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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-11-18 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. New clause, 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.

No. 2. New clause, 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.

No. 3. Clause 17, 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

No. 4. New clause, 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 dealing of a prescribed class

(2) Section 82(3)(c)—delete 'class prescribed by the regulations for the purposes of this section' and substitute:

prescribed class

No. 5. Clause 20, page 6, after line 34—After subclause (5) insert:

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

persons, things

No. 6. Schedule 2, clause 1, page 8, line 4—After 'Correctional Services Act 1982' insert:

(the principal Act)

No. 7. Schedule 2, clause 1, page 8, 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.

Consideration in committee.

Amendment No.1:

The Hon. A. KOUTSANTONIS: I move:

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

The government does not accept this amendment from the other place. To be completely frank, the department for corrections does a number of searches every year at random based on intelligence to keep good order in our prisons and we do it with very broad powers that are already enshrined in the act.

My concern here was that, in effect, codifying the particular use of a device, being a detection dog or sniffer dog or canine, may preclude other forms of software, machinery or hardware that we may wish to use. I have spoken to the Hon. Robert Brokenshire in the other place and have given him assurances that I understand his intent, and he has accepted the government's position and will be not insisting on these amendments in the other place.

Ms CHAPMAN: The opposition understands, on information from the minister, that this provision is not necessary and that furthermore the mover in another place is willing to withdraw the same. It is certainly the opposition's view that, in circumstances of a search, dogs can be useful in the detection exercises, so we would accept that, as the minister has indicated, if that is appropriate in the circumstances and recommended, that is an option available for the purpose of searching prisoners. We do not have any comment other than to note that it is the intention of the mover of the motion in another place not to press for this amendment in any event.

Motion carried.

Amendment No. 2:

The Hon. A. KOUTSANTONIS: I move:

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

This is another amendment moved by the Family First party in the other place and the government is happy to accept it.

Ms CHAPMAN: The opposition also supports the same and it is to ensure that there is an extra penalty at a higher level for those who might be involved in the use of a prohibited or controlled drug under the Controlled Substances Act. Essentially it will mean that there will be a penalty if you throw a tennis ball into a prison, and there will be a massive penalty if it is full of drugs.

Motion carried.

Amendment No. 3:

The Hon. A. KOUTSANTONIS: I move:

That the Legislative Council's amendment No. 3 be agreed to.

May I just say to the member for Davenport: thank you very much for this amendment. I put out a press release congratulating the member for Davenport on his tireless efforts and if he had read the press release he would have known that. Instead, unfortunately and alas, he claimed that I did not give him any credit. It could not be further from the truth.

I cannot control what the radio stations and TV news crews put to air so I want to reassure the member for Davenport that I did give him the credit he deserved for this amendment and I thank the opposition for moving it in the other place through the Hon. Terry Stephens. I also thank the member for Davenport for giving me the opportunity to consider this amendment between the houses.

The Hon. I.F. EVANS: I thank the minister for accepting our amendments in another place. They were on file here, from memory, for six months prior to that. I can understand how having two extra weeks after six months has made all the difference. It is an important reform. I am pleased that the government saw sense, and I am pleased that the record will show that the member for Davenport has moved another reform that the government has accepted. I congratulate the government on accepting the idea, and thank the minister for his contribution.

Motion carried.

Amendment No. 4:

The Hon. A. KOUTSANTONIS: I move:

That the Legislative Council's amendment No. 4 be agreed to.

This is a government amendment relating to unauthorised dealings with prisoners, which are prohibited, amending section 82(1) by inserting the word 'contract'. I understand that the opposition is cautious about this amendment and I understand its caution. However, it is inappropriate for prisoners and officers to be entering into any form of contract.

There will be a number of classes dealing with this where the opposition asked anecdotally, 'What about setting a minimum monetary standard to this level of contract? Should we prosecute an officer for handing a prisoner a cigarette or a cigarette lighter?' My answer to the opposition is that the department always uses common sense. However, if we do define a monetary value, what is the value you would put on, say, sexual favours, gifts, articles of property from high notoriety prisoners, for example, hand-drawn postcards or watercolour paintings?


