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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-08 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 20 October 2011.)

The Hon. S.G. WADE (15:35): I rise on behalf of the opposition to respond to the Correctional Services (Miscellaneous) Amendment Bill 2011. In that context, I thank my honourable colleague the Hon. Terry Stephens for working with me to analyse this bill as it dealt with both parole and prison management issues. We worked together across what is basically a whole-of-criminal-justice project.

Following a number of high-profile cases of parolee reoffending, the then minister for correctional services, minister Koutsantonis, announced on 28 September 2010 that he would be consulting on draft legislation to reform parole laws. The bill that resulted from that consultation process was tabled on 8 June 2011, and it seeks to introduce a range of measures in relation to both prison management and parole management. On behalf of the opposition, I would like to particularly thank Mr Peter Severin, the Chief Executive of the Department for Correctional Services for his briefings.

The press release which heralded the start of this process was issued by minister Koutsantonis with a headline, 'Greater powers for authorities in parole law shakeup'. That headline highlights the whole focus of the government in relation to this bill. I think the Hon. Terry Stephens would agree with me that, in relation to prison management, a lot of the matters are sensible; however, in relation to parole, this has all the hallmarks of a continuation of a government's attack on the Parole Board. The press release states:

Every police patrol will have unprecedented power to act as a 'mini parole board' under the biggest shakeup of the state's parole laws to be introduced in parliament in 30 years.

Unprecedented power. This is a government which makes no apology for gratuitous overstatements. However, to then refer to every police officer as a mini parole board is demeaning of the skill and experience of the Parole Board. I have huge respect for South Australian police. They do an exemplary job, but to ever expect one man or one woman to actually embody all of the experience and skills of the Parole Board when they are out on the beat is asking too much of any person.

Let me remind members who constitutes the Parole Board. The Parole Board brings together legal expertise, victims' representatives, psychiatric specialists, social workers, people of Aboriginal descent and a former police officer. Indeed, it does have the police expertise that a police officer on the beat would have, but it also brings together a whole range of other skills, a whole range of other perspectives. Also, the Parole Board is supported by a network of community corrections officers, and it is headed by one of South Australia's leading criminal justice specialists, Frances Nelson QC.

I think the minister's press release is ample evidence of the government's lack of respect for the Parole Board, a lack of respect that recurs in this bill. It reminds me of the case of Shane Andrew Robinson. Mr Robinson was a relatively young man who was released from prison on parole in July 2009. He went on to engage in a shocking siege near Yunta. He seriously assaulted an older lady, he seriously injured a police officer, Mr Jeffrey Allen, and he went on to kill himself. It was indeed a tragic case, and questions need to be asked. However, the government's response was a knee-jerk reaction, a knee-jerk attack on the Parole Board.

The then attorney-general, Mr Atkinson, went straight to attack the chair of the Parole Board. Many of his statements were factually incorrect, but what he did not even seem to appreciate was that Frances Nelson was not even in the country at the time. She was in England, I understand, visiting sick relatives. In fact, the person who had charge of the decision in relation to Mr Robinson was the deputy of the Parole Board, Mr Tim Bourne. I certainly make no reflection on decisions or actions of Mr Bourne or, for that matter, any other member of the Parole Board. In fact, I note that Frances Nelson came back to Australia and stood by her deputy chair in relation to the events that took place in the Shane Robinson case.

I use that as an example of the government's disrespect towards the Parole Board on a number of occasions. That disrespect has coloured the terms of the Parole Board parole management elements in this bill, in particular. As I said, this bill will receive substantial support from the opposition, especially where it relates to prison management. We think there are worthwhile reforms in terms of prison allowances, prisoner identification, visitor management, prisoner communication, questioning of prisoners, and so forth.

However, we come to this bill very sceptical in relation to the parole management issues. We accept that there is need for reform and our amendments will reflect the need to change what is currently in the bill. I have tabled those amendments and I commend them to members. I will not take the time of the council to argue for them in the second reading stage. Honourable members would have already noticed the fulsome exposition of the proposals in the House of Assembly if they want a preview of the discussion we will have at the committee stage.

