CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: A number of questions were asked during the second reading debate and it would be easiest if I answer them now. In the course of the second reading of the proposed legislative amendments for this bill the Hon. Mr Brokenshire asked a number of questions relating to the Department for Correctional Services: I thank him for his questions, have sought a report from the minister and am pleased to provide the following response. The first question relates to the level of internet use by prisoners, the purpose for which they use the internet and safeguards that exist to ensure that prisoners cannot interact with members of the public via the internet. The Department for Correctional Services does not allow prisoners to have access to the internet or any other services that contain a modem. Access to any other electronic devices by prisoners is also prohibited in instances where the device has the potential to provide access to the internet, is capable of storing materials which may be prohibited or has the potential to allow the user to engage in a prohibited form of communication.

In instances where prisoners involved in approved study need material download, this is undertaken by education co-ordinators on the prisoners' behalf. Only prisoners accommodated in the Adelaide pre-release centre and involved in approved leave programs have the ability to access the internet when they are in the community. Such instances include when they are at an approved service provider for the purpose of searching for jobs or as part of their university or TAFE studies. The Department for Correctional Services and government will continue to ensure there are adequate security measures in place to protect the community in this regard.

The honourable member further inquired about prisoner entitlements to computer games and whether controls are in place regarding the ratings of games prisoners are permitted to access. The Department for Correctional Services restricts prisoner access to material that may be detrimental to safety and security of staff, prisoners and the community. In keeping with this approach only electronic computer or video games rated 'M', which is 15 plus or lower in accordance with the Classification (Publications, Film and Computer Games) Act 1995, are permitted in the South Australian prison system. Prisoners are not allowed access to any electronic, computer or video games that are violent, sexually explicit or have any racist content, regardless of their classification. They also do not have access to games designed for interactive play and which require the user to adopt the persona of a violent, antisocial or aggressive character or which depict violent, dangerous, aggressive or antisocial behaviours.

There have been instances where prisoners have inappropriately gained access to games, either through the purchase of PC magazines that contain trial versions of games, or through other means. The department reviews every such incident and takes whatever steps are necessary to remove the contraband and to prevent any further occurrences. The honourable member asked whether restrictions are imposed on television programs or video available for viewing in the South Australian prison system. Prisoners are only allowed access to films rated 'M' (mature) or lower under the classifications act. It should be known that the standards set out by the department in accordance with the act do not apply to free to air TV as prisoners can access any publicly accessible program.

In regard to current numbers of prisoners across the prison system in South Australia and details regarding future projections for prisoner numbers, I am advised that at the close of business on 10 November 2009 there were 1,980 prisoners in custody throughout South Australia. The daily average prisoner number represents the number of offenders in all South Australian prisons averaged out over a year. Prisoner numbers can fluctuate significantly from the average figures over a period of several months; for example, whilst the daily average for 2007-08 was 1,855, the department experienced a peak number of prisoners that year of 1,949 on 18 June 2008. It is important to recognise that it is not feasible to be precise on future prisoner populations; there will always be a number of unknowns and uncertainties with respect to future criminal justice policy, policing and sentencing practice, and demographics.

The department's methodologies for projection modelling are regarded as consistent with industry best practice and are largely based on previous trend data, current legislation and existing policies. The current projections available for the daily average prisoner population for the next three years are estimated to be 1,975 for 2009-10, 2,026 for 2010-22, and 2,078 for 2011-12. The department reviews prisoner projections on a longer and shorter term basis as part of capacity planning and management processes, and I am advised that the next comprehensive review is scheduled to commence this month.

The honourable member sought information on the number of home detention bracelets available for use by the department, as well as details relating to the budget in forward estimates and the use of such bracelets. Home detention was first introduced in South Australia in 1986, and it is a valuable mechanism for reintegrating prisoners into the community. The original program was introduced to support the graduated release of prisoners back into the community. South Australia is also one of the only states in Australia to have a home detention program for offenders on bail and intensive bail supervision. I am advised that there are currently 385 home detention bracelets available for use by the department. They are leased under contract with G4S Australia, and the average number of units utilised in October 2009 was 330, or 86 per cent. The 2009-10 budget for lease payments is $957,455.

The honourable member sought information concerning the functions and activities of visiting inspectors and tribunals. Visiting justices of the peace, visiting inspectors, are appointed by the Minister for Correctional Services to independently conduct inspections in each prison. I am advised that metropolitan prison visits generally occur on a set day (Tuesday), although inspectors can visit on any day. Visits to country prisons do not occur on a set day, and inspectors often attend the institutions without prior notice.

