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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

OPCAT Implementation Bill

Committee Stage

In committee (resumed on motion).

Ms LUETHEN: Chair, I draw your attention to the state of the house.

A quorum having been formed:

Clause 3.

The Hon. V.A. CHAPMAN: The member asked about the places of detention and how that was to operate. In reference to clause 3, the interpretation clause, which sets out the definition of 'detainee', it means a person detained in a place of detention. 'Detention' is identified; that can be read, obviously. Furthermore, at about point 4 on page 4 of the bill, 'place of detention' sets out that each of the following is a place of detention: a correctional institution, a training centre, a prescribed mental health facility, a prescribed custodial police station. They have some identification.

Essentially, those places are defined for the purposes that they will be scheduled in regulation. I understand there has been some query about that over a period of time. We have provided a schedule to the parties who are interested in this bill as to where they are to apply at present—where the police stations are, where the hospitals are, etc. I do not think there is anything groundbreaking about that. There seemed to be some inquiry about whether that ought to be in the act.

For obvious reasons, police stations may open or close, similarly hospital services, etc., so that can change. A ward in a hospital may have a detention ward that then is moved. For example, when the Repatriation General Hospital at Daw Park was open, it had two secure wards. One was Ward 17 and one was Ward 18—one for veterans and one for older persons' mental health. Both had a detainee facility, as I recall. Then the whole of the veterans service, under the previous government, moved to the new Jamie Larcombe Centre, so it was a different place, different address. Service continued but in a different arrangement. So these things do change; we accept that.

If we were to have to come back each time to add to that or change it, it would be obviously some inconvenience to the parliament, but nevertheless that is not something that is insurmountable, it seems to me. We could identify them and then have such other places that may be prescribed or something of that nature, so I am happy to work with that, but it just seems to me that it is pretty clear in the act, or it is now.

I understand, if this is of assistance, that the commonwealth has been describing in its definition of a place of detention that their workable initial definition for primary places of detention is to include any closed facilities where a person has the capacity to be held longer than 24 hours. That does not mean they have to be held for more than 24 hours for the purposes of being considered as part of the data the inspectorates are considering for the purposes of their reports.

What it means is that it is a facility in itself for the purpose of holding for the 24 hours. I suppose what that difference means is that we are distinguishing between an emergency department or an area where there is not a facility for holding them more than 24 hours, that is, they are not in a ward or something of that nature. In any event, as I understand it, we have adopted that across the country as a definition for primary places of detention.

For the purpose of this we have not put a time limit on that. I think that what is going to be clear here is that, wherever people are detained, whether it is for a short or a long period of time in a closed environment like that where their movement is restricted—and these are usually prisons and hospitals—then we need to have this inspectorate established to ensure that there is really a pre-emptive strike here in making sure that these facilities are up to standard.

I make this point again, that largely in South Australia our facilities which have this service have all sorts of inspectors over them, all sorts of means by which they are under scrutiny. One area that was identified as not having that were police cells. It is the one area where there has been a lot of work done and acknowledgement by the police that they needed to incorporate that and to have a process for that supervision.

I have explained in the general debate in this matter that that has been done with the cooperation of the Department for Correctional Services and its visitor inspectorate service and the utilisation of that which is proposed by SAPOL. I hope that answers the question.

Mr ODENWALDER: I thank the Attorney for her answer. I do thank you; that was very clear. However, my question was not really about prescribing places of detention. I understand what you said. You say that we do not put on a time limit. We are talking about people who are just detained in an enclosed place for any period of time.

I am wondering why we did not consider things like police vehicles or even court facilities—situations where people are detained, whether or not they are arrested, and placed in a vehicle for a period of time. They are restrained. They are to all intents and purposes in custody and detained. Is there no mechanism by which those places and those instances can be assessed by the NPM?

The Hon. V.A. CHAPMAN: The determination here was to be in relation to places of detention as distinct from police vehicles and ambulances. These are all areas where there is expected to be a transient transport service provided, as distinct from being held in a place of detention. That is the OPCAT approach. I do not know of any other jurisdiction that is going down an area that is outside of a place of detention as distinct from a moving vehicle, and nor, of course, have we gone any way to addressing whether there needed to be some scrutiny over the ambulance service, for example, or police custody or corrections to and from prison to court.

They are expected to be a transient service not a place of detention. That is the objective of the act. Nor to the best of my knowledge has there been any call for that from the OPCAT officials, except in consultation it was raised by one or two of the stakeholders. I think Penny Wright did from memory.

In relation to the official visitors, the Correctional Services (Accountability and Other Measures) Amendment Act already has, for the purposes of a correctional institution, reference to a vehicle, including a police vehicle, on the grounds of a correctional institution and used to transport prisoners to and from correctional institutions—and a cell at a court being used to accommodate the prisoners. They are already under scrutiny. What is not I suppose are the ambulance drivers, but nobody has raised that with me.

Mr ODENWALDER: The situations under scrutiny in the provision you just read out are detainees of the Department for Correctional Services? They are not police detainees? That relates to correctional services prisoners?

The Hon. V.A. CHAPMAN: Yes. As the member probably knows more than most in this house, we have a situation where the police undertake the arrest, there is a transition into the custody of the Correctional Services department, there are bail applications usually in between. Very early in that process, the Correctional Services department takes responsibility for the person who is to be in custody, but they may well be conveyed in a police vehicle.

