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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 23 November 2011.)

Clause 21.

The Hon. S.G. WADE: When the committee was last considering this matter, the government highlighted some problems with the practical implementation of the opposition amendment. We thank the government for the briefing that we have had on that matter since. We are considering the implications of the government advice, and I understand that the minister would be agreeable to progressing beyond this clause and recommitting, if necessary, later in the process. I presume that means I would withdraw the amendment at this stage and seek a commitment from the minister to give an undertaking to recommit if that is desired.

The Hon. G.E. GAGO: The government understands that there is some work yet to be progressed on this particular clause, and we are happy to give the opposition some additional time to deal with that to see if that cannot be resolved in a way that we can come to agreement on. Obviously, we are keen to progress this matter and have this completed and back to the other house as early tomorrow as possible, and I know the Hon. Stephen Wade understands those time commitments and has agreed to work within those as best he possibly can. In light of that, the government gives a commitment to recommit this clause at the end of the committee stage.

The Hon. S.G. WADE: On that basis, I seek leave to withdraw the amendment standing in my name.

Leave granted; amendment withdrawn.

The Hon. S.G. WADE: If I could ask some questions completely unrelated to the amendment but still on clause 21. The Aboriginal Legal Rights Movement has raised concerns that the identification procedures proposed in this clause may stop some Aboriginal people being able to visit relatives in prison due to the lower prevalence of mainstream identification documentation amongst these communities. I ask the minister: what provisions are there to ensure that any identification requirements imposed by the CE have regard to cultural sensitivities and do not, even inadvertently, discriminate against certain communities?

The Hon. G.E. GAGO: I have been advised that I can assure the honourable member that there are safeguards within the bill that allow a certain degree of discretion by the Chief Executive to approve visits and that would allow them to take into consideration those circumstances where, for some people, ID information simply might not be available. So, there is a degree of discretion to assist.

The Hon. S.G. WADE: I certainly recognise the flexibility in the bill, but flexibility might be, shall we say, convenient to administrators but provide no assurance to Aboriginal people who are trying to visit. Perhaps we can unpack this slightly by my asking some further questions. Will the standards for identification be laid down formally and, shall we say, generally, or are we simply going to rely on the CE to have the discretion to set and apply requirements on a case-by-case basis?

The Hon. G.E. GAGO: I am informed that the ID requirements will be outlined in a standard operating procedure, and that the chief executive will have powers of discretion outside that.

The Hon. S.G. WADE: Do I take it from the minister's answer that that information would be available to members of the Aboriginal or other cultural communities?

The Hon. G.E. GAGO: I am advised that, when they are actually booking visits, visitors are advised of those ID standard operating procedures and the sorts of requirements that are in place.

The Hon. S.G. WADE: Could I make clear that my next question does not just relate to people from the Aboriginal community or any other cultural communities but applies to all the people who are, through this bill, having higher bars put on their visits under clause 21(5). Could the minister advise what avenues of appeal would be available to visitors who are refused access under one or more of these provisions?

The Hon. G.E. GAGO: I have been advised that there are no formal internal processes to review those decisions made by the chief executive or any decisions that are delegated to officers. However, I am advised that, for instance, on the day a visitor might challenge a particular position, officers will listen to that and take it into consideration. As I said, there are powers of discretion they can apply after listening to a particular point of view. However, ultimately, if the chief executive's decision is appealed against, a visitor could take the formal action of a judicial review. Although that is obviously highly unlikely, that is technically a process that would be available to them.

The Hon. S.G. WADE: By way of tedious detail, is it normal that, when a power is delegated, the person who delegates it can still exercise it? So, if you like, there is almost an implicit appeal provision there that if a prison manager exercised the right to say, 'No, don't come', the CE could then say, nonetheless, 'Come'?

The Hon. G.E. GAGO: I have been advised that, yes, that would be the case. The ultimate power to make the decision rests with the chief executive.

The Hon. S.G. WADE: I have no further questions on this clause.

Clause passed.

Clause 22.

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

Page 10, line 28 [clause 22, inserted section 35A(2)]—Delete 'at' and substitute 'before'

The bill proposes to provide formal powers to the chief executive to monitor the communications of prisoners except where it is between the prisoner and their legal representative, the Ombudsman, a community complaints commissioner and so on. The chief executive may authorise any monitoring in advance. Any information that is intercepted that reveals information about an offence must be referred to the police commissioner.

