Mr Finn — Not for long.
Ms PATTEN — I listened to you, Mr Finn. I rise to speak, albeit relatively briefly, on this very large Serious Offenders Bill 2018. It establishes a number of things. It expands the post-sentence scheme for existing sex offenders to include violent offenders, establishes a legal framework for placing supervising offenders into a new secure residential treatment facility, introduces new emergency detention orders to allow supervised offenders to be detained for up to seven days and provides various management arrangements for those offenders.
I understand and appreciate the reasons why this bill is being introduced and why we would want a scheme that protects Victorians from the risk of serious violent harm, protects us from the most dangerous in our community, and a scheme that would and should only be used in the most extreme circumstances on only a select few, but I do not think this bill does that.
This bill does not achieve that, because it does not strike the balance. There is no way, no matter how you look at this bill, that it strikes the balance between human rights on one hand and community protection on the other. The bill overreaches in a number of ways — the Scrutiny of Acts and Regulations Committee (SARC) report covered that. As we are quite often seeing in this house, we read the SARC report saying a bill breaches the charter of human rights, we read the statement of compatibility where it says it breaches the charter and then we still go ahead and pass it. We say, ‘Well, it breaches the charter; however, we think this legislation is still important’.
I echo the Law Institute of Victoria’s view in saying that the proposed measures are far broader than is necessary or proportionate to achieve this absolutely legitimate and important objective of protecting the community from serious violent harm. But, as a I say, no matter how you spin it, how you dress it up, this bill is just not compatible with the Victorian charter of human rights. When we are detaining people, fundamentally we should always proceed carefully. When we do detain someone and we imprison them, generally it has been judged to be proportionate to the offence and the term takes into account the sentencing considerations of the risk of reoffending and community protection. It is what we do now when we send people to prison or even give them community orders.
I would support a post-detention scheme that struck an appropriate balance, but this scheme will not, and I will highlight some of those aspects of concern to me. The net of eligible offences has been cast too wide. Recklessly causing serious injury is a fairly common offence, and therefore this bill is creating a very low bar — so low that it is an offence that can be dealt with in the Magistrates Court. In looking at a recent snapshot of court data available from our higher courts, that offence of recklessly causing serious injury does not even result in a term of imprisonment or a custodial term in around 25 per cent of the occasions that someone is found guilty of recklessly causing serious injury.
I would like to thank barrister Michael Stanton, who wrote Liberty Victoria’s comments on the bill, and he said that the test of ‘unacceptable risk’ also sets an unreasonably low bar — a bar much lower than the usual criminal standard of ‘beyond reasonable doubt’. Predicting dangerous behaviour is difficult — it is very difficult — and it is essentially based on opinion, not factual evidence, to the extent that experts in law, psychology and criminology have long recognised the unreliability of predictions of criminal dangerousness. I have not seen anything in any of the information that the government has provided around any scientific validation of the way that they are going about that risk assessment. Australian case law recognises that psychiatrists notoriously overpredict and that predictions of dangerousness have been shown to only have a 33 to 50 per cent success rate, so it is really flipping a coin, and nor do any recognised or valid scientific tools exist. I have yet to find any information that would allay my fears around the unpredictability and difficulty of predicting future dangerous activities of an offender.
I also think that when discussing ‘beyond reasonable doubt’ if we look at the fact that we have about a 50 per cent recidivism rate, the fact is that a violent offender is going to reoffend — we know that. If you were to use that test at all times, you would probably be detaining just about every single prisoner who had received a prison term for a violent offence. Quite unlike sex offender assessments, we know that the tools used in sex offender assessments — the psychological themes and tools — are a lot more predictable. With respect to this scheme, the combination of a low offence threshold with a low risk threshold and a psychiatric assessment that is more likely to be wrong than right will plainly result in a miscarriage of justice should these laws come into force.
I think the bill is also fundamentally unfair in a number of other ways. When you consider — and the Harper review touched on this as well — the prevalence of intellectual disability amongst offenders already on orders of this type, a mandatory jail sentence for a breach of conditions that includes ‘obey all instructions given by a supervision officer or a specified officer’ could also result in inherently unjust outcomes, like 12 months jail possibly for just not wanting to tidy up your room. This really is draconian. Similarly the government has not made the case as to why new emergency detention orders are necessary, particularly when the bill already provides for police holding powers up to 72 hours. So we have got the 72-hour police holding power, but we are also going to have a seven-day emergency detention order. I think it is troubling that these holding powers can be executed, also without any judicial oversight.
I recognise the important work that was completed by Justice Harper in his review, and I note that this legislation well and truly departs from his recommendations. I am not satisfied that on balance this legislation is a sufficiently proportionate instrument with its objects of keeping our community safe and ensuring that violent offenders are detained while we still feel there is a large risk of them offending again violently. I think we could achieve this through less restrictive means. We certainly should be protecting Victorian from the risk of serious violent harm, but I do not think that this legislation achieves this in a way that appropriately safeguards our human rights. We are one of the few states that has a charter of human rights, and yet constantly in bills like this we just ignore it, we put it in the bottom draw and we pay no heed to it. On that basis I cannot support the bill.