2016-05-24
Ms PENNICUIK (Southern Metropolitan) — The bill before us, the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016, is the most recent in a number of pieces of legislation that we have had in this area over a number of years. As I have said in speaking on all of those bills over the past few years, dealing with serious sex offenders is a difficult and complex area of the law.
The bill itself makes several amendments to the serious sex offenders detention and supervision order regime, including, under clause 5, making community safety the paramount consideration to inform all decision-making in the management and supervision of serious sex offenders. Clause 5 also will require a court to make a sex offender registration order in relation to a person who is not already a registered sex offender upon the making, confirmation or renewal of a supervision or detention order. Additional core conditions for supervision orders, including prohibiting violent offending under new schedule 1A, such as murder, manslaughter et cetera, and violent conduct, are inserted by clauses 12 and 17.
The bill also creates a new class of conditions, known as restrictive conditions, which will comprise two categories as defined in clause 4: the core conditions of every supervision order prohibiting further sexual offending or violent offending or conduct, which apply to every offender on a supervision order; and conditions declared by the court to be restrictive conditions, which are tailored more to the circumstances of an individual case — for example, alcohol and drug abstinence, curfews, residence restriction et cetera. A statutory minimum sentence of 12 months would apply for a breach of a restrictive condition on a supervision order unless special reason exists. This is inserted by clause 40 of the bill, and I also note that it is inserted by clause 9, which inserts a note into the Serious Sex Offenders (Detention and Supervision) Act 2009. I note initially that the Scrutiny of Acts and Regulations Committee has raised concerns about these particular provisions of the bill, which I will return to later in my contribution.
The bill also provides that the conditions imposed by the Adult Parole Board of Victoria must be reasonably related to the gravity of the risk of offending by the offender, including the risk that the offender will commit a relevant offence, commit a violent offence or engage in violent conduct. The bill also provides extended powers for police officers to have entry, search and seizure powers similar to corrections officers, but they must first satisfy certain conditions to use them. The bill also reduces the threshold trigger for carrying out a search in a residential facility or other place of residence from reasonable belief to reasonable suspicion.
Lastly, the other major provision of the bill is to enable police to hold a serious sex offender for up to 72 hours without charge if they pose an imminent threat. Currently that time is restricted to 10 hours. This is also a significant provision which I will return to.
The government tells us that this bill is informed by the Harper review. As Mr O'Donohue said, the bill was introduced prior to the findings of the Harper review being released.
The Harper review was carried out by the Honourable David Harper, AM, Professor Paul Mullen and Professor Bernadette McSherry. They conducted a review of the management of offenders under the act who are described in the terms of reference of that review as 'complex adult victim sex offenders'. They are complex because they have a complex offending profile by presenting a risk of violent offending in addition to a risk of sexual offending or they are by reason of their issues and needs, including one or more of mental health issues, personality traits, behavioural issues, cognitive impairment and substance misuse or all of the above, difficult to treat and to manage.
It is interesting to note that the panel also provided an independent assessment of two reviews into Sean Price, one by the Department of Justice and Regulation and the other initiated by the chief psychiatrist by way of an investigation into the mental health services that were provided to Price, but these have not been released. I am not sure if the government is intending to release them.
We know that in part this bill has come about following the murder of Masa Vukotic by Sean Price, and I take the opportunity once again, as I have before, to extend my sympathies to Masa's family, her friends and the community in which she lived. We note that Justice Lex Lasry made the comment in sentencing that it was an astonishing and catastrophic case of mismanagement that Price was left unsupervised. The government said at the time of Ms Vukotic's death that there were 54 sex offenders living in the community. Since then, this number has been reduced to 41. Seventeen of those were not on the sex offender register even though they were under serious sexual offender supervision orders. This is an anomaly that will be fixed by this bill.
I should mention, as I have many times, the sex offender register and remind the government that it needs to look at this register. It has been pointed out by many in the community that the register is too big and does not focus on the most serious offenders. There are people on the register who are not a risk to the community and have in some cases committed what are not really offences but acts that were committed when they were very young, under 18, and they are not regarded as ongoing risks to the community. It has certainly been raised by many in the legal community that the sex offender register needs to be looked at and made more focused and therefore more efficient and more useful in terms of the purposes of the register.
