CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 27 September 2011.)

Clause 7.

The Hon. I.F. EVANS: I move:

Page 4, lines 26 and 27—Delete the lines and substitute:

Section 9(1)—delete subsection (1) and substitute:

(1) The CE must, not later than 31 October in each year, submit to the Minister a report on—

(a) the operation of this Act and the work of the Department for the financial year ending on the preceding 30 June; and

(b) any other matter as the Minister may direct.

In moving this amendment, I wish to explain it, and others that follow, because the others are consequential and it will make it easier for the committee to understand what we are moving. The committee might recall that I have previously had legislation before the house attempting to introduce a system whereby, if prisoners receive a compensation payment from the government for an injury that occurred whilst in prison, that money should be quarantined and the victim of that prisoner's crime outside the prison should have access to that money by way of, essentially, a victims of crime type payment.

It has taken three years to get to this point. All the amendments standing in my name go to introducing this particular scheme. There are schemes operating in Victoria and New South Wales that are very similar to this. My understanding is that the government will be accepting the amendments, and I congratulate the minister and thank him for taking them on and agreeing to them. I really do not have a lot more to say. In essence, the scheme is very simple, and I think the principle is a good one.

This shows the benefit of parliamentary travel. I picked this idea up while in New South Wales, meeting some people over there, and I thought that it was a good scheme to bring back to the state. The issue, to me, is very simple: why should the victim of crime miss out on the money if the money is available through the system? It seems to me a good principle to put into the legislation, and I am hoping that the committee will support this amendment and, ultimately, the principle.

The Hon. A. KOUTSANTONIS: It is the government's intention to support these amendments, and I wish to put on the record my thanks to the member for Davenport for moving them. This is very much the house at its best, when the opposition puts up amendments that the government accepts. I could quite easily have drafted these amendments myself and taken credit for them, as both sides of politics in the past have done.

I believe the parliament works best when you get ideas from other people; the member for Davenport has been such a member and has brought up ideas that have been very successful. I want to thank him for his cooperative approach in the way we have done this. He has waited very patiently to get this through. I think it is fair to say he feels probably a little frustrated with the process, and I would not blame him. I would like to thank the member for Davenport for his patience and for drafting these amendments.

Amendment carried; clause as amended passed.

Clauses 8 to 13 passed.

Clause 14.

Ms CHAPMAN: I move:

Page 5, line 29 [clause 14(2), inserted subsection (4)(b)]—

After 'suspected' insert 'on reasonable grounds'

I have traversed a number of these amendments during the course of the second reading contribution and so, in some attempt to expedite the process, I do not propose to speak at length to them, except the more recent amendment, which I have tabled, and I foreshadow that there will be some contribution on it.

Essentially, this is an amendment to add the qualification that the police need to have a threshold requirement of having reasonable grounds for suspicion before they are entitled to have a prisoner released into their custody for questioning. It is a qualification; it is a reasonable threshold. We consider that it is necessary to potentially prevent any abuse, and we would hope that the government is supportive of this amendment.

The Hon. A. KOUTSANTONIS: The government does not support this amendment. We believe our police are the very best in the country. We do not believe that they abuse it. We already expect police to interview prisoners only on reasonable grounds. This provision merely allows prisoners to be taken off site, and that is for their protection. Obviously, when prisoners are interviewed in the criminal justice system within the perimeter of a prison, it is often difficult for those discussions to be discreet. It is much better for us that that they be done off site. That is a recommendation of the police commissioner, and I ask members of the house to support the government.

Amendment negatived; clause passed.

Clauses 15 to 20 passed.

Clause 21.

Ms CHAPMAN: I move:

Page 9—

Line 25 [clause 21(5), inserted subsection (4)(d)]—Delete '16' and substitute: 18

Line 28 [clause 21(5) inserted subsection (4)(d)]—Delete 'a child sexual offence' and substitute:

(a) a child sexual offence; or

(b) an offence involving domestic violence where the person was a victim of the offence.

Amendments Nos 2 and 3 standing in my name seek to amend clause 21. This is to facilitate an amendment in age of the restrictions when there is a visiting service. Clause 21 proposes that correctional service visitation arrangements have flexibility in identification processes to allow for cultural factors, also to restrict persons under the age of 18 from visiting convicted child sex offenders, and to restrict victims of domestic abuse under the age of 18 from visiting a prisoner where that prisoner has been convicted of a domestic violence related offence against the visitor.

The opposition's consultation on this, to expand the number of victims by age from 16 to 18 years, comes after consultation and advice also from Ms Nelson QC, who is the chairman of the Parole Board of SA, and otherwise for reasons I have outlined in my second reading speech, I move the amendments in my name.

The Hon. A. KOUTSANTONIS: The government will accept amendment No. 2 but not No. 3. It is the government's intention to accept the amendment to lift the age from 16 to 18. We think this is a good amendment, and it refers to the proposed government amendment to prevent under-age visitors from currently visiting child sex offenders.

The opposition then goes a step further to attempt to further restrict visits from child sex offenders to include victims of domestic violence offenders visiting a perpetrator. I accept that the intentions of member are well intentioned, but implementing the proposal will be entirely dependent upon the relevant information being provided to the Department for Correctional Services.

Currently, such information about domestic violence victims, or existing domestic violence victims, is not consistently provided to the Department for Correctional Services. In cases where the Department for Correctional Services has such information about domestic violence offences and restraining orders, such visitors can already be banned from visiting. So, we already have the power to deal with it if we know about it.

Under section 34(3) of the Correctional Services Act, the general manager of a prison may ban someone visiting if special reasons exist for doing so. Of course, we are completely committed to protecting victims, but it is completely dependent upon the information being made available to us. In this regard, we maintain a victims' register for those wishing to register with the department in order to be fully informed of a prisoner's progress throughout the prison system, placements, applications for release, etc. However, in some cases, information and details of the victim are not always known to the department. Given that it is not currently feasible to appropriately implement such a requirement due to the unavailability or inconsistency of the relevant information we are provided, we cannot support the second amendment.

Ms Chapman's amendment to line 25 carried; Ms Chapman's amendment to line 28 negatived; clause as amended passed.

Clause 22.

Ms CHAPMAN: I move:

Page 9—

Line 35 [clause 22, inserted section 35A(2)]—Delete 'at' and substitute: 'before'

Line 39 [clause 22, inserted section 35A(3)(a)]—

Delete 'who represents the prisoner' and substitute:

'acting in his or her professional capacity'

Page 10, after line 2 [clause 22, inserted section 35A(3)]—After paragraph (c) insert:

(ca) a Member of Parliament; or

(cb) a Visiting Tribunal; or

(cc) an inspector of the correctional institution in which the prisoner is detained; or

Prisoner communication can be monitored only with prior notice. Essentially, this would replace the word 'at' with the words 'prior to'. A letter sent by a prisoner cannot be monitored if it relates to communication with the entities listed under section 33(7), being exempt, together with the Health and Community Services Complaints clause (clause 19(3)), or a person acting in the capacity of a legal representative. Again, I traversed this at length during the second reading, and I urge the committee, and the government in particular, to support these amendments.

