Tuesday, 17 October 2017
Statutes Amendment (Recidivist and Repeat Offenders) Bill
The Hon. K.L. VINCENT: There is so much to cover with this bill that it is difficult to know where to begin, but can I start by saying, as other members have said, that the Dignity Party is very concerned that the government is again expecting the parliament to pass a bill that was in the lower house for all of about 10 or 15 minutes and was not discussed in that house, and that has arrived in our chamber today with an expectation that we will go through all stages and pass that bill today.
I will not rehash the many points that have been made by my colleagues, the Hon. Mr McLachlan and the Hon. Mr Parnell, and to some extent the Hon. Mr Darley, but I would certainly like to put on the record that the Dignity Party shares similar concerns. The several submissions on this bill have been read by the Hon. Mr McLachlan onto the record, and I thank him for that, because it means that the rest of us will not have to do the same, but I want it known that I take those submissions very seriously.
Usually, the forming of legislation goes something like this. I will oversimplify it, because of the time, and the lack of time that we have to discuss this bill. Usually, each house of parliament, the upper and the lower house, will discuss the bill at length after it is drafted, after it has gone through consultation, after it has reached a point where all the relevant people in the community, civil and professional, are happy with it. It will pass one house and then the other, then it will be assented to and then it will become law.
Then, there is a separate arm, the court, judges and magistrates, who are expected to make judgements based on those laws and see how they might impact individual people, individual cases, that come before it. It is the judge’s or the magistrate’s job to judge how an individual law should be handed down to a particular individual person. It is our job in the parliament, usually, to make broad laws that apply to everybody, and it is the judge’s job to assess how that law should apply in individual cases.
The judge has to take into account the background of that person before them, the particular needs of that person before them, and what led that person to make the decision that has led them to be before a judge. Interestingly, this evening, the parliament is being asked—in fact, is being demanded, because we have been given no option, it would appear, but to pass this legislation today—to play both roles, to pass legislation that will apply to everyone, ultimately, all 1.7 million people in South Australia, and to be the judge, because we are passing this legislation on the strength of a particular, very difficult case. We are being asked to pass a law that affects everybody in this state because of one person.
I do not deny that it is a very difficult case. I do not deny that it is a very serious case, with very serious consequences, but I do very strongly object to the fact that I as a parliamentarian, and everyone in this room here this evening, am being asked to act as a judge. Not only that, we are being asked to act as judges with less information than a judge would have to do that job. As previous speakers have said, we have not seen the psychiatric or psychological reports that have been made about this particular young person, so we have no information, or very little information, about their background, one that I understand involves significant trauma. It is one that obviously has led them to come under the guardianship of the minister, and that is not something that happens lightly; it is not something that happens overnight. That is something that happens with significant difficulty and trauma in the life of that person. Other than that, we have no detail as to this young person.
We know, of course, that they are a young person. In other words, they are a child. They are under the age of 18, which means that their brain, technically, psychologically, biologically, has not finished forming. We know because of that they are likely to need significant investment and significant support in trying to rehabilitate wherever possible. It may not be possible. It may be possible for this person to rehabilitate, it may not be.
I do not know—I am not a psychologist and I am certainly not a judge, although I am being asked to act as one this evening—but I do know that, from the submissions and from the correspondence that I have received, it seems very clear from my perspective that this young person has not been given enough support, enough investment, enough opportunity to rehabilitate. It certainly does not appear that the significant trauma they appear to have lived through in their young life, in a child’s life so far, has been adequately taken into account in dealing with this case.
As other speakers have said, I am also very, very concerned about the fact that ultimately this bill is not even only about this very difficult and very significant case. As the Hon. Mr Darley has said, sometimes we do have to deal with cases urgently and without the time frame that we would usually expect, but it is usually because there is a case or a situation that is very significant, very serious and that could not be foreseen and that is only about that one case.
But in this particular bill, neither of those things are true because we know that this young person’s detention is due to expire on Friday (I think I am correct in saying) but we cannot possibly accept that it has suddenly occurred to the department for public prosecutions or SAPOL or the government, we cannot possibly expect that they did not know until today that that person’s detention was due to expire on Friday. We cannot possibly be expected to accept that that is oversight, that could not be foreseen, that was not predictable.
When that person was put into detention, this young person, this child—and I am going to say that word a few times because I think it is important that we are discussing the future of the life of one person who is still, biologically, psychologically, a child—I cannot accept that the government, that SAPOL, that the department for public prosecutions simply forgot or did not remember or did not foresee that that detention period would have a time limit on it that would need to be dealt with long before three days before it was due to expire.
I also do not believe that this bill is only about the very difficult case of that one young person, that one child, because as other speakers have already said, and as the Attorney-General himself has said in the other place as outlined in the quotes read by the Hon. Mr Parnell, there are other elements to this bill that are not to do with the case of this child that are arguably similar subjects in relation to which the Attorney-General thought, ‘Since I have got this bill going with this one case, I might as well whack it in there and give it a crack,’ because that is apparently the way our Attorney-General legislates in this place and in this state in 2017. If there is something remotely similar to a bill that you are already drafting, just whack it in there, no consultation, not even discussion in the house where it is introduced, the lower house, and have it pass all stages in 10 to 15 minutes.
