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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Correctional Services (Miscellaneous) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 8.

Mr KNOLL: I have a number of questions in regard to clause 8.

The CHAIR: You are already up to your second question, so I am wondering how you are going to ask more than three.

Mr KNOLL: Well, the clause is in 10 parts. At the moment, the Ombudsman takes complaints from prisoners; in fact, in 2016-17 he took 691 complaints from prisoners. How does the minister envisage that the Ombudsman will work with the official inspector, and are there going to be any changes to the Ombudsman's functions once we have the official inspector regime in place?

The Hon. C.J. PICTON: As the member referred to in his second reading contribution, there are a large number of prisoner complaints that occur. That is something that I have certainly learnt since becoming the Minister for Correctional Services, and I think even the shadow minister would receive a significant number of complaints. As he has alluded to, there are a large number of complaints that go to the Ombudsman, and obviously a lot of those will go to the visitors as well.

As I understand it, there is no provision in this bill to change the role of the Ombudsman and it will be up to them to determine the manner in which they deal with complaints before them. I understand that some of them currently would be referred to the department for investigation, and they could of course ask for the visitors to look into things, if that is what they wanted to do, but probably the Ombudsman would want to look into the majority of those complaints themselves.

Mr KNOLL: If I can move on, this is a central concern that has been expressed in relation to the efficient inspectors scheme and one I would like to get to the bottom of. What we are doing is giving powers here to the official inspector. In new section 20E, we are providing the ability for the official inspector to provide information or produce a document that may be relevant to the official inspector's functions. Essentially, there is a maximum penalty of $5,000 for noncompliance. So they are quite serious, the powers the official inspector is going to have, in that they can essentially set a date and time and you have to produce the document; when you do not, you can be fined up to $5,000. The Law Society raise a number of issues in their submission and state:

…section 20E could require the provision of case sensitive information and amount to an infringement on the right to silence. In the circumstances, the powers to be exercised by an official inspector to require information to be provided, where such information relates to the prisoner, should be confined to circumstances where the prisoner has provided informed consent.

The first part of my question is: is it limited to where a prisoner provides informed consent? The society also states:

The provision does not appear to provide any limitations on the use that the inspector may make of any documents produced.

Again, it suggests that the scope should be reduced. The two questions I ask on this section are: what limitations are there on the information that is provided and is information only needed to be provided where a prisoner has given informed consent?

The Hon. C.J. PICTON: I am advised that in terms of the powers in terms of obtaining information by the inspectors, obviously we want them to be broad powers so that they are able to obtain the information they need to undertake that work. This provision has been drafted to mirror the provisions that the parliament had already agreed to in terms of the inspections under the Youth Justice Administration Act 2016. While both of these sets of provisions, which I understand mirror each other, are broad, they are only for the purposes of the act, which I guess is the important limitation in terms of their power to request information.

Mr KNOLL: Again, this does not answer my question. Where in this legislation does it restrict how the official inspector will be able to use the information that he gets from the variety of sources from which he is able to request information?

The Hon. C.J. PICTON: I am advised that the use of the information is only able to be used for the purposes for which it has been obtained under the act. It cannot be used for any other purposes except for the purposes of this act, which obviously relates to the inspectors providing that important role of inspecting and monitoring our prison system.

Mr KNOLL: If it is only in relation to the use of this act, there are other changes that we are seeking to amend in relation to making it easier for DCS to hand over information to SAPOL in relation to potential offences that they become aware of in prison. We will get that part a bit later. However, part of the act requires DCS to hand over to SAPOL information around potential offences. That forms part of this act. What in this document stops the official inspector handing over all that information to SAPOL via DCS?

The Hon. C.J. PICTON: I am advised that nothing would necessarily limit the provision of information from one of the inspectors to SAPOL if that inspector was of the belief that this was in accordance with the objects and requirements of this act. So, if it was within those purposes, then information could be provided over to SAPOL if that was appropriately decided by the inspector that that should happen.

Mr KNOLL: Would documents that are obtained by the official inspectors that are subject to legal professional privilege also be included in this section? Could they be required to be handed over to the official inspector and then subsequently to DCS and SAPOL?

The Hon. C.J. PICTON: Thank you to the member for that. We welcome the former member for Schubert to the chamber to see his protégé here debating this bill. 'Doing a good job,' we hear from the rafters.

Mr Knoll interjecting:

The CHAIR: No, it suits you to be offended by this remark, but on other days you are happy to acknowledge he is there. So let's just keep our mind on the job. Minister.

The Hon. C.J. PICTON: I am sure the deputy leader would love to discuss this at length if she were here, but I am advised that there is a whole range of different common law powers about legal professional privilege that would not necessarily be negated by the provisions of this act. I am also advised that it is quite a complicated question and perhaps we would be happy to provide more information between the houses on that point.

Clause passed.

Clause 9.

Mr KNOLL: This is the clause that we will be opposing quite strongly. Again, there is nothing that was put in the government's second reading speech. In fact, there was no mention of this amendment in the second reading speech by the government. It was only in the explanation of clauses that you get down to where they had to admit that this was put in.

