HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-21 Daily Xml
Contents
Pdf Xml

Bills

OPCAT Implementation Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 August 2021.)

Mr ODENWALDER (Elizabeth) (16:03): I rise to speak on the OPCAT Implementation Bill 2021. I indicate that I will be the lead speaker for the opposition in this place. This is an important bill. This is an important body of work that has been done internationally and nationally, and it is something the Minister for Correctional Services and I have discussed in this place. I am pleased that we are finally discussing it now. The Attorney said in her speech, when she introduced this bill on 25 August, and I quote:

I am pleased to finally introduce the OPCAT Implementation Bill 2021. The Australian government ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in South Australia on 21 December 2017. The optional protocol is known as OPCAT.

The opening sentence says it all, the word 'finally', because it is almost four years since OPCAT was ratified, and the government brings this legislation to the house now with something like 11 sitting days to go. I mention in passing that the minister for corrections and his department seem to be more on the ball in terms of getting this type of legislation to the house. We have had that done and dusted, and even enacted by now. This is almost a tidying up and replication of the work Corrections did across the other agencies.

The deadline is cutting it extremely fine. It is due to be enacted—if we are to stick with our national agreements—by February next year. That gives us 11 days to digest and debate what is fairly complicated and actually fairly radical stuff in terms of the intrusion of not only inspectors into our police stations and mental health facilities but also foreign inspectors, inspectors sanctioned by the United Nations. This is not a decision to be taken lightly by any sovereign house of parliament.

This bill, even though it was listed on the previous week's Notice Paper, suddenly appeared this week. I will have some questions in the committee stage today, but the opposition reserves its right to examine things more closely between the houses and perhaps arrive at some very different questions and even a different outcome by the end of the debate in the upper house.

This kind of delay has been a consistent approach from this government, where nothing happens for years. Reports may be tabled, reports may be digested and mentions of things made in the media, but nothing is actually done in a concrete way and nothing is brought to parliament to be discussed and enacted. In this term of government, we have seen expert reports, on everything from sentence discounts to child sex offenders to succession law, sitting on the shelves for years at a time.

We are now facing the same with a raft of electoral laws, which will change the electoral landscape of this state for a long time to come. They are being debated right now, at the end of a term, in the shadow of a general election. Again, the Electoral Commissioner's advice, which much of this legislation is purported to have been based on, has been sitting on a shelf in the Attorney's office for the last four years.

All of that notwithstanding, the bill before us broadly proposes two things. As I said, it allows international inspectors into places of detention. Between the minister for corrections and I, and I should mention the Hon. Connie Bonaros in another place and her important contributions, we have already done that in the area of Corrections. It also establishes local inspection systems for the commonwealth and each state and territory. This second item, the local inspections component, is known as the National Preventive Mechanisms (NPM).

The primary function of the NPM under OPCAT is to undertake regular and unannounced inspections of places of detention, including their installations and facilities. The purpose of the inspections is to examine the conditions and treatments of persons deprived of their liberty. NPM functions are directed towards preventing ill-treatment and other human rights abuses from occurring. This is, of course, distinguished from other existing inspectorate bodies that exercise complaints and advocacy functions. That is the importance of the unannounced, within reasonable bounds, 'free and unfettered access' to facilities and information.

With regard to local inspections, the bill proposes to rely on the inspector system for correctional facilities—which we enacted several months ago in this place—while establishing new ones for youth detention and also, importantly, police detention. Again, the irony should not be lost on anyone in this place: it was only on 25 August this year, less than a month ago, that South Australia's inaugural Child and Young Person's Visitor resigned due to a lack resources.

Despite this being a recommendation of the Nyland royal commission, the visitor had to stop her critical work because the government refused to provide dedicated resources for her to do the job. In question time on 25 August, the Leader of the Opposition asked the Minister for Child Protection:

How can the statutory role of the Child and Young Person's Visitor be performed without any funding?

The minister responded:

…the Child and Young Person's Visitor Scheme was a two-year pilot program, as recommended in the Nyland royal commission. Recommendation 137 was to legislate for the development of a community visitor scheme, which we have. We have done that.

I continue to quote:

There was a two-year pilot program started in 2017 under the former government. The pilot program ended, and at this stage we are not reinstating it…The guardian—as every guardian before her—has the ability to visit every single residential care facility, as previous guardians have, and to advocate individually for children and to see systemic issues and deal with those.

I continue to quote:

She can still do that, like she always did, like all the guardians did before her. She has resigned from one position, which was a visitor scheme. The act states that the minister may instigate—'may'. It's not a 'must'; it's a 'may', and at this point, as you know, it is not being continued.

Noting that it was the former Labor government that had established the initial two-year pilot, the only action this government has taken on the issue is to subsequently refuse the funding and let the visitor scheme wither and die. The opposition was quite surprised when the government not only introduced this bill late but did so when the ink on the former visitor's resignation was not even dry.

Then we have consultation. As noted earlier, OPCAT was ratified in 2017 and I said we are under the pump now to meet what we are told are our national and international obligations by February 2022. Over that four years, presumably some work has been done on that within the machinery of government.

We were told at the briefing that the following groups have been consulted: the Aboriginal Legal Rights Movement; the Human Rights Commissioner; Associate Professor Laura Grenfell at the University of Adelaide, who was also very helpful in the discussions around the OPCAT provisions of the amended corrections act; Mr Steve Caruana, Coordinator of the Australia OPCAT Network; the Minister for Police; the Department of Human Services; the Department for Health and Wellbeing; the Department for the Premier and Cabinet; the Commissioner for Aboriginal Children and Young People; the Commissioner for Children and Young People; the Commissioner of Police; the Commonwealth Ombudsman; the Crown Solicitor; the Law Society; the Legal Services Commission; the Public Advocate and Principal Community Visitor; the South Australian Ombudsman; the Bar Association; the Training Centre Visitor and Guardian for Children and Young People; and the University of Tasmania and the Tasmanian Institute of Law Enforcement Studies, which apparently specialised in OPCAT.

