Dangerous Criminals and High Risk Offenders Bill 2020
Ms WEBB (Nelson) – Madam Deputy President, it is NAIDOC Week. As this is the first time I have risen to speak this week I am going to take a brief opportunity to acknowledge the palawa pakana of lutruwita, Tasmania, the traditional owners and ongoing custodians of this land, the land that was never ceded. I acknowledge the muwinina people, originally of this place, nipaluna/Hobart. I acknowledge the Elders past, present and emerging, of the Tasmanian Aboriginal community.
NAIDOC Week is an important time to celebrate the rich and vibrant culture of the palawa pakana whose connection to this land extends back beyond 40 000 years and has survived invasion and dispossession.
To the bill – I welcome this bill and its progress in improving Tasmania’s indefinite detention laws. This is well overdue as our current laws have been recognised for some time as having deficiencies that have rendered them less effective in delivering safety to the community and less able to provide appropriate justice to offenders. I acknowledge the work done by the Government and those in the department to bring this bill to fruition. Consultation has been undertaken quite extensively across a range of stakeholders on the development of the bill. I note that, even today, we are likely to make amendments to the bill brought by the Government, based on further feedback from the Chief Justice of the Supreme Court provided after the passage of the bill through the other place.
In discussing this bill, it is helpful to remind ourselves of some foundational tenets of criminal justice. It is important to remind ourselves because there are instances in which this bill supports those foundational tenets and there are instances in which this bill is intentionally setting some of them aside. It is no small matter to set aside a basic concept of justice so it is important we do so, not lightly, but with careful consideration, especially in regards to balance and proportionality. It is important to remind ourselves of some key foundational tenets of criminal justice and I would highlight just a couple here, one being that a person is innocent until proven guilty, otherwise known as the presumption of innocence; another is that the onus of proof rests with the prosecution and the prosecution has to establish the guilt of a person.
A third one, which is really important, is that a person should not be punished more than once for the same offence. That is sometimes referred to as the double jeopardy rule. Additionally, I note a couple of further foundational principles, such as that a person should not be punished for something they might do but only for something they have done.
I acknowledge a principle around incarceration, which in its essence infringes upon fundamental human rights to liberty, and the deprivation of liberty is only justified by a finding of criminal guilt. The ultimate purpose of punishment through imprisonment is to rehabilitate the offender and the civil liberties we enjoy as citizens of Australia and as residents of Tasmania should only be curtailed in circumstances where it is absolutely necessary to do so. I would like us to bear those foundations in mind when we look at this bill.
The bill itself deals with the matter, as we are aware, of indefinite detention. That is, situations in which a person is deemed to be a serious danger to the community and can be further detained or otherwise supervised and monitored beyond the conclusion of their original custodial sentence.
We can immediately see that this is squarely in opposition, if you like, to some of those fundamental principles, including the principle that a person should not be punished for something they might do, but only for something they have done, that incarceration infringes upon fundamental human rights and the deprivation of that liberty is justified only by a finding of criminal guilt. Further, I think the important one there is also that the ultimate purpose of punishment through imprisonment is to rehabilitate.
We are prompted to be careful and intentional in our consideration of justice in relation to the matters in this bill. We know that the High Court of Australia has acknowledged the legality of indefinite detention in exceptional circumstances. However, even with this fact established at the level of the High Court, as we know, the devil is in the detail – and it is our job to consider and scrutinise the detail here.
We must do that with an awareness that it relates to exercising a power that fundamentally transgresses some of our core concepts and principles of justice. It is my view that this makes it incumbent on us to construct a framework for that power that has two things: a framework that has the least infringement on the personal and civil liberties of our citizens alongside the greatest degree of accountability on the state for exercising that extraordinary power.
The arrangements we have in our current laws do not get that balance right. They neither achieve the least infringement on liberties, nor the greatest degree of accountability on the state, hence we are all in agreement that they need to be improved and updated. In fact, the 2017 Tasmania Law Reform Institute research paper provides a very clear road map to reform and improve Tasmania’s current indefinite detention laws in this respect.
That review found that courts currently are reluctant to make dangerous criminal declarations because of the substantial barriers to discharging those declarations. The review made a series of recommendations to improve current laws, including recommending periodic reviews be provided in the interests of justice and to safeguard against institutionalisation.
