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- 29 March 2006
Crimes (Serious Sex Offenders) Bill
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Page: 21730
Bill introduced and read a first time.
Second Reading
Mr CARL SCULLY (Smithfield—Minister for Police) [7.32 p.m.], on behalf of Mr Bob Debus: I move:
That this bill be now read a second time.
I am pleased to introduce the Crimes (Serious Sex Offenders) Bill. The Government has shown its strong and ongoing commitment to the protection of the community from sex offenders. It has introduced the toughest substantive child sexual assault offences in Australia that ensure that offenders are incapacitated for long periods of time if convicted. It has introduced an offence under section 11G of the Summary Offences Act 1988 that provides that a person who is a convicted child sexual offender and who loiters near a school, or a public place regularly frequented by children, can be sentenced to imprisonment for up to two years. It has established the Child Protection (Offenders Registration) Act 2000 (NSW), which creates a scheme of sex offender registration.
New South Wales also championed the development of a national registration scheme. Further, the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is a new tool to allow police to stop re-offending before it happens. The scheme provides for court orders prohibiting certain offenders who pose a risk to the lives or sexual safety of children from engaging in specified conduct. The Government has also introduced employment screening for people working with children.
One particular concern that is dealt with by this scheme relates to a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison. These offenders make up a very small percentage of the prison population, yet their behaviour poses a very real threat to the public. These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised. The bill addresses this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody. The Department of Corrective Services has advised that only a small number of offenders would fall into this very high-risk category.
Whilst legislation of this kind is a first for New South Wales, a number of other jurisdictions have enacted laws directed at serious high-risk sex offenders that provide for a variety of options including mandated treatment, community registration, and protracted supervision beyond the duration of a sentence. For example, in July 2004 New Zealand legislation providing for extended supervision commenced operation. Some States in Australia already have similar legislative schemes. The Victorian legislation provides for extended supervision, and the Western Australian Parliament recently passed a bill that allows for the detention and supervision of dangerous sex offenders. Queensland introduced a contemporary legislative regime in June 2003 that provides for both continuing detention orders and extended supervision orders. Significantly, in 2004, when the Queensland legislation was challenged in the High Court in the case of Fardon v Attorney-General for the State of Queensland, the validity of the legislation was upheld.
I turn now to the detail of the bill. Clause 3 sets out the objects of the bill, which are to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community, and to facilitate the rehabilitation of such offenders. Clause 5 defines the expressions "serious sex offence" and "offence of a sexual nature" for the purposes of the proposed Act. These will be the most important terms in the Act.
A serious sexual offence is defined as a sexual offence that carries a maximum penalty of seven years imprisonment or more and was committed against a child, or committed against an adult in circumstances of aggravation. This definition includes all sexual assaults, including aggravated indecent assault, which carries a maximum penalty of seven years imprisonment. The definition also includes serious sexual offences committed against adults where there is a circumstance of aggravation, such as the offender was in company, the offender used corporeal violence, the offender used a weapon, the victim was a vulnerable person, the offender held a position of authority over the victim, or the offender detained the victim.
The offence of "administer stupefying drug with intent to commit an indictable offence"—section 38 of the Crimes Act 1900—will also be included where the indictable offence is a serious sexual offence. "Offences of a sexual nature" will include anything below the seven-year maximum term, such as the possession of child pornography. These definitions capture the worst sexual recidivists in our system.
The Attorney General will be able to seek two types of orders: extended supervision orders, dealt with under part 2; and continuing detention orders, dealt with under part 3. The procedures for applying for both orders are the same. Clauses 6 and 14 enable the Attorney General to apply to the Supreme Court for extended supervision orders and continuing detention orders respectively. Continuing detention orders will only be applied for where there are no other effective methods of managing the offender's high risk of reoffence.
