Correctional Services (Miscellaneous) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:42): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Reoffending has substantial costs for our community. It means more crime in our communities, more victims as a result of these crimes, and more expense through costly court proceedings and incarceration. Repeat offenders are responsible for a large proportion of our State's crime and the 2017 Report on Government Services reported that South Australia's return to Corrective Services rate was 46%.

We know that a reduction in reoffending means a safer community and frees up resources to invest more in important community services, like our schools and hospitals.

That's why in August last year this Government set a bold target to reduce the rate of reoffending 10% by 2020, and following a near-12 month review of the State's correctional system, a fundamental shift in corrections policy is now being driven.

This Bill supports the 10 by 20 Strategy and implements elements of the State Government's Action Plan and Response – ensuring that the Department for Correctional Services can continue to provide the highest level of prisoner and offender management, whilst building a strong rehabilitative culture, in line with National and International best practice in corrections.

Reforms in the Bill will have a range of positive impacts. A key proposal is the insertion of new Section 3 which introduces for the first time, an 'Objects and Guiding Principles' of the Act; the primary Objective and Principle being community safety. Along with providing for the proper administration of facilities and services and providing safe and secure management of prisoners, importantly, other key objectives and principles are to promote rehabilitation; to have regard to the rights of victims of crime; to consider particular needs and circumstances of prisoners and offenders; to recognise the importance of family and community involvement; and to support the reintegration of prisoners to the community as part of their rehabilitation. The new section also introduces a new objective to provide for the management of officers and employees. The objects and principles are fundamental in reducing reoffending and building a strong rehabilitative culture.

The Bill contains amendments that place a greater legislative emphasis on end to end case management as part of prisoner and offender assessment, planning and review functions. In correctional services, case management is the coordination of prisoner and offender care from the moment they enter the corrections system until the time they leave. Case management involves the individualised and planned management of offenders and prisoners based on a risks/needs assessment, and the development and implementation of case plans and progress reviews. Effective case management is fundamental in providing prisoners and offenders with the tools to develop pro-social lifestyles and the ability to reintegrate through access to support, programs and services and is based on international best practice.

This includes embedding these principles into staff requirements. Setting a higher standard for staff integrity and professionalism is important in underpinning offender rehabilitation, which in turn supports a reduction in reoffending. The Bill contains new provisions allowing the Chief Executive to compel staff to participate fully in post incident reviews and investigation processes.

An important aspect of this Bill is the introduction of drug and alcohol testing of Department for Correctional Services employees. This Government is absolutely committed to working to eliminate instances of contraband entering our prison system and to ensuring the highest standards of professionalism are maintained by those working in our prison system, and the introduction of this testing is a vital step towards these goals.

Further to this, the Bill introduces 'buffer zones' for the purpose of possession of drugs under the Controlled Substances Act 1984, to increase penalties for possession and increased penalties for unauthorised mobile telephones within a buffer zone surrounding prison sites. The intention is to be similar to school zones, in which the sale, supply or administration of a controlled drug is prohibited.

Further amendments include new provisions for the protection of biometric data from misuse. Biometric data is used as a security measure to control access to some of the States' prisons and it is important to ensure the proper safeguards are in place to maintain privacy and protect individuals.

The Bill also enables the use of recordings by body worn cameras worn by correctional officers. Body worn cameras have been trialled in New South Wales and Queensland corrective services. Amending the Act to allow for the future use of this technology in South Australian prisons will bring DCS in line with other jurisdictions. The cameras, which attach to the front of a correctional officer's uniform, eliminate the need for officers to carry hand-held cameras and are particularly useful in a spontaneous incident. Enabling this technology will provide additional benefits to current surveillance and CCTV used to monitor activities in prisons, will assist in protecting staff against violence, and could potentially deter unruly or offensive behaviour.