[Sitting extended beyond 18:00 on motion of Hon. A. Koutsantonis]


The Hon. A. KOUTSANTONIS: The carrying out or passing on of threats, I am not sure how we put a dollar value on that. A prisoner passes on a threat to an officer and that officer—and I am not saying this happens—passes on that threat through another inmate: how do we put a dollar value on that kind of conduct? The improper performance of duties with the passing of information could undermine the security of the prison and therefore the safety of the staff and the prisoners. Many of these things which we are trying to stop do not have an intrinsic value, but they are totally inappropriate. I understand the concern of the member for Bragg would be: does that mean that, if an officer hands a cigarette to a prisoner, they could then be charged and be facing two years prison? No, we would not be doing that. For minor infringements, we would be using the Public Service Management Act to deal with those officers.

What I am concerned about is those contracts which are entered into which have no dollar value and which cannot be easily defined, yet are still dangerous to the good order of the prison and dangerous in the way that prisoners interact with officers. Ultimately, the public of South Australia would expect, and I think demand, that prisoners and officers not interact in a way that they are doing deals or contracts. The idea of a prisoner saying to an officer, 'Give my family a call. I have some spare parts at home or some furniture at home that I don't need that we're going to throw away, you can have that for free. Give my family a call and get that furniture or goods.' The moment that prisoner has said that they are worthless and are to be discarded, I wonder whether we could argue a monetary value.

Then again, of course, the passing of threats. I flagged earlier that, if we were unsuccessful in the courts, I would be coming back to the house with amendments to fix up this area, because I think South Australians would believe that our officers would not be allowed to enter into contracts with prisoners and that prisoners would not be allowed to enter into contracts with officers. While I understand the concerns of the member for Bragg—and I am sure she will outline them in detail now—I am happy for her to speak to the chief executive officer afterwards about the protocols we have put in place to manage these issues and give her an assurance that the department always acts honourably and with common sense.

Ms CHAPMAN: The opposition does not support this amendment. I think we need to be quite clear about the position. It is already an offence pursuant to section 82 for a correctional services officer to enter into a contract with a prisoner. A contract is something that arises out of a relationship between one or more parties where there is usually an invitation to treat, followed by an offer and acceptance, and is distinguishable from a gift if consideration is exchanged. It can be monetary. It can be a favour of some kind, some in kind benefit. That, if it occurs and is established, is an offence.

This amendment seeks to extend conduct which attracts a penalty as an offence to any other dealing of a prescribed class. Let us look at some examples that have happened. When it was discovered that Bevan Spencer von Einem had entered into an arrangement with one of the prison officials (I cannot remember his or her rank at this stage) and it was discovered that he was offering to sell some kind of artwork via that party, it was a very embarrassing incident for the minister's predecessor in this government to find that this had occurred. That type of conduct of entering into a contract in respect of the consideration paid is an offence under the current legislation.

The Hon. A. Koutsantonis interjecting:

Ms CHAPMAN: No, I will come to that in a minute. That is an offence. What has happened since that time—and, in fact, as we were advised at the briefing—is that Magistrate Tracey at the Adelaide Magistrates Court delivered a judgment on 29 September this year in Police v Nelson in which a prison officer was prosecuted for entering into a 'contract' with a prisoner in which he was entitled to collect, I think, some kind of motorcycle or motor wheel rims (or something of that nature) from a venue some place away from the prison and under the care of someone who was known to the prisoner. This was a benefit that he was to obtain in exchange for some funds. Magistrate Tracey dismissed the case on the basis that no contract had been established.

She identified the defect. She even, apparently, according to her own judgment, offered the opportunity for the prosecution to introduce evidence to remedy it—it did not. In summary terms, it stuffed up the prosecution. So, we have a request from the Commissioner of Police—who, of course, is responsible for the officers who prosecute these matters—saying, 'Well, look, the way we can deal with this is to extend this definition so that we are not forced to prove a contract but that we can have a dealing.'

The reason we had a problem in that case was because this was not properly prosecuted. Legislation is there that could have covered this matter if it was dealt with properly, so I am not persuaded by that to change the law which would otherwise have been adequate to deal with this matter. What the minister then says is, 'Look, there are other circumstances where it is inappropriate for a prisoner to have a dealing of some kind with a prison officer that in some ways could compromise the integrity of the operation and management of the prison and put other parties at risk—safety issues and the like,' and I accept that.