It is appropriate that the Attorney General, as the first law officer of the State, consider any proposal to make an application—following advice from the Commissioner of Corrective Services to the Minister for Justice—before matters are filed in the Supreme Court. Such an application may not be made until the last six months of the offender's current custody or supervision, and must be supported by specified documentation. This is important because it means that the application must be well thought out and have a sound basis. The documentation must address the matters to which the Supreme Court must have regard when considering whether an order should be made. The documentation also must include a report by a psychiatrist, a psychologist or a medical practitioner that assesses the offender's risk of reoffending.
Clauses 7 and 15 require an application to be served on a sex offender within two business days after it is filed, for a preliminary hearing to be conducted within 28 days after it is filed, and for a decision to be made as to whether there is a case against the offender. It is important to note that the Attorney General will have the same disclosure requirements in these matters as the prosecution does in criminal matters, meaning that all relevant matters, whether favourable or unfavourable, will be disclosed. This will ensure that applications based on selective evidence are not made, and it will also serve to shorten the discovery process that usually occurs in other matters.
If a prima facie case is made out in the application, the Supreme Court is to make an order for two psychiatrists to examine the offender and report independently. The appointment of two court-appointed psychiatrists is an important aspect of the scheme. It allows for a fair and independent medical opinion to be expressed. The psychiatrists will not be State employees, but will be private members of the Royal Australian and New Zealand College of Psychiatrists and the court will appoint them. As noted above, an offender is entitled to call his or her own evidence if he or she wishes.
Clauses 8 and 16 enable the Supreme Court to make interim supervision or detention orders so that an offender can be kept under supervision or in detention pending determination of an application. This power is important in cases where it appears that the offender's period of custody or supervision will expire before the proceedings are determined. It allows the offender to be detained for up to 28 days, but upon renewal of the order the total period for which an offender can be kept under interim supervision is three months. This limit will ensure that people are not held on rolling orders, and will encourage expeditious determination of these matters.
Clause 9 provides that the Supreme Court may make an extended supervision order only if it is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. The test for making a continuing detention order is contained in clause 17. Before making a continuing detention order the Supreme Court must decide that a supervision order would not be sufficient to deal with the risk of a prisoner reoffending. It may make a continuing detention order only if it is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept in custody.
Clauses 9 (3) and 17 (4) contain a non-exhaustive list of matters the court must consider before making an order, including reports from psychiatrists and the results of any assessment prepared in relation to determining the likelihood of the offender committing a further serious sex offence. The indicia are meant to guide the court in distinguishing the small number of high-risk offenders who have not made any attempt to rehabilitate whilst in prison. Clauses 10 and 18 provide that the maximum term for either order is five years, but nothing prevents the Attorney General from making further applications so long as the principal test continues to be satisfied. Clause 7 specifies the kind of conditions that can be imposed on a supervision order, which are similar to those that a person on parole may be placed on. Clause 12 makes it an offence punishable by a fine of 100 penalty units or imprisoned for two years, or both, for a person to fail to comply with the requirements of a supervision order.
Clauses 13 and 19 enable the Supreme Court to vary or revoke a supervision order or detention order upon the application of either party, and also requires the Commissioner of Corrective Services to provide the Attorney General with annual reports on each offender. This power will deal with any changes in circumstances. Clause 20 enables the Supreme Court to issue a warrant of committal to give effect to a detention order. Part 4 deals with Supreme Court proceedings. Clause 21 provides that proceedings under the proposed Act are civil proceedings to be conducted in accordance with the law relating to civil proceedings. Clause 22 enables an appeal to be made to the Court of Appeal against any determination made by the Supreme Court under the proposed Act.
This right applies to both parties, and specifies 28 days as the time frame for the appeal to be lodged. The appeal may be on the ground of an error of fact or law, or a combination of both. Clause 23 provides that no order for costs may be made against an offender in relation to proceedings under the proposed Act. This would not be appropriate, despite the civil nature of the proceedings, given the fact that the proceedings always will be commenced by the Attorney General and the unique nature of the proceedings.
