Alister Henskens portrait
Alister Henskens portrait

Crimes (High Risk Offenders) Amendment Bill 2016


Mr ALISTER HENSKENS ( Ku-ring-gai ) ( 12:17 :28 ): The speech we just heard from the member for Ballina on the Crimes (High Risk Offenders) Amendment Bill 2016 highlights the strong philosophical difference between those who would put individual liberties above all else and those who recognise that in a truly free society there must be a balance between individual liberties and community liberty. The United States introduced a bill of rights in which individual liberties are paramount. When individual liberties are a paramount consideration over community liberties there are uncomfortable consequences. For example, in the famous United States Supreme Court decision of National Socialist Party of America v Village of Skokie the individual right to the freedom of expression allowed American Nazis to march down the streets of a quiet suburb of Chicago which had the highest concentration of holocaust victims outside of Israel and to peddle their hatred under the guise of freedom of expression. Every person's individual rights potentially come at a societal cost.

We just heard that the member for Ballina would prefer seriously dangerous individuals, even if extremely small in number and clearly identified, to be released into the community to kill, rape or seriously harm the community before the law will act to protect the community. This law which the Parliament is being asked to pass would ensure we do not achieve that result. In the history of our country it is true that balancing individual liberties and the community's right to safety has been at times a difficult road.

In 1996 the High Court struck down the Community Protection Act 1994, a piece of legislation of this Parliament, in the famous case of Kable v Director of Public Prosecutions (NSW) reported at (1996) 189 CLR 51. In that case the Community Protection Act 1994 enabled Gregory Wayne Kable, a party to the proceedings, to be permanently detained. The High Court struck down that legislation as not being an appropriate exercise of the power of this Parliament and as an interference in the proper exercise of judicial power. In 2006 this Parliament passed the Crimes (High Risk Offenders) Act which more appropriately balance community rights and individual liberties.

The Act in question to be amended by this bill allows for the supervision and detention, but only in limited circumstances, of high-risk offenders. Originally the legislation dealt only with high-risk sex offenders. In 2013 this Government recognised the need to extend the regime to high-risk violent offenders who can equally pose a risk to community safety. The important purpose of this small amending bill is to protect our community from a small number of dangerous individuals. Under the 2013 legislation a technical limitation in the drafting has been identified, which requires correction through this piece of legislation. Under the 2013 Act the legislation covered offences for people who caused the death of another person or caused grievous bodily harm.

The technical limitation in the drafting of the 2013 Act gave rise to a concern that the definition of "serious violence offence" in the Act could apply haphazardly to some criminal offences but not others of objectively greater seriousness. This bill will clarify that the Act applies to violent offenders who have been imprisoned for offences of wounding with intent to cause grievous bodily harm, manslaughter by an unlawful and dangerous act and murder that occurs in the course of committing another serious crime, known as constructive murder. The manner in which the Act operates is that an application is required to be made to the Supreme Court and the Supreme Court then conducts a hearing to determine whether it will make orders under the Act.

In assessing whether an extended supervision order or continuing detention order is needed, people's offences are looked at alongside other factors, including their criminal history, their pattern of offending behaviour, psychiatric and psychological issues, institutional behaviour and the offender's attempts to rehabilitate themselves, including their participation in prison programs. Expert evidence, including reports by independent psychiatrists and psychologists who have examined offenders, is provided to the Supreme Court to inform its decision on the offender's risk of reoffending.

It is important for the member for Ballina and others who speak against this bill to understand that it will facilitate a judicial process by law officers of the Supreme Court—our judicial officers—based on evidence, and that this does not allow for any arbitrary or unjustifiable interference with individual liberties. In fact, offenders who are subject to orders under this legislation are given every opportunity to provide evidence to the court to suggest that orders ought not to be made, or to make submissions to the court as to the form of the order that the court would make and the type of regime of supervision or detention that is put in place.

If an order is made for detention under this legislation offenders are regularly interviewed by a clinical committee and referred to programs to address the causes of their offending. Offenders supervised in the community are subject to conditions imposed by the court such as regular reporting to Corrective Services, electronic monitoring and participation in treatment and rehabilitation programs. This important piece of legislation will protect our community. If those who are advising the Attorney General identify technical limitations in legislation, it is important for those technical limitations to be corrected. It is regrettable that the member for Ballina spoke against the attempt by this Parliament to clarify and ensure that courts and individuals are treated with clarity.

Mr ANDREW GEE: It beggars belief.

Mr ALISTER HENSKENS: It beggars belief, as the member for Orange said. This bill is part of a troika of legislation that has come before this Parliament in the past two weeks—legislation introduced by the Premier, the Minister for Justice and Police, and the Attorney General. We passed legislation introduced by the Premier to protect the community from the threat of terrorist attacks. The Minister for Justice and Police introduced legislation to facilitate serious crime prevention orders and this bill by the Attorney General will tighten up legislation already in existence that will protect the community against dangerous and violent individuals. I commend the bill to the House.