The role of visiting inspectors is to ensure that all prisoners are treated fairly and that their accommodation is clean and safe. They must also ensure that prisoners have access to adequate food and clothing. Prisoners may approach inspectors to discuss problems they may have, and inspectors are also called upon to investigate any complaints that affect the health and welfare of prisoners. On average, visiting inspectors speak to about 10 prisoners during a visit and most of the issues raised are dealt with at the time, with very few requiring additional follow-up. The visiting inspectors often discuss the issues raised by prisoners with the prison's general manager or delegate to ensure that they are made aware of the issues and that they facilitate the desired outcome.

It should be placed on record that inspectors are instrumental in reducing tension within the prison, thereby assisting in the safety and welfare of prisoners and staff. Inspectors have reported that in following up matters with prisoners they are able to report a high level of satisfaction with the level of cooperation they receive from prison management and staff across the system.

Independent tribunals are appointed by the minister to adjudicate on serious breaches of prison rules and hear appeals that originate from managers' inquiries. The visiting tribunals are also involved in witnessing the destruction of contraband seized within the prison system. Visiting tribunals operate on a rotational basis, averaging four prison visits per month. Both inspectors and tribunals are also available on an on-call basis.

In relation to the honourable member's question regarding probation hostels, I am advised that no hostels have been declared by the Minister for Correctional Services. However, the department, in conjunction with Housing SA, has received funding for a housing program for prisoners leaving prison. The Integrated Housing Exits Program is managed under contract by five different non-government organisations, being Aboriginal Prisoners and Offenders Support Services (APOSS), Offender Aid and Rehabilitation Services (OARS), Anglicare, Baptist Community Services and Centacare.

In asking these questions, to which I have responded, the honourable member also queried the status of MOW Camps and asked for some background information to be provided in relation to the ceasing of the program Operation Challenge. MOW Camps provide a valuable service to the South Australian community in various remote areas across the state. The program provides benefits to the community through its work in national parks, Balcanoona, the Coorong, Bimbowrie, Brookfield and the Gawler Ranges. There is currently an agreement with the Department for Environment and Heritage to operate from five locations.

The MOW Camp program has two camps operating in conjunction with each other: a 19-day camp which operates in locations south of Port Augusta and a 14-day camp which generally operates in locations north of Port Augusta. The camps program comprises a coordinator, five permanent supervisors and an average of 18 prisoners who participate in the program—12 on camp and six as reserves.

The work done by MOW Camps includes building restoration, feral non-native flora and fauna control, the cleaning of park facilities, walking track maintenance, fencing, conservation programs and the collection of statistics in terms of animal counts.

The Port Augusta Prisoner Reintegration Employment Opportunity program was piloted this year through the MOW Camp program. This program operates for a three-month period, utilising MOW Camp staff and equipment. This program is in partnership with the Department of Correctional Services and BHP Billiton. Clearly, these partnerships with the Department for Environment and Heritage and BHP Billiton have proved to be successful to date with significant benefits achieved both for organisations and for program participants, and ultimately for the South Australian community.

In relation to Operation Challenge, I am advised that it was discontinued as from 1 July 2002. The funding for Operation Challenge, which was not recurrent, was withdrawn as a result of the state government's 2002-03 budget and savings strategy on the recommendation of the Department of Correctional Services. Whilst Operation Challenge was considered to be of benefit to the department, competing priorities and pressures meant that funding this initiative could not be sustained and had to be transferred to higher priority initiatives. I thank members for their questions and interest in relation to this bill.

The Hon. R.L. BROKENSHIRE: Could the minister advise the council whether all prisoners in home detention situations have bracelets?

The Hon. G.E. GAGO: I am advised that not all detention prisoners have bracelets.

The Hon. R.L. BROKENSHIRE: This may need to be taken on notice but I would appreciate an answer even if it is not available now. Given that answer, how many on home detention do not have this tracking device?

The Hon. G.E. GAGO: I will take that on notice and bring back a response.

Clause passed.

Clauses 2 to 5 passed.

New clause 5A.

The Hon. R.L. BROKENSHIRE: I move:

Page 3, after line 37—After clause 5 insert:

5A—Amendment of section 5—Victims Register

Section 5—after subsection (6) insert:

(7) Any information or notification required or authorised by this act to be given to a registered victim will be taken to have been given to the victim if it is sent by post to the contact address relating to the victim included in the Victims Register.

The impact of this clause will become apparent in amendment 5, as they interrelate but, because amendments work numerically through the act, we have to deal with this amendment first. Clause 5 makes a couple of changes, one of which concerns notification to victims when someone is going to be released on parole. To ensure that this amendment does not unfairly tie up the Parole Board or anyone in the department, we want to make it clear that postage to the address on the Victims Register is sufficient effort to notify the victim. Anything more than that would be an undue burden on the Parole Board and government resources.