Clause 24 preserves the jurisdiction of the Supreme Court, apart from the proposed Act. Part 5 deals with miscellaneous matters. Clause 25 creates a power for the Attorney General to require documents that are relevant to these applications. Relevant material may be held by a number of bodies and organisations. Clause 32 provides for a review of the proposed Act at the end of three years from the date of assent. Since the legislation is unprecedented in New South Wales the Government is dedicating to ensuring that it is being used appropriately, and achieving what it is designed to accomplish. In summary, I stress that it is vital that there be legal mechanisms to protect the community from serious sex offenders. The bill is another demonstration of the Government's dedication to ensuring the safety of the community from offenders who already have demonstrated their capacity to commit horrendous and unacceptable crimes, and where there is compelling and cogent evidence that they are likely to do so again. I commend the bill to the House.
Mr ANDREW HUMPHERSON (Davidson) [7.45 p.m.]: I make a number of things clear at the outset. The Opposition had only an hour or so notice that the bill would be introduced, including a briefing 30 or 40 minutes ago from the department. Some two weeks ago it was clear that the Government was intent on introducing the legislation. It is not as though it is new legislation; comparable legislation is in place in other States. Yet again the Minister for Justice is as disorganised as he always is and the Government is likewise disorganised. I thought the Attorney General would have taken a significant interest in the legislation because he will play a key role, but his absence suggests that he may not fully support it. It will be interesting to see the effect of the legislation. It is a shame the Attorney General was not present to have carriage of the legislation, given the importance of his function. I would have loved to have been a fly on the wall in Cabinet to see the Minister for Police and the Minister for Justice roll the Attorney General. I dare say that he has opposed anything of this nature for a long time.
For at least one year, and probably far in excess of that, the Opposition has been calling for the imposition of stronger measures against serious sex offenders. We have been on the public record for a long time highlighting that serial sex offenders, particularly paedophiles, are difficult, if not impossible, to rehabilitate. Almost without exception they pose a constant threat to the community and their potential victims. Statistical analysis, particularly in New Zealand, has proven beyond reasonable doubt that one cannot be assured that paedophiles of a certain nature and profile and serial sex offenders of a certain nature and profile will not reoffend and create further victims. It is disappointing that the Government has taken so long to introduce this legislation. In recent years a number of paedophiles have committed appalling offences upon their release. Many of the people who worked with them in the correctional system have raised concerns about their propensity to reoffend. Sadly, a number of them have reoffended.
I will rely on the briefing given by the Government to comment generally on the bill. It is intended that the bill provide for extended supervision and continuing detention of certain serious sex offenders to protect the community. I could not agree more with the need to protect the community. The interest of potential victims and victims must be placed well above the interests of sex offenders to be released and enjoy some freedom. Extended supervision and extended custody are important options that have been applied successfully in a number of limited cases in Victoria and Queensland. The Attorney General on request of the Minister for Justice on advice from the Commissioner for Corrective Services can apply to the Supreme Court for a continuing detention order for serious sex offenders who meet certain criteria.
The Supreme Court will have the power to issue either a continuing detention order or an extended supervision order. An order will be able to be made for periods up to five years and with no limit to the number of orders that a court may issue. Clearly, in the most extreme cases it will be possible on a five yearly cycle for some sex offenders to spend the rest of their days in prison, notwithstanding that they may not have received a lifetime sentence for their crime at the outset. The contributing factors will be clear evidence that they are willing to be rehabilitated and/or have not reoffended. Under the powers provided in the legislation, applications may be made up to six months prior to completion of the sentence in the case of an order for continuing detention. The Supreme Court will be able to grant a continuing detention order if it has been shown there is a high degree of probability that a prisoner is likely to commit a serious sexual offence, if released, and an extended supervision order is inadequate to protect the community.
Extended supervision will ensure that offenders will be subjected to extended monitoring and supervision. The options include satellite tracking or electronic monitoring. I digress to make the observation that that measure should not be used in isolation. Satellite tracking has its place, but it will not prevent an offence from occurring in many circumstances. It would merely be a record that enables police to track where an offender was in relation to the circumstances of the commission of the offence. The legislation provides for proximity restrictions for particular places, such as schools. Specific exclusions are provided for in relation to locations and classes of locations. Broadly speaking, the provision will prevent an offender from being in proximity to any preschool, including specific locations, such as places where victims live, work or may frequent. The legislation also provides for a greater intensity of home visits, although that may be a little problematic if the resources are not in the probation and parole area.
