Sentencing Legislation (Amendment) Bill
SENTENCING LEGISLATION (AMENDMENT) BILL
Resumed from 18 November.
The Hon. ELISABETH KIRKBY [2.50], by leave: I move the following amendments in globo:
No. 1 Page 7, Schedule 1, proposed section 22H, lines 26 and 27. Omit "receiving and".
No. 2 Page 7, Schedule 1, proposed section 22H, lines 34-36. Omit "and to have a reasonable opportunity to make relevant submissions at the hearing".
No. 3 Pages 7 and 8, Schedule 1, proposed section 22H, line 39 on page 7 to line 4 on page 8. Omit "and to have a reasonable opportunity to make any relevant submissions at the hearing".
No. 4 Page 8, Schedule 1, proposed section 22H, lines 5-7. Omit all words on those lines, insert instead:
The first three amendments effect omissions in order to allow the fourth amendment. Victim impact statements will relate to an event that took place in the far distant past. I refer honourable members to the comments I made during my contribution to the second reading debate about the prisoner Lewthwaite, who had served 18 years of a 20-year sentence. I said that if the victims or relatives of the victims are to make submissions to the Serious Offenders Review Board about the release of Lewthwaite, it is only natural justice that the prisoner should have the opportunity to have in writing the reasons for the victim's relatives opposing his release.
The fourth amendment will enable the prisoner to discuss the submission with his legal adviser and to work out his answer to the victim impact statement. This is a simple amendment. A prisoner attending a hearing without knowledge of the content of a victim impact statement will be at a great disadvantage. As I said in my contribution to the second reading debate, it is possible for allegations to be made about a prisoner who is seeking reclassification or release on parole which, on investigation, can be proved to be false. That occurred in the case of John David Lewthwaite, which I drew to the attention of honourable members and particularly to the attention of the Attorney General. I quoted from the report of the Offenders Review Board investigation into John David Lewthwaite.
That investigation proved categorically that the allegations made by the member for Smithfield were untrue and had no substance. If that investigation had not been carried out, it is possible that Mr Lewthwaite could have been denied his C3 classification and the opportunity to participate in work release and been kept in maximum security. As it was, when I had stated to the House that Mr Lewthwaite had been held in segregation for two months, the Attorney General pointed out in reply that my statement was incorrect. I have now been able to prove, I think to the satisfaction of the Attorney General, that my statement was not incorrect.
As a result, Mr Lewthwaite has received his C3 classification, but he had to undergo an extremely depressing experience of being in segregation for two months while the investigation was carried out. That could have been avoided if the prisoners had been provided in advance of the hearing with a document showing what the victims intended to put forward against his or her reclassification or application for release on parole. The fourth amendment is important, and I hope honourable members will support it.
The Hon. R. D. DYER [2.56]: The Hon. Elisabeth Kirkby has correctly indicated that the key amendment of the four Democrat amendments is No. 4. I draw attention to proposed section 22H(5), which provides in substance that submissions can be made either in writing, orally or both, to the Parole Board. If the submissions are in writing, they may be presented to the board in advance of the hearing or at the hearing. The proposal of the Australian Democrats is that submissions must be made in writing and in advance of the hearing. It is further provided in the Democrat amendment that the victims and prisoner are entitled to reasonable access to the submissions in advance of the hearing.
The Hon. Elisabeth Kirkby has advanced a natural justice argument in support of her amendment. The Opposition feels that it is essential to the purpose of the bill that the rights of victims are to be enhanced and that an essential element of the proposal or reform encompassed in the bill is that victims are to have the alternative right to make their submissions either orally or in writing. The Opposition believes it
severely cuts down the provisions in the bill in regard to the rights of victims if they are to be restricted to making written submissions. The approval given by the caucus of my party was to support the bill. The official Opposition regards the amendment as departing seriously from the thrust of the bill to restrict the submissions of victims to written submissions only.
Referring to the natural justice argument, one should remember that oral allegations are often made at the trial of offenders during the course of the giving of evidence. It is a matter for the defence at that time to meet those submissions. A more important aspect is that the Parole Board, as it will be known, will be presided over by retired but experienced District Court judges. Three such judges, at various times, will preside over meetings of the proposed Parole Board. I have every confidence that those judges are used to and capable of deciding what material is relevant and what should be excluded, and that they will continue to protect the rights of prisoners appearing before them. For those short reasons, the Opposition is unable to support the amendment. We feel that it departs seriously from the thrust of the legislation if there is to be a restriction of the submissions of victims to written submissions only in advance of the proceedings before the Parole Board.
