Comments on Serious Sex Offenders Bill 2013
The primary purpose of the Bill appears to be to protect the community from dangerous sex offenders who have failed to engage in rehabilitation during their term of imprisonment. In the Society?s view the Bill will not achieve this purpose and erodes fundamental principles of a just society. Similar legislation in other Australian jurisdictions has been found by the United Nations Human Rights Committee to breach the right to liberty.[i] In short the Society?s concerns can be summarized as follows:
- Politicisation of a sentencing process
- Denial of Natural Justice
- The cost of the scheme
- Lack of access to effective rehabilitation programs not addressed
- Broad power
The Bill would have the effect of prisoners serving their entire sentence not knowing whether or not, just as the sentence is about to expire, the government of the day will seek to have them further detained, and for an indefinite period.
In the Society?s view this it is unfair and amounts to the imposition of a fresh term of imprisonment without trial. Furthermore the prisoner is subjected to a harsher penalty than that applicable to the offending at the time it occurred.
The express inclusion of people sentenced as juveniles is also a matter of real concern (see s22 of the Bill).
As noted above similar legislation has been held to offend against Australia?s obligations under the International Covenant on Civil and Political Rights. Australia agreed to be bound by the ICCPR on 13 August 1980, subject to certain reservations. Article 2(2) of the ICCPR requires Australia to take all necessary legislative and other measures to give effect to the rights in the Convention.
Furthermore this impending further sentence would undermine and de-value attempts at rehabilitation.
The Society considers that this legislation is not only offensive to the fundamental principles of a just society, but also unnecessary. Subdivision 4 (?Indefinite detention of violent offenders?) of Part 3 of the Sentencing Act NT already empowers the Supreme Court to impose a sentence of preventive detention on dangerous offenders (including serious sex offenders).
If it is the view of Government that the range of offences to which these provisions apply is too narrow, then it would be a straightforward matter to amend section 65(1) of the Sentencing Act to broaden the definition of ?violent offence? by adding the offences set out in Schedule 1 (?Class 1 offences?) of the Child Protection (Offender Reporting and Registration) Act 2004 (NT). It may also be appropriate to replace the term ?violent offence? in the Subdivision with the term ?serious violent or sexual offence?, and to re-name the Subdivision ?Indefinite sentences for serious violent and sexual offenders?.
Although such orders are rarely made, this scheme has been tried and tested, and appears to be working satisfactorily. In some respects (such as the standard of proof required to make an indefinite detention order, and the provisions for regular reviews of such orders by a judge), the existing scheme is very similar to the proposed scheme. Importantly, however, an application to the court for an indefinite detention order is made not by the Attorney-General but either by the DPP or on the initiative of the court. Furthermore, such applications are made at or shortly after the offender has been convicted.
?Custodial supervision order? or ?sentence of imprisonment? and politicisation of the process
Although this Bill is not, strictly speaking, concerned with sentencing or criminal procedure, the effect of a custodial supervision order will be indistinguishable from having a further sentence of imprisonment imposed. The Society is concerned that the Bill amounts to politicisation of what are in effect sentencing decisions. Such decisions should be kept at arm?s length from government as is the case under the Sentencing Act. The Office of the Director of Public Prosecutions (DPP) rather than the Attorney General is the appropriate applicant.
Under this scheme, an elected politician could, in the final days of an offender?s lengthy sentence, institute proceedings to prevent the offender being released to the community. This could give rise to a reasonable apprehension that such proceedings had been commenced at least in part for political or electoral reasons.
The Society would seek amendment to ensure decisions are at arm?s length.
Costs and Funding
A further concern is cost. The Society envisages significant costs arising from this measure, which is not provided for.
It is the experience of other jurisdictions where legislative schemes of this type have been enacted) that complex and lengthy litigation results. The Society is concerned that additional funding to the Solicitor for the Northern Territory (SFNT) and Legal Aid agencies will be needed to meet the cost of conducting such complex but necessary litigation.
In addition the Society foreshadows additional cost to the Department of Correctional Services in administering, implementing and enforcing orders for detention, supervision and review which would be made under the proposed Act.
This scheme will have a very significant impact on the taxpayer.
The primary purpose of the Bill appears to be to protect the community from dangerous sex offenders who have failed to engage in rehabilitation during their term of imprisonment. The Society notes that the assessment of the risk posed by the release of the prisoner will be difficult if not impossible to make in any real way as the offender will have been removed from the community for many years.
It is submitted that this purpose is adequately served by the combined effect of the current Sentencing Act provisions referred to above, and the NT parole system, which ensures that prisoners who unreasonably fail or refuse to engage in rehabilitation are not released until they have completed their full sentence.
Furthermore offenders whose offending would place them in the category of ?dangerous offenders? can be made subject to indefinite detention orders at the time of sentencing.
Lack of access to culturally appropriate programs
The Society submits that the lack of access to appropriate sex offender treatment programs in prison is a greater cause for community concern. The Society understands that limited treatment is available via group counselling, and one-one one however this is inadequate and does not address the rehabilitation needs of prisoners.
There is only very limited access particularly to one-on-one counselling and there is a significant waitlist. The Society understands that many prefer one-on-one counselling. As with group counselling, interpreters are not used. This substantially limits access to rehabilitation for remote Aboriginal prisoners, as well as seriously curtails the effectiveness of this counselling as communication is attempted purely in English.
The most significant barrier to the effectiveness of these programs is that interpreters are not used. So even if these prisoners are able to access programs, the impact is limited.
Legal service providers have reported that their clients get sentenced, miss out on programs in custody, do not get parole, get released without supervision or support and re-offend in a similar way. It is a dereliction of duty to not provide accessible, culturally relevant sex offender treatment programs and indefinite detention is not an appropriate response to this shortcoming.
It is in the interests of all Territorians to provide these programs and arguably more cost effective than the complex litigation likely to flow from the proposed Bill. People must be given every opportunity to access appropriate rehabilitation before draconian applications for indefinite imprisonment are able to be made.
The Society is concerned about the broad power to bring an application for indefinite imprisonment.
By way of example ? ?serious sex offence? covers all offences of a sexual nature that carry a sentence of imprisonment of 7 years or more. Thus indefinite imprisonment could be sought for sexual offences falling short of the absolute worst category of offending. That is not to diminish the seriousness of sexual offences, but that to highlight that indefinite detention should only be available as an absolute last resort.
The Society remains committed to improving the law and maintaining individual rights. Importantly the Society has considered the proposed changes to the law and submits that these reforms are unlikely to benefit the public.
[i] The preventative detention of dangerous people B McSherry Precedent issue 112 Sept/Oct 2012