Let us just consider them. There are, I think, three categories here. One category is where a prison officer or prisoner is given something as a gift and, if a gift transaction occurs between these parties, I agree that that would potentially compromise the efficient and fair management of the prison. These parties are exposed to each other in a confined circumstance. There is a relationship of imbalance (as there needs to be), and the integrity of that working relationship must be protected. There is no question about that.

We have rules such as this for all sorts of relationships. We have rules against teachers having relationships with children because of that situation and the special relationship. We have rules between medical practitioners and patients. We have rules between nurses and patients. We have rules that are very strict, for example, between psychiatrists and patients, and sometimes there are criminal sanctions to going over that limit. But often there are not. Often there are penalties for the capacity of a party to continue operating professionally. For example, if it is found that a psychiatrist has had a relationship with a patient even after the treatment of that patient has completed, it is incumbent on the Medical Board to remove the right to practise. It is a pretty serious offence, because even post treatment that relationship has to be protected.

Prisoners and prison officers also have to be protected. So, a gift transferring between either party needs to be dealt with and clearly identified as being prohibited. But if you are going to throw someone in prison for giving the other party a gift it has to be for a pretty good reason. We make laws in here which relate to loss of employment or loss of professional qualification. In some circumstances an offence can attract a fine and in the most serious situations a prison term.

The opposition will not support a gift being transferred in the relationship between these two parties without at the very least there being a financial limit on that. That is fundamental to what is necessary, and it is fundamental throughout the criminal law system in this state that we protect against that. It is totally unacceptable to us that there be no limit at all on a gift and that gifts will be in the prescribed class, as identified within a dealing that is proposed.

There are two other categories about which the minister raises a question, that is, where there is a relationship of some kind of act or favour, or that is for the benefit of an inducement, which again could compromise that relationship. That is not a criminal offence. That is something which is totally improper for the purposes of that relationship. For a prison officer, for example, to seek it from a prisoner or expect it from a prisoner, or being vulnerable to being a party to that, is totally unacceptable. I would suggest that, on the face of it, in terms of employment, it is ultimately a dismissible offence or at least a suspension. But we already have that in the act. There is no need for it in this measure: there is no need for a criminal penalty for it.

The third new area—apart from contracts, gifts and the situation where some kind of favour or inducement is offered—is this question of threat. It may be a threat of physical harm, it may be a threat of a withdrawal of privilege, it may be a threat that some kind of management tool will be imposed on a prisoner (or vice versa), or a threat of disorderly behaviour by the prisoner towards the correctional officer. Whatever the threat is, it is a criminal offence already and needs to get to the threshold to be established. So that is covered by the current criminal law.

A number of these things which would be improper, inappropriate and unacceptable in terms of the conduct of a correctional services officer could result in their having their employment suspended or perhaps in their being fined. I am not sure what the Public Sector Management Act says about that, but there may be some termination of their employment and/or their contract. These are the proper tools by which they are to be managed.

To come in here and acquiesce about what we are informed is a request by the Police Commissioner arising out of a case that, frankly, they stuffed up, is not an acceptable reason for us to introduce what I would see as draconian and quite unique legislation that would act against Correctional Services officers and put them at risk. I wonder whether the union covering these officers has been consulted about this matter and, if it has, what it has said about it. Frankly, if I were representing Correctional Services officers—which is probably unlikely, but if I were—I would be saying to you, minister, that it is unacceptable that they be placed at that risk.

If you were the Minister for Police I could half expect you to come in here with this sort of proposal. You would be wanting to cover the prosecutors who might have mucked up this case. I could understand that. You are the Minister for Correctional Services. You have a very important responsibility to protect the interests of those who undertake the training and professional work they do as correctional services officers. You expect a certain standard of them, which you are entitled to expect. We do not yet know what 'dealing in a prescribed class' will be, because it will be done by regulation which, in itself, is offensive to this side of the house. We like to see what you can be charged with. It must be in the legislation in the first instance. This is not just some civil liability: this is a criminal offence of a prescribed class. It would be unacceptable.

