Second Reading
Resumed from an earlier stage of the sitting.
HON MICHAEL MISCHIN (North Metropolitan — Deputy Leader of the Opposition) [5.12 pm]: I was engaged in the exercise of recounting a bit of the history of how the Dangerous Sexual Offenders Legislation Amendment Bill 2017 came into being, and some of the elements that one would have thought ought to be covered by this bill if it was to make good on the then opposition’s rhetoric over the last several years about community safety, and to set the scene for the amendments that the current opposition proposes be passed in order to, as the then opposition put it, strengthen the legislation.
[speeches and comments of various members]
HON ALISON XAMON (North Metropolitan) [8.54 pm]: I rise as the lead speaker on behalf of the Greens on the Dangerous Sexual Offenders Legislation Amendment Bill 2017. This bill seeks to amend the Dangerous Sexual Offenders Act and the Bail Act. We know that the Dangerous Sexual Offenders Act applies to people who are 16 years old or over, so it also applies to people who are classified as children. The Director of Public Prosecutions or the Attorney General can make the applications to the court, which makes it very different from a lot of other legislation. If the court finds that the person has served time in prison for a serious sexual offence and is still a serious danger to the community, it can order that the person continue to be detained for control, care or treatment, or be under the supervision of a community corrections officer after leaving custody.
At the outset, I have to note that the Greens have been consistently concerned about the constitutional implications in particular and the concerns about indefinite detention around this legislation. Nevertheless, a serious danger to the community, as defined within the act, is an unacceptable risk that, if neither order is made as described in the legislation, there is the concern that the person would commit a serious sexual offence. The standard and optional conditions of supervision orders are in section 18 of the act. I want to make some comments about the standard conditions because they are pertinent to some of the concerns that the Greens hold about what is expected to occur with this piece of legislation. The standard conditions are to report to the community corrections officer at a place and time specified in the order and to advise the officer of current name and address; to report to, and receive visits from, a community corrections officer as directed by the court; to notify a community corrections officer of every change of name, residence and employment at least two days in advance; to be under the supervision of a community corrections officer and comply with their reasonable directions; to stay in or out of WA unless the community corrections officer gives permission otherwise; and, reasonably, not to commit a further sexual offence during the term of the order. They may also be potentially subject to electronic monitoring.
In addition to these standard conditions, the court can also add further conditions that it thinks are appropriate in order to ensure the protection of the community, to facilitate the offender’s rehabilitation, and, importantly, to protect the victim. Those conditions might be, for example, limitations on curfews. If an offender breaches a supervision order, there are two options. Section 40A makes a breach without reasonable excuse an offence so that criminal law proceedings can be brought. Being criminal law proceedings, the question of granting or refusing bail arises. Division 4 outlines contravention proceedings such as an application for the order to be changed. If there is an unacceptable risk that the person would commit a serious sexual offence, the supervision could be replaced with a continuing detention order. Those are not criminal law proceedings, so bail does not come into play. The standard of proof is the balance of probabilities.
Part 2 of the bill amends the Bail Act. If breach proceedings are brought under section 40A of the Dangerous Sexual Offenders Act, the offender will be detained in custody and bail will not be granted unless the judiciary or the authorised officer is satisfied that there are exceptional reasons for bail to be granted. Once bail is refused, it will not be considered at a later court date unless the accused satisfies the court either that new facts have been discovered, new circumstances have arisen, or circumstances have changed, or the accused failed to adequately present the case for bail at the time.
Part 3 of the bill will amend the Dangerous Sexual Offenders Act. The court can make or amend a supervision order only if it is satisfied, on the balance of probabilities, that the offender will substantially comply with all the standard conditions. The onus will be put on the offender to prove that that will be the case. If police or a community corrections officer reasonably suspect that a person on a supervision order is likely to contravene, is contravening or has contravened the order, there will be no summons. Instead, the person has to be arrested and detained in custody without bail, unless a court decides that there are exceptional reasons for granting bail, and the court is satisfied, on the balance of probabilities, that the offender will substantially comply with all the standard conditions. Again, the onus of proving this is on the offender. The court may make an interim supervision order if an application is pending, if the person is not in custody and if the court is satisfied that the interim order is appropriate.