Reverend the Hon. F. J. NILE [3.00]: The Call to Australia group supports the arguments presented by the Hon. R. D. Dyer with regard to the amendments moved by the Australian Democrats. As I said during the second reading debate, the purpose of the legislation is to readjust the position when an injustice has been done to the victims of crimes, the relations of the victims of crime, and so on. The legislation will rectify that. The amendments would undermine the purpose of the legislation by restricting submissions to written form and to presentation in advance to the hearing. The amendments may also discriminate against persons who have difficulty expressing their thoughts in writing and who would prefer to present their views orally to the Parole Board. For that reason, we cannot support the amendment.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.02]: I will deal with amendments Nos 1 to 4 and amendments Nos 5 to 9 because, by and large, they are similar, although they relate to two separate sections and therefore must be dealt with separately by the Committee. My arguments apply equally to both groups of amendments, and I ask the Committee to take them into consideration with regard to both groups. The primary objective of the legislation is to introduce an informal, non-adversarial and, therefore, non-threatening system that will allow victims of serious crimes to make submissions to those statutory bodies that are required to make decisions or recommendations which can lead to serious offenders being allowed out of prison and into the community, either on parole or on various forms of temporary leave, while retaining the restrictions imposed on prisoners.
The Government firmly believes that proceedings before the Parole Board should be informal, non-adversarial and non-threatening to those victims of serious crimes who might wish to make verbal submissions to the board. The Government is of the view that making all proceedings before the board formal and legalistic will not assist the board in its primary function, which is to gather and consider any relevant information that may help it to reach a conclusion as to whether a serious offender should be granted parole.
The effect of the honourable member's proposed amendments would be to remove the right of victims to make verbal submissions to the board by requiring all submissions to be made in writing. The amendments would also provide that in certain circumstances, such as when there is a dispute as to the material contained in a victim's written submissions, the victim will be required to be present at the hearing of the board and may be required to give evidence in accordance with the law of evidence. These proposals could result in considerable trauma and pressure being brought to bear on victims who do not want to appear before the board, come face to face with the offender, or go through the ordeal of cross-examination on the material contained in their submissions.
The Hon. Elisabeth Kirkby's amendments would significantly alter the whole nature of what the Government is trying to achieve. The amendments will turn an intended informal, non-adversarial procedure into something akin to a court process with all the attendant pressures and traumas for the victim. To quote the words of the Hon. R. D. Dyer in the second reading debate, we would be sending it back to a second trial. We are talking about offenders who have committed serious crimes. The victims already have been through enough at the committal and trial stages, and the Government does not want to put them through any further ordeal. In developing the legislation, the Government wanted to implement a simple procedure that would afford victims of serious crimes an opportunity to make submissions to the Parole Board and the Serious Offenders Review Council in a non-adversarial and non-legalistic environment. These proposals would overturn that objective, and for those reasons the amendments are not supported by the Government.
The Hon. ELISABETH KIRKBY [3.05]: I am astounded by the attitude taken by both the Government and the Opposition on this matter. I can only judge the matter on the facts. I have a swag of documentation from judges, dismissing victim impact statements in the Court of Criminal Appeal. In some of the documents, the judges said that they believed that the statements were totally unfounded. I have the greatest sympathy with victims - I do not want honourable members to get the wrong impression about that. Earlier, I mentioned the case of Mr Lewthwaite, who was sentenced to a long term of imprisonment. Surely, if we had had proper counselling and support for victims, the initial trauma although not the pain and tragedy would have vanished after 20 years.
Inmates who committed horrific crimes possibly 20 years ago or earlier, have not, under our law, been locked up for the rest of their natural lives. They must be allowed to re-enter society at some stage. If their ability to be released on parole or to be reclassified to C3 and to day release is impeded by a victims impact statement which they cannot see in advance or question, that seems to be an absolute denial of their rights. I am not denying the rights of the victim, but 20 years - or, in some cases, 25 years - have passed. Surely, the offenders will have served the sentences imposed on them by the law, and they will then have the right at least to have the ability to be paroled or released.
