Dangerous Criminals & High Risk Offenders Bill (No 28) of 2020
Wednesday 11 November 2020
Second reading speech
Ms ARMITAGE (Launceston) - Mr President, I am pleased to see that the Government has introduced a bill that delivers on a mandated election commitment and that, in doing so, guidance has been taken from experts in the areas of crime and criminal justice.
The Tasmanian Law Reform Institute in its 2017 report, A Comparative Review of National Legislation for the Indefinite Detention of 'Dangerous Criminals, takes a thorough look at the current state of relevant Tasmanian law, examines the approach taken by other Australian jurisdictions and provides a number of recommendations to improve Tasmania's approach.
The bill responds to each of these recommendations and I am pleased that the advice of the TLRI has been taken seriously, and taken into account, by the Government in formulating this bill.
The current state of the law and the bill we are debating essentially allows a person to be incarcerated on the potential for future offending, with the purpose of protecting the community, not detaining someone for a crime already committed. It is a truly significant power which we vest in our judiciary.
The most important civil liberty against which the law protects is that against arbitrary detention. When we examine powers such as these, the judiciary rightly emphasises the need for restraint and caution when applying them. As a consequence, judges are already wary of imposing indefinite sentences given the inroads into civil liberties such sentences require, according to legal academic, Bernadette McSherry.
In the case of Chester v R, the court remarked that any sentence of indefinite detention should be confined to very exceptional cases, where the exercise of the power is demonstrably necessary to protect society from physical harm. The sentencing judge must be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community.
It has been remarked that current legislative arrangements are not working. On the one hand, they do not work for offenders because they are so hard to appeal and have removed, that they in effect lead to indefinite detention.
On the other hand, it was said that they do not work for victims, because these provisions are infrequently used by the judiciary because they realise the limitations and deficiencies of the current scheme and are therefore reluctant to issue such orders, as I mentioned a little earlier.
I support any measure taken by this bill to clarify the purpose and function of indefinite detention laws, to provide greater guidance to the judiciary to apply them, and to ensure that common law tests are used infrequently to avoid inconsistency and provide greater certainty for when such declarations are applied to an offender. To this end, I support the provision of a new dangerous criminal framework by the bill.
Recommendation 4 of the TLRI report states -
… it is intended to create both an indefinite (at the time of sentencing) detention regime, as well as a post-sentence preventative detention regime.
Current law requires that a dangerous criminal declaration can only be made by the judge who convicts or sentences the offender, which prohibits the making of such a declaration after sentencing if the sentencing judge has left the bench, which as I understand it has also been informed by recommendation 4 of the TLRI report.
Clause 6 of the bill sets out the prerequisites for an offender to be declared a dangerous criminal, including that the court must be satisfied to a high degree of probability the offender is a serious danger to the community, including only some members of the community.
It also provides a list of mandatory factors the court must consider in making a determination of a high risk offender declaration. Providing a list of mandatory considerations, whilst including a provision allowing the court to consider other matters it deems relevant, provides the court adequate direction, but also gives it a fair degree of discretion when making these determinations.
The establishment of a high risk offenders committee is also a positive step towards ensuring proper implementation of the legislation and to monitor compliance and ongoing cooperation and information sharing between relevant government agencies.
Clause 25 sets up the composition of this committee and will certainly contain a high degree of expertise and experience to carry out its mandate.
Building in a periodic review mechanism to the bill in Division 2 is a welcome addition so that the offenders declaration will be regularly reviewed by the court. The court is empowered to order reports in relation to the offender from medical professionals. In addition to the reports provided by the DPP, facilitated by the aforementioned offenders assessment committee, it refers the court back to the mandatory factors set out in clause 14(2) of the bill to determine whether the offender remains a serious danger to the community and obliges the court to discharge the declaration unless it is satisfied to that high degree of probability that is the case. This is entirely reasonable and strikes a good balance between the rights and risks of the offender and that of the community.
An extremely important aspect of this bill is the establishment of the second tier system. I support the introduction of a scheme to monitor serious sex or violent offenders after their release who do not meet the threshold for indefinite detention. This is also a balanced approach to what has historically been a grey area. Not being suitable for indefinite detention, but being serious enough to warrant a monitoring plan to be applied. The high risk order - HRO - can only be applied when the court is satisfied to a high degree of probability the offender poses an unacceptable risk of committing another serious offence unless the order is made, the paramount consideration expressly being the safety of the community.
With a HRO being granted, a number of ongoing conditions are placed on the offender obliging them to report their residential conditions, permitting police to enter premises and conduct searches, not leaving the state without approval and complying with directions to engage in treatment, counselling or other like activities, including a non-exhaustive list of other conditions the court may deem appropriate.
In light of this bill being brought into this place, I understand a number of amendments will be proposed after consultation with the Chief Justice of the Supreme Court. I do not believe these amendments will alter the overall policy direction and substance of this bill, but will make its operation smoother.
I am pleased to see the proactive approach His Honour has taken to protect the interests of the court, the community and any person who may be subject to an order of the kind contained in this bill. Likewise, I am pleased the Government has acted not only on His Honour's advice, but also on that of the Tasmania Law Reform Institute, whose review into national legislation of indefinite detention of dangerous criminals has significantly informed this bill.
On the face of it, the imposition of indefinite detention and placing conditions such as those associated with HROs are in contravention of the solid common law principles of proportionality and finality - proportionality being that the sentence is proportionate to the crime that has been committed, and finality being that once a sentence is completed, no further sentence ought to be imposed.
As the TLRI report points out, measures that contravene proportionality and finality are exceptions and as such should still be used only in the most exceptional circumstances. Protecting our community is also extremely important and no innocent person or people should have to be harmed when we can reasonably foresee a dangerous or high risk offender might cause such harm.
As such this bill is a welcome development. It strikes a reasonable balance to this end. It contains provisions which provide adequate guidance to the courts in making these determinations, invests expertise and knowledge in the high risk offenders assessment committee that will aid in good decision-making and, as far as possible, it protects the offender from unfair, arbitrary or unusual measures.
I support the bill.