Crimes (Serious Sex Offenders) Bill 2006
Reverend the Hon. Dr GORDON MOYES: This bill provides for the extended supervision and continuing detention of certain serious sex offenders so as to ensure the safety and protection of the community. In the lead-up to next year’s election we have seen the Iemma Government’s stance on crime firm up to an incomprehensible degree. Water cannons and riot police to control the masses have come to the fore: $700,000 is to be spent on a massive water cannon—a monstrosity that some people would recognise from media coverage of military coups overseas. There is an opportunity cost for every dollar that the Government spends in that way—such resources could be used to meet fundamental needs in education, healthcare and basic infrastructure. It is true, however, that our beloved and familiar Australia does have endemic problems in certain areas and that change is required to address these problems. But, I question the heights to which the Iemma Government will go to appear to be tough on crime.
This bill is clearly another “tough on crime” law that is guided by blatant political point scoring. It is a law that seeks to place firmly in the minds of prospective voters that the Iemma Government can be trusted because at least it is tough on crime even though its achievements on other fronts are clearly open to dispute—pollution issues on the M5 East tollway and a hastily advanced desalination plant. Many other circumstances come to mind. But, at least we can feel safe! It is a law that is similar to those promoted and passed by the former Carr Government to lock up serious offenders indefinitely. Honourable members may remember the case of Bronson Blessington in the context of these laws. There was no scope for mercy or rehabilitation within the guiding philosophy of that piece of legislation, which entrenched in law determinations that were simply judicial pronouncements with no legal effect.
There are a number of clear and present dangers in this bill, apart from its non-humanitarian nature. This law will allow serious sex offenders to be locked up indefinitely. Applications will be able to be made by the Attorney General to the Supreme Court to extend prison sentences for serious sex offenders. The Government is able to apply initially for a further five years after a sentence expires and could re-apply on an ongoing basis. The dynamic allowing for the Attorney General to petition the Supreme Court is a curious one. The judicial arm is responsible for determining the lengths of sentences for offenders, not representatives of voices for the masses—that is, politicians.
The Attorney General in particular should not impede upon the judicial arm’s responsibilities. The Attorney General is a Minister of the Crown, part of the elected government, who would not be as intimately familiar with the circumstances of a case as a judicial officer would be. A judicial officer has a vantage point in this regard because he or she may review all the evidence, both oral and written, at first-hand. I find it hard to believe that the Attorney General, even on advice and/or recommendations offered by the Minister for Justice or Commissioner for Corrective Services, in his oversight position, would be able to find the time to carefully review the file of a serious sex offender. We all know of situations where judges have sentenced persons for a period of time deemed unsuitable. However, part and parcel of each arm of government is to accept that mistakes will be made. The President of the Law Society stated in relation to the lack of rehabilitation for serious sex offenders:
Some people won’t be rehabilitated but the parole system and the system of sentencing that has been imposed by the judge takes these things into account.
When a sentence is considered inadequate or too lenient, the Director of Public Prosecutions is able within a certain amount of time to seek an appeal and a revision of the sentence. I do not know of any other situation where a person who has served his or her time for a crime is then kept in gaol by fiat of a government. Also, there is always a risk that persons that are not guilty of a law will end up in our correctional systems. We have seen that situation occur a number of times, even recently—Roseanne Catt, for example, a born again Christian who was convicted of attempting to murder her husband. Roseanne became one of the longest serving prisoners in New South Wales. A full judicial inquiry found that she had been wrongly convicted. At some time in the near future, this House will be debating the repercussions of this holding, especially the need for compensation to her. It is not unfathomable that similar situations could arise in the immediate context also.
Although this bill deals with sex offenders, it is envisaged that the Government at some time in the future could lock up indefinitely anyone who has committed an atrocious crime—with no hope of rehabilitation. This approach is guided by a philosophy that issues in the “too-hard basket” should be put on the backburner. Prisoners are not the refuse of human society. They are persons who have committed crimes and have served sentences for those crimes, and most of them hope one day to reappear in the community. This bill, however, entrenches the view that serious sex offenders have no hope of rehabilitation and no future. It entrenches the view that such offenders have no place in society. In fact, society is willing to pay for these people to be out of sight, out of mind and out of society.