We do have some issues with the statutory minimum sentence of 12 months which will apply to a breach of the restrictive condition under clause 40 of the bill. This is problematic and also was not recommended by the review into the management of serious sex offenders by Judge Harper and the rest of the panel, which we are told informs this bill. As I said, the Scrutiny of Acts and Regulations Committee has also raised concerns about these provisions at some length in its Alert Digest No. 5 of 2016.
In terms of the rest of the bill, we have concerns about some of the provisions, in particular an increase in the period of time a person can be held without charge from 10 hours to 72 hours. We certainly suggest that the police, if they are holding people, should be making some effort to get them to a court or to charge them well before 72 hours.
It is also worth saying that this is a very complex area of legislation already, and the approach taken here with this bill to some extent, I think, further unnecessarily complicates an already complicated system. For example, the mandatory sentencing provisions that are introduced by this bill, in particular that are applying to restrictive conditions, in and of themselves may not be crimes. Some of the restrictive conditions could be acting in a way as to upset the good order of a facility or to harm oneself. Neither of these may be any sort of criminal activity but could attract a 12-month minimum sentence.
If you took out that particular mandatory sentencing provision, there would not seem to be the need to have restrictive conditions. There are already provisions under the act whereby it is an offence to breach a condition of a supervision order and provisions to deal with more serious breaches. Also, interestingly, recommendations 18 to 22 of the Harper review deal with improving the way that breaches of supervision orders are dealt with, both at the less serious end of the scale and for more serious breaches, which we think would be the more appropriate course of action to take in making improvements in this area.
It is worth going through what the Harper review did say about this particular issue, because it is quite a pivotal issue in the bill. The recommendations on streamlining and simplifying conditions in breach provisions include recommendation 18, which states:
Discretionary conditions attached to supervision orders, as well as instructions and directions, should wherever possible and in accordance with the established case law be streamlined and simplified.
Recommendation 19 states:
The public protection authority —
and that is one of the recommendations: to set up a public protection authority —
should be granted the powers that are currently vested in the adult parole board to respond to alleged breaches of a supervision order.
Recommendation 20 states:
In the majority of cases, charges in respect of less serious breaches of a supervision order should be filed and prosecuted in the Magistrates Court by Victoria Police. The Secretary to the Department of Justice and Regulation should also retain a power to initiate and prosecute breach proceedings in the Magistrates Court. However, guidelines should be developed with input from relevant stakeholders, such as the Director of Public Prosecutions, as to the considerations which should be taken into account when this discretion is exercised to ensure that the prosecutorial discretion is exercised consistently across all agencies.
Recommendation 21 states:
Charges in respect of serious breaches of a supervision order should be initiated by Victoria Police and prosecuted in the County Court or Supreme Court by the Director of Public Prosecutions. To facilitate this, there should be legislative amendment to the Criminal Procedure Act 2009 (Vic) to:
remove the requirement for a committal proceeding in such instances, and
allow related summary offences to be uplifted to the County or Supreme Court to be dealt with summarily in conjunction with a breach of supervision order charge.
And recommendation 22 states:
The Director of Public Prosecutions and Victoria Police should be appropriately resourced to undertake these duties.
I know I have gone to some trouble to read those out, but I read them out as the alternative to the mandatory sentencing provisions that are attached to the breaches of supervision orders under this bill.
Also the panel of the Harper review did say that:
It is imperative that the pool of offenders included in the regime be initially, and continually thereafter, confined to those who present the greatest likelihood of serious interpersonal harm.
On page 11 the panel also states:
There is an inherent danger that such a scheme will extend its grasp to an ever larger proportion of offenders. This tendency must not prevail. If it does, the principle that the scheme do no harm will be defeated.