The bill defines communication as speech, music or other sounds, data, text, visual images, and signals, or any combination of the above. In his second reading speech the minister indicates that such monitoring already occurs, but to prevent challenges it is proposed to enshrine it in legislation.

The Law Society has recommended the amendment that I move to make clear that prisoners whose communication is being monitored should be notified in advance which, as I stress, we understand is the minister's stated intention. It is the view of the society and of the opposition that parties should be notified prior to a communication, not during it, that their communication will be monitored. The amendment replaces the word 'at' with 'before' and it also avoids conflict with the Telecommunications (Interception and Access) Act 1979.

The Hon. G.E. GAGO: The government rises to oppose this amendment, which seeks to alter the drafted wording of the proposed new section 35A which provides for the monitoring and recording of prisoner communication. The change to the wording does not alter the intention of the proposal. We simply believe it is completely unnecessary and, therefore, we are not supporting it.

The Hon. S.G. WADE: I must admit that I do not take kindly to arguments about it not being necessary. It may well not be necessary, but if it does not actually change the import, it certainly seems to me to be clearer. It certainly seems, in the view of an eminent legal body in the state, that it will be clearer to their members, and they are the members that are likely to be using it. I am inclined to persist with the amendment because, if it does no harm, from the Law Society's point of view, it will do some good.

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

Amendment negatived.

The Hon. S.G. WADE: I propose to ask a question at this point. I seek clarification, in relation to the range of bodies that are mentioned in subclause (3), as to whether staff of all of those bodies would be covered by the privilege.

The Hon. G.E. GAGO: I have been advised that it depends on which body the person belongs to. For example, in relation to the Ombudsman's office, staff there would be privileged. In relation to the other bodies, I have been advised that the answer is no. For instance, a legal practitioner who might be monitoring a call, they are obviously privileged; however, if they got their PA to make the call, they would not be privileged.

The Hon. S.G. WADE: In that context, could I clarify that the staff of a member of parliament, acting on their behalf, would be vulnerable to having a call monitored or recorded?

The Hon. G.E. GAGO: I am advised yes.

The Hon. S.G. WADE: Could I clarify whether submissions to a parliamentary committee would be monitored or recorded?

The Hon. G.E. GAGO: If they are read out over a telephone?

The Hon. S.G. WADE: We are talking about the written word as well, aren't we?

The Hon. G.E. GAGO: No, only recorded messages—say, on a telephone—so, you could record a submission.

The Hon. S.G. WADE: Again, I might need assistance, but my understanding is that the bill defines communication as speech, music or other sounds, data, text, visual images, signals, or any combination of the above. I presume text is an email?

The Hon. G.E. GAGO: I am advised that prisoners do not have emails.

The Hon. S.G. WADE: I can assure you that they have notepads. Some of our most reliable customers are prisoners.

The Hon. G.E. GAGO: The question you are asking is, say, if there was a text—

The Hon. S.G. WADE: I accept the advice of the advisors that prisoners do not have access to electronic data communication, but let's go back to the traditional form. As I understand it, if a prisoner is writing a letter to a member of parliament, it is privileged, for want of a better word. What if they were writing a submission to a parliamentary committee in the same format?

The Hon. G.E. GAGO: I am advised that that is not covered by this section and that this section of the bill does not seek to change those arrangements the honourable member has just referred to, such as a prisoner writing to a select committee on a particular matter.

The Hon. S.G. WADE: Is that matter covered in the Correctional Services Act 1982 and, if so, where?

The Hon. G.E. GAGO: I am advised yes: it comes under prison mail, and we think it is section 33.

The Hon. S.G. WADE: Yes, it is 33; thanks for that.

The CHAIR: Does the Hon. Mr Wade intend to move that amendment?

The Hon. S.G. WADE: I am probably becoming disorderly, but section 33 does not refer to parliamentary committees and, being a member of the correctional services committee, I fear—

The Hon. G.E. GAGO: But it does refer to members of parliament, which—

The Hon. S.G. WADE: It has privilege, anyway.

The CHAIR: A parliamentary committee has privilege.