Andrew Haesler, SC, from the Public Defender’s Office has said publicly that the orders would impede efforts to rehabilitate offenders. In a recent article entitled, “Thoughts on Recidivism and Rehabilitation of Rapists”, which appeared in New South Wales Law Journal Volume 28 (1), Denise Lievore argued that given the hidden nature of sex offending it is difficult to ascertain the prevalence of sex offenders in the community, let alone recidivism rates. Further, she referred to Australian studies that have found that rates of sexual recidivism range from as low as 2 per cent in some samples to as high as 16 per cent in others, with rates of violent recidivism ranging from 11 per cent to 31 per cent, and for any type of offence from 41 per cent to 61 per cent. Interestingly, she stated:
It is not clear whether low rates of sexual recidivism point to rehabilitation, lack of opportunity to reoffend, or non-detection of subsequent sex crimes … The available evidence suggests that most sex offenders are not at risk of sexual recidivism, but it is necessary to identify those who are and, in addition, risk assessment of sex offenders ought to be a core practice within correctional systems.
In concluding her article, she makes the poignant statement:
Sexual violence is not perpetrated by individuals. It is supported by social practices on a continuum that spans the macro and micro levels of social life. Criminal justice and therapeutic efforts to prevent and reduce sexual offending must therefore take into consideration the range of social contexts and practices that legitimise sexual violence in ways that are often uncritically accepted as ‘natural’ or ‘normal’. Distinctions between private and public harms, extra-familial and intra-familial offenders, dangerous and non-dangerous offenders and the individual and society, disguise the complexity and extent of the problem …
There is a clear need for methods of rehabilitation to work in the lives of serious sex offenders. I would like the Government to provide an indication of what consultation occurred in relation to this bill. I look forward to the Minister’s comments on that. From the second reading speech it seems that the bill is based on policy, but there is no evidence that any consultation occurred. We do not know what the Director of Public Prosecutions had to say about the bill. Honourable members must be made aware of the fact that recent Bureau of Crime and Research recommendations called for greater rehabilitation of sex offenders to bring down rates of repeat offending, not greater or longer gaol terms.
Has an extensive impact study been completed on similar legislation in jurisdictions in other States or overseas? I doubt it. I fear that this is simply a get tough on crime bill to appease certain members of the community prior to the forthcoming elections. I will not go into the details of the bill. It is clear from the second reading speech the purpose of the bill. Given the haste in which the bill has been brought into the House, the Legislation Review Committee has not had an opportunity to determine any of the pressing issues in the bill. I can surmise that it would have a long list of concerns to refer to Parliament. Rather than take the time of the House, I seek leave to incorporate into Hansard a letter from the Law Society about its concerns with this bill.
Leave granted.
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Dear Dr Moyes,
The Law Society is concerned that the Crimes (Serious Sex offenders) Bill 2006, introduced and passed through the Legislative Assembly yesterday, violates the fundamental principles of the criminal justice system. The Society is opposed to the Bill.
The Bill allows the Attorney General to apply to the Supreme Court to make a continuing detention order, or extended supervision order, for serious sex offenders. Continuing detention orders could be made for up to five years, with no limit on how many orders could be applied to one offender.
Predicting an offender’s future conduct is a notoriously difficult task and the High Court has recognised the unreliability of these predictions (Fardon v Attorney General for the State of Queensland (2004) 210 ALR 50 at paras 124-125). In Fardon, Justice Kirby comments that predictions of dangerousness are “... based largely on the opinions of psychiatrists which can only be, at best, an educated or informed “guess” ” (para 125).
Detaining a person beyond the maximum sentence imposed by the sentencing court offends the fundamental principle of proportionality. The Bill also undermines the established principle of finality in sentencing (subject to appeals), and has the practical effect of eliminating the relevance of the sentencing judge’s decision altogether. The provisions of the Bill amount to a new punishment beyond that already imposed in accordance with law, in the absence of a new offence or conviction on the basis of an assessment of future offending.
The Bill ignores the need for greater rehabilitation measures to be made available, and is contrary to recent recommendations by the Bureau of Crime Statistics and Research which supported an increase in rehabilitation programs for sex offenders to reduce recidivism.
The Law Society has had limited time to review the Bill, and intends to make further more detailed comments shortly. Please don’t hesitate to contact me in the meantime if you have any questions.
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