Second Reading

Resumed from 28 June.

Discharge of Order and Referral to Standing Committee on Legislation — Motion

Hon AARON STONEHOUSE — without notice: I move —

(1) That the Sentence Administration Amendment Bill 2017 be discharged and referred to the Standing Committee on Legislation for consideration and report by no later than Tuesday, 28 November 2017.

(2) The committee has the power to inquire into and report on the policy of the bill.

HON MICHAEL MISCHIN (North Metropolitan — Deputy Leader of the Opposition) [ 3.16 pm ]: The opposition supports the motion and I reserve any comments regarding the substance of the bill for my second reading response once we have the committee’s report. [further comments]

HON ALISON XAMON (North Metropolitan) [ 3.25 pm ]: I rise on behalf of the Greens to also indicate that we support the Sentence Administration Amendment Bill 2017’s referral to the Standing Committee on Legislation for consideration. The Greens also support an inquiry into the bill’s policy. I was prepared to move a similar motion. The principal reason for that was I am yet to be convinced that the bill will achieve the outcomes it purports to achieve.

I recognise that this legislation is particularly emotive for many people within our community and that its purported intent has significant community support. The reason I say that is I think most people — certainly people in this place — feel an enormous amount of sympathy for the families of victims who have been murdered when the body of that person has not been found. I acknowledge that this is a horrible issue and I acknowledge the lifelong devastating impact it would have on families and loved ones — the people who have been left behind. The last thing anybody in this place wants to do is add to the pain of people who have lost loved ones. However, as has already been said, it is our obligation in this place to ensure that the legislation we seek to pass is good legislation; also, importantly, that it will have the effects it purports to; and that it has no unintended consequences. One of the concerns I have is that from the briefings I have received, I am yet to be assured that this legislation will achieve those outcomes. I am also very concerned that the impact of this legislation may serve to undermine the parole system, and undermine basic rights and the basic rule of law. It could also potentially have the impact of compounding injustices. I have not been provided with evidence to suggest that the bill before us will achieve its desired aims. I have not been provided with information regarding the bill’s anticipated impact on the community more generally, or specifically on the safety of the community. I hope these sorts of issues will be teased out more comprehensively through our legislation committee.

I recognise that this bill seeks to implement a WA Labor election commitment and that it has come about as a result of campaigning. The no body, no parole legislation, as the Sentence Administration Amendment Bill has colloquially come to be known, is in response to those concerns. As I understand it, when considering whether a prisoner convicted of a murder or homicide-related offence should be granted an early release order, and when the location of the body is unknown, this bill will require that a recommendation be given that the prisoner not be released unless satisfied that the prisoner has cooperated with a member of WA Police to identify where a victim may be or where they were last known to be. It will apply to prisoners in custody for murder and murder-related offences. The bill’s provisions apply to all relevant prisoners regardless of when they committed the offence; the bill is intended to be retrospective. I note that a murder-related offence refers to counselling or procuring the commission of murder, inciting another person to commit murder, becoming an accessory after the fact of murder or conspiring with another person to commit a murder at least insofar as these offences relate to the death of a person. As members are aware, a range of existing mechanisms allow the circumstances of individual cases to be taken into account, and that includes a prisoner’s refusal or reluctance to give any information on the whereabouts of a victim. We also know that the courts may — they often do — consider issues of remorse and whether remorse has been demonstrated, the degree of cooperation that has been demonstrated and whether any assistance has been given to identify the location of a body when they are sentencing an offender to a term of imprisonment. These things are already taken into account by the courts and, just as importantly, the Prisoners Review Board is already required to take quite a comprehensive range of things into account when making a decision on whether it will issue an early release order. These exact issues are taken into account in those instances as well. Ultimately, a recommendation from the Prisoners Review Board about prisoners serving life or indefinite sentences goes to the Attorney General, who can choose to not accept that recommendation and not pass it on to the Governor. It strikes me that quite a considerable number of safeguards are already in place if it can be reasonably construed that somebody is wilfully not assisting the police, thereby not allowing the family and loved ones of the murder victim to know exactly what happened to that person .

I acknowledge also that in a number of cases — from what I was told in the briefing there are not many of these — prisoners choose to not reveal the location of a body. That is taken into account by the courts and by the Prisoners Review Board and I suggest that it will be taken into account by the Attorney General. In that sense, what is this legislation hoping to value-add other than to meet an election commitment? I am struggling to understand what that is going to be. These are exactly the sorts of issues that I hope will be unpicked by the Standing Committee on Legislation, especially if it looks at the policy of the bill to determine whether it will have the desired outcome.

Another concern involves those rare occasions — I am sure that they exist; I know they exist — when people find themselves erroneously jailed for a murder. It does happen. There is evidence that that has happened to some very high-profile individuals. Those people would never be able to reveal the location of a body because they did not commit a murder in the first place. This legislation effectively ensures that they can never be considered for parole even if there is doubt — even if the Attorney General has doubts — about whether that person should have been jailed in the first place. This bill will remove all discretion from the courts and the Prisoners Review Board, and it will remove the political discretion to ensure that innocent people, as rarely as it may happen, are not locked up indefinitely and the key thrown away.