I understand that this legislation provokes some very different responses within this chamber, which is unsurprising, considering that this chamber is made up of a wide variety of parties that have very different approaches to issues of offending and the best way to respond to it. I note there are a number of amendments to this legislation on the supplementary notice paper, which were also debated in the other place. Rightfully, they are also able to be debated in this place, as the house of review. I note that the general thrust of the amendments responds to concerns raised by the opposition that the bill does not go far enough. I understand that those concerns have also been expressed by some other opposition parties, and that the amendments seek to make the bill even more onerous. The Greens have a different position on this approach, and we will undoubtedly have an opportunity to debate those different approaches as the amendments are moved. I need to note from the outset that there are very different opinions about the best way of dealing with dangerous sex offenders, and it is a very difficult balancing act from a law and order perspective. I need to be very clear that the Greens have historically opposed post-sentence detention orders, but we have supported post-sentence supervision orders and also, more significantly, original sentences. We continue to advocate strongly for the greater provision of rehabilitation services, ensuring that people are given whatever tools they need to help them stop offending in the first place.
I note that a review of the Dangerous Sexual Offenders Act 2006, which has been referred to already, was announced in 2014 and tabled on 28 June 2016. The review was conducted by the Department of the Attorney General, in consultation with the Director of Public Prosecutions, the Department of Corrective Services, WA Police and the Commissioner for Victims of Crime, with input from stakeholder written submissions. It would probably have been useful to hear also from the Commissioner for Children and Young People, considering that this legislation can potentially apply to children who have offended. It would have been useful to have heard from that perspective. I note that the review was undertaken in the first place as a result of an outcry over TJD, a dangerous sex offender who was put on a post-sentence detention order in 2011. He was then put on a supervision order in 2012, after the annual review of that order. He contravened that supervision order and was put back on a detention order in 2013, and then was again put on a supervision order in 2014, after an annual review. Within days he had contravened that order. He was fined $300 for that contravention. The review covered various matters but, relevant to this bill, the review concluded that the existing process for contraventions works well and that stakeholders did not identify concerns about the consequences of contravention, penalties or bail. It raises the question about why much of this bill is even being considered right now. I am aware that it is part of an election commitment, but it raises a very real issue for people who are beholden to this place to craft good legislation.
The Greens continue to have a number of issues about facilities for managing complex offending, and we asked a series of questions at the briefing about current services, particularly what facilities and services are available for dangerous sex offenders on supervision orders and continuing detention orders, whether it is working and, importantly, how we assess whether it is working. We received a comprehensive answer, and I appreciate that, but I note that there is still no reply to our questions about the efficacy of these programs and how these programs are being assessed. We have been told only that evaluation is an offender management strategy and development function. I want to express from the outset that that is a concern, because when we are looking at the implementation of these programs and services, we need to know what is working and what is not, and how effective they are.
Part of the reply that I received stated that psychological services provides a range of services in the assessment and management of people subject to DSO orders. Psychologists provide three main types of services: assessments, consultations and psychological interventions. However, we are told that the funding cannot easily be broken down, as they provide services to various cohorts of offenders at different times, depending on the demand and the need. Assessment services include risk assessment reports on prisoners being considered for DSO applications; treatment and management plan reports to assist the court with the identification of relevant supervision, management and intervention strategies for people subject to DSO proceedings; treatment update reports used to provide the court with information about a DSO’s treatment progress; and other assessments as requested by the court, such as contravention hearings. Consultation services involve participation in regular risk management meetings with community justice services and WA Police; the provision of advice and support to community justice staff, police or prison staff as required to assist with the management of risk issues or offender behaviour; psychological case management of prisoners or offenders when they are engaged in interventions; and delivery of training on managing high-risk, high-need sex offenders. Psychological intervention services involve individual psychological counselling to address criminogenic needs, and contribution to the development and implementation of systemic interventions for DSOs when necessary.
