Resumed from 13 August.
Comments and speeches from various members
HON ALISON XAMON (North Metropolitan) [8.23 pm]: I rise as the lead speaker on behalf of the Greens. From the outset, I want to express concerns I have about the High Risk Offenders Bill 2019, and I will go into some detail about why. They are similar concerns to those that the Greens have raised consistently over the years with this type of legislation. In essence, this bill brings together two mechanisms that currently apply to high-risk offenders in WA. The first is continuing detention and supervision orders, available under the Dangerous Sexual Offenders Act, noting that mechanism was introduced by a previous Labor government. The second is the post-sentence supervision orders under the Sentence Administration Act, and that mechanism was introduced by the former Liberal government. I note this bill brings together regimes that were created by both sides of Parliament.
To summarise the Dangerous Sexual Offenders Act, on application by the Director of Public Prosecutions or the Attorney General, the Supreme Court can make orders against any prisoner aged 16 years or older who has been convicted of a serious sexual offence, as defined within that act, and is within a year of possible release into the community, either on parole or is at the end of their sentence, but is still considered to be a serious danger to the community. Whether they are a serious danger is, again, defined within that legislation. An order can also be made against a person who would meet those criteria but for being mentally unfit to stand trial, and I will have a bit to say about that later on. If the court is satisfied that all the criteria are met, it must choose one of two possible orders to ensure the adequate protection of the community. Either the person needs to be detained indefinitely in order to receive care or treatment, or for control, which is effectively known as a continuing detention order, or the person on their release from custody is put under the supervision of a community corrections order, otherwise known as a supervision order.
If a continuing detention order is made, it lasts indefinitely and that is a concern the Greens have always held. I note that it is reviewed by the court after the first year and thereafter biannually, but in exceptional circumstances, the person can apply for review by the court outside the scheduled times. At those reviews, the court will determine whether the person is still a serious danger to the community, and, obviously, if they are not considered a danger, that order needs to be rescinded. If they are considered a danger, the court has to affirm the continuing detention order or it has to make a supervision order instead. Those supervision orders can last as long as the court specifies. They can be made only if the court is satisfied that the person is going to be able to substantially comply with the order’s standard conditions. A range of standard conditions is articulated within the legislation. There is not any automatic review process for supervision orders, but there is a process for applying to the court to amend those conditions. If someone fails to comply with a supervision order, if there is an issue of noncompliance, it can be dealt with in either of two ways, depending on the nature of noncompliance. For minor noncompliance, a person can be charged with a breach and the supervision order will otherwise continue, unless, significantly, the breach involves tampering with an electronic monitoring device, which attracts a mandatory prison term of at least 12 months. The court otherwise has discretion for penalties up to the statutory maximum. For major noncompliance, an application can be made for the supervision order’s conditions to be changed, or that it be rescinded and the person goes back to a continuing detention order instead.
I understand from the second reading speech that since the regime has commenced, only one person has reoffended while on a supervision order. As at 2 July 2019, in WA there were 24 people on continuing detention orders, 22 people on supervision orders and three people in prison either for contravention of a supervision order or under an interim order. I have been unable to ascertain from the government how many of the people I have just outlined are children and how many fall within the mentally unfit provisions. I think this information should be more readily available.
As I said before, the post-sentence supervision orders under the Sentence Administration Act are a different mechanism. Under that regime, the Prisoners Review Board can make an order against a prisoner who is due to complete their sentence and has been convicted of a serious violent offence, again as defined within the act. I note that these include not only sexual offences but also non-sexual offences. The non-sexual offences are unlawful killing, grievous bodily harm, robbery, arson, lighting a fire that is likely to injure, and indictable offences that the court has declared to be seriously violent because they involve serious violence against another person or have resulted in serious harm to or the death of another person.
A post-sentence supervision order can last for two years and includes standard obligations such as reporting. The board can also impose additional requirements if it thinks fit; for example, provisions such as the requirement for monitoring devices or other equipment, no contact with the victim, or not leaving Western Australia. Importantly, there are requirements aimed at rehabilitation, which I think is the positive element of a PSSO. These require people to undertake a range of measures to address the underlying causes of their offending behaviours. Breach without reasonable excuse is an offence, and a PSSO can be amended or cancelled. A decision to make a PSSO is reviewable, but decisions to not make, cancel, amend or adjourn consideration of a PSSO are not reviewable decisions. I note that around 110 post-sentence supervision orders have been made since the regime began three years ago.