The Hon. A. KOUTSANTONIS: In relation to the amendment the member for Bragg has moved, while I understand her intention, her amendment seeks to alter the draft amendment proposal of a new section 35A, which provides that the CE 'may monitor or record a communication between a prisoner and another person' and provide for a procedural way for the monitoring or recording of communications of the section. In my view, changing the wording does not alter it, so I do not see the amendment as necessary.

Amendment No. 5 is a little different. This amendment seeks to alter the draft wording of the bill in regard to a prisoner's legal representative when referring to the proposed new section that provides for the monitoring of a prisoner's telephone calls. What I am concerned about is that the initial intention of this is to make sure that we protect legal professional privilege between a prisoner and their lawyer. However, inserting 'acting in his or her professional capacity' raises concerns about what may be transpiring in those meetings.

What the government is specifically concerned about is outlawed illegal organisations having representatives who might not be engaged as their lawyer giving them instructions on what to do with other witnesses, what to say in a criminal hearing and giving instructions that may be asking them to commit further crimes. I have no problem with a prisoner and their lawyer having confidential discussions. The government supports that. I do have a concern with someone who is not engaged as that prisoner's legal representative having privileged conversations with an inmate. Therefore, the government cannot and will not support this amendment.

The government supports amendment No. 6. I support the member for Bragg's initiative that conversations by members of parliament with their constituents should be privileged, absolutely. It is a fundamental tradition of this house that, if a member of parliament wishes to discuss any matter with a constituent, it should be done in private. We will be supporting this amendment and, I think, passing it on to a visiting tribunal and a visiting inspector is also a good thing. They are people who have been trusted by the department with a range of issues regarding investigating accusations and charges. Prisoners should feel they have the right to speak to a member of parliament freely without it being recorded or there being any retribution by the department—not that the department would, of course. So I accept amendment No. 6 but not amendments 4 and 5.

Ms CHAPMAN: In response, goodness, in that last speech, minister, I thought the Hon. Ivan Peter Lewis had returned. Anyway, I welcome the minister's support of amendment No. 6, the right to speak to a parliamentarian.

What I do want to say is that I am disappointed that the minister is not indicating support for amendment No. 5. If ever there was a 'reds under the bed' phobia, it would be the period between when a lawyer takes instructions and establishes the relationship, which I outlined in the second reading speech clearly should be covered.

I am most disappointed that the minister should attempt to frustrate that early part of the relationship without protection and suggest that it would be abused in some way by members of the legal profession who would use it to transfer information—which sounds to me like conspiring to commit an offence, at least, but also to breach the prison regulations in respect of tampering with, interfering with or conveying information to a witness or another prisoner. I find it an extraordinary allegation that such a move would facilitate that kind of conduct by members of the legal profession.

There may be certain examples of which the minister might be apprised where such a practice has been undertaken, or even one example of that, and where the government has referred that matter to the Law Society or, indeed, the police for some reform in relation to that. There is the disciplinary tribunal, and the Supreme Court, ultimately, can be an arbiter on that. But if any such conduct has been identified as a problem, we would expect the government to have acted on it and be prepared to provide some demonstrative example of that for the purposes of denying this amendment. I note the minister's position with disappointment.

The Hon. A. KOUTSANTONIS: As I said before, I am not impugning the legal profession, and I listened with interest to the member's remarks, yet she was quite happy to impugn motives on our South Australia Police in a few earlier amendments about taking prisoners out for questioning. However, I will say this: legal professional privilege does not exist between a lawyer and someone who is not their client.

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: All they have to do to have privilege is to sign up. If the member for Bragg thinks that someone being interviewed by a lawyer and information that client may give that lawyer in that interview somehow—

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: The member for Bragg interjects that it is usually about guilt or innocence. If a lawyer is shopping around for guilt or innocence then I suspect—

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: That is what you just said. You said that the conversations pre engaging are about guilt or innocence.

Ms Chapman: No; fees agreement.

The Hon. A. KOUTSANTONIS: Fees agreement. Well, that is a different matter. I am not sure why fees agreements would want to be privileged. So, professional privilege does not apply to anyone else who has not got a lawyer, but apparently should apply to a prisoner. I do not think that is fair.

Ms Chapman's amendments to lines 35 and 39 negatived; Ms Chapman's amendment to page 10 carried; clause as amended passed.

Clauses 23 to 38 passed.

Clause 39.

The Hon. A. KOUTSANTONIS: I move:

Page 13, after line 34—After subclause (2) insert:

(3) Section 51(2)—delete subsection (2)

The current wording of subsection (2) enables a defence for introducing a prohibited item into prison. It is felt that this subsection is unnecessary and not in keeping with the intention of the section.

Amendment carried; clause as amended passed.

Clause 40 passed.

Clause 41.

Ms CHAPMAN: I move:

Page 14, lines 12 and 13 [clause 41(2)]—Delete subclause (2)

The question of Executive Council's role in the release and/or prevention of a prisoner on parole has reached an extraordinary rate of application in the life of this government and attracted considerable comment—and sometimes criticism—from the legal and academic world. Certainly, from the government's perspective, it has been a policy it has presented to the public as the great warrior of protection against the evils of prisoners whom it has determined should never be released. It is interesting to note that since coming into government there have been multiple decisions of Executive Council to refuse a parolee's application or grant them parole, yet prior to 2002, on the opposition's investigation, no government has actually exercised the power to deny parole to an inmate.

Executive Council has had some interesting historical areas of responsibility, including the responsibility for keeping a person in custody who may be mentally deficient, for example—what used to be described as 'at the Governor's pleasure'. It is interesting that the history of that aspect of the responsibility of Executive Council has changed a little over the years. Not surprisingly, the number of occasions on which the plea of insanity was utilised when capital punishment applied in Australia—in particular in South Australia—and the application for determination to be dealt with as someone who is not of sound mind suddenly dropped. Some would say that was because the defendant thought it was a better option for them to be determined of unsound mind, and not hanged, than face capital punishment. With the abolition of capital punishment, it seemed that there was a corresponding reduction in defendants relying upon, or attempting to rely upon, that determination—probably not surprisingly.

So Executive Council has retained a role in the criminal law and the custody and sentencing of criminals in this state, and it is a very important role. The Executive Council has a responsibility, in certain circumstances, even to go against all the advice which parliament and the government set in place to be accessible and relied on—for example, the Parole Board and the advice it gives—and it still retains a residual power, as the Executive Council, in this instance, to deny parole to a prisoner.

We are informed, as the Parole Board has reported, that since 2002 the Rann Labor government has refused to approve parole to more than 50 per cent of otherwise eligible parolees granted parole by the Executive Council. Arguably, the government would say that it has had good reason to do that at least in some of these cases, and it may be right. The problem with the current law is that nobody would ever know unless, of course, one were privy to the conversations that transpired in the cabinet, resulting in the message going across to the Governor to refuse or deny the parole.

Perhaps the huge number of refusals has some explanation—again, we do not know the answer to that. It is interesting to note that on the occasions when this occurs it usually coincides with a press release which is full of grandiose statements about the government being tough on law and order matters. To bolster its credentials in this area it equates its efforts, in terms of this very large increase in refusing prisoners parole, as something that may be populist—they may be right; it may get them a good run on morning radio—but it raises a number of questions for the opposition, and a number of independent members of parliament have certainly raised concerns from time to time about what has become a practice of this government, that is, to use the Executive Council power.

