Correctional Services (Accountability and Other Measures) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (17:20): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

The Correctional Services (Accountability and Other Measures) Amendment Bill 2020 (the Bill) will enable the Department for Correctional Services (DCS) to continue to provide the highest level of prisoner and offender management, whilst building a strong rehabilitative culture.

The Bill proposes various amendments to the Correctional Services Act 1982 (the Corrections Act). Targeted consultation was undertaken on the proposed amendments and I would like to thank all of the stakeholders that provided feedback; a number of changes have been made to the Bill as a result of the consultation.

In particular, I would like to thank the Commissioner for Victims' Rights for her contribution during the consultation phase. The Commissioner always has the interests of victims at the forefront of her mind and has added to the Bill in a number of ways, not least of all by increasing opportunities for the impact on victims to be considered when parole related decisions are being made.

It is no surprise the Presiding Member of the Parole Board was also integral to the consultation phase. She is always available to consider the Government's views on how we can improve our justice system and her experience and knowledge in this area is invaluable.

This Bill, or at least the early version, has had somewhat of a long life. I know those on the other side attempted to get some of these changes made during their last period of Government but never managed to get the bill through.

I am proud that our government will deliver this important reform. We have taken some of the early work done by those opposite and significantly beefed the bill up, giving more weight to victims, changing the process for re-release on parole of life sentenced prisoners and expanding on the powers of the Chief Executive of the Department.

Of fundamental importance is the insertion of a new Section at the beginning of the Corrections Act which introduces for the first time, 'Objects and Guiding Principles'.

The objectives of the Correctional Services Act reflect best practice for achieving a balance between the requirement to safely and securely manage prisoners, whilst promoting the rehabilitative and reintegration needs of prisoners and offenders. It also acknowledges the importance of respecting the rights of victims of crime and promotion of community safety.

Effective end to end case management is critical in order to provide prisoners and offenders with the tools to develop pro-social supports and reintegrate to the community through access to appropriate support, programs and services. Improving case management has been a particular focus of this government when it comes to corrections, and we have invested significantly in both infrastructure and information technology to support these functions.

For the first time staff management will form a key part of the Corrections Act. The Bill contains new provisions allowing the Chief Executive (CE) to compel staff to participate fully in post incident reviews and investigation processes. It also provides a power for the CE to remove and reassign duties to an officer or employee working in a correctional facility in cases where the CE does not have confidence in an officer or employee's integrity, honesty or conduct.

Importantly, the Bill will ensure that South Australia complies with the inspection requirements of places of detention under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the associated Optional Protocol to the Convention Against Torture (OPCAT), which the Commonwealth Government ratified on 21 December 2017.

Significant amendments have been made to the provisions relating to the inspection of prisons. The current Corrections Act has very basic provisions enabling the appointment and visiting functions of independent Inspectors to visit prisons. The Bill proposes to introduce an 'Official Visitors' scheme, establishing a group of independent, appropriately skilled visitors that meet OPCAT while also meeting the contemporary needs of a prisoner population, including specialists in mental health and wellbeing and Aboriginal representatives. The Bill provides detail on the role, function and reporting obligations of the new official visitors scheme.

In keeping with the principle of rehabilitation, and recognising the Government's commitment to 10 by 20, the Bill proposes to provide greater access to rehabilitation and vocational training for people on remand. Importantly the Bill will require Parole Board to consider a structured day in setting conditions of release on parole. The Parole Board must consider imposing a condition of Community Service on a prisoner who does not have any employment or study obligations upon the commencement of the parole period.

As I mentioned earlier, in reforming the Corrections Act we have considered the views, expectations and impact of decisions on victims. A number of important changes have been made to ensure victim impact, and the impact on a victim's family is taken into consideration, particularly with respect to parole board decisions.

To further protect and promote the needs of victims of crime, prisoner mail will be limited in certain circumstances to prevent prisoners from contacting directly or indirectly any victim, alleged victim or persons associated with their offending.

