to do that, we are seeking to amend it, to allow applications to be made in relation to use as high-risk offenders, and then we have a sunset clause that will remove the operation of this bill under the guidance of the next parliament so that parliament can properly debate these provisions.

I understand why. This government in its more than 15½ years has been an abject failure when it comes to caring for the most vulnerable children in our society. The government members may proclaim all their progressive credentials in the community, but this bill cuts it away. You cannot be a member of the Labor Party and say that you support the most vulnerable in the community. That is no longer part of the Labor brand. The Labor brand stands for oppressing the most vulnerable and treating them with contempt.

Rehabilitation used to be a key plank of Labor Party policy—it is gone. It is gone with this bill the moment it was brought into this chamber. This bill is a symbol of this Labor government’s complete swing to a hard right philosophical position on the justification that it is going to bury its pitiful record looking after the youths in its care. In other words, its record with youths and now, more recently, the elderly with Oakden, is pitiful, absolutely pitiful. What is even more shameful, even after, there is really no apology or contrition, just political rhetoric.

The philosophy of this bill with unlimited detention (which in some cases is justified for those who cannot control their sexual impulses) was more commonplace in Europe in the thirties. We need to have a constructive debate in our community about vulnerable children and the care that the state provides them, not political rhetoric, not hard on crime rhetoric, which is simply designed to make the Labor government look good in less informed parts of the community, less informed—

The Hon. K.J. Maher interjecting:

The Hon. A.L. McLACHLAN: The Hon. member Kyam Maher says that—who have not had the benefit of experience in the criminal law system, who live their lives and rely on the expertise of others. Yes, they have had the effects of crime, but what you are doing is creating a crime factory in prisons. The Hon. Kyam Maher should be disgraced since he is a leader of the left, a disgrace in the left, because he should be holding up the progressive ideals of the Labor Party, but he washes his hands of them. I do not hold the community’s views in contempt.

What I am saying is that not all of them have experienced crime, not all of them have experienced the prison system, and we need to educate them and bring their understanding up that rehabilitation is critically important—critically important. That is the responsibility of those of us who have had experience in the criminal justice system and as leaders in the community. We should not preach to them with propaganda. My position is supported by the Guardian and the Law Society—I repeat, the Guardian and the Law Society.

The irony of this legislation is that it claims to be founded on community safety, as I said. It is the failure of the government in developing its youths who are in the criminal justice system and seeking rehabilitation. That is the failure we are really debating today. There was a time when the Labor government was championing the rights of the vulnerable, but now it is the oppressor. So much for its progressive legacy! I ask the minister to address some of the issues raised in the letters of the Law Society and the Guardian in the summing-up of the second reading debate.

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