This is a clause that DCS and the previous minister were not aware of, then gave incorrect evidence to the select committee to say that they did not breach it, then had to come back and backtrack and say that they did breach it, and then say that they no longer breach it. Now, because this pesky little clause is getting in their way, they are seeking to get rid of it. This will allow any prisoner to be housed in a prison cell for any length of time. You can get somebody who has life imprisonment who will spend that entire time in a police cell. That is not appropriate.

Getting rid of this section means that we are going to house people in circumstances that are not appropriate and not safe for either the prisoner or the prison officer. This is also likely to lead to more unrest. There is no practical reason why we need to get rid of this clause. There are 1,200 prisoners on remand at the moment who could occupy one of these cells. The number of cells that are used in this case fluctuates. I think, from the latest information I had for 2017-18, 12 is the highest number of prison cells that have been in use. I know they have been used a lot more extensively in past years prior to the prison expansions.

This is nothing more than the government seeking to get rid of law that they find pesky to comply with. They have given no reason and no justification for why this clause needs to go. If the intent of this is undertaken—if the reason that we are getting rid of this clause is that the government wants to house sentenced prisoners in police cells for extended periods of time, which is why you would get rid of this clause—we are going to see adverse outcomes. In all good conscience, we cannot support this.

I note that every single stakeholder who has made comment on this clause says that it is inappropriate, including OARS, who will see this at the coalface more than the rest of us. That is why we cannot support this clause and will be opposing this amended clause.

The Hon. C.J. PICTON: Boy oh boy, what an overblown bunch of rhetoric that was from the shadow minister. To be saying things like, 'We're going to be seeing prisoners spend their entire life sentence in prison cells' is just completely over the top. I am advised that for a prisoner who has been placed in a police cell, the average time the person is in there is no longer than four days. Let's be very clear about what the law says at the moment. The law currently says that if you are a remand prisoner there is no limit on the amount of time that you can be in a police cell.

There is not a 15-day limit for remandees; there is no limit for remandees. There is only a limit in terms of sentenced prisoners, whereby if you have a sentence of fewer than 15 days then you can be in a police cell. If you have a sentence of more than 15 days, you cannot be in a police cell. This amendment I have to say is not part of the major thrust of this legislation and is certainly not one of the major things that we are hoping to achieve out of this. As with minor pieces of legislation, you do not usually mention them at the top of your second reading speech but you appropriately outline them in the bill and the explanation of clauses, as has happened here.

What we are seeking to do is to say, 'If you have a prisoner who is sentenced for more than 15 days, then there may be a circumstance where the department of corrections might want to hold that person in a police cell for a very short period of time.' That is what we are trying to amend here, to enable that to occur. What the shadow minister has said in terms of there being this 15-day limit is not true because it does not apply to remand prisoners, which he remarked on himself, that there are a significant number of those people who fit those requirements. We have not seen large numbers of people from that category spending long periods of time in police cells when they could very much do that at the moment under the current law.

You might have a situation where somebody has been in a police cell on remand and they are sentenced. We have to take that person out immediately now under the current provision. It might be appropriate to have them there for a couple of days longer while their needs are properly assessed and we are working out the best place for them to go in the rest of the corrections system. That is one of the scenarios in which amending this legislation would help to focus the management of prisoners on what their actual needs are, rather than on whether they have been sentenced or whether they are a remandee, as to whether they can use a police cell.

Another point worth noting is that we certainly have no intention of wanting to use police cells. It is not something that we set out to want to do. It is something that we have to do from time to time, but our intention is to have people in better and more suitable accommodation and facilities within our corrections systems. As has been outlined, that is why we have been expanding Port Augusta Prison and that is why we are currently in the process of building an extension to the Mount Gambier Prison as well.

There is certainly no push from us needing to do this from a space management perspective. This is purely focused on being better able to focus on the actual needs of the prisoner and the management of the system rather than that arbitrary limit. It is certainly not a major part of the legislation. We note that the opposition is going to oppose it. We will see what the debate is like in the Legislative Council, but I have to correct some of those things that the shadow minister said.

The committee divided on the clause:

Ayes 22

Noes 15

Majority 7

AYES
Atkinson, M.J. Bettison, Z.L. Brock, G.G.
Caica, P. Close, S.E. Cook, N.F.
Digance, A.F.C. Hamilton-Smith, M.L.J. Hildyard, K.A.
Hughes, E.J. Kenyon, T.R. (teller) Key, S.W.
Koutsantonis, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Rankine, J.M.
Rau, J.R. Snelling, J.J. Vlahos, L.A.
Wortley, D.
NOES
Duluk, S. Gardner, J.A.W. Goldsworthy, R.M.
Griffiths, S.P. Knoll, S.K. (teller) Marshall, S.S.
Pengilly, M.R. Redmond, I.M. Sanderson, R.
Speirs, D. Treloar, P.A. van Holst Pellekaan, D.C.
Whetstone, T.J. Williams, M.R. Wingard, C.
PAIRS
Bignell, L.W.K. Pisoni, D.G. Gee, J.P.
Tarzia, V.A. Weatherill, J.W. Pederick, A.S.