There are also some contracted services, particularly for DSO supported accommodation, and that is a particularly important area that needs to be looked at, because we know that there has been an ongoing problem for people who are trying to receive appropriate rehabilitation and get on with their lives in the community, and how that has been generally responded to in the community. There is what is called a first service contract, and the program supports DSOs who have accommodation placements only, either through private accommodation or through three accommodation units provided by the Department of Communities and head-leased to a service provider. The service provider supports up to six clients at any one time for a minimum of six months pre-release, and for a post-release period determined between the department and the service provider, based on the client’s needs.
I note that referral to the DSO program is made by adult community corrections in the department, and upon referral the service provider initiates contact with the DSO client, and interagency support stakeholders to accommodate and support the client to meet their release order requirements and all other mandated or lawful orders and requirements. The service provider ensures that collaborative working relationships are developed and maintained with key internal and external agencies and that these relationships are given the highest priority to optimise public safety. It sounds good. Of course, I do not know whether it is meeting the need, whether it is sufficient or whether, with the introduction of this legislation, it will be able to deal with any increased demand that might eventuate. I note also that there is a second service contract and, through the DSO program, supported accommodation. The service provider supports up to eight DSO clients in the metropolitan area at any one time through both supplied housing and private rental arrangements, and referral to the DSO program is exactly the same as for the previous contract.
There is also a specialist re-entry link program that provides pre and post-release support to prisoners with life and indeterminate sentences and sex offenders, and that is to enhance the ability of offenders to assist with their reintegration into the community. Through the program, the service provider provides pre-release and transitional planning and support, facilitation of group-based life skills programs, financial counselling, support with short and medium-term to permanent accommodation, assistance with seeking and maintaining employment or training and education, assistance with reconnecting with community and family, assistance and advice on health matters and medication. A range of issues relating to assistance have been identified. Once again, the degree to which this is meeting the current demand is not clear. It is good to be made aware that these types of programs are available, but it is very unclear to me whether this even comes close to meeting the demand, and this is something that I will certainly pursue beyond the scope of this legislation.
I also need to make some comment about the overlap between people who are identified as dangerous sex offenders and the Criminal Law (Mentally Impaired Accused) Act and, generally, people with mental impairment. We know that a number of people who will be identified as dangerous sex offenders may also live with various types of cognitive impairment, including impairments that have been caused by foetal alcohol spectrum disorder, and issues of impulsivity. That is a very big issue, as are issues around mental illness. We need to recognise that we are talking about people who, by their very behaviour, have demonstrated that they are dangerous, which is why they are classified as dangerous sex offenders. But if we are looking at issues of indefinite detention, we need to ensure that there are appropriate facilities for people who may potentially be caught up under regimes around, for example, custody orders. I have spoken before about justice centres and the need for long-term appropriate facilities for people who may not be able to be released into the community safely. I note it is a very complex area and one that we will have to get a lot better at dealing with. It will be interesting to see whether, with the review of CLMIAA and without the threat of indefinite detention, more people are picked up who otherwise might have been caught under the dangerous sex offender legislation.
One of the questions that this legislation raises is: what is the nature of the problem that we are trying to resolve, considering the outcome of the review that was undertaken; what mischief is the bill trying to address, apart from the issue of public fear? I understand from the briefing that I received, and I thank the government for being quite generous with its briefings —
The ACTING PRESIDENT: Member, some members in the house are struggling to hear you, so perhaps you could speak up.
Hon ALISON XAMON: I will do my best. I do not have a big booming voice. I apologise for that; I get told that a lot.