This definition—it is 19A under the Correctional Services (Accountability and Other Measures) Amendment Act:

…includes a reference to—

(a) a vehicle (including a police vehicle)—

(i) on the grounds of a correctional institution; or

(ii) used to transport prisoners to or from correctional institutions; and

(b) a cell at a court being used to accommodate a prisoner.

So they are already covered.

Mr ODENWALDER: Sorry, these are supplementaries, sir, you will understand.

The CHAIR: So you are looking for clarification here, member for Elizabeth?

Mr ODENWALDER: Indeed. What you are saying, then, is what I am saying: criminals who are arrested by the police—to make it simple, on the roadside, who have not had any connection with the Department for Correctional Services yet, but are nevertheless detained in a police vehicle—are not protected by the OPCAT provisions.

The Hon. V.A. CHAPMAN: These provisions I have just read out, I will just say it again, are under the Correctional Services (Accountability and Other Measures) Amendment Act and they are under the scrutiny of the official visitors—which is a service that we have in South Australia over prisons—not OPCAT, not the central body in Canberra.

The CHAIR: Final question on clause 3, but that is alright. Away you go.

Mr ODENWALDER: I think we are talking at cross-purposes. I just have one quick question which I think is probably simpler: with the definitions of detainee and the operations of the NPM, is the detainee themselves under any obligation to cooperate with the NPM?

The Hon. V.A. CHAPMAN: The scrutiny under the OPCAT provisions does not have any mandate over individuals, nor are they the advocates for the individuals. This whole purpose, this whole process, is designed not to go there and say, 'Well, look, I am going to listen to someone'. The Ombudsman can go down there and hear a complaint about not getting their pocket money for the week or whether they were put in their cell too early and all those things.

These people are there to deal with an international measure of attendance to ensure against cruel and inhuman etc., torture and punishment. That is the process. They are there to try to ensure that we have some oversight to make sure that people are appropriately looked after. They are not there as an individual body of complaint. So if they did interview a detainee of any kind, it would be with their consent.

Ms COOK: Mine is in a similar vein but more with respect to a patient within a hospital. We have the definition of a prescribed mental health facility and we talk about that potentially being a ward like the Jamie Larcombe Centre. We then have a range of people who are in hospitals, or in parts of hospitals, with mental health problems as either their primary or secondary issue.

We could have people who are coming to the hospital for a medical illness requiring long-term treatment, greater than 24 hours. Those people, as a consequence, could be diagnosed as having a mental health problem and have a section 32 applied, or those people could have underlying mental health problems and be sent to the hospital for treatment of a medical illness or surgical intervention and be already under an order of detention.

They may be a transfer, like an up-transfer from a mental health facility, so they then go into either a medical ward or a surgical ward in a private or a public hospital. They might be in the emergency department for a prolonged period and go to what the equivalent is of the extended care unit, which does not have all mental health clients or patients in it either. As you described before Attorney, talking about an ambulance. The ambulance, as we know, could be ramped for eight hours with a mental health patient in the ambulance, so they are in a stationary vehicle at a hospital.

If you can bear with me, there are a whole range of permutations that apply to people who come maybe as a medical patient and then have mental health problems uncovered and be detained as a result, or they may be detained and then require transfer and treatment, but they may be within Ward 6A, 5B, S5 or whatever, wherever, or some private ward.

How does this oversight and insurance against mistreatment and torture apply to an individual who is not within a mental health prescribed ward but is a mental health patient for an extended period of time? Having experienced the care and wraparound support needed to give to these clients, it is a very difficult situation when they are not in their home ward, such as a mental health ward, so they are quite challenging. They do need some oversight and support. I just wonder, Attorney, how is it that this applies there?

The Hon. V.A. CHAPMAN: I think the member is referring to someone who may have, say, a comorbidity. They have a mental health problem—it may not even be diagnosed at that stage—and they are being treated for diabetes at a general hospital. This runs to the argument that surely we should be just declaring the whole of the hospital—babies' wards, everywhere, wherever somebody might be who is potentially at risk who might have to be detained or be under assessment for the purpose of future detention. This is not about individual people. This is a process that relates to places, prescribed places, and they have been defined.

For example, at The Queen Elizabeth Hospital, the whole of the hospital is not having OPCAT people run all over it. The Cramond Clinic would. The Queen Elizabeth Hospital would also have the older persons ward and at the Royal Adelaide Hospital there is the psychiatric intensive care unit, for example. The lists have been provided to the members who have asked for them; I think the members have had them, so I will not go into all of them.

This is not about individuals. If someone in that scenario that has been raised attends at a hospital having a physical piece of medical treatment done and then is found to have a mental health problem and they are subject to an order of some kind—they may be under a direction in relation to psychiatric detention, which I think can still be up to 24 hours before court orders or guardianship orders have to be obtained, whatever it is; I think you understand the position on it—and they are taken to a facility, it is that psychiatric facility or James Nash House or a prison or a police cell.

It is the place under this process. We have myriad other things, including the Health and Community Services Complaints Commissioner and the Ombudsman if there is an issue in relation to care or process in a general hospital.

Ms COOK: This is another question. Just to clarify, though, a facility could not be subject to any ramifications of an OPCAT order or inspection as such if they are not that prescribed facility?

The Hon. V.A. CHAPMAN: Correct.

Ms COOK: Asked and answered. Clarified and answered and on to the next. Attorney, when you spoke before you referenced the new bail facility outside Kurlana Tapa that is funded under this year's budget. Does this fall within the definition of a training centre or any other type of centre for the purpose of this bill?

