2016-04-14
Ms PENNICUIK (Southern Metropolitan) — The Sex Offenders Registration Amendment Bill 2016 makes a number of amendments to the Sex Offenders Registration Act 2004. Broadly they are to introduce prohibition orders, which will allow the court to order a registered sex offender to not engage in certain types of behaviour, such as to go to certain places, to contact certain people, to engage in specified employment or to consume alcohol or a drug of dependence. The duration of the prohibition order under this bill will be a maximum of five years for an adult and two years for a child.
The bill also gives the police powers to monitor the conditions of a prohibition order, to enter the premises of a registrable offender and to search the premises and the offender if they suspect on reasonable grounds that it is necessary to do so to monitor the compliance of the offender with a condition or conditions to which the monitoring relates or if they suspect on reasonable grounds that the offender has engaged in behaviour associated with an increased risk of contravening the monitoring condition. A rather complex thought there.
The bill also creates powers to seize property and gain access to a computer or electronic device that belongs to the registrable offender. The bill also gives the police increased powers to locate missing registrable offenders and gives the Chief Commissioner of Police the power to publish information about certain registrable offenders who cannot be located. The bill also expands the monitoring role of IBAC in relation to the act.
I think I have said before that one of the most difficult areas for legislation is to deal with convicted sex offenders who have served their sentence but who do pose either a serious risk of reoffending or a less serious risk, if I can put it that way, of reoffending. We have in place the Serious Sex Offenders (Detention and Supervision) Act 2009 regime of supervision and detention orders for serious sex offenders, which we have dealt with on many occasions in this Parliament, and we have the Sex Offenders Registration Act as well, but that comes with some fundamental problems. One of the problems fundamental to the Sex Offenders Registration Act is in fact the broadness of the register.
The act was established in 2004 and has operated since, and under the act all adults who are sentenced for sexual offences involving children are automatically included on the register. Sex offenders under the age of 18 years and adults sentenced for offences against adults may be included on the register by a court order. Registered sex offenders living in the community are required to keep police informed about their personal details and whereabouts for a period determined by the act. They are also required to record the names and ages of children with whom they live or have regular unsupervised contact. Adult offenders are required to report for 8 years, for 15 years or for life, depending on the offence for which they have been sentenced. Young offenders report for 4 years or for 71⁄2 years. Apart from requiring offenders to meet their reporting obligations, the act also prevents offenders from engaging in child-related employment.
The Victorian Law Reform Commission review of the Sex Offenders Registration Act in 2011 handed down some 79 recommendations to improve the operation of the scheme. The review was conducted after the Ombudsman's report Investigation into the failure of agencies to manage registered sex offenders in February 2011, which examined a failure by police to notify the then Department of Human Services of more than 300 registered sex offenders who did have unsupervised access to children or who were living with them.
In 2014 the coalition government introduced amendments to the act that implemented only a few of the VLRC recommendations, and many recommendations were left out that would greatly improve the effectiveness of the scheme. During the debate on that bill I outlined the VLRC's strong criticism of how broad the scheme is and argued that the focus of the scheme needs to be sharpened. The VLRC recommended that there should not be mandatory inclusion on the register since not all sex offenders present the same risk of offending.
The current undifferentiated method has led to a register which appears to have outstripped initial estimates of its size and is becoming increasingly expensive and difficult to maintain. It is also more difficult for police and child protection authorities to allocate risk ratings and investigative resources when details of people who might potentially be dangerous reoffenders sit alongside details of offenders who pose little or no risk of harm. This situation persists today and will still persist after this bill is passed. That was one of the key recommendations of the Victorian Law Reform Commission review of five years ago, and still nothing is being done about that.
Liberty Victoria and the Law Institute of Victoria shared these concerns, and they also outlined the need for more judicial oversight of the regime, in particular in adding people to the register. I sought then to have that bill referred to the Legal and Social Issues Legislation Committee because it was such an important piece of legislation and important piece of public policy and because the bill did not go far enough in implementing all the recommendations needed. However, neither the government nor the then opposition, with their reverse roles now, agreed to that. Of course we know that the previous government did not agree to any of its bills going to the legislation committees — that was just its default position. It is a pity that did not happen because it would perhaps have been very useful in casting more of a light on making the Sex Offenders Registration Act 2004 and the scheme work more effectively.
