Serious Offenders Bill 2018

The bill before us today, the Serious Offenders Bill 2018, is certainly well named, because it is a serious bill, and the provisions of the bill that will allow for the detention and/or ongoing supervision of people once they have served their custodial sentence as imposed by a court are serious matters. We already have in place the regime known as SSODSA — the Serious Sex Offenders (Detention and Supervision) Act 2009 — which has been in operation for several years, and I have spoken on all of the bills that have come before the Parliament to establish that scheme.

As I said on every other occasion, and as I will repeat again now, the supervision and particularly the detention of people post-sentence is a very serious matter for the Parliament to consider and for a community to implement. It should only occur where there is no other alternative. So the question before us is: is that is what the bill before us does? It is a question that I have posed in debate on other bills that set up the existing SSODSA scheme.

This bill repeals the SSODSA act of 2009 and replaces it with the new act, which will be the Serious Offenders Act. The broad main changes are to include serious violent offenders in the scheme who may or may not be also sex offenders. This is a key recommendation of the Harper review, which others have already mentioned. I take the opportunity to once again commend the work of the people who worked on that review and the excellent report they produced on what is a very difficult issue. This bill basically is the final tranche of legislation to address the 35 recommendations made in the review.

This bill has not been in the Parliament or the public arena for very long — about a month. I suggest that is not long enough for a bill of this gravity. It probably should have gone to an upper house committee for inquiry. I say that, and I have said it many times before, because the Victorian Parliament is not up with many parliaments, in particular where there are bills that infringe human rights, which this one clearly does, and puts in place a new regime that has not existed before and a detention scheme — or expands on an existing detention scheme. That sort of bill requires more scrutiny than this one has had.

In the Australian Senate a bill such as this would not just be presented in the House of Representatives, go to the Senate for debate and then just be passed. It would automatically go to a Senate committee for inquiry. This is the case even in the Parliament of Queensland; bills goes to committees for inquiry. Other parliaments in Australia also use that mechanism more automatically than we do in the Victorian Parliament.

In fact you would have to say that bills in the Legislative Assembly here get very little scrutiny, because the government has what it refers to as the government business program, which other people refer to as the guillotine, which means that even when people are in mid-sentence and others are still wanting to speak about a bill, it does not matter, because at 5.00 p.m. on Thursday they are all passed in a bunch.

That is not proper scrutiny of legislation. Then they can appear in the Legislative Council the very following week, and it is expected that they will be passed. That is the expectation of the government, but it is not good practice. It is very bad practice actually.

I suppose not many people have got physical telephone books anymore, but this is a telephone book-sized bill with some 360 clauses. As much as I try to be very thorough in my scrutiny of clauses of bills and how they relate to each other, there is a limit. I do have to take on good faith that a lot of the clauses in the bill are correct, and what I have learned in my experience in this place is that that is not always the case. Often bills do have to come back with statue-type amendments and other types of amendments because there is not enough scrutiny of them. I just put in my introductory remarks that it is not good practice for this bill to be racing through the Parliament at the speed it is.

If I could go through what the bill does, it expands, as I said, the eligibility of the existing post-sentencing scheme to include people who have been convicted of serious violent offences as well as serious sex offenders who are currently eligible. There are of course people under the current scheme who are detained at Corella Place or — I have forgotten the name of the other one. Emu Fields, is it? Yes. There are several on supervision orders as well.

This bill amends the list of core and discretionary conditions on orders and expands the core conditions on supervision orders to include a ban on violent offending and behaviour. In some ways it would seem self-evident that there should be a ban on violent offending and behaviour applied to the serious violent offenders who will come under this scheme. The bill largely maintains the existing discretionary conditions — such as where a person may live and with whom they may associate, drug testing, electronic monitoring and that sort of thing — for supervision orders which already can apply to parolees. But again in this situation we are talking about people who are post the custodial sentence that was imposed by the court in the first place.

Just as an aside, of course given the changes that have been made to the parole system — largely supported by the Greens, although we have been critical of some aspects — following the Callinan review and the Ogloff review, there are less offenders, particularly serious offenders, being granted parole because the major change was that there was not an automatic review of parole once a person had served their non-parole period. Offenders or people who are in prison now have to apply for parole. There were changes — rightly so — to the criteria for parole in relation to community safety et cetera. We are seeing less people, particularly those convicted of serious offences, being released on parole.