The Hon. V.A. CHAPMAN: There are two facilities that are proposed: one is a bail house and one is a short-term facility. Wherever they are detained and there is a capacity to hold them for more than 24 hours, then, yes, I expect they will be prescribed once they become functional.

Ms COOK: The definition of detainee within this bill includes former detainees. Attorney, would you be able to outline what role the NPM will have in regard to former detainees.

The Hon. V.A. CHAPMAN: It may well be that in their observations and the reports they have given they have identified an area or practice that is not appropriate, and they ultimately do their report and they are no longer a detainee. That is the first. The second is that there is nothing to prevent someone making a report to the NPM about an area of concern, even if it was not a prescribed place. It enables them to be party to that—a whistleblower, I suppose, for want of a better word.

Ms COOK: This will be my last question. Attorney, are you able to outline the role of the NPM Coordinator as listed in the clause? What is the commonwealth's role in that process as well?

The Hon. V.A. CHAPMAN: Firstly, the NPM Coordinator is regulated and established under commonwealth legislation—it is referenced in here—and they are just that: the coordinator. Two models were offered in considering the sign-up of the states and territories to this: either identify what we had and be able to provide that service individually and top up where appropriate, I suppose, if there were any gaps or have a system of inspectorate all operating from Canberra. I do not know anyone who was taken up that option. Usually that would be about the most inefficient you would ever have. We chose the former.

We have had confidence in the state bodies to be able to undertake this function in the past. They were under the oversight of this parliament, so we have really expanded that for the purposes of being able to comply with the request that we comply under this international treaty.

The functions of the NPM Coordinator include consulting with governments and other bodies on the development of the standards and principles (I am paraphrasing here); collecting the information on the oversight arrangements in relation to persons who are deprived of their liberty and undertaking related research; proposing options and developing resources to facilitate improvements in the oversight arrangements in respect of those persons, including the facility's sharing of data, all those things; and communicating on behalf of the NPM with the UN subcommittee on prevention of torture, which is referred to as the SPT under this legislation. There are a few other facilitating provisions in it, but that is largely it.

Clause passed.

Clause 4.

Ms COOK: Attorney, would you be able to outline any expected conflicts between the relevant acts described in the clause and this function of the NPM? For example, would the role of the Training Centre Visitor under the Youth Justice Administration Act have any conflicts in regard to the function of it as an NPM?

The Hon. V.A. CHAPMAN: I do not think so, in short. I think there is a question of a certain oversight role, and they do it very well. To extend that to be able to complete a report in relation to what they are doing for NPM, there may be some slightly different extra information that is provided. I think they are entirely competent and skilled to do that, and I have every confidence that they will.

Ms COOK: I think it is right, but just bear with me. In regard to how this is applied and comes together, previously I asked you for information regarding the funding, and I have asked further questions. The commonwealth is putting in some sort of implementation funding, as I understand it, as a one-off. In relation to these individual NPMs being able to apply this act appropriately, it will require a deal of consultation, education and delivery. Has the Attorney put any thoughts into that costing model and what that will look like?

The Hon. V.A. CHAPMAN: Just for the benefit of the previous question you asked, it is further down in the bill, but there is a specific conflict of interest clause in case there was a direct conflict on a matter, and I refer the member to that to identify how any dispute in that regard is dealt with.

In relation to funding, yes, there is process happening at the moment where the commonwealth is sending out certain offers, I think, for two years' funding per jurisdiction; that is being negotiated at present, as it should. They have asked us to sign up to this, we have agreed to do it, we are supplementing it, we require funds to do it—we have always told them we would require that—and undoubtedly there will need to be some preparation and training even to complete the forms so that there is some compliance with this sort of program. They are all still under discussion and negotiation.

Clause passed.

Clause 5.

Mr ODENWALDER: I preface all this by saying that I do understand conversations are going on regarding possible amendments coming from all sorts of directions in relation to this bill, and I welcome that. It is no secret that we all received a very good briefing this morning from some experts in the field, and it was suggested that under the OPCAT principles, the international principles, the NPM should be considered a team. It is a process and a job that requires a lot of resourcing and requires more than one person to fulfil that role. Each of these subclauses in clause 5 seem to suggest that one person will fulfil the role for each of the acts. I wonder whether any thought has been given to extending that out so there is more than one NPM individual servicing each act.

The Hon. V.A. CHAPMAN: Let's be very clear: a dedicated NPM or their delegate is one thing. It does not mean they cannot have a team of people assisting them with that job. This concept that the NPM is only a single person, that they are on their own and if they die or they are sick there is nobody who will ever be able to do it—each NPM have staff. There is a delegation clause in the bill to enable the NPM to delegate their NPM functions and powers to any person they consider may be able to assist in the performance of their function. That is all there in the bill. They are not expected to do everything by themselves.

Ms COOK: Attorney, I understand there are children detained in adult correctional facilities in a range of circumstances, particularly the watch houses of a whole range of police stations, which is a great shame, as I am sure the Attorney would agree, and not an appropriate place. Would the Attorney confirm whether the Training Centre Visitor, as the prescribed NPM, will be the relevant NPM for all children in detention or just the children within the walls of the training centre? I do not need to explain more, as I am sure you can see where I am going with that.

The Hon. V.A. CHAPMAN: Youth detention is largely expected to occur within a training facility for children. From time to time, a 17-year-old male, serious offence, may be incarcerated in an adult facility, James Nash House or a psychiatric ward somewhere for forensic detention. If there is any weakness in relation to having access to that by the guardian, for example, there are two. The training visitor is Penny Eldridge, who is the chair of the training centre, basically the children's parole board, and she is the head of the Youth Court. She has access to children if she wishes to have them anyway.