With regard to this bill, the Acting Minister for Police speaks firstly in the statement of compatibility of the devastating impact of sexual offences on the community and the long-term harm to victims and their families and he outlines the compulsive and recidivist nature of registrable offenders — well, of some registrable offenders, I would say. But everyone understands very clearly the devastating impact of sexual offences — particularly serious sexual offences — on the people against whom they are perpetrated, on their families and on the community. That goes without saying; we all understand that. But in dealing with sex offenders and serious sex offenders and recidivist sex offenders we want to put in place the most effective regime for prevention, because that is what we should be looking at — prevention of reoffending and offending in the first place.
The minister says that circumstances and factors that may increase or decrease a particular offender's risk of reoffending will differ widely and make the management of offenders in the community a complex task requiring a multifaceted approach that enables intervention to be tailored according to the needs and degrees of risk. I agree with that, but I think I would state again that the fact that the actual register is growing and growing and growing and it is very difficult for all agencies involved to keep track of who are the most risky offenders on such a growing register is part of the problem that is not being addressed by this bill.
The minister says that the amendments in this bill will assist the police to improve the management of registered sex offenders and the risk that they pose to the community. I think some of the provisions of it will, but I still think we will be stuck with the problem of the register itself. He also recognises correctly that most or a great deal of sexual offending occurs within the home where the family is; very sadly, the offender is often a family member, a relative or another person who is in contact or in a position of trust with children. We know that from, for example, the Royal Commission into Family Violence, the parliamentary inquiry into the handling of child abuse by religious and other non-government organisations and many other inquiries and reports that have been released publicly in recent years. Many studies have indicated that registration alone is not an effective means of reducing sexual abuse, particularly in the domestic context involving children.
I have raised the issue of the register. I am not the only person to raise that issue. The Law Institute of Victoria raised it and the Victorian Law Reform Commission raised it. It is not being addressed. It was not addressed in 2014 and it is not being addressed by this bill.
In terms of this bill, new section 66B of the principal act provides that in deciding whether to make, vary, revoke or extend a prohibition order or to vary a corresponding order the court must give paramount consideration to the sexual safety of the community. However, in making this determination the court is not required to identify any specific risk posed to a particular person or a particular class of person, just to the community in general. The purpose is to provide the court with a broad discretion to make orders as it sees fit.
New section 66C provides that a registrable offender is properly notified of an order either when the court order is made, in circumstances where the registrable offender is before the court, or when the order is served on the registrable offender. The Chief Commissioner of Police applies to the criminal division of the Children's Court if the offender is a child or in any other case to the Magistrates Court.
In the bill under division 3 the court may make an interim prohibition order on an application under new section 66E if the court is satisfied on the balance of probabilities that the registrable offender poses a risk to the safety of one or more persons or of children generally and it is necessary to make an order to reduce that risk pending a final decision.
If the offender is an adult, the court may make an order whether or not the offender is present when the order is made.
Interim prohibition orders can also be made where both parties consent and the court does not have to be satisfied that the registrable offender poses a risk to any person and that the order would reduce that risk. The court is also not required to conduct a hearing unless it determines that it is in the interests of justice to do so. Factors to consider can include whether the person is legally represented and if they have the capacity to consent; whether they are subject to a condition which may prevent them from understanding the proceeding; and the effect of consenting.
Division 4 goes to final prohibition orders, which are made if the court is satisfied on the balance of probabilities that the registrable offender has engaged in behaviour in the application and, having regard to the nature and pattern of that behaviour, that the registrable offender poses a risk to the sexual safety of one or more persons or of children or the community generally. Like interim prohibition orders, final prohibition orders can also be made where both parties consent without the need for the court to be satisfied as to any grounds being made out regarding safety. One of the issues that I would like the minister to answer with regard to this is in terms of a final prohibition order. It can be made where both parties consent, but is there legal advice provided to the person who the order is being made against, if they are consenting, to make sure they know what they are consenting to? If it is a consent order, it is not a court making the order without consent — it is the consent of the parties — so then does that person have the right to legal advice?