It also identified that, unlike other jurisdictions, we had no capacity for the courts to impose conditions pre-release or post-release. Options were limited then for managing the risk of serious danger to the community in a more nuanced way. In responding to each of the recommendations in the TLRI paper, this bill improves the process of declaring and managing a person in custody whose potential for violence poses a high risk to the community.
The existing judicial reluctance to exercise the power of indefinite detention unless under exceptional circumstances is quite understandable due to the severity of that punishment it imposes on the individual and the need to weigh that against the degree of risk to community safety. However, given that the power exists, it is incumbent on the state to ensure the processes involved are as functional and effective as possible.
A clear problem with the current law was that only the sentencing judge could make a declaration, and that has presented difficulties in circumstances where the judge has ceased to hold office. Part 2 of this bill solves that problem and confirms when a declaration may be made. That now includes a range of circumstances described in the Leader’s speech that now capture a range of opportunities for declarations to be made. That is appropriate. It is functional and it is more effective.
It brings Tasmania into alignment with some other jurisdictions by providing also a list of mandatory factors for the court to consider in determining whether to make a dangerous criminal declaration. It requires the court to consider a whole range of matters, including the nature and circumstances of the offender’s criminal conduct involving violence, their antecedence, their age and character, the need to protect the community, any relevant psychiatric, psychological, medical or correctional reports and the risk of the offender being a serious danger to the community if they are not imprisoned, as well as other matters the court considers relevant.
That is quite considerable and expansive that is now a requirement of the court to give consideration to. I think that is appropriate and a substantial step forward with this bill. I note too alongside that that the test for the court to apply in making a declaration and the standard of proof required have also been aligned with those of other jurisdictions and aligned with what we would regard to be an acceptable standard within our criminal justice system.
Under this bill that onus of proof has been put back onto the state rather than on the individual in question, as has been inappropriately the case under our current laws. This change and the improvements it brings aligns very well with the core principle I mentioned earlier, which is around the prosecution. The onus on the prosecution to establish a person’s guilt rather than the person have to prove their innocence.
The bill also addresses the problem with the current laws identified in the TLRI review that there is no periodic review of dangerous criminal declarations that have been made. The bill provides for that now with regular opportunities for a declaration to be reviewed occurring at three-year intervals.
Further, it provides for an offender to apply for a review, in exceptional circumstances, of their own dangerous criminal declaration. That is a positive inclusion. There may be cases in which the offender has reason to request such a review. That may be in the interests of justice that they are now able to do so.
Again, we have some clarity provided in the mandatory list of factors for the court to consider when conducting such reviews. Again, that provides clarity and strengthens the framework and accountability that is there on the part of the state in exercising these powers.
The factors listed in that review process include whether the risk posed by the offender may be appropriately mitigated by imposing a high risk offender order on the offender, which is part of that new second-tier scheme. The availability of this option removes some of the sense of all-or-nothing that existed under the current arrangements where the court may have erred on the side of refusing to discharge a dangerous criminal declaration, keeping a person incarcerated beyond the time they might otherwise have been, at least to some degree, at liberty.
Whereas under the current laws it is difficult to remove the dangerous criminal declaration, we now have an opportunity to more readily and in a more nuanced way bring that to bear. The bill addresses this gap well and gives the court that power. Looking at the opportunity for pre-release orders during the review process or prior to discharging a dangerous criminal declaration brings that nuance further forward. That can be done either with the courts own motion or an application by the DPP or the offender. That is an important inclusion into this bill. It tilts towards a sense of justice for all those involved, including the offender in question.
Courts under this process can obtain information deemed necessary to assess that need or the benefit of the pre-release orders that they may consider. That can include looking for information on availability and suitability of programs and activities that may assist with the offender’s rehabilitation and reintegration into society.
That is a very positive inclusion. I almost hope that potentially provides an opportunity for another level of advocacy to help us ensure that offenders are given access to appropriate and effective services, programs or treatments while they are incarcerated when it is known that courts will be reviewing and looking for information about the access for those things to people who fit into the categories covered by this bill.