The consequence is that people are often released post-sentence with no supervision or conditions, which is what they would have had if they were on parole. As I have said many times in this place, it sounds very simple in the community to talk about not having people on parole, but unless you are going to release people on parole and have them supervised by the parole board you will have people being released unsupervised and without any supports. I am not sure that I would necessarily call this scheme 'supports', but in terms of those people who the Supreme Court or the County Court might find to be eligible — given the evidence that is presented to them under this scheme to a civil level of probability rather than a criminal level of beyond reasonable doubt — it will provide those who are falling into that category with some supervision. I would prefer to see that it is supervision orders rather than detention orders, but of course there may be the rare cases where it will need to be detention orders. I will talk about that a little further on.

I go back to the conditions. The bill introduces a new condition that the court may order that an offender: 

… must not contravene the Firearms Act 1996 or the Control of Weapons Act 1990 —

with regard to possession of firearms. Given that we are dealing with serious violent offenders, I think this is a good addition. Of course the Greens would say that there should be further restrictions on the availability of guns anyway across the community in general.

The bill largely re-enacts the existing mandatory sentence provisions of the Serious Sex Offenders (Detention and Supervision) Act 2009 in relation to retaining the 12-month minimum mandatory sentence for a breach of a supervision order by an offender. The Greens opposed that provision in previous bills here, and we intend to oppose it again today. If you look at the way that that division, beginning at clause 169, is written, you could take the view that clause 169 is not required at all because clause 170 talks about the Post Sentence Authority being able to conduct an inquiry or an investigation into an alleged breach and to make recommendations, including that the person be charged by the police for a contravention of a breach — not that it is worded that way in the bill because it refers back to clause 169, but it could be that that division without clause 169 could stand on its own and be a fairer provision because the person could be charged by the police and brought to a court which could then decide what the punishment should be.

It also allows the Post Sentence Authority under those other clauses to take a different action and not charge the person with an offence; so it depends on what the breach is. The way it is at the moment it is a very blunt instrument, but it also includes that mandatory minimum sentence. The Greens are opposed to mandatory minimum sentences because they do not allow for mitigating circumstances; they do not allow for the discretion of the courts.

The bill introduces the intensive treatment and supervision condition that a court may impose on offenders to require them to reside at a high-security residential treatment facility, which we have been advised is the new Rivergum facility at Ararat. This is applicable where the court comes to the view, given the evidence put to them by the secretary of the department, that the person would benefit from an intensive rehabilitation treatment program that could be provided at that facility. What Judge Harper did say in his review was that in addition to supervision and detention orders there should be much more attention paid to these types of rehabilitation programs and treatment programs while people are in prison and in particular in the last three years of their sentence.

But I have said many times in this place that this type of rehabilitation and treatment program should be carried out all through the sentence of a prisoner and begin very soon after they are incarcerated, and we should not have people incarcerated for many years without any programs in place. I know there are some programs in place, but there are never enough. That is an ongoing criticism of the corrections system — that not enough resources and attention are paid to that part. The reason for incarcerating anybody — as well as protection of the community, punishment et cetera — is rehabilitation and reintegration of the person into the community. We know that this is not being successful at the moment just by the growing recidivism rate in our prison system, which is around 44 per cent and has gone up from around 30 per cent only a few years ago.

The bill also introduces new emergency detention orders that can apply to persons who are on a supervision order or an interim supervision order to allow the detention of that person in a prison for up to seven days in the case of altered circumstances where the offender poses an imminent risk of committing a serious sex or serious violent offence. I think this is concerning, and I certainly will be questioning the minister about this particular provision or part of the bill and whether it is necessary at all, because I do not think that anything I have read in the second-reading speech or anywhere else really justifies the need for it.

The bill also allows a security officer to arrest an offender without a warrant if they believe an offender has committed an indictable offence. The offender must subsequently be handed over to the police as soon as possible. I have some concerns about this particular provision as well in terms of the ability of security officers to identify indictable offences to start with and their training in that regard, and how they will then detain the person, or restrain the person, before they hand them over to the police as opposed to the security officer actually calling the police and getting the police to actually arrest the person in the first place. So if they feel that somebody is committing an offence, the police should be called in to undertake the arrest.

The bill changes and expands the eligibility criteria for the appointment of the positions of chair and deputy chair of the Post Sentence Authority to include, alongside four magistrates or judges, an Australian lawyer of at least 10 years experience. The government's bill for the SSODSA regime included only an Australian lawyer of at least five years experience, so I think under this bill you could still be an Australian lawyer of 10 years experience or you could be an Australian lawyer of five years experience in terms of appointment to the actual Post Sentence Authority but not in terms of being in the position of chair or deputy chair.