We have also tightened the provisions around the release of victims' details, protecting the release of details to prisoners by the Parole Board in its obligation to provide information when making decisions that are reviewable by the Parole Administrative Review Commissioner.

The Commissioner for Victims' Rights will be automatically advised when an award of damages is paid to a prisoner and subsequently quarantined for victims (and certain others) to make claim under Part 7 of the Corrections Act. Should no specific victim make a claim against the compensation funds, fifty percent of the remaining funds will be credited to the Victims of Crime Fund, with the remaining fifty percent to be used by the prisoner for rehabilitation and reintegration at the conclusion of their sentence.

This change acknowledges that in many instances there are multiple victims associated with a prisoners offending (i.e. drug trafficking offences) and the receipt of substantial compensation by a prisoner would be contrary to community expectations.

We are bringing the Bill in line with current technological advances as well as addressing future use of technology within our prisons by ensuring that monitored and recorded communications can be used in court, for intelligence, investigative or for evidentiary purposes by certain bodies.

This is an important change that will enhance community safety, allowing justice agencies greater ability to gather evidence and work together to prevent future offending. This includes recordings by correctional officers with body worn cameras. Body worn cameras have been trialled in other States' corrective services and are used by South Australia Police.

The Bill will introduce 'prison buffer zones' for the purpose of possession of drugs under the Controlled Substances Act 1984. Penalties will also be increased for possession of unauthorised mobile telephones within a prison buffer zone. The intention is for these zones to be similar to school zones, in which the sale, supply or administration of a controlled drug is prohibited.

Other important reform includes preventing prisoners who are sentenced for offences of dealing or trafficking drugs from receiving automatic parole. Currently, prisoners who are sentenced to less than five years imprisonment for these offences are eligible for automatic parole at the end of their non-parole period. Requiring these offenders to apply for parole will require their appearance before the Parole Board who can then consider factors including their program participation while in custody and the safety of the community before granting release.

We will also expand the type of offences that are subject to review by the Parole Administrative Review Commissioner in relation to decisions for release on parole. Currently only parole decisions for life sentenced prisoners are subject to this review; the Bill proposes to introduce a prescribed class of prisoner to capture those offences including conspiring, assisting or soliciting to commit murder, as well as offences of impeding investigation of offences or assisting offenders when the offence established by the principal offender is the offence of murder. This amendment will capture serious offenders including Snowtown accomplice Mark Haydon who was charged with seven counts of assisting with the disposal of the Snowtown bodies.

The Bill proposes an additional review mechanism for the re-release to parole of those prescribed class of prisoners who have been returned to custody on an alleged parole breach. In deciding whether to re-release an offender onto parole the Parole Board will be required to consider any submissions from the Attorney-General, the Commissioner of Police or the Commissioner for Victims' Rights. This additional requirement will give victims of life sentenced prisoners an added voice as well as allow the Attorney General or Police Commissioner to raise concerns they may have on behalf of the community about a life sentenced prisoner being re-released onto parole.

Other amendments to enhance the efficiency of parole processes include:

Increasing the membership of the Parole Board from nine members to 11 members;

Enabling a suitable person appointed to be the deputy of any member of the Board (other than the presiding member or either of the deputy presiding members) to act as any member of the Board, where a member is absent or unable to act;

Giving the Parole Board the ability to set the timeline to assess the progress of life sentenced prisoners or prisoners serving an indeterminate sentence whilst in custody;

Enabling prisoners to appear before the Parole Board via Audio-Visual Link if possible and appropriate;

Allowing for swift and certain community-based sanctions that will see a finite suspension of parole for technical breaches; this will allow a short sanction either in custody or at a place including premises declared to be a probation and parole hostel (if these were to be established in the future);

An emerging security issue is the use of Remotely Piloted Aircraft (RPAs) also referred to as unmanned aircraft or drones. As technology advances and RPAs become more sophisticated, their accessibility to the public is also increasing. While the Commonwealth regulates airspace, it is a matter for each State to decide how to deal with RPAs in relation to prison security. Already we have seen several cases interstate where RPAs have been flown over prisons.