Extended supervision records will also provide for participation in treatment and/or counselling and/or therapeutic programs. In many cases that should be mandatory. I think curfews should also be mandatory for a number of offenders, but unfortunately offenders can, and do, offend at all hours of the day and night. Certainly younger victims are likely to be in a public place or accessible in daytime hours or early evening hours. There are restrictions, as there should be, on changes of name and address. Any offenders who are subject to extended supervision orders will be able to access legal safeguards, including normal legal representation and appeal processes. The Supreme Court will be permitted to make an interim order for detention for a period of 28 days to enable an application to be heard. This will enable the court to act in a timely manner when the offender is about to be released and the order is reasonably required in the interests of community safety.
That is an interesting inclusion. I cite the example of a paedophile who was the subject of a parole application last year. I would hope that this legislation will apply to William John Gallagher, who applied for parole last year and was subsequently denied. As I understand it, he is due for a further parole hearing at a time close to the completion of his full sentence—in the next month or two. This is the type of offender to which this legislation should apply. William John Gallagher is approximately 60 years of age. In 2003 Gallagher lured a 13-year-old boy away from an inner Sydney games venue onto a bus and sexually attacked the child as he tried to get away from him. William John Gallagher had been only recently released from gaol, having served nine years imprisonment for other sex crimes. He has a history of sex offences which date back to the 1970s, which is over four decades ago.
No sooner was he released from gaol than he started preying on young children again. He followed the boy and tried to establish a dialogue with him. He encouraged the boy to go with him to where he lived after the child had done some homework. Fortunately the boy managed to escape but obviously he was still a victim. William John Gallagher effectively was released last time without any guarantees or any assurance that he had changed his behaviour. During the period of his release, he stalked and attacked three teenagers, a 12-year-old, a 17-year-old and the 13-year-old boy to whom I have referred. To make matters worse, he refused to enter his name on a paedophile register, as required.
William John Gallagher is a perfect example of a person who cannot be rehabilitated: he does not deserve another chance. We should not be prepared to risk his adding to his list of victims. His history is extensive. He is beyond rehabilitation. He is the type of person whose conduct should be captured by this legislation. We know in every respect that paedophiles, in particular, and other serial sex offenders can be violent and are almost impossible to rehabilitate. This legislation has not been introduced before time to this Parliament.
The legislation is not novel or new: It has been applied elsewhere. In New Zealand, a debate has been occurring for about three years on this type of legislation. It has been introduced in Western Australia and exists in different forms in Queensland and Victoria. The Opposition has been calling for this legislation for quite some time, particularly in relation to extended custody and intensive supervision—in fact the supervision will be ongoing under the provisions of the legislation. The only matter that the Government did not consider in the preparation of this legislation is chemical castration, which has been proved to be an effective measure in some circumstances for paedophiles in a number of overseas jurisdictions, including North America and Europe. I think that there is a good case for including that measure in the armoury of options which can be applied under extended supervision orders for sex offenders.
I indicate that the Opposition will not move amendments at the Committee stage in this House. The Opposition will not oppose the legislation in this House. In large part, this bill has many of the provisions for which the Opposition has been calling. If anything, the provisions do not go quite as far as the Opposition would have liked. The Opposition reserves the opportunity to move amendments in the upper House, given the complete lack of notice and time for the Opposition and all members of this House, including crossbench members, to consider the details of the bill. We understand that the Government intends to introduce it in the upper House within the next 24 hours. If necessary, and if advantageous to the New South Wales community, the Opposition will consider moving amendments in the upper House, but I do not envisage the legislation will encounter any difficulty in being passed at the earliest opportunity.