Clause thus passed.

Clause 10.

Mr KNOLL: OARS in their submission said that if a prisoner wants to get involved in work as a remand prisoner that is a good thing, as it helps to give structure to their day and it has lots of positive effects in helping them to develop skills which they may not have had before. On reading this clause, I am wondering what 'work' actually means. Are we talking about having to scrub the floor as part of some sort of task that all prisoners are required to perform, or are we talking here about exclusively prison industries and those types of activities?

The Hon. C.J. PICTON: I think the short answer is no. Primarily, what we are looking to do is to have remandees involved in areas in which they are going to hopefully gain skills. I know he has been across our prison system and seen a lot of those work programs which are underway and which we are now exploring, and not just exploring—we are investing heavily in expanding a lot of those programs. The vast majority are involved in work that will hopefully lead to employment on the outside. This clause, as I understand it, will also allow more rehabilitation programs for remandees and other education—literacy, numeracy and vocational education—training programs.

Clause passed.

Clause 11.

Mr KNOLL: Here we are making changes to prisoners' mail. I think I will read this out:

The Bill does not take into account that there are many prisoners who are subject to part 8A of the Criminal Law Consolidation Act… relating to mental health provisions. For example, section 269W of the CLCA provides counsel for a defendant in criminal proceedings an ability to act in the exercise of independent discretion in what the counsel believes to be the defendant's best interests. In other words [this section] allows a lawyer to act contrary to the wishes of their client. The amendment of section 33 as proposed could result in corrections officers reading the mail of prisoners who do not want to nominate their lawyer, as he/she does not agree with what the lawyer is doing… That would give corrections officers access to highly sensitive, confidential information. Particularly, if the contents of the mail contains psychiatric reports.

My question first off is: in the changes that are being proposed, what provides for those people who, for mental health reasons, decisions made about them are handed over to counsel, or I assume that it could be guardians or caregivers as well? Where in these changes has that right or those opportunities been defended?

The Hon. C.J. PICTON: I think this is probably an amendment that in an ideal world you would not have, but unfortunately, particularly in a prison environment, there are people who try to use whatever potential loophole they can to work around the system. Unfortunately, I am advised, one of the areas in which that happens from time to time, and there is certainly a risk of it happening, is in regard to mail, where people might use the stationery of a law firm or a healthcare provider to try to conceal mail that is not legitimate and not for that purpose.

We absolutely understand that there would need to be safeguards around this and, presuming this were to be passed, we would need to work across the department to operationalise those, with safeguards in place, for those prisoners who have legitimate mail and to make sure that when that is identified as legitimate mail that is where it stops. But there needs to be a way in which we can identify when that is not the case and when people are trying to abuse the system and skirt around what is the clear intention of the parliament already in the legislation.

Mr KNOLL: Let me phrase the question like this and take one step back. If, for the reasons you have outlined, we are unable to stop mail being read, and I accept the comments made by the minister, what provisions are there that stop a DCS employee from disseminating confidential information once they have read it and realised that it is of a confidential or potentially legal privilege nature?

The Hon. C.J. PICTON: That would obviously form part of the policies the department would develop under this. For example, as I understand it, a policy is already in place for the department. At the moment, there are procedures for when there is accidental opening of legal letters, which obviously could happen from time to time. There would be notification to the prisoner and there would be notification to the lawyer of that occurring. Our intention would be that something similar would be put in place for notification of that, were this amendment to pass, and appropriate procedures would be in place. Obviously, if people were to breach the procedures of the department, then that would be a breach of their responsibilities as a Correctional Services officer, and obviously there are ramifications that could come from that.

Clause passed.

Clause 12 passed.

Clause 13.

Mr KNOLL: This amendment relates to the power to monitor and record prisoner communication. There was quite a bit of angst, especially from the PSA, in relation to this clause and whether or not DCS or other staff who are caught up in the communications recording process are going to be recorded at all as part of these changes.

The Hon. C.J. PICTON: I am advised that the provision in this section of the bill is specifically between a prisoner and another person; therefore, it is not relevant to personal staff communications. What we are really focusing on here is communications involving the prisoner, for obvious reasons.

Mr KNOLL: Am I right in saying that, no matter what communication is being recorded, the parties to that communication will be notified in every instance that they are being recorded?

The Hon. C.J. PICTON: No. That is the current situation. The current situation, as I am advised, is that the law says that you have to be notified when a communication is to be recorded. What we are trying to do is remedy that because there are a number of instances where that is not at all practical. One example is if a prisoner is locked in their cell overnight, as the vast majority would be; their way of communication is via an intercom system.

At the moment, to record that you would have to inform the prisoner that they were going to be recorded through that intercom system. Obviously, we might want to record when there is an emergency phone call or something that might be investigated later, potentially even by the Coroner or someone. In an emergency call, it is not practical to have to inform somebody that they are being recorded. The question you have asked is actually what we are trying to remedy in this.

