MS TIERNEY (Minister for Corrections) (17:31:14) — This bill deals with important reforms to the post-sentence scheme and, along with related operational reforms, will acquit the remaining outstanding legislative recommendations of the Harper review. I want to take this opportunity to thank Justice Harper, Professor Paul Mullen and Professor Bernadette McSherry for their diligent work and considerate report. In summary, the bill will repeal and replace the Serious Sex Offenders (Detention and Supervision) Act 2009, SSODSA, with new legislation that expands the post-sentence scheme to include serious violent offenders, a key recommendation of the Harper review. It expands accommodation options for offenders on post-sentence orders by providing a legal framework for the supervision of offenders in a new secure residential treatment facility that will offer a new step-up, step-down option. It will also enhance the powers to deal with imminent and escalating risk of post-sentence offenders by creating new emergency detention orders. Importantly, in line with the recommendation of the Harper review the bill also includes a requirement that the legislation be reviewed within five years of operation. I am heartened by the engagement of members on this important community safety reform.
I also note that questions have been raised during the course of the debate about ways in which the bill departs from the recommendations of the Harper review. As I have outlined during the course of the debate, these departures reflect careful analysis and consideration of the operational and legal constraints involved. Of fundamental importance is the need to ensure the continued legal validity and charter compliance of the scheme. I am confident that we have struck the right balance in terms of eligibility, noting that eligibility is not the same as suitability for an order. Ultimately it is the courts that determine which offenders present such an unacceptable risk to the community.
The new facility, Rivergum, is unique to the Victorian post-sentence scheme. There is no equivalent anywhere in Australia. This facility will provide the courts with an option to place serious violent offenders and serious sex offenders into a purpose-built intensive treatment environment. This facility provides an option for managing those offenders that cannot be safely managed on orders within the community, including in existing residential facilities. Putting serious violent offenders into a facility such as Corella Place is not desirable. It is the experience of Corrections Victoria that putting groups of violent, antisocial individuals together without strict controls on their movements can increase the risk of escalating violent offending and therefore put the community at risk.
A number of my colleagues have made comment about the costs of some of the elements of this scheme, but what price do you put on community safety? The government is unapologetic for making this investment in keeping Victorians safe.
It has been suggested that the statement of compatibility and the report of the Scrutiny of Acts and Regulations Committee (SARC) state that the bill is not compliant with the Charter of Human Rights and Responsibilities. This is not the case. The statement of compatibility is clear that the bill is charter compliant and that any restrictions on human rights are lawful and not arbitrary. The SARC report raised some questions regarding eligibility for the scheme; however, it did not find that the bill is incompatible with the charter.
In terms of the government’s proposed amendments, which have been circulated already, as mentioned by my colleague Mr Elasmar, the government has two house amendments. The first relates to the prosecution of a contravention of a supervision order. As part of the rewrite of the Serious Sex Offenders (Detention and Supervision) Act 2009, the provisions regarding the prosecution of a contravention of a supervision order were updated to reflect modern drafting. It was intended that the updated provisions would retain the current procedures in relation to proceedings for contravention offences; however, in redrafting these provisions it has been identified that the clause as drafted may give rise to some ambiguity and may have implications for how these provisions will be interpreted by the courts.
To avoid any doubt and minimise the risk of legal challenge, the government is proposing a house amendment to ensure that there is no ambiguity. This is a technical but nonetheless important amendment that will ensure that it is clear that the rules, practice and procedure of the Magistrates Court continue to apply to proceedings for a contravention offence so that: the offence of contravention of an order is an indictable offence that may be tried summarily; where the charge is to be heard and determined summarily the consent of the accused is required; and where the court grants the summary hearing for the charge the maximum term of imprisonment that may be imposed is two years.
In relation to serious interpersonal harm, which was a question from Mr O’Donohue, serious interpersonal harm is a term used in the Harper review to describe significant harm against the person, whether the offending that results in the harm is sexual or violent in nature. It is not a term defined or used in the bill. The offences in schedules 1 and 2, Mr O’Donohue, are those that result in serious interpersonal harm.
There was also a question in relation to the progress of the Post Sentence Authority. The authority has been up and running since 27 February and, under the leadership of Judge Gray, has had a smooth transition from the Adult Parole Board of Victoria. The authority is fulfilling its functions of issuing instructions and directions to offenders on post-sentence orders. The authority has held 50 meetings and considered 350 matters since its establishment. The authority has issued 101 instructions and directions. Authority members have been to visit Corella Place and the detention unit at Hopkins Correctional Centre. Judge Gray has been actively engaging with stakeholders about the authority’s operations and the authority has been reviewing coordinated service plans developed by the multi-agency panels that were also established under the governance act to ensure that agencies responsible for the provision of services to offenders are brought together and coordinated.
I should mention also that I visited the Post Sentence Authority fairly recently and met with Judge Gray, Justice Harper and a number of other board members, and I could not help but be impressed with the work that they have done and indeed how Emma has organised the infrastructure in such a newly established and important agency.