I suggest that I leave the exposition of the points in detail to the committee stage, but in terms of a general overview the opposition supports and welcomes many of the matters, particularly as they relate to prison management, and believes the government needs to moderate its campaign against the Parole Board and take more sensible measured reform opportunities in the Parole Board area, and our amendments offer that to the council.

The Hon. R.L. BROKENSHIRE (15:42): I rise to speak to the second reading of this bill. I am reminded of the 2009 debate on a bill of very similar nature and I will return to some comments on that in a short while.

Family First welcomes the victim of crime clawback provisions so that prisoners who are themselves a victim of crime can have their compensation moneys used to reimburse the fund where the prisoner has, by their offending, created victims also. We commend the member for Davenport (the Hon. Iain Evans) for his work on this issue; and, further, the government for actually accepting a good idea. It is nice to see good ideas from members other than government being adopted.

We support the intent of ensuring that police are notified about parolees in the community and the conditions they are on so that, say, in domestic violence situations that might arise—and we are advised that there were quite a number in a period of time that gave police considerable concerns—police are then empowered to act upon those situations in the spirit of prevention being better than cure.

In 2009, when we had a bill quite similar to this put through the Legislative Council, I put up some amendments regarding drug detection dogs in prisons and also amendments to increase penalties for those who bring contraband into gaols. The majority of Legislative Councillors supported those amendments. Then, when they went to the other house, there was a flurry of activity by the minister and others saying that these amendments were too draconian with respect to the focus on drug prevention. In fact, there was a request from the government to pull them rather than go into a deadlock conference.

It is interesting how, in time, circumstances showed that those amendments were not too draconian. In fact, we have seen quite a lot of reports about increased drug problems in our South Australian prison system. In work I have done to get further information on that, it is clear that there are still significant problems and, arguably, in some areas, from anecdotal evidence at least, an increase in illicit drug activity and availability in our prison system.

Whilst we support the amendments now, I believe that, had the government supported our amendments back then, we would have actually made greater in-roads into the illicit drug problems in our prisons. This is a reflection of the government now realising it made a mistake and putting in similar amendments. I support the strong commitment to penalties and support the principle of that directly. There is no inclusion of the internet restrictions we proposed in 2009 for prisoners on parole, be it a total or partial restriction of internet use. We can only hope that the Parole Board is giving consideration to these matters in the conditions it imposes.

We also had amendments previously requiring drug testing of parolees. I am advised this already takes place, but whether or not it is as comprehensive as one would hope to ensure that these parolees are absolutely drug free is another question. I trust that the debate and amendments put up again in 2009 have pushed the government to recognise that it needs to take a very strong stance on substance abuse once parolees are back in the community.

There are quite a few extensions of power of the chief executive. I put on the public record that this is not a personal reflection on this particular chief executive at all, but I believe that there should be some restrictions on extension of powers to chief executives. We have a select committee before the parliament at the moment, and one of the reasons for that select committee being moved and supported in the Legislative Council was to do with powers, control, management, human resources and the like, and whilst the government argues that its bill is fine (and I appreciate the briefing the chief executive officer and ministerial staff gave my legal and policy adviser on this bill) the bottom line is that the parliament needs to realise that we are actually extending powers to the chief executive.

Whilst the chief executive says that he may intend to delegate those powers, at the end of the day if we pass this legislation as it is, then he has stronger powers again. I know that a lot of people in the correctional services department would have concern over that. One only has to look at some of the evidence that has come before the select committee.

I note that the Hon. Ann Bressington has some amendments concerning the power of Executive Council to overrule the Parole Board. I wish to spend a bit of time on that. Until the Rann government came to office I do not believe there had been a problem whatsoever when it came to Executive Council and the consideration of the Parole Board recommendations.