It is important to note that the considerations in making a final prohibition order include the seriousness and nature of the offence; the period it was committed; the ages of the offender and the victim; and the circumstances of the registrable offender and the extent they relate to the conduct sought to be prohibited by the order. Additional considerations if the registrable offender is a child include the child's education, training and employment needs; whether the order would prevent the child accessing services such as therapeutic services; the need to strengthen and preserve the child's relationship with their family; the need to minimise the stigma to the child resulting from making a prohibition order; and the desirability of allowing a child's living arrangements to continue uninterrupted. The Children's Court must order an assessment report before making a final prohibition order and provide an explanation of it to the offender.
Acting President, I have some amendments which I would like circulated.
Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.
Ms PENNICUIK — The reason I have cause to have the amendments circulated is that they go to the topic we are on now, which is the making of a prohibition order against a child. In fact the additional considerations with regard to making a prohibition order against a child are very similar to the considerations under the Bail Act 1977 with regard to children. Under the Bail Act, if a court decides against bail for a child, the court is required to give reasons, and there are reasons for the giving of reasons. One of them is to turn the court's mind to the reasons; the other is to make sure that the child or the person representing the child has reasons. That is partly because children cannot necessarily be expected to retain the reasons in their mind the same way as an adult may, so for the court to be required to provide reasons is a good thing. It is something that we have agreed to in terms of the Bail Act. In terms of this act, which has similar considerations for the granting of a prohibition order against a child, we could mirror those provisions in the Bail Act. I emphasise that it is only when the prohibition order is against a child and not against all offenders.
In terms of the conditions of a prohibition order and division 5, it says under new clause 66Q(1) that the court may include in a prohibition order any conditions that appear to be necessary or desirable in the circumstances. One of my amendments seeks to remove the word 'desirable'. I would have thought it needed to be quite simple and clear as to why a court would issue a prohibition order, and I think clarity is better served by the word 'necessary'. The word 'desirable' is, I think, less clear. Why something is necessary is pretty clear. Why something is desirable is less clear, and I do not think it is necessary — if I can say that in this particular context — so I think in terms of the seriousness of what a prohibition order can mean, that the court should need to be satisfied that the conditions are necessary in the circumstances. These conditions, as we have said before, include prohibiting contact with specified people, being in a specified place, prohibiting consuming alcohol and prohibiting an offender from certain employment.
Division 6 outlines the powers of entry, search and seizure by police under the monitoring conditions in the prohibition order. A police officer can enter at any time the premises an offender usually resides at if the police officer reasonably suspects that the offender is present at those premises and, in the presence of the offender, can search and examine the premises and anything they own and seize anything belonging to the offender.
In the statement of compatibility — and Mr O'Donohue raised this point — the court may authorise police to enter the premises where the registrable offender generally resides without warrant to monitor compliance with the conditions such as to ensure they are not inviting children to their home, using social media, websites et cetera. To be able to enter a premises without a warrant is quite a strong power, so I will be following that up with the minister during the committee stage.
In terms of similar legislation in New South Wales and Queensland, the police powers under this bill go further than the acts in those jurisdictions. I did question the minister and the minister's advisers about that, and I was told that they had been advised that the police in those jurisdictions had found that the powers are not enough in terms of monitoring a prohibition order. That may or may not be so — the police are always happy to receive increased powers — but it always seems to me that it is not very difficult to get court oversight when entering premises, and it is always more desirable, if I can use that word, to have a warrant when entering a place. On the other hand, if there is a concern that the conditions are not being complied with and that those conditions may be putting someone at risk, I can understand that as well.