Over a long period of time now, victims have expressed to me their concerns about whether or not information and notification as a registered victim will be made available to them. I believe that it is really important that we look after these victims, and that is why we have moved this amendment.

The Hon. T.J. STEPHENS: I advise the Hon. Robert Brokenshire that we will be supporting his amendment. We think it is a sensible amendment, and we do not think it would be unwieldy or involve any undue costs.

The Hon. G.E. GAGO: The government does not support this amendment. The amendment proposes that information forwarded to victims who are registered with the Department for Correctional Services will have been facilitated if it has been sent by post to the contact address.

The current practice for the department is that every endeavour is made to maintain the contact details of registered victims, whether that be a postal address, email or phone details. Whilst victims generally provide the department with their postal address, they may prefer to be contacted via email, phone or SMS, or through an alternative contact person. The proposed change to the act would limit these avenues of contact, which are quite reasonable.

The department takes its responsibility to victims extremely seriously. As it stands, letters that are sent to victims and returned marked 'Return to sender. Not at this address,' are followed up with relevant agencies, such as the Commissioner for Victims' Rights and SAPOL, to determine whether more accurate records exist.

The proposed amendment is a backward step as it removes the more proactive approach currently taken by the Department for Correctional Services to positively engage and support victims of a crime in a manner they choose, and I think that is really important. If a victim chooses to be contacted by email or SMS, rather than by post, this amendment takes that right away from the victim. So, this amendment may actually end up going against the express wishes of the victim.

It is for those reasons we believe that this amendment should not be supported. I am sympathetic with the intent of the amendment, but the effect of it, given more modern methods of communication, could be quite obstructive.

The Hon. T.J. STEPHENS: Can the minister give us an undertaking that you are using and will be using those methods to contact victims? You have access, but where is the guarantee that you will do that?

The Hon. G.E. GAGO: I advise that the current practice of the department is that every endeavour is made to maintain the contact details of registered victims, whether that be their postal or email address or phone details. The advice I have received is that, if a victim indicates a particular preference for a contact mode, the department adheres to that wherever it possibly can.

The Hon. R.L. BROKENSHIRE: I would have preferred to see the government move an amendment to my amendment. If the government wants to cover electronic addresses, etc., it could move to insert those details. The key point of this amendment is that at least, at law, the department would have to notify the victim. It is not just policy or procedure; this amendment would put it into law. The problem I have had in the past is that there is no absolute guarantee. So, unless the minister can advise that there is an absolute and categorical guarantee that each victim would be notified, I think there is merit in this amendment. If the government wants to consider including electronic contact details and so forth, such as faxes and mobiles, it would not worry me at all. It is all about getting this into law to help the victims.

The Hon. G.E. GAGO: I am advised that the current law requires that the department has constant contact with the victim, so that it can keep the victim up to date with the movements of the perpetrator. So, the law already requires that, and I think the policy provision should be broad enough, given that the law already requires that we have contact with the victim and maintain a contact address wherever we possibly can. I believe it is within the interests of the victim that we are able to use whatever mode of contact the victim prefers.

New clause negatived.

Clauses 6 to 10 passed.

New clause 10A.

The Hon. R.L. BROKENSHIRE: I move:

Page 4, after line 33—After clause 10 insert:

10A—Amendment of section 37—Search of prisoners

(1) Section 37—after subsection (1a) insert:

(1b) The manager of a correctional institution may, in exercising a power under subsection (1a), use a detection dog.

(2) Section 37(6)—after paragraph (a) insert:

(ab) the number of times a detection dog was used during those searches; and

(3) Section 37—after subsection (6) insert:

(7) In this section—

detection dog means a dog that has completed training of a kind approved by the minister for the purpose of detecting the presence of a drug or any other prohibited item.

This amendment amends section 37 of the act to allow entry into the prison of detection dogs without the requirement for reasonable cause to suspect possession of illicit drugs, mobile phones, etc. There is evidence now that such dogs can sniff an element (cadmium) in mobile phones, so we have included those kinds of detection dogs in the definition section. We believe the minister has indicated that he is looking at this possibility. Family First passed on information to the minister about this possibility at least two years ago.

This amendment, in essence, enshrines in the act a power to order routine searches using detection dogs. Routine searches, of course, are searches in addition to any searches conducted where Correctional Services or SA Police have reasonable cause to suspect the presence of drugs or mobile phones in prison. I would ask members to consider supporting this amendment, because again only in recent times we have heard about illicit drug problems in the prison system.