To further embed the principles of rehabilitation into law and better support the 10 by 20 Strategy and Response, the provisions relating to the inspection of prisons have been significantly amended. Whilst retaining the scheme's independence, which is key, the intention is to introduce 'Official Inspectors' to attract and retain a diverse, skilled independent and dynamic group that meets contemporary needs (for example inclusive of women and Aboriginal representatives, culturally diverse, and incorporating specialists in mental health and international standards), with a limiting term of appointment (three years) to ensure that involvement can be extended or limited in accordance with changing needs.

Other important reform includes preventing automatic parole for offences of dealing or trafficking drugs. Currently, prisoners who are sentenced to less than five years imprisonment for offences of deal or traffic drugs are eligible for automatic parole. To support the SA Ice Taskforce, and align with the South Australian Alcohol and Other Drug Strategy 2017-2021, the Bill excludes automatic parole for these offenders. Ensuring these offenders apply for parole will allow the Parole Board to consider such matters as the safety of the community and the likelihood of compliance with parole conditions before they are released into the community.

An emerging security issue is Remotely Piloted Aircraft (RPAs). Whilst the Commonwealth regulates airspace, it is a matter for each State to decide whether and how to deal with RPAs in relation to prison security in each State. There have been several examples interstate where RPAs have been flown over prisons. There is a risk that RPAs could be used to introduce contraband into prisons, and may threaten safety and security by recording images of prison security and operations. The emerging threat of RPAs (or drones) will continue to increase with the advancement of technology and sophistication around RPAs, as will accessibility of RPAs to the public. This Bill therefore contains new provisions to safeguard prisons from the potential risks associated with RPAs and other forms of aircraft to maintain the integrity of prison operations.

The confidentiality provisions in the Act have also been reviewed. Whilst necessary to maintain the security of prisons and protect the privacy of prisoners, the Bill provides better support for the principles in the Public Sector (Data Sharing) Act 2016 and the Information Sharing Guidelines by improving access to information in appropriate circumstances and to relevant people such as family and kin and to Agencies. Appropriate release of certain information will create greater transparency and accountability.

The Bill also seeks to modernise and strengthen provisions relating to the sharing of information with external justice agencies, specifically in relation to recorded prisoner telephone calls. It allows for the rerecording and dissemination of recordings of calls, including to a Court, by external justice agencies for intelligence, investigative or evidentiary purposes. This is an important change that will enhance community safety allowing justice agencies greater ability to gather evidence and work together to prevent ongoing offending.

To further protect victims of crime, the entitlement of prisoners to send mail will be limited in certain circumstances; including preventing prisoners from contacting directly or indirectly any victim, alleged victim or persons associated with their offending. In addition to this, the Bill provides for the automatic suppression of victim's names, where a victim makes a civil claim against a prisoner in regard to an amount awarded to a prisoner that is paid into the prisoner compensation quarantine fund.

Finally, the Bill amends Part 7 of the Act with regard to any amount held to the credit of a prisoner at the conclusion of the quarantine period to support the 10 by 20 Strategy and Response principles, by providing that fifty percent of funds held to the prisoner's credit at the conclusion of the quarantine period be credited to the Victims of Crime Fund, with the remaining fifty percent being credited to the prisoner's resettlement account, to be used for rehabilitation and reintegration at the conclusion of the prisoner's sentence

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Correctional Services Act 1982

4—Amendment of long title

The words 'to provide for certain powers relating to the management of correctional services officers and employees' are inserted into the long title.

5—Insertion of section 3

Proposed new section 3 sets out objects and guiding principles for the purposes of the Act.

3—Objects and guiding principles

6—Amendment of section 4—Interpretation

Definitions are inserted and amended for the purposes of the measure.

7—Amendment of section 7—Power of Minister and CE to delegate

These amendment allow for delegations by the CE without the Minister's approval.

8—Substitution of Part 3 Division 2

The existing provision relating to inspectors of correctional institutions is substituted with a new Division relating to official inspectors:

Division 2—Official inspectors

20—Official inspectors

The Governor will appoint official inspectors.

20A—Independence

Provision is made in relation to the independence of official inspectors.