As I said, this is a difficult area of the law, dealing with these types of offences and offenders, some of whom we know are very devious and most of whom by definition do not care about the harm and trauma they inflict upon other people, so it is a difficult area of legislation.
It is also worth saying that the similar provisions in New South Wales in terms of prohibition orders only apply to offenders against children and not to all offenders, and that was a recommendation by the Victorian Law Reform Commission as well — that the regime only apply to offenders against children.
I turn to some other commentary. Liberty Victoria, for example, has said the threshold for making prohibition orders — which is on the balance of probabilities, which is a civil test — is too low and could result in almost all registrants being eligible to be subject to such orders and potentially punished by imprisonment for non-compliance. It compared that to the threshold under the Serious Sex Offenders (Detention and Supervision) Act 2009 (SSODSA) where the court must be satisfied that there is cogent evidence and to a high degree of probability. I would probably say that SSODSA imposes a much more stringent regime than prohibition orders, so of course it would need a higher standard as well. But I think it is a fair arguing point that again I will ask the minister about — as to why the government has struck that level.
As I mentioned, the prohibition orders in the New South Wales and Queensland regimes only relate to child sex offenders — that is, people who offend against children, not children who are offenders, if I could clarify that. The VLRC did recommend that these orders should only relate to the protection of children, and in those jurisdictions they are in fact called child protection prohibition orders. Some have also said that the sex offenders register should not apply to offenders against adults but should concentrate on offenders against children. That is a debatable point, but I still go back to the point of whether in fact the register itself has become too unwieldy and therefore is not as effective as it could be in protecting the community and preventing further recidivism by offenders.
Mr O'Donohue raised the issue of police resourcing, because this regime will impact on police, but it will also impact on the already overstretched Magistrates Court of Victoria and the Children's Court. The question is whether the courts will have extra resources and the capacity to deal with prohibition orders, and whether there has been any impact assessment done by the government on this I am not sure. Also in terms of the issue I raised before, in particular about people who consent to prohibition orders, there is the question whether they will be eligible for legal aid, because there are currently no funding guidelines for these orders under legal aid.
This is a bit of a missed opportunity to actually, as I said, look at the extent of the register. My final amendment inserts a review clause providing that two years after this bill comes into operation a review will be conducted and that review will be tabled in Parliament six months later to see how it is working and in particular how it is impacting on the resources of the courts and the police. Given the seriousness of the introduction of prohibition orders and the sometimes onerous conditions, it is good to have a review of the effectiveness of the regime, whether the policy objectives are being met and remain valid and whether the terms are appropriate for securing those objectives.
In summary, I would say there is still a need for further reforms to make sure that the act and the regime are more effective. That includes a sharpened focus of the register, greater judicial oversight and statutory review, whether or not it should only be for offenders against children, and the amendments that I am putting to sharpen the focus about the wording of 'necessary' rather than 'necessary or desirable'.
The Greens will be supporting the bill. It is a difficult area. If I could just finish by quoting the Law Institute of Victoria. It wrote to the Attorney-General and copied everybody in to that letter, saying that the Sex Offenders Registration Act 2004 registration decisions should be discretionary and based on whether an offender poses a risk of further sexual offending and recommending:
1. The removal of legislated automatic and mandatory registration for those who commit sexual offences, to be replaced by registration based on an individual, expert assessment of risk;
2. That only those assessed as posing a risk to the sexual safety of children or other members of the community should be included on the register;
3. That young people are included on the register only in exceptional circumstances; and
4. The establishment of a panel of experts to review the circumstances of existing registered sex offenders in order to determine whether registrants should continue on the register.
In that way it would be able to focus the register more on those people who actually pose a risk to the community, because there are people on the register now who pose little or no risk of harm to the community, and there are many impacts on their lives because they are on the register.
I think that last point by the law institute about reviewing who is on the register and assessing whether they should remain on there would be a good starting point to then being more focused as to who goes on there and who can therefore be subject to prohibition orders. That would in fact make the whole scheme more effective.