If the bill stands, offenders will be denied the right to know why the victim does not want them to have that opportunity. They will be denied the opportunity to discuss the victims impact statement with their legal advisers. I simply cannot understand the logic of the Opposition's position, although I believe that the Hon. R. D. Dyer is bound by a caucus decision. I cannot understand why the Government is prepared to allow unsworn victims impact statements, especially as we had legislation only a few weeks ago in which the Government was determined to abolish unsworn dock statements. That seems to be a gross contradiction. I realise that I do not have the numbers to get the amendment accepted but my remarks should appear in the record.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.09]: For the record, I shall clarify the issues that have been raised in relation to the preparation of victim impact statements under the Crimes Act as a result of new section 447C. As I said during the second reading debate, I will gazette regulations which make it clear that the statements will be in writing and will be prepared by counsellors, psychologists and psychiatrists. The appropriate professional people will be involved. It will be a significant step forward because the concerns raised by the Hon. Elisabeth Kirkby that victims should have access to counselling services which until now they have been denied, will be addressed.
The cathartic impact of submitting a victim impact statement will be significant for victims but, having gone through that catharsis, the interest of the victims in following events surrounding the offenders and, therefore, the need or desire to appear before the Serious Offenders Review Council or the Parole Board, will be significantly diminished. I suspect that the extent to which anybody makes use of these provisions will be minimal, but they will be available. The legislation will ensure procedural fairness in hearings before the SORC or the Parole Board which are, as the Hon. R. D. Dyer indicated, chaired by retired judges.
The legislation will enable people to put submissions before the board. These will not be repeated victim impact statements but will be submissions about the management of the prisoner. The submissions would be less extensive than victim impact statements and would put forward material which is relevant to whether the prisoner should be reclassified or released. No doubt some victims will want to relive the victim impact statement and the trial, but the council and the board will countenance only that which is relevant and that which deals with the procedures accordingly. Procedural unfairness should not be of concern to the honourable member.
Checks and balances have been put in place to address the comments made by judges in the various court of appeal decisions. Judges have made it clear that people who appear for themselves and who express personal feelings do not add a lot to the evidence before the courts. I seek to address that through the legislation. The honourable member referred to the Lewthwaite comments made at the second reading stage. As a result of information given to me I made further inquiries and the result should be placed on record. What I said to the House on 18 November is accurate: Mr Lewthwaite was held in protection for the period to which the honourable member adverted. Mr Lewthwaite sought protection. Because he was in the reception prison, where there is only one facility to put a person in protection, he was, unfortunately, placed in the segregation wing.
Though the honourable member referred to segregation, I would not want any member to think that Mr Lewthwaite was treated as a segregated prisoner within. He was not. The rules of segregation did not apply. He was separated from other prisoners by being placed in the segregation area, but this was done at his request, for his protection. I do not want any member to think that Mr Lewthwaite was unfairly treated. I commend the bill to the Committee without amendments.
The Hon. ELISABETH KIRKBY [3.14]: I no longer proceed with my amendment No. 5 because it is consequential on amendment No. 4.
The Hon. ELISABETH KIRKBY [3.14], by leave: I move the following amendments in globo:
No. 6 Page 8, Schedule 1, proposed section 22I, lines 29-31. Omit "and to have a reasonable opportunity to make relevant submissions at the hearing".
No. 7 Page 9, Schedule 1, proposed section 22I, lines 11 and 12. Omit "and to have a reasonable opportunity to make any relevant submissions at the hearing".
No. 8 Page 9, Schedule 1, proposed section 22I, lines 13-15. Omit all words on those lines, insert instead:
(5) Submissions must be made in writing and in advance of the hearing. The victim and prisoner are entitled to reasonable access to the submissions in advance of the hearing.
We have already had considerable debate on this principle. The Opposition has made its views clear, as has the Government. It is obvious that I shall not get support for the amendments. I am a little heartened by the reply from the Attorney General about proclaiming victim impact statements and the regulations that he intends to introduce. I shall study
them carefully when they are available to ensure that my concerns about natural justice will be addressed by those regulations.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.16]: For the reasons outlined in response to proposed amendments Nos 1 to 4, the Government opposes the amendments.
The Hon. R. D. DYER [3.16]: The Opposition adheres to the arguments advanced in regard to the previous bracket of amendments in also opposing the amendments before the Committee. I do not think it is necessary to restate those arguments. The Attorney General, in addressing the previous bracket of amendments, referred to remarks I made during the second reading. I know it is invidious to quote oneself, but I shall risk that and repeat a short passage of what I said so that it is clear:
(7) Submissions must be made in writing and in advance of the hearing. The victim and prisoner are entitled to reasonable access to the submissions in advance of the hearing.