There are enormous problems in not only our prison system but in probably all prison systems, when it comes to illicit drugs. Not all people who go into the prison system are illicit drug-addicted at the time or have committed crime as a result of being addicted, but it is interesting anecdotally, and from files that I have seen in the past, how many people who did not have a drug addiction when they went in end up coming out on a program and have a drug addiction problem.

Several years ago, when the department purchased one dog, a border collie that was not suitable for farm work, that border collie was trained in drug detection and used passively in the visiting rooms at Yatala. The difference that dog made to drugs coming through the system was enormous. We are seeing it now in nightclubs and venues, with the police using them.

I believe that we should take every possible step to ensure that we eliminate illicit drugs and that we are aware of issues involving mobile phones, bearing in mind what still goes on in the prison system with mobiles and TAB connections and the like. This new clause would be a good measure in terms of strengthening the miscellaneous amendments that the government is putting forward, most of which we are supporting, and I would therefore commend it to the committee.

The Hon. T.J. STEPHENS: I indicate the opposition's support for the new clause. Why would we not use any tools that we have at our beck and call to try to make sure that our prisons are as drug free as possible? It makes complete sense to us.

The Hon. G.E. GAGO: The government does not support this amendment. Again, we have sympathy with the intention, but we believe that some quite untoward effects will result from the amendment. The amendment seeks to include specific reference to detection dogs in relation to the searching of prisoners. It further proposes the inclusion of a definition of detection dog as well as a mechanism for reporting such searches.

Detection dogs are already used whenever necessary to conduct searches in the prison system. The dogs receive extensive training to international standards and are regularly reassessed. The—

The Hon. B.V. Finnigan interjecting:

The Hon. G.E. GAGO: I'm trying to win this debate on the floor. The proposed amendment has a potentially limiting effect, as it specifically talks about dogs being used to search prisoners but is silent on other search mechanisms. To include reference to other specific search mechanisms is potentially problematic, as technology is continually changing and new detection devices are being developed and coming onto the market all the time.

However, there is a potential danger that, by including one specific search method in the legislation, other technology, both existing and emerging, would be precluded from use unless it is also indicated or included in the Correctional Services Act.

The Hon. A. Bressington interjecting:

The Hon. G.E. GAGO: Well, that's the advice that I have received. If this amendment goes ahead you then set it up for other search mechanisms to be potentially precluded.

The Hon. A. Bressington: You can't amend without new technologies if they go?

The Hon. G.E. GAGO: There are two issues: one is that this amendment specifically refers to the search by dogs. We are saying that there are other search mechanisms, including a wide range of other technology. To start listing the other search devices is limiting because that evolves, but you could list dogs and all other search technologies and methods available. You could do that, but this amendment does not seek to do that. This amendment just seeks to mention dogs.

The advice that I have received is that, by listing only dogs, the amendment could potentially result in existing and emerging search methods being precluded, because—

The Hon. R.L. Brokenshire interjecting:

The Hon. G.E. GAGO: Well, I can only go on the advice that I have received, and that is the best advice available. Why would you risk it, when we already use dogs for searching and other search methods already exist and are used wherever they are assessed as being appropriate? This would create an ambiguity, and you could fix that ambiguity by listing everything. I am saying that you need to at least list everything, but then we would have to amend the provision every time a new technology came in. Of course, that is not impossible; I am just saying that it is clunky.

At the moment, with the range of search methods available, they are used when they are assessed to be most appropriate, and we are able to use emerging technologies as they come onto the market place, because the act currently provides the flexibility for us to do so. This amendment may not allow us to do that.

The Hon. R.L. BROKENSHIRE: I cannot buy that argument; it is one of the weakest and most pathetic arguments I have ever heard the department dream up. The fact of—

The Hon. G.E. Gago: You don't want the facts to get in the way, do you?

The Hon. R.L. BROKENSHIRE: Well, I am very interested in this area, because anything that can be done to keep illicit drugs out of prisons is a very positive initiative. I would not want to see a situation such as I once reported, where a prisoner got out of prison and within 24 hours was found at the beach deceased through a drug overdose. We have to put every possible effort into combating drug distribution and its use through the prison system. If this is passed into legislation, it certainly will not be and was never intended to be an impediment to the government of the day using any other initiative. My question is: is the Department for Correctional Services really serious about combating illicit drug use?

Tonight, at very short notice, the government moved an amendment in relation to management control over prison officers. When we move an amendment that gives the CEO, management and the department an opportunity, where there is reasonable cause, to utilise the best drug detection methods at the moment—that is, highly trained passive dogs—it wants to say no. This government is supposed to be tough on crime and prohibit illicit drug use, etc., but I shake my head. I am going to go strong on this amendment because I believe that it is a good amendment.

