Sentencing (Release on Licence) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:03): I introduce this bill, which amends the Sentencing Act 2017, to strengthen the provisions relating to the release of convicted sex offenders who are incapable of controlling, or who are unwilling to control, their sexual instincts. Members will appreciate that amendments have been required as a result of the application for release on licence granted by the Supreme Court on 27 March this year. The Director of Public Prosecutions appealed that decision and the matter was heard on Wednesday 23 May. No decision has been delivered as yet, and there is no indication that the Full Court will deliver their decision this week, but the government needs to be prepared, and is therefore prepared for, the consequences of an unsuccessful appeal.

At the outset, let me be clear about the approach of this government when it comes to dealing with these types of issues. We will ensure that the community is protected. We will ensure that convicted offenders who are unable or unwilling to control their sexual instincts do not pose a risk to the community. We will ensure that sensible, thoughtful legislative solutions are introduced into the house. What we will not do is play political games, as the opposition leader did yesterday.

Labor is clearly still coming to terms with its election loss and the relevance-deprived former ministers are looking for media exposure whenever they can. The conduct of the opposition leader has been unconscionable. I can inform the house that on 27 March he wrote to me about the Humphrys matter and I replied by letter the next day. I advised him that I would be happy to work with him.

In addition to writing to the opposition leader, I also caused a similar letter to be sent to the federal minister, Ms Ellis, and the state Minister for Child Protection, the member for Adelaide, all of whom had a direct interest in relation to the judgement of Justice Kelly delivered on 27 March, given the precinct which was identified for the purposes of release.

I advised him that I would be happy to work with him and other local members in relation to this matter. Then, on 21 May, a briefing was provided to the shadow minister, the Hon. Kyam Maher in another place. We heard nothing. The government heard nothing from these failed former Labor ministers about this matter until we saw the story in yesterday's Advertiser.

 It was rank political opportunism. The former Labor government had 16 years to get its legislation right and it failed.

I make this point: when the opposition leader checks his emails in respect of alleged advice to me as the Attorney-General, he will identify that in fact he sent the email to the Chief Executive of the Attorney-General's Department. I do not, as a matter of course, require any of the Attorney-General's Department, including the chief executive, to sit at their desk on Sunday night and read emails that might turn up from the opposition leader.

Nevertheless, it was ultimately located yesterday as advice from the chief executive's office that she had received the material which the opposition refers to and which they made a public claim to yesterday and, having identified it, then received a further draft bill—because clearly the one that had come from the opposition leader was not good enough—the Hon. Kyam Maher, as the shadow attorney-general for the opposition, sent me another one, which apparently was the correct one, yesterday afternoon. Both of them I have described as amateur, and I maintain that position.

Nevertheless, that is the type of tactic that the opposition leader is clearly employing in the attention deprivation state that he is in. The whole exercise was rank political opportunism and he should hang his head in shame.

 This is a bill that is designed to fix up a piece of legislation that the opposition, then government, had introduced into this state. It was inadequate. It needed fixing. The former attorney-general did nothing, notwithstanding that he was given notice of this after the Schuster case in late 2016. The government did nothing, and people sit opposite in this chamber today who were in the government and had absolute opportunity to resolve this matter, and they did nothing.

South Australians will see through this late and sudden interest in changing the law to protect the community. The conduct of the Leader of the Opposition is disingenuous and unconscionable. It is no wonder they were voted out of office. The amendments posed in the bill will ensure that those who have been and will be granted an order for indefinite detention to be released on licence into our communities, or to have their detention orders discharged, will have to reassure the court and relevant experts that they are suitable to be released.

The bill will contribute to the increased safety of the public and provide victims and the community at large with greater security and freedoms by minimising the risk of a sexual offender being released into the community and then reoffending. Section 57 of the existing Sentencing Act enables the Supreme Court to make an order that a person who has been convicted of a 'relevant offence' is to be detained in custody until a further order is made. A relevant offence is defined by reference to a number of offences of a sexual nature.

Before making such an order, the court must consider the reports of at least two legally qualified medical practitioners concerning the mental condition of the person, and whether they are incapable of controlling or unwilling to control their sexual instincts. A person is regarded as unwilling to control their sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.

In some cases, this may not be an immediate risk. However, we must be vigilant to those who will bide their time and potentially risk society in the future. The paramount consideration of the court when determining to make an order under section 57 must be the safety of the community. The court must then take relevant factors into consideration, including:

  • the reports of the medical practitioners;
  • any relevant evidence or representations that persons may wish to put to the court;
  • any other report ordered by the court; and
  • any other matter the court thinks relevant.

After an order for indefinite detention is made pursuant to section 57, the detained person or the Director of Public Prosecutions may apply to the court to discharge the detention order pursuant to section 58, or to be released from custody on licence pursuant to section 59.

