Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, the Greens will be supporting the majority of this bill. We have some things that we want to go through in the committee stage of the bill, we are concerned about one clause in particular.
We supported the original high‑risk offenders legislation that went through this place. It is for people who are convicted of a serious offence and 9 months before the end of their sentence the DPP is able to lodge an application with the court to have a person registered as a high‑risk offender. The court then makes a determination about whether a person is to be considered a high‑risk offender and what post‑release conditions that entails. These can be similar to the sorts of things a person could get on a community correction order, including electronic monitoring of the person, curfews, reporting to a community corrections officer, and another range of inhibitions on their personal freedom and their movement to constrain what has been determined by the court to be a risk to community that needs to be monitored and managed.
We accept that in principle, notwithstanding that it is beyond the period of the original sentence. It is a process that allows the court to make a determination on the DPP’s submission about the risk to the community if that person if they’re released without any conditions. This bill, as has been noted, doesn’t make any changes to the dangerous criminals provisions of the act, specifically in relation to high‑risk offenders.
Clause 4, section 3 of the bill amends the definition of ‘serious offence’ to include attempting to commit any of the scheduled offences in schedule 1. We don’t have a particular concern with this, but some questions. It isn’t about being sentenced for an offence, but it provides similar conditions that a person on parole or community corrections would receive. It is about future risk and it can’t be issued unless there is an unacceptable risk another serious offence being committed.
We have some questions in here that were outlined very clearly by TALS in their submission on this legislation. TALS is concerned that section 3 risks inconsistency, interpretive confusion, and unintended overreach. Using offence‑based categorisations over individualised assessments may detach the legal process from the social, historical, and personal factors that influence offending behaviour. For Aboriginal people who are more likely to experience intergenerational trauma, systematic discrimination and early criminalisation, they believe that this approach may exacerbate the existing disparities that occur between Aboriginal people and other people in the community. They recommend that in relation to this section 3 change, there should be clear statutory principles enunciated to guide the application of circumstances where it would be appropriate, so that the law is able to be applied consistently across jurisdictions and within this jurisdiction. They say the principles should also account for the unique historical and social experiences that shape the patterns of criminal behaviour in Aboriginal communities.
I don’t know whether the Attorney‑General has considered the development of statutory principles to guide this amendment, because it does include redefining ‘serious offence’ to include an ‘attempt’ to commit an offence. A serious offence is a criminal matter and it’s under the Criminal Code and attempting to commit an offence is in a different order to having been found to have committed an offence. What would the guidance be? What’s the intention? If you could walk us through that process, please?
In relation to clause 5, which is section 35 of the act, this allows a court to detain a high‑risk offender for up to 7 days after they are due to be released from prison, if it’s necessary for the DPP to make arrangements for high‑risk offender conditions. We’re very concerned by this. On the face of it, this is overreach and it almost encourages lax administrative arrangements. As I said before, there are 9 months for the DPP to make a decision about starting a process for a high‑risk offender application, so that the paperwork and the information will be available at the point of a person being released into the community because they’ve served their sentence. It’s a gross social injustice to detain a person for up to a week, when the bureaucracy has had 9 months to get its act together.
It looks to me like it is walking us steadily towards, for want of a better term, a police‑state approach, by not paying proper attention to the rights of people who are incarcerated. It says, once they’re in the jail, they may as well stay there for another week. Whereas, were any of us to spend a week in one of Tasmania’s prisons, I think we’d be counting every day. As are those people who would be looking forward to the end of their release and making arrangements for that time to go back into the community, to see their family, and to get engaged in society. We’re concerned about that. It is essentially the state’s failure to lodge an application in a timely manner.
The Tasmanian Aboriginal Legal Service are also quite concerned about this. They can see that it might be administratively convenient, but from a rights‑based and cultural perspective, it represents an expansion of custodial authority that may be viewed as a ‘superfluous use of custodial settings and impingement on an individual’s rights.’ They make a good point. A week in a jail costs money, that person takes up space, they have to be fed, cared for, and a whole system of imprisonment needs to continue because of an administrative failure. TALS goes on to say that this particular amendment could ‘disproportionately affect people who have limited housing, no legal representation and minimal access to post‑release support.’
Historically, as the evidence tells us again and again in Australia and in Tasmania, these issues are experienced overwhelmingly and disproportionately by Aboriginal people, and that a measure like this perpetuates an existing disadvantage. It does not try and repair it.
TALS agree with our view that an offender should not be disadvantaged by being made subject to post sentence detention, and that the onus should be placed on the DPP to make sure that an application is made with a pre-release timeframe that enables the application to be heard well enough before the end of an offender’s sentence.