Although I was addressing those remarks to a sophisticated or formal-style hearing in regard to the rights of the victim, by extension the same comments should be made regarding the rights of the prisoner. If we go down that track we will have a very formal proceeding. I do not think that is the intention. I am inclined to think that it is unnecessary, at least at this stage. The Opposition also opposes this group of amendments.
The Hon. ELISABETH KIRKBY [3.18]: I move:
No. 9 Page 9, Schedule 1, proposed section 22J. After line 37, insert:
Some will advocate an advocacy-style proceeding, almost another trial, where victims are legally represented and may cross-examine witnesses. Some caution should be counselled in this regard. Such matters might be better assessed after 12 months of practical experience of the reforms encompassed within this proposed legislation.
(3) That decision must be deferred if a hearing is to be conducted in accordance with subsection (4).
(4) The Board must set a date on which the Board will hold a meeting if the Board is of the opinion that there is a dispute as to any matter of fact, as shown in the submissions considered at a meeting held under section 22H or 22I, that warrants the holding of a further meeting.
(5) On setting a date for a meeting under subsection (4), the Board is required to give notice, at least 14 days before the date of the meeting, to the victim and prisoner indicating that the victim and prisoner are required to be present at the meeting and may be required to give evidence as to the matter in dispute.
(6) A Public Defender (within the meaning of the Public Defenders Act 1969) may appear for a prisoner, to whom legal aid was granted for proceedings for the offence concerned, at a meeting under subsection (4) and may, when appearing for the person, be instructed by a solicitor who is an officer of the Legal Aid Commission or by another solicitor.
(7) The Board is to observe the rules of law governing the admission of evidence in the conduct of any such meeting.
Proposed section 22J(2) of the bill, at lines 35 and 36, deals with the decision of the board following review. Proposed section 22J(1) provides that at meetings to be held under section 22H or 22I the board is required, after reviewing all the reports, documents, submissions and other information, to decide whether or not a prisoner should or should not be released on parole, or whether the board believes it is proper to defer that decision. Section 22J(2) provides that that decision may be deferred once only, and may not be deferred for more than two months. A prisoner may reapply after a two-month period has elapsed.
The purport of my proposed amendment is that the decision must be deferred if the hearing is to be conducted under subsection (4), which earlier I failed to have changed by amendment. My amendment also provides that the board would have to set a date when it would hold such a meeting and would be required to give at least 14 days notice both to the victim and to the prisoner. My amendment also provides that the Public Defender, within the meaning of the Public Defenders Act, may appear for a prisoner to whom legal aid was granted for proceedings for the offence concerned; that when appearing for that person the Public Defender could be instructed by a solicitor who is an officer of the Legal Aid Commission or by another solicitor, and that the board is to observe the rules of law governing admission of evidence at any such meeting at which the board is to decide whether or not the prisoner should be released on parole.
It is extremely important that prisoners serving very long sentences for serious crimes should be allowed legal representation before the review board in order to protect their interests. To give prisoners further protection I have included in my amendments the provision that the Public Defender's office might appear for prisoners. That is the right course in very serious cases which attract long terms of imprisonment. Luckily, there are not large numbers of prisoners in gaol with long sentences. The proposed measure would assist prisoners who have tried hard to rehabilitate themselves. I would like the Government and the Opposition to think about those arguments, though I have already been informed both by the Leader of the Government in this House and by the Hon. R. D. Dyer, on behalf of the Opposition, that they cannot support the amendment.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.23]: The Government does not support the amendments, for a number of reasons. Effectively, proposed subsection (8) is a substitution for existing subsection (3), which enables a decision to be made by the board that must be made in accordance with section 22L. In effect, section 22L provides a code for the making of these orders. The drafting of paragraph (8) could be corrected but that might lead to confusion. But these are only minor reasons I would not agree to the amendments. Proposed subparagraph (7), which effectively would apply the rules of evidence to proceedings, gives me a significant reason not to agree to the amendments. The board is able to determine its own procedure for
the conduct of its proceedings. The proposed amendments would introduce legalisms that would lead to a hearing of protagonists rather than the informal procedure we want to achieve.