Under the existing provisions within the Sentencing Act, in determining to release an offender, subject to an order of indefinite detention on licence, the paramount consideration of the court must be the safety of the community. The court must also then take the following factors into account:

  • the reports of at least two qualified medical practitioners as to whether the person is incapable of controlling or unwilling to control his or her sexual instincts;
  • any relevant evidence or representations that the person may desire to put to the court;
  • any other report ordered by the court;
  • evidence tendered to the court of the estimated cost directly related to the release of a person on licence;
  • reports resulting from the periodic reviews on the progress of the person while detained (conducted by the Parole Board);
  • a report of the Parole Board identifying the board's opinion on the effect the release on licence would have on the safety of the community, reporting on probable circumstances of the person if released on licence;
  • the recommendation of the board as to whether the person should be released on licence; and
  • any other matter the court thinks relevant.

In the past, the court has expressed the view that, despite the risks an offender might pose to the safety of the community, it was appropriate to release the offender into the community on licence as the community could be adequately protected through a number of steps to be taken by the Department for Correctional Services and other agencies to manage those risks.

This bill amends the Sentencing Act to address concerns that have been raised about this approach. The reforms create a two-step process. Firstly, a detained person will need to satisfy the court that they are both capable of and willing to control their sexual instincts. It is a reversal of onus. If the court is so satisfied, the court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision. This means that if the person cannot satisfy the court that they are both capable and willing to control their sexual instincts, then the court is unable to make an order to release the person on licence or to discharge their order of detention subject to one exception.

If the court is satisfied that the person no longer presents an appreciable risk to the safety of the community due to their advanced age or infirmity, the court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision. I remind members that this concept in relation to advanced age or infirmity was a matter introduced into our sentencing laws by the former attorney-general, the member for Enfield.

As reassurance to the community, these amendments will apply to anyone currently detained whose application for release on licence or discharge of licence is yet to be made, or has been made but is not yet finalised. Significantly, the amendments will also allow for the Director of Public Prosecutions to apply to the Supreme Court to either cancel or confirm the release on licence of a person who the Supreme Court has authorised to be released on licence. If such an application was made by the DPP, the person subject to the licence would need to satisfy the Supreme Court that they are capable of controlling, and willing to control, their sexual instincts or that they no longer present an appreciable risk to the safety of the community due to their advanced age or infirmity.

If the court is so satisfied, the court can then consider whether they should confirm the release on licence, with the paramount consideration remaining the safety of the community in making that decision. If the court is not so satisfied, then the person's release on licence would be cancelled. The person would then be detained and be at liberty to apply at a later date, under these new provisions, for release on licence or discharge of their detention order. In other words, the new laws will apply to them. At present, where a person has been subject to licence conditions for a continuous period of three years, unless the DPP applies to the Supreme Court to order otherwise, there will be an automatic discharge of the detention order. That is set out in section 59(19) of the Sentencing Act.

This bill also removes that automatic discharge of a detention order. There is no reason to assume that just because a person has not breached a licence condition for three years they suddenly pose no or no significant risk to the community at the three-year mark. This is particularly so in cases where there has been very close supervision and conditions that would virtually prohibit a breach during the term of the licence.

When considering this bill, it must be noted that if an applicant were able to satisfy the test of being willing and capable of controlling their sexual instinct, one would assume they would be likely to always apply for a discharge of the order altogether, rather than release on licence. If such application were granted, the detainee would be released into the community without any preparation or supervision at all. To address the risk this may pose, a further amendment has been included to provide that, in these circumstances, the court may order that the discharge is not to take effect for such time as it considers necessary for the purpose of enabling the person to undergo a suitable prerelease program. This is reflected in the proposed new section 58(6) of the Sentencing Act.

This is an important bill and one that has had some of the best legal minds in the Attorney-General's Department consider it. I thank them for that consideration. It has been longstanding in the development of this bill and the number of drafts and those who have been consulted on it. It is proposed, given the advancing of this bill today, that further consultation will continue. I thank those members of the crossbench who have shown an interest in this matter as well. I ask them to consider giving this matter their support. Given public comments of the Leader of the Opposition, I hope that the opposition will also give favourable consideration to this bill.

In due consideration of those matters, firstly, I am confident that the bill will ensure the community is kept safe from offenders. But secondly, in light of the advance of the matter and with no foreseeable determination by the Full Court at least this sitting week, I indicate that the government is quite prepared to hold this matter over until tomorrow to enable the Leader of the Opposition and/or any of his advisers to peruse the model outlined in this bill and the comprehensive other areas of change that I have outlined. However, if he is happy to progress this bill today, we are ready to do it right now. I commend the bill to members. I table a copy of the explanation of clauses.