Mr KNOLL: How does this remedy correlate with the Surveillance Devices Act, which clearly states that consent is needed from the parties in private communications that are being recorded in whatever format? There is an exemption for defence of their own lawful behaviour.

The Hon. C.J. PICTON: I am advised that, in terms of that act, those provisions apply particularly to phone calls. We would still notify people that those phone calls are being recorded. If you were to receive a phone call from a prisoner, then you would be notified that those phone calls were being recorded. I understand that happens at the moment.

Mr KNOLL: Finally on this, there was some confusion. In the briefing that we were provided, it was stated that the reason we needed to have these changes was so that it would be easier for—let me try to explain it this way. DCS monitors and records, though there are some circumstances in which DCS is not able to give that information to SAPOL. Is that the only other remedy that is sought to be changed here?

The Hon. C.J. PICTON: I am advised that there are two different clauses: one is about removing the need for the notification and the other is about allowing easier information flow between the department and SAPOL. The department refers any suspected criminal matters to SAPOL for investigation. Section 35A(5) provides for the information to be provided to SAPOL; however, there is no clarity in the Correctional Services Act 1982 on providing evidence and information for purposes including criminal proceedings, national security, misconduct, etc.

The department currently relies on section 85C—Confidentiality, which in certain circumstances allows the disclosure of information. Further, depending upon the circumstances of each individual case, currently there may be the requirement for SAPOL to have a warrant or to have appropriately gathered information to be used in court as evidence. This is a matter for SAPOL, not DCS. The amendments in this bill provide certainty to DCS that it is appropriately able to provide a communication to a law enforcement or prosecution agency.

The amendment enhances the justice agencies' abilities to gather evidence and work together to prevent ongoing offending. It is worth noting as well that, as I understand it, it is not just SAPOL but also includes the Independent Commissioner Against Corruption, and he is very supportive of having that amendment so that he can receive information.

Mr KNOLL: In clause 13, new subsection (5a)(a)(iii) provides 'any other person or body prescribed by the regulations'. Do you have a draft list of which other agencies are going to be covered by the regulations?

The Hon. C.J. PICTON: The short answer is no. Probably it is going to involve some of the federal agencies, potentially ASIO. The federal government, as you would be aware, is going through a big change process in terms of its Department of Home Affairs; that has not been established yet, but we will have to see where that goes. I think it is appropriate to have an ability to have a regulation-making power there so that we do not have to go back through the parliament every time a federal government body changes, which seems to be quite rapid at the moment.

Clause passed.

Clauses 14 and 15 passed.

Clause 16.

Mr KNOLL: This is the section where we first have a discussion about correctional institution buffer zones. In essence, what we are trying to do is increase the series of offences for prisoners possessing certain items. Let's deal with possession of certain items by prisoners first. I assume that these penalties replace existing penalties. For instance, what we are doing here is replacing what would be an existing possession offence, an existing trafficking offence, and we are increasing the imprisonment from five years. Let's assume it is just a possession offence. Currently, what would the maximum penalty be for a possession offence in a prison?

The Hon. C.J. PICTON: I am advised there are a number of different things here. One is that you would have the offences that would apply if you were out in the general public, but a lot of the quantums involved in those are quite high and would not necessarily be reached in terms of a prison situation. That is why there are these particular provisions here. Some of the breaches at the moment involve those small quantities which are dealt with through the system, which corrections has the ability to do at the moment of issuing fines and things like that, which have been the subject of some discussion of late. This would be another avenue where we could take action in regard to some of those offences where it would not just be a fine but we could take other action.

Mr KNOLL: A possession offence for a small amount of cannabis may on the street just be a cannabis expiation notice or some sort of expiable summary offence, so here you want the ability to ratchet up those offences. That makes sense. If I can move on then to the offences by persons other than prisoners, first off—and it has been a few weeks since the briefing—in relation to the buffer zone, how does the government propose to deal with the Remand Centre and Yatala Labour Prison, in particular, in relation to how those buffer zones are going to be set?

The Hon. C.J. PICTON: We absolutely acknowledge that when you look at a number of our sites, as the member outlined, particularly including some in the Northfield area, we need to be very careful in ensuring that the buffer zones are set in such a way that we are not including people's houses as part of the buffer zones. They will be carefully set to ensure that we are not encroaching on people's backyards as part of a buffer zone. If anyone was concerned about that in the general public, we can put their mind at rest that we will make sure that private property is not being infracted in terms of people's backyards in that area.

Mr KNOLL: Going back to possession of certain items by prisoners, I assume that 'an item prescribed by the regulations for the purpose of this paragraph' is going to mean mobile phones, or all sorts of paraphernalia that would otherwise be legal on the outside. Firstly, are the items prescribed by the regulations for those outside prison going to include benign items like mobile phones? I am trying to think of a few other examples, but I will start with mobile phones.

