A debate has raged in state parliament this week, distilled into po-faced soundbites for the evening news, about urgently closing a loophole that allows convicted pedophiles to seek home detention.
Labor ignited the debate by referencing the case of Vivian Frederick Deboo, a notorious 74-year-old pedophile who this month pleaded guilty to multiple counts of historical indecent assault and gross indecency against two boys, and will be sentenced in the District Court in coming weeks.
He’s likely to seek home detention under a law that was passed through parliament last year with bipartisan support.
Thus, the irony of Labor’s push for “immediate” action – “there is no time to waste,” Opposition Leader Peter Malinauskas breathlessly urged – is that the new bill is specifically designed to close a loophole that was created by the former Labor Government only a year ago.
“We believe that nobody who is guilty of a child sex offence should be able to apply and have any possibility of getting access to court-ordered home detention,” Malinauskas said this week.
“Which is why Labor will be introducing into parliament a piece of legislation to close this loophole.”
It appears a worthy gambit, supported in principle – but not in its current form – by the Liberal Government.
But Labor’s former Attorney-General John Rau is not convinced the loophole even exists.
Asked by InDaily today whether his own sentencing laws, first introduced in 2015 and amended last year, have inadvertently granted Deboo the right to seek home detention, he agreed: “If he has a right, that would be the basis of it.”
“But it’s yet to be determined that he has,” he added.
He noted Labor’s new legislation was “a response to a particular concern about a particular class of offender” under the existing legislation.
The specific legislation emphasises that “a home detention order must not be made if the defendant is being sentenced… as an adult for a serious sexual offence unless the court is satisfied that special reasons exist for the making of a home detention order”.
“In deciding whether special reasons exist,” it continues, “the court must have regard to… whether the defendant’s advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) [and] whether the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody”.
The initial legislative framework was outlined in September 2015, with the then-Attorney announcing in a media release that the Weatherill Labor Government would “move to provide greater flexibility in the use of home detention, presenting an alternative sentencing option for low-risk and non-violent offenders”.
It wasn’t designed to clear the jails, it was designed to give courts a sentencing option, consistent with public safety and a good rehabilitation outcome… I still believe it’s a good idea
“This proposal will enable suitable prisoners to be released to home detention earlier in the prison sentence and the ability to spend longer periods on home detention,” Rau said at the time.
“Community safety remains the top priority… these changes recognise that low-risk offenders can be managed outside of the prison system through effective monitoring and controls.
“This is not about letting offenders off easily. Prisoners who serve periods of imprisonment on home detention conditions are rigorously monitored and supervised, and are subject to electronic monitoring.”
A few months later, Malinauskas – then a fledgling Corrections Minister – formalised the shift within the government, by declaring an ideological and rhetorical break with a phrase made infamous by former Treasurer Kevin Foley a decade ago.
“Previously we have had members of the government talking about racking ‘em, packing ‘em and stacking ‘em – which I don’t think was particularly helpful rhetoric,” Malinauskas said in early 2016.
“I will be looking at considered evidence-based decisions about how we can improve our handling of the prison population.”
Rau now disputes the home detention approach was designed to alleviate the ‘rack ‘em, pack ‘em, stack ‘em’ mentality.
“It wasn’t designed to clear the jails,” he tells InDaily.
“It was designed to give courts a sentencing option which was consistent with public safety and a good rehabilitation outcome, from the perspective that if you have people in jail with a bunch of other crooks, they’re unlikely to get much better.”
The legislation was amended a year later, specifically addressing the issue of sex offenders – thus introducing the very loophole Labor is now seeking to close. With maximum political fanfare.
Rau is not retreating from his legislation.
“I guess the bottom line is that the fundamental idea, I still believe is a good idea,” he says.
“I can accept there are needs to fine-tune it from time to time.”
For someone who has scaled the lofty heights of state political ranks, Rau was never much one for politicking.
It’s likely the hysterical tone of this week’s debate doesn’t sit well with him. Certainly, phrases such as ‘rack ‘em, pack ‘em, stack ‘em’ rarely rolled easily from his tongue.
But in the first year of a new Liberal Government, the political dialogue appears to have come full circle – with both sides determined to ‘out-tough’ each other on law and order and community safety, in a manner eerily reminiscent of the halcyon days of Mike Rann and Foley.