Other stakeholders in the legal community, such as the Law Institute of Victoria, Liberty Victoria and the Federation of Community Legal Centres Victoria, have also raised concerns about the bill, particularly the mandatory sentencing provisions and the extension of police powers, including concerns about guarding against the extension, as I just mentioned, picking up more and more people.
They were also of the view that the bill should not proceed without the legislative requirement for a review clause, as recommended under recommendation 35 of the Harper review. Given that this bill does introduce measures in response to the Harper review, and in some cases goes beyond the recommendations of the review, particularly with regard to mandatory sentencing, we believe it is imperative that there be the legislative safeguard of a review clause inserted in the bill to give effect to recommendation 35. I will be moving such an amendment, and I am happy to have that circulated.
Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.
Ms PENNICUIK — As Mr O'Donohue said, there are more recommendations in the review, some of them not requiring legislation, that could be implemented by way of legislation — some by legislation, others not. He said that this was a first step. I would describe it as a step along the journey. We started this journey quite a few years ago, and we are still travelling along that road.
As I mentioned, there are some other things that are in the review. For example, it recommends establishing a new body called the public protection authority to be responsible for managing serious offenders, both pre-and post release, better integration with mental health services and providing more accommodation options for high-risk offenders released from prison on a supervision order. The review also recommends expanding the orders to include people imprisoned for serious violent offences who present an unacceptable risk of harm to the community, as well as those with a history of sexual crimes. Importantly the report also says that even if all its recommendations were introduced, the risk of reoffending could never be eliminated, which I think we probably all inherently know, but it is a sobering thought in any case.
As I said, the key provisions are to make community safety, which is the paramount consideration, and to make sure that sex offenders on supervision or detention orders are also on the register. This was not recommended under the Harper review and, as I said, the register is getting quite unwieldy. Many others, in particular those in the legal community, say it is still too broad and consequently there is an expanding number of registrants and the scheme needs more judicial oversight.
I think I have covered most of key amendments that are made by what is a quite complex bill. I will have some questions on the key clauses with regard to mandatory sentencing in particular and to restrictive orders, increasing the holding period from 10 hours to 72 hours, by way of questions to the minister during the committee stage. With those comments I advise that the Greens will not be opposing the bill, but we will be raising some more concerns in committee with regard to some of the particular provisions that are in the bill, as I have mentioned. In particular we will be moving the amendment to insert the review clause for the provisions that are introduced by this bill.
I take Mr O'Donohue's point that there may be more provisions to come in further pieces of legislation, but they are not before us now, and if they are, they can be included in any further legislation.
In committee:
Ms PENNICUIK (Southern Metropolitan) — I want to clarify clause 9, which adds a note to section 160 of the principal act to provide that it is an offence to breach a supervision order. This I presume is working in conjunction with clause 40 of the bill in terms of the mandatory sentencing provisions.
Mr Herbert — And clause 17.
Ms PENNICUIK — Clause 17, and clause 10, which inserts the definition of a violent offence. Clause 9 inserts a new section that requires a term of imprisonment of not less than 12 months for an offence against section 160 of the act, which is a breach of a supervision order. That includes I presume core conditions and restrictive conditions of a supervision order. Is that the case?
Ms PENNICUIK (Southern Metropolitan) — I draw the committee's attention to the report of the Scrutiny of Acts and Regulations Committee (SARC) with regard to the additions of the mandatory conditions that will be applied to supervision orders, including that:
… if the court requires an offender to reside at a residential facility, not engage in conduct that poses a risk to the good order of the residential facility or the safety and welfare of offenders or staff at the residential facility or visitors to the residential facility …
And:
… not engage in conduct that threatens the safety of any person, including the offender.
SARC said:
The committee observes that the combined effect of clauses 10 to 15 —
but also clause 9 —
is to prohibit, and require decision‐makers to prevent, offenders subject to supervision orders from engaging in conduct that 'poses a risk to the good order of a residential facility' or 'threatens the safety of… the offender', whether or not that conduct is violent or potentially criminal.
