Correctional Services (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 September 2018.)

The Hon. T.A. FRANKS (16:14): I rise on behalf of the Greens to indicate our support for the Correctional Services (Miscellaneous) Amendment Bill 2018. This bill, which has been introduced in the other place by the Minister for Police, prohibits members of outlaw motorcycle gangs and organised crime groups from visiting prisons. It limits the rights of child sex offenders to be visited by persons under the age of 18 years, and it also institutes workplace testing of prison officers, staff and contractors for alcohol and illegal drugs.

However, this bill, while similar in name to a bill brought before this parliament and that passed through one chamber of this parliament under the Weatherill government, is sadly missing many of the components of that previous bill, the Correctional Services (Miscellaneous) Amendment Bill 2017. Some of those aspects have been raised by the member for Elizabeth in the other place, and I understand the opposition is exploring introducing a bill that compiles some of those areas, but an area that has not yet been investigated that I would like to raise today and ask some questions and raise my concerns about is why the investigative powers of the chief executive provisions in the previous Weatherill government bill do not appear here in this Marshall government bill.

In the Correctional Services (Miscellaneous) Amendment Bill 2017 there was to be, just before the section on drug testing of officers, a part 7A to be inserted, entitled 'Management of officers, employees of Department', etc. It noted, under the proposed section 81T, 'Investigative powers of CE' of proposed division 2, 'General':

(1) The CE may, for the purposes of the review or investigation of any matter relevant to the CE's powers, functions, duties or responsibilities under this or any other Act—

(a) by notice in writing—

(i) require an officer or employee of the Department to appear at a specified time and place; or

(ii) require an officer or employee of the Department to produce a specified document or object that is relevant to the subject matter of the review or investigation; and

(b) require an officer or employee of the Department to answer truthfully questions put by the CE that are relevant to the subject matter of the review or investigation.

(2) An officer or employee of the Department who fails to comply with a requirement under this section or hinders the exercise of powers under this section is guilty of misconduct for the purposes of the Public Sector Act 2009 and any other Act.

(3) A person is not obliged to answer a question or to produce a document or object (other than a document or object of the Government) under this section if to do so would tend to incriminate the person of an offence.

The bill further goes on to note that the 'Commissioner of Police may object to certain applications for engagement or appointment' and to set out several more clauses.

I raise my concerns as to why this particular provision has not been brought forward in this incarnation of the bill. One would have thought that the previous bill had been well consulted on—indeed, the Minister for Police in the other place has pointed to that consultation that was undertaken under the Weatherill government—and that if there were not to be the same provisions, reasons would be given for why they were not here.

My first question to the minister is: what does happen if an officer or employee of the department fails to comply with a requirement under any powers of the CE; what are the investigative powers currently of the CE; and what provisions are made for an employee who is guilty of misconduct for the purposes of the Public Sector Act? That is my first question.

I now turn to the reason why this concerns me so greatly, which is of course the death in custody of Wayne Morrison. At the moment, the South Australian Coroner's Court is hearing evidence with regard to the death of Wayne Fella Morrison, who, at the age of 29, died in September 2016 after being restrained and placed face down in a prison van at Yatala Labour Prison.

The inquest into Mr Morrison's death has heard that he was restrained, and on the opening day of the inquest CCTV footage was released showing a group of officers restraining Mr Morrison and placing him in the van, transporting him to another area of the prison before pulling him out of the vehicle unresponsive some three minutes later. The court heard that there was no CCTV recording from inside the van, which, according to evidence provided by the Justice Project to the Select Committee on the Administration of South Australia's Prisons in 2017, is not the case interstate.

It has been reported that precisely what occurred in the van is unknown as seven of the eight prison staff who accompanied Mr Morrison declined to provide police statements. I note that the court also heard that Mr Morrison's hands and legs had been restrained and a spit mask had been placed on his face before he was put face down in the van with that group of prison officers. The court also heard that Mr Morrison had suffered a heart attack and multi-organ failure.

