13971 LEGISLATIVE ASSEMBLY Wednesday 30 May 2001 ______ Mr Speaker (The Hon. John Henry Murray) took the chair at 10.00 a.m. Mr Speaker offered the Prayer. CRIMES LEGISLATION AMENDMENT (EXISTING LIFE SENTENCES) BILL Bill introduced and read a first time. Second Reading Mr CARR (Maroubra—Premier, Minister for the Arts, and Minister for Citizenship) [10.00 a.m.]: I move: That this bill be now read a second time. Last Friday I announced that the Government would introduce legislation to protect the community forever from Baker, Crump and other never-to-be-released prisoners. That includes the killers of Anita Cobby and Janine Balding. The bill was approved by Cabinet in October last year—which should be borne in mind—though I was not able to announce it because of Supreme Court proceedings concerning Baker. On Friday Justice Greg James refused to redetermine Baker's sentence, which means I can at last introduce this bill and refer to it. In doing so, I keep the commitment I gave to Brian Morse in 1997 that I would do all in my legal power to protect the community and keep Baker and Crump in gaol. This bill is needed because of deficiencies in the "truth in sentencing" legislation introduced by the former Coalition Government. That legislation permits those offenders sentenced to life imprisonment before its introduction to apply to the Supreme Court for a redetermination of their sentences. The Supreme Court can replace a life sentence with a sentence for a fixed term. It can also set a non- parole period after the expiry of which the Parole Board could grant parole. In 1997 this Government introduced the toughest sentencing laws in the history of the New South Wales Parliament. I refer to the Sentencing Legislation Further Amendment Act 1997, which requires the Supreme Court, in hearing an application for a redetermination, to have regard to, and give substantial weight to, the recommendations, observations and comments made by the original sentencing judge. This bill will tighten the law even further. This bill will remove the ability of the Supreme Court to set a fixed period of sentence for a non-release offender. The Supreme Court will continue to be able to set a non-parole period or minimum sentence. It will no longer be able to set a fixed period or maximum sentence. This means that a non-release offender will never be released from custody unless a parole order is granted. Currently a non-release offender may apply for a redetermination of sentence after serving 20 years of his or her sentence. This bill will require a non-release offender to serve at least 30 years before applying for a redetermination. Currently the legislation defines a non-release recommendation to mean a recommendation or observation, or an expression of opinion by the sentencing court that, or to the effect that, the offender should never be released from imprisonment. This bill expands the definition of "sentencing court". This will make it clear that the non-release recommendation provisions apply, whether or not the non-release recommendation was made by the original sentencing court or by another court on appeal or on a retrial. This bill provides that the Parole Board may release a non-release offender on parole if, and only if, three conditions are met. First, the Parole Board must be satisfied, on the basis of a report prepared by the chief executive officer of the Corrections Health Service, that the non-release offender is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person. Second, the Parole Board must be satisfied, on the basis of a report prepared by the chief executive officer of the Corrections Health Service, that the non-release offender has demonstrated that he or she does not pose a risk to the community. That is in addition to the first provision. The prisoner has got to be in imminent danger of dying and the Parole Board must be satisfied that the prisoner does not pose a risk. Third, the Parole Board must be further satisfied that, because the first two conditions are met, the making of a parole order is justified. 13972 LEGISLATIVE ASSEMBLY 30 May 2001 These changes mean Baker, Crump and the other never-to-be-released prisoners can only ever be released on their death beds or be so incapacitated that they would pose a threat to nobody. It means that the community is protected from these killers forever. The bill also removes the right of non-release offenders to be automatically considered for parole. Currently the Parole Board is required to consider whether or not a serious offender should be released on parole on an annual basis, once the offender becomes eligible for parole. This bill will ensure that non-release offenders who have had their sentences redetermined are not entitled to any automatic consideration for parole. On a number of occasions the Government has refused to debate the Crimes (Sentencing Procedure) Amendment (Life Sentence Confirmation) Bill introduced by the Leader of the Opposition. In August last year Government members combined with members of the cross bench to defeat this legislation introduced by the Deputy Leader of the Opposition in the Legislative Council. The Government refused to debate the Opposition's bill in this Chamber because of legal advice from the Attorney General's Department to the effect that any debate might have on Mr Baker's application for redetermination of his sentence. On 27 June last year the Attorney General's Department advised: A real danger exists that any debate or statements made about the hearing could and would be regarded as an attempt to influence Justice James in his decision … If he did not adjourn— I interpose that it was a possibility that he would adjourn— then there is a danger that Baker, if the court were to hold against him, would be handed grounds of appeal on a plate. We did not want that to happen, not the least because of what it would have put Mr Morse through. My staff showed that advice to members of the Opposition before they introduced their bill. They chose to ignore that advice for short-term political gain. The Government and I were not prepared to take that risk. The Supreme Court hearing had to be allowed to take its course. Mr SPEAKER: Order! The Leader of the Opposition will have an opportunity to participate in the debate at the appropriate time. Mr CARR: This is a very technical and difficult area of the law. The High Court has struck down legislation in this area in the past. We have an obligation to make sure that we get it right. I do not want the families of these victims to suffer. Mr SPEAKER: Order! The Leader of the Opposition will remain silent. Mr CARR: They will suffer further if they are given false hope by legislation that is struck down by the High Court. By changing the criteria for parole— Mrs Chikarovski: Point of order— Mr SPEAKER: Order! If the Leader of the Opposition continues to interrupt I will not give her the call when she seeks to take a point of order. Mrs Chikarovski: Mr Speaker, I ask you to ask the Premier to refer to his own press release in which he talks about his own legislation being referred to the High Court. Why is it good enough for his legislation and not for ours? Mr SPEAKER: Order! There is no point of order. The Leader of the Opposition will resume her seat. Mr CARR: Oppositions can say anything. Governments are always speaking officially, and they have to take legal advice because the comments of the Premier or an Attorney General can end up being the grounds for an appeal to the High Court in a matter like this. I say it again: Families would be forced to suffer further if they are given false hope by legislation that is ultimately struck down by the High Court. Changes to the criteria for parole are very deliberate. By changing the criteria for parole the legislation catches Crump, whose sentence has already been redetermined and who is eligible for parole in 2003. By focusing on parole we avoid constitutional problems. The Parole Board is not a court. Parole is an Executive function. Changes to the parole rules do not affect judicial functions or judicial independence. This approach has been confirmed and endorsed by the Solicitor General. In October last year the Solicitor General provided the following advice: 30 May 2001 LEGISLATIVE ASSEMBLY 13973 In my view, there is no reason to doubt the capacity of the New South Wales Parliament to prescribe the matters on which the Parole Board must be satisfied before it directs the release of an offender on parole. In other words, Parliament can direct the Parole Board. The advice continued: It has done so, of course, since the Parole Board was established by the Crimes (Amendment) Act 1950. Accordingly, there is no legal basis, in my opinion, on which the validity of the proposed S154A might be challenged. That is our advice in October from the Solicitor General on this question of the validity of our approach, that is, determining what the Parole Board can consider and what the Parole Board can do. The Solicitor General's advice, therefore, makes it clear that the bill is within the Parliament's power. I seek leave to table this advice. Leave granted.