This, I admit, is a pretty comprehensive consultation process, through government agencies, universities, academics, ministers and so on. But we did not see any consultation and we have not seen any evidence of any consultation with the people who are at the coalface and who would actually be implementing and working with and around this new regime.

There has been no consultation with the Public Service Association that I am aware of. There has been no consultation with the Police Association that I am aware of, and this is particularly important. I have spoken to various police officers, both formally and informally, about this bill and they can confirm that they have not been properly consulted.

There are particular issues for police detention which I intend to ask some questions about in this place, and certainly in more depth in the other place there will be some questions about the way the police detention system will work and how it has worked in other states and jurisdictions. The police detention system is quite different from the corrections detention system, as the minister will know, in that, in general, prisoners are detained for a very short period of time—hopefully, not very long at all, but sometimes over the course of a weekend, and the Easter weekend is a particularly long time to be in police custody.

Generally, they are arrested and either bailed or very quickly transported, as soon as practicable, to a court. Therefore, the conditions which might be expected within a corrections facility may not be the same conditions you would expect in a city watch house or in the Elizabeth police cells or any of the other designated police station facilities. I think particularly of something like food. I have spent a significant amount of time working in police cells. Certainly 20 years ago—I do not know how times have changed—breakfast was always two pieces of toast with Vegemite and coffee was always white with two sugars. There was never any deviation from that. If they were in for the weekend, they might get pies and pasties and that sort of thing.

I cannot imagine things have changed and there is a very good reason for that, and that is that people are in police custody for very short periods of time. You cannot expect to fund things like fully serviced kitchens, as you would in a prison setting, or, as we saw spectacularly, at the Adelaide Remand Centre. There are differences in the way you approach detention. That is not to say that the detention should be any more cruel or inhuman than it would be in a place of more permanent detention, but there would be differences. From my initial reading of the bill, I do not know that any of that has been addressed.

I do note that there will be a reporting mechanism to parliament, recommendations will be made, and you could reasonably expect that recommendations would include that something like two pieces of toast with Vegemite is not a healthy breakfast. Again, I question whether police facilities have the resourcing available at every one of the I think 19 police detention facilities that we are talking about, even if they should, to provide an à la carte menu to every prisoner that comes through awaiting bail.

These are the types of things that might have been teased out had the consultation process included, for example, people from the Police Association of South Australia. I assume SAPOL was spoken to, but it would have been probably a good idea to speak to people who were currently working in a police detention environment: a cell sergeant, a station officer who may be in charge of a busy police station like the Elizabeth Police Station, or the City Watch House for instance.

I will have questions, obviously, in the committee stage about that, and in the upper house as well we will be teasing that out further, once we have had an opportunity to formally brief and get briefings from the Public Service Association and the Police Association of South Australia and I assume others in the mental health space too. This approach of the government mirrors their approach on recent changes to the impairment assessment guidelines for workers compensation where unions again did not appear on the consultation list.

Notwithstanding my comments about the extensive consultation with government agencies and legal representatives on this bill, consultation has never been this government's strong point. When the government undertook public consultation on the Freedom of Information Bill, it did not publish the submissions and then refused to release the public submissions to a public consultation process about freedom of information reform, even when these were requested under a freedom of information request.

When the Ombudsman disagreed with the government's position, the Attorney-General or her agencies then demanded that the Ombudsman recuse himself from the process because of alleged apprehended bias. After a second examination by the Deputy Ombudsman, a similar recommendation was made to release documents. This whole FOI process dates back to February 2020. How many documents has the Attorney-General or her agency handed over in that process? Zero.

I have to say again that the exclusion of the Public Service Association and the Police Association of South Australia is glaring in this bill. When this government consults, it either does not talk to people because it is afraid of what they will say, or it will not release what people said because the government does not like their comments. As a result, as I have said, the opposition will be reserving its final position on this bill, depending on the consultation that we undertake that the government has failed to undertake, and depending on the answers to questions which we receive in the committee stage here today, if we get to that, and certainly between houses and in the committee stage of the upper house.

The Hon. V.A. TARZIA (Hartley—Minister for Police, Emergency Services and Correctional Services) (16:18): I rise to offer just a brief contribution to the OPCAT Implementation Bill. Obviously, the federal government ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) on 21 December 2017. As a result of ratifying the treaty, we know that our country is required to have implemented OPCAT, including the establishment of, as we have heard, National Preventive Mechanisms (NPMs) by 20 January next year.

The OPCAT Implementation Bill seeks to give effect to South Australia's international obligations under OPCAT and will make related amendments to the Mental Health Act, Youth Justice Administration Act and, of course, the Police Act. The primary function of an NPM under OPCAT is to undertake regular and unannounced inspections of places of detention, including their installations, beds, etc., and also facilities.

The bill also provides for the specific powers and functions of the NPMs, including to carry out regular and unannounced inspections of places of detention, to conduct interviews with detainees, to make inquiries about the detention of detainees, to require persons to answer relevant questions or produce documents relevant to the NPM's functions and to make reports and recommendations relating to the detention of people and for those reports to be tabled in parliament.