The Hon. T.J. STEPHENS: Minister, I think I can probably give you an undertaking from this side of the committee that we will be supportive of any amendment to legislation that you can bring forward that will try to make our prisons drug free. If this happens to be a good start or a good base, so be it, and we look forward to the work that you will do in future to be even stronger in regard to this issue.

The Hon. G.E. GAGO: Very briefly, I am very sympathetic to the intent of this amendment, and I accept that the honourable member is trying to strengthen search provisions. However, the advice I have received—whether or not he likes this advice, and he clearly does not—is that the effect of this amendment is that it is likely to weaken search provisions.

All we can do is accept the best advice available to us and share that so that members are informed. The government shares the view that we need to do everything we can in relation to strengthening search provisions. The intent of this amendment is to strengthen search provisions but, in terms of the best advice I have, I am informing members that it is highly likely that it will weaken them.

The committee divided on the new clause:

Majority of 3 for the ayes.

New clause thus inserted.

Clause 11.

The Hon. R.L. BROKENSHIRE: I move:

Page 4, after line 35—After the present contents of the clause (now to be designated as subclause (1)) insert:

(2) Section 37A—after subsection (3) insert:

(3a) The Chief Executive Officer must consider imposing the following conditions on the release of a prisoner under this division:

(a) a condition requiring the prisoner not to smoke, consume or administer a controlled drug (within the meaning of the Controlled Substances Act 1984) other than a controlled drug that has been lawfully prescribed for the prisoner;

(b) a condition requiring the prisoner to undergo random drug testing.

This amendment relates to home detention release conditions under section 37A(3) and seeks to provide that the chief executive must consider adding drug-free conditions for home detention. This amendment does not impose a mandatory requirement on the chief executive to impose these conditions, but they must turn their mind to imposing such additional drug control conditions, those being (a) that the person be completely free of drugs during their home detention and (b) thereby be liable to random drug testing if the chief executive considers it appropriate in all the circumstances. It is important to note that only illicit drugs, defined as controlled drugs in the amendment, are prohibited. Alcohol and prescription drugs one could call legal drugs and are not included in this matter. It remains open to the chief executive to impose conditions on legal drugs, but our amendment is only about making the chief executive consider illicit drug restrictions.

The Hon. T.J. STEPHENS: The opposition will not support the amendment. We feel that it is more than appropriate that the Parole Board look after such instances. We feel that it has reasonable powers and does a pretty reasonable job in difficult circumstances. Unfortunately we cannot support the amendment.

The Hon. G.E. GAGO: The government does not support the amendment. It requires the chief executive of the Department for Correctional Services to consider requiring home detainees to abstain from consuming alcohol or controlled drugs and requires them to submit to drug testing. Abstinence from alcohol and controlled drugs is already a standard condition of home detention. Furthermore, home detainees are considered to be prisoners and are therefore subject to the drug testing provisions outlined in the Correctional Services Act. Currently if a home detainee refuses to submit to testing or returns a positive result a breach is issued and a decision is made on whether to return the prisoner to prison. As such this amendment is considered unnecessary and is therefore not supported.

Amendment negatived, clause passed.

Clauses 12 to 16 passed.

New clause 16A.

The Hon. R.L. BROKENSHIRE: I move:

Page 5, after line 26—After clause 16 insert:

16A—Amendment of section 51—Offences by persons other than prisoners.

Section 51(1), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

(a) in the case of an offence against paragraph (b) of this subsection where the prohibited item is a controlled drug (within the meaning of the Controlled Substances Act 1984)—imprisonment for 2 years;

(b) in any other case—imprisonment for 6 months.

Section 51 of the act relates to offences by persons other than prisoners and covers relatives or friends intending to smuggle things into gaol, be it through visits, by throwing drug-filled tennis balls over prison fences, or by putting illicit drug powders under postage stamps or in birthday cakes—you name it. The global maximum penalty for all offences in section 51 is six months' gaol, and the existing bill does not touch those aspects. I am seeking to amend that provision to say that, if the offence involved the bringing of a controlled drug into a correctional institution, the maximum penalty should be two years' gaol. Presently the penalty for all smuggling offences is maximum imprisonment for six months, and I advocate that it should be two years.

This leaves room for a lower penalty to be imposed for a minor act, but it allows the courts to impose a more appropriate penalty for more serious and flagrant acts, such as the tennis ball incident we all saw on our television screens earlier in the year. Unfortunately it is something that occurs all too frequently. Whilst I appreciate that people throwing tennis balls into a prison facility might be charged with a supply offence under the Controlled Substances Act, we would not want a legal technicality to get the person off that offence so that all we are left with is a six-month maximum penalty under section 51 of the Correctional Services Act.