The Hon. S.G. Wade: It was never used.

The Hon. R.L. BROKENSHIRE: As the Hon. Stephen Wade said across the chamber, it was never used. I would say that it was rarely used, and having had that portfolio and having sat around the cabinet table, I know (without giving away any confidentiality) that there was always serious consideration and debate. In fact, at times governors had questions of the relevant minister. I was involved in that situation myself, and that was the role of the minister in cabinet to explain why the Parole Board had made this decision, and so on. It is fair enough for the Governor and any minister in executive cabinet to ask some questions, but on an unprecedented nine occasions now we have had this government come out and actually rule against the recommendations of the Parole Board.

The fact is that this was blatant, base political point scoring to be tough on law and order—rack 'em, pack 'em and stack 'em—and the other spin we have seen with the government. It was a dangerous practice. Today we have seen the new Premier come out and say that he wants to take a different direction, that he wants to see a more orderly parliament, a more procedure and policy-based parliament. I would hope that the new Premier would also want to see that in his cabinet and that he, particularly with his legal background, would realise the dangers of cabinet picking and choosing who gets parole sign-off after a recommendation from the Parole Board and who does not.

Whilst I will listen in the chamber here or in my office to the Hon. Ann Bressington's amendment, and I understand the intent of the amendment, I personally at this stage have some concern over a situation whereby Executive Council will never have the capacity to overrule the Parole Board, only because I think there could be the odd exception where they may have to.

I know why the Hon. Ann Bressington is moving this amendment, because this government has played a game with the Parole Board and with the prisoners, a dangerous game, an inappropriate game, a game that has never been played to my knowledge by any former government, Liberal or Labor, and a game that I ask the new Premier to rule out in his cabinet. If we can get those sorts of commitments from the Hon. Jay Weatherill, then I believe that for checks and balances we probably should stick with the structure that has been in place for decades, whereby there was the ability to overrule but it was rarely, if ever, used.

Regarding the second reading position, I am not in a position just yet, until we listen to the rest of the debate, to commit to supporting every clause of this bill. In fact, my preference would have been for this bill to wait for final debate on the outcome of the select committee that the Hon. Terry Stephens is chairing because there may well be other recommendations from the select committee that could then be considered by the government and the parliament and they could be also fixed at that time; or perhaps, in the meantime, to report progress and send this bill to the select committee for consideration of the overall broader deliberations that we already have.

I know that would be some more work for the committee, but we have evidence there, we also have opportunities for colleagues to come and present specific arguments to that committee, and it could strengthen the whole case around this particular bill and other issues that will come up. I would not be surprised, without wanting to pre-empt what recommendations may come out of that select committee, based on the evidence so far, if some of the recommendations would not be around some legislative change. I just put that to the parliament for consideration.

I do not think the bill is one of those bills that is urgent to the point where it has to be passed in the next few weeks of sitting. I understand from listening to the chair of the committee that he does intend to get to a point where a report can be tabled some time in the first half of next year. Based on that, and in the interests of getting this right from the point of view of better management structure in the whole correctional services department, maybe it would be good if we were to report progress and consider this bill in deliberations with other evidence that we have had put to the select committee.

In conclusion, I look forward to hearing other honourable members' positions in the debate, including our stance on, as I have just put forward, postponing debate in light of the select committee investigation.

The Hon. A. BRESSINGTON (15:54): I rise to indicate my position on the Correctional Services (Miscellaneous) Amendment Bill introduced in another place by the former minister for correctional services, the Hon. Tom Koutsantonis. Much of the bill reads as a wish list of the Department for Correctional Services or seeks to address longstanding issues with the existing act. As the minister stated when introducing the bill, there are also changes to parole arrangements. In particular, the distinction between a designated condition and a normal condition of parole is being removed, something I fully support. Many of the contentious provisions identified by the Law Society and others are the subject of amendments by the opposition, which I indicate I view favourably, although I will await the committee stage before determining my position. For this reason, I will today focus on issues not raised by the opposition or on which I am passionate.

