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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-23 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 10 November 2011.)

Clauses 2 to 13 passed.

Clause 14.

The Hon. S.G. WADE: I move:

Page 6, line 21 [clause 14(2), inserted subsection (4)(b)]—After 'suspected' insert 'on reasonable grounds'

Currently, if a prisoner is suspected of having committed an offence, or has been charged with an offence, the manager of the correctional institution must, at the request of police, release the prisoner into the custody of that member of the police for the purposes of investigation, obtaining evidence or identifying the prisoner as the person who committed the offence.

The government's bill proposes to add an additional category of the prisoner having knowledge or information that might assist in the prevention or investigation of an offence. It is our view that that is an extremely broad statement. In fact, it would be hard to imagine any prisoner in a correctional facility who would not have some information of some assistance to some police officer in relation to some offence.

The Aboriginal Legal Rights Movement and the Law Society have made submissions to us. There is concern about the provision. In fact, we were encouraged to oppose it—to basically maintain the current position. But we do think that, if there is suspicion on reasonable grounds (in other words, if the police had reasonable grounds to suspect that a person might have information of assistance), it is an appropriate power to give to the police. The amendment I have moved proposes to limit the provision by inserting the threshold for suspicion on reasonable grounds.

The Hon. G.E. GAGO: The government opposes this amendment. This amendment refers to SAPOL removing a person from custody upon suspicion and seeks to add 'on reasonable grounds'. SAPOL already interviews prisoners where there is a suspicion of involvement in an offence, but at the moment, SAPOL has to interview prisoners at the prison site.

The intention of this amendment is to make clear that SAPOL can interview prisoners off-site and also be able to interview to prevent an offence being committed. This is especially warranted when prisoners are able to provide information to assist police. If SAPOL removes a prisoner and interviews away from the prisoner, it protects the prisoners. The proposed amendment does not change the intention and is not supported.

The Hon. S.G. WADE: I would suggest to the minister that that sounded almost like a speech in support, it is just that the minister's last line could have said, 'The government supports the intention and supports the amendment.' The argument was not an argument. Because of what the minister is saying that the police can already do it on site, and I presume that would be not merely a member of the general police but, specifically, it could be a member of the police-corrections joint task force, the minister is actually arguing, I think, in support of my case because the police already have access to the prisoner within the prison facility.

Why should the police have this mere suspicion opportunity to take a prisoner beyond custody? It is an expense, an inconvenience and a security risk. I would think that we would expect the police to have reasonable grounds before they go on some fishing expedition in relation to information that does not relate to the person who might have committed an offence.

The Hon. G.E. GAGO: I might qualify that. The government's view is that this amendment is unnecessary, that those provisions already exist under the current arrangements and, therefore, it is completely unnecessary to make that change.

The Hon. S.G. WADE: I do not agree that it is unnecessary. I believe it would have an impact and, certainly, the Law Society thinks it would have an impact. In fact, I do not know if the minister has access to the Law Society's advice but let me quote from part of it.

Firstly, we comment on the mandatory requirement to release the prisoner into the custody of the police on the request of the police. That request may be made on a mere suspicion.

There is no requirement for the suspicion to be based on reasonable grounds. We recommend, as a minimum, that the suspicion should be so based.

I certainly do not believe it is unnecessary and without impact because I think it would mean that, if the police want to go on a fishing expedition, they need to do that within the prison bounds, within custody in the prison itself.

If the prisoner is at threat for providing information—which is one of the reasons that the minister put forward—you would think that the police, therefore, had reasonable grounds and would be able to remove them. The fact that the police only have a mere suspicion and do not have a suspicion on reasonable grounds, yet are concerned that the person would be at threat if they provided some information to the police, seems to me to be internally inconsistent. To establish the risk of a threat they must have established a reasonable suspicion. I believe the government is failing to accede to the Law Society's advice. We believe that it would be good legislative practice and we urge the council to support the amendment.

The Hon. A. BRESSINGTON: I will be supporting the amendment.

The Hon. T.A. FRANKS: The Greens believe that the Law Society has a compelling case and so we will be supporting the amendment.

The Hon. J.A. DARLEY: I will not be supporting the amendment.

The committee divided on the amendment:

AYES (11)
Bressington, A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)
NOES (10)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

The CHAIR: I remind members that in the committee stage it would be handy if they were in the chamber to indicate their position and it might save some divisions.

Amendment thus carried; clause as amended passed.

Clauses 15 to 20 passed.

Clause 21.