Under the current laws, an offender under a dangerous criminal declaration is either in prison or is released into the community unsupervised, at the discharge of that declaration. As already discussed, this can be problematic. It could result in people being kept incarcerated for longer than necessary, or released but without what may be considered an appropriate level of supervision and monitoring. Neither of these are preferable.
The new bill allows the Supreme Court to impose an HRO order as an alternative to renewing a dangerous criminal declaration. This is a positive step forward. It has been referred to as a step-down usage because it is a lighter punishment than being imprisoned entirely until the next review.
If the conditions attached to the order are breached, the offender can face two years imprisonment, so there is an appropriate penalty available for breaches.
The conditions described in the bill regarding these have been – correctly, I think – described as intensive monitoring. They are substantial, both the mandated ones and the ones available as optional.
The bill creates the HRO assessment committee that comprises government agency representatives. They have a clear role to play preparing reports, coordinating agency responses and facilitating information-sharing to advise on the management of the HRO orders.
This committee is designed to reduce the case management workload of the DPP so that it can better determine whether to apply for the extension of an HRO order. That is positive in terms of functionality and effectiveness. Again, a good inclusion in the bill.
I have an amendment for a further explicit inclusion into the membership of the HRO assessment committee, which I will speak to in the Committee stage. I also have an amendment in regard to matters that must be considered in determining whether to make an HRO order, which I will speak to later.
Mr President, I will speak briefly about an HRO order in relation to the similarity and dissimilarity to parole, just to make explicit that distinction.
The post-release conditions available under an HRO order allow for that provisional release into the community, in some ways with conditions that are similar to parole.
But for clarity, unlike parole, those measures, conditions and constraints extend beyond the custodial sentence the person served. The people we are looking at in this bill, in relation to these HRO orders, have done the time for their crime and this is additional to that time. It is quite distinct from parole in that sense, which has a definite end date aligned to the sentence the person was serving in prison.
The basis for the post-release conditions under the HRO order is that there is a risk they will commit a serious offence again. It is designed to reduce recidivism and protect the community. These are people known to be prone to violence; they have demonstrated a propensity towards that. The risk is deemed to be high to the community, and so conditions are considered such that protection can be provided and the liberty of that person can be allowed to an extent that balances against the safety of the community.
While it is accepted that is an important measure to have available in exceptional circumstances, we must remember that the reason for that exceptionality is because it contravenes some of those basic principles of justice.
Just as a reminder, it contravenes the fact that a person should not be punished for something they might do, only for something they have done. It contravenes the fact that the ultimate purpose of punishment through imprisonment is to rehabilitate.
It goes against the fact that the civil liberties we enjoy as citizens should only be curtailed in circumstances where it is absolutely necessary to do so. With that in mind, I would like to reflect on three specific areas of concern I have in relation to the HRO orders components of this bill. It is to put them as a matter of record here.
The first of those concerns relates to the application of these orders beyond simply those who have been subject to a dangerous criminal declaration. The second reading speech tells us some serious offenders do not meet the threshold for being declared a dangerous criminal, warranting indefinite detention, but who nevertheless may pose an unacceptable risk of committing another serious offence if no supervising conditions are in place when they are released post-sentence.
As well as that step-down usage for those whose dangerous criminal declarations are being discharged, HRO orders presented in the bill also to function as a step-up mechanism in some sense. That is, there is the ability to apply them to offenders who are not declared dangerous criminals, but who are deemed to pose a risk of committing another serious offence if the HRO order is not imposed at the conclusion of their custodial sentence.
I do not believe this circumstance was covered entirely in the TLRI review. I do not recall in that review reading an examination of that circumstance in detail, but I am happy to be corrected if that was covered. I think we are prompted to consider carefully where that threshold is going to land in terms of who that could or may be applied to, those HRO orders. It gives me pause to consider that threshold, knowing that thresholds can move and shift.
In the bill it does say in proposed new section 32(2) that
… the Supreme Court may only make an HRO order in relation to an offender if the court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence unless an HRO order is made in relation to the offender.
Proposed new section 34(3) also says –
… the Supreme Court is not required to determine that it is more likely than not that an offender will commit a serious offence in order to be satisfied to a high degree of probability that the offender poses an unacceptable risk.