OPCAT obligations are particularly critical for South Australia Police and Correctional Services. As minister, my agencies have undertaken a significant body of work to meet their independent national preventive mechanism requirements. NPMs will conduct regular and unannounced inspections of places of detention and closed environments where people are deprived of their certain liberties. OPCAT requirements will also see states facilitate visits to domestic places of detention from the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

The Australian government has taken the view that the implementation of OPCAT will initially focus on a number of primary places of detention, including but not limited to adult prisons and police lockups or police station cells where people are held for 24 hours or more. Accordingly, the bill designates an NPM or NPMs for each primary place of detention. The NPMs for correctional institutions will be the official visitors, as provided for in the Correctional Services (Accountability and Other Measures) Amendment Bill 2021. There will also be an official visitor appointed as the NPM for prescribed custodial police stations.

Importantly, and as has been traditionally the case in Corrections, the bill ensures the independence of the NPM, requiring them to be provided with resources as reasonably required to exercise their functions effectively under OPCAT. For correctional institutions, the bill provides that the powers and functions of the NPM are as set out in the Correctional Services (Accountability and Other Measures) Amendment Bill 2021. The government has taken this approach in recognition of the fact that the official visitor scheme is a new scheme that has been specifically developed with the intention that it would be designated as an NPM under OPCAT.

A significant body of work has been undertaken to establish the official visitor scheme and extensive consultation occurred as part of the passage of the Correctional Services (Accountability and Other Measures) Amendment Bill earlier this year. Steps have already been taken to establish the scheme, and I look forward to having visits and inspections occurring across our prisons and our police cells. I commend the bill to the house.

Ms COOK (Hurtle Vale) (16:22): I rise to speak on the OPCAT Implementation Bill. While the member for Elizabeth is the lead speaker on behalf of the opposition for this bill, much of what occurs within this bill and its coverage is relevant also to me as the shadow minister for human services. I carry the advocacy and policy work on behalf of the opposition for youth justice, but I also have a special interest in respect of mental health and the respect and treatment of people in facilities, such as those who have forensic illnesses.

The bill provides a framework for the implementation of the OPCAT (the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment). I understand that the Australian government's ratification of OPCAT in 2017 created new obligations for the states and territories to give effect to OPCAT across the country, as corrections and justice are primarily a state responsibility.

No person in South Australia's justice system should be subjected to torture or to cruel, inhuman or degrading punishment. Some offenders need to serve time in prison for the harm they have done, to send a signal to the community and to facilitate their rehabilitation. That is a core principle of the way the justice system works not only here but all around the world—restorative practice.

But that does not mean offenders should be subject to torture or to abject cruelty. We are better than that. I think this is especially true when it comes to the youth justice system. This is the area that I have responsibility for on behalf of the opposition as shadow minister. I fundamentally believe that children are never born criminals. It is what we do with our children, the example we set, the lessons we teach them and the environments in which we place them which frame and shape their behaviours. While we hope beyond hope that all our children become good, functioning, emotionally adjusted, empathetic individuals, sometimes that does go wrong.

Sometimes factors in their lives such as trauma, disadvantage and their upbringing can lead to criminal behaviour. We should be proud as a state that under governments of both persuasions, started by the Labor government and now continued under the current Liberal government, the numbers of young people in detention have come down significantly.

The earlier a young person is placed into a custodial sentence, the more likely they are to become a lifetime recidivist; that is a great shame. That is what we need to prevent, so it is very important that we look at prevention, rather than reactive processes, in the youth justice system. Of course, the numbers are still too high, especially the shameful over-representation of Aboriginal children in the justice system.

It is a good thing that the numbers of children in detention in South Australia are falling, but for those children who are in detention we must have strong safeguards in place to ensure their safety and wellbeing during that time. Of course, we have put in place some environmental and structural changes.

Those changes saw us move young girls and the younger male cohort from the old Magill site over to Cavan, which was then for the older boys. Now we see Magill close and the opening of the new training centre, the Kurlana Tapa youth justice centre, to accommodate the older boys. Now with the numbers the way they are, of course, we have been able to shift all of our youth justice clients across to the Kurlana Tapa youth justice centre, which is set up in a much more modern for-purpose way to deal with the issues, and the ambitions in fact, of young people who find themselves in the youth justice system.

But to put in context what we are doing, in the 2020-21 budget year there were 256 young people who had been admitted across that year to the Kurlana Tapa youth justice centre; 43 per cent of those, that's 110 young people, were Aboriginal and Torres Strait Islander. That is a great shame. Let's be clear. In that total number, these are hundreds of children we are talking about who have been detained.

We know that often many of these children have not actually been sentenced to time in the youth justice centre yet—another great shame. In estimates in July this year, I asked the Minister for Human Services how many children were held on remand in the youth justice centre. On that day in estimates, of the 28 children who were in the youth justice centre 26 did not have a custodial sentence. They were on remand. That is more than 90 per cent. So there is still a lot of work to be done in youth justice and those statistics demonstrate just why it is so important that we keep young people safe during their time at Kurlana Tapa youth justice centre.

This bill is not the only piece of the puzzle. In fact, it builds on reforms of the former Labor government, which I will be discussing further. The bill provides for National Preventive Mechanisms (NPMs) to conduct regular and unannounced inspections of their designated correctional facilities. Clause 5 of the bill specifically provides that for training centres, and I am advised that that term includes the Kurlana Tapa youth justice centre. The training centre visitor will be the NPM. This is important, as it builds on the already excellent and existing work of the visitor, who is currently Penny Wright.

