Bills

Correctional Services (Accountability and Other Measures) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 2 February 2021.)

Amendment No. 1:

The Hon. V.A. TARZIA: I move:

That the Legislative Council's amendment No.1 be disagreed to.

I am grateful to the member for Elizabeth for working with me and the Department for Correctional Services and my office in reaching a final position on this amendment. In disagreeing with the amendment, we will reinstate the original government amendment, which provides that an Aboriginal prisoner is entitled to seek review of a transfer of 200 kilometres or further from the correctional institution that they are being transferred from. The 200-kilometre zone creates a radius between metropolitan correctional institutions and takes into account the need to transfer prisoners in order for them to complete rehabilitation programs, attend medical appointments or be transferred for their own safety as well.

Notwithstanding the 200-kilometre provision, it acknowledges that transferring an Aboriginal prisoner from one of the state's regional prisons to another correctional institution may result in an Aboriginal prisoner being transferred to an institution further away from his or her family. Accordingly, they are given the right to appeal such a decision, which is consistent with the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

Motion carried.

Amendment No. 2:

The Hon. V.A. TARZIA: I move:

That the Legislative Council's amendment No. 2 be disagreed to.

In respect of amendment No. 2, we would like to disagree and also amend to clarify that the provision applies to prisoners under the care of DCS. I consulted the Hon. Ms Tammy Franks in the upper house, and I thank her for her cooperation. She moved the initial amendment in the Legislative Council and she is happy with that clarification.

Motion carried.

Amendments Nos 3 to 8:

The Hon. V.A. TARZIA: I move:

That the Legislative Council's amendments Nos 3 to 8 be agreed to.

I think we have agreement to move amendments Nos 3 to 8 en bloc. I thank the member for Elizabeth for his cooperation. The government has worked closely with the shadow minister and also members of the crossbench in the other place to finalise the provisions relating to the official visitor scheme. Amendments strengthen the functional independence of the scheme, so it will constitute a body suitable to be designated as the national preventative mechanism for SA prisons as required as part of our obligations under the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).

The CHAIR: The minister has moved amendments Nos. 3 through to 8 inclusive en bloc. Before I put that question, the member for Elizabeth wishes to speak.

Mr ODENWALDER: I do not want to delay this bill any further. I appreciate the opportunity to speak to all the amendments at this time, since these are being moved en bloc. I first of all want to thank the minister's office and the department—this is a fairly unusual process that we are going through at the moment—for their cooperation and the collaborative nature in which we worked. I also want to acknowledge the very good work of the Hon. Connie Ms Bonaros and the Hon. Tammy Franks in the other place in arriving at a position where we can all support the bill at this time.

This relates to amendment No. 1, so I apologise for the lack of process. What we have essentially done is take the bill, which is a very good bill, which establishes a visitor scheme amongst other things, and is the culmination of some work which was undertaken in the previous government and continued in this government. We have now seen two bills which are the culmination of that work.

The matters in question essentially fell into two camps, and they were the Labor amendments, which related to some provisions around Aboriginal prisoners and which tried to put into effect recommendations of the Royal Commission into Aboriginal Deaths in Custody. I am pleased that the government adopted the spirit of those and accepted some of those amendments. I note that we have arrived at a position now where I will not be opposing the government's amendment to one of my amendments, and I will explain briefly why.

The initial amendment I brought to this place when it was in the House of Assembly under the previous minister established a review mechanism by which Aboriginal prisoners could get their movements reviewed if they were moved from one correctional facility to another. We know that Aboriginal prisoners—all prisoners, but Aboriginal prisoners in particular—respond well to rehabilitation. It reduces reoffending if one of the conditions is that they are accommodated close to their familial ties, close to their networks.

The government's position was that this should be limited only to movements of 200 kilometres or more for regional prisoners. Initially, as history will record, we opposed that amendment both here and in the other place, but now I indicate that I will not be opposing the government's insistence on their amendment. I do this on the basis of two assurances which came out of various conversations but particularly a conversation with the department.