I am shocked, minister, that you would even attempt to introduce such an amendment when it is your own officers who are at risk of this very draconian piece of legislation. In another place, it has gone through. Perhaps others were not alert to the seriousness of what will be imposed but, frankly, I think when the union in charge of correctional services officers finds out about this it will want some answers.

The Hon. A. KOUTSANTONIS: Comrades: to the barricades! I have never heard such a wonderful speech from a person who would be at home at the Port Adelaide sub-branch on a Friday night or may be at a Trades Hall meeting. It was amazing. It inspired me.

The one thing that the member for Bragg failed to do was change her point of view. When the previous minister dealt with the PSA about inserting the principle that employees of the government, correctional officers or DCS officers, are not to enter into a contract with any inmate, they accepted it in 2007. We have since tested that legislation, and it has failed. The member for Bragg says, 'Well, it's not the fault of the legislation. It is the fault of SAPOL. The police are sloppy and lazy and the police commissioner, rather than get his act together and get his police prosecutors to do their job properly, has got me to come in here and do this for the people of South Australia.'

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: I advise the member for Bragg that the police commissioner is one of the most conservative police commissioners this state has had. There is no greater example of that than in the Taser debate. The opposition has offered up 500 Tasers to be put on officers' belts and, if the commissioner refuses, they will instruct them to do so. We take the advice of the commissioner. Quite frankly, I disagree that it was a sloppy prosecution. I disagree that SAPOL prosecutors are not doing a good job.

Ms CHAPMAN: I did not say that. I have a point of order, Madam Acting Chair. The minister just asserted that I had suggested sloppy action on behalf of police officers. That is not the case. That has never been asserted in this house. I have said, in relation to that particular prosecution, there was a stuff up. That is very different from 'all prosecutors or police officers' in that situation.

The Hon. A. KOUTSANTONIS: Okay; comrade Chapman says that one police prosecutor stuffed it up, in her words.

Ms Chapman: He was given an opportunity to fix it.

The Hon. A. KOUTSANTONIS: We are fixing it here.

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: The government's view is that we do. The Crown Solicitor's Office thinks we do, the department thinks we do, I think we do and the upper house thinks we do. I am a bit surprised that comrade Chapman is taking such a view on this bill. However, I do understand it, because when I was a younger man I was a bit left wing, and she is tugging at my heartstrings. However, the truth is this: there is no reason at any stage of an officer's career to enter into any dealing with any inmate, innocent or not. All officers must deal with all prisoners in the same way, that is, there can be no favourites; there can be no dealings. The South Australian public expects it of us.

I understand the honourable member's arguments and perhaps her fear that a well intentioned officer may err and end up inside the prison where they have worked. However, I am assured by the department that there is a level of steps before we even head down the track of going to police prosecutions. I think there are three steps involved before we even get down that path of seeking advice about whether or not we do go to police prosecutions.

Just to make it clear, if an inmate says to an officer, 'Come and pick up some tyres at home that I don't use any more,' the question is: why to an officer? The second question is: why is the officer agreeing? The third is: can we successfully prosecute our case? We tried and we did not, and now we are here before the parliament. The upper house agrees with the government. I urge the committee to support the amendment.

The committee divided on the motion:

AYES (24)
Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Brock, G.G. Caica, P.
Conlon, P.F. Foley, K.O. Geraghty, R.K.
Hill, J.D. Kenyon, T.R. Key, S.W.
Koutsantonis, A. (teller) Lomax-Smith, J.D. Maywald, K.A.
McEwen, R.J. O'Brien, M.F. Rankine, J.M.
Rann, M.D. Rau, J.R. Simmons, L.A.
Snelling, J.J. Stevens, L. Wright, M.J.
NOES (10)
Chapman, V.A. (teller) Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Hamilton-Smith, M.L.J.
McFetridge, D. Pederick, A.S. Venning, I.H.
Williams, M.R.
PAIRS (6)
Weatherill, J.W. Redmond, I.M.
Fox, C.C. Pisoni, D.G.
White, P.L. Pengilly, M.

Majority of 14 for the ayes.

Motion thus carried.

Amendments Nos 5, 6 and 7:

The Hon. A. KOUTSANTONIS: I move:

That the Legislative Council's amendments Nos 5, 6 and 7 be agreed to.

Ms CHAPMAN: The opposition consents to the same.

Motion carried.

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