I thank Penny Wright for her unrelenting advocacy and her absolutely principled position she has taken in respect of her work. It has been an absolute pleasure to work with Penny Wright since I was appointed to this portfolio, and I would recommend anyone to reach out for a briefing if they wish to understand more about the current challenges in youth justice. She does exceptional work with very limited resources. I genuinely believe that children in the youth justice centre are safer because of her and more likely to be rehabilitated effectively, educated, and have life ambition and outcome because of the efforts of Penny Wright and her team.

Unfortunately, with respect to Penny Wright and her team, I have been frustrated by the Marshall Liberal government and how it seems not to hold the training centre visitor position in as high esteem as we do on this side of the house. Last month, the visitor resigned from one of her other government roles as child and young person's visitor. She described it as 'a role in name only, without resources, which does not enable me to fulfil its functions even to a minimum standard’.

Let's not forget this position came about as a result of a recommendation of the Nyland royal commission. It is a disgrace that the Minister for Child Protection, the member for Adelaide, has allowed that to happen. That should not have occurred. Then the member for Adelaide came into this place and said that it did not matter because Commissioner Nyland only recommended a pilot program. Margaret Nyland would have heard that and would be suitably horrified by that comment. Pilot programs, of course, that work—

Mr Odenwalder: They are the beginning.

Ms COOK: They are the start of something often brilliant. I understand sometimes pilot programs do not get funded as an ongoing thing and there is no guarantee that they are going to happen as an ongoing project, but when the outcome and the bang for buck in terms of the dignity and the safety of young people within such vulnerable environments can be demonstrated, I think it is a no-brainer to invest that very small amount to ensure that it is a functional, ongoing project. Just to say it is a pilot and fob it off is not good enough.

Given these failures to ensure an inspection program for residential care homes, I was surprised to see the government introduce this legislation to strengthen inspections in the youth training centre. Perhaps this is a sign the Attorney-General is a more competent minister with respect to these matters than the member for Adelaide. That is probably for others to decide. This bill would give additional responsibilities to Penny Wright, who would pick up yet another hat as the national preventive mechanism, in my understanding. Those responsibilities are listed in schedule 1, part 4 of the bill.

I also want to outline some concerns I have regarding the scope of the NPM's powers in the youth training centre. The bill provides a range of powers for the NPM to inspect training centres; however, I am concerned that these powers are related to the physical premises of the training centre rather than a more general approach to ensure the safety and wellbeing of training centre residents. I understand these things are difficult but it is not insurmountable, and it is a challenge that has already been raised by the training centre visitor in relation to clients who go off centre—that sounds a bit weird—off site maybe.

Some of the feedback I have had from stakeholders is that children are being detained in adult correctional facilities as well. If that is the case, and I am happy for feedback on that in relation to what we have been advised, my understanding of the bill is that the training centre NPM would not be able to inspect those facilities. Instead, the NPM for the relevant facility would be empowered to do so.

This might seem like a small difference but it is an important one. We know the particular challenges facing young offenders. They are children. They have often had a very traumatic start to life and they need specialist care. We know that effective advocacy relies on specific skills and a good relationship between the visitor and the training centre residents. This is an issue I will also be seeking to explore in the committee stage of the debate.

I also want to note that this is a broader concern of mine and of the Labor opposition. The reality is that a resident of the training centre does not spend the entirety of their sentence within the centre's walls, nor should they. As I have outlined, sometimes they are in adult correctional facilities—that is an issue—but they go to many medical appointments, they often go to funerals, they often go off site to attend ceremonies and to a range of other approved visits. Those visits do not change the fact that these children are detainees of the Youth Training Centre and all the challenges in their life that suggests.

In my view, specialised advocates, like the training centre visitor, should be able to advocate for those children even if incidents occur outside the centre's walls. This was the motivation behind the bill I introduced in the last session of the parliament and I was disappointed that the minister and the government made it clear that they would not support the changes I was proposing at that time. But I want to place these concerns on record again because I do think there is a gap in oversight here and I am worried about the consequences of that.

Lastly, I would like to reflect on the consultation done by the government on this bill. The Attorney-General's office has provided—thank you—a list of stakeholders who were consulted during the writing of this bill and its construction. There are many appropriate ones on that list—absolutely. But in my view the glaring omission has been the representatives of the workers who will have to facilitate the support of children, of prisoners, and of people with forensic mental health conditions moving forward under this law.

Unions, like the Australian Nursing and Midwifery Federation, the Public Service Association, as well as PASA—I believe the member for Elizabeth would certainly have acknowledged their role in looking after people who look after those who will fall under this bill—all have an important role to play in the process. Their members are at the coalface. They are the ones who will be working with the NPMs, who will be held accountable and who will see the changes in their workplaces. I was really concerned to see that these unions were absent from the government's list of consulted stakeholders.

I have reached out to them in my capacity as shadow minister for human services. To clarify, I have reached out to the Australian Nursing and Midwifery Federation and the PSA, and I understand the member for Elizabeth would have consulted with the Police Association. I would like to place on record my deep thanks and gratitude for the speed at which they were able to provide us with some feedback. For the life of me, I cannot understand why you would not consult in the first place with those representative bodies who are representing thousands of people in the workforce, even if you do not care much for unions. Not all people in the Liberal Party hate the presence of unions or do not want to talk to them.

Even if you are not inclined to respect the place of unions in our workforce, I would have thought it would be a no-brainer to reach out to get the commentary and feedback from them just to say you have. It is not like it is the first bill that has come in here that has not had union consultation. We ask for it all the time, and we talk to our people in the community about the lack of consultation with their representative bodies who they trust to make sure they are working in a safe workplace.