First, I must say I am somewhat uncomfortable with the consolidation of powers in the Correctional Services Act with the chief executive (or, as the bill will have it, CE). Whilst I recognise that this is in line with other statutes and that many of the powers will be redesignated back to prison managers, from whom they are largely taken, prisons, at least to my mind, are unique when compared to, say, an agency like Families SA. Prisoners benefit from on-site control and the flexibility that provides.

It is also interesting to note that, whilst most of the powers redesignated from the chief executive are from prison managers, the sole power of the act being removed from the minister is the determination of prisoner allowances. Currently, increases in the prisoner allowance are at the behest of the minister, with the approval of the Treasurer, making it a political decision, as seems to be occurring a lot with decisions around corrections. Accordingly, there has not been an increase in prisoner allowances for some significant period of time, despite continual requests to do so by the Department for Correctional Services. I do ask the minister if she can indicate what the expected increase to prisoner allowances will be when the power is given to the chief executive.

On the subject of prisoner allowances, I turn to the proposed amenity fund. For 25 years, the Department for Correctional Services has been charging inmates an amenities levy applied as a surcharge on items purchased from prison canteens. Funds accumulated have been used by prison managers to purchase sporting and recreational equipment and other goods for inmates. As found by the Ombudsman, however, section 32 of the Correctional Services Act does not enable a prison manager to make a profit from the sale of items and, hence, imposing the amenities levy was unlawful, a fact the minister's second reading contribution conveniently fails to mention.

Having been assured that all moneys raised were spent to the benefit of inmates and that the act would be amended to enable the imposition of a levy, the Ombudsman did not recommend action be taken. To provide the legislative authority, the bill proposes a new section 32 to establish a prisoner amenities fund into which surpluses from canteen sales may be deposited. New subsection 32(3), which purportedly will enable the amenities levy, reads:

The [chief executive] is authorised—

(a) in selling items under this section, to set prices that, in the opinion of the [chief executive], reflect the costs associated with selling the items;

I am unsure if this wording will enable such a levy to be imposed if prices must reflect the costs associated with selling the items. A levy, of course, is an amount intentionally above the price of selling an item.

Prior to committee, I seek an answer from the minister as to whether it remains the intention to impose an amenities levy and, if so, how does the wording of proposed subsection 32(3)(a) provide for this? Further, could the minister detail the reporting requirements for the prisoner amenity account? Will it be included in the department's annual report?

If it is the intention to continue to impose a levy, I ask the minister to explain how this is different to an excise, which the state is constitutionally barred from imposing? Would it not simply be better to allow prison canteens to operate at a profit and have that profit deposited into a prisoner amenity account in accordance with proposed section 32(3)(b)?

I also express my reservation about the chief executive taking responsibility for the prisoner amenity levy and the purchase of prisoner amenities from prison managers. Given that this will now be one consolidated account across the prison system and, as such, cannot be delegated, prison managers will, as I said, lose the ability to manage their own affairs and the flexibility that that entails.

There can be no doubting that prison managers are best positioned to know the wants and needs of inmates in their facility and to budget the account to ensure that the purchase of minor items like sporting equipment does not prevent or prolong the replacement of more expensive items such as a billiard table or table-tennis tables. Instead, the chief executive overseeing the centralised account will decide what is purchased and when, with managers presumably required to make a formal application every time they want to buy a basketball or guitar pick for inmates.

I now turn my attention to the proposed reforms of parole arrangements for inmates serving life sentences which have been necessitated by this government's capricious, inconsistent, populist and arbitrary use of the Governor's power to override the recommendation of the Parole Board to grant parole to life sentence inmates (who I will refer to as lifers).

Presently, prisoners sentenced to life imprisonment apply for parole as per other prisoners. However, unlike other inmates who simply must satisfy the Parole Board, for lifers the ultimate decision to grant parole is at the discretion of the Governor in Council. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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