In opening this bill the opposition wishes to move an amendment to essentially require, if this amendment were passed, that there be some publication of reasons for refusal. There are a number of reasons why we have gone down this line, having heard other proposals and ideas from others. In fact, recent media stories on members of parliament have suggested other alternatives such as whether this is a matter which should have an appeal process to the Supreme Court and the like. The opposition has considered those and does not consider, on balance, that those other models would best address the situation.

It is the opposition's view that the Executive Council should retain the power to reject parole—no question about that. We are quite clear about that. We say it is important to ensure that a number of things, which I will refer to in a moment, follow as a result of that rejection occurring; and it can only be of benefit, ultimately, if there is some reason for that rejection.

One of the difficulties that arises as a result of these rejections—if prisoners, for reasons unknown, are kept in custody—is that the services that are applied and the very significant taxpayer funds that are allocated (not only to accommodation but also to rehabilitation of prisoners) come into question. In particular, the direct result is that the Department for Correctional Services clearly will not be encouraging—reluctantly, perhaps—prisoners to participate in rehabilitation programs or pre-release activities, which they promote as important, such as for work, family leave, etc., even if they foreshadow that they would expect, having completed these courses and programs, that the Parole Board is likely to recommend parole, because they will be aware that it will be wasted if the Executive Council will ultimately refuse anyway. What is the point of wasting money on prisoners to prepare them for release and to hopefully have a successful rehabilitation to ensure that they do not repeat the conduct for which they have been convicted if there is not a hope in hell of them ever getting out?

The application of resources is one thing. The lack of consistency on parole decisions and currently not disclosing the reasons also undermines the parole system, for both the prisoners and the Parole Board. Firstly, the prisoners are completely left in the dark about what they are expected to do to be able to convince the relevant authorities that they should be released. They have heard the judgement of the sentencing judge about what was wrong with them, what they failed to do, that their actions and conduct needs to be punished and the assessment that was made at that stage, which may have been years before. They have taken the advice of the correctional services agency or members of the department who have recommended certain programs, and they have done those, and they have tried to diligently undertake reform themselves and address their own personal deficiencies, yet they are completely left in the dark about what else they have to do to be eligible for what has been identified as necessary for them to have that reform.

Another aspect of this is the effect it will have on not just the parole system but also the management of prisoners while they are in prison. One of the incentives that prisoners have to behave, act in a civil manner towards fellow prisoners, maintain a respectful relationship with the members of the department and correctional services officers, and generally restore some reputation as being a civilised human being who is able to live back in the community is the incentive of early release. There is a powerful incentive to strive to achieve early release post the nonparole period expiration time, if they do behave and participate in the programs, such as domestic violence training, a drug rehabilitation program or a program to understand about the serious impact on victims as a result of their callous, reckless, unacceptable and certainly unlawful behaviour that they have previously undertaken. I think this gives the prisoner some hope that, if they do these things and not only participate but pass, there will be some eligibility for early release.

As members would know, there are a number of offences relating to a life sentence, but one is the offence of murder, which is a most foul fact on anyone's assessment and is condemned by the public. However, we have a justice system of sentencing in relation to that which imposes a life sentence and most often requires identification of a non-parole period. The severity of the circumstances of the crime or the antecedents of the prisoner in previous conduct are clearly factors which can relate. We have prisoners in the system in South Australia who have over 30 years in nonparole periods, and I think that most members in the house would agree, for good reason, that the judicial system, supported by the laws that we pass in this parliament, is clearly there to send a very direct message to the offender in those circumstances that their conduct was not only unlawful but it was just disgraceful.

Often those circumstances involved a victim being a minor or someone in a vulnerable circumstance, they may be aged or disabled, multiple victims, or they died in a most gruesome and callous way. Doubtless, these are all aspects which are taken into account in the sentencing at the time the offence is dealt with, and the prisoner understands that when they are taken out to Yatala or any other correctional service facility in South Australia. They have a pretty clear indication in the sentence they have as to what they are to serve for their behaviour, and what they need to do if they are going to satisfy the parole system—including the board, ultimately—that they should be eligible for parole after the date that has been set.

If, of course, it was the intention of parliament that anyone who committed a murder or who was guilty of an aggravated murder—I hate to use the words 'aggravated murder' but we have used 'aggravated offence' in our criminal system to identify extra circumstances where there should be a higher penalty, for example, multiple deaths if we are dealing with murder, gruesome circumstances, the victim being of vulnerable age—should never be released, that is something that we need to canvass here. That is the responsibility we have to debate that issue and to be able to make it a termination here in the parliament if that is what we consider appropriate for someone who has acted in such a way.

The third aspect of the government's action, without providing any reason or direct consequence, is that it completely wastes the time of the Parole Board. We, as a parliament, have established the Parole Board, and we have required it to account to the parliament in an annual report. Having provided this statutory body, the government is obliged to allocate funds and make appointments of personnel to it to ensure that the board carries out its function as we have directed it to do in the parliament.

All these parts of the process actually cost money, quite a lot of money, to employ senior legal people to undertake this responsibility, and we commend them for it. It just seems bizarre that the parliament would still expect—particularly the government by virtue of its decision in Executive Council—that money would continue to be spent, and time and expertise, leaving aside all of the time for the correctional department, the prison authorities and all these agencies to deal with these matters, if Executive Council simply dismisses it—and no-one cares about what the prisoner thinks.

The final aspect which the opposition considers involves this practice of undermining the parole system is that, potentially, it undermines the safety of the prison environment; that is not just other prisoners but also prison staff, correctional services officers, and those who are responsible to supervise in the accommodation of the prison of those prisoners.

The logical interpretation of that is that, if a prisoner thinks they have no hope of ever being released, notwithstanding what a judge might have said some years before when they were given a nonparole period and after which an application can be made for parole—not automatic release, of course, but they can at least apply—if that is extinguished as an option to a prisoner, it raises the question of what incentive there is for the prisoner's behaviour in relation to other prisoners and staff. I think the safety of others also needs to be taken into account, and the opposition has considerable concerns about this.

The academic and legal commentary on this has expressed concern about whether this is just a political issue, and whether the release of prisoners serving life sentences simply becomes a political issue, rather than questions of public safety or undermining community confidence in the criminal justice system's having some objectivity, independence and the like. It is the same reason that we as a parliament do not usually make laws for one person, one company, or one small group in the community that is going to have a direct benefit from parliament that is individually focused. When we do, we largely call it a 'hybrid bill', and we have to have a select committee.

One such bill that is anticipated to come into the parliament shortly, of course, is the Roxby Downs Indenture Approval Bill because, in that instance, it relates only to the approval of an indenture—a contract between the government and one company—which is for the benefit of securing certain resources for them and protection against increases in royalties, etc. I do not want to go into the bill, but I use it as an illustration of when we, as a parliament, consider legislation which directly affects one person or party, as distinct from the general community in all having similar application of the law under our rule of law principles, we have a select committee process to inquire into it and make sure that there is no abuse by executive governments who may have the control of the numbers in a parliament; that is the reason we have that process.

In this instance, we have a situation where, instead of coming back to the parliament, having a debate and making a decision about whether those who commit cruel and obscene crimes should ever be released from prison, there is the use of the Executive Council power without any scrutiny, review, or hope—not just for the prisoner, but with no protection for those who are vested with the responsibility to provide for them.