One of the questions that this bill raises is: bearing in mind the outcome of the review, which did not identify that huge systemic problems needed to be resolved, what is the nature of the problem that we are trying to resolve; what are the concerns that we are trying to resolve? I am concerned that we are trying to address issues that are based simply on public fear rather than a genuine concern about existing legislation. I understand from the briefing that as at 4 September 2017, there were 45 registered dangerous sex offenders, 19 of whom were on supervision orders and 26 in custody. There were 20 on detention orders and six were related to other offences. No particulars were available about whether these were offences under the act or whether they were other offences. There were no bail figures. There had been 28 section 40A offences since 1 January 2017. I note that that is not 28 people, because one person may have multiple offences. Four of those people were dismissed or acquitted, one received no punishment, 12 were fined, four received suspended prison sentences and seven resulted in subsequent imprisonment. In 2016, there was a total of 29 section 40A offences—again, that is the number of offences, not people. Since the regime began, one DSO has committed a serious sexual offence. That was in 2017 and of course the name of the offender is subject to a suppression order.
The additional information I have received since the briefing indicates that as of 26 October this year, there were no juvenile DSOs, but there were 46 adult DSOs, 27 of whom were on supervision orders, five in custody and 19 on detention orders. There have been a wide range of charges under section 40A, including failing to attend supervision, psychological or police appointments or urinalysis testing as directed; returning a positive urinalysis, including a breathalyser test, to illicit substances or alcohol; GPS noncompliance, including breach of curfew, breach of exclusion zone, failing to charge devices, failing to carry handheld units or respond to the phone in relation to violations; possession of prohibited materials, including child images and pornography, and I think we all agree that that is a pretty serious breach; attending prohibited locations or events; and a breach of order conditions or written lawful instructions, such as changing address without prior approval or noncompliance with anti-libidinal medication.
Astoundingly, the Greens’ question asking for the number of cases in which a continuing detention order had been sought but not granted by the court was not able to be answered. The relevant database indicates only whether a continuing detention order was made, not whether one was sought. There does not appear to be any evidence that the court is failing to make continuing detention orders when such an order is considered appropriate by the Director of Public Prosecutions. We cannot see the evidence that there is a problem. Apart from the proposed introduction of interim orders, which seems sensible, it is difficult to see what existing problem will be addressed by this bill.
Again, the review by the former Department of the Attorney General that was tabled in 2016 concluded that the existing process for contraventions works well and that stakeholders did not identify concerns about the consequences of contravention, penalties or bail. As already stated, this review was undertaken by DOTAG in consultation with the DPP, the former Department of Corrective Services, the police, the Commissioner for Victims of Crime and stakeholders. This group is not known to be soft on dangerous sexual offenders. We could in no way say that this was any sort of biased report, yet they did not see a problem that needed to be resolved in this manner.
I am going to come back to the bill and to the presumption against bail, which is part 2 of the bill. Part 2 of the bill comes very close to being mandatory detention for adults and children aged 16 years and over. The only thing that stops it from becoming mandatory is the exceptional reasons provision. The Greens’ opposition to mandatory detention and the ousting of judicial discretion, particularly for children when detention for children is supposed to be a last resort and for the shortest possible time, has been discussed at length previously in this Parliament, in the previous Parliament and in Parliaments before, and it looks as though I will have to continue talking about it. I want to say that it should not need to be repeated, but I feel as though it still needs to be. Removal of judicial discretion is never good law and does not result in just outcomes. The wording in proposed clause 3D of schedule 1 part C is similar to that of bail for an accused who has been charged with murder. In this case the Greens agreed to that provision after being satisfied during debate that exceptional circumstances would in an appropriate case include a victim of family violence, for example, who murdered the perpetrator of the violence and when that person posed no risk to any other person. However, the relevant charge here is the contravention of section 40A relating to a supervision order. We are concerned that the range of seriousness is very great. Obviously, the most extreme is of the utmost seriousness. In that case we are talking about committing a further sexual assault; there is no question at all that that is profoundly serious. But the other extreme is an act that would not be an offence if it was committed by any other person or in any other circumstances. The sort of thing we are thinking about, for example, is if someone is late attending a meeting with a community corrections officer, which is in no way akin to murder, obviously; but, if convicted, the penalty may not be imprisonment at all or at least not imprisonment for as long as the person spent in custody without bail, pending trial. The bill is proposing that a person on a supervision order may be charged with a breach, be detained without bail and then be returned to a supervision order, which we are concerned may severely disrupt the supervision and the person’s control, care or treatment. I note that the review itself said that this was neither logical nor fair. The review went into the history of the relationship between the act and bail. Originally there was no bail under the act because there was no offence of contravention. If a person breached a supervision order, the consequence was that proceedings could be brought under division 4 for a change of the order. This process still exists and is used in situations when the nature of the breach indicates an increased risk to the community.