They propose that an additional subsection to the Act be included that outlines firm pre-release timeframes for –
(a) Serving the offender with an application.
(b) The lodgement of documentation with the court by the DPP that can mitigate the delays that this clause seeks to redress and remove entirely the need for post-sentence detention.
That means that if it’s done in a timely way, the offender will have plenty of time to make any post-release arrangements and to seek legal advice. We support that and we will be speaking further to this in the Committee.
In relation to clause (7), Schedule 1 of the act. This adds the offences of stalking and bullying a child or young person to a range of offences that are already under the schedule in the act.
These are Criminal Code offences, and they can involve serious conduct, there’s no doubt about that. However, it is also the case that there are levels of seriousness in those types of conduct. The act as it stands doesn’t directly require any regard to be given to the seriousness of the nature of offending when the Court is making a determination about whether to issue an HRO or not.
I would like some information from the Attorney-General, if you wouldn’t mind. Who asked for these extra offences to be included? What was the motivation for including these particular two ‑ stalking and bullying? What problem is it trying to solve that has been identified throughout the process of reviewing this legislation? Where did it come from? What are we seeking to resolve here? Is there enough guidance about the difference? Because we’re changing the definition in section 3 from the range of offences in the schedule 1 to also include ‘attempting’ to commit an offence. So, we’ll also include ‘attempting to commit the offence of bullying’ and ‘attempting to commit the offence of stalking’.
I want to be clear, the Greens are not trying in any way to imply that children shouldn’t be protected from abuse and exploitation and that stalking and bullying, they are very serious offences, but we would like to understand why they are there.
The Tasmanian Aboriginal Legal Service have also asked that the High-Risk Offenders Order Assessment focuses on an individual’s responsiveness to an intervention while they’re incarcerated as well as their initial offending behaviour – that is, the reason that they were incarcerated in the first place.
The question I have, Attorney-General, is: what is the balance? I assume that in making a case for an HRO, the DPP is drawing on the behaviour of an offender whilst incarcerated. Is it their behaviour or is it the initial charge and the rationale for the sentence in the first place that the DPP make an application on the basis of that? What happens if their behaviour has changed dramatically, substantially or not at all while they’re in prison? How is that taken account of, if at all, by the DPP? Does it have to be assessed? Does it have to be included in what is provided to the Court when the DPP makes an application for an HRO? Is it something that the Court can seek information about if it’s not provided by the DPP in an application? If a person has been incarcerated for an offence and there’s no information provided about how they’ve behaved in jail, whether they’ve taken up ‑ what their actions have been like in that period of time. Does the Court get access to that information if it’s not provided by the DPP?
These are really important matters for Aboriginal people, and assessments, a treatment and reintegration plans for Aboriginal people from incarceration should be undertaken in collaboration with Aboriginal communities and leaders so that there can be culturally just and sensitive outcomes.
We are trying to close the gap in Tasmania, and that does involve a connection between the justice system and Aboriginal communities, Aboriginal elders, so that they can have an opportunity to work with offenders and help them reintegrate while, at the same time, having some say in the process of an HRO decision. How would TALS or another legal body represent a person, an offender, for whom an HRO was being prepared?
I will finish with some comments from the Aboriginal Legal Service in relation to high‑risk offender applications in general. They recommend culturally informed risk assessments, before any HRO order application, that is developed in conjunction with Aboriginal organisations and does include trauma history, community obligations, systemic disadvantage.
Has there been any engagement between your department, Attorney‑General, and Aboriginal organisations about that sort of relationship? Has there been any engagement with the Tasmanian Aboriginal Legal Service in that respect? Speaking of legal services, the Bar Association, as the honourable Labor member for Clark, the shadow spokesperson on this for Labor – she’s already mentioned the Bar’s comments about funding, and they make the good point that the Office of the Director of Prosecutions, they say, has been allocated specific additional funding in respect to HRO applications, but there is no commensurate funding that’s provided to legal services, TALS, or any other to represent people. Why not? That doesn’t sound fair to people in the community. If there is an HRO application made and an amount of money is given to the DPP, why isn’t there a similar proportionate amount of money given to Legal Aid or TALS to be able to represent offenders?
The Bar Association makes the point it’s not just the application to pay the fees of legal professionals, there are also expert reports, particularly by clinical and forensic psychologists and psychiatrists, that would be necessary to garner in order to respond appropriately in court to an HRO application and act on behalf of an offender.
It would be really good to hear if there’s a proposal in the Budget to add some more money into that area. The Greens would certainly welcome that. I thank the Attorney‑General and their staff for the information we’ve got on this bill and, as I signalled, we will be going into Committee to discuss that particular section. I will finish by saying the Greens will be supporting the bill.