One prisoner, James Watson, was eligible for release eight years ago, in January 2002, that is, before the Rann Labor government came to office. Mr Watson appealed, to the Supreme Court and the High Court, the government's sixth refusal of the Parole Board recommendation to release him. The Chief Justice of the Supreme Court stated in that case:

As things stand, Mr Watson has no idea why the Governor has refused to release him on parole, and he is left contemplating a blank wall.

There have been other cases, not just that one, which have had some popular press coverage. Also, as I said, we have seen various ministers and the Premier beating their chests about their law and order credentials when they dismiss these parole recommendations and use their Executive Council power. However, others have not just been in judgements but comment by the judiciary which have been directly taken up to the government. It is not as though the judiciary has sat out on some island on this and made statements in judgements but they have actually put direct representations to this government to try to see their way forward, at least, to try to remedy the impasse on this because the current situation is untenable and clearly unjust. Certainly, from their point of view, it raises some aspects of unworkability which I have highlighted is the expression from the opposition.

One such representation was presented in correspondence to the Hon. Carmel Zollo (the then minister for correctional services) on 28 March 2006. It was written by Justice Debelle, a judge of the Supreme Court at that time, who had been the trial judge in a case where two parties were jointly charged with murder. Justice Debelle wrote a letter dated 28 March 2006 to the then minister for correctional services—and I bring to the parliament's attention that this was five years ago—which stated:

Dear Minister,

MICHAEL PETER WEBB

I was the trial judge in R v Webb & Hay. That is probably why I received the attached letter from Mr Webb.

Mr Webb and Ms Hay were jointly charged with the murder of Mr L E Patrick at Mount Gambier in 1991. Both pleaded not guilty. Both were convicted of the crime of murder after trial by jury. Both were equally culpable. Ms Hay was sentenced to a non-parole period of 20 years' imprisonment. Mr Webb was sentenced to a non-parole period of 19 years and 9 months. The difference of three months resulted from the fact that Mr Webb had already been in custody for a longer period of time than Ms Hay.

As you can see from this letter, Mr Webb is aggrieved by that fact that his co-accused Ms Hay has been released on parole but he has not. The circumstances of this murder do not provide any basis for discriminating between the culpability of Mr Webb and his co-accused.

I have asked the Parole Board whether there was any reason for the discrimination between Mr Webb and Ms Hay. Ms Nelson QC, the Presiding Member of the Parole Board, has informed me by letter dated 9 March 2006 that the Board had recommended the release of Mr Webb on parole but Executive Council had not accepted its recommendation. In her letter, Ms Nelson describes the situation as 'completely unfair'. I enclose a copy of her letter.

The letter goes on to state:

I respectfully suggest that the situation is not only unfair but it is also unjust. I repeat that the circumstances of this crime provide no basis for discriminating between the culpability of Mr Webb and Ms Hay. It certainly does not justify releasing Ms Hay before Mr Webb. The fact that Ms Hay was ordered to serve a slightly longer term than Mr Webb only serves to emphasise the unjustness to Mr Webb.

I ask that you consider the matter urgently and recommend to Executive Council that it revoke its decision and release Mr Webb at the earliest possible date. If that is not possible, I ask that you recommend that Executive Council release Mr Webb on parole should he apply for release on or after 31 May 2006.

Yours faithfully, Justice Debelle.

Obviously, this letter went unheeded.

The government continues to act in this arbitrary way, without explanation or reasons, without any report back to the Parole Board as to what aspects it would want considered if there were to be a favourable consideration of an application for parole, without any hint of what it is doing, and this type of injustice prevails. We have the same crime, two offenders, the same sentences; one gets out and one does not, and the Labor Executive Council does not intervene. That is exactly what happens. We end up with a situation where everyone is in the dark. Justice is certainly not served, and the inequity of this application in the chamber of Executive Council, which is clothed with confidentiality, is the one that translates.

That is what the opposition is keen to ensure is remedied, but not with the removal of Executive Council's power. We would not want to do that, but we do want to make this a workable arrangement so that we can balance the circumstance which may occur, where Executive Government is privy to information that may not be in the public arena, to which not even the Parole Board or the Department for Correctional Services is privy. If Executive Council becomes privy to information, it is reasonable that it should act in a manner to overturn recommendations put to it. That can happen from time to time.

Obviously, we have agencies in South Australia and Australia which can provide very confidential information to a premier or to ministers which, for reasons of public safety, need to be kept confidential, and we accept that. We accept that that is a responsibility, a reserve power that is necessarily retained by governments; however, it cannot be allowed to be abused to the extent where we have injustices which undermine the very system of rehabilitation and safe custody of prisoners in this state.

These are the reasons why it is important to identify that, for the first time in the history of this state, we have a government which has exercised its Executive Council power not just once or twice but many times, and repeatedly for some prisoners, without one shred of information being reported back as to why or how that might better be remedied to give prisoners the opportunity to carry out their sentence as was originally intended.

We do not want this issue politicised. This government—the first government in the history of this state—has actually politicised it and, I would go so far as to say, abused it, because cases such as the Webb case illustrate to us in a very profound way how injustice is a direct consequence of this type of arbitrary conduct. It is not just one or two cases; we are talking about multiple cases of Executive Council exercising its power, all to make it look like the government is tough on law and order out in the real world.

We will be asking the government to give serious consideration to this amendment and to appreciate that, whilst it comes late in the debate on this, I hasten to add that, on the last occasion we debated this bill, a number of amendments had been tabled which had not related to this particular aspect. Other amendments have been foreshadowed in another place and it was responsible for us to consider and be able to present to the parliament, and particularly to the minister, a model which we see as important, workable, achievable and the best way to manage the future of this practice and, in particular, the maintenance of the reserve power, with conditions.

As I say, the opposition has looked very carefully at other models that are being presented, including questions of whether there should be judicial review of Executive Council's determination. That does cloud issues, I might say. I think that the chief justice in Watson's case, which I referred to earlier, made an obiter statement in which he had acknowledged that it was never intended that Executive Council would give reasons, which is the model that we are proposing. We agree with that, it was not, but never in the history of our state have we seen it abused in such a manner as under this regime, which would raise the question about whether it should be. If it should be, obviously judges cannot make that determination. That has to be something that is determined in the parliament.

Others, of course, have suggested to us that the Executive Council's discretion should be removed altogether. We do not agree with that, but it does need to be structured in a way that we rein in the abuse by this government of the use of this power but ensure that it remains there for the protection of people in South Australia, for those who, we hope in a short time, have a responsible government—I do not mean Friday morning: I mean in 2014 when there is an opportunity for some government that will act responsibly in this area.

I present the amendment for consideration. Although this is late, for the reasons I have explained, we would hope at least that the minister would give it consideration between the houses. As he would no doubt know, there are other models awaiting his consideration, ultimately, that will be presented in another place. We consider this as one which will provide the greatest overall safeguard for the people of South Australia and protect justice for those in the prison system who are awaiting parole. I commend the amendment.

The CHAIR: Have you finished, member for Bragg?

The Hon. A. KOUTSANTONIS: My God! I think it is fair to say that the government made this a point of contention during the last election campaign. The government went to the election with its credentials and its credibility and put forward to the people of South Australia its views on Executive Council and how Executive Council acts in matters of parole. I think it is fair to say that the opposition put its point of view about the way Executive Council would operate had it been elected. The people have spoken and, in a majority of seats, the government received a majority of votes.