The 2011 amendments to the act introduced an alternative—that is, charging a person with a breach offence under section 40A. This provides a management tool and a consequence for breaches that do not increase risk to the community or require changes to the supervision order. Both section 40A proceedings and division 4 proceedings can be brought simultaneously, in which case, after the person is brought before the court, bail is not available. I note the review says that the DPP considers that this works well. The Greens agree. We also note there are dangerous sex offenders. It is an appropriate for Parliament to require courts considering bail for those people to give the most weight to the safety of the community and to victims. The reasons for granting bail to a dangerous sexual offender should be very, very clear. However, the Greens cannot agree to oust judicial discretion as it is proposed, particularly given that it was not supported by the review. We cannot support this part of the bill.
I refer now to clause 13, which is replacing section 4A, “References to commissioner of a serious sexual offence”. It involves a rewording to make it extra clear that the provision relates to a future, not historical, commission of an offence. In the briefing it was indicated that no other court case has held otherwise, that the government is just being careful by wanting to change this.
Clause 14, which amends section 8, and clause 15 and part of clause 16 consequentially deal with reapplication upon expiry of a current supervision order. Section 8 of the act currently allows for consecutive supervision orders so that as one order approaches its final year the DPP can apply to the Supreme Court for a further supervision order to take effect when the current one expires. The bill is proposing that the DPP has the option of applying for a continuing detention order instead. The Greens cannot support this particular provision. That the person is on the supervision order at all suggests that there has been no successful division for proceedings to change it. In other words, the court, and indeed the DPP, if no application has been brought, consider that this is the most appropriate order. The Greens oppose continuing detention orders on principle and, so, cannot support this part of the bill, the potential effect of which is to increase the number of people who will be subject to them. As I have already said, an increased number of people are going to be subject to this, and it is very unclear whether any additional funds will be made available in the future for the very services and programs that I outlined earlier were needed to assist people to address their offending behaviours so that they can eventually live safely within the community and so that the community can also be safe.
Clause 16, which amends section 17, and clause 17, which amends section 20, deals with the onus of proof on the offender to proof that they will substantially comply with the standard conditions of a supervision order. Clause 16 proposes that a court no longer make a supervision order unless satisfied on the balance of probabilities that the offenders substantially comply with the standard conditions of the order, and the onus of proving this is reversed and lies with the offender. This means that unless the evidence provided by the DPP is sufficient to satisfy the court, the offender will have to adduce the necessary evidence. If the offender fails to do so, the court may in some circumstances infer that the evidence would not have helped them. Similarly, clause 17 proposes that before an offender can apply for a supervision order to be amended, the court must be satisfied that the person will substantially comply with the standard conditions of the amended order. I cannot help but feel as though this is all very Minority Report. How are people supposed to demonstrate that they are never going to offend in the future unless they can somehow produce a crystal ball to demonstrate to a court’s satisfaction what the future definitely holds?