I commend the minister for wanting to take a zero tolerance approach on drugs in prisons, and this measure takes us much closer to that approach. I understand why the minister wants to do that: it is so important to keep these illicit drugs out of the prison system, and I move this amendment to send a very strong message to anybody who thinks they can bring illicit drugs into prison that there will be extraordinary penalties.

The Hon. T.J. STEPHENS: I indicate opposition support for the new clause. The opposition agrees that any deterrent to people who think that they can take drugs into prison should be applauded.

The Hon. G.E. GAGO: The government believes that the proposed increase in penalty will act as a further deterrent in relation to the delivery or introduction of prohibited items into correctional institutions that occur without the permission of the manager. It therefore supports this new clause.

New clause inserted.

Clause 17.

The Hon. T.J. STEPHENS: I move:

Page 5, after line 31 [clause 17(1)]—After inserted paragraph (ab) insert:

(ac) a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence against section 85 (being an offence consisting of arson) or 85B of the Criminal Law Consolidation Act 1935; or

This is the first amendment, and is made to ensure that prisoners convicted of certain arson and bushfire offences who are serving a sentence of less than five years are no longer eligible for automatic parole. The opposition regards these offenders as extremely serious offenders and seeks that they appear before the Parole Board, as will the other offenders the government is targeting with this legislation. The government has recently indicated that it will consider supporting this sensible amendment, and I look forward to that support.

The Hon. R.L. BROKENSHIRE: I advise that Family First will support this amendment. To the credit of the government, and also the opposition when they were in government, there have been moves to strengthen the legal and policing issues, etc., around arson. In fact, through Euan Ferguson and others this government has actually done some pretty handy work there. However, I think the opposition's amendment sends a very strong message to people who attempt to get involved in arson about the dangers and consequences. It is a commonsense amendment that puts a real deterrent there and sends out a message to the community.

The Hon. G.E. GAGO: The government supports this amendment. It believes it improves provisions around arson and bushfires and will act as a further deterrent.

Amendment carried; clause as amended passed.

New clauses 17A and 17B.

The Hon. R.L. BROKENSHIRE: I move:

Page 6, after line 16—After clause 17 insert:

17A—Amendment of section 68—Conditions of release on parole

(1) Section 68—after subsection (1) insert:

(1aa) The board must consider imposing the following conditions on the release of the prisoner:

(a) a condition requiring the prisoner not to smoke, consume or administer a controlled drug (within the meaning of the Controlled Substances Act 1984) other than a controlled drug that has been lawfully prescribed for the prisoner;

(b) a condition requiring the prisoner to undergo random drug testing.

(2) Section 68(1a)—after paragraph (c) insert:

(d) a condition preventing the prisoner from using the internet or using the internet in a manner specified in the condition;

(e) a condition preventing the prisoner from owning, possessing or using a computer or other device that is capable of being used to gain access to the internet.

17B—Amendment of section 77—Proceedings before Board

(1) Section 77(1a)—delete subsection (1a)

(2) Section 77(4)—delete 'The' and substitute:

Subject to subsection (6), the

(3) Section 77—after subsection (5) insert:

(6) The board must, as soon as is reasonably practicable after making orders in any proceedings relating to a prisoner or parolee, give the registered victim details of the orders (including, if the prisoner is to be released on parole, details of when the prisoner is to be released on parole and where the parolee is to reside).

(7) However, the board is not required to notify the registered victim under this section if the victim has indicated to the board that he or she does not wish to be so notified.

This amendment covers three issues, and parliamentary counsel has indicated that it is procedurally necessary to deal with the three issues as the one amendment. I indicate that if I do not receive support from honourable members on the three issues canvassed I will reconsider the situation.

Drug-free parole is similar to the home detention provisions, mentioned above, on drugs in the prisoner's system. This amendment amends section 68 of the act to provide that in this case the Parole Board, and not the CEO, must consider imposing conditions that the prisoner must not have illicit drugs in their system and may be liable to random drug tests for the duration of their parole period. The same comments that I made relating to home detention apply here; namely, that this provision does not apply to legal drugs such as alcohol but only to illicit drugs as controlled drugs. Obviously, the Parole Board can impose alcohol and other legal drug bans (which it does), as the minister with the carriage of this bill in this place indicated a while ago.

The second part of this relates to child sexual offenders and internet use. An element of this amendment requires the Parole Board to consider imposing an internet ban on a parolee where the person has been in prison for a child sexual offence. The intent here is simply to give the best possible effect to the paedophile internet restraining orders regime that was established through my colleague Dennis Hood's private member's bill, restraining people who have been convicted of child sexual offences.

