CRIMINAL LAW (EXTENDED SUPERVISION ORDERS) BILL

Tuesday 17 March, 2015

Mr TARZIA (Hartley) (17:35): I also rise today to talk about the Criminal Law (Extended Supervision Orders) Bill 2015. I also rise to support the bill. I wish to talk a little bit about conditions under ESOs and also draw upon some of the principal arguments that have been raised in relation to ESOs, then I would like to speak to the house about some financial implications of the bill and also potential amendments.

Mr TARZIA (Hartley) (17:35): I also rise today to talk about the Criminal Law (Extended Supervision Orders) Bill 2015. I also rise to support the bill. I wish to talk a little bit about conditions under ESOs and also draw upon some of the principal arguments that have been raised in relation to ESOs, then I would like to speak to the house about some financial implications of the bill and also potential amendments.

As we have heard, the bill was mentioned during the last election campaign as part of Labor's bold agenda and justice policy. Major reforms, if Labor was elected, were promised, and the provision of $300,000, I think it was, over two years was made in the 2014-15 budget. I note that the bill was introduced on 11 February 2015. Good things take time. It is already late, but that is okay. Good things do take time: I understand that.

As we have heard, this bill provides for the creation of extended supervision orders and will, in theory, allow for certain offenders (and many of these offenders would be high risk in the community) to have supervision orders placed on them at the end of their sentence. It is usually at the expiration of their parole. In a practical sense, it would almost seem that the order would actually extend the parole period for the offender, even though the situation is also dealt with where an offender who has neither sought nor received parole may also come under such an order when they are released.

There are many different categories that fall within the definition of someone who you would call a high-risk offender (and that someone, as we have heard, would fall into the category here) who may be subject to an ESO (extended supervision order). We have heard some of them may include serious sexual offenders, for example, where the top sentence would include gaol for at least five years. There are also the less serious sexual offences as well. Then you have violent offences, indictable offences, where the maximum possible sentence includes, say, gaol for at least five years where the conduct constituting the offence involved, for example, death or serious harm.

Under the bill, I understand that the Attorney must apply to the Supreme Court for an ESO (as the member for Morialta pointed out) and, in assessing an application, the Supreme Court would determine that the offender poses an appreciable risk to the safety of the community if not supervised under the order. In relation to the actual numbers that this would affect, it is my understanding that the government has suggested in a prior briefing that there may be many hundreds of offenders who may have committed the necessary offences to qualify for an ESO. However, I believe that the actual numbers would be small in this case.

A number of things would be considered, such as what is the likelihood of an offender going out into the community and reoffending; what are the medical practitioners' reports in relation to the offender; what have the Parole Board reports been like, as well as, perhaps, any other expert report that the court might deem fit; any evidence or representations put forward by the offender; and, any prior treatment and rehabilitation programs. I will talk about rehabilitation programs and why that is important in just a second. Also considered would be, perhaps, the extent to which the offender has complied with conditions of parole, or the ESO, or the child sex offender register, whatever register is relevant or applicable, as well as the offender's criminal history and remarks by the sentencing court.

There are many issues that we need to consider here. I made mention of the fact that I was talking about the different kinds of conditions under an ESO, but it really does put into question the things that can be considered. It highlights to me that what we can see here is a failure amongst this government's policies of the past, especially its policy of rack 'em, stack 'em and pack 'em. You can see the weakness of that approach to continually keep our gaols full. You can see that it is all well and good and, no, I am not weak on crime at all. I believe it is important to be tough on crime, of course, but you can see how that mentality—when one of the leaders of the party says, 'Rack 'em, stack 'em and pack 'em,' and that is the approach, that is the ethos of the Labor Party in recent times, and it is more and more towards that and less and less towards things like rehabilitation—presents certain problems, does it not?

Mr Gardner: Consequences.

Mr TARZIA: Consequences. One of them being financial and one of them being rehabilitation of the prisoner. It is a fundamental legal argument. I am not really taking a view here, but some of my colleagues to the extreme left, and to the left, would say, for example, that they might believe in things like Hegelian retribution, where punishment annuls the wrong done. So, if punishment annuls the wrong done, then why do we have ESOs? These are the sorts of arguments that people in the law profession, criminal lawyers, especially criminal defence lawyers, are raising. If punishment does annul the wrong done, why do you need ESOs? If someone has served their time, why do they need an ESO? These are the sorts of arguments that it is important to enlist here.

There are many theories of punishment. Some say you need to be more focused on deterrence, some say you need to be more focused on rehabilitation, some say you need to be more focused on isolation, some say you need to be focused on education and others talk about retribution. It is a worthy cause that we actually talk to these sorts of things and work out what is best for society and the community. At the end of the day, as the member for Bright pointed out, I think you have to be practical and balance this whole notion of the ESO. Obviously, for someone who is dangerous to start with, it is fair to say: have they done their time? Yes, they have done their time. However, for good reason, the Attorney is saying that perhaps an ESO is appropriate, and I commend him on that.

I would admit, and be the first to admit, that sometimes these prisoners slip through the cracks of the system and that is why I am prepared to support the ESO concept because, at the end of the day, it is extremely important that we provide the safest environment for our community. So, whilst the traditionalist argument of: you do the crime, you serve your time, you are let off and you are free to go, I think there are special cases where we have to be practical and put these traditional theories of punishment to the side and consider what is in the best interests of our community.

In saying that though, there will be financial implications for this. You do need to be pragmatic and consider the financial point of view. It appears, and some of my esteemed colleagues in the house may be able to elaborate on this, that the government has not made sufficient budget provision for the introduction of ESOs in any substantial way. I could be wrong there, but I would like to allow them to draw our attention to that. I understand that the 2014-15 budget made $300,000 available, $150,000 in each of 2014-15 and 2015-16, to implement new laws that will allow the courts to impose ESOs on serious offenders.

However, it has become clear that this funding would cover admin support and potential legal costs, but it would not be spent—out there in the street—on supporting the extra cost that would be incurred by Community Corrections or by the Parole Board in undertaking the supervision that is required here. In any case, it is my humble opinion that it does not look like $300,000 would cover that. The member for Morialta would probably agree that it does not look like that would be enough to cover, but I could be incorrect there.

Let's not be political, but it is highly probable that there will be a budget impact on an already stretched Department for Correctional Services if this legislation proceeds, and I acknowledge the good work of the people in our gaols, the workers, who do a good job under these tight fiscal constraints. They are restricted in many ways through these tight financial situations, so when you have a government that says, 'Let's rack 'em, pack 'em and stack 'em. The gaols are full. We do not want to build any more gaols. We want to impose ESOs, but we do not have the funding to really do so,' surely it is only going to put more stress on an already ailing system. It goes without saying that, whilst I understand where the Attorney is coming from and I support the general concept of the ESO, the final implications certainly have to be addressed.

There has been a little bit of talk about proposed amendments. I will not add any more to that. I think it has been covered already, but I hope that I have sincerely addressed some of the issues in the bill.

We would all agree that sometimes doing the time is not enough. We do need to keep an eye on these dangerous offenders and that is why I can see valid grounds for ESOs; however, we certainly need to consider those arguments of principles. If you are going to put your principles by the side then when else are you going to depart from the general principles of criminal sentencing? When else are you going to do that? It is very important. We do not want to create a precedent for too many of them, I would have thought. I can understand that there are always exceptions to the rule and there are financial implications. There are certainly financial implications that need to be addressed, and sooner rather than later, because the system is already broken in many respects. It is important that we get on top of these things straightaway. It is with those remarks that I am happy to support this bill and commend it to the house.