This tells me we are anticipating that a person may come to the conclusion of their custodial sentence – the sentence the courts determined was appropriate for the crime they committed – and while not being regarded as warranting a dangerous criminal declaration to necessitate further imprisonment, they are deemed sufficiently dangerous to pose a high level of risk to the community. In such a case, the first question I would be prompted to ask is: why have we failed so catastrophically in our responsibilities as a state during their period of incarceration? Remembering that the ultimate purpose of punishment through imprisonment is to rehabilitate the offender and that a person should not be punished more than once for the same offence.
If someone concludes their custodial sentence such that they pose either the same high level of risk to the community as when they went in to prison or possibly presents an even higher level of risk than when they went in, then first and foremost I believe it is an indictment on us as a state and on our criminal justice system. Instead of our response to this being in the first instance and first instinct, the curtailing of the rights and liberties of that person through the imposition of onerous conditions and restrictions, I believe our first instincts should be to step up and ensure categorically that our prison system and broader criminal justice system is fit for purpose. We should ensure it is appropriately equipped to deliver on contemporary understandings of justice and is able to produce positive outcomes for our whole community, including community safety.
This is a failure of our system if people arrive at the end of their custodial sentence and are actually in a position to require this form of HRO order. Given this concern, I am not proposing an amendment that relates to it as it is a matter of policy and I would have needed further time and resources to consult appropriately and propose a possible solution to the concern – and perhaps there is not one. However, the concern remains and I believe it is given even more urgency by the recent Custodial Inspector’s report in this state which highlighted such devastating failure within our prison system to best serve the interests of rehabilitation. Not only does that failure not deliver positive outcomes for prisoners and the community, it is likely we are seeing negative outcomes actively driven by the situations currently in our prisons. We are seeing a worsening of circumstances for some of those who spend time in our prisons, and a higher likelihood that people will arrive at the end of their sentences in such a place that they will be subject potentially to these HRO orders.
That is not their individual failing or fault. I regard that as a systemic failing and fault of our system. That to me does not look like justice and it has to be part of that consideration of accountability for the state balanced against the least imposition on personal liberties.
My second concern I would like to highlight is around the HRO orders. It relates to the fact that they are potentially indefinite and permanent. The current bill we have puts the maximum at five years per high risk offender order. That is in proposed new section 38(2)(a), but there is no cap on that order being renewed indefinitely.
It may be that those circumstances do not arise. It may be that in practice, high risk offender orders are imposed and they may not even be imposed for the maximum of five years. But they may in some circumstances – and certainly the bill provides for this – be put at the five-year maximum; they may be reviewed and reapplied, reviewed and reapplied. It could create a situation where, for example, an offender who has served their custodial sentence is no longer declared a dangerous criminal in the context of being kept incarcerated, but they could then have significant constraints on their civil liberties for an indefinite period of time, perhaps the rest of their life.
The punishment if they breach one of the conditions is fairly substantial. We know it can be up to two years so there is quite a hefty penalty hanging over their heads.
I have concerns about the potential indefinite nature of those orders. I do not believe that represents consistency with some of the principles and purposes of criminal justice, particularly those principles around a person not being punished for something they might do but only for something they have done. The ultimate purpose of punishment and the constriction of civil liberties to this degree is punishment. The ultimate purpose of punishment should be to rehabilitate an offender, and I do not believe necessarily that the outright imposition of these constraints, in and of itself, delivers rehabilitation to the offender.
Again, I have not proposed an amendment in relation to this concern that I am expressing here. I looked at a possible amendment that would have put an absolute time limit on any HRO order or sequence of HRO orders, perhaps a time limit that corresponded to the period of that person’s original custodial sentence. Due to the complexity of that drafting and the need to give a more comprehensive consideration to framing it up, I have not pursued that amendment. However, I am registering the concern here potentially for future discussion.
My third and final concern is that HRO orders in this bill are really a matter of balance. With these orders, all the constraint and conditions are put on the person, the individual, under the order, and none are effectively put on the state in my reading of this.
Proposed new section 37(1), things that must be included in those orders, and proposed new section 37(2), things that may be included in terms of conditions and constraints, are extensive.