Those two assurances were that under the case management system, which we have improved through the last two parliaments, there is already a review mechanism in place for administrative decisions of Corrections. That has the effect of Aboriginal prisoners being able to review their movements from one facility to another. The minister can correct me if I am wrong, but the other assurance is that moving prisoners from one facility to another in close proximity to each other may indeed have the perverse effect of denying that Aboriginal prisoner access to rehabilitation and allowing other people to move into the place of that Aboriginal prisoner who may need and benefit from certain educational processes or certain rehabilitation.

As I indicated, we will not be opposing the government's insistence on that amendment. I do leave open the possibility that we will be examining that, and we will be talking to people like the Aboriginal Legal Rights Movement over the coming months, as this bill takes effect, to see whether the intention of the bill as it will end up is fulfilling the needs of Aboriginal people. It remains to be seen whether it will reduce reoffending in the long run, but I sincerely hope it will.

That was essentially the Labor amendments. The other lot of amendments which came into the Legislative Council were essentially about the visitor scheme. The visitor scheme is a good scheme, obviously. It is a combination of work, as I said, from the previous government carried over into this government. What the Hon. Connie Bonaros and others intended to do was to clarify the language—and I am simplifying—around what it means to have free and unfettered access to a prison.

The intention of the bill, as the minister said, under our UN obligations, under OPCAT, were to allow an independent body of visitors to visit prisons to assess safety, to assess the rehabilitation services that are available to these prisoners and to make recommendations, and I think we landed on 'investigate' certain problems that exist in the prison system.

So the argument was around the technical wording of 'free and unfettered access'. I was convinced—and I understand that the Hon. Connie Bonaros and the Hon. Tammy Franks were convinced—that we could clarify that with certain caveats around security measures, privacy and those types of things that, in fact, would assist in the functioning of the visitor scheme under OPCAT.

That is the position we arrived at and that is why I will not be opposing the government's insistence on their amendments. It is not quite the same as supporting them and I do say that I leave open the option to examine them as things go forward. It may not be a final position but, I think that where we end up with the bill at the end of this debate will be a lot better than the corrections act we started with. I will not be opposing this motion.

Motion carried.

Amendment No. 9:

The Hon. V.A. TARZIA: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Page 9, after line 37 [clause 9, inserted section 20D]—After subsection (1) insert:

(1a) An official visitor has power to do all things necessary or convenient to be done for or in connection with the performance of the official visitor's functions and may have free and unfettered access to a correctional institution in respect of which the visitor is appointed.

I note the amendments the government is moving today in relation to the scheme are very minor in nature and seek not only to clarify but also to strengthen amendments which were made by the other place. I have met with the Hon. Ms Connie Bonaros MLC in relation to the bill and in particular this amendment. I am pleased to note that she seemed to be happy with the government amendment which ensures that an official visitor has both free and unfettered access to a correctional institution.

Motion carried.

Amendment No. 10:

The Hon. V.A. TARZIA: I move:

That the Legislative Council's amendment No. 10 be agreed to.

Motion carried.

Amendment No. 11:

The Hon. V.A. TARZIA: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Page 10, lines 17 to 20 [clause 9, inserted section 20E(1)]—Delete subsection (1) and substitute:

(1) A government or non-government organisation that is involved in the provision of services under this or any other Act must, at an official visitor's request, provide the official visitor with free and unfettered access to information relevant to the exercise of the official visitor's functions.

I know that we have worked with the Hon. Ms Bonaros to refine her original amendment. The Hon. Ms Bonaros has confirmed that she supports the government amendment which clarifies that a government or non-government organisation which is involved in the provision of correctional services must, at the official visitor's request, provide the official visitor with free and unfettered access to information relevant to the exercise of their functions.

Motion carried.