What SARC is saying is this means that a 12-month mandatory sentence applies whether or not the conduct by the offender is violent or potentially criminal. The SARC report says:
The committee observes that the combined effect of clauses 4, 12, 40 and 41 is that offenders who, without reasonable excuse, intentionally or recklessly engage in conduct that poses a risk to the good order of a … facility … must ordinarily be imprisoned for at least 12 months.
The report also says:
… that no other similar Australian law for the supervision of sex offenders imposes, or requires decision‐makers to consider imposing, conditions prohibiting conduct by such offenders that poses a risk to good order of a residential facility or that threatens the offender's safety.
I cannot find it right now, but elsewhere the committee said it is not a crime, for example, to harm oneself.
Ms PENNICUIK (Southern Metropolitan) — The question was really about the fact that a breach of an order may not involve any sort of violence offence or any sort of criminal offence and yet the person is then subject to a mandatory provision. I draw the minister's attention also to the recommendations of the Harper review on how to deal with breaches of orders, ranging from not serious breaches to serious breaches involving the Magistrates Court and County Court.
Ms PENNICUIK (Southern Metropolitan) — Thank you, Minister. I am fully aware of the cohort of people we are dealing with, having dealt with these bills for many years, and of the need to ensure the good order of facilities where they are housed et cetera. My point really is, having read the Harper review, which the government says this is actually based on, the Harper review did not recommend this provision. It made a series of other recommendations for how to deal with breaches of supervision orders that to my way of thinking not only seem to be possibly more flexible but also probably more effective in dealing with breaches ranging from, as I said, breaches which could be threatening or disturbing the good order of the facility but not involving a crime or a violent offence to violent offences. So really the question is why the government did not follow the recommendations of the Harper review in that regard but has gone down this I think less effective road.
Ms PENNICUIK (Southern Metropolitan) — I think, in terms of the point I am trying to make here, to upset the good order of a facility, for example, or to pose a risk to the good order of a facility is an offence. For example, say a person subject to this went in and threw furniture around everywhere, just threw chairs around, that could, under this definition because it is so broad and not defined, pose a risk to the good order of the facility and that person may then be subject to a mandatory 12-month imprisonment. Under the current act the penalty is up to five years in any case for a breach of a supervision order, but it is up to the court to decide whether it is worth five years or five months. So for something like that, would that automatically mean a person would get a 12-month imprisonment for the type of activity I was talking about, which is not violent or a crime?
Ms PENNICUIK (Southern Metropolitan) — Clause 10 inserts the definition of a violent offence, which also relates to the core conditions of a supervision order under the bill, under clause 12. I am sorry to jump ahead there, Deputy President, but they are interrelated clauses. New section 16(2)(ab) of the principal act will say that it is a core condition of a supervision order to not commit a violent offence in Victoria or elsewhere. Now, the violent offences, as listed in clause 17 — and I have just counted them up — amount to some 47 quite heinous offences. Starting off: murder, manslaughter, child homicide, and it continues through the most heinous offences, really, in the statute book. I ask the question: would it not be that if a person on a supervision order committed one of these offences, they would be arrested for that offence, charged with that offence and taken to court for that offence, so why is it then deemed necessary to actually add that to a supervision order — that, for example, a person on a supervision order should not commit murder? There is no-one in the community who is permitted to commit murder, so I am just asking why a crime that we are so obviously not allowed to commit would be added, because no-one is permitted to commit those crimes. It just seems to me to be complicating the whole regime unnecessarily, as I mentioned in my second-reading speech. So I am just wondering why that is inserted, because it would just seem to me that these are already offences under the Crimes Act 1958 that a person would be charged with.
Ms PENNICUIK (Southern Metropolitan) — The minister is basically saying that they are there because they are there but not really explaining why it is necessary to add a whole list of offences that are already offences against the Crimes Act to a supervision order.