The person can have almost every aspect of their life constrained in some way: their activities, their associations, their employment, the place they live, the things they consume even, as discussed in briefings.
As a state, we are placing such onerous constraints on the civil liberties of a person who has already served their time for the offence they committed and were doing so against a fundamental justice principle, the one that says a person should not be punished for something they might do. Given that, I am concerned that when I think about the balance here, I do not see any legislative expectation or requirement that the support and the treatment and the rehabilitative needs of that person are to be met by the state.
If we give ourselves the right to do this – that is, impose such onerous restrictions in these exceptional circumstances – where is the recognition, the explicit recognition and acceptance of the responsibilities that we as a state should bear to accompany that right to impose and exercise that power? I have some comments from some lawyers regarding this and I will read one of them. It said –
The only comment I add is that some of my barrister colleagues in New South Wales during a conversation I had regarding these laws opined that similar laws operate in New South Wales and serve as a source of injustice. We would be better served with intensive post-release rehabilitation programs that focus on drug and alcohol abuse, life skills, education and employment. All of the evidence demonstrates rehabilitation deters and reduces offending; draconian laws do not.
In a separate piece of communication from another legal colleague –
In terms of taxpayers’ funds, a much better use of resources would be intensive support, not monitoring.
I was interested to receive those comments because they align with what I am trying to get at here – we have all the legislative emphasis on constraint of the individual and no explicit accountability put on the state to deliver on the rehabilitative side of things that would be required and should be expected alongside the constraint. How can we moderate, in the service of justice, the deprivation of civil liberties that occurs under high risk offender orders in the pursuit of community safety?
One way to ensure we are not putting these onerous constraints on people in a manner that is simply set-and-forget, is that we ensure we do not do that because we look at them more frequently. I am suggesting in an amendment that we set a maximum of only three years for the maximum operational period of an HRO order. I will speak more about that in the Committee stage. But doing that means we are not setting-and-forgetting; we are accepting this is something we should be on the front foot about – ensuring it is appropriate and set at the right level.
In light of the fact the order could well be on this person for the rest of their lives and people’s circumstances can change, it is reasonable to review the extent of an order at intervals of, at most, three years. This helps balance this ledger where we as a state, accept a level of responsibility to ensure this power is being exercised appropriately. The review of the order could result in conditions being removed or adjusted. It allows us as a state to be confident we are exercising this extraordinary power as lightly as possible.
In light of those three areas of concern I have outlined on the HRO orders, which were the application beyond the dangerous criminal declaration, the potential indefinite nature of them and there an imbalance between constraints put on the person and responsibilities accepted by the state, I ask the Government to make a commitment for a formal review of the application of this new act within a timely interval to assess its functioning and impact.
That review should be undertaken by an independent body, such as the TLRI, and should, amongst other things, give consideration to some of those specific concerns I have raised and perhaps there will be some others raised by other members. I would be interested also, separately to have an understanding from the Government today about what it expects in relation to the numbers of Tasmanians who may come under the powers laid out in this bill.
The deficiencies and problems of the current laws have deterred, to some extent, their use by our courts. With the changes brought in by this bill, where we see some of those problems and deficiencies addressed, may we then expect to see greater usage of the dangerous criminal declarations, for example? Also, with the inclusion of the high risk offender orders in this new bill and the benefits that could bring in some measure in terms of nuance and appropriateness, what level of use are we anticipating with those newly created HRO orders?
What is the expectation? It would be useful to be reviewed and certainly reported on in coming times to see what the impact may come from the new approach.
I acknowledge that whatever the numbers are in terms of this new bill and its application, whether it be the dangerous criminal declaration or the HRO orders, I am in support of the improvement this bill will deliver. It certainly will deliver us confidence far beyond what we have currently that these powers are being exercised in a more robust framework in the service of justice. The bill is a positive step forward regarding the indefinite detention arrangements in this state.
It is my intention to highlight that, as good as this improvement is on what we have currently, it is important, because of the extraordinary power in this bill, that we do not take our eyes off the impact it has and the future ways we might assure ourselves of the appropriate balance between constraints on individuals and responsibilities and acceptance of responsibilities by government.
I thank the Government for the work done on this bill, for the improvement that it offers, and I support it in a broad sense.