Amendments Nos 12 to 14:

The Hon. V.A. TARZIA: I move:

That the Legislative Council's amendments Nos 12 to 14 be agreed to.

Amendment No. 15:

The Hon. V.A. TARZIA: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Page 11, after line 26 [clause 9, after inserted section 20H]—insert:

20I—Offences

(1) A person must not, without reasonable excuse, hinder, resist or threaten an official visitor in the exercise of powers or functions under this Division.

Maximum penalty: $10,000.

(2) A person must not make a statement that the person knows to be false or misleading in a material particular to an official visitor in the provision of information under this Division.

Maximum penalty: $10,000.

(3) A person must not deliberately mislead or attempt to mislead an official visitor in relation to the exercise of powers or functions under this Division by the official visitor.

Maximum penalty: $10,000.

(4) A person must not—

(a) prejudice, or threaten to prejudice, the safety or career of; or

(b) intimidate or harass, or threaten to intimidate or harass; or

(c) do any act that is, or is likely to be, to the detriment of, either of the following:

(d) another person because the other person has provided, is providing or will or may in the future provide information to an official visitor in the exercise of powers or functions under this Division;

(e) an official visitor in relation to the exercise of powers or functions under this Division by the official visitor.

Maximum penalty: $10,000.

Honourable members may note that amendment No. 15 was missing a penalty for the offences set out in subsection (4), so the government amendment addresses this omission. It is supported by the Hon. Ms Bonaros in the other place who filed the initial amendment, and I thank her for that.

Motion carried.

Amendment No. 16:

The Hon. V.A. TARZIA: I move:

That the House of Assembly agrees with amendment No. 16 made by the Legislative Council and makes the following consequential amendment:

Clause 9, page 7, after line 33—Insert:

19B—Review

(1) The Minster must, within 5 years after the commencement of this section, cause a review of the operation of this Division to be undertaken.

(2) A report on the review must be provided to the Minister who must cause a copy of the report to be laid before each House of Parliament within 3 months after receipt of the report.

Clause 9, page 10, after line 15 [clause 9, inserted section 20D]—Insert:

(4) In exercising functions and powers under this Division, an official visitor must, so far as is reasonably practicable, ensure that those functions and powers are exercised in a manner that is not likely to—

(a) adversely affect the good order and security of a correctional institution or the safety of any person at, or whose work is connected with, a correctional institution; or

(b) adversely affect the protection from disclosure of criminal intelligence or the protection of the health, safety and welfare of a victim of an offence committed by a prisoner.

Clause 9, page 11, after line 6 [clause 9, inserted section 20E]—Insert:

(6a) In addition, information or a document is not required to be provided or produced under this section if to do so would involve the disclosure (directly or indirectly) of—

(a) criminal intelligence; or

(b) information in relation to or connected with a victim of an offence committed by a prisoner.

I note that these amendments have the support of the crossbench in the other place; I thank them for their collaboration. The amendments are in line with the approach taken by other jurisdictions in ensuring that an official visitor does not adversely affect the safety and security of a correction facility in exercising their powers and functions.

Motion carried.

The Hon. V.A. TARZIA: Before I close, I acknowledge the importance of this legislation for the correctional services system in South Australia. Once again we see that recidivism rates in South Australia remain the lowest in the nation at 42.3 per cent. Our government certainly believes that rehabilitation and reducing recidivism will ultimately make our community safer, and that is why we continue to make the biggest investment in metropolitan prisons in over a decade and why we are developing a business case for South Australia's first rehabilitation prison.

The bill contains several important reforms that not only improve prisoner management and further protect victims but also promote rehabilitation to ensure we remain the national leader in lowering recidivism. The bill also brings the Correctional Services Act in line with current technological advances and strengthens the ability for the department to stamp out drugs and criminal behaviour in our prisons.

I sincerely thank members in this place and in the other place. I understand it has been a robust discussion, but overall very productive. I thank them for their assistance in finalising what are very important reforms and I commend it to the house.