The High Risk Offenders Bill gathers together a number of offences and calls them serious offences. It extends quite extensively the number of people who can potentially be caught under these regimes. The bill covers not only all the offences covered by the dangerous sexual offender laws, as one would expect, and all the offences covered by the PSSO laws, but also some further offences under Western Australian law. This includes acts or omissions causing bodily harm; danger done with intent to harm; kidnapping; deprivation of liberty; stalking; child stealing; offences under appealed laws that would otherwise be one of the offences that I have already listed; offences of conspiracy, attempt or incitement to commit any of the offences that I have already listed; offences under the law of the commonwealth or any place outside Western Australia that would, if they occurred in WA, be one of the offences that I have already listed; prescribed commonwealth offences that are of a sexual or violent nature and attract a penalty of imprisonment for seven years or more; and any offence declared as a serious offence by a sentencing court under section 97A of the Sentencing Act 1995. This can happen only on a case-by-case basis on an indictable offence that involved the use of, counselling or procuring the use of, or conspiring or attempting to use a firearm against another person; or involved the use of, counselling or procuring the use of, or conspiring or attempting to use serious violence against another person; or which resulted in the serious harm or death of another person.
This bill introduces a two-tier scheme for people who have committed those serious offences as defined. The first tier is similar to and replaces the existing regime under the dangerous sexual offender laws. A person placed under a continuing detention order or a supervision order by the Supreme Court will now be called a high-risk offender instead of a dangerous sexual offender. This obviously reflects that the bill now also covers non-sexual offenders. The second tier is a tweaked version of the existing post-sentence supervision order regime. A PSSO lasting between six months and two years must be made by the Prisoners Review Board for a prisoner who is serving a fixed term for a serious offence if the board considers the order is necessary for the prevention of harm to the community. The question was asked in the briefing, and we were told that harm to the community effectively means violent crime. The idea is that the PSSO would prevent further offending by the prisoner, unless they are already subject to a restriction order or an interim supervision order under tier 1.
The current PSSO requirements around work and training are removed, pursuant to constitutional requirements, because a PSSO is not intended to be punitive. However, I ask the minister to confirm for the record that there will be no reduction in the availability of rehabilitative support for people who are on PSSOs, because I think that would be highly problematic. It is probably the one element of PSSOs that should be supported to ensure that people are able to address the underlying causes of offending behaviours and potentially turn their lives around, reminding members that when that happens, we create safer communities. I also ask the minister to confirm whether the tier 2 PSSO regime applies to children. My understanding is that that is possible but very unlikely. I would like to have that on the record.
Transitional provisions provide that matters already commenced under the Dangerous Sexual Offenders Act 2006 will continue if this bill passes, as will any orders, directions, summonses or warrants that have been issued under that act. Existing PSSOs will also continue. The bill allows restriction orders to be sought for people who are under custodial sentence now, including those who are not currently in custody. I ask the minister to confirm that this means people who are on parole, not a person who has been released following the completion of their sentence.
As already discussed by the previous speaker, this bill establishes a High Risk (Sexual and Violent Offenders) Board with functions that are aimed at improving performance by relevant agencies in managing serious offenders who are under custodial sentence or who have been put under a tier 1 restriction order or interim supervision order by the Supreme Court. As I understand it, the intention is to bring all the relevant agencies together to oversee the implementation of this legislation not only generally but also specifically in the management of individual tier 1 offenders. The Prisoners Review Board will continue to have its usual role with PSSOs, although it will have input to the high-risk offenders board. Membership of the board will include representatives from the Department of Justice, the Department of Health, the Department of Communities—the housing section specifically—the Western Australia Police Force, the Chief Psychiatrist and any number of community members with knowledge and understanding of a number of areas. “Any number” does not mean zero, so I want to confirm for the record how many community members are intended to be on this board for best practice. We are talking about a significant number of areas of expertise: Aboriginal culture local to Western Australia; risk assessment and management frameworks that are appropriate for Aboriginal people; the criminal justice system; and issues relevant to the board’s functions, including employment, substance abuse, physical and mental illness or disability, housing, education and training. It is going to be really important that we have those representatives on the board as well, and I would like clarity from the minister, please, of how many community members at a minimum are intended to be on that board.