The same problem arises with proposed paragraphs (3), (4) and (5). In effect, they would lead to the formalisms and legalisms we are seeking to avoid in this procedure. I do not oppose paragraph (6) at this time, for dual reasons. First, at the present time all prisoners appearing before these boards and councils are entitled to legal aid from the prisoners legal service division of the Legal Aid Commission. All prisoners receive the benefit of the services of the Legal Aid Commission. Prisoners who do not avail themselves of those services will no doubt do so because they wish to retain their own legal advisers. As part of that program, the Legal Aid Commission is able to retain a barrister to appear before the board. That service is extremely effective, has developed an outstanding reputation, and is highly regarded by those in the justice system who have spoken to me during my travels. The same could be said of those briefed by the Legal Aid Commission, when a briefing is required. That is not to say that in future the services of the Public Defender ought not to be expanded to cover this area.
Recently the Public Accounts Committee undertook a complete review of the Public Defender's office and recommended complete reform of its operation. Currently I am consulting with the Public Defender's office on new legislation to completely govern the administration of the Public Defender's office. We are on the point of reaching agreement with that office on its new charter. This issue may be one that ought to be included in that charter. To have it as a separate provision in this legislation would be inappropriate. If the purpose of the amendment is to ensure that legal assistance is available, I assure the honourable member that legal aid already is available through the Legal Aid Commission and there is no intention of ever removing that assistance.
If the purpose of the amendment is merely to expand the role of the Public Defender, this measure is not the place where that change should be made. It should be made while I am reviewing completely the Public Defenders Act. I can undertake to the honourable member that I will draw this provision to the attention of the Public Defender. To my knowledge it is not an issue that the Public Defender has advocated for reform. If the Public Defender takes the view that it is appropriate that it should be part of his charter, I would have no difficulty incorporating it into the reform of the Public Defenders Act.
The Hon. R. D. DYER [3.28]: The Opposition also is unable to support amendment No. 9 moved by the Hon. Elisabeth Kirkby. I listened with care to what the Attorney General has just said. I am heartened by his remarks on the availability to prisoners of legal assistance from the Legal Aid Commission. I am concerned in particular by subclause (7), which provides that the board is to observe the rules of law governing the admission of evidence in the conduct of any such meeting. As the Attorney General has said, that may lead to formality and legalism, which we are trying to avoid in proceedings by and before the Parole Board. For those short reasons, the Opposition does not support the amendment.
The Hon. ELISABETH KIRKBY [3.29]: The Attorney outlined the circumstances under which a prisoner was entitled to legal representation when appearing before the Serious Offenders Review Board, the Parole Board, or the Serious Offenders Review Council as it is now called. From the correspondence I receive from inmates in corrective institutions - much of which is passed on to the Attorney General's office - it is obvious that many of them are unaware of this provision. I seek an assurance that information about legal representation by the Public Defender or other legal officer is included in a charter of prisoners' rights, if such a document exists, or is at least made known to a prisoner at the time he or she is to appear before the board. When prisoners feel they are without any advocacy it adds to their trauma. I accept the Attorney's assurance on this matter and request that action be taken to ensure that prisoners who have to appear before the board are made aware of their right to legal aid.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.31]: I apologise if I have left the Committee with the impression that the functions of the Serious Offenders Review Council are exactly the same as those of the board. Those bodies operate differently. My comments were directed to the operations of the board. When prisoners are admitted to an institution a handbook is provided which sets out all matters for the information of prisoners. Inmates are well informed of the availability of the prisoners' legal service. However, I acknowledge that 50 per cent of prisoners cannot read and, therefore, one relies on word of mouth. I assure the Hon. Elisabeth Kirkby, from my travels to the prisons, that the prison network is very adept at providing information about available services and assistance. If honourable members want to familiarise themselves with the handbook, I am happy to make it available.
Schedule agreed to.
The Hon. ELISABETH KIRKBY [3.33], by leave: I move the following amendments in globo:
(8) At such a meeting, the Board is to decide whether or not the prisoner should be released on parole.
No. 10 Page 19, Schedule 2, proposed section 62A. After line 32, insert:
(4) If a submission is lodged by the victim within that 14-day period, the Review Council must give notice of that fact to the offender and indicate in the notice that the offender may lodge submissions with the Review Council within a specified period of 14 days.