Today, I have raised issues via questions in the other place regarding the welfare of workers at the Youth Training Centre. We have been advised that there are dozens of workers on WorkCover and leave related to stress, injuries and bullying—a whole range of complaints. In fact, we have been advised that the roster to staff the Youth Training Centre at best is only 30 per cent of FTE filled and that it is relying on overtime by stressed and strained workers to fill the shifts. This does not lead to a happy working environment, nor does it flow on to be an environment conducive to the support and growth of young people who are in the Youth Training Centre for training, education.

Alarmingly, we have been advised that, because there is not enough staff, young people are not getting their education. They are not going to classes. We have been advised that under many circumstances young people are kept in their rooms, where they stay overnight in their units, I guess, because there is not enough staff to take the young people to the classroom to get the education they are entitled to. I also wonder whether there have been any critical incidents as a result of this, what is being done to placate the children and young people to keep them calm and quiet because they are mixing with their friends and peers in the classroom. They are not doing their learning. So there is a range of questions to be asked.

In closing, I would like to thank all the unions for their feedback, I thank the stakeholders for coming to us and I reiterate the member for Elizabeth's comments that we will not be opposing the passage of the bill today but will reserve our position in the other place while we finalise our consultation and consider answers to our questions. I look forward to exploring some of the issues I have raised today during the committee stage of debate.

Mr PICTON (Kaurna) (16:43): I am going to make a quick contribution, given the importance of this debate. I think it is incredibly important we make sure that we have strong protections in place to prevent torture occurring. We have incredible power, vested through this parliament, in the ability for people to be detained, whether it be via the police, whether it be via Corrections facilities, whether it be via mental health services, whether it be in youth detention, and it is important that, as a parliament, we make sure that those detentions are lawful and that they do not have the risk of torture.

We have all seen in the past few days, as we have had the 20th anniversary of the awful September 11 attacks, some documentaries going back over the past 20 years of the war on terror. You can see how, in the wake of that, there were moves by the United States in particular to push at the edges of what could be acceptable ways of treating people in the hands of the government—waterboarding, sleep deprivation and these sorts of things. This should never be acceptable. This should never be a way in which we treat people, and I do not think it is productive, either, because it just leads to forced confessions and people saying what they want to hear. I absolutely stand with the need to make sure that we have strong protections.

I am very concerned that this has been significantly delayed. This was agreed back in 2017. We are now here in 2021. It is meant to be coming in a few months' time, and here we are right at the last minute debating this legislation. I recall in my brief time as the minister for corrections that we introduced corrections legislation that was seeking in many ways to make sure that we updated the legislation to be in line with the OPCAT guidelines and requirements under that treaty. That was then deferred and delayed by the government for years after the election, after they were elected.

We are here now. We clearly want to make sure that this is considered, but one of the key reasons why we still need to do additional consultation is that this has not been properly consulted with people in the workforce in those particular areas. The member for Elizabeth and the member for Hurtle Vale have talked about some of those areas. In particular, as the shadow minister for health and wellbeing, I would raise the point that there are key requirements and needs for the mental health system to be part of this regulatory system.

I do not see it mentioned anywhere that we have been talking to our nurses, that we have been talking to our doctors, our psychiatrists and our psychologists in the health system, as well as allied health professionals, with respect to making sure that we have worked through this arrangement with them. There does not seem to be any consultation with those frontline healthcare workers at all, and if the government is not going to do that we will undertake to do that work ourselves in between the houses and make sure that their views have been properly considered as we consider this legislation.

Mental health is obviously a key area for very important reasons. We have a Mental Health Act that deprives people of their ordinary liberties. It detains them, and we need to make sure that their rights are maintained and that we are not doing anything that could be considered the definition of torture to those people. I fully support a very strong inspection regime to take place there, and I look forward to speaking with our healthcare workers, as well as with people with lived experience—mental health consumers—to make sure that what the government has proposed is the right approach. As well as the workers, I do not see any evidence that the government has consulted with mental health consumers. Clearly, we should be making sure that they are also comfortable and support the approach that has been taken in this legislation.

I support the need to implement these measures. I want to make sure that we do everything we possibly can to prevent something being defined as torture happening within a state facility, but unfortunately we have not seen the work. This is a last-minute sloppy job by the government right before the bell rings of this parliamentary term and right before OPCAT is meant to start. Hopefully, we will be able to fix their work between the houses and further consider this in the next few weeks.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:48): I will start with consultation. Members may not be aware, but with respect to consultation I advise that all the Australian OPCAT network membership were part of that, and I will just quickly read them: Amnesty International, Australian Association of Social Workers, Australian Council of Social Service, Australian Child Rights Taskforce, the Australian College of Mental Health Nurses, Advocacy for Inclusion, Anglicare Australia, Asylum Seeker Advocacy Group, Being-—Mental Health & Wellbeing Consumer Advisory Group, Civil Liberties Australia, Community Mental Health Australia, Disabled People's Organisations Australia, and Doctors for Refugees, Federal Loves Refugees, which some members might know also includes the Rural Australians for Refugees group.

It also includes Human Rights Law Centre, Human Rights Council of Australia, Jesuits Social Services, National Aboriginal and Torres Strait Islander Legal Service, National Ethnic Disability Alliance, National Justice Report, New South Wales Council of Civil Liberties, Public Health Association of Australia, People with Disability Australia, Queensland Advocacy Incorporated, Refugee Council of Australia, St Vincent de Paul, National Council of Women Australia and Women With Disabilities Australia.

That is not to distract from the fact that, if there are unions that specifically have workforces working with persons in some form of detention, they are not important people to be considered if they have a view. In relation to the police, yes, I confirm the police commissioner has been consulted and indicated his support. Can I just explain the issue of the delay? Signing up was in 2017 by George Brandis, the then Attorney-General, nationally. To the best of my knowledge, South Australia is the first state to introduce this bill to complement and support this arrangement, so it is far from being delayed.