RPAs present a significant risk to correctional institutions, particularly if they are used to introduce contraband into prisons. 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.

Other important changes in the Bill include providing for the circumstances in which restraints may be applied to prisoners, introducing a new provision prohibiting prisoners to be involved in disrupting security or order of a prison by participating in a riot and / or unlawful assembly.

There are 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 State's prisons and this is to ensure the proper safeguards are in place to maintain privacy and protect individuals.

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

The objects and guiding principles of the Act are set out.

6—Amendment of section 4—Interpretation

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

7—Amendment of section 6—Criminal intelligence

Amendments are made to the criminal intelligence provisions in connection with proposed new section 85CB (which allows the CE to obtain certain information (which may include information in the nature of criminal intelligence) from the Commissioner of Police).

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

One amendment allows for delegations by the CE without the Minister's approval. The other amendment adds the words 'officer or' before 'employee of the Department'.

9—Substitution of Part 3 Division 2

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

Division 2—Official visitors

20—Official visitors

The Governor will appoint official visitors.

20A—Independence

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

20B—Remuneration

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

20C—Staff and resources

The Minister will provide official visitors with necessary resources.

20D—Functions of official visitors

The functions of official visitors are set out.

20E—Provision of information to official visitor

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

20F—Requests to contact official visitor

Provision is made in relation to prisoners contacting official visitors.

20G—Reporting obligations of official visitor

The reporting obligations of official visitors are set out.

20H—Confidentiality of information

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

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.

Another amendment makes provision in relation to letters from prisoners to victims being in contravention of the section.

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

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

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

Section 35A(2) is amended so that a party to a communication that may be monitored or recorded is not required to be informed of the fact that the communication may be monitored or recorded, unless the communication occurs in circumstances prescribed by the regulations.

The Independent Commissioner Against Corruption is added to the list of persons whose communications with prisoners cannot be recorded.

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

A new subsection is inserted to authorised 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.

13—Amendment of section 36—Power to keep prisoner apart from other prisoners

Extensions to directions under section 36(2) are provided for.

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 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—Amendment of section 42A—Minor breach of prison regulations

17—Amendment of section 45—Procedure at inquiry

These amendments add the words 'officer or' before 'employee'.

18—Insertion of Part 5 Division 3

New offence provisions are proposed to be inserted:

Division 3—Criminal offences

49—Disrupting security or order

Offences relating to a prisoner taking part in an unlawful assembly, riot or mutiny are prescribed.

49A—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.

19—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.

20—Amendment of section 52—Power of arrest

This amendment provides that an officer or employee of the Department or a police officer may, without warrant, apprehend a person who is subject to an order of a court or a warrant of commitment authorising their detention in custody and who the officer or employee of the Department or police officer suspects on reasonable grounds has been released from custody in error.

21—Amendment of section 55—Continuation of Parole Board

The number of members of the Parole Board is increased from 9 to 11.

The other amendment is consequential.

22—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).

23—Amendment of section 59—Deputies

Currently, a deputy may be appointed in respect of a particular member of the Board to act in that member's absence. The amendment would allow for a deputy to be appointed in respect of any member so that, in the absence of any member, the deputy could act.

24—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.

25—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.

26—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.

The other amendment is consequential.

27—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.

Another amendment expressly includes the impact of release of a prisoner on parole on any victim and their family as a matter that the Parole Board must take into account in determining an application for release.

Another amendment relates to inserting the words 'officer or' before 'employee'.

28—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.

Proposed new subsections (1ab) and (1ac) relate to the Board being required to consider imposing a condition on a prisoner's release on parole that the prisoner perform community service if the Board is satisfied that the prisoner will not (on their release on parole) be undertaking remunerative or voluntary work or a course of education, training or instruction.