Penny Wright—a different Penny—as the Guardian for Children and Young People, has a visitor role as well. So there are a number of people. Even the Ombudsman can go down there. We have a whole lot of people actually. Probably our youth facility people are the most supervised groups that actually exist but if there is any weakness in that regard, we will have a look at it. It was raised at this morning's meeting for the first time and nobody's raised it before but we will have a look at that. Certainly Penny Wright, I think, has raised this, but Judge Penny Eldridge has not raised it, to the best of my knowledge.

Ms COOK: I think maybe we will have another conversation about that one later. In my second reading contribution, I outlined the concerns that have been raised with me regarding the possible detention of children in adult correctional facilities. In terms of the Training Centre Visitor in her capacity as the NPM for training centres, I think you might have started to unpack that, given that you are saying there are all different roles able to visit. What is not clear is that there are children in a range of places who are detained who require a specialist lens on them such as hospitals, and we have talked about the watchhouse.

I am not sure that the response you gave just then shows us that they are going to get that specialist lens over them. We were informed today at the round table that police officers with all good intention made comment that they treated young people the same as adults, and I took that at face value to be that they thought that was a positive thing. I believe Penny Wright—and I do not think I am verballing her—claimed as well that the police officers said, 'We treat them all the same. They get fair treatment. There is no mistreatment.'

I think that was the line that they were trying to take, but they are children and many of the young people who are detained in watch houses for any period of time have experienced a lot of trauma, so they often have an emotional age that is much younger than their biological age. I do not think what you are saying to me is that the youth Training Centre Visitor would go and put a lens over those particular facilities in their role—because we do not know if it will be a her or a he in the long-term future—as the NPM for training centres. Is that what you are saying?

The Hon. V.A. CHAPMAN: As I understand it, here is how it works. Whilst there are multiple agencies in South Australia under South Australian laws able to inspect, protect, report to the parliament, etc. there is a Training Centre Visitor and that is to the children's prison basically, and that role is undertaken by Penny Wright. She may have access to someone who is 17, who is under the guardianship of the minister, who might be in any of these other places, and she has the right to be able to visit them anyway because she is the Guardian for Children and Young People.

Ms Cook interjecting:

The Hon. V.A. CHAPMAN: I am just coming to that. Let's assume they are in a psychiatric hospital and there is some question about whether there ought to be some child-specific care of that person or in relation to the treatment that is implemented there. One of the reasons the NPM has the power to delegate is that they can do just that. They can actually delegate for the purposes of inspecting a place of detention of which a 17 year old is at to Ms Wright, for example, or the Guardian for Children and Young People, or anyone else who would be competent to do that.

Ms COOK: I will use my last bite at it. In the last line of questioning we were talking about hospitals and we were saying it is not about individuals, it is about the place. In this regard, I am talking about the place. I am talking about children in adult corrections facilities or somewhere else—'the place'. Does the youth Training Centre Visitor, as the relevant NPM for children in detention, get to look at the place, or is that done by one of these other people? If that is the case, what is the point of this?

The Hon. V.A. CHAPMAN: There are two things that can occur. One is the Training Centre Visitor is the supervisor for that centre, not for all children under 17 who are in detention, whether in a psychiatric hospital or another facility. There are NPMs that are for facilities. If a 17 year old who has a psychiatric condition is in an adult prison, say, for all sorts of reasons, there may be several people who are delegated to go into that space by the NPM of that facility.

Ms COOK: I think I sort of get it. I will do more reading on it. Thank you.

Mr ODENWALDER: If I can have a crack at clarifying it, take for instance the City Watch House, as under the administration of the police act—that is the police NPM, for want of a sort of shorthand. If there is a child in there, as there often is, the police NPM can delegate the responsibility of coming in and assessing that place to the child, the youth NPM, is that right? Or can they do the work themselves?

The Hon. V.A. CHAPMAN: I think you have it completely right. The police would be, within their police cell, the NPM, but they have the capacity to call in, if they think it is a 17 year old, Ms Wright. It may be that they need someone with mental health capacity to assess as well. For the purposes of the numbers of Indigenous children that we have in this situation, I will just make the point that we still have a visitor service that ALRM provides for any person—child or adult—who is taken into custody who is Indigenous, who declares themselves Indigenous.

We have worked this modelling out recently with the Commissioner of Police, for that visitor service to continue. It has been operating for 20 years. It is being upgraded. The commonwealth has put a whole lot more money on the table, and a negotiated arrangement with ALRM to also provide that whole custody notification service as the model. We have had the model of this for 20-odd years, but they want to upgrade it to add in not just to have a visitor for welfare purposes, to make applications for bail, find them a house, find them suitable relative connections, etc., but also to have the legal adviser in that team.

Questions of legal professional privilege have recently been discussed, etc. They are all in the process, but the commonwealth put a whole lot more money on the table with the negotiations with ALRM to upgrade that service, and that service would still apply. That is something outside of this, but it may be someone in that service that the parties here would actually find useful to be able to provide an assessment in that regard, depending on what the complaint is, I presume.

Clause passed.

Clause 6.

Ms COOK: You talked about the conflict of interest earlier and referred us down the track. Did you actually get any feedback regarding conflicts of interest, or has anything been identified that has required any thought or discussion around that?

