On Tuesday the Legislative Council agreed to a censure motion and passed bills concerning the Law Enforcement Conduct Commission, special care offences and criminal procedures where defendants have mental health or cognitive impairments.

Censure of Mr David Shoebridge

On Tuesday afternoon the House agreed to a motion moved by the Leader of the Government, Minister Tudehope, to censure the Greens member, Mr David Shoebridge:

  • for his failure to publicly address community concerns about his staff member’s alleged involvement in defacing a statue of Captain James Cook in Hyde Park, and
  • for potentially endangering the local Gumbaynggirr community by travelling to a protest in the Nambucca State Forest following his attendance a large public protest in Sydney.

The Minister argued that Mr Shoebridge should have condemned the alleged vandalism committed by his staff member and that it was not an excuse to say that the alleged act occurred outside of work hours. The Minister also suggested that it was irresponsible of Mr Shoebridge to visit the Gumbaynggirr community after attending a public protest during a pandemic as he was putting the health of that community at risk.

The Opposition supported the motion, with Mr Searle stating that while Captain Cook’s role in Australian history may be the subject of debate, defacing the statue does nothing to enhance or elevate that debate. Regarding the visit to Nambucca State Forest, Mr Searle noted that members have a responsibility to conduct themselves in a manner that avoids risk to other persons, particularly vulnerable communities.

Mr Shoebridge defended his actions, observing that rather than debating this motion, members should be working to end injustices to Aboriginal people and supporting the Black Lives Matter movement. He argued that the Gumbaynggirr people invited him to visit their community and was regretful that his staff member had been the focus of such negative media attention.

The censure motion was agreed to on division (31 votes to 6) with Government, Opposition, One Nation and Christian Democratic Party members supporting the motion and The Greens, Animal Justice Party and Mr Field voting against it.

Law Enforcement Conduct Commission Amendment Bill 2020

The bill was introduced in early June and seeks to expand the criteria for the appointment of the Chief Commissioner and Alternate Chief Commissioner of the Law Enforcement Conduct Commission (LECC). Persons are currently only eligible for appointment if they are a current or former judge or other judicial officer of a superior court of record (eg the Supreme Court) of a State or Territory.

The bill is in response to a recommendation from a 2019 report to Parliament by the Assistant Inspector of the LECC, Mr Bruce McClintock, SC. The report noted that very few people meet the current criteria and this undesirably narrows the pool of persons available for appointment.

While not opposing the bill, the Opposition and the Greens noted that the current criteria was a direct recommendation of the Tink report which gave rise to the establishment of the LECC. That review was undertaken on recommendation from the Legislative Council’s first inquiry into the Ombudsman’s investigation of Operation Prospect which, among other things, considered the issue of law enforcement oversight.

In committee, four Government amendments, including an amendment to the long title were agreed to and one Greens amendment was narrowly defeated on division (18 votes to 18, with the Chair casting his vote with the noes in accordance with convention that a casting vote on an amendment should leave a bill in its existing form).

The defeated Greens amendment sought to extend the tenure of a commissioner or a chief commissioner from five years to 10 years to ensure that there is institutional continuity. The Government opposed the amendment, noting that it was inconsistent with recommendations from the Tink report as well as provisions for the appointment of the ICAC Commissioner. Revd Nile and Mr Field also spoke in opposition to the amendment with both stating that they found the Government’s arguments persuasive.

The amended bill passed the Council and was forwarded to the Assembly for concurrence. The Assembly agreed to the bill the next day.

Crimes Amendment (Special Care Offences) Bill 2020

On receipt from the Assembly the bill was declared urgent, allowing for its consideration before the winter adjournment. This bill seeks to implement recommendations made by the Legislative Council Standing Committee on Law and Justice in its 2018 report into the adequacy and scope of special care offences. The special care (sexual intercourse) offence makes it a criminal offence for an adult to have sexual intercourse with a 16- or 17-year-old who is under the adult’s special care.

While the general age of consent is 16 years of age, this offence recognises that in certain circumstances the power dynamic between an adult and a young person displaces the young person’s capacity to give free and voluntary consent to engage in sexual intercourse.

Mrs Ward, the Parliamentary Secretary to the Attorney General, moved the second reading and noted that she had chaired the Standing Committee on Law and Justice inquiry and thanked members for their considered work on such a complex issue. The bill implements four of the committee’s five recommendations, with the Government agreeing that greater clarity was required to protect young people, as well as ensuring that innocent, consensual relationships which do not involve a power disparity are not criminalised. Mrs Ward noted that the general principle that guided the committee and the Government is that a person must be in a position of authority in order for an offence to take place.

Members from the Opposition, Greens and Christian Democratic Party spoke in support of the bill, commending the work of the Law and Justice Committee as well as the Attorney General’s collaborative approach. Mr Shoebridge noted that the bill did not seek to enact one of the committee’s recommendations that employment relationships be considered as a special care offence. In reply, Mrs Ward stated that the Government did give this careful consideration, but decided that the matter was very nuanced and unlikely to be as clearly delineated as other relationship types captured in the special care offences. The bill was agreed to and returned to the Assembly.

Mental Health and Cognitive Impairment Forensic Provisions Bill 2020

On receipt from the Assembly the bill was declared urgent, allowing for its consideration before the winter adjournment. The bill introduces principal legislation which substantially amends the judicial procedures and provisions relating to accused persons who have mental health or cognitive impairments. The bill includes provisions relating to the diversionary regime for defendants, modernising language including the definition of mental health and cognitive impairment, revising the offence of infanticide, and a comprehensive range of other related matters.

In her second reading speech, Mrs Taylor, Minister for Mental Health, Regional Youth and Women stated that the bill is the result of two landmark forensic mental health reports prepared by the Law Reform Commission, recommendations from a review of the Mental Health Review Tribunal and much consultation. She stated that the reforms strike the right balance between providing care and treatment for forensic patients and acknowledging the harm suffered by victims; giving them a greater voice in the justice system.

The Opposition and The Greens did not oppose the bill, and the Christian Democratic Party expressed their full support. Members acknowledged the complexity of this area of law and the substantial consultation which occurred in the development of the bill. Speaking for the Opposition, Ms Moriarty discussed the wide range of provisions of the bill and noted that it implements a number, but not all, of the recommendations of the Law Reform Commission. The bill was agreed to and returned to the Legislative Assembly.

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We will post early next week with a bumper edition covering the Wednesday and Thursday sitting days.

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