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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-22 Daily Xml
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Correctional Services (Accountability and Other Measures) Amendment Bill

Committee Stage

In committee.

(Continued from 2 July 2020.)

Clause 11.

Mr ODENWALDER: This is clause 11, prisoners' mail. This subsection relates to letters sent or proposed to be sent by prisoners. I think, obviously, it is a good measure. This protects victims and it prevents offenders getting in touch with co-offenders, and those sorts things. This is a commendable measure, which is why I introduced it two years ago when we first debated this act in the previous parliament.

My question will be a recurring question, I think, over the next half an hour or so. If this measure was seen as important to the overall aims of this bill and to the overall aims of the department and the act, why was it rejected two years ago?

The Hon. C.L. WINGARD: Just to circumvent your going over the questions numerous times as you have alluded to—and I think I am probably going over old ground from when we were doing this a little bit before—I made it very clear that in the 16 years when Labor was in government they did not get this bill through. We are doing it now.

We did bring forward some amendments to this bill as part of our first 100 days commitment to make sure that we were strengthening our corrections system and delivering against our election commitments, of course, to keep unsavoury characters out of prisons, to stop unsavoury activities happening inside prisons, and that has been a really, really big success. That was a focus of the bill when we delivered it the first time.

We have since gone away and beefed up the bill that Labor failed to get through in their 16 years of government, and I do emphasise the lengthy duration there. That was 16 years they had to deliver it. They did not deliver it. But, again, I make the point—and I can make it again all afternoon if you want to keep going there—that we have gone away and strengthened this bill, made it a better bill, made it a stronger bill, and, yes, we have included things that were in the original bill that Labor failed to pass.

Mr ODENWALDER: Thank you for that answer, minister. I accept your belief that you have beefed up the bill. I accept that that is a truth in your mind, but it still does not answer the question of why this measure, which has not been beefed up as far as I can see and which is entirely consistent with the measure I put up two years ago, was not accepted by you then but is now seen as essential legislation today.

The Hon. C.L. WINGARD: Again, I am not wanting to repeat myself, because we will be here for a long time, but you are asking the same question, so I am going to have to give you the same answer, and that is the bill that we introduced when we first came into government after 16 years of failed Labor policy, after the election of 2018 that our side won, was part of our commitment to deliver on a number of issues in the first 100 days. That was our focus. That was our commitment.

We took that to the election. It was an election that we won, and we delivered on our commitments. It is what we like to do and it is the way that we like to govern. We have delivered on that election commitment. That was what we did in the first 100 days. I am very happy to go away and work on this. It is just over two years we have been in government now, so that is not the 16-year history of Labor and their failure to deliver this bill. However, we are here now and we can progress this, and if you agree with this amendment then you can pass it and we can move on.

Mr ODENWALDER: Well, you will be happy to know that I do agree with it.

Clause passed.

Clause 12 passed.

Clause 13.

Mr ODENWALDER: My only question on clause 13 is a broad one. Can you explain what it does and how it changes current practice? I am struggling to get my head around it. I wonder whether you can just put on the record what this clause does and how it changes the current practices of the department.

The Hon. C.L. WINGARD: Yes, thank you. I am informed that this is strengthening controls and goes towards meeting the recommendations from the Ombudsman in 2017. Currently, there is no legislative requirement with regard to circumstances around keeping a prisoner apart from other prisoners for a period exceeding 30 days. The proposed amendment provides for a maximum period for which prisoners can be kept separately and apart, and provides that this can be exceeded only under exceptional circumstances.

Currently, the minister is only involved as per section 39(9) when a prisoner is separated for a period exceeding five days, or in the case of an aggregate of five days within a 10-day period. The proposed new provisions provide that if the CE extends a prisoner's period of separation for a further 30 days, the minister must be informed.

Clause passed.

Clauses 14 to 17 passed.

Clause 18.

Mr ODENWALDER: Now we get to the part where some new criminal offences are created, offences which can take place within prisons. On the surface, I do not think I have any particular problem with them. We are talking about the first one in terms of riot, disrupting security or order.

Can the minister explain what happens now operationally when prisoners assemble, as defined in the new subsection (3), and why was it seen as necessary to criminalise this behaviour; was it not already criminal? Sorry, this is just for unlawful assembly.

The Hon. C.L. WINGARD: As I am informed, currently under the act there are no provisions with regard to prisoners being involved in riot or mutiny. Prisoners involved that sort of activity can only be dealt with via a breach of regulation.