In the past, the Greens supported supervision orders under the Dangerous Sexual Offenders Act, and we also supported the bill that introduced PSSOs, albeit with some reservations. However, the Greens have consistently opposed continuing detention orders under the dangerous sexual offender laws because of our concern that they do not strike an appropriate balance between the level of threat and the human rights of a person who has completed their sentence. Those concerns have not been assuaged by this legislation.
I refer members to a 2018 article in the University of New South Wales Law Journal written by PhD student Harry Hobbs and barrister Andrew Trotter, titled “Lessons from History in Dealing With Our Most Dangerous”.
This article examines the various mechanisms that have been used to deal with dangerous sexual offenders, including punishments such as chemical castration; indeterminate sentences; preventive detention, such as continuing detention orders; mandatory sentencing; and mandatory registration and notification, such as under our offender reporting laws. The article notes that continuing detention orders were largely prompted by the actions of one man—that is, Dennis Ferguson. In 1989, Mr Ferguson was convicted and sentenced to 14 years’ imprisonment for kidnapping and sexually assaulting three children over three days. When he was sentenced, his rehabilitation prospects were described as absolutely nil. While he was in custody, he refused to participate in any rehabilitation. In 2003, when he was due for release, not surprisingly, there was substantial community concern. In response to public fear about this individual, Queensland legislated dangerous sexual offender laws, which passed unopposed and without consideration by the Scrutiny of Legislation Committee of that Parliament. Other Australian jurisdictions quickly followed suit. Western Australia’s version of that legislation in 2006 was prompted by community fears about serial rapist Gary Narkle although, because of his long sentence, it was not until very recently that an application against him was made under that law. The article points out that the ability of clinicians to accurately predict risk is uncertain. It states —
... a wealth of material suggests that sexual offenders are not —
... at all: the incidence of crime is vastly overestimated in most populations, and empirical studies have failed to establish that sexual offenders are any more likely to reoffend than any other class of criminal. While it is hard to assess recidivism rates of sex offenders because such offences frequently go undetected, a comprehensive review of the literature found that ‘sex offenders have low rates of sexual offence recidivism following sentencing’, and that recidivism rates for sexual offenders are ‘typically lower than for non-sexual violent offenders or property offenders’. Yet, the data does vary greatly; analyses across several different countries reveals recidivism rates between 5 and more than 50 per cent. At best there is a good deal of uncertainty about the probability of reoffending.
The article continues —
Calculation of dangerousness is, of course, inherently problematic. Reviewing the literature, Antony Duff has suggested that any post-sentence preventive detention regime will—at best—achieve a false positive rate of about 50 per cent. That is, ‘the most that seems currently achievable is a rate of two ... people wrongly identified as “dangerous” for every one who is accurately identified’.
The article goes on to indicate better ways to address this issue. It calls for clearer evidence-based work to be conducted on recidivism risk and dangerousness and better efforts made to engage the community at large with that research. It recommends tailoring the criminal justice response to a particular offender because a response that targets a broad range of people invariably produces disproportionate and unjust effects. It calls for preventive measures based on what is necessary—not simply due to overcaution or in response to community fear. The article proposes that any post-sentence order should be imposed only at the completion of an offender’s sentence and that there should be a strong presumption against any post-sentence detention order. The presumption should be rebutted only when clear evidence shows that a particular person—not a class of persons—poses an unacceptable risk of future offending to the community. It states that supervision orders should be preferred to detention orders, which has always been the Greens’ position. When detention is necessary, it should be non-punitive and detainees should have a right to treatment. Essentially, it should be a form of civil rather than criminal confinement, in the same way that we might quarantine a person with a deadly communicable disease while they remain a danger. I will have more to say on that in a moment.