Committee Stage:
Clause 8
Ms PENNICUIK (Southern Metropolitan) — I move:
1. Clause 8, page 12, after line 14 insert—
“( ) If the Children's Court makes a final prohibition order in respect of a registrable offender who is a child, the court must provide its reasons for making that order and—
(a) if the registrable offender is before the court, cause a copy of those reasons to be given to the registrable offender with the copy of the final prohibition order; or
(b) if the registrable offender is not before the court, cause a copy of the reasons to be served on the registrable offender with the copy of the final prohibition order.”.
As I discussed in my contribution to the second-reading debate, the reason I wish to move this amendment is that in terms of children there are always special considerations to take into account when either sentencing children or refusing bail in a case where a child has been charged with an offence and, in this case with the granting of a final prohibition order, is a child registrable offender.
It works in a similar way under the Bail Act 1977. Where a court decides against bail for a child that has been charged with an offence, the court gives reasons for doing so. So it is really in the spirit of the special considerations that need to be taken into account for children. It also turns the mind of the court to those reasons if it has to actually outline them and table them or write them down and give them to the offender. Of course in terms of children, particularly younger children, it is not really to be expected of children to always retain the reasons in their memory as to why they may have a prohibition order ordered against them. So they are the reasons why I think this is an important amendment to the bill, and I emphasise that it just applies to orders in the Children's Court against child offenders.
Mr HERBERT (Minister for Training and Skills) — This is a very important bill, and it is worthy of consideration in committee. Many people who are in the public gallery here and listening intently to the proceedings and probably thousands of people online who have an interest in legislative reform around sex offenders will be paying keen attention to this debate.
The government, however, will not be supporting Ms Pennicuik's amendment as it considers it unnecessary in terms of current practice. The current practice is that the Children's Court is already used to provide reasons for and explain the content and effect of its decisions. It is expected that the Children's Court will adopt those current practices and provide reasons for any decision to make a prohibition order, as is currently the case with other decisions that it makes.
The government is not aware of any concerns with the Children's Court's current practice that might suggest prescribing in legislation a requirement for the court to provide the reasons for decisions. Importantly the proposed amendment that we have before us also goes beyond the ordinary procedures of the court and creates what we consider to be an unnecessary administrative burden on the court.
Whilst there is a precedent for expressly requiring the court to provide reasons for its decisions, those provisions do not require the court to give a copy of reasons in court at the time it makes the decision. Instead reasons are generally given orally, and parties may later obtain a transcript of the statement of reasons from the court if they require and if they want it.
Requiring those reasons to be written in advance would merely create another step in the process — it is quite a straightforward process — and unnecessarily delay the proceedings. The requirement to provide a copy of reasons is therefore, in our opinion, unnecessary, and particularly given that new section 66O already requires the court to give the offender a written notice explaining the prohibition order.
It is our further contention that clause 20 of the bill makes a consequential amendment to the Children, Youth and Families Act 2005, in the case of children, to require that a child offender must always be legally represented in prohibition proceedings. That means in terms of section (2)(b), which deals with the circumstance where the registrable offender is not before the court, it is in fact redundant. So for those reasons we will not be supporting the amendment.
Mr O'DONOHUE (Eastern Victoria) — The opposition will not be supporting Ms Pennicuik's amendment. I note the advice provided by the minister about current practice in the Children's Court. I also make the point to Ms Pennicuik that while there may be some precedent for legislating for a reason to be provided in sentencing matters or bail matters, this is a very different procedure, and I do not think it is necessarily analogous to those situations. I also note that the maximum period for a prohibition order for someone in the Children's Court is two years as opposed to five years for adults.
On the basis of the explanation provided by the government, in addition to those other matters I have mentioned, the opposition will not be supporting this amendment.
Ms PATTEN (Northern Metropolitan) — I will be supporting the amendment. I do not think it creates an unduly onerous workload, particularly in the case of minors. It is important. It is not going to take a lot more work to write down the decision and the reasons for it to give to the minor rather than insisting that they access the transcript. So I am supportive of this amendment.
