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

Second Reading

Today, I introduce a bill to amend the Criminal Law (High Risk Offenders) Act 2015. This bill is intended to assist in alleviating some of the delays currently being experienced in providing forensic psychiatrist reports to the Supreme Court under the Criminal Law (High Risk Offenders) Act and the Sentencing Act 2017. The government recognises the importance of protecting the community from predators and will take all available steps to ensure South Australians are kept safe.

High-risk offenders are those imprisoned in respect of a serious sexual offence or a serious offence of violence. In this state, high-risk offenders also include persons with a history of terrorist offences. The Criminal Law (High Risk Offenders) Act allows me, as the Attorney-General, to make application to the Supreme Court for a high-risk offender to be subject to an extended supervision order on their release into the community from a term of imprisonment. On breach of such an order, the high-risk offender may be liable to a continuing detention order being made against them by the court.

The Supreme Court requires a report from a legally qualified medical practitioner before it can make an extended supervision order—for example, a forensic psychiatrist with appropriate experience. Similarly, under the Sentencing Act 2017, the Supreme Court must be provided with at least two reports from legally qualified medical practitioners on whether an offender is unable or unwilling to control their sexual instincts before the court can order that that person be detained in custody indefinitely under that act.

Within South Australia there is a small pool of psychiatrists who specialise in criminal matters and who are qualified to undertake these forensic assessments for the courts. These psychiatrists work in the Forensic Mental Health Service within SA Health and undertake these assessments in addition to their full-time clinical workload. In addition, these same psychiatrists prepare reports for the courts in South Australia on whether a person is mentally competent or incompetent in committing an offence or mentally unfit to stand trial.

The various demands on these psychiatrists can lead to delays in these assessments being prepared for the court. Since the government became aware of this issue, we have been working with both the courts and the Forensic Mental Health Service to better understand the reasons for these delays and develop solutions that may help to address the issue. Notably, the former government was aware of this issue from as early as March 2017—and we now know there was a direct submission to the now Leader of the Opposition in April 2017—yet they chose to do nothing about it, failing our communities and courts and leaving the Marshall Liberal government with yet another mess to clean up. On 7 February this year, the Leader of the Opposition went so far to say on radio:

If Mr Humphrys is released and it’s because the Government haven’t got the reports that are required then I think the public have every right to be incredibly angry and as a father in the area, I certainly will be.

I tell you that, as an Attorney-General and lawmaker in South Australia, I am angry—angry that the former government chose to sit on this issue for a year without progressing to resolve the problem. Members opposite did nothing in government about this problem, and their conduct in opposition has been even worse. In recent weeks, the Leader of the Opposition has done his best to whip up hysteria and instil fear into the community. His scaremongering has been staggering and shameless. He has not shown leadership: he has merely highlighted how reckless and irresponsible he is prepared to be just to get himself into the media.

I now turn to the key aspects of the bill. This bill amends the Criminal Law (High Risk Offenders) Act to enable registered psychologists to provide the reports required under the act. The change sought to the Criminal Law (High Risk Offenders) Act will assist to alleviate the long delays currently experienced in the provision of reports under that act in respect of high-risk offenders and also under the Sentencing Act 2017, when the reports are required to be provided to the Supreme Court in respect of persons alleged to be unable or unwilling to control their sexual instincts. However, this bill does not propose to amend the Sentencing Act 2017 to permit psychologists to provide reports under that act in respect of persons alleged to be unable or unwilling to control their sexual instincts.

As members would be aware, there has been considerable recent media attention on the Colin Humphrys case and the long delays currently being experienced before the Supreme Court can be provided with a psychiatrist’s report under the Sentencing Act 2017 in respect of Mr Humphrys, including the prospect that Mr Humphrys may successfully argue that he should be released into the community as a consequence of these delays.

Although the Sentencing Act 2017 is not proposed to be amended to permit the use of registered psychologists to provide such reports, the changes proposed to the high-risk offenders legislation are likely to have a direct benefit in respect of reports from psychiatrists under the Sentencing Act 2017. In other words, we increase the health professions able to undertake reports in other areas and make sure that we have our forensic psychiatrists more available to attend to this important area.

There is currently only a small pool of forensic psychiatrists able to prepare reports under the Criminal Law (High Risk Offenders) Act or the Sentencing Act. The use of registered psychologists under the higher volume high-risk offenders legislation will reduce reliance on the psychiatrists for those purposes and allow the psychiatrists to focus more on the preparation of reports under the Sentencing Act in respect of persons alleged to be unable or unwilling to control their sexual instincts.

It is important to note that these forensic psychologists will be doing this work under the governance of the clinical director of forensic mental health to ensure that the integrity of these reports is maintained. Beyond these legislative measures, and soon after hearing of the potential delays in this pool of professionals, I began working on a range of measures designed to streamline the psychiatric court assessment process.

This reform includes the establishment of a diversion service in the Magistrates Court. This service will consist of registered nurses and court liaison officers overseen by a consultant psychiatrist. The registered nurses will be responsible for providing advice to the court on potential matters that could be dealt with without requiring a forensic assessment from a psychiatrist, such as where the defendant has a documented mental health condition.

Based on work I have undertaken with the Forensic Mental Health Service, we will introduce a new and more competitive remuneration rate for forensic psychiatrists. The clinical director has indicated that this will attract a greater number of suitably qualified professionals to undertake assessments for the court, including those from interstate.

It is anticipated that these measures, coupled with the legislative reform, will lessen the workload for forensic psychiatrists, freeing them up to dedicate more time to those matters that require specialist attention, thereby addressing delays in these assessments being prepared for the courts. Agencies have worked toward a March 2019 implementation for the diversion service in the Magistrates Court and a new remuneration rate for psychiatrists. I look forward to updating the parliament on the progress of this government's solutions to fix, yet again, another Labor mess.

In the meantime, I want to assure the community that the Clinical Director of the Forensic Mental Health Service has committed to allocating court-ordered assessments to his existing psychiatrists and will provide advice to the court on the time frames for those assessments and when they can be completed. I thank him for his continued service in that regard. I look forward to the swift passage of this legislation, resolving a two-year-old issue, which frankly should have been dealt with a long time ago. I am proud that we are doing just that. I commend the bill to the house. I seek leave to have the explanation of clauses inserted into Hansard without my reading it.

Leave granted.


Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

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

3—Amendment of section 4—Interpretation

This clause defines a prescribed health professional for the purposes of the Act, which will include both medical practitioners and psychologists (definitions of which are

also included).

4—Amendment of section 7—Proceedings

This clause amends section 7 to refer to prescribed health professionals (rather than just medical practitioners).

5—Amendment of section 21—Inquiries by health professionals

This clause amends section 21 to refer to prescribed health professionals (rather than just medical practitioners).

Debate adjourned on motion of Ms Cook.