Detention orders should be reviewed within the first six months, and thereafter a minimum of every 12 months, to ensure confinement continues only as long as justified. Reviews should be by the judiciary, with factors considered including, but not limited to, an evidence-based review of risk assessment instruments. Other factors could include the nature and characteristics of the offences, and the actions taken by the offender while in detention towards their own rehabilitation. The article goes on to state that only in this way can we ensure that the practical difficulty of risk assessment does not slip into disproportionate and unjust punishment driven simply by fear or, worse, political imperative.
This bill does some of these things, but not, by any stretch of the imagination, all of them. The infrequency of reviews, which were initially annually and then got reduced to every two years in 2015, which the Greens opposed at the time, is of particular concern.
Disappointingly, the bill also contains mandatory sentencing provisions that are carried across from the Dangerous Sexual Offenders Act. Clause 33 will impose a minimum mandatory sentence of 12 months’ imprisonment for any person—not necessarily the offender themselves—who, without reasonable excuse, interferes with the operation of an electronic monitoring device required to be worn or installed under that provision. I do not know what “reasonable excuse” will constitute. Could it be a partner who has a history of being subjected to domestic violence who, under threat or coercion, decides to help somebody take off the device and suddenly finds themselves subject to a 12-month mandatory sentence? We do not know what circumstances will constitute a reasonable excuse. I presume that a complete stranger with a gun at their head would possibly constitute a reasonable excuse, but I can see other circumstances in which that test would not be able to be met, but justice will not be served by a 12-month mandatory sentence. Clause 80 is similar, in relation to contravention of a supervision order by the offender.
Without the mandatory minimum sentence provisions, the court would have judicial discretion to impose the most appropriate sentence in all circumstances, up to a maximum sentence of three years’ imprisonment. The Greens have consistently opposed, and will continue to oppose, mandatory sentencing. I am very disappointed that Labor has moved from its firm position of opposing mandatory sentencing by not taking advantage of the opportunity to change it in this bill.
Labor has previously been a proponent of mandatory sentencing, but it made a point that it had changed its position in 2017. To the Attorney General’s credit, except for this legislation, he has to date been very good at ensuring that bills that have been introduced in this place, including those that I fundamentally disagree with, have not contained any mandatory sentencing provisions. This is going backwards and is a breach. I will remind members of the 2017 WA Labor platform, which stated —
WA Labor unequivocally opposes: ...
e) mandatory sentencing;
WA Labor believes that the most just and appropriate sentencing outcomes in all circumstances require full judicial discretion with all available sentencing options. For this reason, WA Labor is principally opposed to mandatory sentencing, which produces perverse and unjust sentencing outcomes.
I agree. Those are, indeed, words to stand by. It continues —
The WA Labor Government will reaffirm its commitment to reducing prisoner numbers by not introducing any further mandatory sentencing regimes in Western Australia, and will conduct a review of all current regimes. Mandatory sentencing unjustifiably requires the same minimum term to be imposed regardless of how trivial or serious the offence; fails to consider an offender’s circumstances; shifts judicial discretion not to impose a custodial term in exceptional circumstances from the Courts to Police and prosecutors; breaches various international treaties which prohibit arbitrary detention, including Article 9 of Universal Declaration of Human Rights 1948; and ignores overwhelming evidence from Australia and overseas demonstrating that it fails to reduce crime, leads to harsh and unfair sentences, unnecessarily increases the overcrowding of prisons and disproportionately affects Aboriginal people and other marginalised groups.
That was the 2017 Labor platform. I have to say that I agree with that platform, so what a shame we are not seeing it upheld with this legislation. It makes me wonder, particularly after the last conference, how much of the policy that was passed will end up coming into play. I suppose that is not my concern, because I am not a member of the Labor Party. Notwithstanding the commitments made by the Labor Party, the government has not taken the opportunity to remove these mandatory sentencing provisions, and I am very disappointed about that. This was an opportunity to do that, but it did not happen.