It is not only about this one young person: it could have very serious consequences for all South Australians, particularly all those who come before the legal system and the child protection system. Also, it does not adequately deal with the particular circumstances of that one young person. If the Attorney-General expects us to act as judge, jury and executioner, then he should at least put in place measures in the bill that deal with the particular circumstances of the person we are judging, that they do have a background of trauma, that they are still under the age of 18, that their brain is still developing and that they have been failed significantly, it would appear, by the system and by those people, formal and informal, who could rightly have been expected to do more if they have ended up under the guardianship of the minister.
That is not something that happens overnight, it is not something that happens lightly and it is not something that happens on a whim, unlike the amendments or the additional factors of the bill that are not to do with this particular young person. It is something that happens to people who have had a great deal of complexity and hardship in their life.
So, in addition to targeting one particular youth in this case, the government bill also brings into force a range of measures that disregard our human rights commitments, our rehabilitation commitments and our investment commitments in the prison system and the corrections system. But, do not take my word for it: there are a number of submissions that have already been read into the record. The Leader of the Government will be pleased to know that I do not intend to rehash all of those, but there are a significant number of submissions that, I would add, have been prepared with great haste because of the lack of consultation on this bill.
Those submissions come from the Guardian for Children and Young People in this state, Ms Penny Wright (the Guardian) who has a responsibility for all young people in the situation in which this young person finds themselves. Not only that, she has actually visited that young person and made an assessment on the situation of that young person, which is much, much more than we in this chamber have had the opportunity to do, yet we are being expected to pass this bill without amendment, if the Attorney-General gets his way.
Not only does the Guardian for Children and Young People in this state have significant concerns about this bill, particularly the unamended version of this bill, but the Law Society submission, prepared as I understand only once a crossbencher alerted them to the existence and the impending passage of this bill, points out that, in its current form, this bill is in breach of fundamental principles established under the United Nations Convention on the Rights of the Child and the Beijing Rules regarding standard minimum rules for the administration of juvenile justice.
I want to say that again: this bill disregards standard minimum rules for the administration of juvenile justice. This is not some lofty, abstract benchmark that we are asking the Attorney-General to meet here: these are the standard minimum rules and, according to the Law Society, which is much more versed in how to apply and interpret laws than I, this bill in its current form does not even meet the minimum standard. Fittingly, I note that today the Australian Institute of Health and Welfare has released figures on young people in child protection and under youth justice supervision for 2015-16. Those national figures indicate that, in Australia, young people in the child protection system were 12 times more likely to also be under youth justice supervision.
Additionally, young Indigenous South Australians are 16 times more likely to have contact with child protection and youth justice supervision. These statistics indicate that it is certainly not just about this one young person. It is about a system—a system that is significantly and unacceptably failing many young people in this state, including this one young person who is allegedly the catalyst for the bill we have before us this evening, even though the measures in it go far beyond the case of this one person.
Here we have a situation where the government has not only failed to use the existing provisions that could have been used to deal with this young person under the high-risk offenders legislation, for example, or to some extent potentially under the Mental Health Act legislation. I do not know because I have not seen the psychiatrist’s or the psychologist’s report about this young person, so I do not know, arguably, whether it would have been suitable to use those pieces of existing legislation. That is why we are here tonight being asked to make sweeping and very severe judgements about this one young person.
The government has failed to use existing provisions and has failed to limit it to this one young person because we know that the bill, as it stands, has many features that are not just to do with this one young person. We know that the government and the system have apparently failed to provide this young person with the investment and the support that may well have seen them not end up in this situation in the first place. Again, I do not know because I am flying by the seat of my pants, as we all are tonight because we do not know the level of information that we arguably need to pass this bill in an informed, comprehensive way—in other words, the information that we could benefit from to do our jobs.
The situation we find ourselves in is between a rock and a hard place because, as the Hon. Mr Parnell has said, I think there may well be a case to keep some people in detention past the expiry of their sentence, the expenditure of their time, so to speak, but whether or not it is right for this person I do not feel qualified to say because I do not have the right information to help me make that judgement, nor should it be my job or anyone’s job in this room here tonight to make that judgement.
I will say, at this stage, that I believe the opposition amendments make a completely unpalatable bill and process slightly less offensive and slightly more professional, so I will, at the very least, be supporting the opposition amendments to make sure that this young person and other young people in this situation at least get supervision as opposed to indefinite detention with no support, with no investment in their ability to develop, as they are still children. Let me say it again: they are still legally and biologically children. However, pending the passage of those amendments, I will reserve my right to make a decision about the third reading of this bill after that.
I will just say at this point that I support the opposition amendments because I think they make an abhorrent bill and an abhorrent process slightly less abhorrent. I am not denying that this young person has obviously done some very serious things and needs to be dealt with but I want to make sure—and in fact I feel I would only be doing my job if we made sure—that that was being done in a comprehensive way with every opportunity for investment, for rehabilitation, for support and for the acknowledgement of the trauma in this person’s background because, at the end of the day, if we do not acknowledge that, we are not actually addressing the problem.
We are only sending this person down a path of reoffending, of being misunderstood and of being isolated, because no-one has acknowledged the real issues that have played a part in leading them to where they are today. Am I saying that with these investments they would absolutely 100 per cent not reoffend? Absolutely not, but I am saying that we owe it to this young person and to everyone in the community to actually do our jobs and make sure that we give every possible avenue the adequate exploration, investigation and implementation. So I will support the Liberal amendments and reserve my right to make judgement on the passage of the third reading, pending that.