What we made very clear—and I thought it was clear in the contribution I made but, if not, I will make it absolutely clear—is that we are of the view that the model that would be employed in South Australia, which is optional, is that we either move to establish another grand scheme in Canberra of inspectorate, of supervision of this, by which they would administer all of the role of the ad hoc and without notice attendances at these places of detention, or that we do it ourselves under an approved system but with accountability to the office in Canberra. We chose the latter.

It was very clear that we had an inspectorate system for almost every area of detention in South Australia: mental health, hospitals in detention, the Adelaide Youth Training Centre at Kurlana Tapa—which has been referred to in the contribution today, which is now on one site—and of course the prisons under Correctional Services and our police cells.

It was only really the police cells that did not have supervision at every level. I think the member for Taylor mentioned in his contribution the supervision in these areas. This can be police cells in a police station at Peterborough or it can be at the watch house, so there is a diversity in how they operate. To be frank, in the development of what we were having under the South Australian model a lot of the time was taken up as to who was going to undertake that responsibility.

We are very pleased that Correctional Services and the police got together—and, I assume, their respective unions—to work out that Correctional Services, which had a very sophisticated area of work, would undertake the work in the police cells for the police. That process was discussed and negotiated. Those arrangements came into agreement between the parties and apparently they stack up with the commonwealth requirements under the OPCAT treaty and we would come into play with that.

I do not mind if there are issues raised that are matters of concern. None of the reference groups that I have referred to—the Australian College of Mental Health Nurses or the BEING: Mental Health and Wellbeing Consumer Advisory Group, etc.—have raised any problem directly with us. We have committed to putting into statute our commitment to an international treaty, which Australia signed us up to but, as has been pointed out I think by the member for Hurtle Vale (it may have been the lead speaker, but either one of them) the state responsibility is overwhelmingly with us as states to provide the services of detention.

We worked through that and, to the best of my knowledge, other states have worked through that with whatever deficiencies they have in relation to their supervisory arrangements, so that you can have visitor schemes and/or persons who are vested with that responsibility. Ironically, notwithstanding that the member for Hurtle Vale raised a concern about the supervision in Kurlana Tapa, which is the youth justice centre, independent of the Guardian for Children and Young People's temporary role as a training centre visitor under a pilot scheme, is one of about four people who regularly visit that centre. Importantly, they have identified issues like spit hoods in children's facilities and have reported that to the parliament. We have acted on it, our government has acted on the recommendations in relation to that, and they are no longer there. I think the adult prisons already have a policy in relation to that.

So, yes, it is important that we have these, for compliance with our own laws but also as part of this treaty. For example, Judge Penny Eldridge, who is head of the Youth Court and also chair of the training equivalent of the Parole Board, has access to that facility, and my understanding from my meetings with her is that she regularly visits there. We also have availability for the Ombudsman, and we also have the children's commissioner now as well as the Commissioner for Aboriginal Children and Young People. So we have four who can regularly go down there, and do, and they raise these issues.

It is important that we have inspectorates. Ironically, it is that facility that on the day I visited a few months ago had 17 children in it, and two more came in that day. So we are talking about a facility that is actually very low in number relative to other areas under surveillance.

The member for Hurtle Vale also raised the question of children apparently being retained in their rooms, not having supervision or people available to attend to their lessons and education. I have not heard of that concern; it would certainly be very concerning if it had been raised. I am not aware of any of the parties who report to the Minister for Education, for example, having raised that concern as to whether that is occurring or, if it had occurred, that it has ceased.

However, I am more than happy to make some inquiries about that, because those matters would be concerning. I can honestly say that, of all the people who have a role in relation to an inspectorate and/or a role of responsibility for children who are out there, to the best of my knowledge it has not been raised by them, but I will certainly make that inquiry. On the day I visited there was a workforce that heavily outnumbered the children in the facility, and that is a great compliment to the Hon. Michelle Lensink, who has worked tirelessly to reduce the number of children in that facility.

In relation to the Kurlana Tapa reference, I also remind members that as of this year's budget there has been a capital injection of funds into a bail house and upgrade of other services for those children. I do not disagree with the member for Hurtle Vale: we do not want to have children in any custodial situation if there is an adequate bail facility. Already the minister, in addition to the $40 million being spent on those improvements, is upgrading a facility for bail outside of the Kurlana Tapa facility. That is to be applauded and will certainly be welcomed when it is available, because nobody wants these children in custody.

I will conclude by saying that police cells hold people for very short periods of time. The responsibility for police to supervise people once they have been charged is very short lived, and the lead speaker would be aware of this. However, in South Australia, one of the reasons we have such a very high level of bailees in prison is because in other states they remain under the responsibility of their police organisation. They maintain responsibility, sometimes for several weeks from the arrest to the time they are ultimately transferred to the responsibility of Corrections.

If you look at the national data, you will see a really high level of people who are on remand in custody in South Australia, but that does not show up anywhere else in the country because those people have already been transferred to Corrections. Corrections are holding all these people and Minister Tarzia is responsible for them, but his equivalents around Australia leave them back with the police.

Mr Odenwalder interjecting:

The Hon. V.A. CHAPMAN: Yes, as part of his portfolio. We have a different system in South Australia. In any event, wherever they are in care, whenever they are under supervision in a detained circumstance, this is designed to make sure they are kept free of torture or any other cruel or inhumane behaviour. One of the cruellest things I have seen in the time I have been here, which was several years after coming into office, was the strip searching of a woman in the watch house, naked and left naked. I was given assurance at the time by the then commissioner that that would not happen again.