Ms PENNICUIK (Southern Metropolitan) — I thank Ms Patten for her support of the amendment and for her reasons, one of which I was going to raise. I hear what the minister is saying in terms of the cases where reasons are given orally and the transcript is available, and of course that would be available in this case as well. But the bill does require the giving of the order and an explanation of what the conditions are, so it is not any more onerous to add why the order is being made, which is different from the conditions themselves.
That is in fact why the amendment is structured that way: to make it less of an administrative burden, really. But even if people think it is an administrative burden, which I do not, the minister himself said in his summing up that he did not expect there was going to be a whole raft of these prohibition orders, and I would expect that most of them would be against adults anyway and not against children, so that particular reasoning does not really stand up.
Also I do not agree with Mr O'Donohue's comments that because this is a new provision, it is not bail and it is not sentencing, so that is a ground for not having the reasons. In fact because it is a new provision it is probably even more reason to put this provision in there to turn the mind of the court to, and also to make sure that when the registrable offender who is a minor is given a copy of the prohibition order that it includes the reasons for it. We will still proceed with the amendment.
Ms PENNICUIK (Southern Metropolitan) — I move:
2. Clause 8, page 17, lines 21 and 22, omit “or desirable”.
This is an amendment to clause 8, again, which inserts on page 17, under division 5 of new part 4A, new section 66Q, which reads:
The court may include in a prohibition order any conditions that appear to be necessary or desirable in the circumstances.
My amendment seeks to remove the words 'or desirable' so that it reads:
The court may include in a prohibition order any conditions that appear to be necessary in the circumstances.
The conditions are outlined in subsection (2)(a) to (h), which are conditions that may be included in a prohibition order — but it is not an exhaustive list of conditions. They include associating with persons; being in specified places or distances from places; engaging in behaviour, activities or particular types of employment; or consuming alcohol or drugs of dependence, for example.
It has been put to us that the word 'desirable' is in fact not desirable to be included and makes the criteria too broad. With just the word 'necessary' it focuses the attention on those conditions and poses the question, 'Is it necessary or is it is not necessary?'. I think 'necessary' is a fairly straightforward word, whereas 'desirable' is a less straightforward word and may be a bit more subjective in that way. Also, is it mildly desirable, is it slightly desirable, is it highly desirable, is it very desirable? It gets into that territory as opposed to necessary — is it necessary that the person, for example, does not associate with the specified person or class of person? Is that necessary?
That is the reasoning behind the amendment, and it is an issue that has been raised with us by members of the legal profession questioning the use and inclusion of that term in the preface to the conditions that can be in a prohibition order. I have moved the amendment, and I am interested in what the minister has to say about that, particularly in light of that being raised within the legal fraternity as to how that may play out.
Mr HERBERT (Minister for Training and Skills) — I thank Ms Pennicuik for her amendment. The government definitely will not be supporting this amendment. It comes to this being a very serious bill. This bill is about doing all we can to protect the community from registered sex offenders. We are not talking about Joe Blow walking along the street; we are talking about people who pose a definite threat to communities, to people and to vulnerable children or others.
So essentially the Greens amendment would, by its very nature, diminish the capacity to protect the community in terms of the courts.
I understand where Ms Pennicuik is coming from. These issues are always on a bit of elastic. They go one way or the other, and usually people land somewhere in the middle. That is the nature of our society. On this occasion we think that the terms 'necessary' and 'desirable' are there because they are quite important and desirable in terms of the court having discretion and flexibility to ensure a prohibition order can indeed address the risks posed to the sexual safety of the community by a particular sexual offender. If you take the word 'desirable' out of the test, we believe that could considerably constrain the ability of prohibition orders to be used proactively. I know the point Ms Pennicuik is making will be a debated point, but our belief is that we need the courts to be able to act proactively in some of these cases. Instead the courts will be limited to reacting to specific, proven conduct when determining what conditions it imposes.