There was a question from Mr O’Donohue in terms of exceptional circumstances. It is anticipated that extensions of an intensive treatment and supervision condition for a fourth or subsequent year will be sought in circumstances where offenders residing there are engaged in treatment and other programs to reduce their risks but would benefit from a further year of intensive treatment and supervision to assist them to transition into the community under supervision, Mr O’Donohue. By their very nature exceptional circumstances are not defined in legislation. However, to assist in the debate in the house, for example, of such exceptional circumstances, it might be that an offender is close to making a therapeutic breakthrough or may be going through a period awaiting a new regime of medication to take effect.
There was also a question about what happens to those who continue to pose a risk at the end of their term at Rivergum. Because of the intensive treatment, interventions and supervision by case workers that will be provided at Rivergum to reduce the risk of the offender reoffending, it is anticipated that the majority of offenders will be successfully transitioned to being supervised in the community. Every offender required to reside at Rivergum will have an individualised treatment and supervision plan that will outline the treatment and programs that will be provided to the offender and that is directly linked to reducing the offender’s risk and how this will result in the planned transition out of the facility.
The bill does allow for extensions of an intensive treatment and supervision condition for a fourth or subsequent year to be sought in exceptional circumstances where offenders residing there are engaging in treatment and other programs to reduce their risk but would benefit from a further year of intensive treatment and supervision to assist them to transition into the community under supervision. However, where an offender becomes resistant to therapeutic benefits offered by Rivergum and poses an unacceptable risk of committing serious sex or violent offences and cannot be safely supervised in the community or a residential facility, they may be eligible to be placed on a detention order by the Supreme Court.
There was a question about what work has been done to assess other schemes in other jurisdictions. Equivalent schemes in other jurisdictions were assessed in the development of the bill, particularly the New South Wales and South Australia schemes, which apply to both serious sex and violent offenders. A number of aspects of the bill were drawn from those schemes. For example, the emergency detention order provisions in the bill are modelled on the New South Wales scheme but have been adapted where necessary to fit the Victorian context, such as the period of operation, which after careful consideration and assessment has been set to up to seven days tailored to the Victorian system in comparison to five days in New South Wales. As an example of a point of difference with other jurisdictions, most of the other jurisdictions link the assessment of an offender’s risk with the offence that makes the offender eligible for the scheme.
This means that a serious sex offender will be assessed against the risk they pose of committing a further serious sex offence only, without consideration of the risk that they may commit a serious violent offence. In contrast the bill reflects the Harper review finding that there is not always a clear delineation between sexual and violent offending. Accordingly, the bill enables the court to assess a serious sex offender’s risk of committing a further serious sex offence as well as the risk of committing a serious violent offence and vice versa. The intensive treatment and supervision condition is unique to Victoria’s post-sentence scheme and has arisen directly from the Harper review recommendations. The condition addresses the current gap in Victoria’s scheme by providing for a step up from community accommodation while also addressing key recommendations of the review by providing for investment in treatment for offenders to reduce their risk of reoffending and better integrate them back into the community.
In terms of costs, I have touched on that. Why didn’t this bill go to a select committee? I think that was a question from the Greens. The fact is that the matters in this bill have been well canvassed by the Harper review — the governance review.
Some members have noted that the government has taken some time to get the balance of this bill right. In terms of the progress of the implementation of Harper — there was a question from Mr O’Donohue — the Harper review made 35 recommendations, and as a result of the 2017–18 budget each of the 35 recommendations has been fully funded. To date 24 recommendations have been implemented, including 14 recommendations that were acquitted by the Serious Sex Offenders (Detention and Supervision) Amendment (Governance) Act 2017. The Serious Offenders Bill and associated operational reforms will implement a further 10 recommendations. The government will have acquitted all 35 recommendations with the residential service coming into operation later this year. In line with Harper’s recommendations and consistent with arrangements under the Disability Act 2006, the Department of Justice and Regulation and the Department of Health and Human Services are undertaking work together to develop a new forensic disability service to meet the needs of serious offenders with a disability. Work is underway to identify this area.
In terms of rehabilitation of offenders — I think it was a question from Ms Pennicuik — Corrections Victoria delivers a targeted suite of interventions for suitable sexual and/or serious violent offenders under sentence. Recommendations for interventions and specific treatment targets are based on the outcomes of a clinical assessment process. Intervention programs aim to directly address criminogenic need and reduce the risk of reoffending in line with the risk-need-responsivity model of offender rehabilitation. This model incorporates a set of empirically validated principles which provide direction for assessment and treatment in a wide range of offending populations.
In terms of compatibility with the Charter of Human Rights and Responsibilities, I believe I have covered off in that area.
In respect to the proposed amendments from Mr O’Donohue — and I thank the honourable member for his contribution in the debate — they would allow sitting as well as former judges to be appointed as chair and deputy chair and would exclude magistrates and Australian lawyers with 10 years of service from these roles. As the bill currently stands it provides for the long-term sustainability of the authority and ensures that the chair and deputy chair have the required expertise, experience and gravitas.
The government will not be supporting the proposed amendments as they seriously jeopardise the scheme for two reasons: moving forward, the role of the authority will increase significantly with the broadening of eligibility for the scheme to include eligible serious violent offenders as well as serious sex offenders, and it is vital that the very best appointments to the authority can be made from a sufficiently large pool of eligible and highly qualified candidates; and succession planning is very important in a small, specialist body such as the authority, providing a broader pool of qualifications to attract a deputy chair.
Motion agreed to.
Read second time.
Committed.