The amendments are self-explanatory. I am delighted that the Government supports the amendments, and I commend them to the Committee.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.34]: The Government agrees to proposed amendments Nos 10 and 11. They have the effect of requiring the Serious Offenders Review Council to notify the serious offender under consideration that a submission has been received from the victim in relation to the offender and to indicate that the offender may also lodge a written submission with the council within a specified 14-day period. These amendments will not alter the procedures or processes of the council as to the manner in which it conducts its deliberations, but will merely formalise a procedure. The Government does not oppose these proposed amendments.
The Hon. R. D. DYER [3.35]: The Hon. J. W. Shaw and I indicated to the Government's advisers, who kindly briefed us about this legislation with the consent of the Attorney General, that these amendments should be supported. I am glad the Government has accepted them.
Amendments agreed to.
The Hon. ELISABETH KIRKBY [3.35]: I move:
No. 11 Page 19, Schedule 2, proposed section 62A, line 35. Omit "that period", insert instead "the relevant 14-day period".
No. 12 Page 19, Schedule 2, proposed section 62A. After line 36, insert:
(6) A decision to make a recommendation must be deferred if a meeting is to be conducted in accordance with subsection (7).
(7) The Review Council must set a date on which the Review Council will hold a meeting if the Review Council is of the opinion that there is a dispute as to any matter of fact, as shown in the submissions considered under subsection (5), that warrants the holding of such a meeting.
(8) On setting a date for a meeting under subsection (7), the Review Council is required to give notice, at least 14 days before the date of the meeting, to the victim and offender indicating that the victim and offender are required to be present at the hearing and may be required to give evidence as to the matter in dispute.
(9) A Public Defender (within the meaning of the Public Defenders Act 1969) may appear for a prisoner, to whom legal aid was granted for the proceedings for the offence concerned, at a meeting under subsection (7) and may, when appearing for the person, be instructed by a solicitor who is an officer of the Legal Aid Commission or by another solicitor.
This amendment goes to the nub of my concern. Proposed section 62A relates to victim submissions involving serious offenders. The number of serious offenders, particularly in crimes involving victims, constitutes a small proportion of prison inmates. Many of their offences are very serious and warrant the long sentences which are now being imposed by the courts. The prospect of shortening the period in gaol by getting remissions for good behaviour has vanished under this Government's truth in sentencing legislation. The Serious Offenders Review Council must have discretion to hold meetings and to allow prisoners legal representation by public defenders or other legal advisers.
I ask that the Attorney General clearly state that legal aid may be available to the prisoner under these circumstances if the prisoner is required to attend a review hearing set up by the Serious Offenders Review Council. As the Attorney General said earlier, there is no point in pressing this amendment more strenuously, as proposed legislation and foreshadowed amendments to other legislation will alleviate many of my concerns. I should like it clearly stated that the proposals referred to earlier by the Attorney General will apply to offenders appearing before the Parole Board and the Serious Offenders Review Council.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.40]: The Hon. Elisabeth Kirkby has confused the role of the Serious Offenders Review Council. The Serious Offenders Review Council, a management board, oversees the management of prisoners through the prison system. In the main, the Serious Offenders Review Council is responsible for classifying prisoners with a view to determining where they should be housed or how they should be managed within the system. This amendment effectively proposes to replicate the role of the Serious Offenders Review Council and the board. I do not think that is what the Hon. Elisabeth Kirkby intends to do. As a management board the Serious Offenders Review Council does not operate in a legalistic way. The direction being advocated by the Hon. Elisabeth Kirkby is neither necessary nor appropriate for the Serious Offenders Review Council.
As I have said, the Serious Offenders Review Council is responsible for the management of serious offenders. It makes recommendations to the commissioner concerning the classifications of prisoners. The council needs to establish the history of each offender in order to understand where a prisoner is coming from and how he or she is progressing through the prison's work, training and education programs. A prisoner will be interviewed on numerous occasions while he or she is in prison. The members of the Serious Offenders Review Council constantly visit prisons and interview prisoners in order to develop a knowledge of their history.
Every year the council deals with a large number of reports on each offender, all of which are used to assist it in determining management and rehabilitation programs. A legalistic, formalised or adversarial hearing system would completely undermine the work of the council. Victims are able to make a submission to council merely to ensure that it understands where prisoners are coming from. That is particularly important if, for some reason, a prisoner has been writing threatening letters to a victim or to the family of a victim. A victim should be given an opportunity to say, "This is the information that I have been getting". This amendment would provide for a significantly different structure; it would cause disruption; it would significantly strain legal aid resources; and it would be totally inappropriate for victims and the Serious Offenders Review Council. For that reason the Government cannot accept this amendment.