I think we had quite a lot of debate about that under the governance bill. I think it is better; I think it is possibly satisfactory. I would like the minister to talk more about the types of experience they will be looking for in terms of a person to be appointed as chair or deputy chair, because under the bill it basically just allows for the appointment of anybody in the first three categories, which is former judges, former magistrates and people with 10 years experience in the legal profession. But in terms of the former judges and former magistrates — particularly judges — you would assume they would have had experience in criminal law and in dealing with serious offenders, for example, but that is not necessarily the case with a lawyer of 10 years experience.

It does not specify 10 years experience in the criminal law, for example. What I raised with the government in the debate on the governance bill was the need for human rights expertise, because this bill infringes on human rights — to have that expertise on the board as well in terms of the chair and the deputy chair of the board. I do agree with the government with regard to the need for the chair and deputy chair to be at a similar level, because then the deputy chair can stand in for the chair at any time and have the same powers and responsibilities, so that is a point that I do take on. As I said, the inclusion of serious offenders in this scheme is a serious matter, but it is probably preferable to us debating bills referring to the post-sentence detention of single individuals, which we have seen in this place in the past. I think that is something to avoid, and perhaps this scheme will assist in that regard.

As I said, the bill expands the eligibility of the existing post-sentencing scheme to include people who are convicted of the serious violence offences which are outlined in schedule 2 of the bill. Including both serious violence and serious sexual offenders is a key recommendation of the Harper review. A detention or supervision order can be applied to those who are eligible and are also determined by the court to pose an unacceptable risk of committing a serious sex offence, a serious violence offence or both. As I said, schedule 2 lists the serious violence offences — with offenders posing an unacceptable risk of causing serious interpersonal harm — that will be eligible for the scheme.

The Harper review suggests that eligibility for the scheme should not be too broad and that the cohort of offenders eligible for post-sentence supervision or detention should be appropriately confined to those offenders who present the greatest likelihood of causing serious interpersonal harm. It made this recommendation for practical and principled reasons — practical in terms of the resources that would be required to effectively manage a large cohort of offenders in terms of post-sentence detention and particularly post-sentence supervision, because it is quite resource intensive. It also involves the courts, because the courts not only have to make the determination in the first place — that a detention or supervision order be imposed — but they also have to review those decisions every three years. I think, in terms of those detention or supervision orders, it should be more often. I note that the bill does not preclude a court from reviewing the decision more often.

I know the courts always like to know what the intention of Parliament is. I think in terms of bills like this, the intention is not necessarily uniform. Some members, such as myself, might raise quite serious concerns about certain provisions. One of the ways, I think, of ameliorating some of those concerns is with active oversight by the courts of these orders.

The review says that there are principled reasons for not having too many people caught in this scheme in terms of the civil or non-punitive mandate to protect the community and treat offenders. The way that mandate is tested et cetera is at a civil level, but in terms of requiring that a person is detained post-sentence, that is actually not fully a civil provision.

There have been some issues raised by the Law Institute of Victoria (LIV) and Liberty Victoria which I would like to just talk about briefly as well. The law institute wrote to everybody on 4 June — not very long ago, three days ago. It goes to the issue I raised before. We have a bill that is serious in its provisions, and those who take an interest in these types of pieces of legislation have very little time to actually look through them and provide their views and commentary to parliamentarians. I have only just received this in the last couple of days. The law institute says it is:

… concerned that the expansion of a post-sentence scheme to violent offenders encounters a number of practical difficulties. In particular, it is very difficult to predict violent offences.

Serious sex offenders can be identified by authorities and experts due to common themes such as the method of offending, the choice of victims, the grooming behaviour, the distortion of relationships, and the eventual abuse of power. In contrast, audits of serious violent offenders have shown that there is no such common thread among the offenders found to be 'high-risk'.

I take these comments and observations by the law institute and others, and I have looked at some of the evidence, and I agree: it is more difficult with serious violent offenders. However, as I said before, we have passed at least one piece of legislation in this Parliament to deal with a particular individual and keeping that person in detention. I think, having thought about this, where the difficulty is is not with persons like that who, through their behaviour while they may have been incarcerated for a long time for a serious violent offence, such as homicide, kidnapping or offences of that gravity, may have shown no remorse or may have stated that they intend to do people harm once they are released et cetera. I think there is probably a cohort of offenders that may be easier to identify as being eligible for this scheme, but I agree with the law institute that in other cases it may be more difficult. I am sure the courts will turn their minds to that very, very seriously.