I heard the member for Bragg say they want to retain the power to have Executive Council refuse parole but would like it to give reasons. What she is really saying is, 'We want you to give reasons to make it justiciable so a judge can review the decisions you have used and then overturn your decision.' That is what she is really saying. So, if she was really honest, she would say, 'I do not want you to have the power to do this.' Well, the government makes absolutely no apology for this position. We will not withdraw even an inch from this position.

It amazes me that the Liberal Party and the opposition spend so much time on fighting for the rights of convicted murderers, because that is what the member for Bragg has just done. She has spent the time of the house arguing for the rights and privileges of people convicted of terrible murders, and I wish that every single citizen of South Australia had been here to see the member for Bragg's contribution. But have no fear, as we speak, I imagine the headquarters on Wright Street will be drafting up the appropriate material to inform the people of South Australia of the opposition's views.

Ms Chapman: Great.

The Hon. A. KOUTSANTONIS: Great, yes. I am sure your view goes down very well at Burnside Village. I am not sure it goes down very well everywhere else. But we will have that contest of ideas, and I look forward to that contest of ideas in 2014, and I hope that the member for Bragg is articulating that point in 2014, and we will let the people decide whether Executive Council should give reasons why convicted murderers are not granted parole. With all due respect to Frances Nelson QC, who I have a great deal of admiration and respect for, who I think is an outstanding public servant, a fantastic lawyer—

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: I did. I am allowed to disagree with her. I am not sure what world you live in. I know that no-one is allowed to disagree with you; I know that is how it works in 'Vickie World' but in the real world I am allowed a different point of view from you.

What I say to the member is that, if she is serious about her intention, at least be honest and get up and move an amendment taking away the right of Executive Council to refuse parole; that is what she really wants. If Frances Nelson QC is so offended by what Executive Council does, she has an option: she can resign. The government stands firm in making sure we put the safety of the people of South Australia and the consideration of the victims of heinous crimes first, not murderers.

The CHAIR: Before we continue, member for Bragg, can I ascertain that the amendment that you present to clause 41 on No. 114(4) supersedes your suggested amendment on clause 41 schedule 3, which was to delete subclause (2), and now of course you are inserting on subclause (2)?

Ms Chapman: That is a good question. I think we want to keep it.

The CHAIR: It's additional.

Ms CHAPMAN: I am happy to briefly speak on that. I have covered it—

The CHAIR: When you say 'briefly', is it briefly?

Mr Pederick: It'll be brief.

The CHAIR: Thank you for that, member for Hammond.

Ms CHAPMAN: This is a clause, which read with amendments 8, 9 and 10—I do not want to confuse this but it is actually a slightly different issue. It relates to—and I will be very brief—the reason we say it will have the effect of retaining community corrections officers having a direct reporting relationship to the Parole Board. The bill currently will say that they report to their chief executive and the chief executive gives a summary position to the Parole Board. For all the reasons I outlined in my second reading contribution, we think these people are on the ground, they know what the issue is, they are close to it and they should have the direct relationship. That is what the rest of those relate to.

The Hon. A. KOUTSANTONIS: On those amendments, I understand exactly why the member for Bragg is moving them, and I have a lot of sympathy for her argument. However, people on the ground move and change around and we need consistency of reporting to the Parole Board, and it is best that this all be channelled through the chief executive. The reason I say that is because a chief executive can determine the appropriate advice as based on the appropriate people. If you have one community corrections officer who has been dealing with someone for a period of time who then moves, it is not in the purview of the Parole Board to know that they had moved.

The chief executive may choose to take the advice of the person who dealt with the offender longer rather than the actual current community corrections officer who had only a short period of time with the offender. It is about giving them maximum flexibility to make sure that the right people are giving the right advice to the Parole Board, and the best way to arbitrate that is through our very good chief executive, Peter Severin.

Amendment negatived.

Ms CHAPMAN: I move:

Page 14, after line 13—After subclause (2) insert:

(3) Section 67—after subsection (7) insert:

(7a) The Governor must, not more than 30 days after refusing to order that a prisoner be released from prison on parole, notify the prisoner in writing of—

(a) the refusal; and

(b) the reasons for the refusal; and

(c) any matters that might assist the prisoner in making any further application for parole.

(7b) Despite subsection (7a)(b) and (c), the Governor is not required to disclose to the prisoner any reason or matter if any such disclosure is likely to give rise to a significant risk to public safety.

Amendment negatived; clause passed.

The CHAIR: Member for Bragg, do I then understand that, looking at schedule 3, amendments Nos 8 and 9 cannot be included because they were consequential on amendment No. 7?

Ms CHAPMAN: Yes, that is right, and No. 11 is also in that category, I think. I formally withdraw amendment Nos 8, 9 and 11.

Clauses 42 to 45 passed.

Clause 46.

Ms CHAPMAN: I move:

Page 16—Lines 12 to 15 [clause 46(1), inserted subsection (1)]—

Delete 'the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed' and substitute:

the sentence, or sentences, of imprisonment in respect of which the person was on parole for such period as the Board thinks appropriate, but not exceeding—

(a) the period between the day on which the breach occurred and the date of expiry of the parole; or

(b) such lesser period as the Board thinks fit.

Again, for the reasons I outlined in my contribution, we want the Parole Board to maintain the discretion over the length of custody following a breach of parole. I covered this at some length in the second reading, and I think that the minister is very clear about this.

The Hon. A. KOUTSANTONIS: We are not accepting that amendment.

Amendment negatived; clause passed.

Clauses 47 to 48 passed.

Clause 49.

Ms CHAPMAN: I move:

Page 18, lines 1 to 41 [clause 49, inserted sections 76A and 76B]—Delete sections 76A and 76B and substitute:

76A—Apprehension etc of parolees on application of CE or police officer

(1) If the CE or a police officer suspects on reasonable grounds that a person who has been released on parole may have breached a condition of parole, the CE or police officer may apply to—

(a) the presiding member or deputy presiding member of the Board; or

(b) if, after making reasonable efforts to contact the presiding member and deputy presiding member, neither is available—to a magistrate,

for the issue of a warrant for the arrest of the person.

(2) A warrant issued under this section authorises the detention of the person in custody pending appearance before the Board.

(3) A magistrate must, on application under this section, issue a warrant for the arrest of a person or for the arrest and return to prison of a person (as the case may require) unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.

(4) If a warrant is issued by a magistrate under this section—

(a) the CE or police officer (as the case requires) must, within 1 working day of the warrant being issued, provide the Board with a written report on the matter; and

(b) the warrant will expire at the end of the period of 2 working days after the day on which the report is provided to the Board; and

(c) the presiding member or deputy presiding member of the Board must consider the report within 2 working days after receipt and—

(i) issue a fresh warrant for the continued detention of the person pending appearance before the Board; or

(ii) cancel the warrant, order that the person be released from custody and, if appearance before the Board is required, issue a summons for the person to appear before the Board.

(5) If a warrant expires under subsection (4)(b) or a fresh warrant is not issued under subsection (4)(c)(i), the person must be released from detention.

(6) The Board may, if it thinks there is good reason to do so, by order, cancel a warrant issued under this section that has not been executed.