Given the ‘rack ‘em…’ line became synonymous with the former government’s “tough on crime” mantra, it’s worth recalling that Foley himself never workshopped it.
The time he infamously uttered the phrase was towards the end of a lengthy media conference about a new policy to detain prisoners two or even three to a cell due to overcrowding.
It was not, then, a rehearsed line. It just came to him as an ad lib.
The reason for that, as discovered by then-Opposition Leader Martin Hamilton-Smith (later a compliant member of the Weatherill government), was that Foley had, several years earlier, used the very same phrase to criticise what he saw as a hardline approach to corrections by the previous Brown Liberal government.
Following a trip to Yatala in August 1994, the young Labor Opposition firebrand noted: “If we want prisoners to go into that system and come out with a life, so that they do not reoffend, we have to give them the opportunity. It is without parallel for us to rack ’em, pack ’em and stack ’em as we are currently doing in the Adelaide Remand Centre, Yatala and all our state’s prisons…We should actually be trying to rehabilitate them…
“However, the government will never do it when it is racking, packing and stacking them in the prisons.”
Hamilton-Smith revealed this in a question to Foley several years later, adding with a trademark flourish: “You are an idiot!”
(He later withdrew the word ‘idiot’.)
Foley’s response, though, was illuminating.
“Clearly, in 1994 I was wrong,” he said.
“In 2008, I have hardened up and toughened up.”
The Liberal Opposition, he sneered, “wants to rehabilitate prisoners”.
“They want to let them out, just like they used to. On average, 58 months was the time a prisoner spent in prison under the Liberals. Under Labor, on average, it is 74 months. What is more, 500 more prisoners are in jails because… we are tough on crime; we are tough on the causes of crime.
“We are racking, packing and stacking them, and we are leaving them there longer.”
The rhetoric of ‘rack ‘em, pack ‘em, stack ‘em’, then, thus became a shorthand for simplistic, bombastic solutions to complex questions about the machinations of the justice system.
The court backlogs, the prison overcrowding… it was all a side-effect of government policy that cheerfully invested in the front-end of the system (police on the beat etc) and less on the back-end (courts and prisons infrastructure).
And a government that then sought to eschew any nuance around the public debate.
There were echoes of that approach yesterday, when Rau’s successor as Attorney-General, Liberal deputy leader Vickie Chapman, noted that “at first blush, there are some significant defects in [Labor’s] legislation” to close the Deboo ‘loophole’.
“It is beyond any comprehension to me how the Leader of the Opposition can come into the parliament and present a bill to deal with child sex offenders, yet lets terrorists and murderers and any other sexual offenders still not be covered,” she argued.
In fact, terrorists and murderers are specifically dealt with in the 2017 legislation, with a passage stipulating that “home detention [is] not available for [among others] a defendant who is being sentenced for an offence of murder; or an offence involving a terrorist act”.
Rau was sufficiently aggrieved by this erroneous claim to demand a matter of privilege, claiming Chapman had misled the House.
Speaker Vincent Tarzia exonerated her today, in reference to Chapman’s later specific assertion that “we argued, from the Opposition position at the time, the importance of ensuring that home detention should not be available to murderers, terrorists and people who commit serious sexual offences”.
“lt is clear to me that the Attorney-General in her answer was referring to the Opposition’s position at the time, and not making a statement on the current state of the law,” he noted in his judgment.
This is technically true, but Chapman repeated the line several times – including during parliamentary debate and later in a media conference – in which she was clearly making a statement on the current state of the law.
“[The Labor bill] is absolutely inadequate because it doesn’t even deal with other sex offenders, and it still lets terrorists and murderers have access [to home detention] in these circumstances,” she told media.
The upshot, then, appears to be a Labor bill that seeks to close a loophole that may or may not actually exist, and if it does, was created only last year by the former Labor Government; and a Liberal Government that refuses to support the Bill because it doesn’t address other loopholes on terrorists and murderers that also do not actually exist.
In the meantime, Chapman started her day today with an 8am press conference alongside Police Minister Corey Wingard to announce extended opening hours at the Glenelg, Henley Beach and Norwood police stations from tomorrow.
The employment of civilian administration and prosecution staff, Wingard noted with a deft turn of phrase honed by his former career as a television presenter, will mean “we’re putting more police back on the beat”.
Given the tone of the week, it was an appropriately Foley-esque flourish.
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