The offender must already comply with the supervision order conditions or risk facing breach proceedings. The changes are about the duty of the court to predict the likelihood and degree of the offender’s compliance with standard conditions before making a supervision order and is not about the offender’s duty to comply with all conditions of the order. Sections 17(2) and 22 already require the court to have as its paramount consideration the need to ensure adequate protection of the community. At the briefing it was indicated that the substantial compliance provision follows from reversing the onus; in other words, it shows how to discharge the onus. It was also suggested in the briefing that the court will most likely consider the level of compliance anyway, but the bill will be enshrining that. The bill also ensures that the court considers not only risk-related conditions, but also rehabilitation related conditions. However, one would argue that there is a strong link between rehabilitation and risk. There is no evidence that the court is not already doing this anyway. Clause 17 is perhaps less problematic because in this clause the onus will in any case be on the offender as the applicant. One issue is how an offender who is in prison will obtain the evidence to discharge the onus. A prisoner can say that they will substantially, even strictly, comply, but what other evidence can they get, especially if they have not been on a supervision order before and have not had the opportunity to demonstrate a history of compliance? The Greens asked at the briefing whether any legal aid organisations, especially Legal Aid WA or the Aboriginal Legal Service, have agreed to represent dangerous sex offenders, including arranging and paying for expert reports when appropriate. We did not receive an answer to that question and I would like to know for the record whether any legal aid organisations agreed to represent dangerous sex offenders, including arranging and paying for the expert reports when appropriate. It would appear that if we are going to change the onus of proof, we need to know whether people are able to get some sort of assistance.
Clause 18 amends section 21—that is, mandatory detention likely or actual contravention of conditions of supervision orders under division 4 proceedings. Currently, if police or a community corrections officer reasonably suspects that a person subject to a supervision order is likely to contravene it, is again doing so, or has, then they apply to a magistrate for a summons or a warrant. If the magistrate is satisfied that there are reasonable grounds for the suspicion, in this instance they must—there is no judicial discretion—issue one or the other. Clause 18 changes this so that summons is not an option, only a warrant. This is mandatory detention, which the Greens oppose on principle, as I have said already. It is mandatory detention before a breach has even been established. There is a real risk that it could unhelpfully and inappropriately interrupt careful arrangements that have been set up under a supervision order. For example, the offender could breach standing condition 1(a), which is to report to a community corrections officer at the place and within the time stated in the order and also to advise the corrections officer of the person’s current name and address, by attending half an hour late because of an unanticipated transport difficulty. We have to acknowledge that a lot of the people who are going to be on these orders may not have transport and may be reliant on our public transport system. As lucky as we are to have our public transport system, it is not infallible and it is certainly the case that people can very often be late due to our public transport system. The offender could breach standing condition 1(c), for example, which is to notify a community corrections officer of every change of the person’s name, place of residence and place of employment at least two days before the change happens, simply by accepting a job to start the next day. They could breach the standing condition even if they notify the community corrections officer immediately once the job is accepted and they have started work. These are the sorts of breaches that we are talking about and I do not think that these are the sorts of breaches that we are realistically trying to capture, yet this is what the legislation potentially does.
Clause 20, which is amending section 23, deals with orders made in the event of actual or likely contravention of conditions of a supervision order, which placed the onus on the offender to prove that they will substantially comply with standard conditions of the supervision order, under division 4 proceedings. Currently, if the court is satisfied on the balance of probabilities whether the offender is likely to, is or has contravened a condition of the supervision order, it can amend or lengthen the supervision order and make it a continuing detention order if it is satisfied that there is going to be an unacceptable risk that the person would, if possible, commit a serious sexual offence or make no order. In deciding whether to make an order, the court’s paramount consideration is the need to ensure adequate protection of the community. The bill is changing this for likely contraventions so that the court cannot leave the supervision order as is. The court must replace that order with a continuing detention order or amend the supervision order and if amending the order, it may also lengthen it. The briefing indicated that there are no cases in which a court has maintained a supervision order as it is while knowing it is likely to be breached. In the briefing it was indicated that the reason for the change is to make sense of the following change: that a court cannot make or affirm a supervision order unless it is satisfied on the balance of probabilities that the person will substantially comply with the standing conditions of the order as amended and the onus is on the offender to prove this compliance. Again, the paramount consideration of community protection will remain. The net effect means that it seems it will no longer be the court on application by the Director of Public Prosecutions to find that a contravention has occurred or is likely to occur and then decide on the most appropriate order that will ensure adequate protection of the community. The bill proposes an added step, in which the court has to consider whether the offender, having been found to have contravened or likely to contravene, has proved or not proved that they will substantially comply in the future. It seems a very convoluted Yes Minister-ish way of trying to fix a problem that does not actually exist. It also means that unless the evidence provided by the DPP is sufficient to satisfy the court, the offender will have to adduce the necessary evidence. If the offender fails to do so, the court may, in some circumstances, again infer that the evidence would not have helped them. This raises the question of how the offender can obtain expert or other evidence with which to discharge the onus. The recent review considered the question of reversing the onus in contravention proceedings, and the Office of the Director of Public Prosecutions was the only stakeholder to comment. It advised that the reverse onus would not advantage the prosecution and that if charges were laid, for example under section 40A, that the prosecution would still have to prove the contravention beyond reasonable doubt. For division 4 proceedings, the prosecution would still have to prove via evidence that the community is at increased risk. As already indicated, the review found that the current contravention process works well.