The Hon. S.G. WADE: I move:

Page 10, line 21 [clause 21(5), inserted subsection (4)(d)]—Delete 'a child sexual offence' and substitute:

—

(i) a child sexual offence; or

(ii) an offence involving domestic violence where the person was a victim of the offence

The opposition amendment seeks to restrict victims of domestic violence from visiting a person in prison without the permission of the chief executive. The chief executive of the department could agree to the access being permitted.

The opposition is taking up the suggestion of the Parole Board. We accept the government's point in the other place that implementation of this provision would be dependent on information provided. We accept that this information is not provided consistently, but the opposition's view is that, when it is provided, when it is known to the authorities that the person under the age of 18 who is proposing to visit a prisoner was a victim of an offence involving domestic violence, where the person was the victim of the offence, it is prudent for the authorities to have the capacity to deny access.

Of course, that would not be made lightly, because there would be many circumstances—such as rehabilitation or restoration of the relationships—in which it might be valuable for a visit to occur but, just as the government accepted the value of blocking access where a child sex offence was involved, it is the opposition's view that a similar protection should be provided to victims of domestic violence.

On the point about the lack of availability of information, as I said, when it is available it should be acted upon, and perhaps this does raise the issue of the need for more systematic harvesting of such information. I commend the amendment to the committee.

The Hon. G.E. GAGO: The government arises to oppose this amendment, although it does accept that it is a well-intentioned amendment. The amendment seeks to extend the government's amendment to prevent under-age visitors from visiting child sex offenders in custody. The age was increased to 18 with amendments moved by another member and subsequently accepted in another place. The member is seeking to extend the provision to also prevent victims of domestic violence offenders visiting the perpetrator.

I understand the intention of the amendment, but implementing the provision would be entirely dependent on the right information being provided to the Department of Correctional Services, and the Hon. Stephen Wade has acknowledged that. Also, it would be reliant on information about domestic violence victims or existing domestic violence orders, and these are currently not consistently provided to the Department of Correctional Services.

If the department has that information about domestic violence offenders and restraining orders, the visitors can already be banned from visiting, and I understand that they are on occasion. So, where that information is currently available we do use it and prevent people from visiting but, quite simply, due to the uncertainty in terms of that accessibility of information and the reliability of it coming through in a timely way, we are concerned that it would be sufficient information available for us to know whether a young person has been a victim of an offence and, therefore, we simply cannot support the proposal because we simply cannot do it in all cases.

I note the honourable member qualified his statements by saying that, if the information is available, it should be provided; however, his amendment does not actually say that. So, that idea that this requirement or impost only applies where information is available is in fact not reflected in the wording. I ask the honourable member to clarify that.

The Hon. S.G. WADE: The authorities would not be in a position to assert the requirement for the approval of the CE to be sought if they were not aware of the offence having taken place.

The Hon. G.E. GAGO: But this could be interpreted as placing an onus on those agencies that they are required by law to provide that information, therefore they could somehow be seen in breach in not providing that information in a timely way. That is the problem with the interpretation of legislation that we do not have control over. I am just requesting that the honourable member perhaps reconsider the wording of this in some way to reflect that the onus or the impost is only in place or only triggered when and if the relevant information is made available.

The Hon. S.G. WADE: I thank the minister for her invitation to reconsider the words and I also acknowledge her indication that the government appreciates that it is well-intentioned. In that regard, considering the lateness of the hour, the minister may consider adjourning. If I might put to the house—and it may well be that other members want to comment on this before we adjourn—one response to the conundrum of limited information might be to make sure that we are not putting inappropriate responsibilities on officers and members of the department.

A response might be to leave it as hard as it is now so that the department can respond, as part of their intake proceedings, by harvesting that information. Perhaps a DCS intake form would include a statement to this effect: 'Have you been convicted of a domestic violence offence or are there any domestic violence orders standing out to you?' I appreciate the minister is well-intentioned on this, because her commitment to dealing with domestic violence is well-known to this house, and I certainly want to engage in a positive way with the government and the crossbenches to see which is the best of those two choices. In fact, it may be easier to enhance the form than have the risk of legal action with a modified set of words. So, I would appreciate the views of the government and any other members.

The Hon. G.E. GAGO: I think it is a good time to adjourn. The government is happy to work with the Hon. Mr Wade to see if we cannot land on some wording that satisfies the concerns that have been raised.

The Hon. S.G. WADE: Thank you, minister. Could I indicate that if any other members would like to be part of that discussion with the minister, if they could let either the minister or I know. It might be helpful to have, if you like, a bit of committee work outside the chamber.

Progress reported; committee to sit again.

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