Another provision from the dangerous sexual offender laws that regrettably was not reviewed before simply being carried across and expanded in this bill is the power of entry. This provision allows a community corrections officer at any time without identifying themselves first to enter a person’s workplace or the place where they are staying to check whether they are complying with curfew requirements. Any person who hinders this is subject to a penalty of up to 12 months’ imprisonment. I want to be very clear that the Greens have absolutely no objection to the idea of a curfew, which is fine, nor to compliance monitoring, which is fine and necessary, but when the provision was first introduced, we proposed an amendment requiring the community corrections officers to identify themselves first. Bearing in mind that refusal to comply can attract a prison sentence, a stranger insistent on entering a person’s home or workplace can feel incredibly threatening for anyone who is inside the premises. In addition, at some workplaces there are hazards—for example, a building site—that make it quite unsafe for an officer to just turn up, unless the visit is first coordinated with whoever is in charge of that worksite. At the time, Labor supported that amendment. The Greens’ amendment was modelled on one that we, together with the then Liberal opposition, had achieved for the Legal Profession Bill 2007, which contained a similar power of entry. We know that a statutory requirement that identification be produced when exercising the power of entry already exists in a variety of legislation with powers of entry for compliance monitoring. I think it is perfectly reasonable that we expect that requirement in this legislation as well.
Once again, notwithstanding the government’s previous support of that proposed provision, it has failed to take the opportunity to insert it. In the absence of such a provision, I ask the minister to please table any current policy or practice direction that requires community corrections officers to identify themselves before insisting on entry. Based on correspondence received today, I understand that the adult community corrections handbook has potentially changed some of the directions to ensure that identification is produced. I would like confirmation of that. I hope that is the case, but I express, once again, my disappointment that that provision was not stated explicitly in this bill.
Another provision of the Dangerous Sexual Offenders Act that has been transferred and expanded via this bill is the presumption against bail for the offence of contravening a supervision order. The Greens opposed this, too, when it was introduced. Under that provision, unless there are exceptional reasons, judicial discretion on bail is removed, including in relation to 16 and 17-year-olds, even though the range of seriousness of the contravention is extremely wide, including behaviour that would not even be considered an offence but for the supervision order, such as late attendance at a meeting with community corrections officers. That in itself is not an offence. A presumption against bail was not supported by the 2014 review of the regime 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. I hardly think that members here would suggest that that group ordinarily would be considered soft on crime. If the outcome of the contravention proceedings is that the person remains on a supervision order, the effect of the presumption against bail is to severely disrupt the person’s supervision and their control, or their care or, of deep concern, their treatment.
Clause 69 of the bill changes the appeals process. Appeals against interlocutory matters are eliminated. An appeal to the Court of Appeal against a final decision of the court will still be available and will be conducted via a fresh hearing. I ask the minister to confirm that clause 69(3)(e) does not preclude appeal from the Court of Appeal to the High Court.
I will talk a little about mentally unfit offenders. Clause 79 provides that a court may make an order under the act, even if the offender has been found not mentally fit to stand trial under the heinous Criminal Law (Mentally Impaired Accused) Act 1996—the terrible act that I hope we see in this place sooner rather than later, because it is such a hideous piece of legislation that it needs to be shot into the sun—or is someone charged with an offence who would be likely to be found not mentally fit. This issue arises specifically from the 2012 case DPP v Pindan. In that case, Mr Pindan had been convicted of and sentenced to imprisonment for a serious sexual offence; however, psychiatric reports later showed that he had a permanent cognitive impairment. That discovery meant that if, following his release, he reoffended, in the future, he would probably be found not mentally fit to stand trial for the new offence and would come under the Criminal Law (Mentally Impaired Accused) Act. The DPP therefore sought a continuing detention order. Mr Pindan argued that this was an abuse of process because he could not participate and there was no unacceptable risk that he would commit a serious offence if released, because he could not be convicted of an offence in the future, and therefore the legislation could not apply. The court decided that “offence” means the behaviour, not criminal liability or conviction, and the meaning of “offender” followed from that. Parliament intended that the act apply to an “offender” who is a “serious danger to the community”, and the judge’s opinion on whether this was just, proper or useful was immaterial. As I understand it, these provisions also apply to mentally unfit 16 and 17-year-olds as well as to adults.