The Hon. V.A. CHAPMAN: To the best of my knowledge and on the advice I had, no-one has raised a problem of conflict of interest, but this is common within the obligations under the usual treaty arrangements, that there be provision for any potential conflict of interest. I think it is in clause 9, in the schedule, in the actual operational part of the bill, which sets out the process, that the NPM must inform the minister in writing, etc. The steps are set out there.

Ms COOK: With respect to that, I know Tasmania was in the process. Have you had any discussions or feedback regarding the use of current existing statutory officers in the role of NPM?

The Hon. V.A. CHAPMAN: We have not had anything from Tasmania. They are following us, so they are contacting us for advice.

Ms COOK: So nowhere?

The Hon. V.A. CHAPMAN: Nothing has been put to me, no.

Clause passed.

Clause 7.

Ms COOK: In respect of the functions of the NPM, are they based on any sort of agreed standard or are they just a specific to our jurisdiction, which we have drafted here ourselves?

The Hon. V.A. CHAPMAN: They all have to fit and comply with our standards in South Australia, which you can see under each of the acts.

Clause passed.

Clause 8.

Ms COOK: Will NPMs be allocated any specific staff for the role? Will you ensure or oversee some guidance in relation to that happening with individual NPMs so that they have delegated functions? Will they have delegated functions and powers under this clause?

The Hon. V.A. CHAPMAN: This is the delegation I was talking about before. They can have their own staff. It is expected they will have staff. They have delegation power to be able to bring in expertise when required. At this stage, I have not received any request for budget, for example, or staff provisions for any of these, but a lot of these already exist. It is a question of what extra resource they may need. As I say, we are negotiating with the commonwealth for them to pay for it for the next two years.

Clause passed.

Clause 9.

Ms COOK: Will the Attorney outline what kind of process will be in place for a person transferred from one correctional facility to another? In relation to a child moving from a training centre to an adult facility when they become an adult, is there a handover process that should occur or any kind of scripted documentation?

The Hon. V.A. CHAPMAN: I will see if there is information I can get for the member on this. It is nothing specifically to do with this. This deals with the legal capacity to be able to disclose information about that patient, resident or prisoner when they transfer from one facility to another. That is obviously to comply with all the other current rules which keep things private. This does not deal with that at all, but there is a process, as best as I understand it. When children, for example, are serving a sentence and they move from a training centre to an adult facility, there is a transfer of their medical records. There is a briefing either way. I am happy to get more information on that for the member. Sometimes they go from hospitals, of course, so James Nash House is included.

Clause passed.

Clause 10.

Ms COOK: If during an inspection some sort of abuse or neglect is uncovered in our correctional facility, for example by an NPM, what reporting or referral would be anticipated?

The Hon. V.A. CHAPMAN: It would depend on the nature of it. It says here under 10 that the inquiry agency can be South Australia Police or the Ombudsman—it lists them all there. Of course—and this is the same in lots of situations—you have to be able to identify whether it is something that is a weakness that ought to be looked at by, say, the Ombudsman. For example, it could be a prisoner who does not have the right pocket money or they are complaining about being locked in their cell for three minutes longer than they should have been.

If you look through the Ombudsman's report this year, you will see he still had about 780 prisoner complaints. It is still his most outstanding number of complainants in that facility. On the other hand, if there is a suggestion that there is some solitary confinement and breach of the law or some isolation of the prisoner, it may well be something that needs to go the police or other agencies. Again, it depends on the nature of the matter. Otherwise, they would be putting it in their report to go as the NPM person to the national coordinator, which I think they have to do quarterly; is that right? Annually.

Ms COOK: I almost feel inclined to ask how many positive feedback reports did you get from prisoners, but—

The Hon. V.A. Chapman interjecting:

Ms COOK: I know: it is about the same as the Housing Trust. In paragraph (h) you talk about 'any other person or body prescribed by the regulations'. Have you put your mind to who, what or where that might be under there? Are there any extras that you might think could be added?

The Hon. V.A. CHAPMAN: It is made for provision—in case there is another entity. I discovered I was in charge of about 30 commissioners when I took on this job, so there are a lot of them. There are lots of different jobs and some overlap. For example, we just recently changed the ICAC and Ombudsman's acts significantly and the OPI, but they actually operate as separate entities. We have tried to cover what we know is around. Significantly, if there is a major issue, then clearly police would be called in for most circumstances, I would expect. If it is an allegation of concern in relation to police custody, then it may well be other agencies that are called in.

Clause passed.

Clause 11 passed.

Clause 12.

Ms COOK: Is it the government's intention that the minister responsible for each act referred to in the bill is responsible for the annual reporting requirements—for example, the training centre requirements are the responsibility of the Department of Human Services, the Minister for Human Services; Corrections, the minister for corrections, etc?

The Hon. V.A. CHAPMAN: The annual reporting requirement is from the NPM to the national coordinator, but each NPM will report to their individual minister. The Hon. Michelle Lensink will receive a report from whoever the NPM is for the training centre, as they would normally, but obviously also in this role.

Ms COOK: Would it be correct to say that all those individual reports are individually tabled in parliament?

The Hon. V.A. CHAPMAN: Not necessarily. As you know the departments—I will just refer to it under subclause (3):

The responsible Minister for an NPM must, within 6 sitting days after receiving a report…have copies of the report laid before both Houses of Parliament.

Sometimes that is within a general application. So I receive the Commissioner for Victims' Rights annual report, and it becomes part of the Attorney-General's Department report, which has happened over the consolidation of these annual reports. The fact is that the report itself, whether it is within another report or individually, has to be tabled.

Clause passed.

Clause 13.