I will give members an example. The basis for making a prohibition order could include that an offender has been hanging around pools and acting strangely. It is summer, and there are lots of young people at pools. The court could, as necessary, apply a condition prohibiting this person from being within 50 metres of a public pool. That might be necessary in the circumstances. However, we do not want that person to then shift to another spot, so whilst the order with regard to pools could be necessary, a court could also consider that it is desirable to prohibit the offender from being within a certain distance of a school to ensure the offender does not simply adapt their behaviour to another place where children might be vulnerable. The court could determine that such a condition is desirable, even though there might not be specific evidence that the offender has previously frequented those places.
This is why the term 'desirable' is in there. It is important. By the time the court actually looks at these matters it has already been satisfied that the registerable offender poses a risk to the sexual safety of the community. These very terms 'necessary' and 'desirable' are strong safeguards in terms of enacting and mitigating against that risk in a more flexible manner.
Mr O'DONOHUE (Eastern Victoria) — The opposition will be opposing Ms Pennicuik's amendment. The opposition believes the terms 'necessary' and 'desirable' are appropriate in this circumstance. As the minister said, this is about preventing illegal behaviour and preventing inappropriate behaviour. The court needs flexibility to be able to respond to the individual circumstance that is before it, and it would be a serious error if the house passed Ms Pennicuik's amendment, because it would diminish that capacity to respond to the individual circumstances that appear before the court.
In addition to the points the minister made, I think we need to also just reflect on the system that is being proposed. The chief commissioner has to make application to the court, and the court will give very serious consideration to what is appropriate in the circumstances with this test that is before us tonight. There are checks and balances built into what is proposed through the need for Victoria Police to make application to the court and satisfy the test that is set out in the legislation.
Ms PENNICUIK (Southern Metropolitan) — I thank the minister for his response. I found it very interesting, because while I was listening to the minister — and I am sure that example was given to the minister and he did not make it up, as in, he did not make up an example but had one supplied to him — I thought that in that example, to my way of thinking those would have been necessary conditions for that type of offender. I would have put them both in the category of necessary given the type of offender the minister was talking about. I think that is the point I am making really in that if the offender is showing that type of behaviour, it would be necessary that the offender would be prohibited from being in specified places where that behaviour could be played out, and I would see that as a necessary condition. So in some ways I thought the minister's answer did not necessarily refute my argument, but it also did make me see the point of view the government is getting across in this particular circumstance.
The other concern, I suppose — or something to keep in mind — is that there are quite high penalties attached to not complying with these conditions of a prohibition order. These orders are not a sentence; a person is not being sentenced to a community correction order or a term of imprisonment. They are being covered, you might say, by a prohibition order. But the legislation does attach a very high penalty for non-compliance. So how a court will impose those conditions does need to be taken seriously, because if the conditions are just desirable rather than necessary, and they are not complied with, they do attract quite a high penalty. I am not sure whether the court, in deciding — it probably does not — makes any distinction between what it regards as necessary and what it regards as desirable conditions when it lists the conditions or whether that is just part of the deliberation. Could the minister answer that question?
Mr HERBERT (Minister for Training and Skills) — What I can say by way of answer — and there are always different views about these things — is on the point Mr O'Donohue makes, that by the time you get to the courts to make these orders there has already been substantive evidence et cetera. But can I just say that the new section 66Q(1) imposes safeguards on this Victorian scheme which are over and above those of other jurisdictions. Obviously you want to have some similarity across the nation, but our scheme by far has the most safeguards. In the vast majority of states the initial test is the only threshold that needs to be met with respect to these orders. Indeed the Northern Territory is the only other Australian jurisdiction — along with Victoria, if the bill passes — with a prohibition order scheme that sets a separate test for imposing conditions under the prohibition order scheme.
The test is broader than what is in the bill and allows courts to impose conditions it considers appropriate. I take Ms Pennicuik's point that there will be debate about what the difference between desirable and necessary is — she has a different view to the government's view — but by national standards there are more safeguards in this scheme that we are proposing than there are in any other state.
Amendment negatived.
The DEPUTY PRESIDENT — Order! I call on Ms Pennicuik now to move her amendments 3 and 4 which seek to insert a new section into the principal act to provide for an independent review of the operations of part 4A, which deals with prohibition orders.