Finally, the third one is regarding notification to victims. The amendments we seek to make to section 77 do not propose to change the list of persons that the board must notify of the receipt of a parole application and notification of the day and time fixed for the hearing of the application—that is, the prisoner, the CEO, the Commissioner of Police and the registered victim, if any. The amendment makes it mandatory for the board to notify the registered victim of the details of the orders made on an application, unless the registered victim has indicated that he or she does not wish to be so notified.

We feel this strengthens the level of respect and notification given to the victim so that the onus is on the board to keep the victim informed and not require the victim to ring the Parole Board to find out what happened in relation to the person who assaulted them, or whatever the offender did to them in the past. That is no slight on the board or the way it operates. The board may well be notifying victims as a matter of course, but we think it is worth reversing the onus in the act so that the notification occurs as a legal matter of course, rather than as a matter of choice for the board.

Of course, as I said, the victim can decline to be notified if they wish. As indicated in amendment No. 1, there is an out for the board in relation to this: it is obliged to send a notice to the address on the register but there is no obligation on the board to make sure that the victim knows the information, other than the requirements I have just highlighted.

The Hon. G.E. GAGO: The government is not supporting these amendments. In relation to the conditions of release on parole, the amendment seeks to include additional conditions on the release of a prisoner on parole. The conditions include not to smoke, consume or administer a controlled drug and to undergo random drug testing. Further, it is proposed that prisoners sentenced for a child sex offence should be subject to a parole condition preventing them from using the internet or owning, possessing or using a computer or other device that is capable of being used to gain access to the internet.

The Parole Board routinely imposes a condition that parolees are not to use a drug or substance that has not been prescribed by a legally qualified medical practitioner—that is already in place. This condition covers the use and abuse of prescription drugs as well as illegal drugs and, therefore, has a wider scope than the proposed amendment. This amendment actually limits what is currently provided for.

Further, it is a designated condition that all parolees are subject to drug testing as directed by Community Corrections officers. Refusal by a parolee to submit to testing will result in the cancellation of parole. The second part of this amendment seeks to prohibit parolees who have been convicted of child sex offences from accessing the internet. The Parole Board routinely imposes conditions that sex offenders are not to access pornographic material or prey on children. On that basis we believe that the provisions proposed are already adequately addressed.

In relation to section 77, the proposed amendment seeks to ensure that the Parole Board provides registered victims with details such as when the prisoner is to be released on parole and where the parolee is to reside. In accordance with the Correctional Services Act, registered victims are entitled to be provided with certain information. Victims are advised of details of the orders made by the board and the date and circumstances of the release of the prisoner. Consequently, the first two parts of the proposed amendment are already legislated.

The third part of the amendment is to legislate that the registered victim must be advised of the residence of the parolee. Registered victims are not currently advised of the residential address of the parolee. The Department for Correctional Services, along with the Commissioner for Victims' Rights, is of the view that to provide a registered victim with a parolee's address is not appropriate. Providing a parolee's address may encourage vigilante-type activities whereby parolees will be targeted. It could also result in undue risk to the victim, who could be wrongly blamed for any harassment or offences that target the parolee. In such instances, the victim could be placed at greater risk due to the potential for retaliation from the parolee. It should be noted that in those instances whereby the registered victim and the parolee have had some form of relationship prior to the offence, the registered victim is most probably aware of the residence of the parolee, anyway.

Since every offender has a parole condition not to attempt to contact or associate in any way with the victim of their crime, every effort is made to ensure that victims and offenders are not placed within close proximity to each other, thereby minimising the risk of accidental encounter. I am advised that the current processes work well. Legislating that an offender's location information be provided to victims may infringe on the privacy of the parolee as he or she makes attempts to reintegrate back into the community. For those reasons, we do not support the amendment.

The Hon. T.J. STEPHENS: We have taken a party position to support the Hon. Robert Brokenshire's amendment, but I admit to having some sympathy for the minister's argument. I thank the minister for the explanation. I certainly feel more comfortable about the situation.

New clauses negatived.

New clause 17A.

The Hon. G.E. GAGO: I move:

Page 6, after line 16—After clause 17 insert:

17A—Amendment of section 82—Unauthorised dealings with prisoners prohibited

(1) Section 82(1)—After 'contract' insert 'or other dealings of a prescribed class'

(2) Section82(3)(c)—Delete 'class prescribed by the regulations for the purpose of this section' and substitute 'prescribed class.'

This amendment seeks to clarify the term 'contract' in relation to persons who enter into a contract with a prisoner. In November 2007, a new section was inserted in the Correctional Services Act to prescribe that it is an offence for certain persons to enter into a contract with a prisoner without the prior permission of the Chief Executive of the Department for Correctional Services.