It might surprise the minister on this occasion that I am not going to repeat the—I thought—rather brief submissions I made on this. Perhaps that would be misleading the parliament if I were to suggest that. This is, I think, what the government would describe as a 'core initiative'. It is going to introduce a reform which gives chief executives and/or senior police powers which they have not had in the past.

It is the opposition's clear and unequivocal view (and we think that we are on the side of the angels on this) that this is a role that should remain exclusively with the court system or the Parole Board. One of the things that the government failed repeatedly to have some understanding of is the importance of keeping responsibilities separate and not placing what potentially are responsibilities in conflict in one body or person. The correctional services chief executive has a very important role—no question about that—and the management and supervision of people the community have determined should be in custody is a very serious job. But they are not law enforcement agencies—

The Hon. A. Koutsantonis: Police?

Ms CHAPMAN: I am talking about the chief executive at this point. The chief executive's role is to undertake the administration, clearly as we have defined in the legislation, in respect of the security of prisoners and hopefully their rehabilitation and, in some instances, parole, and the responsibility for those jobs under the legislation is very important. The police have a law enforcement role. They are also mandated by this parliament and funded by the government, effectively the taxpayer, to undertake that law enforcement role. The Parole Board has a different role and it also has that responsibility.

Let me say this: the Robinson case, which I referred to at length, would not be resolved by dealing with this proposal of the government. It would not be resolved because, in that instance, a prisoner having been put out on parole, the agencies that were responsible to actually act when there was a reported breach of parole, failed.

The Hon. A. Koutsantonis: Why?

Ms CHAPMAN: We don't know. The minister asks why. Isn't it interesting that he should ask why? I would be very interested to hear it because repeatedly in this parliament we have asked what happened, what went wrong. Of course. we heard from previous ministers, including attorney-general Atkinson with his grandstanding statements, about what happened. We heard, of course, minister Koutsantonis's assertion that he would find out what was happening in this case, what went wrong, and that he actually would be able to tell us, hopefully, but have we ever had a report back to this parliament? Have we ever heard what went wrong, have we ever heard why the police did not act for over two weeks, and why we had that disgraceful incident in the Mid North of South Australia? Did we ever hear? Never! Silence from the government about what it did, how it remedied it and how it will ensure it will never happen again.

This proposed reform by the government will not resolve it. You do not just bring in extra people and give them extra power. It would not have resolved the situation or kept that poor lady in the Mid North safe from the parolee, in that instance, who had breached the terms of his parole and should have been back in custody. This will not change it. We say that it is important that, if a circumstance were to arise in a different scenario that, when it comes to the attention of the chief executive or a police officer that there has been a potential breach of parole, and they are unable to obtain a determination by the Presiding Member or Deputy Presiding Member of the Parole Board, they can apply to a magistrate for a warrant for arrest.

Under our proposal, the chief executive or the police officer would need to provide a report ultimately to the Parole Board by the next day, with the Parole Board having some time to respond. It is important here that the situation could arise where the chair of the Parole Board, the Presiding Member (as we call them these days) is overseas, unavailable, sick, or dead, and the Presiding Member is not available. I have not ever been given any example in this parliament where both have been unavailable at any one time.

The minister may be aware of situations where neither of them may be available and where there needs to be some urgent action. If that is the case, then we say that the warrant process is one which is very important, but it needs to be supervised by those who have responsibility for it, namely the judicial system, and that the application of the chief executive or the senior police officer should go through that process.

For all the other reasons I have stated in our second reading, that situation should be maintained and if circumstances were to arise, then the chief executive or police officer can apply for that warrant through what I would describe as the usual processes, with a reporting process back. With that, I am proud to move amendment No. 12 standing in my name. If the government is not prepared to agree to this, and goes down the line of granting this responsibility to other personnel, including the chief executive or police officers, then that will taint and stain irreparably the separation of powers and place these people, we suggest, in a potential conflict of interest situation in the future.

The Hon. A. KOUTSANTONIS: I am simply stunned that the Liberal Party of South Australia would say to me that they do not want to give a police officer or the chief executive of the correctional department of South Australia the ability to issue a warrant for the arrest of an offender who is on parole, who has breached those conditions. We are not talking about someone who is not on parole, who has no community order against them. We are talking about someone who has been let out of gaol early.

I will give you an example, so we understand my thinking, the department's thinking and the government's thinking about why we want to do this. Community corrections officers have drug testing kits. A parolee gives an indicative positive test—not a conclusive, but an indicative test—of a positive drug sample or breath test showing alcohol in the system, or they are in breach of a condition of not being at home or being with a victim. The officers then are able to inform the chief executive or attending police that the offender is beginning to slide into behaviour that has led to crime in the past. We can intervene early. If we know an offender has a history of violence fuelled by alcohol and drugs, and they give us an early indicative test through our spot inspections, we can act early.

As Minister for Correctional Services I have found it difficult to get in contact with the Parole Board and the delegated officers, because they are in court, or busy, or unavailable. All these decisions are reviewable by the Parole Board and the judiciary. So what is the issue? The issue is that the member for Bragg does not like police officers to have the right to issue warrants. Within 12 hours it is reviewed—12 hours. It is a parolee. Anyway, if we did not have the member for Bragg, we would have to invent her, so I suppose I should be grateful. We oppose her amendment.

Amendment negatived; clause passed.

Clause 50 passed.

New clause 50A.

The Hon. I.F. EVANS: I move:

Page 19, after line 11 [clause 50A]—After clause 50 insert:

50A—Insertion of Part 7

After section 77 insert:

Part 7—Prisoner compensation quarantine funds

Division 1—Preliminary

78—Interpretation

(1) In this Part—

agreement includes compromise and acceptance of an offer of compromise;

award of damages means damages—

(a) awarded pursuant to a judgment of a court; or

(b) paid or payable in accordance with an agreement between the parties to the agreement;

civil wrong means an act or omission of the State that—

(a) gives rise to a claim by a prisoner against the State; and

(b) occurred while the claimant was a prisoner; and

(c) arose out of and in connection with his or her detention in a correctional institution;

claim means a claim brought in tort, in contract or under a statute or otherwise;

criminal act—see subsections (2) and (3);

damages includes any form of monetary compensation;

initial quarantine period, in relation to a prisoner compensation quarantine fund, means the period of 12 months from the date on which the notice in respect of the fund under section 81E is published;

prisoner includes a former prisoner, but does not include a remand prisoner;

prisoner compensation quarantine fund—see section 81B(4);

quarantine period, in relation to a prisoner compensation quarantine fund relating to a prisoner, means—

(a) the initial quarantine period; and

(b) the period ending on the final determination of all legal proceedings by victims against the prisoner that are commenced within the initial quarantine period and notified to the CE under section 81J(1);

State includes—

(a) the CE; and

(b) an officer of the Department;

victim includes a member of a victim's immediate family.

(2) In this Part, a criminal act means conduct that, on the balance of probabilities, would constitute an offence.

(3) The definition of criminal act applies whether or not a prisoner whose conduct is alleged to constitute an offence has been, will be, or is capable of being, proceeded against or convicted of the offence.

79—Application

(1) This Part applies to any award of damages to a prisoner in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong.

(2) This Part does not apply to an award of damages to a prisoner in respect of a claim of false imprisonment.

(3) This Part does not affect (and is subject to) any obligation imposed on the State or the CE by or under an enactment of the State or the Commonwealth to pay some other person money owed or due to or held on account of the prisoner.