The Hon. S.G. WADE: Thank you, Mr Chair, for your assistance. As you suggested, I move:

Page 10, line 32 [clause 22, inserted section 35A(3)(a)]—Delete 'who represents the prisoner' and substitute:

acting in his or her professional capacity

Again, this is an amendment prompted by the Law Society. If I may, I will read from a letter the Law Society wrote to me. The letter states:

The prohibition against monitoring conversations between a legal practitioner and a prisoner does not cover all scenarios in which conversations may occur. As presently drafted, it only applies to a legal practitioner 'who represents' the prisoner. Legal practitioners will often speak to prisoners prior to receiving instructions to act. Most of these conversations could be with a view to determining whether the practitioner will act or for the provision of legal advice.

We recommend an amendment that extends the prohibition to all communications with a legal practitioner acting in that capacity.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The bill is drafted to exempt a legal practitioner who represents the prisoner. The member seeks to change the wording, but it does not alter the intention of the proposal and is therefore not supported. The bill as drafted provides for an appropriate exemption for legal representatives, allowing communication between that person and the prisoner to not be monitored or recorded. So, that exists.

The proposed wording may have unintended consequences as a legal practitioner may be 'acting in their professional capacity' while representing a third party carrying out a reasonable direction from a senior member of their practice or otherwise conducting professional activities that are not at the behest or for the benefit of the prisoner with whom they are meeting. The stipulation that a legal practitioner must be representing the prisoner provides for a reasonable, verifiable and administratively efficient means to determine that communications should not be monitored. We therefore do not support this amendment.

The Hon. S.G. WADE: I take the minister's point that it may capture people it is not intended to capture. I wonder whether the wording 'a legal practitioner who represents the prisoner or who is in discussions to represent the prisoner' might be better. I think the Law Society makes a valid point; that is, that we should not put prisoners in jeopardy when they are in the process of trying to engage legal representation. We want prisoners to cooperate with authorities, and one of the best way in which to do that is to make sure they get legal advice at the earliest opportunity and with some surety. If the lawyer's union is telling us that they feel vulnerable in this situation, I do not want prisoners not being given the best legal advice they can receive, so that we can get on with the job of dealing with their offence.

The Hon. G.E. GAGO: We believe that the current provisions do allow for prisoners to be able to get the best legal advice possible. However, what the honourable member's amendment proposes to do is to broaden that and could bring in the possibility of these professional activities being conducted in a way which could be, in fact, not at the behest or benefit of the prisoner, and there are no checks or balances in place to avoid that or prevent that from happening. Unfortunately the line has to be drawn somewhere, and we believe that the line needs to be drawn in a place where the best interests of prisoners are upheld but that is also transparent, reasonable, verifiable and administratively efficient and proper.

The Hon. S.G. WADE: I apologise if I have not made myself clear that I do accept the minister's advice that the current amendment may well be drafted too widely, but I persist in my view that the government's clause in the bill is drawn too narrowly. I intend to persist with my amendment so that, hopefully, I can get an indication from the council that it agrees with me on that; that even if both options are not acceptable we need to find the middle point. We can recommit this clause with the other ones, but let me stress that I do not dispute the government's concern about the breadth of my amendment. As they explained it, it could bring in legal practitioners working for other prisoners and so forth. But on the plain reading of this bill I still see the common sense that the Law Society has flagged, and I believe this council should support lawyers trying to provide proper legal representation for prisoners.

The Hon. G.E. GAGO: I want to stress again that this provision does not prevent those discussions from taking place. I remind honourable members that this provision only goes to calls that are monitored. It does not in any way restrict discussions that a legal representative may have with the prisoner; they can go ahead. We are only talking about those calls that are monitored. Again, we believe that the restrictions we are putting in place are fair, transparent and verifiable, and will keep everything aboveboard. These provisions are limited only to calls that are monitored, not legal discussions.

The Hon. S.G. WADE: I am baffled as to why the minister thinks that a call may not involve legal discussions. I assert that there is no reason to think that a telephone call might not involve legal discussions. It might be fundamental to a lawyer deciding whether or not it is worth the effort to go to the prison to actually take on representation. I urge the council to accede to the request of the Law Society and ensure that the total process, if you like, of the engagement of legal representation is respected.