The Hon. ELISABETH KIRKBY [3.43]: After hearing the explanation of the Attorney General I am more concerned than I was before the amendment was drafted. Proposed new section 62A(1) is in the following terms:
(10) The Review Council is to observe the rules of law governing the admission of evidence in the conduct of any such meeting.
Proposed section 62A(2) reads:
This section applies to a recommendation of the Review Council to the Commissioner for a change in the security classification of a serious offender, where the change, if approved by the Commissioner, would make the offender eligible for consideration for leave of absence from prison under section 29.
The Attorney General said that the Serious Offenders Review Council is monitoring every prisoner as he or she goes through the system and undertakes training or undergoes psychiatric treatment that is offered within the system. When a prisoner comes up for reclassification the victim, who will be consulted, will have an opportunity to make a submission. This means that a victim will have an impact on the decisions taken by the Serious Offenders Review Council in respect of information it receives from psychiatrists, psychologists, educationists and medical experts. The Serious Offenders Review Council will have an ongoing role in the management of prisoners. That is amazing!
I am not unsympathetic to victims, but a person who has committed a crime, however heinous, and who has been convicted and had a penalty imposed by the court is looked after in the very best way within the system and would have availed himself or herself of the opportunities afforded by the system. That prisoner could be imperilled because of a statement which the Attorney General has already agreed could be made orally. The statement, which need not meet the onus of criminal proof, can simply be submitted to the Serious Offenders Review Council. Victim impact statements will be taken into consideration in the management of prisoners. Frankly, I am surprised that the Government has introduced such a provision.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.46]: The Hon. Elisabeth Kirkby is of the impression that victim impact statements will be the way in which information is put before the Serious Offenders Review Council. That is not so. As the Hon. Elisabeth Kirkby said, proposed section 62A will apply to a prisoner eligible for consideration for leave of absence from prison, such as work release or day leave. It would apply to a person about to come out of prison and re-enter the community. Notifications will operate in accordance with the regulations. The Hon. Elisabeth Kirkby would be aware that, under the new charter of victims' rights, victims will now be given an opportunity to indicate whether or not they wish to be informed of changes in the activities of a prisoner.
Very few people have availed themselves of that opportunity. I expect very few will. Those persons, who will be informed when a prisoner is about to come out of prison, will then seek to make a submission. As proposed new section 62A(4) states, "Submissions can be in writing only". This provision, which will operate in an informal way, will ensure that victims are informed and are able to express a view. Prisoners will then be told that victims have been given this information. The Serious Offenders Review Council will then determine whether or not a prisoner is eligible for day release with a view to returning to normal community life.
The Hon. R. D. DYER [3.48]: I listened carefully to what the Attorney General and the Hon. Elisabeth Kirkby said in regard to this amendment. I am satisfied by the explanation given by the Attorney General. The Opposition is not able to support this amendment.
The Hon. ELISABETH KIRKBY [3.48]: I thank the Attorney General for his lengthy explanation. A prisoner with a serious psychotic condition, who might have been a danger to the community and who received a sentence of 20 or 25 years, should be given an opportunity to return to the community. Inevitably, at some stage such a prisoner would have to be classified to enable him to take day leave. A person who has been incarcerated for 20 or 25 years would not be able to return to the community without rehabilitation, in the form of day leave or periodic detention. It would be deplorable to me if members of the public, particularly victims - however great their trauma might have been - believed that through the use of victims impact statements the perpetrator of the crime and the cause of the trauma could be locked up indefinitely, without any prospect of benefiting from day leave. Anybody dealing with recidivism or serious offenders might also consider that to be deplorable. There has to be the opportunity for true rehabilitation.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [3.50]: I do not disagree with the final comment made by the Hon. Elisabeth Kirkby. I agree that there has to be an opportunity for true rehabilitation. The view of the victim will always be only one of a large number of issues to be taken into account.
Schedule as amended agreed to.
Bill reported from Committee with amendments, and report adopted.
The Review Council cannot make such a recommendation unless it has given notice, in accordance with the regulations, that it proposes to give an opportunity for submissions to be made by victims about the offender.