Division 2—Award of damages to prisoners

80—Agreements must be approved by court

An agreement between the State and a prisoner for the payment of damages for a civil wrong is of no effect until it has been approved by a court of competent jurisdiction.

81—Determination of amounts for medical and legal costs

(1) An award of damages for a civil wrong must specify the amounts (if any) awarded or agreed in respect of—

(a) existing and future medical costs; and

(b) legal costs.

(2) If the parties to an agreement between the State and a prisoner for the payment of damages for a civil wrong are unable to agree on an amount to be specified under subsection (1), the court must determine the amounts to be specified in the agreement for the purposes of that subsection, and the agreement is varied accordingly.

81A—Matters to be considered by court

(1) This section applies to—

(a) an award of damages by a court for a civil wrong; and

(b) an agreement between the State and a prisoner for the payment of damages for a civil wrong.

(2) The court must not make the award, or approve the agreement, unless the court is satisfied—

(a) that section 81(1) has been complied with; and

(b) that, in all the circumstances, the amounts specified for the purposes of section 81(1) are appropriate portions of the total amount payable under the award or agreement having regard to—

(i) the claim; and

(ii) the loss or damage suffered by the prisoner; and

(iii) the need to ensure as far as possible that victims are not deprived of an opportunity to enforce a successful claim for damages against a prisoner.

(3) If legal costs are to be assessed and paid under an order made on taxation, the legal costs are taken under this Part to be specified in the award of damages.

Division 3—Payment of money to prisoner compensation quarantine fund

81B—Damages awarded to prisoner to be paid to prisoner compensation quarantine fund

(1) The amount of any award of damages to a prisoner in respect of a civil wrong must be paid by the State to the CE immediately after the damages are awarded.

(2) The amount to be paid under subsection (1) does not include any amount specified in the award of damages made or approved by the court as attributable to—

(a) existing and future medical costs; and

(b) legal costs.

(3) An amount paid to the CE under subsection (1)—

(a) must be held in trust for the prisoner by the CE during the quarantine period and until the final payment is made out of the prisoner compensation quarantine fund in accordance with this Part; and

(b) may be paid out of the prisoner compensation quarantine fund only as authorised by this Part.

(4) Money held by the CE in trust for a prisoner under this Part constitutes a prisoner compensation quarantine fund.

(5) This section does not apply if the amount that would, but for this subsection, be required to be paid to the CE under subsection (1) does not exceed $10,000.

81C—Prisoner compensation quarantine funds

(1) A prisoner compensation quarantine fund consists of—

(a) an amount held by the CE in trust for a prisoner under this Part; and

(b) any interest earned on that money.

(2) The CE must deposit all money in a prisoner compensation quarantine fund into an interest-bearing account with an ADI.

(3) The following may be paid out of the prisoner compensation quarantine fund:

(a) amounts required to be paid out to a person in accordance with section 81L or 81M;

(b) amounts required to be paid out in accordance with section 81O in respect of the prisoner;

(c) the costs of administration of the fund (including any taxes payable in respect of the fund).

(4) The CE may only pay out of a prisoner compensation quarantine fund the costs of administration of the fund if that payment would not decrease the level of the fund below the amount of damages paid into the fund.

(5) The CE is responsible for the administration of the prisoner compensation quarantine fund.

Division 4—Notice of prisoner compensation quarantine fund

81D—Victim may ask to be notified of award of damages to prisoner

(1) A victim in relation to a criminal act by a prisoner may apply to the CE to be notified of an award of damages to the prisoner.

(2) An application must be in writing.

81E—Notice to victims to be published

(1) The CE must publish a notice advising of an award of damages to a prisoner as soon as practicable after the amount of damages is paid to the CE under section 81B.

(2) The notice must—

(a) state that the award of damages has been made to the prisoner in a claim against the State (but must not state the amount of the award of damages); and

(b) state the name of the prisoner and any other name by which the prisoner is known; and

(c) state that money in that award has been paid to a prisoner compensation quarantine fund; and

(d) state the initial quarantine period for that fund; and

(e) invite victims in relation to criminal acts of the prisoner to seek further information from the CE about the fund; and

(f) contain contact details for seeking the further information.

(3) The notice must be published in—

(a) the Gazette; and

(b) a daily newspaper circulating generally in South Australia; and

(c) a daily newspaper circulating generally in Australia.

(4) The CE may also—

(a) publish the notice on the Internet; and

(b) forward a copy of the notice to any victim who has applied to the CE under section 81D to be notified of an award of damages in respect of the prisoner.

81F—Applications for information

(1) A victim in relation to a criminal act by a prisoner may apply to the CE for information about a prisoner compensation quarantine fund with respect to that prisoner within the initial quarantine period in respect of that fund.

(2) The CE may, if satisfied that the applicant is a victim in relation to a criminal act of a prisoner, disclose, by written notice, the following information to the applicant:

(a) the amount of the award paid into the prisoner compensation quarantine fund in respect of the prisoner;

(b) the start of the initial quarantine period;

(c) when the initial quarantine period will end if no legal proceedings are notified under section 81J(1);

(d) whether the CE has been notified of any other claim in respect of the prisoner and, if so, the number of other such claims;

(e) any other information that the CE believes, from time to time, will assist the applicant to make an informed decision as to whether to bring proceedings against the prisoner.

(3) The notice must include a statement advising the applicant—

(a) that the information is disclosed solely for use by the applicant in deciding whether or not to bring legal proceedings; and

(b) that the applicant should consider seeking independent legal advice; and

(c) that the information does not constitute legal advice or a recommendation to bring or not to bring legal proceedings; and

(d) of the effect of sections 81H and 81I.

81G—Disclosure of information by CE authorised

The provision of information by the CE under section 81E or 81F—

(a) is authorised despite any agreement to which the CE or the State is a party that would otherwise prohibit or restrict the disclosure of information concerning an award of damages; and

(b) does not constitute a contravention of such an agreement.

81H—Confidentiality of information

A person to whom information is provided under section 81E or 81F by the CE must treat the information in an appropriate manner that respects the confidentiality of the information.

81I—Offence to disclose information

(1) A person to whom information is disclosed under section 81E or 81F must not disclose the information to any other person except for the purposes of, or in connection with, the taking and determination of legal proceedings by the person against the prisoner concerned.

Maximum penalty: $10,000.

(2) A person (other than a person to whom information is disclosed under section 81E or 81F) who becomes aware of any information disclosed to a person under either of those sections must not use that information or disclose it to any person.

Maximum penalty: $10,000.

(3) Nothing in subsection (1) prevents a person from disclosing information to a lawyer in the course of consulting the lawyer for legal advice.

(4) Subsections (1) and (2) do not apply to information that is in the public domain.

81J—Notice to CE by victim

(1) A victim who, within the initial quarantine period for a prisoner compensation quarantine fund relating to a prisoner, commences legal proceedings for the recovery of damages against the prisoner in respect of a criminal act by the prisoner may give written notice to the CE of that fact.

(2) A victim may, within 14 days after the final determination of legal proceedings notified by the victim under subsection (1), give the CE written notice of the final determination of, and any amount (including any legal costs) awarded to the victim in, those proceedings.