They go on to say:

Studies have shown that the majority of criminals will reoffend once they are released.

We know that around 44 per cent of the prison population in Victoria do reoffend. Of course the corrections system should be always looking at reducing the number of people who reoffend if, as the law institute says, this can be prevented by providing treatment for those with drug, intellectual or mental health problems while they are in prison.

The law institute emphasises:

… rehabilitation of offenders must be the priority in any effort to keep the community safe from reoffending.

It also says:

… the bill should be strengthened to ensure the availability of rehabilitation programs for serious violent offenders.

I agree, as I said before, that we need to be — as a community and the corrections system — focusing on rehabilitation so that we will not have to use this scheme or we will only have to use this scheme sparingly.

They raise the issue of the civil standard of proof — the unacceptable risk test — being not strong enough and that, given the gravity of the consequences of a continuing detention order, the test should be beyond reasonable doubt. While I have concerns about that, I certainly think that should be a key part of the review of the bill.

The law institute also says:

The bill provides that the offender must have a reasonable opportunity to obtain legal representation before the hearing of an application for a detention order. However, the bill does not allow the court to order funding for the offender's legal expenses, should the offender not be in a position to self-fund.

Given the extraordinary nature of the powers in this bill to detain a person after they have completed their sentence, the bill must include provisions allowing the court to order proper funding for the respondent's representation.

I have raised this issue in debate on previous bills. Anybody subject to this should have access to legal aid if that is what is required, and I would suggest that would be in most cases.

The law institute goes on to say:

In order to ensure that the measures in this bill are proportionate, the LIV submits that the scheme should be restricted to those who have been sentenced to a minimum term greater than seven years to reflect the seriousness of the particular offending. This mirrors the Law Council of Australia's recommendation on the federal post-sentence regime.

Again, I think this bill does not have a minimum requirement; rather, it directs the eligibility to offences that are heard in the Supreme Court and the County Court. I note that the Scrutiny of Acts and Regulations Committee also raised the issue of a minimum term of three to four years, and the law institute is suggesting seven years. That should definitely be part of the review.

Liberty Victoria have also written to everyone. They also make the point that the unacceptable risk test is a very low bar for the making of an order that can have such an impact on all aspects of a person's life, including where they live, whether they can work and who they can associate with. Again, I suggest that that be part of the review.

Liberty Victoria go on to say that they do not accept that post-sentence detention and supervision orders are not punitive. I understand that of course the aim of them is community safety and rehabilitation of the person, but in terms of their implementation people are required to be detained or they are required to adhere to the conditions of their supervision order.

Liberty Victoria also raise the issue of whether there will be what they call 'equality of arms' for people to resist the making of such orders. They ask:

For example, will Victoria Legal Aid be funded to respond to such applications?

They make the point that:

… the eligible offences have been cast too wide.

I think there are a number of competing views about that.

Their letter goes on to say:

Liberty Victoria does support the bill's retention of the courts' discretion as to whether or not to make an order even if the threshold tests are satisfied. As noted by the government, that is important in preserving the independence of the judiciary.

They are opposed to section 169, which is the mandatory imprisonment for 12 months for breaches of conditions. They also raise concerns about schedule 3 of the bill, which they say:

… is designed to try to ensure compliance from persons subject to supervision orders in residential facilities …

In terms of offences under schedule 3 to the bill, Liberty raised the concern that there is significant scope for such provisions resulting in mandatory imprisonment to be misused by police or custodial officers, and I think that is an issue that certainly needs to be paid attention to. Liberty supports the review clause in the bill, as do we. In fact in the previous bill we moved an amendment to include a review, so I am very happy to see that the government included a review clause in the bill.

In terms of the provisions of this bill and the expansion of the eligibility of people to this detention and supervision scheme, it needs to be closely reviewed. I would suggest and hope that that review would be a public review calling for submissions and not an internal Department of Justice and Regulation review. Another point which I have made many times before is that the Department of Justice and Regulation reviews its own legislation in-house and does not, in most cases, release that information to the community, but I think on this important issue it should be a public review, as I said, calling for public submissions, and possibly could be implemented three years rather than five years after the commencement of the legislation. As I have said before, that allows for some time to pass but not too much time. With those remarks, I look forward to the committee stage, where I will raise the issues with the minister that I have raised in the debate.