CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's message.

(Continued from 16 February 2012.)

Amendments Nos 1 and 2:

The Hon. J.M. RANKINE: I move:

That the Legislative Council's amendments Nos 1 and 2 be disagreed to.

I advise the house that we will accept two of these amendments as they significantly improve arrangements in relation to the granting of automatic parole. We will oppose four amendments as the government believes they weaken the intention of the original bill introduced to this house last year and subsequently prevent the delivery of the most safe and efficient correctional services.

On amendment No. 1, the removal of prisoners from prison by SAPOL for questioning is an important practice in helping to prevent crime. It is also a procedure that supports the interests of the prisoner, as removing them off the prison site for questioning allows better protection for those prisoners.

On amendment No. 2, we regard the recording of conversations between prisoners and others as an important practice and part of this bill. Legal representatives acting on behalf of prisoners should remain exempt. The wording in the original bill in relation to legal practitioners was 'those who represent the prisoner'. The amendment weakens that down to 'a legal representative acting in his or her professional capacity'. This opens up the potential for misuse and clearly is not in the prisoner's interest.

Dr McFETRIDGE: The opposition is insisting on these amendments. While I, as a humble veterinarian and not a lawyer, do not have a grasp of all the nuances and semantics that are involved in legislation that goes through this place, I like to think I have a reasonable amount of common sense in reading the legislation and being guided by my colleagues in the upper house and in this place. We think that reasonable grounds is a reasonable thing to do, so we will be insisting on that amendment.

We do not want to get in the way of the police doing their job—and they have done an excellent job in capturing the final Cavan escapee. I understand he turns 18 tomorrow and he is going to Yatala, so it will be interesting to see whether he is more aware of his misdemeanours now that he is in the adult system. It is something that I will be watching very closely because we do want to make sure that our prisoners are not only treated well but also able to be rehabilitated, and parole is part of that.

With regard to the access of lawyers to prisoners, I can understand, particularly with some of the allegations of coercion through bikies and so on that goes on around the place, that there could be a remote chance that a lawyer could be seeking access to a prisoner who was not actually their client and was acting for a third party. I can see that, but I would think the chances of that would be extremely remote. So, I am comfortable with the fact that lawyers should be trusted to be acting in his or her professional capacity, as the amendment says.

Ms CHAPMAN: I was not able to hear the minister's position on amendment No. 1 as there was a bit of noise in the chamber. I assume, from the contribution made by the member for Morphett that the government is rejecting amendments Nos 1 and 2?

The ACTING CHAIR (Hon. M.J. Wright): Correct.

Ms CHAPMAN: Thank you, Mr Acting Chairman and minister, for indicating that. There has been considerable debate about this bill. I will just bring to members' attention the principal reason why we are reforming the Correctional Services Act which was published by the government. The minister may not be privy to this but, if she were to read through the announcement that coincided with the launching of this draft bill and the review of the matter, she will recall the rather tragic case of the death of Shane Robinson.

Just briefly, in 2009, Shane Robinson killed himself after he had stabbed a police officer and held a 75-year old woman hostage at Yunta, which is a small settlement in the north of this state. The circumstances were compounded in the eyes of the public by the fact that Mr Robinson had acted in this way while he was out on parole. It is fair to say that there was public outrage.

The then attorney-general, the now member for Croydon, just exploded with anger at the Parole Board Chair. It was then discovered that the Parole Board Chair was not in the country at the time (in fact, she was in England) and that she had not actually presided over the case. Another member of the Parole Board who had been appointed, as it turned out, by the previous attorney had actually conducted the review and allowed the prisoner to be released on parole. Notwithstanding that, the Chair came back from England and said, 'If one of my colleagues has dealt with this matter and there is some error, I take responsibility for it'.

It was then discovered that for some two weeks a warrant issued for Mr Robinson to be taken back into custody for breach of parole had sat on a table, so to speak. There was a question raised at the time by the general community about why the police had not apprehend this person. So, whilst a reasonable question was asked by the public about why the Parole Board let him out at all, upon being notified of a breach of parole, the Parole Board instructed that parole be withdrawn but no action was taken.

By the time we came to debate this bill, assurances had been given by the police that they were going to act immediately on warrants that were issued as a result of breaches of parole. Apparently, by the time we got to the debate here in this chamber, there were no outstanding warrants as such and they were actually ensuring that practice. That was of some comfort, I think, to all members here in the house.