Ms COOK: In regard to this clause, I notice there are some penalties—$10,000 maximum penalties, which are reasonably significant, I guess—being introduced for inappropriate disclosure of information. How would those penalties be enforced?

The Hon. V.A. CHAPMAN: These are similar to most other provisions around, say, a health act, for example, where in South Australia you have an obligation; you cannot just give patients' information out. You have confidentiality obligations. For example, that is why you have a clause in there that says you are allowed to disclose between NPMs and the NPM Coordinator.

We start with the concept that there is an obligation by the people who work in this field that this confidentiality has to be respected by the law, and you can be punished if you do not, but this would be like the enforcement of any other action as a breach of confidentiality. I am pretty sure these are dealt with in the Magistrates Court, but I can check on that. I think they are similar to the obligations under the health act, but we will just check on that. If it is any different, I will let you know.

Clause passed.

Clause 14.

Ms COOK: This clause reflects on the interaction between the bill and the equal opportunity commissioner. I note that the previous commissioner, Dr Niki Vincent, raised significant concerns about the level of resourcing within the commission at times to address complaints. Is there any concern that the implementation of OPCAT might lead to any type of increase in complaints being lodged with the equal opportunity commissioner?

The Hon. V.A. CHAPMAN: No specific concerns have been raised about that. For example, today we dealt with the Multicultural Bill, and the question of racism and hatred and so on was raised. It was pointed out that that is a matter which is within the purview of the equal opportunity commissioner to hear applications of discrimination, victimisation, etc., in that field. The change of legislation sometimes can bring a flurry of work. I am not suggesting it will; if it does, obviously we will have to look at it, but it has not been raised as a concern.

Clause passed.

Clause 15.

Ms COOK: With respect to this particular clause, Attorney, it is about eight weeks since we had a briefing with your department and officers—thank you. A couple of weeks after that, we spoke here regarding our concerns about the lack of consultation with unions that represent workers and their capacity to appropriately function and be safely protected under these types of acts. Since we discussed and raised concerns about the lack of consultation with the unions, have you actually reached out and consulted with them at all?

The Hon. V.A. CHAPMAN: No, and neither have I received it, but I did urge the shadow minister for police to follow up that matter with PASA if he was concerned about that. He also raised it. I do not know whether he has done that or not. Certainly, since the commencement of this debate there has not been any issue raised with me. This is a very standard clause to protect anyone who is in an inspectorate role.

I have to say that of those agencies I am responsible for in relation to their supervision—I read most of the reports from other ministers for work that they do—I have not observed that there has been any sort of attack or obstruction on inspectors in their current state roles. There is one exception to that. I think there was a man who was prosecuted for assaulting or threatening to assault a natural resources inspector of some kind. I cannot remember the full detail of it now, but it was one where he had decided that he was not very happy about the environmental police coming onto his property and carrying out certain inspections. I think there were assault charges laid actually in relation to that matter.

Largely, I have not heard of any complaint, nor can I recall seeing a complaint in annual reports of these agencies that have inspectorate arrangements that that has been a problem for them. I suspect that the most skilled and experienced are within the police force. Obviously, they are dealing with the most difficult circumstances in taking people into custody and arrest and the like and in their role in protecting the public, so that is why they are armed, etc.

There is a little bit of an issue raised, although I have not seen it in the annual report, in relation to bushfires where there was a concern about people being asked to leave property. Occasionally, that comes up where the well-meaning CFS officer gets a mouthful of abuse. These are anecdotal more than anything I have seen has been a problem, but this is a standard clause to protect them.

Clause passed.

Clause 16.

Mr ODENWALDER: This clause provides for a penalty for making false or misleading statements. I assume it is aimed primarily at those people who are working in these facilities who may be responsible in some way for the provision of services or the inadequate provision of services and/or some sort of torture or inhuman activity. But does it also provide—and I think from my reading of it that it clearly does—that detainees are similarly penalised for providing false and misleading information to the NPM and does that provision exist, for instance, in the Ombudsman Act or the ICAC? Are you penalised in the same way for providing false or misleading information in a police complaint, for example?

The Hon. V.A. CHAPMAN: Firstly, in relation to false and misleading statements, this is also in our correctional services law, and those amendments were included in the legislation I referred to earlier, so this is not uncommon. Ultimately, it is still a question for the police and/or DPP as to whether they prosecute these matters or not, but it is not confined just to a prisoner or just to a complainant; it could be anybody. It could be a nurse or somebody who gives false or misleading information about alleged behaviour in hospital.

Mr ODENWALDER: I assumed that was what he was saying. My question is the reverse and you just answered it, but my secondary question is: do similar penalty provisions apply, for instance, in the case of people making false or misleading complaints against police officers or against nurses or against anyone else in authority?

The Hon. V.A. CHAPMAN: I recall that they certainly apply in the National Parks and Wildlife Act because we had very long debates on that. They were often called the 'environment police' by the then honourable member for Stuart, Mr Gunn. He had some other rather colourful language about them. In any event, this is not uncommon that there be some process here, and I would think that under environmental law the penalty was actually even higher, but some of that was in relation to obstruction.

It may be in the Police Act that it is higher, where they have a difficulty, of course, in being obstructed and hindered, for example entering a property, gathering evidence, picking up the computer and electronic files and so on. There are certain circumstances where they are obstructed and they have a different penalty regime.

Mr ODENWALDER: With your indulgence, sir, I am not referring to obstruction, I am referring to false and misleading statements, that is, perhaps vexatious claims against officers. Do similar provisions exist in other acts to cover those things?