The Hon. C.J. PICTON: To take that in a couple of parts, we intend to include mobile phones in the list of items, but there is the protection as part of this that, if you have it for a legitimate reason, then obviously that is not caught up in the offence. So if you are visiting a prison and have locked your mobile phone in a car, as most of us do when we visit a prison site, that obviously does not quantify an offence in this circumstance. Mobile phones will be one of those things that will be listed there.

Mr KNOLL: Given the fact that, again in the same clause, a person who without the permission of the CE has possession of a controlled substance, what happens in the case of someone with, let's say—I do not know the colloquial vernacular here—a small amount of cannabis for personal use who walks up Grand Junction Road past Yatala Labour Prison? If they were walking 500 metres further up Grand Junction Road they may get a simple expiation, but if they happen to be walking past Yatala with the same amount of cannabis are they likely to have a maximum penalty imposed on them of up to 10 years?

The Hon. C.J. PICTON: There are a couple of things there. In terms of the provisions of this, a lot of that goes to the difference for what would be otherwise legal medication as well, so that needs to be considered as part of this. You might have a legitimate reason to have a legal drug, which, if you are a staff member, etc., would be appropriate for you to have. If it were found in a prison without a prescription then it obviously would not be appropriate and would not have the permission of the chief executive.

Mr KNOLL: That in no way answered my question. If I am walking past with a small bag of pot in my pocket 500 metres from Yatala and if I walk past Yatala and inside the buffer zone or into the car park at Yatala, am I going to be imprisoned for up to 10 years?

The Hon. C.J. PICTON: The short answer to that is yes. If you are inside the zone with a restricted item, then you are subject to the offences that we are proposing in the same way that buffer zones around schools operate at the moment. Obviously, we want to be careful about where we set those zones in the same way that we have to consider it for school zones as well. I am sure the court would consider the circumstance in setting the appropriate penalty for that in the breadth that they have been given. That is why it is an important element of this bill to have zones where those sorts of items cannot be allowed to enter.

Mr KNOLL: The minister talked before about a defence for legitimate purposes. I am struggling to find what the minister just talked about in the bill itself or the amendments. Is this some sort of common law offence?

The Hon. C.J. PICTON: In clause 17(3), new subsection (3) provides: 'A person who, without the permission of the CE or without lawful excuse'. That is the key provision there.

Mr KNOLL: My last question on this clause is: will the police officer decide whether the crime has been committed 'without lawful excuse' at the time of arrest or at the time of charging, or is this a defence that is going to be used in court?

The Hon. C.J. PICTON: In terms of all of our criminal law, it is a judgement for police and then prosecutors to make in terms of whether that has met both the offence and the defences available under the legislation. 'Without lawful excuse' covers things such as having a prescription for an opioid product or the like, and that would have to be weighed up by both the police and the prosecutors, and then ultimately the courts.

Clause passed.

Clauses 17 and 18 passed.

Clause 19.

Mr KNOLL: Does the minister have any awareness now of when the first review will be, let's say after this gets referred off to the Remuneration Tribunal?

The Hon. C.J. PICTON: The Remuneration Tribunal will be required to conduct its first determination within the first 12 months after the bill is passed.

Clause passed.

Clauses 20 to 22 passed.

Clause 23.

Mr KNOLL: This clause relates to release on parole by application to the board. It was presented to me in the briefing that there is a new offence of murder in some format that needs to be included and, instead of enumerating that, we are going to insert 'of a prescribed class'. My question is: why not simply include the offence? In doing this in this way, does this not just allow the government to much more broadly increase the scope of sentences, which are subject to this provision?

The Hon. C.J. PICTON: I am advised that the 'prescribed class' is in the legislation, and that includes offences relating to conspiracy to murder and aiding, abetting, counselling or procuring murder. It links to 77A, if you are looking for that.

Clause passed.

Clause 24.

Mr KNOLL: Frances Nelson raises this concern:

There is a possible difficulty regarding the amendment to Section 68(4). I think that opens a legal challenge where, for example, someone is imprisoned for Breach of Conditions, they might well argue that they were either incapable or unwilling to accept such Conditions, and therefore they are not bound by them, and could not be lawfully punished for reaching them.

Is that something that the government sees as legitimate?

The Hon. C.J. PICTON: I thank the member, and we also appreciate the comments from Frances Nelson QC in her commentary on this. The advice I have is that this is really about the type of prisoner this would apply to. We would be working with very specific types of prisoners under this provision, such as those who potentially might have a mental health condition or disabilities or other issues such as those, and not some of the people to whom that risk that Frances Nelson refers to in her letter might apply.

Mr KNOLL: Let me ask a question in this way, then, because the Law Society raises the same issue. We have a prisoner who has some sort of mental health condition and that person is not able to make decisions for themselves. We know that somewhere between 20 per cent and 50 per cent of prisoners come with a mental health condition, and in the female population that may be even higher. We know that outside of prison we have a guardianship system that allows other people to help make those decisions. What we are giving here is the ability for the CE to make those decisions on behalf of prisoners.

If someone has a mental health condition and they cannot of themselves understand or abide by the conditions that are set as part of the Parole Board's decision, how can we expect them to abide by it? Would it not be more appropriate for us to, for instance, open this up so that instead of just the CE we could be looking at some sort of other caregiver and give them the opportunity to accept these conditions upon the prisoner's behalf?