Yet another concern is that this legislation, in effect, undermines the rule of law that it is a person’s right to remain silent. That concept is enshrined; we understand in the western context in particular that people are afforded the key protection of the right to not incriminate themselves. At the moment, if it is the view of the courts, the Prisoners Review Board and indeed the relevant politician that that is not good enough, there is a remedy to address that, but otherwise that is a concerning potential outcome. I look forward to the opportunity discuss this in more detail during the second reading debate to see whether those unintended concerns will occur.

Before I take my seat, I am concerned about another outcome that potentially may be examined by the Standing Committee on Legislation. I refer to looking at the overall function of parole — why we have parole and options for parole in the first place. A significant concern that the Greens have about this legislation is how it has the potential to undermine our parole system. We have significant concerns about the impact of the bill on the purpose and function of the parole system. The parole system provides a mechanism to supervise and support the transition of prisoners back into the community. Importantly, it seeks to minimise their chances of reoffending. This is about community safety. The Sentence Administration Act 2003 provides that the safety of the community is the paramount consideration in decisions regarding the release of prisoners under the act. We know that the Prisoners Review Board may require that a parolee be supervised before granting conditional release. Prisoners often have to actively participate in treatment programs, attend counselling, actively seek employment — that is really important — participate in training or engage in other activities to facilitate re-entry into the community. Very importantly, the board may also recommend that a prisoner participate in a resocialisation program before finally being released. The Prisoners Review Board policy manual states —

The Board’s power to impose conditions (or requirements as they are called under the act) to protect victims and facilitate the prisoner’s rehabilitation is unfettered and is not limited to addressing only those factors which relate to the current conviction. The purpose of parole is to protect the public (including the victim) and to facilitate rehabilitation of the prisoner.

Decisions made by the Prisoners Review Board can have a really important impact on rehabilitation, how successfully the prisoner does on release and also if they happen to reoffend. I say this because I want to remind members, particularly if this is referred to the committee, that this legislation does not apply only to prisoners who have committed murder, but also to those who have been convicted of counselling or procuring the commission of murder, inciting another person to commit murder, become an accessory after the fact of murder, or conspiring with another person to commit a murder, at least as insofar as these offences relate to the death of a person.

I am very concerned that a series of potentially unintended consequences may arise as result of this legislation. Frankly, if a prisoner knows that they are not going to get parole, they have no incentive at all to undertake rehabilitative programs while they are in custody. If they are ultimately released, and they may well be, that will happen not only without parole supervision, but also without the benefit of having had any sort of rehabilitative treatment in custody. That is not good for the community or community safety. These sorts of things have the potential to have unforeseen consequences.

I want to say much more in my contribution to the second reading debate, but I will say that I want to see what might come out of any report that comes back from the committee, if the house agrees to refer this motion to the legislation committee. As I have said, I recognise that the Labor Party is attempting to fulfil an election commitment. I recognise that there is a great deal of sympathy within the community, particularly for the families of people who have lost loved ones who have been murdered, and it has been acknowledged that they have been murdered, or it is expected that they have been murdered, and who have never, ever been able to find their loved ones or definitively know what happened to their loved ones. I simply do not know how I would cope if I were in that situation and it was one of my children. I understand that and I have warned that very heavily when I have been considering this legislation. However, it is my job to put that to one side and to look at whether this legislation is likely to assist those families and achieve the outcomes that it says it will or whether it will potentially result in a range of unintended consequences, such as options removed for sensible parole or even those rare, but important, occasions when there may be even reasonable suspicion about whether someone really is guilty and discretion may want to be exercised for early release. The Greens will support the motion without notice for discharge and referral of this bill to the committee.

[speeches and comments of various members]


Question put and a division taken, the Acting President (Hon Martin Aldridge) casting his vote with the ayes, with the following result —

Ayes (21)

Hon Martin Aldridge Hon Diane Evers Hon Simon O’Brien Hon Colin Tincknell Hon Robin Chapple Hon Donna Faragher Hon Robin Scott Hon Alison Xamon Hon Jim Chown Hon Nick Goiran Hon Tjorn Sibma Hon Ken Baston (Teller) Hon Tim Clifford Hon Colin Holt Hon Charles Smith Hon Peter Collier Hon Rick Mazza Hon Aaron Stonehouse Hon Colin de Grussa Hon Michael Mischin Hon Dr Steve Thomas

Noes (12)

Hon Alanna Clohesy Hon Adele Farina Hon Kyle McGinn Hon Dr Sally Talbot Hon Stephen Dawson Hon Laurie Graham Hon Samantha Rowe Hon Darren West Hon Sue Ellery Hon Alannah MacTiernan Hon Matthew Swinbourn Hon Martin Pritchard (Teller)


Hon Jacqui Boydell / Hon Pierre Yang

Question thus passed.


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