The Hon. D.G.E. HOOD: The minister used the term 'calls are monitored'. Can the minister explain that? What does that mean? What calls are monitored?

The Hon. G.E. GAGO: I am advised that all calls made by prisoners are monitored except calls to legal representatives and the bodies listed in the bill. The Hon. Stephen Wade's amendment seeks to broaden that definition of legal representative; that could include other people. We are saying no, that the only people who can be exempt are legal representatives and those who represent the prisoner.

The Hon. S.G. WADE: I think the more the minister talks the more I actually feel comfortable with my original amendment, if we are talking about monitoring telecommunications. We are not talking about mail, we are not talking about a lawyer bumping into someone as they go to and fro to deal with another prisoner. The risk of incidental third-party contact seems to be relatively low. I think the Law Society's amendment is looking better and better.

The Hon. T.A. FRANKS: I indicate that the Greens have sympathy for Wade No. 4. We think the Law Society has raised a quite valid concern. The minister does have a point that it may capture those not intended to in terms of legal representatives who may not actually be acting at the behest or in the interests of the particular prisoner concerned, and I think the definition here needs to include those representatives that the prisoner is seeking to be represented by.

The Hon. D.G.E. HOOD: Family First does not support 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.

Amendment thus carried; clause as amended passed.

Clauses 23 to 39 passed.

Clause 40.

The Hon. G.E. GAGO: I move:

Page 15—

Lines 6 and 7 [clause 40, inserted paragraph (aa)]—Delete:

(the prisoner having been released on parole following application by the prisoner to the Board)

After line 7—After its present contents (now to be designated as subclause (1)) insert:

(2) Section 66(2)—after paragraph (ac) insert:

(ad) a prisoner who has been returned to prison under section 74 for breach of a parole condition; or

I thank honourable members for supporting improvements to parole arrangements. I note that many members have been willing to listen and, in some cases, change their position as we have considered and worked through these very important matters. The government certainly appreciates that.

This amendment significantly strengthens the original government amendment, as it ensures that every parolee who has reoffended whilst on parole will have to apply to the Parole Board for further release to parole, regardless of new sentence length and regardless of whether they applied for parole previously or not. The Presiding Member of the Parole Board wants this and so does the government. In addition, the second part of this amendment will also make sure that parolees who have breached a condition of their parole order and are returned to custody by the Parole Board will not be entitled to automatic parole. They will have to apply for release to parole or serve the entire remaining sentence.

These amendments will ensure every parolee who continues to breach their parole by not complying with conditions set, or by reoffending while on parole, will have to satisfy the board they are ready to go back to the community for a further period of parole. Parole is a privilege, not a right, especially for these types of offences. Repeat offenders and those who continually breach or reoffend while on parole do not deserve to be released without the board's approval. These amendments make absolutely sure that they all must have that approval prior to further release on parole. If they do not apply or are refused parole by the Parole Board, they will serve their entire sentence in prison.

On 23 November 2011, a Victorian man was sentenced to 35 years for murder and torture offences committed whilst on parole. We may not be able to prevent every tragic offence of this type, but this amendment will ensure that we use every resource at our disposal to keep our community safe.

The Hon. S.G. WADE: The minister's remarks, as I understood it, addressed amendments Nos 1 and 2. Can I clarify whether both amendments have been moved?

The Hon. G.E. GAGO: My understanding was that they were both moved.

The Hon. S.G. WADE: I am happy to recognise that both amendments have been moved. I indicate that, on behalf of the opposition, we support both amendments.

The Hon. D.G.E. HOOD: Very briefly, for the record, Family First moved a similar amendment to this one some two or three years ago, or perhaps even three or four years ago now. We were disappointed that it did not pass the chamber at that time. The government did oppose it. However, we are pleased to see that the government has brought forward a very similar amendment on this occasion and we support it.

The Hon. A. BRESSINGTON: I indicate that I will support the amendment as well.

The Hon. T.A. FRANKS: The Greens will also support the amendment.

Amendments carried; clause as amended passed.

Clause 41.

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

Page 15, lines 12 and 13 [clause 41(2)]—Delete subclause (2)

The bill proposes that the chief executive of the department, rather than the community corrections officers, provide the Parole Board with reports on a prisoner's fitness to be released, to vary or revoke parole conditions, to discharge a parolee or to cancel parole. The government argues that these changes would allow the chief executive to take a longer-term consideration of a prisoner or parolee's case where a prisoner or parolee has had multiple community corrections officers supervising them.