Ms PENNICUIK (Southern Metropolitan) — I move:
1. After clause 16, insert the following new clause—
'A New section 198A inserted
After section 198 of the Principal Act insert—
“198A Review of operation of Act as amended by the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Act 2016
(1) The Minister must cause an independent review of the operation of this Act as amended by the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Act 2016 to be undertaken as soon as possible after the fifth anniversary of the first day on which all of the provisions of that Act are in operation to determine—
(a) the effectiveness of the operation of this Act as amended by that Act; and
(b) whether the policy objectives of amendments to this Act made by that Act remain valid and the provisions of this Act, as so amended, remain appropriate for achieving those objectives.
(2) A person who undertakes a review under subsection (1) must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 6 months after the fifth anniversary of the first day on which all of the provisions of the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Act 2016 are in operation.
This is to insert a new clause after clause 16 — so that would be new section 198A inserted into the act — to provide for a review of the operation of the act as amended by this bill. I should say, as you have, Deputy President, that the further amendment, amendment 2, inserts a similar new section — section 115F, after clause 41 of the bill — into the Sentencing Act 1991, and amendment 3 inserts after clause 44 a new clause that inserts new section 74A into the Sex Offenders Registration Act 2004. All of these are because of the amendments made by the bill to those acts. They all go to a five-year review, as recommended by recommendation 35 of the Harper review.
The review did stress that, given the changes it envisioned might be made to the act — not all of them have been — in that regard there should be another review in five years. So we have taken up that recommendation. We believe it is important. The minister would be aware I have moved such a clause before. There is often a difference of opinion between the government and us about review clauses, but we feel that if they are in there, they do in fact remind everybody that a review is required. If they are not in there, then you can go past the time when a review is required on significant legislation and it does not happen.
Committee divided on new clause:
Ayes, 6
Barber, Mr (Teller) Patten, Ms
Dunn, Ms Pennicuik, Ms
Hartland, Ms Springle, Ms (Teller)
Noes, 33
Atkinson, Mr Melhem, Mr
Bath, Ms Mikakos, Ms
Bourman, Mr Morris, Mr
Carling-Jenkins, Dr Mulino, Mr
Crozier, Ms O'Donohue, Mr
Dalidakis, Mr Ondarchie, Mr
Dalla-Riva, Mr Peulich, Mrs
Davis, Mr Pulford, Ms
Drum, Mr Purcell, Mr
Eideh, Mr Ramsay, Mr (Teller)
Elasmar, Mr (Teller) Rich-Phillips, Mr
Finn, Mr Shing, Ms
Fitzherbert, Ms Somyurek, Mr
Herbert, Mr Symes, Ms
Jennings, Mr Tierney, Ms
Leane, Mr Wooldridge, Ms
Lovell, Ms
New clause negatived.
Debate continued.
Ms PENNICUIK (Southern Metropolitan) — Well, the minister might like to advise us as to how long we will be waiting for those more significant tranches, because it could take up to a year or two years. Significant provisions have already been put in this bill, particularly with regard to mandatory sentencing, which we have been talking about in the committee stage.
I would also say that in response to what the minister has said — he was saying we should not be doing it piecemeal — in fact this is exactly what this bill is doing: putting things in piecemeal rather than implementing everything that the government agrees to with Harper. We could get down the road another two years before we actually see that, so I am not persuaded by that argument.
Ms PENNICUIK (Southern Metropolitan) — I hear what is being said. If I could ask the minister again, and I think he may have said it and I did not quite hear it, when is he expecting — if he knows — the full tranche of amendments to be completed?
Ms PENNICUIK (Southern Metropolitan) — Clause 40 amends the Sentencing Act 1991 such that certain mandatory non-parole periods are inserted. This is the clause that inserts a term of imprisonment of not less than 12 months for a breach of a supervision order. I did not really get the answer before when I asked about what recommendation this applied to. I was given no. 7, which applies to violent offences, I think, but as I understand it the Harper review did not recommend mandatory minimum sentencing, so can the minister clarify where this comes from?
Ms PENNICUIK (Southern Metropolitan) — So in terms of the court, as I understand it the court can only apply this if there is a case of intentionally or recklessly failing to comply with a restrictive condition of a supervision order. It might be an obvious question but it may not be an obvious question to everyone in the committee, so how does the court ascertain whether the breach was intentional or reckless?