The Hon. C.J. PICTON: As the member alluded to, this is about those exceptional cases and it is where it is in the prisoner's best interest. It would only be taken where a prisoner has been assessed as suitable for parole and where continued imprisonment serves no reasonable purpose. It would not be appropriate for an individual such as a guardian to take responsibility and the burden of accepting parole conditions for an impaired prisoner. The position of the CE has been determined as appropriate and as having the requisite information to be able to make an informed decision. I understand that certainly that section of it has been supported by the Parole Board as well.

Mr KNOLL: Just on that, what guidelines will the CE be using to determine whether he sees fit to accept the parole conditions on behalf of the prisoner?

The Hon. C.J. PICTON: I understand that the CE will work across government with different agencies. We have the Exceptional Needs Unit, which will cover a number of the people who will be involved here. The Exceptional Needs Unit brings together agencies including Disabilities SA, SA Health, mental health, Correctional Services, non-government organisations and psychiatrists and psychologists to case manage prisoners and offenders and assist them in meeting the conditions of their order.

Support and assistance is provided to ensure the conditions of parole are suitable and can be met by the prisoner, that the prisoner can comply with their requirements, such as attending appointments, and that the prisoner understands their parole. That is the advice that the CE would have through this Exceptional Needs Unit in all those different agencies, and they are the criteria that they would be assessing that through.

Clause passed.

Clauses 25 to 27 passed.

Clause 28.

Mr KNOLL: Again, Frances Nelson raises a belief that a person should not be denied natural and proper justice. As I understand it, this provides for people not needing to be physically present proceedings before the Parole Board. I know that this is not done in other states, and I know, given the discussions I have had with Frances Nelson, that she believes her board is much better informed because people are interviewed in person, and that gives the board a much greater ability to make a proper determination on whether it is appropriate for individuals to be released on parole. Does the minister think that if people are denied that natural justice then it will lead to greater disputation of the decisions of the Parole Board?

The Hon. C.J. PICTON: There is currently an entitlement that you have to be physically present. What we are hoping to amend this to is that it would be up to the Parole Board. If the Parole Board wants prisoners to be physically present, then they are totally able to do that. If they are happy for the prisoner to be present via a video link, for which I understand the facilities are available, then that would be up to them to decide as well.

This is giving the Parole Board more opportunity to decide that based on the particulars of the case. We do not think that this would lead to significantly more appeals to the Supreme Court, but we certainly acknowledge the comments by Frances Nelson. As we said, it would be up to the board to decide on the particular circumstances of the prisoner.

Mr KNOLL: Can you confirm that only the Parole Board makes the decision about whether they require a prisoner to be present?

The Hon. C.J. PICTON: I am advised that the Parole Board can still decide whether or not they believe a particular prisoner should be physically present. That choice would be up to them.

Clause passed.

Clause 29 passed.

Clause 30.

Mr KNOLL: As I understand it, essentially this amendment provides for a broader range of decisions that will be sent off to the Parole Administrative Review Commissioner. I assume it is a different process from the normal Parole Board process. This amendment states:

(3) Section 77A, definition of reviewable decision—delete "serving a sentence of life imprisonment" and substitute:

of a prescribed class

Does that give scope for the government, through regulation, to put any and all decisions to the Parole Administrative Review Commissioner?

The Hon. C.J. PICTON: I am advised that we would not be able to add to that. this is the prescribed list of offences that would be under that provision.

Mr KNOLL: I have a question on the same clause but a different part of section 77A, which provides:

(ii) there are reasonable grounds to believe that the offender also committed a serious sexual offence against…(whether or not the offender was also convicted of the serious sexual offence);

Are we saying here that if someone is accused of committing a serious sexual offence—and it is likely this clause will be used because they have not been found guilty of it—they will also be sent off to the Parole Administrative Review Commissioner?

The Hon. C.J. PICTON: I am advised that the power does not introduce a new matter for judgement or punishment that has not previously been considered by the courts. Rather, this amendment allows the Parole Administrative Review Commissioner, a retired Supreme Court judge, to consider whether the evidence raised at the trial meets the standards.

Mr KNOLL: So this is a matter where somebody would have to have been charged and found not guilty?

The Hon. C.J. PICTON: I think the short answer is no. For example, if you were found guilty of murder and there also happened to be rape involved in that, that would be able to be considered as part of the analysis.

Mr KNOLL: What prompted the decision for this change?

The Hon. C.J. PICTON: What is being considered here is that these are obviously abhorrent crimes. I do not want to go through examples, but you may have a series of crimes that may involve a couple of people where perhaps one person was aiding and abetting the murder but was also involved in some awful sexual-related crimes, so all of that should be considered as well. The motive in looking at this was to take into account those crimes that really go to very horrific situations.

Clause passed.

Clauses 31 to 33 passed.

Clause 34.