Another amendment expressly includes the impact of release of a prisoner on parole on any victim and their family as a matter that the Parole Board must take into account in determining the conditions of release of a prisoner on parole.

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

29—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 by persons released on parole who are serving sentences of life imprisonment and (for all other persons on parole) breaches involving offences or serious parole breaches. Other technical amendments are made relating to provisions that have had effect.

30—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 (other than a person serving a sentence of life imprisonment) has breached a condition of their parole (other than a breach that is to be dealt with under section 74).

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

This amendment is consequential.

32—Amendment of section 76—Apprehension etc of parolees on Board warrant

These amendments allow the presiding member or deputy presiding member of the Board to issue a warrant for the arrest (or the arrest and return to prison) of a person whose release on parole has been cancelled (currently, only a magistrate may exercise this power).

33—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).

Also, currently a registered victim may make submissions to the Board in proceedings. An amendment proposes that other victims also be empowered to do so.

Provision is made for the Attorney-General, Commissioner of Police and the Commissioner for Victims' Rights to be given notice of proceedings relating to an alleged breach of a parole condition by a person released on parole who is serving a sentence of life imprisonment and for the Board to take into account any submissions made by a person given notice of the proceedings.

Another amendment relates to inserting the words 'officer or' before 'employee'.

34—Amendment of heading to Part 6 Division 4

This amendment is consequential on the amendments relating to prisoners of a prescribed class.

35—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.

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 he offence established as having been committed by the principal offender is the offence of murder.

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 reference to an offence of murder includes—

an offence of conspiracy to murder; and

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

36—Insertion of Part 6A

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

Part 6A—Management of officers, employees of Department etc

77Q—Preliminary

Part 6A applies in addition to, and does not limit the operation of, the Public Sector Act 2009.

77R—Investigative powers of CE

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

77S—Removal and reassignment of duties of officer or employee working in correctional institution

This proposed section provides that if the CE does not have confidence in the suitability of a prescribed employee to continue working in a correctional institution, having regard to the prescribed employee's integrity, honesty or conduct, the CE may cause the prescribed employee to be immediately removed from the correctional institution (if necessary) and assign other duties to the prescribed employee and determine the place or places at which the duties are to be performed.

37—Amendment of section 81E—Notice to victims to be published

This amendment requires the CE to forward a copy of a notice under the section to the Commissioner for Victims' Rights.

38—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.

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

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

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

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

41—Amendment of section 81T—Drug and alcohol testing of officers and employees

This amendment is technical.

42—Amendment of section 85C—Confidentiality

New subsections (a1) and (a2) provide that certain information must not be disclosed except with the authorisation of the CE. Other amendments relate to these new subsections.

43—Insertion of section 85CB

New section 85CB is proposed to be inserted:

85CB—Disclosure of information relating to criminal history

The CE may request the Commissioner of Police to provide certain information about relevant persons (who are defined). The CE may refuse certain applications relating to employment based on information provided under the section (without providing grounds or reasons for the refusal).

44—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).

45—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.

46—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.

47—Insertion of sections 87A and 87B

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

87A—Operation of remotely piloted aircraft

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

87B—Remotely piloted aircraft—special powers

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

Schedule 1—Related amendment and transitional provisions

Part 1—Amendment of Public Sector Act 2009

1—Amendment of section 59—Right of review

A decision by the CE under the Correctional Services Act 1982 (relating to refusing an application to which the Commissioner of Police has objected) is prescribed as a decision not subject to review for the purposes of section 59 of the Public Sector Act 2009.

Part 2—Transitional provisions

2—Visiting inspectors

Existing visiting inspectors cease to hold office on the commencement of the new Part relating to official visitors.

3—Allowances and expenses of members of Parole Board to continue

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

4—Review of release on parole relating to prisoners of a prescribed class

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).

5—General

This is a general transitional provision relating to amendments to the Act effected by the measure.

6—Other matters

This provision relates to proposed new sections dealing with the management of officers and employees of Department.

Debate adjourned on motion of Hon. T.T. Ngo.