Correctional Services Legislation Amendment Bill 2006
Reverend the Hon. Dr GORDON MOYES: On behalf of the Christian Democratic Party I speak to the Correctional Services Legislation Amendment Bill, the object of which bill is to amend the Crimes (Administration of Sentences) Act and the Children (Detention Centres) Act to prohibit prisoners who are serving sentences for serious indictable offences from providing their reproductive material for use, or storage, for reproductive purposes at hospitals and other places. The bill will ban the collection and storage of reproductive material of any such prisoners at hospitals and other places. Further, the bill will require prisoners who have reproductive material stored to pay storage charges.
It may be said that one of the motives behind this legislation is to send a message to those directly affected by heinous crimes that the Government is doing all it can to uphold justice. It is a fact that law, order and justice must be at the helm of government responsibility because those issues are inherently within the domain and scope of the Government’s control. However, in assessing this bill I am reminded of the fact that whenever an election draws close the Government often sees the need to push a tough-on-crime agenda, or law and order agenda as it is usually referred to. This can be clearly evidenced by the recent enactment of the Jury Amendment (Verdicts) Bill, the Crimes (Serious Sex Offenders) Bill and the Crimes (Sentencing Procedure) Bill, to mention but a few. I would add this bill to that category also.
In prefacing my comments on this bill, I implore the Government to consider the dire ramifications and possible precedents that may arise as a result of the passage of this bill. At the outset I must say that I cannot support the intent and spirit of this bill. However, before I explore some of the its implications, I make reference to some statistics that may assist to put this proposed legislation into perspective. Of particular interest is the number of people who will potentially be affected by the bill.
The Australian Bureau of Statistics indicates that as at 30 June 2005, there were 20,220 sentenced prisoners in Australian prisons. This represents an imprisonment rate of 163 prisoners per 100,000 in the adult population. Of the total prisoner population, 7 per cent were female and the median age of all prisoners was 32 years—in other words, the period of peak fertility. New South Wales had the largest number; that is 39 per cent of all prisoners. Given the latter fact, it is clear that Corrective Services should be of central concern to this Government.
The instant bill will affect all persons who have been sentenced for the crimes of murder, sexual assault and kidnapping—what are known as offences of an indictable nature. Without a doubt, each of these crimes is a blight on the safety, stability and security of our communities and each has had untold consequences on victims. In relation to these crimes, the Australian Bureau of Statistics, in its publication entitled “New South Wales in Focus”, indicated that in 2004 there were 68 murders and 66 attempted murders and more than 4,000incidents described as sexual assaults, whereas indecent assault or acts of indecency numbered 3,500. In addition, there were 1,700 offences in the “other sexual offences” category; and there were 400 incidents involving abduction and kidnapping.
These statistics do not accurately reflect the numbers of victims involved. In fact, the numbers of victims were higher than the numbers of incidents reported. There is also the phenomenon, particularly in the context of sexual assaults, of under-reporting. I deplore and condemn each and every crime committed and I am aghast at the number of incidents in this category. It is a sad and sorry state of affairs to note the existence of such crimes in our communities and, as was mentioned by the Liberal Party member who spoke first in this debate, we deeply sympathise with victims of such crimes and their families. The bill will affect each and every person found to have perpetrated such a crime and is imprisoned or detained in New South Wales gaols or detention centres.
As I previously mentioned, one clear Government objective is to be tough on crime. This philosophy is a mechanism to deter the commission of crimes and also to give a sense of safety and stability to our communities. The Christian Democratic Party supports the Government in its endeavours to keep our communities safe within reason and where the measures have a reasonable outcome of being effective. However, I must on closer reflection of this bill say that there are a number of poignant and very serious issues that render this bill unworthy of support. I do not think that the measures in the bill are reasonable, are merit worthy or will bring about an effective outcome, for the reasons that I will now explain.
Any observer of government will understand that the legislature, judiciary and executive have separate and distinct roles to play within society. For example, it is incumbent on the judiciary to administer justice and thus, in cases where a person is found guilty of a criminal offence, the judiciary must sentence a person in a manner commensurate with the offence committed. Sentencing legislation requires members of the judiciary to consider factors that may aggravate or mitigate the sentence imposed. In most jurisdictions, once a sentence is handed down, the offender will have a definite understanding of how long he or she is required to be detained in prison.
Importantly, members will be aware that the recent enactment of the Crimes (Serious Sex Offenders) Bill changed the state of play in New South Wales on this count. Some members of this House pointed out to the House that it is not just a matter of doing the crime and serving the time: that offenders could actually do the time, and then some! However, the general idea is that once persons have “served their time” in gaol, they should have by that time gained enough willpower to desist from committing offences in future. Put simply, imprisonment constitutes punishment and this bill endorses the Government to continue to punish offenders for crimes they have already been imprisoned for. Thus, it could be said that the Government is joining the judiciary in its punitive role. The bill goes against the principle of rehabilitation, this principle going hand-in-hand with deterrence.