Mr ODENWALDER: My question refers to new section 49(1), which is simply about unlawful assembly; (2) is about riot or mutiny and we will get to that, but this is about unlawful assembly.

The Hon. C.L. WINGARD: Can you rephrase your question, then, because I think that—

Mr ODENWALDER: What happens now when prisoners unlawfully assemble?

The Hon. C.L. WINGARD: They can only be dealt with through the regulation. That was the point that I made, that they can only be dealt with through the regulation. It is not an offence. I have an example here, to put it in context, which might clarify the question you are asking. For example, if a number of prisoners congregated on an oval and they refused to comply with directions, however no property damage occurred, then no charges can be laid, but it would of course disrupt the good order of the prison.

Mr ODENWALDER: Getting onto subsection (2) about riot and mutiny—again, I do not have a particular problem with this behaviour been criminalised—I am just wondering about the wording of paragraph (a), which states:

(a) if, during the riot or mutiny, the prisoner wilfully and unlawfully damages or destroys, or attempts to damage or destroy, property that is part of a correctional institution and the security of the correctional institution is endangered by the act—imprisonment for 15 years;

How would one define a situation where the security of a correctional institution is endangered? It seems to me that the only way you can charge this particular offence is if that element of the offence is satisfied.

The Hon. C.L. WINGARD: A couple of examples I have been given include doing things like damaging locks or damaging security cameras within the prison. That would fit under the example you raised.

Mr ODENWALDER: As a hypothetical situation, then, in a prison where there are a large number of prisoners throwing things around—whatever they have to hand to throw, whether it be books or clothes or whatever it is they have to hand—

The Hon. C.L. Wingard: I would be hoping they all behave themselves and are doing the right thing.

Mr ODENWALDER: I am not saying it happens; it is completely hypothetical, of course. I know your prisons are well run, minister.

The Hon. C.L. Wingard: That happened back when they were full and overflowing. I remember the days.

Mr ODENWALDER: We will get to that. So in a hypothetical situation where locks were not being damaged, where you could not prove the element that the security of the correctional institution was endangered in any way, would that mean there was no offence at all, no offence of riot or mutiny?

The Hon. C.L. Wingard: If they are not doing anything, yes, there is no offence.

Mr ODENWALDER: Well, let's not be facetious; it is a serious question. If they are not damaging anything that threatens the security of the institution, is it not an offence?

The Hon. C.L. WINGARD: Just to clarify, if you go down to paragraphs (a), (b)(i) and (ii), (c) and (d), 'in any other case—imprisonment for 4 years.' Tell James to stop sending you texts.

The CHAIR: Member for Elizabeth, you have had three and one of clarification. It is a big clause, so I will allow you one more, but from here on in we will do just three per clause. Given that 18 is an extensive clause I will allow another question on that.

Mr ODENWALDER: I appreciate your indulgence, sir. This is a fairly simple one; I fear I wasted my last one. It seems to me, reading the new section 49(2)(b), that a prisoner could face 10 years of imprisonment simply for threatening to damage property; is that right? It states:

(b) if, during a riot or mutiny, the prisoner—

(i) demands something be done or not be done with threats of injury or detriment to any person or property;

So 'Give me a cigarette or I'll smash this window.'

The Hon. C.L. WINGARD: I am informed that, yes, they would have to go to court and through the normal proceedings. If it were proven that the action was untoward and inappropriate, then that penalty would apply.

Clause passed.

Clauses 19 to 22 passed.

Clause 23.

Mr ODENWALDER: This could apply equally to clauses 24 and 25. It is a simple question. Was this measure and the measures in clauses 24 and 25 sought by the chair of the Parole Board? As a secondary question, were there any requests of the Parole Board or the chair of the Parole Board that have not been satisfied by this bill?

The Hon. C.L. WINGARD: The first part to the answer is, yes, these were requested by the Parole Board and have been agreed to by DCS. The second part, not that I am aware of.

Mr ODENWALDER: Will you endeavour to find out, minister?

The Hon. C.L. WINGARD: Yes.

Clause passed.

Clauses 24 and 25 passed.

Clause 26.

Mr ODENWALDER: I think we are on the home stretch, minister. I hope we are. Again, this is a good, sensible amendment.

The Hon. C.L. WINGARD: Thank you.