The Hon. V.A. CHAPMAN: I was just reminded of the Ombudsman Act as well.

Clause passed.

Clause 17 passed.

Clause 18.

Ms COOK: Attorney, I am curious about this decision of the four-year review period. Where did that figure come from?

The Hon. V.A. CHAPMAN: I am advised that this review clause is exactly the same as in the Correctional Services Act.

Clause passed.

Clause 19.

Ms COOK: I understand other members, as well as myself, received a submission from Dr Laura Grenfell at the University of Adelaide. She raised a number of concerns about how broad this clause is. I would like to explore a couple of things from that. Clause 19(2)(a) provides:

(a) the exemption of a person, or class of persons, from the operation of a specified provision or provisions of this Act…

Is it possible that police officers or corrections officers could be entirely excluded from the operations of this bill? Is that an appropriate outcome considering the purposes of OPCAT?

The Hon. V.A. CHAPMAN: The purpose of subclause (3)(d), which is the issue in question and which was apparently raised at this morning's meeting as well and was this question about whether the minister should have the powers to alter the powers of the NPM via the regs. Here is the situation that may be required.

It is not imperative that this be here, but this is the situation that can occur. The state may be in possession of information which is not appropriate to be transferred. It may be that there are inquiries going on that are subject to the ICAC Act, for example, and so it would be inappropriate for that information to be conveyed to a commonwealth body.

Let me use the reverse. At the moment, we have protected information relating to the redress scheme and, as the Attorney-General, I can make a submission for people who put in an application about whether they are deserved of having a consideration of getting redress if they have committed offences against other people.

They might be a victim, but they might be charged and convicted and in prison for murder or other sexual assault on people which is so heinous that I am asked to give an opinion. I give that information to them and they then process it. From time to time, the information that is provided and checked on might elicit information about whether a person is still working with children and how we deal with that, because it is protected information under the commonwealth act.

It is all well intentioned, but that is the sort of thing where if it can be referred to the police, that is fine, or if the commonwealth can attend to that, or the agency, or the person themselves, the victim. Here is the situation where it becomes very difficult—for example, when the victim themselves, the alleged victim who is making an application under that particular scheme, says, 'Well, I don't want it to be raised,' yet we are left with this concern about how we might protect other potential vulnerable children.

Yes, there are circumstances where for some reason or other it is appropriate that the information is not transferred and that is why that section is there. We are having a look at it because it has been raised. I will just explain to you that just because it is there, giving the minister discretion to deal with this, it is not any kind of concealment because the NPM can raise these matters of concern that they raise. It is there to protect the interests usually of parties within our state who are deserved of protection under other laws.

Ms COOK: Thank you, Attorney. I think the section that Dr Grenfell raised as well in her correspondence related to clause 19(3)(d), talking about whether or not there might be—not alleging that you might do so, Attorney, of course not—some unscrupulous attorney or minister that would be able to use their discretion to make some regulatory changes or some amendments that might protect the effective monitoring of their systems and their departments. What does the Attorney say about those concerns and how that kind of conflict of interest could be avoided?

The Hon. V.A. CHAPMAN: The reverse as well, that is, that as the minister responsible in this area, whoever that is, may consider it appropriate that the NPM actually does report more information to the central coordinator. It is not a question of just saying, 'Look, we need to consider some statutory protections for people in South Australia.' It might be an allegation against a particular officer in a prison, for example, that may be subject to an inquiry with another agency where that information may need to be managed.

It is there as a mechanism to protect that. It may be that the person who was convening the meeting this morning—Laura Grenfell in particular I think was one who may have raised this. She has seen some abuse of this. It has never been raised with me as a concern, other than the fact that it has been raised: why do they need it? I am letting you know why it is there. I do not think there is anything sinister in it.

Another issue that I think was raised—and it may not have been by Dr Grenfell—was whether the minister should have the ability to change the place of detention by regulation. She may not appreciate this, because she has different specialties, but governments can present regulation but they are challengeable by the parliament. For example, let's assume that a facility burnt down—and that sometimes happens in our regional areas, as I think the member would be aware—and another address and facility is set up, then that ought to have the same protection or it may need quick attention to it. I think it is appropriate that that be there.

If Dr Grenfell has any evidence of that being exploited or abused in some way, I am happy to hear from her. But I think in this situation it is important that we—there is a good deal of supervision happening here, and I think the accountability back to this parliament is to the ultimate oversight body. I think at this stage it is appropriate that the regulations stand in the absence of being any actual example of any problem with that.

Clause passed.

Schedule 1.

The CHAIR: I am just going to indicate to the committee that there is just one schedule but, to my mind, it seems rather large and it comes in four parts: parts 1, 2, 3 and 4. I am going to provide a little bit of flexibility to the member for Hurtle Vale should she need it in relation to the schedule. I will open it for questioning now and we will see where we go.

The Hon. V.A. CHAPMAN: I appreciate that, Mr Chairman, and I do not make any comment to dissent. I just point out for the benefit of the committee that these are really just the same procedures being put into each of the other acts.

The CHAIR: Yes.

The Hon. V.A. CHAPMAN: We have, of course, traversed that in some detail.

The CHAIR: Yes, and that is a fair point, Attorney. I note that much of what is covered in the schedule we have already questioned.

Ms COOK: Canvassed.

The CHAIR: Yes, we have canvassed it, correct. But you still have the opportunity to ask questions, member for Hurtle Vale.