However, the single area of reform which came through on this bill was to take away the exclusive powers of the Parole Board and use the police commissioner instead; but, more importantly, for the Chief Executive Officer of the Department for Correctional Services to be able to trigger the procedure that would withdraw the parole of a prisoner, presumably for breach of one of the conditions. The opposition raised concerns about that at the time because the executive and administrative role—indeed, a very important role—of the Department for Correctional Services was in the management of prisoners, not judicial matters.

The Hon. J.M. RANKINE: Point of order, Acting Chair: this history lesson by the member for Bragg is very interesting, but I understand that we are dealing with two amendments not revisiting the entire legislation and her view of history around it.

The ACTING CHAIR (Hon. M.J. Wright): We are dealing with amendments 1 and 2, and I am sure the shadow minister will ensure that her comments are in regard to those amendments.

Ms CHAPMAN: I appreciate that, and I appreciate that the minister was not perhaps privy to the original debates on this, so I hope I will make it very clear quickly. What happened since this debate is a very interesting thing, bearing in mind that the thrust of this reform was to bring in administrative people—the Chief Executive Officer of Correctional Services, for example—to come in on parole and to be able to make sure this thing could not happen again.

In the very case that had triggered this legislation last month, the coronial report was handed down on the death of Shane Robinson and during the course of that coronial inquiry, evidence was given about the circumstances surrounding this case. In particular, the chief executive of correctional services, namely, Kevin Hill, gave evidence to the inquiry that after the attacks and death—

The ACTING CHAIR (Hon. M.J. Wright): Point of order!

The Hon. J.M. RANKINE: When we get to a clause that deals with this, I can understand the member for Bragg—who is not the shadow minister; the member for Morphett is—talking about these things, but I do not think now is the time to revisit the history as she knows it. We are here to deal with the clauses that are before us and they are not about the CE's powers.

The ACTING CHAIR (Hon. M.J. Wright): I will ask the member for Bragg to confine her remarks to amendments 1 and 2, please.

Ms CHAPMAN: I am happy to repeat it all when we get to some further amendments, if you like, or I am happy to conclude reference to this and you have my undertaking not to repeat it all again when we get to the next amendment, but because this is a package, and the government has shown, I think, some judgement in accepting some modification to the powers of the chief executive in this package of amendments, which I welcome—it does not go as far as I would like to, but nevertheless it is welcomed—I am happy to just place on the record the reason why we are pleased with the government in that regard.

After the attacks and death, questions were raised and there were allegations obviously at the time that have been dealt with, but his evidence was that there had been a delay in information from the department of corrections in that very case. So we not only have the parole board with a question mark over it, we have the police department and the very institution that was going to be accepting responsibility under this bill with a shadow cast over them for many of the reasons that the opposition had raised in the original debate.

I suppose you can say, in the end, 'We told you so.' That gives us no comfort here in the parliament; what gives us comfort is that we get these things right and that we do the best we can to ensure that things are done properly. In respect of amendment No. 1, I am amazed that this is one of the two that they are rejecting. Firstly, 'on reasonable grounds' is frequently used in legislation. In fact, in the very bill we are about to finish off after this one, the government has included provision for a reasonableness factor to be put in it.

It is all through the criminal legislation and it is just bizarre to me that the government would reject this when it comes to the exercise of executive power. In this case, it is that of a correctional services officer; in the other bill it relates to a police officer in confiscation of spray cans and implements for graffiti. This is not an uncommon thing, so how this weakens the bill, I do not know. I think the minister needs to explain that and we may need to move into committee to do that.

The second matter, which she has spoken on, really relates to this question: there is a quite reasonable attempt to try and manage information transfer between prisoners who want to do bad things with that information. In dealing with that, legal practitioners of course have access to their clients, and this militates against, as I think the member for Morphett said, persons who might be lawyers but who would act in a manner which is totally unprofessional—in fact if they were to do so, it would probably be illegal—to be the courier of information under the guise of pretending to be their legal practitioner.

The addition of 'acting in his or her professional capacity' personally I did not think was even necessary. However, what is amazing now is that in the other place when they are saying that it is confined to that, I am just amazed that the government would stand here today and remove that. It does not weaken this at all. In fact, it eliminates even more the relationship between the legal practitioner and the prisoner being protected against these obligations by saying it must only be in his or her professional capacity. I just cannot understand where the government is going on this.