There are vast social and ethical ramifications arising from this bill, and I will mention some of the more salient ones. I acknowledge the contribution made by the Hon. Dr Peter Wong, who addressed some of the ethical issues. It has been said that the genesis of this bill lies in the case of a prisoner who was suffering from cancer and who was having chemotherapy treatment. In fact, it was the Premier, and not the Minister for Corrective Services, who announced that the Government would ban the practice of collection and storage of semen specimens of criminals who had committed serious crimes, following public concern regarding a serial rapist who had sperm collected and stored prior to chemotherapy for cancer. It is not clearly known which concerned individuals or groups constituted the public concern referred to. Was it simply a matter raised on talk-back radio? Or was it some wider, and growing, public concern?
It is a well-known fact that chemotherapy is likely to cause sterility. Given this fact, this prisoner had arranged for his semen to be stored at a facility prior to his chemotherapy treatment in order to safeguard his chance of having children at some point in the future, when he was released from gaol. The bill makes it an offence for such prisoners to safeguard their chance of having children in the future. One social implication arising from the bill is to condone the view that certain prisoners should be completely cut off from participating in society. Further, and coupled with the recently passed serious sex offenders legislation, the bill sends a clear message to offenders that their potential offspring should not be given even a chance to infiltrate society. This somehow or other seems to me to embrace a weird concept of being able to pass on to the next generation acquired characteristics and the social and environmental habits in which we have engaged. Of course, this is biologically quite untrue.
The bill has the potential to effectively castrate serious offenders in certain situations, such as instances where the prisoner develops cancer and is rendered sterile through medical treatment. It is foreseeable that some may think that stopping criminals from reproducing will bring about a safer society. But, as I said, biologically that would be no mean feat. The risk of the “criminal” gene passing from one generation to another is technically and biologically impossible. Commonsense dictates that this idea is based on an erroneous assumption. There is no logic in holding that a criminal will produce children who will be criminals. Many know full well that variables dictating criminality centre on social and experiential factors—above all are the influences of peer groups and the environment in which people grown up.
Vast social and ethical ramifications arise from the bill. I will mention some of the more salient. It has been said that the genesis of the bill lies in the right of a prisoner to reproduce. Serious ethical issues are associated with this matter. Should the Government be given the ability to legislate to effectively remove a person’s ability to reproduce? In cases such as that of the prisoner with cancer, that is indeed what is occurring. The ability to procreate is an inherent characteristic of a human being. Removing this ability erodes one of the very basic God-given rights of a human. In fact, Australia ratified the International Covenant on Civil and Political Rights on 13 November 1980, article 23 of which proclaims:
The right of men and women of marriageable age to marry and to found a family shall be recognized.
One of the worrying implications of the bill is that it creates a precedent for further impingements on the human rights that are reasonably afforded to a prisoner. Honourable members will recall that only a month ago the House debated the issue of whether we should have majority verdicts in New South Wales. One of the central arguments in that debate was that a real risk exists, especially where majority verdicts are allowed, of convicting an innocent person. If this bill does become law, there is also a very real risk that an innocent person, who subsequent to imprisonment has become sterile due to medical or other reasons, will lose the ability to have children. This outcome would have devastating and untold consequences for the persons involved.
We have received many submissions from individuals and organisations that are concerned with this bill. For example, the President of the New South Wales Australian Medical Association, Dr Andrew Keegan, has expressed serious concerns about it, indicating that it infringes the right of prisoners to access the same medical services as those accessed by other members of the community.
Apart from mentioning some of the points that I have already addressed, the letter states that the bill may:
… deter some prisoners who may be less well informed and/or distrustful of authority, from undergoing treatment if diagnosed with a life-threatening illness.
It is pertinent in this context to refer to the following paragraph in a letter to our office from the New South Wales Australian Medical Association, which is dated 31 May 2006:
Although these prisoners have been convicted of serious crimes, their sentence must not preclude them from accessing the same level of health care as the rest of the population.
AMA’s Position Statement on the Health Care of Prisoners and Detainees states:
Prisoners and detainees have the same right to access, equity and quality of health care as the general population. Because prisoners will return to society after their imprisonment, their health is an issue of concern to the general population.
Justice Health’s own Annual Report lists “Equitable access” to health care among its “Values”. Its Corporate Plan ranks as its first of three “Strategic Directions” to: “Ensure equitable access to and continuity of quality health care.
Further, the letter indicates that the Australian Medical Association (New South Wales) Limited is:
… gravely concerned that the bill has been introduced in haste, without consultation, and with little consideration to its ethical impact.
The bill provides that prisoners other than serious indictable offenders who have reproductive material stored at hospitals or other places must pay for storage. This measure will be retrospective, which means that prisoners who have already had their reproductive material collected must pay for storage upon the commencement of the legislation. We agree that prisoners should not be able to store their reproductive material at taxpayers’ expense. We support the initiative that, if prisoners wish to store this material, it should not be incumbent on the rest of the taxpayers of New South Wales to foot the bill. Taxpayers, who would include the victims of the crimes perpetrated by these criminals, should not subsidise the collection and storage of reproductive material. The bill amends the Crimes (Administration of Sentences) Act 1999 by proposing a new section 72B within division 8 of part 1 of the Act. Division 8 relates to miscellaneous matters including health-related issues affecting inmates. It is worth noting that the bill will prohibit the collection and storage of reproductive material. The definition of reproductive material is confined to semen and ova and therefore does not include embryos. Had the term “embryo” been included, I am sure the Government would have roused righteous anger in the pro-life world. We do not support this bill.