Ms COOK: I do not have a lot of questions at all. I have a couple of broad questions. Some of the concerns that were raised with me are about the broader human rights of detainees and, in this case, more so within my portfolio, those of children within the training centre. Do NPMs have oversight over broader human rights issues and standards—for example, the access to health care for a child within a detention environment? I previously canvassed as well that we had had reports made about children not being able to attend school because of staffing issues. Is it just specific to safety within the walls regarding specific torture and breaches of those human rights, or are there others that can be canvassed by the NPM?

The Hon. V.A. CHAPMAN: It is quite broad because, remember, it is the place not the person that is under scrutiny here, and that includes the circumstances of the detention, size of the cell, right to be able to walk there, access to education services—these are all things that are important. If you are looking at the international rights of children under treaties and the right to write correspondence, I think, there are all sorts of other treaties that relate to children internationally, but this relates to a place of detention and the circumstances in which they are held in a restricted capacity.

We also have all the state obligations in relation to this, remember, and we have the restrictive practices reviews that are currently being considered—some as a result of the NDIS development but also because mental health has a rather sophisticated and advanced level of restraint rules, as does aged care for that matter. Disability, I would suggest, is in an area of some—I would not say it is adrift; I would say it is simply not sophisticated and formalised in a lot of ways.

Now, of course, because we have the royal commission happening in relation to disability, we have to be alert to the fact of what is a restrictive practice. We can all think historically: arms bandaged in a mental institution, overuse of drugs for sedation, etc. But is a restriction on access to a refrigerator a restrictive practice? In some definitions, yes. Is there a good reason to be able to restrict someone from going to a refrigerator? Yes, if they are a compulsive eater and they are simply not able to control that, and it may be necessary for that management to do that.

Is it reasonable to lock someone in a room when they have dementia? For some, at a level, it may be necessary, and certainly for short periods. These are all the things we have to be looking at at the moment. I just say that there is a lot of oversight in this area and our state obligations under a lot of these acts are already there. We are really just establishing another framework and a reporting mechanism to a national body to comply.

There is the subunit of the United Nations who can visit. Members might not know, but I think about 18 months ago they actually turned up in Australia, ready to have a look at a few places. We did not really have it ready, and we were in the middle of COVID, so it was not terribly convenient. To the best of my knowledge, they did not actually inspect any premises, certainly not in South Australia. In any event, we really need to get all the protections in place with this legislation so that we can actually get operating.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (17:28): I move:

That this bill be now read a third time.

Can I just indicate, for the benefit of those listening to this debate and the recent committee, that apparently the United Nations subcommittee had not actually arrived in Australia before they were told they could not inspect, so they did not actually come—just for those who are listening to this debate.

Thank you very much to all the members who have made a contribution in relation to this. It is new law. The federal Attorney-General of the day, the Hon. George Brandis—now swanning away somewhere, I think, in London—had signed us up to this. We as states around the country have all done the best we can, I suggest, to try to make sure we can honour the commitment to this.

I am not a great one for setting up Taj Mahals in Canberra, especially if it is in relation to the supervision of a service that is actually provided at the local level in a state. I have been very strong in my advocacy for our facilities not to be overburdened with supervision, that we utilise the services of those who do an excellent job already but complement that with ensuring there is coverage for these places of identified detention. I thank members for their contribution, and I thank Emily for being so patient.

Ms COOK (Hurtle Vale) (17:29): I will keep my comments brief and summarise some of the concerns I still hold regarding the implementation of this very important piece of legislation. I reiterate that we are supporting the bill and will be doing some further consultation between the houses. We expect that not just ourselves but also several other members will look at proposing some amendments in the other place and look forward to the government's cooperation in respect of a number of those being delivered.

I still have some concerns regarding the lack of clarity around the funding of the implementation of this particular piece of work. It is not reasonable to expect someone like Penny Wright, for example, to undertake this piece of work without a significant investment in resources to get the consultation, education and delivery right. As we know, Penny Wright recently had to resign one of her roles because she simply could not do all the work expected of her. This will be in addition to that in her office.

I know the Attorney has the best interests of the young people at heart, in particular those who are in detention, and we want to get this right with that cohort. With mistreatment and incarceration for any length of time, the earlier it is the higher the chance of recidivism, so we want to get the treatment of those young people right and reduce the impact of any trauma that may occur. I would be keen to hear, perhaps on questioning in the other house, of any sort of surety regarding funding or any proposals that might be put forward.

While we have had a little bit of clarity regarding some of the people versus place functions of this bill, it is still a little difficult to see how that might work for a place where you do not have the regular lens of a person inspecting it having the youth component at their heart, such as an adult watch house, where the usual inspections would be by people who better know the adult model. That is still a concern. There are also still questions to be asked regarding the capacity of the minister and delivery on regulations outside the act that are not being described here. In a nutshell, that sums up where we are at regarding our concerns.

Again, I reiterate that, while we understand it is not the philosophical bent of the Liberal Party to support or engage with unions per se, as we all know the nurses and midwifery union has around 30,000 members here in South Australia. All those members are represented industrially by that union and they will cooperate and support education and awareness programs. With the staff operating under that, including staff under the PSA in the training centre—and I am sure the member for Elizabeth would reiterate members under PASA—those unions will help deliver and reinforce those education programs.

While that has not occurred proactively from the Attorney, it is something we would urge and encourage. We have engaged with the unions to talk about any challenges and how this might roll out, and I expect they would want to participate in those programs. I am really pleased to see that I think we will be the first to get this in place, and I will be keenly watching how that rollout occurs—hopefully as a minister, but we will see how we go.

Bill read a third time and passed.

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