The legislation will allow an application to be made when the person is currently serving a custodial sentence for conviction of an offence. In other words, they have not been dealt with under the Criminal Law (Mentally Impaired Accused) Act and the person is predicted to commit further behaviour upon release that would fulfil the elements of a serious offence, albeit it is not possible to get a conviction because of the person’s mental incapacity. It seems unlikely that such a person would ever have much chance of getting a supervision order and it would be hard for them to prove that they are substantially likely to comply with the conditions of a supervision order. Therefore, the most likely outcome of any application made against them will be a continuing detention order of indefinite duration, reviewed two yearly. I think this is inherently unjust, particularly when we are on the cusp, allegedly, of finally seeing reform to the Criminal Law (Mentally Impaired Accused) Act, under which people can be detained indefinitely in a range of environments. Sometimes that is in prison, when it is deemed that is where the person needs to be. Sometimes that is in a more suitable environment, such as the disability justice centre, which is a very welcome and important reform that needs to be supported. It might be that they need to be detained within a particular mental health facility, such as the Frankland Centre at Graylands Hospital.
The other thing about the Criminal Law (Mentally Impaired Accused) Act—hopefully what we will see in a reformed Criminal Law (Mentally Impaired Accused) Act—is the capacity for people to be released on community supervision orders with appropriate care and support. The majority of people are able to live within the community successfully and safely, as long as they have the appropriate levels of day-to-day support, sometimes mandatory medication regimes or a combination of both available to them. I am very concerned that the processes described here may simply pre-empt a far more appropriate process, consistent with our human rights obligations and a therapeutic approach to mentally impaired accused offenders. I hope, once again, that we get to see the criminal law mentally impaired accused bill as soon as possible. I feel very confident that the hardworking drafters are doing their best, and consulting all the right people. I am hoping that we get to see that legislation very soon, because I will probably cry with joy when I finally see it in this place. I look forward enormously to those reforms.
The bill also introduces several new provisions about disclosure and, in so far as they provide for cooperation and sharing of information between agencies jointly responsible for managing an offender, that is eminently sensible. I am concerned about the potential of those provisions to defeat any oversight mechanisms, such as Parliament and its committees, and the freedom of information process. We want to make sure we get that balance right. Much of the information that the board and the government will hold will not be specific to particular offenders, and is of a general nature, and I believe this information needs to be accessible by both Parliament and the public. Examples of the general information I am talking about are the nature and quality of the research underlining the assessment and management of high-risk offenders. I refer again to the article I cited earlier about inaccuracy in predicting future offending. The bill covers a wide range of offences, so it is entirely appropriate that Parliament and the public have access to the research that is being relied upon for predicting future offending. It will also have information about best practice standards and guidelines applicable to agencies dealing with high-risk offenders that I think would be of great interest to Parliament; information about resourcing, service provision and training relevant to agencies dealing with high-risk offenders; and also simply the number of people subject to each of tier 1 and tier 2. I want to know how many of these are children, and how many are captured under the mentally unfit provisions. I ask the minister whether that general information that is not specific to individual offenders will be available to Parliament and the public—if so, by what mechanism; and, if not, why not, and how will this information be made available?
That is effectively the range of concerns that the Greens have about this legislation. As I said, we have been talking about this type of legislation for a long time—ever since 2006. The last time I spoke about this was in 2017. We remain concerned about these types of regimes. We think there needs to be opportunities for people to be compelled to undertake some sort of rehabilitation and supervision where that is deemed to be necessary and appropriate. We think that mentally impaired accused people need to be dealt with under an entirely different regime, and we are very concerned that we are establishing a regime under which people who have done their time, where there is no clear way to predict whether they will be a risk in the future, will be unnecessarily detained. That is contrary to the rule of law. I understand that this is an election commitment. It is not my election commitment, so I do not have to jump up and down with excitement about it. I maintain that it is very important that people who have not committed an offence should not have to be detained indefinitely. That is highly problematic, and I am concerned that the bill before the house is still too much of a blunt instrument to ensure that we are getting the balance right.
Comments and speeches from various members
Debate adjourned, pursuant to standing orders.