Mr KNOLL: Proposed section 81T is seeking to have investigative powers for the chief executive. This seems quite strong and draconian and it is not something that is given to private sector employees. What is the need for this power? Where is the shortfall in what currently happens? I am trying to understand why this part of the clause has been put in.

The Hon. C.J. PICTON: I have a bit of information but, to start with, prisons being particularly different from a whole range of other places, I think there is a need for the chief executive to have some significant powers to investigate situations that might occur. This mirrors the powers that the public sector commissioner has under the Public Sector Act. Section 18 of that act empowers the commissioner to require a public sector employee to appear for examination, to produce a record or object and to answer truthfully and also to provide for a finding of misconduct for failure to comply and protects against self-incrimination.

It is also similar to provisions in the Police Complaints and Discipline Act 2016 that allow the internal investigations section to direct an officer to furnish information, produce property, a document or other record, and also provides for a breach of discipline if an officer refuses or fails to do so, or provides false or misleading information, and protects against self-incrimination. The bill proposes that the CE be able to commence an investigation, with the same allowances, powers and limitations as the public sector commissioner, into matters that have occurred subject to this act.

Mr KNOLL: I refer to the same clause but a different part. In relation to procedures for drug and alcohol testing, who will be conducting the drug tests and what will happen to the samples?

The Hon. C.J. PICTON: The testing is undertaken by SA Pathology. After the testing takes place, the samples, I am advised, will be appropriately destroyed.

Mr KNOLL: Is it the intention that prison health staff and subcontractors will also be subject to these provisions?

The Hon. C.J. PICTON: Potentially, any person engaged to work for the department under a contract could also be subject to drug and alcohol testing in some form. Section 4A of the act provides for the minister to designate a person to be an officer of the department, and section 4A(3) applies to contractors specifically. If required, the department could potentially include a clause in any contracts requiring persons working for or with DCS to be subject to drug and alcohol testing as part of that contract.

Mr KNOLL: It is proposed that drug testing of Corrections officers will occur after high-risk incidents. As explained to me in the briefing, that then triggers when a drug test will occur. New section 81Z obviously limits where the test results can be used. Does it stop those tests being used as evidence in a prosecution, let's say, when a Corrections officer is charged with assault?

The Hon. C.J. PICTON: The section is clear in terms of its wording:

…an admission or a statement made by a person relating to such drug or alcohol testing, is not admissible in any proceedings other than disciplinary proceedings under the Public Sector Act 2009.

Mr KNOLL: Would the minister contemplate testing for steroids or other testosterone-enhancing substances?

The Hon. C.J. PICTON: At the moment, testing is focused on the common drugs that are of concern, and these will be determined through consultation with SAPOL, the PSA and SA Pathology. No decision has been made to limit the testing to MDMA, cannabis and methamphetamines, so potentially other drugs could be considered in the future as part of that process. At the moment that is not necessarily the intention, but it could be considered in the future.

Clause passed.

Clauses 35 and 36 passed.

Clause 37.

Mr KNOLL: Can you explain the rationale for the change from 'family or a close associate of the prisoner' to 'immediate family'?

The Hon. C.J. PICTON: Essentially, our concern is that the current wording is too broad. 'Close associate' could include a range of people who should not necessarily be getting access to information. It could involve a club member of an outlaw motorcycle club or it could include a curious work colleague. We think that the definition should be tighter. We understand that there will be lots of circumstances in which it would be appropriate for more than just 'immediate family'. That is why there is a provision to enable the CE to approve other people to receive information. But, just a close associate, as we all are close associates in this building, is a very broad definition. I am sure the member for Schubert would not want me, as a close associate of his, to have access to his personal information.

Mr KNOLL: By that, is the minister suggesting that there is an automatic right that, for instance, if my brother is in prison I can request the release of information in relation to him even though he may not want me to have that information? Is there no prisoner consent?

The Hon. C.J. PICTON: The prisoner gets to decide. If your brother was in prison and he did not want you to have access to information about him, then that is totally his right to refuse you access to that.

Mr KNOLL: What you are essentially trying to remedy here is that where the prisoner wants it and where the CE does not want it, but where this person is a close associate, the CE has to release the information?

The Hon. C.J. PICTON: I am advised that at the moment the close associate has to apply for that information. Part of what we are trying to do here—and I am sure the member will be very keen on this—is deal with some of the red tape issues where approvals have to happen under the current legislation. In terms of the definition of 'close associate', as I said before, the concern is that that is just too broad and we should consider that on a case-by-case basis of approvals, rather than just allowing that to happen.

Mr KNOLL: Does the CE currently have the power to refuse to release information when the prisoner has consented?

The Hon. C.J. PICTON: I am advised that potentially that can and does occur, but it is probably at the more unusual end. Particularly in circumstances where we know of somebody's criminal links, the CE might take action to do that. What we are trying to remedy here is where we might not know about somebody's criminal links or where there might be a broader scope of people who we might not want to have access to that information. The short answer to the question is yes, it can be refused. It does happen at the moment, but it is probably more at the rare end.