Clause 21 amends section 24A. Pending a hearing, a person can be released from custody only via onus on an offender to prove they will substantially comply with standard conditions of asupervision order. Clause 21 provides for the mandatory detention, pending hearing of the contravention proceedings. The court cannot order the person to be released unless it is both satisfied that this is justified by exceptional circumstances and the offender has proved that they will substantially comply with the standing conditions of the supervision order. The bill is removing the existing provision that allows the court to release the person in circumstances that are not exceptional, but when the DPP consents and the court has already given paramount consideration to the need to ensure adequate protection of the community. Once again, judicial discretion is being removed even when the DPP is already in agreement and the consideration of safety to the community has already been considered.
Clause 22 changes section 27A and deals with interim supervision orders. Pending proceedings for supervision or continuing detention orders, or for an amendment of a supervision order, or for contravention of a supervision order, this clause provides for interim supervision orders to be made by the court against a person who is not in custody and the court is satisfied of the desirability of such an order to ensure adequate protection of the community. This includes when an existing supervision order has or may end before the substantive proceedings are included, a situation that has, in fact, arisen in the past, as has been described. This clause appears to be reasonable.
Clause 23, is section 33 amended, which deals with a review of continuing detention orders and deals with the onus on the offender to prove that they will substantially comply with the standing conditions of a supervision order. Currently, if a person’s continuing detention order is being reviewed, the court must rescind the order if it does not find that the person remains a serious danger to the community. Alternatively, if the court finds that the person remains a serious danger to the community, it must either affirm the continuing detention order or replace it with a supervision order. Again, the paramount consideration is ensuring adequate protection of the community. The bill is adding an extra requirement that the court cannot make such a supervision order unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions of the order, the onus of proof once again being on the offender. Again, it is questioned how an offender in custody will be able to obtain any evidence beyond their own undertaking in order to comply.
This legislation is a bit of a mixed bag. As the Greens have indicated, some provisions seem to be fairly innocuous, none of which seem to be a substantive improvement to the current situation and many of which the review has already determined were not necessary and are trying to resolve problems that have not been demonstrated to exist. A number of provisions reverse the rule of law, most known to be judicial discretion, by introducing elements of mandatory sentencing, and they are, and also by reversing the onus of proof without any indication that any additional supports will be made available to allow justice to occur within our courts.
As I have stated previously, the Greens recognise that there are dangerous sex offenders and that we need some very serious solutions, particularly around the intersection with mental impairment, to ensure that the community and victims are kept safe and that people are given every bit of support in order to try to address the offending behaviours. However, we are not convinced that this bill will go any practicable way towards ensuring that the community is safer or ensuring that justice will be served. As such, the Greens will be opposing this legislation. We have considered it very hard and we believe that it is not capable of amendment, except by excising most of it. With the exception of the sensible provision for interim orders, it does not seem to address any problems with the existing processes and it flies in the face of the recent review that considered this very issue. On that note, we have further questions when we go into Committee of the Whole. I look forward to being able to hopefully get some further information around this whole area when we go into committee.
Debate adjourned, on motion by Hon Sue Ellery (Leader of the House).