2nd Reading Speech

21 November 2018

The Hon. ADAM SEARLE (15:34): I lead for the Opposition in debate on the Community Protection Legislation Amendment Bill 2018. The Opposition does not oppose the bill. The purpose of the bill is to amend some of the legislation dealing with the supervision and detention of high-risk offenders and to make a number of amendments to the Crimes Act and an amendment to the Crimes (Appeal and Review) Act. This is a grab bag of a number of unconnected issues compressed into one bill to again deal with a logjam of legislation that this Government has created at the end of its eight years in office.

Schedule 2 to the bill consists of proposed amendments to the Crimes Act. A new offence is established by proposed new section 25C, which has the heading of “Amendment concerning supply of drugs causing death”. The bill explains that this provision makes it an offence to supply a prohibited drug for financial or material gain if the self-administration of the drug by someone else causes or substantially causes that other person’s death. It is a requirement to prove that the person who engaged in this supply knew or ought reasonably to have known that the supply would expose a person to a significant risk of harm. The offence will be punishable by imprisonment for a maximum of 20 years. The elements are obvious. There must be gain to the supplier, the supplier must ought to have had a particular knowledge and it applies to prohibited drugs.

Proposed new section 25C (4) provides that prosecutions can be instituted only with the approval of the Director of Public Prosecutions, which is a mechanism clearly designed as an extra precaution, which is appropriate with a quite novel offence that may have unintended consequences. Proposed new subsection (5) states that section 18 of the Crimes Act does not apply to an offence under section 25C. Section 18 is headed “Murder and manslaughter defined”. The Opposition does not oppose the bill and it is persuaded that there may be a gap in the law where quite serious criminal behaviour is not murder, manslaughter or a conspiracy but nevertheless should be rendered criminal and this provision is aimed at doing that.

The Opposition received representations from the New South Wales Bar Association recommending opposition to this aspect of the bill. Given the seriousness of the issues, it is appropriate to place the Bar Association’s concerns on Parliament’s record and the Government is asked to respond to the those concerns. The Bar Association’s briefing note states:

The New South Wales Bar Association strongly opposes the proposed amendment for the following reasons.

The first reason is that the proposed provision breaches a fundamental principle of the criminal law in this country and around the common law world that an accused person should only be held criminally responsible for events that the accused caused.

The note further states:

So far as the Bar Association is aware, it has never been the law in this country or om other common law countries that a person can be made criminally responsible for a homicide where no such causal relationship can be established. This is because, for all offences involving prohibited results, it is a fundamental principle that a causal relationship between the actions of the accused and the occurrence of the event must be established.

I note the Bar Association’s reference to Royall v The Queen and Burns v The Queen. The briefing note quotes the High Court authority that argues that the voluntary and informed act of an adult negates causal connection. What an adult of sound mind does is not in the law treated as having been caused by another. The Bar Association also states:

This legislation holds another individual responsible for the choice and act of self-administration of the second person in circumstances where there is knowledge of exposure of the other person to a significant risk of death should the second person take the drug.

The Bar Association also argues: A second reason for opposing the introduction of this new provision is that it may catch friends/acquaintances of the deceased who are involved in the drug supply and have absolutely no idea of the risk with the particular drugs involved (where there may have been some kind of contamination, an unusual concentration of drugs or an unexpected allergic reaction), notwithstanding a general awareness that there is a ‘significant risk of death as a result of the self-administration of the drug.’ Those persons may also have no idea of whether the person who the drug is supplied to has already ingested other substances or later consumes further substances which may be the substantial reason for death by virtue of a lethal combination. In some cases, it may be the combination of ingestion of alcohol with the drug use that makes for a lethal combination where the drug itself may otherwise be dangerous but not lethal. We seek the Government’s response to those issues. Schedule 2.2 makes amendments to the concealment offences of sections 316 and section 316A of the Crimes Act. As the Opposition has noted in previous debates, historically there has been controversy over concealment offences. For example, in a 1999 report the Law Reform Commission argued to abolish section 316 (1) with a dissenting minority view. Self-evidently, the Government did not accept that view. Some submissions to the inquiry argued that the moral duty to actively assist the police in their investigations should not be extended to a legal one. In June this year Parliament debated the Criminal Legislation Amendment (Child Sexual Abuse) Bill, which introduced a new concealment offence in section 316A. That new provision was aimed at the concealment of child abuse offences and was not restricted to serious indictable offences, as was section 316. The level of knowledge required of the offenders was lesser, extending not just to knowing or believing as in section 316 but also to reasonably ought to know—an objective test rather than that higher bar in section 316. This reflects the heinous nature of offences concealed under section 316A.