Mr KNOLL: I assume the reason we are doing this is to reduce the scope—and I assume they would be processing hundreds of these things a year. Why immediate family and why not, for instance, include caregivers or those in a significant relationship or a de facto situation or any other sort of relationship?

The Hon. C.J. PICTON: People who are in a caregiving relationship are exactly the sort of people we have in mind when we say that the CE would approve people who have a proper interest in that particular person. That would be caregivers or partners and people like that. A de facto partner would probably be counted as a family member—I would have to check that, but I would have thought so. That is why the term 'proper relationship' is the one used for that CE test at the moment.

Mr KNOLL: Where does 'proper relationship' exist in either the current act or the amendment?

The Hon. C.J. PICTON: What is listed is 'any other person who the CE thinks has a proper interest'. That is the test in the legislation. Further, I can advise that 'immediate family' is listed as a spouse or domestic partner; a parent; a grandparent; a child, including an adult child; a grandchild, including an adult grandchild; or a brother or sister.

Clause passed.

Clause 38 passed.

Clause 39.

Mr KNOLL: There is a concern from the PSA that this clause is going to extend the use of sniffer dogs into locker areas and other private areas occupied by Corrections officers. Is that how broad the extension of this amendment is?

The Hon. C.J. PICTON: I am advised that it is the intention that sniffer dogs could be used in a wide variety of situations, including in regard to an officer. I have to say that the first prison I went to after being sworn in as the minister was the Remand Centre, where I was sniffed by a sniffer dog. The minister is not listed in here, but I was happy to be sniffed by the sniffer dog.

Mr KNOLL: That is on Hansard forever.

The Hon. C.J. PICTON: That is right—and on video now as well. I am happy to report that there was nothing detected. When it comes to our correctional facilities, I think that all of us who visit, work or interact with correctional facilities need to understand that a high degree of scrutiny and accountability goes into those sites. Sniffer dogs is one of those.

Clause passed.

Clause 40.

Mr KNOLL: Are there any Correctional Services facilities that are within 5½ kilometres of the airport?

The CHAIR: Which airport?

The Hon. C.J. PICTON: Chair, you will be glad to know that in my brief here I have some notes saying that the Civil Aviation Safety Authority has existing regulations in place that provide guidance on the operation of remotely piloted aircraft such as drones. This is very important for everybody to know. These regulations already limit the operation of remotely piloted aircraft in built-up and populated areas. These rules would apply in areas surrounding the Adelaide Remand Centre, Yatala Labour Prison and the Adelaide Women's Prison.

So the short answer is, yes, absolutely. We would make sure that the use of any drones at correctional facilities already take into account that the Civil Aviation Safety Authority has restrictions in place there. I think that it is prudent for everybody to consider the CASA rules whenever they consider any public policy that they are determining. I endorse working with CASA and making sure that our policy and CASA requirements are harmonious because it is hard for a state government body to change CASA requirements, as some people might seem to think if they wanted to, for instance, operate a drone at the West Beach Surf Life Saving Club.

Mr KNOLL: Does the minister accept that, if the Adelaide Remand Centre is within 5.5 kilometres of the Adelaide Airport, it would be possible under the existing interim regulations by CASA that a drone would be able to be operated as long as the operator held a remote drone licence?

The Hon. C.J. PICTON: I think we might be veering off the topic of the corrections bill. When you are devising policies regarding the operation of drones, you would have to comply with the CASA regulations. If you had a small drone, then there would be bans in terms of that being operated around an aircraft. It is only drones that are of a larger size that have a much more significant level of training and operation involved that would be able to be operated around an aircraft and have to comply with CASA directions around the operation and use of that.

I do not think that was quite what was envisaged a couple of weekends ago in regard to a different area of public policy. I do not think it was quite what was regarded. Back to the corrections bill, in regard to our sites that are in the Adelaide CBD area or within the location of an airport, there are restrictions that apply. At the moment, what we are seeking to do is to strengthen them even further, particularly those sites that might not be close to an airport to make sure that we can restrict the use and the threat of drones bringing contraband into our prisons.

Mr KNOLL: Where the drone is over two kilograms and the operator has a Remote Pilot Licence and where the Remand Centre is within 5.5 kilometres of the tower at Adelaide Airport, will we be able to operate a drone?

The Hon. C.J. PICTON: Do you mean under what we are proposing or generally?

Mr KNOLL: More generally.

The Hon. C.J. PICTON: Generally, yes. As the member knows, more generally, if you comply with the whole range of different requirements for the additional training, the additional compliance with CASA, the additional weight of the drone, then there is the possibility of operating near an airport. But when it comes to the veiled references we are making to the surf lifesaving announcement—

Mr KNOLL: I look forward to my apology coming.

The Hon. C.J. PICTON: There is no apology coming, I can assure you of that. I think it is always important that when people come out with policies that they think them through very carefully. I encourage the member for Schubert to do that when he comes out with his next emergency services policies.

Clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. C.J. PICTON (Kaurna—Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety, Minister Assisting the Minister for Health, Minister Assisting the Minister for Mental Health and Substance Abuse) (17:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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