Mr ODENWALDER: You are welcome. Just to refresh to your memory, Chair, this amendment is about automatic release on parole. There are certain types of offenders who do not get automatic release on parole for offences for which they have been imprisoned for five years and a non-parole period is set. As a general rule, automatic parole is given to those prisoners who have been sentenced to an imprisonment of less than five years and for whom a non-parole period has been fixed. It does not apply to quite a broad range of offenders, but until now it has applied to serious drug offenders.

This is a good tidying-up measure but, again, the question is this, minister—and I am anticipating the answer. This was a measure in the 2017 bill. When you brought the new bill in 2018—again, I believe we supported all aspects of that bill but we did suggest this as an amendment; we thought it was a sensible amendment in 2017—why was it not included?

The Hon. C.L. WINGARD: I appreciate the repeating of that question and the frustration you have, knowing that you spent a lot of time on the backbench whilst this bill was kicked around by your party when they were in government. I know you were not in that position for those full 16 years, but I do understand your frustration that it was not progressed.

Again, you are right: the elements of this do strengthen our government's position, which was very much ratified in our first 100-day plan, and the changes we made to this act as well. It does go toward our commitment to stamp out drugs in prisons and do all we can, and this does strengthen the bill, so I am glad that we have your support.

Mr ODENWALDER: Can the minister advise how many drug dealers and traffickers have been granted automatic parole under the existing arrangements in the last two years since those amendments were rejected the first time?

The Hon. C.L. WINGARD: I do not have that figure.

Mr ODENWALDER: Will you endeavour to get that figure?

The Hon. C.L. WINGARD: I will endeavour to see if it is available.

Clause passed.

Clauses 27 to 29 passed.

Clause 30.

Mr ODENWALDER: Again, my question is a simple one. It is just to clarify what this section does. Is it that the overall effect of this is that parolees who breach and are then arrested on a Parole Board warrant can now be sent back to prison on the direction of the board rather than brought before a magistrate first? Is that the general effect of this section?

The Hon. C.L. WINGARD: I will give you a brief explanation. Thank you for the question. These provisions introduce swift and certain community sanctions that will see a finite suspension of parole for technical breaches. This sanction is in keeping with the principles of the 10by20 strategy to increase rehabilitation and reduce reoffending and is aimed at addressing technical breaches of parole, such as missed appointments or a failed drug test. It limits section 74 to breaches involving offences of serious parole breaches. The insertion of section 74AAA provides for the lesser breaches of parole, for example a breach of a condition, and allows for a parolee to be returned to prison for a period of up to six months for that breach.

It also allows for a variation or imposition of conditions. For example, it provides for the parolee to reside at a parole facility or specified premises and allows for the parolee to complete additional programs. Again, it is very much around those swift and certain sanctions that I outlined, with a focus on the principles of the 10by20 strategy, so swift it is not intended to deal with serious breaches, such as new offending, but if there is a technical breach this action can be taken to get someone potentially back into a program or back into a facility to help with their rehabilitation.

The CHAIR: A very fulsome answer, I think, member for Elizabeth.

Clause passed.

Clauses 31 to 34 passed.

Clause 35.

Mr ODENWALDER: I will start with a clarification. This is about the types of offences that are reviewable by the Parole Administrative Review Commissioner. My understanding is that the only thing that can trigger a review now is the sentence of life imprisonment, but this change of definition makes reviewable decisions around conspiring or soliciting to commit murder, impeding investigations and included in the definition of murder, an offence of conspiracy to murder and an offence of aiding, abetting, counselling or procuring the commission of murder. Is that the first effect of this section? It broadens out that definition to include more offences that are reviewable by the Parole Administrative Review Commissioner.

The Hon. C.L. WINGARD: Yes.

Mr ODENWALDER: Excellent, that is the answer I wanted. Minister, how many times has a review been requested in the last five years or, if you need to take that on notice, in the time that you have been minister?

The Hon. C.L. WINGARD: I do not have that information. I am happy to take that on notice.

Mr ODENWALDER: Why was this decision seen as necessary and was it supported by the current chair of the Parole Board?

The Hon. C.L. WINGARD: I was seeking clarification there. I am informed this was in the bill back in 2017 as it is laid out, so I will have to seek clarification. I do not think it was raised then or it has not been raised since then, as far as the Parole Board is concerned, as far as I am aware.

Mr ODENWALDER: So the chair of the Parole Board was not consulted again before this was inserted in the bill and brought to this place? So you are not aware of any consultation with the chair of the Parole Board?

The Hon. C.L. WINGARD: To repeat what I said, this was inserted in 2017, so when—

Mr Odenwalder: No—

The Hon. C.L. WINGARD: No, hang on. You have been asking me all the way along about elements of the bill that were the same as before—

Mr Odenwalder: I'm not—

The Hon. C.L. WINGARD: I am clarifying. I am saying that this was in the bill from 2017. It has rolled over into this bill. The carryover fits, if you like. The discussion was had back in 2017 and now it is sitting in this bill. I cannot be any simpler than that.

Mr ODENWALDER: Can I just clarify that please, sir, because I really do feel the question has not been answered.

The CHAIR: Yes, a point of clarification then we will put the clause.

Mr ODENWALDER: I want to know if the chair of the Parole Board supports this change to the corrections act.

The Hon. C.L. WINGARD: Again, we are talking about elements of the previous bill and the consultation that happened back then, under your government, that have rolled over into this bill. The chair of the Parole Board has seen this bill and has not raised any issues. I cannot be any clearer than that.

Clause passed.

Clauses 36 and 37 passed.

Clause 38.

Mr ODENWALDER: This deals with the Prisoner Compensation Quarantine Fund. Minister, are there currently any prisoners with moneys being held in the Prisoner Compensation Quarantine Fund? How many prisoners and how much money?

The Hon. C.L. WINGARD: I do not have the definitive number and I am not sure if that is available. I know there is one prisoner, and this is the example to help clarify this situation. There was a situation where a prisoner sued the department over a medical condition and was granted funds, I am told, from that action even though they had some culpability.

The point is that the crime this person had committed had multiple victims, I am informed, and the offences were drug related. As such, there were no certain victims—no-one could be identified to say they can claim against that. That would fit very much in this wheelhouse of that money going into this situation where 50 per cent would be credited to the Victims of Crime Fund. As I said, in this example that I am giving, there were no certain victims. Being a drug-related crime, there were countless victims but no specific people that could claim against that. Does that answer the question?

Mr ODENWALDER: I appreciate that information. Would you take on notice to find out if there are any prisoners with moneys being held in the fund?

The Hon. C.L. WINGARD: I would have to check around the legal obligations in relation to revealing that information, but I will take that on board in good faith, and if I can get the member more information, I am happy to do so.

Clause passed.

Clauses 39 to 46 passed.

Clause 47.

Mr ODENWALDER: Minister, this is an excellent amendment. I will not ask the obvious question; I will simply ask: have there been any examples during your time as minister or any examples that you are aware of the need for this type of amendment? I think this is a good amendment. Have there been any incidents which have prompted this change?

The Hon. C.L. WINGARD: I do not have any at hand as far as our jurisdiction. I am led to believe it has happened in other jurisdictions. That is the short answer. I do not have that detail for over the last 10 to 15 years. But, again, what has been happening in other jurisdictions does make this a good amendment, so we are happy to move it and we thank you for your support.

Clause passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. C.L. WINGARD (Gibson—Minister for Police, Emergency Services and Correctional Services, Minister for Recreation, Sport and Racing) (16:56): I move:

That this bill be now read a third time.

Mr ODENWALDER (Elizabeth) (16:56): I want to make a few brief remarks. I want to thank the minister for bringing these amendments to this place. It has been a long process and we will not go over that again. This is the culmination of a lot of good work. My one criticism remains that I fear that it has been left too late to influence the ultimate aim of some of this bill, which was to reduce reoffending by 10 per cent by 2020.

I take it on good faith that the minister, as he says often in his public utterances, takes a bipartisan approach to this and supports the measures put in place by the previous government. The ball was set rolling by the previous government and taken up by this government. Again, I say these are good amendments. My only criticism is that they are too late.

It is a pity that the amendments I put forward in this debate were not accepted in their entirety. I appreciate that the minister has agreed to look again at what I suggested as an amendment to his amendment No. 1 in regard to the housing of Aboriginal people in prison and their propensity to be removed and whether that decision can be reviewed. I hope that we can talk about that between the houses, because I think the change made is essentially a change made to my amendment, which turned into a government amendment. I think that change was a step too far and took away from the intent of the amendment, which was to put into effect one of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

I take the minister at his word that we will talk about that between the houses and perhaps come to some sort of agreement once the debate commences. Again, I want to thank the minister for finally bringing these measures to the house and I am glad that we could get it done before the winter recess at least so that these laws may well be in place by the time we come back to this place. I thank the minister and his advisers for their help and assistance. I mean that sincerely. There was some good help in the last week of parliament last time. I commend the bill to the house.

Bill read a third time and passed.

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