Ms PENNICUIK (Southern Metropolitan) — I move:
3. Clause 8, page 59, line 4, omit 'section.”.' and insert “section.”.
4. Clause 8, page 59, after line 4 insert—
'66ZZDE Review of operation of Part 4A
(1) The Minister must cause an independent review of the operation of this Part to be undertaken as soon as possible after the second anniversary of the commencement of this Part to determine—
(a) the effectiveness of the regime of protection orders; and
(b) whether the policy objectives of the Part remain valid and the provisions of this Part 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 second anniversary of the commencement of this Part.”.'.
I have moved many of these review clauses over the years, partly because governments of both persuasions have said when we have had these types of Attorney-General or corrections bills in the Parliament that there will be a review or that there has been a review and it is based on that review. But they are reviews that the public never sees — they are internal reviews by the Department of Justice and Regulation or the department of corrections — and I do not think that is in the public interest or the interests of justice. The main reasons I would like to see this review are transparency and openness, as well as the fact that this is quite a change to the existing scheme and therefore we think it warrants a public review rather than an internal review on a timetable determined by the department and not made public.
Mr HERBERT (Minister for Training and Skills) — I thank Ms Pennicuik for her amendments. The government cannot support the proposed amendments. To begin with we believe the time frame is far too restrictive. Two years is not really enough time to actively and effectively review the operations of the prohibition order scheme. There will be a lag between when the scheme commences and when there are sufficient prohibition orders in which a review can be based. Ms Pennicuik might remember we said there could only be a handful per year. Orders also need to be in place for a sufficient amount of time to adequately assess their effectiveness. Two years is a very short time frame for legislation such as this.
Secondly, the proposed amendments only provide six months between the start of any review and the time it must be tabled in Parliament. This will undoubtedly unnecessarily constrain the independent review. It may; I should not say it will, because it might not, but it is a very short time frame for an independent reviewer to complete an important review of a scheme such as this to the best standard.
Statutory review provisions are very rarely found on the Victorian statute books and are generally limited to extraordinary pieces of legislation such as the Charter of Human Rights and Responsibilities Act 2006 and the Terrorism (Community Protection) Act 2003. We believe that it is sufficient that the Department of Justice and Regulation monitors the scheme informally and in consultation with relevant stakeholders, as it would ordinarily do.
On Ms Pennicuik's point about a public review or an internal review, in the time I have been here it would seem that governments regularly review these things. They review them at a national level. The courts review them. If there are issues about how the scheme is working, they are pretty public and they are brought to the government's attention. This type of legislation does tend to change. It changes because the nature of perpetrators is often flexible in terms of the way they perpetrate. The government does not believe that we need a review after two years. If it is not working, it will be reviewed. We have a lot of processes in our system for this, and if it needs to be changed, it will be. That will undoubtedly be public in its nature because it will be clear that the scheme needs reviewing and changing.
Mr O'DONOHUE (Eastern Victoria) — The opposition will oppose Ms Pennicuik's amendments. As Ms Pennicuik said in her remarks about these amendments, there has been a consistency with regard to this type of amendment. Ms Pennicuik moved similar amendments to a number of the parole reform bills that passed through this place during the last Parliament, and they were opposed.
To pick up the minister's point, these issues are of public interest. They will be monitored closely by a range of stakeholders through the courts, through the police and no doubt through the Department of Justice and Regulation. We as legislators can follow these matters, and other stakeholders can do the same.
I also agree that a two-year review period is too short in the circumstances. I am sure other members of this place will be keen to understand, just as I am keen to understand, how this legislation will work in practice; operationalising some of these matters sometimes provides new learnings. It needs further change and refinement, and as I said, I am sure the department will be considering those things, as will the police, the courts and other stakeholders. The opposition will be opposing Ms Pennicuik's amendments.
Amendments negatived; clause agreed to; clauses 9 to 24 agreed to.
Reported to house without amendment.
Report adopted.