I found, in a very short time, it did happen again and I had to go back to the police commissioner of the day and say, 'This is just completely unacceptable conduct.' It defies any comprehension as to how that could be even allowable or an acceptable process of interrogation in a confinement situation. It is absolutely unacceptable.

I think it is important for all members to be conscious of the importance of what we are signing up to here. I am proud of the fact that we are progressing this in South Australia as the first one to initiate the bill. I hope it has the support of the opposition and swift passage through the parliament because obviously we are looking to commit to all being ready under the new regime by the beginning of next year. For that reason, I think it is important that we do acknowledge the responsibility that we have signed up to and now put it into effect.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr ODENWALDER: As I outlined in my second reading speech, this will be a sort of preliminary committee stage and the main guts of it will be conducted in the upper house when the Attorney is not there, I guess, but also after significant further consultation has been undertaken by the opposition, since that consultation clearly has not occurred.

I want to preface all my remarks, though, by reiterating that we do not oppose the measures in this bill. Indeed, it may turn out, at the end of all our consultation, at the end of all our discussion in this place and in the other place, that this is a very good bill and a very timely bill. Indeed, the intention of the bill is unmistakably good, and I think we all agree on that. We all agree that cruel and inhuman treatment of prisoners is definitely a thing of the past.

We have different methods of trying to achieve it, but I think there is a bipartisan agreement at least that we should be heading towards a corrections system, and a custodial system generally, that cares for people to the extent that it reduces recidivism and reduces reoffending and, in particular in regard to this bill, amongst those youth that are caught up in this system, of whom a despicable number are Aboriginal kids. It is a continuing sadness and a blight on this nation that that continues to be the case. I hope that this, and other measures we can all in a bipartisan way continue to enact, will address that in some way.

I have a couple of questions, and this seems like the opportune time to ask them. In her closing remarks, the Attorney-General stated that we will be the first state to ratify—

The Hon. V.A. Chapman: To table a bill.

Mr ODENWALDER: —to table a bill, which ratifies OPCAT. During the very good briefings I had from both the government and others, including Professor Laura Grenfell, when we were discussing the OPCAT measures contained within the corrections amendment bill, we had some pretty strong representations from Western Australia, that certainly their prison inspection system was consciously OPCAT compliant.

I wonder if the Attorney has any information about what Western Australia has done in terms of the other areas that this bill addresses, as they have done in Corrections, whether their equivalent systems confined to this bill are OPCAT compliant and whether they have essentially ratified the protocol?

The Hon. V.A. CHAPMAN: Just to explain, there are two processes. One is that, in the last few years, having all agreed that we would do it, we have worked with the commonwealth to have whatever models we have in our respective states qualify, so to speak, or satisfy the standard. My understanding is that Western Australia has so far gone down the road of having its NPMs approved. What is happening in Western Australia is that, through their legislation, they have had a designated person allocated to do that role of the Inspector of Custodial Services. So far, whether it has been populated yet, we have no idea. That is what is happening over there.

In relation to the two other territories, the NT and ACT, they have enacted legislation to have their inspectorates done by the Subcommittee on Prevention of Torture (SPT). That is a different process. What we are doing here is signing up the whole thing and we are ready.

Mr ODENWALDER: I will get back to the crux of my second reading contribution. You did provide a pretty comprehensive list of consultees and you expanded upon that comprehensive list. Why did you not consult the PSA and PASA?

The Hon. V.A. CHAPMAN: ANF, PSA and PASA were the three that were raised in the contribution, so I will not ignore the Australian Nursing Federation (ANF) because I think they were raised as well. There were three unions that were raised, not just the ones the member has raised, so I will do them all in that category.

There are a number of associations and groups that I think we have covered. I appreciate that the member says, 'Just dealing with the police commissioner and his bevy of advisers isn't enough. This should have been dealt with with the Police Association of SA as well.' From time to time, we do. This is in relation to signing up to a treaty. The implementation of that is under the responsibility of the Commissioner of Police, for example, if we are using that as the example, and we would certainly expect that in relation to those matters they would be considered.

My understanding is that they were involved in relation to the question of negotiating the available personnel from the corrections department to undertake work for the police department from their inspectorate group. These are the people who actually do the job, so it was agreed that pool of people would be available—at a fee, no doubt, that is negotiated between them—to provide that service. Of course, if the opposition want to specifically consult with them, they are welcome to do so.

Mr ODENWALDER: I would have thought that with a list so extensive, there are such glaring omissions from that list. These are unions that represent the people, the cell sergeants, the police security officers—

Ms Cook: The youth workers.

Mr ODENWALDER: Sorry, I am just talking about police at the moment; it is the only thing I know anything about. It just seems like a glaring omission not to have consulted the body that represents those workers who will be directly affected. I understand that this is a treaty, I understand the NPM process, I understand those people should be consulted about those people's roles, but what I am talking about is the impact those people have on the people working there currently.

The Hon. V.A. CHAPMAN: In that regard, let me make it very clear: the treaty is something Australia has signed up to. We provide the service. This is not a question of going along and saying to the workforce, 'How do you feel about us coming in and doing this inspection?' if there is a visiting group from Africa, for example, who are signed up in the international community to do these visits and we do not want them to come in without notice.

For example, during COVID, there was an international group from the United Nations subcommittee of some kind, who came to actually inspect our prisons and it was clearly identified, at least from South Australia's point of view—I think the others followed suit—that it really was not a smart time to have people who did not need to go into prisons to go in there because we were in a COVID shutdown arrangement and we wanted to make sure we were keeping COVID out the prisons, which is exactly what we have achieved so far. I am sure that Minister Tarzia is making sure that that will continue.