It is also believed that a number of other factors may have contributed to Mr Morrison's death, including psychological and physical stress related to his initial aggression and subsequent restraint, restraint asphyxia, positional asphyxia in respect to how he was transported and asphyxia related to the spit mask. It is of great concern that after Mr Morrison was pulled out of the van, blue and unresponsive, there was another delay of almost three minutes before CPR was performed upon him. He was then taken to hospital and died three days later.

Mr Morrison was reported to have been calm, polite and in good spirits when he was initially taken into custody six days earlier. However, it has been reported his mental state deteriorated and no psychological assistance was provided to him in prison. He was also not treated in terms of his ethnicity and his Aboriginality was not recognised; therefore, he did not receive support from an Aboriginal liaison officer as he was entitled to do.

It is of great concern that the efforts of police officers to investigate this case have been hampered by prison staff. Police were unable to establish a forward command just inside the prison for several hours after their initial request to do so. It has been reported that police officers at the time were told some of the prison staff involved in the incident were no longer on site, but police later discovered they were in fact still there. It is also of great concern that the Department for Correctional Services (DCS) who remained on site were grouped together after this incident. They were all potential witnesses and, at the very least, they should not have been grouped together.

At the time of this incident, many questions were raised in this place. I note that I put a question to the then minister for corrections, who is now the member for Croydon. There were many calls for an independent inquiry at the time, and in response to a question I asked the then minister on 2 November 2016, the Hon. Mr Malinauskas stated:

I know for a fact that an independent inquiry is taking place because that is what the Coroner is—an utterly independent body…

That said, another form of independent inquiry is taking place and that is being conducted by SAPOL. South Australian police are totally independent from the Department for Correctional Services. Let me give you a hot tip: they are utterly separate from each other. SAPOL of course is conducting its own inquires and one of the most elite units within SAPOL, in the form of Major Crime, is conducting it. I am very confident that what we will have, once all these investigations and inquiries have concluded, is the knowledge about exactly what took place regarding Mr Morrison.

Those words have not borne out to be true. I do not think the minister expected this situation, and I wonder if perhaps the then minister inserted the very clause I have referred to in the previous bill for those very purposes: to ensure that investigations, when they are required, are done thoroughly and with the cooperation of those within the corrections system.

I note that the chief executive, Mr Brown, gave evidence to the parliamentary select committee on prisons. He noted that the Ethics, Intelligence and Investigation Unit (EIIU) were also undertaking an inquiry. He commented in April 2017 that this process of the EIIU was run parallel to that of the SAPOL investigation. On 6 April 2017, Mr Brown stated to that select committee:

We commence our process in terms of a factual investigation of the incident as soon as practicable after the incident has concluded. In this situation, where we face the tragic circumstances of someone passing away, we also work very closely with SAPOL who are, under the coronial act, charged with preparing a report for the Coroner. Our internal investigation is conducted in a way that supports SAPOL in their investigation in terms of the provision of files and evidence and information that they need, and we then conduct our investigation in parallel.

He went on:

Needless to say, an investigation is a complex process, and we've identified through internal factual investigation in the order of 55 people who are either involved in or witnessed the incident, but that is quite a wideranging scope. My advice is that SAPOL have conducted 35 interviews, and they are the people that SAPOL have sought to interview. The EIIU investigator has interviewed 25 people. Five people have so far been interviewed by both SAPOL and our internal investigator.

My understanding is that all staff who have been identified on that list have been interviewed by either SAPOL or our internal investigation team. I would anticipate that, as the EIIU continue their investigation, it may be and it probably will be that they will seek to interview some further witnesses who have given statements to SAPOL, but we might have some internal procedural process questions that we need to explore with them which may not be specifically relevant to the scope of the SAPOL investigation, so that process is ongoing.

Yet, despite two investigations we still do not have answers, and the Coroner is quite rightly raising concerns that, I think, should be raised in this parliament.

I ask again for the government to explain why the investigative powers of the chief executive of Corrections have not been inserted into this bill. I give notice that I will consult and seek to reintroduce them as an amendment to this bill, and I look forward to that being welcomed by all sides of this council. With those few words, I commend parts of the bill.

Debate adjourned on motion of Hon. I.K. Hunter.