20B—Remuneration

Provision is made in relation to the remuneration of official inspectors.

20C—Staff and resources

The Minister will provide official inspectors with necessary resources.

20D—Functions of official inspectors

The functions of official inspectors are set out.

20E—Use and obtaining of information

Certain powers to use and obtain information are set out for official inspectors.

20F—Requests to contact official inspector

Provision is made in relation to prisoners and their associates contacting official inspectors.

20G—Reporting obligations of official inspector

The reporting obligations of official inspectors are set out.

20H—Confidentiality of information

The provision provides that information about individual cases disclosed to an official inspector is to be kept confidential and is not liable to disclosure under the Freedom of Information Act 1991.

9—Amendment of section 22—Assignment of prisoners to particular correctional institutions

The requirement that a person who is sentenced to a term of imprisonment exceeding 15 days must not be imprisoned in a police prison is deleted.

10—Amendment of section 29—Work by prisoners

Distinctions in the current Act between remand prisoners and other prisoners relating to work are removed.

11—Amendment of section 33—Prisoners' mail

One amendment proposes that the regulations and the CE can prescribe that material is prohibited material for the purposes of the provisions relating to prisoners' mail.

Other amendments are consequential on the new Division relating to official inspectors.

Other amendments relate to prisoners nominating legal practitioners for the purposes of the provisions relating to prisoners' mail.

12—Amendment of section 34—Prisoners' rights to have visitors

The prohibition on children visiting child sex offenders is broadened so that a child cannot visit a prisoner who has ever been found guilty of a child sexual offence.

13—Amendment of section 35A—Power to monitor or record prisoner communication

Section 35A(2) is amended so that the regulations may, in relation to a communication of a kind prescribed by the regulations that may be monitored or recorded, provide that the parties to the communication must, at the commencement of the communication, be informed of that fact.

Another amendment is consequential on the new Division relating to official inspectors.

A new subsection is inserted to authorise the provision of a communication recorded or monitored (or evidence or information revealed by such a communication) to law enforcement agencies, prosecution authorities, any other agencies prescribed by the regulations, as well as the ICAC and the OPI for certain purposes set out in the provision.

14—Insertion of section 36A

Proposed new section 36A relates to the use of restraints:

36A—Restraints to be used on prisoners in certain circumstances

Officers and employees of the Department and police officers employed in correctional institutions are authorised to use restraints in certain circumstances, provided that the CE's requirements are complied with.

15—Amendment of section 37A—Release on home detention

This amendment is consequential.

16—Insertion of Part 5 Division 3

A new offence provision is proposed to be inserted:

Division 3—Criminal offences

49—Possession of certain items by prisoners

A prisoner commits an offence if the prisoner has possession of a controlled drug or a prohibited item in a correctional institution without the CE's permission.

17—Amendment of section 51—Offences by persons other than prisoners

Amendments are made to provide for an offence for persons to have possession of a prohibited item (which includes a controlled drug) in a correctional institution without the CE's permission. In addition, a similar offence is provided for in a correctional institution buffer zone. The latter offence is not committed if the person has a lawful excuse.

18—Amendment of section 55—Continuation of Parole Board

This amendment is consequential.

19—Amendment of section 57—Allowances and expenses

The allowances and expenses of members of the Parole Board will be determined by the Remuneration Tribunal (currently, the Governor determines these).

20—Amendment of section 60—Proceedings of the Board

These amendments relate to the constitution of the Parole Board and the sitting of the Board in divisions.

21—Amendment of section 64—Reports by Board

The time period within which the Board must report on the progress of life prisoners is amended from 1 year to the period of time designated by the presiding member.

22—Amendment of section 66—Automatic release on parole for certain prisoners

Section 66(1) is amended so that the Board is to order that prisoners entitled to automatic release on parole are released on the day on which their non-parole period expires.

Another amendment adds serious drug offenders to the list of those not entitled to automatic release on parole.

Another amendment is consequential.

23—Amendment of section 67—Release on parole by application to Board

The amendments relating to prisoners of a prescribed class are consequential on the amendments to Part 6 Division 4 (relating to reviews of the release on parole of certain prisoners).

The amendment to section 67(7ab) protects information relating to a victim (or a member of their family) of an offence of a prisoner from disclosure.

The amendment to section 66(11) is a technical amendment.

24—Amendment of section 68—Conditions of release on parole

Section 68(1aa)(b) is amended to provide that the release of a prisoner on parole automatically under section 66 is subject to the prescribed conditions (being conditions determined by the presiding member of the Board).

The deletion of section 68(2a) is technical.

Other amendments relate to the CE being given power to accept conditions of parole on behalf of a prisoner in certain circumstances.

25—Amendment of section 74—Board may take action for breach of parole conditions

This amendment is related to the insertion of new section 74AAA. It limits section 74 to breaches involving offences or serious parole breaches.

26—Insertion of section 74AAA

New section 74AAA is inserted:

74AAA—Board may suspend release on parole or take other action for certain breaches of parole conditions

The Board is empowered to make certain orders (including directing that a person serve a period of time in prison) where satisfied that the person has breached a condition of their parole (other than a breach that is to be dealt with under section 74).

27—Amendment of section 74AA—Board may impose community service for breach of conditions

This amendment is consequential.

28—Amendment of section 77—Proceedings before the Board

The provisions relating to proceedings before the Board are amended to provide that a prisoner is not entitled to be physically present in proceedings before the Board and that the Board can receive evidence or submissions from a prisoner not physically present by means of audio or visual link (or allow the prisoner to appear or be physically present before the Board).

29—Amendment of heading to Part 6 Division 4

This amendment is consequential.

30—Amendment of section 77A—Interpretation

Certain decisions of the Parole Board are reviewable by the Parole Administrative Review Commissioner. The current situation under section 77A is that the following decisions of the Board in relation to a prisoner serving a sentence of life imprisonment are reviewable decisions:

a decision to order the release of the prisoner on parole;

a decision as to the conditions to be imposed on the parole by the Board;

a decision to vary or revoke a condition to which the parole is subject.

The amendments proposed to the definition of a reviewable decision will expand on the class of prisoners in respect of which a decision may be a reviewable decision so that it applies to decisions of the Board in relation to a prisoner of a prescribed class.

A prisoner of a prescribed class is defined to mean—

a prisoner who is serving a sentence of life imprisonment for an offence; or

a prisoner who is serving a sentence of imprisonment for an offence against section 12 of the Criminal Law Consolidation Act 1935 (Conspiring or soliciting to commit murder); or

a prisoner who is serving a sentence of imprisonment for an offence against section 241(1) of the Criminal Law Consolidation Act 1935 (Impeding investigation of offences or assisting offenders) as an accessory if—

(i) the offence established as having been committed by the principal offender is the offence of murder; and

(ii) the principal offender committed the offence of murder in prescribed circumstances.

Accessory and principal offender are defined as having the same meanings as in section 241(1) of the Criminal Law Consolidation Act 1935.

For the purposes of Part 6 Division 4—

(a) an offence of murder will be taken to have been committed in prescribed circumstances if, in the opinion of the Commissioner—

(i) the offence was committed in the course of deliberately and systematically inflicting severe pain on the victim; or

(ii) there are reasonable grounds to believe that the offender also committed a serious sexual offence against or in relation to the victim of the offence in the course of, or as part of the events surrounding, the commission of the offence (whether or not the offender was also convicted of the serious sexual offence); and

(b) a reference to an offence of murder includes—

(i) an offence of conspiracy to murder; and

(ii) an offence of aiding, abetting, counselling or procuring the commission of murder.

31—Amendment of section 81L—Payments out of fund where legal proceedings notified

This amendment provides that the remainder of any prisoner compensation quarantine fund (after payments in accordance with the scheme) are to be divided equally between the Victims of Crime Fund and the prisoner.

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

This amendment is substantially similar to the amendment to section 81L.

33—Amendment of section 81O—Payments out of fund where no notice given

This amendment is substantially similar to the amendment to section 81L.

34—Insertion of Part 7A

A new Part is inserted relating to the management of officers, employees of Department:

Part 7A—Management of officers, employees of Department etc

Division 1—Preliminary

81S—Interpretation

A definition of designated position is inserted.

Division 2—General

81T—Investigative powers of CE

The CE is given investigative powers in relation to officers and employees of the Department.

81U—Commissioner of Police may object to certain applications for engagement or appointment

Certain employment applications may be referred to the Commissioner of Police, who may object to the application. If so, the CE may refuse the application (without providing grounds or reasons for the refusal).

Division 3—Drug and alcohol testing of officers, employees etc

81V—Interpretation

81W—Drug and alcohol testing of officers and employees

81X—Drug and alcohol testing of applicants to Department

81Y—Procedures for drug and alcohol testing

81Z—Biological samples, test results etc not to be used for other purposes

The sections in proposed Division 3 provide for drug and alcohol testing of officers and employees of the Department. The scheme is substantially similar to the scheme in the Police Act 1998. One key difference is that proposed section 81W(2)(d) allows the CE to require drug and alcohol testing on the ground that the CE considers that an officer or employee should undergo such testing.

35—Amendment of section 83—CE may make rules

The CE is empowered to make rules for the purposes of the new drug and alcohol testing scheme (see section 81W(2)).

36—Amendment of section 85C—Confidentiality

New subsection (a1) provides that certain information must not be disclosed except with the authorisation of the CE.

The other amendment and the inserted definitions relate to that new subsection.

37—Amendment of section 85D—Release of information to eligible persons

The need for a written application for release of information is deleted. Another amendment changes the reference from [a prisoner's] 'family or a close associate of a prisoner' to [a prisoner's] 'immediate family' (which is a defined term).

38—Insertion of section 85E

A new section is inserted relating to biometric data:

85E—Confidentiality of biometric data

Provision is made relating to the use and disclosure of biometric data obtained from visitors to prisons.

39—Amendment of section 86B—Use of correctional services dogs

The provision clarifies that correctional services dogs may be used to search an officer or employee of the Department at a correctional institution or probation and parole hostel.

40—Insertion of sections 87A and 87B

New sections are inserted relating to the operation of unmanned aircraft around correctional institutions:

87A—Operation of unmanned aircraft

It is an offence to operate an unmanned aircraft within 100 metres of a correctional institution without the permission of the CE.

87B—Unmanned aircraft—special powers

The CE is given powers relating to the seizure of unmanned aircraft in certain circumstances.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of Public Sector Act 2009

1—Amendment of section 59—Right of review

Certain decisions of the CE under the Correctional Services Act 1982 (relating to refusing an application to which the Commissioner of Police has objected and to transferring or assigning different duties to an officer or employee of the Department if the CE considers that the officer or employee is not suitable to continue working in a correctional institution) are prescribed as decisions not subject to review for the purposes of section 59 of the Public Sector Act 2009.

Part 2—Transitional provisions

2—Transitional provision—allowances and expenses of members of Parole Board to continue

This transitional provision continues the determination of the Governor relating to the allowances and expenses of members of the Parole Board until the Remuneration Tribunal has made a determination under the section as amended.

3—Transitional provision—review of release on parole relating to prisoners of a prescribed class

This transitional provision makes it clear that the amendments to the Correctional Services Act 1982 in this measure relating to the review of the release on parole of prisoners of a prescribed class do not apply to a prisoner of a prescribed class if, prior to the commencement of this clause, the prisoner has been released on parole. However, if, after the commencement of this clause, the release on parole of a prisoner of a prescribed class is cancelled, the relevant amendments to the Correctional Services Act 1982 made by this measure will apply to the prisoner (including any application for release on parole made by the prisoner after that commencement).

Debate adjourned on motion of Hon. T.J. Stephens.