That ended up being a situation where I think they certainly came to Australia; I am not sure whether they actually got to South Australia because we said, 'This is really not a good time to visit.' This is not a question of consulting with workforces on how they feel about the arrangements. This is an inspectorate. Again, if anything, it is to deal with the premises, including issues in relation to the wellbeing of those who are in custody or in detention of some form or other. That is what it is about.

Therefore, certainly I would make it clear here today that we are not in a situation where we would be in some sort of consultation with the process. Of course you have to speak to management and say, 'Is there a practical issue? Do you have workforce available? Is there a better time of the day? What time do you change over your shifts?' Management obviously needs to be able to tell the personnel when it is going to be difficult or inconvenient to have a visit. There are practical things to be taken into account, but that is what management is there to do.

Ms COOK: Attorney, when did work on this bill actually commence?

The Hon. V.A. CHAPMAN: It went out for consultation on 3 June this year. Certainly, it was a few months ago that we finally got the bill because it was only in the earlier part of this year that we finally had resolution of the outstanding issue of who was going to do the police cell arrangement. That had to be sorted, still. Once everyone was in check, the Public Advocate was ticked off. She supervises the visitor program for mental health facilities, etc., aged health facilities and so on. So everyone else was in order and the final one was in Minister Tarzia's area between Corrections and police.

Ms COOK: I heard you talking just before about the process that has been undertaken in WA. Are there any other parallel processes happening interstate at the moment and how does this compare with how other states are undertaking the consultation in the process?

The Hon. V.A. CHAPMAN: I do not know specifically of those. We are all under arrangements where we are working with the commonwealth. They are the ones we are having to sign up to and do everything in 16 copies. It is bureaucratic overload over there in Canberra, let me say. So we are dealing with them; we are not dealing with the other states as such. The attorneys have met and canvassed as to what we would each do, so I have not been keeping any oversight over my colleagues in other states, other than to know that they are progressing.

I am just advised by my adviser that Tasmania now has a draft bill in train—whatever that means. Presumably they are getting it ready. We all know what the deadline is, but we thought that we were comfortable in having had the tick-off as to what was acceptable and we are putting it in the envelope of the legislation now.

Ms COOK: Just to be clear, there is no other legislation in other states that has been complete in relation to youth justice at this point; is that what I am hearing?

The Hon. V.A. CHAPMAN: Not in youth justice, no.

Clause passed.

Clause 2.

Mr ODENWALDER: I hope that this is the right time to ask the question. This gets to, again, why this bill has taken so long and I think that we have exhausted the Attorney on that particular subject. But I do note, as I have noted before, that there was a Corrections amendment bill in the house some six months ago, eight months ago, that we debated at length. As I said, there was extensive consultation and very good briefings. Professor Laura Grenfell and the people from WA were very good with their time. The Hon. Connie Bonaros, too, made some very good amendments.

My question is if corrections could do it—and, from memory, it was a more substantial bill in terms of the schedules being much longer and it was a much more substantial piece of work. I guess there are two questions. Why was that bill completed before this bill? A supplementary to that: why was it not considered that the bills could be put together as one OPCAT compliance bill and be done with it?

The Hon. V.A. CHAPMAN: The corrections bill, of course, was comprehensive in relation to corrections, not just the question of the OPCAT obligations. But within that, they were formalising—I think we had pretty much agreed what they were already going to be doing—so they put it in their comprehensive bill. Police, in short, were the ones who needed to be looked at because they just did not have anything; they had to start from scratch. Their negotiations were in relation to the police cells and they needed to start from scratch. They had to look at whether they were going to train up their own or have another new visitor system. They ultimately agreed to negotiate with corrections to look at their model and utilise their inspectors. I think it was an excellent outcome.

Mr ODENWALDER: Since this is about the commencement, if all goes to the government's plan and we pass this bill in a timely way in the other place—presumably next sitting week would be the hope of the government, I imagine—when do you expect this bill to commence? Do not say the date fixed by proclamation.

The Hon. V.A. CHAPMAN: Sometime before 20 January next year which, of course, we have all committed to sign up to.

Ms COOK: In respect of that process, what work needs to be done between now and when the bill does come into effect? What other work needs to be done in order to get that happening?

The Hon. V.A. CHAPMAN: We need regulations, but I think we have given you a full list of what we understand to be the places of the institutions that are to be prescribed through that process; so regulations, and the protocol for the NPMs formally we still have to sort out. It has to be then worked out what the process is physically going to be with the arrangements with the central body in Canberra, the National Preventive Mechanisms. The agency is the NPM Coordinator. That is a typical bureaucratic Canberra description.

Ms COOK: How does the implementation time line then relate to what happened in WA to put in place their regulations in relation to corrections? Are you confident that that in fact is going to be met within that time?

The Hon. V.A. CHAPMAN: I cannot tell you the program. They seem to have done it the other way around. They have passed the legislation to appoint an inspector of custodial services. They have done it the other way around. They have set up that framework and they have to populate it. I do not keep an eye on them or identify how they have progressed or whether they have deficiencies yet. We all have to sign off to the Canberra arrangement, the Canberra coordinator office.

Ms COOK: Is there any money or budget that you have attached to the implementation of the functions of the people who sit under this bill in order to get work done, the NPMs and such?

The Hon. V.A. CHAPMAN: The commonwealth have made commitments in this regard and they are in discussions between the commonwealth and the NPMs on those matters. They do that directly.

Clause passed.

Progress reported; committee to sit again.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT