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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-27 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (18:13): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Correctional Services Act dates back to 1982. Since that time it has been regularly amended to reflect changes in Government policy, and correctional practice and to address community concerns.

The changes to the Act proposed in this Bill are wide ranging and considered necessary for the effective management of prisoners and offenders.

Many of the changes proposed in this Bill remove impediments that impact on effective custodial management. Others streamline existing processes to maximise the use of the Department for Correctional Services' resources.

The changes proposed will make prisoners more accountable for their actions whilst, at the same time, providing correctional authorities with more efficient prisoner management tools.

Removal of the Community Service Advisory Committee and the various Community Service Committees

These Committees were introduced many years ago when there was concern that Community Service offenders may take paid jobs from members of the community. Additionally, at the time that the Committees were established, departmental Community Services Centres were managed by officers at the lower to middle management levels.

Whilst the Committees have done extremely valuable work over the years, it is the general view that they are no longer necessary. Community Service has now gained a significant level of community acceptance. Furthermore, restructuring within the Department for Correctional Services has seen responsibility for Community Services transferred to senior Regional Managers.

Allow persons of good standing to be appointed as Visiting Inspectors

The Correctional Services Act requires prisons to be regularly inspected. This is an important accountability measure, ensuring independent scrutiny of prisoner management and prison operation.

Under the Act, Visiting Inspectors currently are required to be Justices of the Peace, retired judicial or magisterial officers or legal practitioners.

The requirement is onerous and prevents otherwise suitable and qualified members of the community from becoming Visiting Inspectors. Regularly there has also been a suggestion that the current legislative provisions prevent many Aboriginal people from qualifying as Visiting Inspectors.

The amendments included in this Bill will expand the existing groups from which Visiting Inspectors may be chosen to include respected members of the community. This is an important amendment to strengthen the scrutiny of our prison system.

The establishment of multiple committees to assist the Chief Executive assess prisoner classifications

The present Act allows the Minister to establish a committee to assist the Chief Executive to carry out prisoner assessments. Best practice suggests that better assessments are achieved by drawing together prison staff and prisoner Case Managers who work with prisoners every day, to decide the assessment priorities. This requires the establishment of committees in each prison, which has occurred on an informal basis.

The Department has on numerous occasions been questioned about the legislative base for these committees and the legality of their recommendations given that the Act only provides for a single committee.

Whilst it is recognised that the Acts Interpretation Act, 1915 legislates that words in the singular are to be construed as plural, it is considered necessary to clarify this section to put the meaning beyond doubt.

Ensure that, where appropriate, conditions of parole apply to prisoners who are given early release

The Chief Executive has the authority under the Act to approve prisoner release from prison up to 30 days prior to their release date.

Recent advice has indicated that if a prisoner is released on parole prior to his or her original release date, the conditions of parole will only be enforceable as from the original release date.

Whilst the early release provision is only sparingly used, it is necessary to ensure that prisoners who are subject to parole, are subject to parole conditions as soon as they are released.

This Bill rectifies this situation by ensuring that where early release is approved, a prisoner's parole conditions will apply from the date of actual release.

Additional exception to automatic release on parole requiring prisoners to apply to Parole Board for release on parole

The current Act provides for the automatic release on parole of prisoners who are liable to serve a total period of imprisonment of less than five years and in relation to whom a non-parole period has been fixed (see section 66).

The Act provides for exceptions to automatic release in relation to some prisoners serving less than 5 years. Such prisoners must apply to the Board for release on parole and the Board must assess the application against the criteria provided in the Act.

The exceptions currently provided for are prisoners sentenced to imprisonment in relation to a sexual offence and those prescribed by regulation. The regulations prescribe a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence against section 99I of the Summary Procedure Act 1921 arising out of a breach of a paedophile restraining order.

This clause proposes an additional exception to automatic release on parole being a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence of personal violence.

An offence of personal violence is defined as any of the following:

(a) an offence against the person under Part 3 of the Criminal Law Consolidation Act 1935;

(b) a home invasion;

(c) an offence of robbery or aggravated robbery;

(d) a conspiracy to commit, or an attempt to commit, an offence referred to in paragraph (a), (b) or (c);

(e) an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence.

Enable the Chief Executive of the Department for Correctional Services to approve short term prisoner separations. Longer term separations to remain the responsibility of the Minister

Every day there are about 10 prisoners who need to be separated for a range of reasons, mainly relating to the safe and secure operation of the prison. Most of these separations are short term, often less than 2 or 3 days.

The current Act requires the Minister to consider all separations. The Minister may review or revoke the decision.

Given the short time frame of most separations and the time necessary to complete the normal administrative processes involved, very few reports reach and are reviewed by the Minister before the separation order expires.

Under the Bill, only separation orders expected to exceed, or having exceeded, 5 days will require consideration by the Minister. All other orders would be approved by the Chief Executive or his or her delegate.

Amend the regulation making power to reflect current practices regarding the amount of property that a prisoner may have and provide flexibility in the management of that property

Under the current regulations, a prisoner may keep personal effects to the value of $200, and property that will fit into a clothes protector and container/locker area measuring 45cm x 41cm x 29cm.

The regulations regarding these matters are out of date and do not reflect modern prison practice.

Amendments proposed in this Bill will allow regulations to be made to provide more flexibility for the management of prisoner's property without necessarily increasing the amount of property a prisoner may have.

Amendments to the Act to increase penalties for persons who breach the Act and/or regulations

Many of the penalties that exist under the Act and regulations have not been amended since 1994. As a consequence, they do not adequately reflect contemporary good practice.

As part of this Bill, amendments are proposed to ensure that the behaviour of prisoners who breach prison rules can be adequately dealt with.

For administrative purposes, remove from the Act duplicated sections that prescribe a class of prisoner who may not be released from prison on Home Detention

There are several similar sections of the Act that relate to the release of prisoners on Home Detention.

Administrative amendments are proposed in this Bill to remove the unnecessary duplicate sections.

Remove the requirements that make it necessary for the Governor to appoint and revoke private service provider staff as 'officers of the Crown' for the purpose of providing the services for the contracts of Prisoner Movement and In-Court Management Services and the Management of the Mount Gambier Prison

Presently, the appointment and revocation of any private service provider staff member (G4S) as an officer of the Crown must be ratified by the Governor in Executive Council pursuant to section 68 of the Constitution Act 1934.

This process must occur each time a new employee commences or ceases work under the contracts and is necessary to provide G4S staff with the same powers and authority as Correctional Officers.

This process is administratively cumbersome.

The amendments included in the Bill transfer the authority to designate and revoke the designation of G4S staff members to the Minister for Correctional Services.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These provisions are formal.

Part 2—Amendment of Correctional Services Act 1982

4—Amendment of section 4—Interpretation

This clause inserts a definition of officer of the Department for the purposes of the Act.

5—Insertion of section 4A

Currently employees of a contractor undertaking duties and responsibilities under the Correctional Services Act 1982 (and other Acts) pursuant to a contract between the Crown and the contractor are required to be appointed as officers of the department by the Governor with notice of each appointment published in the Gazette. This is to enable such persons to exercise appropriate powers given to employees of the Department. This clause provides for the Minister to designate a person to whom this new section applies as a person who is to be taken to be an officer of the Department for the purposes of this Act and certain other Acts.

6—Repeal of sections 17B and 17C

This clause removes the sections of the Act that relate to the community service advisory committee and the community service committees. These committees will no longer exist. The functions of those committees, having been required in the initial stages of the community service programs, are now largely unnecessary and any required functions are now performed by senior Departmental staff.

7—Amendment of section 20—Correctional institutions must be inspected on regular basis

Under section 20 of the Act prisons are required to be inspected regularly to maintain standards. Currently, under section 20(2a), a person is not eligible for appointment as an inspector of prisons unless he or she is a person who has retired from judicial or magisterial office, is a legal practitioner or is a justice of the peace. In some instances there is a lack of local persons eligible to be inspectors. This clause removes the requirements of the current section 20(2a) and provides for the Minister to appoint any person who is considered a suitable person as an inspector of prisons for the purposes of section 20.

8—Amendment of section 23—Initial and periodic assessment of prisoners

Currently section 23(2) of the Act provides for the Minister to establish a committee to assist the Chief Executive Officer in carrying out prisoner assessments under section 23. In practice it is desirable that there are additional committees, for example at each prison, to enable prisoners to be individually and carefully assessed. While section 26(b) of the Acts Interpretation Act 1915 provides that a reference to 'committee' includes 'committees', this clause clarifies that the Minister may establish more than 1 committee to assist the Chief Executive Officer in carrying out prisoner assessments.

9—Amendment of section 24—Chief Executive Officer has custody of prisoners

The proposed amendments to this section will clarify that a regime for the management of a prisoner may be varied and that any such variation does not constitute a penalty for the purposes of the principal Act.

10—Amendment of section 36—Power to keep prisoner apart from other prisoners

Under section 36 the Chief Executive Officer may direct that a prisoner is to be kept separately and apart from the other prisoners for a specified period. On such a direction being made, section 36 currently requires the Minister to be provided with a report on the direction and the circumstances of it being made as soon as is practicable after it is made. This clause provides for reports to be provided to the Minister only in respect of directions made to keep a prisoner separately and apart for a period exceeding 5 days, or any direction that will result in a prisoner being kept separately and apart for a period exceeding either 5 consecutive days, or an aggregate of 5 days within any 10 day period. For example, a report to the Minister will be required when 2 directions, each for a period of 3 days, are made resulting in a prisoner being kept separately and apart for those 6 with a 3 day break in between the separations.

11—Amendment of section 37A—Release on home detention

Currently powers with respect to the release of a prisoner on Home Detention are referred to in both section 37A and section 89(2)(d). This measure proposes for this question to be dealt with under section 37A only by deleting the specific regulation making power in section 89(2)(d). As a consequence, it is necessary to delete the reference to the regulations in this section.

12—Amendment of section 37B—Authorised officers

This clause proposes to increase the maximum penalty for the offence of hindering an authorised officer, or failing to answer truthfully a question put by an authorised officer, in respect of the powers under this section. The maximum penalty is currently a fine of $2,500 which is proposed to be increased to $5,000.

13—Amendment of section 38—Release of prisoner from prison or home detention

Under section 38(2) the Chief Executive Officer may release a prisoner from prison or home detention 30 days earlier than the prisoner's due release date. In many cases, a prisoner's due release date is a date fixed by the Parole Board for the prisoner's conditional release on parole. This proposed clause clarifies that a prisoner, who is due for release on parole and is released early under section 38(2), will be subject to parole and the conditions of parole fixed by the Parole Board from the date of actual release.

14—Amendment of section 41—Powers of Visiting Tribunals

Section 41 currently provides a maximum penalty of $5,000 or imprisonment for 3 months for offences with respect to Visiting Tribunals. This clause proposes to increase the pecuniary maximum penalty to $7,500, while the maximum penalty of imprisonment will remain unchanged.

15—Amendment of section 42A—Minor breaches of prison regulations

Section 42A provides maximum penalties that apply on a prisoner breaching prison regulations to which the section applies. The current penalties provided for are forfeiture of any specified amenities or privileges for a specified period not exceeding 7 days, or exclusion from any work that is performed in association with other prisoners for a specified period not exceeding 7 days. This clause proposes to increase the maximum time period allowed for each of those penalties from 7 days to 10 days.

16—Amendment of section 43—Manager may deal with breaches of prison regulations

This clause proposes to increase 2 of the maximum penalties available upon a breach of general prison regulations—

1 maximum penalty currently available (under section 43(2)(b)) is that a prisoner may forfeit any specified amenities or privileges for a period not exceeding 28 days. It is proposed to increase that maximum period to 35 days;

Another maximum penalty currently available (under section 43(2)(c)) is that a prisoner may be excluded from working with other prisoners for a period not exceeding 14 days. It is proposed to increase that maximum period to 21 days.

17—Amendment of section 66—Automatic release on parole for certain prisoners

Section 66 provides for the automatic release on parole of prisoners who are liable to serve a total period of imprisonment of less than five years and in relation to whom a non-parole period has been fixed. Exceptions to automatic release are prisoners sentenced to imprisonment in relation to a sexual offence and those prescribed by regulation (currently a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of a sentence arising out of a breach of a paedophile restraining order). This clause proposes an additional exception to automatic release on parole being a prisoner if any part of the imprisonment for which the prisoner was sentenced is in respect of an offence of personal violence (which is defined in proposed new subclause 66(3)).

18—Amendment of section 86—Prison officers may use reasonable force in certain cases

The phrase 'or employee' is to be inserted after 'officer'.

19—Repeal of section 86A

Section 86A is to be repealed. Section 74 of the Public Sector Act 2009 will apply to employees of the Department making section 86A otiose.

20—Amendment of section 89—Regulations

The amendments proposed to the regulation making power in section 89 are as follows:

Consistently with the amendment proposed by clause 11, it is proposed to delete paragraph (d) of section 89(2) (referring to the release of a class of prisoners on home detention). Under section 37A, the Chief Executive Officer is given an absolute discretion to release a prisoner from prison on home detention conditions;

The phrase 'or employees' is to be inserted after 'officers' wherever occurring in subsection (2)(h) and (i);

The deletion of the reference to personal property from paragraph (j) of section 89(2) is in anticipation of the proposed new paragraph (ja) to be inserted in section 89(2) that will refer to personal property of prisoners;

Paragraph (ja) to be inserted in section 89(2) will provide for power to make regulations with respect to the acquisition and retention of personal property of prisoners (including the transfer, storage or disposal of such property). This clarifies how a prisoner's property may be dealt with by prison officials and is important in particular instances where prisoners accumulate additional property in excess of the restricted amount of property they had on admission;

An increase in the maximum penalty which may be imposed for offences against the regulations from $2,500 to $5,000.

Schedule 1—Related amendment of Young Offenders Act 1993

1—Amendment of section 4—Interpretation

This clause will amend the Young Offenders Act 1993 to mirror the amendments proposed to the Correctional Services Act 1982 relating to the designation of employees of a contractor undertaking duties and responsibilities under the Act as persons who are to be taken to be officers of the Department of Families and Communities for certain purposes.

Schedule 2—Transitional provision

1—Transitional provision

This clause provides a transitional provision in relation to the amendments to section 66 of the Correctional Services Act 1982.

Debate adjourned on motion of Hon. D.W. Ridgway.


At 18:14 the council adjourned until Wednesday 28 October 2009 at 11:00.


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