In any event, our position is very clear, as indicated by the member for Morphett. I would ask the minister to go back and either re-read it or get some advice again on it because it seems to me that it would only strengthen her argument to accept this amendment.

The Hon. J.M. RANKINE: The shadow minister purports to be a practitioner of common sense. These two amendments are based on common sense. They are about putting in place measures that are going to protect prisoners from intimidation and harm The removal of prisoners from prison by the police so that they are not under the watchful eye of other prisoners—

The ACTING CHAIR (Hon. M.J. Wright): We are still dealing with amendments Nos 1 and 2.

The Hon. J.M. RANKINE: Yes, that is amendment No. 1 I am talking about. It is simply common sense. The fact that members of the upper house removed the clause that a legal practitioner would not be recorded if he was representing his client is astonishing. To put in place this amendment, again, just simply puts prisoners at risk.

Motion carried.

Amendments Nos 3 and 4:

The Hon. J.M. RANKINE: I move:

That the Legislative Council's amendments Nos 3 and 4 be agreed to.

Motion carried.

Amendments Nos 5 and 6:

The Hon. J.M. RANKINE: I move:

That the Legislative Council's amendments Nos 5 and 6 be disagreed to.

It was never the intention of the original act to provide reasons to the prisoner for refusal by the Governor in Executive Council of their non-release. We are talking here about prisoners who have been convicted of the most serious crimes. This point was made in December 2010 by the Chief Justice, John Doyle, in the James David Watson case. The Full Court unanimously found that the Governor was not bound by the board's recommendations stating:

It's not a case in which the Governor was obliged to make particular findings of fact, jurisdictional or otherwise. It's possible the Governor was simply not persuaded that the release was appropriate.

The Executive Council takes its responsibility under the act very seriously and has used its responsibility to keep in prison some of the state's worst criminals who continue, in the view of the Executive Council, to be a significant risk to the community's safety.

We have a system where people are convicted by a court, sentenced by a judge and, at a predetermined time, may apply for parole. They are assessed by the Parole Board, but in these very serious cases the law has given Executive Council and the Governor oversight of whether these people pose such a risk that they should not be released out into the public. The Executive Council of this government has taken that responsibility very, very seriously.

I can give you some examples of the sorts of people who have been refused: Michael Allen Shillabeer, who, in 1992, abducted and stabbed to death a 17-year-old girl before dumping her naked body in a scrubland near Truro; and criminals like Kevin Riley, who murdered and attempted to rape a little seven-year-old boy, whose body was discovered near his house at Brooklyn Park in 1988. These men are behind bars because of this government's application of the act as it stands; otherwise, these people would now be walking amongst our community. I see absolutely no reason why, after going through all of those processes and taking responsibility very seriously, the Governor's decision should then revert back to a judicial review.

Dr McFETRIDGE: I look at this particular amendment on (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.

I think that is pretty open and you can do that, but I would also approach this from another point of view. I agree 100 per cent with the examples the minister has given of people who should not be allowed out of gaol, but, as I say, I am just a simple bloke and, when life is the sentence, why doesn't it mean life, and you would not be having to face this? If these people are dangerous prisoners, they should have been sentenced in the first place. I do not want them to come out. I just do not want them out there in society.

There are some people who would want to go even further than saying, 'Bang them up for the rest of their mortal days.' Some of those people would want to shorten those mortal days quite considerably. I am not saying that at all, but what I am saying is we would not even be discussing this if there was some, I suppose, truth in sentencing, in this case. If you are sentenced to life, it should be until the day you die. It should not be that, in a few years' time, we are going to have to consider. You are the lowest of the low. Fancy attacking a child and fancy doing some of the crimes we have been given examples of. I do not want them out on the street. They do not deserve to be out on the street, ever.

So, why can't we approach it from the other point of view? In the meantime, I think there is room in this amendment to make sure that the Executive Council does not have to divulge its reasons through the Governor. So, I think we can live with this. Once again, I will say I am not a lawyer. There may be things in here that complicate this, but I would be like most people out there just thinking that these people are seriously nasty, dangerous people who should be banged up for the rest of their life. We should not be considering parole.