81K—Notice to CE by creditors

(1) A person who has a judgment debt against the prisoner, or is entitled under any enactment to payment of an amount by the prisoner, and who has not recovered that judgment debt, or been paid that amount, may give notice to the CE of that fact.

(2) A notice under subsection (1) must—

(a) be in writing; and

(b) be accompanied by a copy of any relevant document that substantiates the facts set out in the notice; and

(c) be given during the quarantine period.

(3) The CE may require a person who has given a notice under this section to provide any further information that the CE reasonably requires to substantiate the facts set out in the notice.

Division 5—Payments out of prisoner compensation quarantine fund

81L—Payments out of fund where legal proceedings notified

(1) This section applies if the CE has received a notice under section 81J(1) in respect of legal proceedings against a prisoner to whom a prisoner compensation quarantine fund relates.

(2) The CE must not pay any money out of the prisoner compensation quarantine fund to any person until the end of the quarantine period for the fund.

(3) The CE must, within 45 days after the end of the quarantine period, pay out of the prisoner compensation quarantine fund to the persons entitled to payment any amounts required to satisfy—

(a) any award (including any legal costs) against the prisoner that was notified to the CE under section 81J(2); and

(b) any judgment debt against, or entitlement to be paid by, the prisoner that was notified to the CE under section 81K,

that the CE is satisfied is a valid claim on the prisoner.

(4) If the amount in the prisoner compensation quarantine fund is not sufficient to pay the amounts required to be paid out under subsection (3), the CE must make payments from the fund under that subsection on a proportionate basis having regard to any priority of payment required by law.

Example—

The law may require priority to be given to payment of (for example) child support.

(5) If any amount remains in the prisoner compensation quarantine fund after all amounts are paid out under subsection (3), the CE must, within or as soon as practicable after the end of the period of 45 days after the end of the quarantine period—

(a) credit to the prisoner the remaining amount to an account kept in the prisoner's name in accordance with section 31; or

(b) if the prisoner has been discharged from prison—credit to the former prisoner the remaining amount to an account nominated by the former prisoner.

81M—Payments out of fund where notice from creditor received

(1) This section applies if the CE has been given notice by a person under section 81K and has not been notified under section 81J(1) of legal proceedings against that prisoner.

(2) The CE must not pay any money out of the prisoner compensation quarantine fund to any person until the end of the initial quarantine period for the fund.

(3) The CE must, within 45 days after the end of the initial quarantine period, pay out of the prisoner compensation quarantine fund to the persons entitled to payment any amounts required to satisfy any judgment debt against, or entitlement to be paid by, the prisoner—

(a) that was notified to the CE under section 81K during the initial quarantine period; and

(b) that the CE is satisfied is a valid claim on the prisoner.

(4) If the amount in the prisoner compensation quarantine fund is not sufficient to pay the amounts required to be paid out under subsection (3), the CE must make payments from the fund under that subsection on a proportionate basis having regard to any priority of payment required by law.

Example—

The law may require priority to be given to payment of (for example) child support.

(5) If any amount remains in the prisoner compensation quarantine fund after all amounts are paid out under subsection (3), the CE must, within or as soon as practicable after the end of the period of 45 days after the end of the initial quarantine period—

(a) credit to the prisoner the remaining amount to an account kept in the prisoner's name in accordance with section 31; or

(b) if the prisoner has been discharged from prison—credit to the former prisoner the remaining amount to an account nominated by the former prisoner.

81N—Restriction not to affect payment of administration costs

Sections 81L and 81M do not prevent the payment out of a prisoner compensation quarantine fund of any amount for the costs of administering the fund (including payment of taxes in respect of the fund) authorised under section 81C (and those costs are payable out of the fund before payment of any other amount under section 81L or 81M).

81O—Payments out of fund where no notice given

(1) This section applies if no notice is given to the CE under section 81J(1) or 81K in relation to the prisoner to whom a prisoner compensation quarantine fund relates within the initial quarantine period.

(2) The CE must, within or as soon as practicable after the end of the period of 45 days after the end of the initial quarantine period—

(a) credit to the prisoner the remaining amount to an account kept in the prisoner's name in accordance with section 31; or

(b) if the prisoner has been discharged from prison—credit to the former prisoner the remaining amount to an account nominated by the former prisoner.

81P—Payments taken to be payments at direction of prisoner

The payment by the CE of an amount out of a prisoner compensation quarantine fund in accordance with this Part is taken to be a payment at the direction of the prisoner and operates as a discharge, to the extent of the payment, of any liability of the State or the CE to pay the amount to the prisoner as damages.

81Q—When are legal proceedings finally determined?

(1) For the purposes of this Part, legal proceedings are not finally determined if—

(a) a period for bringing an appeal in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal); or

(b) an appeal in respect of the legal proceedings is pending.

(2) However, if legal proceedings are settled or discontinued, they will be taken to be finally determined for the purposes of this Part.

Division 6—Miscellaneous

81R—Offence to provide false or misleading information

A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided to the CE under this Part.

Maximum penalty:

(a) if the person made the statement knowing that it was false or misleading—$10,000;

(b) in any other case—$2,500.

Page 22, after line 36 [clause 63]—After subclause (2) insert:

(2a) Section 89(2)—after paragraph (ja) insert:

(jb) prescribing matters to be included in applications and notices under Part 7; and

Page 23—

Line 1 [schedule 1, heading]—Delete 'amendments' and substitute:

amendment and transitional provision

After line 9 [schedule 1, new Part]—After Part 1 insert:

Part 2—Transitional provision

2—Transitional provision

(1) Part 7 of the Correctional Services Act 1982 (as inserted by section 51A of this Act) applies to an award of damages to a prisoner on or after the commencement of this clause in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong regardless of when legal proceedings in respect of the civil wrong commenced.

(2) Words used in subclause (1) have the same meaning as in Part 7 of the Correctional Services Act 1982.

My amendment inserts a new, complete part entitled Part 7 as new clause 50A in the bill. I mentioned earlier the principle behind the amendments. This particular provision sets out all of the mechanics of the scheme that will allow the prisoner's funds to be quarantined and, ultimately, claimed through a process by victims of their crime outside of the prison. I do not intend to go through the mechanism clause by clause.

In my earlier contribution I forgot to thank the minister and his staff for the meeting about the bill. Three years ago I introduced a bill of a different scheme, but to the same principle, met with the then attorney-general (who indicated support for the principle but a different model), agreed to make changes to the different model, and then nothing happened.

To this minister's credit, we then had another meeting with this minister and his staff member, and the amendments were made following consultation with the chief executive of the department. I thank Mr Severin for his good advice in relation to the principle. I also want to thank parliamentary counsel for their excellent work through a number of different variations to originally my bill and then these amendments to get it into a form that was acceptable to the government and the opposition.

This particular provision sets out the mechanics of the scheme. Essentially, it deals with the awarding of damages to prisoners, matters that can be considered by the court. The payment of damages awarded to the prisoner are being put into a prisoner compensation fund. How that quarantining of the funds would work, how the victim is to be notified and be published, how their applications for the information (there are provisions about confidentiality) and how the payments out of the fund where legal proceedings are notified are dealt with. All those provisions are set out in this particular clause. Again, I look forward to the support of the house.

The Hon. A. KOUTSANTONIS: The government supports this amendment.

New clause inserted.

Progress reported; committee to sit again.