In a recent test case, prosecution of a person charged under this section of the Correctional Services Act was largely unsuccessful due to the interpretation applied to the term 'contract', which relied upon the definition in common law. As a result, this amendment is proposed to clarify that a person may not, without prior approval of the Chief Executive of the Department for Correctional Services, enter into a contract or other dealing of a prescribed class with a prisoner.

The Hon. T.J. STEPHENS: At this time, the opposition has decided that it cannot support the amendment, given our normal processes. I am sure members would be aware that, in our party room, all members of the Liberal Party can always exercise a conscience vote on any issues. An amendment such as this is something we would really need more time to put to the party room.

We certainly have sympathy for the amendment. There was a concern, more so for prison officers, that something that might be extremely trivial could actually finish up resulting in a term of criminal incarceration. At this point, we do not feel that issue has been clarified sufficiently for us. So, whilst we have sympathy for the intention, I am not sure that we can support the amendment at this time.

The Hon. R.L. BROKENSHIRE: In principle, I have sympathy for the intent of this amendment, too. The only concern I have is that, if it is very minor and technical, where is there a contract and not a contract with a prisoner? I understand the situation in relation to the legal case and what the government and the department are trying to do here. If it is a situation where there is something very small—let us say that an illegal CD is traded or contracted—will that result in a criminal offence for a prison officer? With my colleague away ill, I am not in a position to explore it, given that we only received it today. Given that we are nearly through this bill and it would not take long, I am suggesting to the minister that we report progress and clean this one up when people have had a chance to consider it a little more.

The Hon. G.E. GAGO: Obviously, the honourable member is at liberty at any time to move that progress be reported, but we are almost finished and I would urge him to deal with the matter now. It can always be recommitted if the member is not satisfied with the outcome, given that amendments have been made in this place, so it has to go back to the other place and then it will come back here.

The CHAIRMAN: I do not think the honourable member has moved to report progress. I think he has suggested that we might—

The Hon. G.E. GAGO: I am responding to that. I am saying that I suggest that we proceed. If he is not happy with the outcome of this it can always be recommitted and dealt with in between the houses. I would beg his indulgence that we keep moving and he use other means to tidy things up, if need be.

New clause inserted.

Clauses 18 and 19 passed.

Clause 20.

The Hon. G.E. GAGO: I move:

Page 6, after line 34—After subclause (5) insert:

(6) Section 89(3)(b)—delete 'matters' and substitute:

persons, things

This amendment supports a previous amendment by allowing for regulations to be made that prescribe different classes of dealings for different classes of prisoners.

Amendment carried; clause as amended passed.

Schedule 1 passed.

Schedule 2

The Hon. T.J. STEPHENS: I move:

Clause 1, page 8—

Line 4—After 'Correctional Services Act 1982' insert:

(the principal act)

After line 6—After its present contents (now to be designated as subclause(1)) insert:

(2) However, if, before the commencement of this clause, the board had, under section 66 of the principal act, ordered a prisoner to be released from prison or home detention on parole, the prisoner is, subject to the provisions of part 6 division 3 of the principal act as in force immediately before that commencement, to be released on parole.

The two amendments are tied. The first one is a technical amendment; all it would do is tie amendment No. 3 to the principal act, as amendment No. 3 seeks to amend the principal. So, amendments Nos 2 and 3 would need to be accepted together.

This amendment is about the transitional provision that provides that, where the Parole Board has already decided a date of release for a prisoner who was sentenced to imprisonment of less than five years with a non-parole period, the decision stands. The reason I have moved this is that without this transitional provision the position for prisoners in these circumstances is, certainly, unclear.

With respect to natural justice, we believe that that principal is wrong. Before anyone accuses me of being soft on this particular issue, I have to say that 'do the crime, do the time' is my motto, but I do have sympathy for the concept that we would like to have better people coming out of prison than when they went in, because, ultimately, they have to live next door to somebody. Nothing would grate on a person more than their feeling that the system has unfairly treated them, and that is the reason we believe this transitional provision position is quite important.

The Hon. G.E. GAGO: The government accepts this amendment. It is an in-house amendment to the government bill based on amendments moved in the other place by the member for Davenport. The amendment relates to section 66 of the Correctional Services Act. The effect will be that any prisoner convicted of an offence of arson will now be required to apply for parole, even if sentenced to less than five years in prison.

This amendment supports the government's commitment to community protection and law and order, and after due consideration, this amendment has been accepted. I would like to thank the honourable member for putting forward this important amendment.

Amendments carried; schedule as amended passed.

Title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.