Ms CHAPMAN: Just when I thought the minister was having a light bulb moment and had realised how important it was to listen to the upper house and accept the previous amendments, now we find that she has demonstrated the very difference between the government and the opposition. Let me say this: this is a fundamental difference between them and us.

We say that if you demand that the behaviour of someone who acts in such a reprehensible way, whether it is the mutilation or death or rape of a child, across to other heinous crimes, whether it is the abuse of the vulnerable, whether it is multiple murders—I mean, there are a number of things which are heinous. If they are so bad, if they are so aggravated, if they are so disgusting and so nauseating to a government, then there is every likelihood they will be so to the public.

So, why not have the courage to bring in the criminal law consistent with that and come into this parliament and say, 'We are going to throw away the key'? 'Forget about all that rehabilitation bulldust; they do not deserve it. We are going to change the law so that in a number of circumstances'—like the minister has outlined—'they should never get out.' Well, that is the difference between them and us. If we say there is never a chance of rehabilitation for these people, they should never see fresh air and birds fly again, then we would come into this parliament and would make those laws. All we are asking here is that, except in a circumstance where the public will be put at risk, they should give some reason.

There is another very good reason for that, apart from just being a transparent and open government, which they pretend to be when they clearly are as opaque as that back wall behind you, Mr Chairman. There is another very good reason, and that is that we pay a lot of money to Frances Nelson QC and other members of the Parole Board to do this job, to actually make assessments, call in these prisoners, talk to them about what they have been doing, get witnesses from the department of corrections (these are all people who work for the minister) and bring them in and get information from them about what is important to consider whether they are eligible for parole are not, whether that application is going to be successful. Time after time after time these prisoners come before the Parole Board on those applications only to find a circumstance where, on multiple occasions by this government, there is just an executive decision: no, do not release, parole decision overruled.

The money alone that is spent, let alone the cruel expectation that people might have even if you think they are the lowest scum on earth, to keep dragging them back out of the prison going through all that process, wasting the time of the witnesses, the correctional services people, all that wasted time, energy and resources could be money that could be applied some other way—in helping rehabilitate prisoners who do have a chance, who are decent people, or whatever we might do to help crime prevention so that other young people do not end up in prison.

There are a number of different worthy causes that that money could be put towards. All I am asking, and the opposition has asked and the Legislative Council has given some consideration to and supports, is that we have some disclosure of reasons, with the very clear caveat that there surely can be circumstances—and I have quoted this before—where a government is privy to information that is so sensitive, that is so critical to a question of public risk, that in those circumstances that should not be disclosed. It is usually in the form of intelligence that comes forward. Sometimes it is collected by security organisations and even if that information were released to the public it may cause alarm.

So there always has to be an executive power preserved to protect against that, and that is why parole boards, members of the profession, Chief Justice, all sorts of people out there, not just the people in here in the opposition, have said, 'Let's be sensible about this and understand that whilst this government is regularly putting the black stamp on this legislation it is important to preserve executive power.' I have always supported that. We just ask them to give a reason in a circumstance where there is no public risk. Let the prisoner then go back into the prison and not waste the time and all the resources that are currently being wasted as they drag back and forth on these applications for parole where there is clearly no light of day.

I had hoped that having a new minister we might actually have a breath of fresh air on this and a bit of understanding, especially as this is a minister who has had experience in dealing with families and communities; families that have come in contact with that department are the breeding ground, sadly, for children who do not enjoy the benefits of so many other children, and who end up down in those prisons. I think that it is very disappointing that the government should act in a way which is not transparent when they have an opportunity here to still do what they want to do, but just explain to the public when they do so.

The Hon. J.M. RANKINE: This government has shown very clearly that it is unlike the previous Liberal government that was a rubber stamp for anything that came to it from the Parole Board, so you might just as well not have had a system of Executive Council oversight. We will not be a rubber stamp to that and there are situations where we have disagreed with the view of the Parole Board on the risk posed to the community here in South Australia.

I have given only two examples of that, and members opposite have said how heinous those crimes are. The shadow minister says these people should never be let out, yet what they want us to do is support an amendment that means that the Governor has to provide reasons to these people as to why they have not been granted parole, and open up for these people to actually tie up the courts in challenge after challenge. We are not prepared to go down that road.

Motion carried.