Mr CHRIS HARTCHER (Gosford) [7.56 p.m.]: Mr Deputy-Speaker, I join with other honourable members in welcoming you back. As indicated by the honourable member for Davidson, who led for the Coalition, we do not oppose this legislation, but there are a number of questions we would like to have answered. This bill amends the Crimes Act, which comes under the jurisdiction of the Attorney General. The bill specifically refers to the Attorney General in a number of clauses. For example, clause 25 states:
The Attorney General may, by order in writing served on any person, require that person to provide to the Attorney General any document …
The Attorney General is writ large over all the bill, yet the Attorney General is not speaking to the legislation. The point so eloquently made by the honourable member for Davidson is worth reinforcing. Where is the Attorney General on this issue? When similar legislation is passed by Coalition governments, the Attorney General comes to the Parliament and presents the legislation. One is entitled to query what has happened behind the scenes in the Iemma Labor Government. One is entitled to ask where the Attorney General is and whether the Attorney General has been rolled. The left-wing credentials of the Attorney General leave him open to speculation. One will be interested to know at the next meeting of the Council for Civil Liberties how the Attorney General will fare.
The Opposition has no problem with the legislation and supports it because we believe it is necessary, but the Labor Party and the Iemma Labor Government have been dragged reluctantly to finally acknowledge the truth of Coalition policy. The Opposition has been pursuing majority verdicts for juries for five years in this Parliament, and finally the Iemma Labor Government has taken it up. This legislation has been advocated for a long time by the honourable member for Davidson, our shadow Minister for Justice. Finally, 12 months before the election and when William Gallagher is about to be released, the Labor Party has realised the seriousness of the situation and has introduced legislation. However, the Attorney General is not prepared to come into this Chamber to support his legislation.
[Interruption]
I know the Minister has a dinner engagement, but I have a point to make and I will make it. The Attorney General is not prepared to come into this place to speak in support of the legislation. He has not issued a press release and there is nothing about it on his web site. The Attorney General has said nothing about this legislation. I would like the Parliamentary Secretary to consult the departmental advisers about clause 21. People get extended detention orders in gaol and this clause provides:
Nature of proceedings
Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.
The legislation expressly makes these proceedings civil, even though this legislation proposes an amendment to the Crimes Act. That Act requires a criminal standard of proof, but this legislation proposes only a civil standard of proof. We all know the difference: The civil standard of proof is simply the balance of probabilities, whereas the criminal standard of proof is beyond reasonable doubt. The Attorney General has put his name to this legislation, which provides that people can go to gaol for extended periods after the court has been satisfied only to the civil standard of proof. So much for the Attorney General's so-called civil liberties credentials!
As I said, the Opposition has always advocated this legislation and it has been prepared to support it publicly. As the shadow Attorney General, I am happy to support this legislation. Honourable members on this side of the House are happy to be transparent and for our support to be placed on the record. We can look members of the Council for Civil Liberties in the face and say that it is more important to protect the children of this State than to be concerned about the rights of convicted paedophiles. They are people from whom children and the people of the State are entitled to be protected. Interestingly, the Minister for Police introduced the legislation and the member for Kiama, who is not a Minister, is now replying. The Coalition has facilitated the passage of this legislation and it is prepared to support it to ensure that it is passed. But we would like to know, where is the Attorney General?
Mr MATT BROWN (Kiama—Parliamentary Secretary) [8.03 p.m.], in reply: The Government is pleased that the Opposition has expressed support for the bill. However, honourable members on this side of the House wonder how the honourable member for Gosford can continually get it so wrong. He said this is an amendment to the Crimes Act. It is not.
Mr Chris Hartcher: That is what it is called.
Mr MATT BROWN: This is a standalone legislative scheme. The bill will ensure that high-risk sex offenders are detained or strictly supervised so that the community can be protected and feel assured that all is being done to prevent further horrendous sex crimes from being perpetrated. At the same time, the bill provides balance so that the rights of the offender are considered along with the need to protect the community. The public has a right to feel confident that the legal system contains measures that will afford protection from sexual offences and does not allow back into the community high-risk offenders who have not been rehabilitated. Disregarding the misinformation provided by the honourable member for Gosford, I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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