The amendments in this bill rewrite section 316 so that its structure more closely mirrors the more recent section 316A. Importantly, the amendment does not alter the knowledge element of section 316 and does not extend to the objective test in section 316A. A graduated penalty regime is instituted for bothprovisions for both types of offences under these sections—that is, concealment and concealment for benefit. The current maximum penalties for these offences are respectively two and five years imprisonment. The sliding scale makes for a greater maximum sentence if the offence being concealed is more serious. The maximum penalty under new section 316 (1) remains at two years if the maximum penalty for the concealed indictable offence is not more than 10 years. It is three years if the maximum penalty for the concealed offence is more than 10 years but not more than 20 years, and a five-year maximum if the penalty for the concealed offence is more than 20 years. Similar but larger scales apply to new section 316 (2) offences.

For section 316A, the scale is simpler: The current penalty remains in place for concealing a child abuse offence with a maximum penalty of less than five years imprisonment, with a penalty of five years imprisonment where the concealed offence has a maximum penalty of five years imprisonment or more. There are similar changes to the benefit offence in section 316A. The increased penalties are not retrospective, which is entirely appropriate in the law. Item [3]of schedule 2.2 makes what it seems are sensible changes by adding new section 316A (2) (g) to provide a member of staff of a school with an alternative method of reporting comparatively minor assaults at school. Schedule 2.3 increases the maximum penalty under 203E (1) of the Crimes Act to 21 years from 14 years. This is the offence of intentionally causing a fire and being reckless as to its spread to vegetation on public land or land belonging to another person. Item [2] of schedule 2.3 adds items to schedule 1A to the Crimes Act. Schedule 1A is entitled “Former Sexual Offences.”

Schedule 3 amends the Crimes (Appeal and Review) Act, which allows the release of information concerning mercy petitions, particularly petitions requesting the exercise of the prerogative of mercy. There is a reasonable number of petitions that are considered for mercy. It is a power that rests with the Governor, although in practical terms applications are considered by the Executive Council, with the real work and consideration being done by the department. In September last year the shadow Attorney General asked the Attorney General on notice on how many occasions since April 2011 the Governor had exercised the royal prerogative of mercy. The reply was that between 1 April 2011 and 19 September 2017 the royal prerogative of mercy was exercised in relation to 123 applicants. I was further advised that during that period the department received 434 applications.

In practical terms it is very difficult to receive a pardon and, given the total number of criminal proceedings, 123 pardons over six years is a comparatively small number. There are undoubtedly cases where it is entirely appropriate for a pardon to be issued. However, as the shadow Attorney General has said publicly, there seems to be something wrong about the lack of transparency surrounding the exercise of the prerogative. The vast majority of convictions and penalties are handed down in open courts. Logically, a comparable amount of public scrutiny should be available relating to pardons. Following an article by MsFife-Yeomans, the Attorney General announced a review. Submissions to the Department of Justice were called, with a closing date in February. Given that nothing happened for a period, the shadow Attorney General placed a question on notice on 16 October seeking advice as to what progress has been made, and then the bill was introduced into the House.

Schedule 1 to the bill provides amendments to the Children (Detention Centres) Act and regulation, the Crimes (Administration of Sentences) Act, the Crimes (High Risk Offenders) Act, the Criminal Procedure Act, the Surveillance Devices Act, the Surveillance Devices Amendment (Statutory Review) Act—an Act dealt with recently in Parliament—and the Terrorism (High Risk Offenders) Act and regulation. The Attorney General noted in his second reading speech that the amendments in schedule 1 facilitate the implementation of the Terrorism (High Risk Offenders) Act made last year. There are a number of technical and clarifying provisions and at least two more substantive changes.

New section 17 (1A) allows for application of the issue of a surveillance device in a correctional centre. This relates to the possibility of a continuing detention order or an extended supervision order against someone within the Terrorism (High Risk Offenders) Act. This is an expansion of the current categories for which surveillance devices can be sought. The second substantive change relates to the imposition of a standard form of conditions and obligations upon those subject to an extended supervision order. With those observations, the Opposition does not oppose the legislation.