The Parole Board is opposed to the change on the basis that a community corrections officer is in a better position to prepare a report about a prisoner or parolee. In that context, it is not beyond the wit of the Parole Board to notice that a particular community corrections officer has only recently taken on the case and to consider other information.

The opposition understands that the Chief Executive is already able to make submissions to the Parole Board parallel to other submissions but we do not support making the CE the broker of information coming to the Parole Board. In that regard we need to remember the structure of parole in the Australian jurisdiction. In other jurisdictions, particularly overseas, there is a more distinct parole and probation service such that the relevant Department for Correctional Services officers are not involved in the process, but that is not the context here.

We are concerned that interposing the CE in the process, making the CE the broker of information could raise questions of manipulation of information from an officer. It undermines the dual nature of the information: the information being provided to the Parole Board about a person's readiness for a community parole placement is very different to the information that the head of the Department for Correctional Services needs to know in terms of managing the prison.

We need to be clear that the person we are talking about here has a close relationship with the minister, who is the political head of the portfolio. We believe that we should maintain the current separation or, if you like, dual reporting responsibilities of Community Corrections Officers.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The bill was drafted to consistently amend the sections of the act to enable the Parole Board to receive reports from the Chief Executive. The Chief Executive or the most appropriate delegate can then appropriately prepare the reports for the Parole Board. It is entirely intended to formally delegate to the appropriate officers whilst providing for accountability at the highest level and ensuring the flexibility to include information from other staff or sources that will support the provision of the most accurate, relevant and timely advice to the Parole Board. For consistency, the reference should be read as drafted and, therefore, the member's amendment is not supported.

The Hon. T.A. FRANKS: I indicate that the Greens will not be supporting this amendment. We are comfortable with the delegation to the CE. We believe that the onus will be on the department to ensure that that is undertaken professionally and appropriately. We do have concerns about the separation between the minister and the Executive Council and parole, but that is not necessarily relevant to this particular discussion.

The Hon. S.G. WADE: I also remind the council that earlier in the debate we had particularly Family First members of this chamber expressing concern about centralisation. This is classic centralisation because, in relation to the delegations, we have the assurance from the government that there is no intention to shift the balance. Well, this is very clearly shifting the balance. This is interposing in a relationship that currently does not have a bureaucrat—I suppose they are bureaucrats, both the Community Corrections Officer and the CE. However, Community Corrections Officers know that when they are giving a report to the Parole Board their duty is to the Parole Board's mandate not to the Department for Correctional Services mandate.

I strongly disagree with the Greens' position. I accept it; I accept that they have put it on the record but this, to me, seems to be significantly shifting away from a rehabilitation focus—which is the focus of parole and community corrections work—towards an incarceration approach. I certainly warn members who have any concerns about centralisation that this is not just a hint or a possibility of centralisation, it is a massive shift towards centralisation.

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

The Hon. D.G.E. HOOD: Family First will not be supporting it.

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

The Hon. K.L. VINCENT: I am very happy to support this amendment.

The committee divided on the amendment:

AYES (9)
Bressington, A. Dawkins, J.S.L. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
NOES (12)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Franks, T.A. Gago, G.E. (teller) Gazzola, J.M.
Hood, D.G.E. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Wortley, R.P. Zollo, C.

Majority of 3 for the noes.

Amendment thus negatived.

The Hon. A. BRESSINGTON: I move:

Page 15, after line 13—After subclause (2) insert:

(3) Section 67(5) to (7)—delete subsections (5) to (7) (inclusive) and substitute:

(5) The Board may, on an application under this section, order that a prisoner be released from prison on parole.

(6) An order under subsection (5) must specify—

(a) the day on which the prisoner is to be released from prison on parole; and

(b) in the case of a prisoner who is serving a sentence of life imprisonment—the period for which the prisoner is to continue on parole, being a period of not less than 3 years or more than 10 years.

(4) Section 67(8)—delete 'or the Governor'

As I detailed in my second reading contribution, this amendment seeks to remove the role of the Executive Council in determining parole applications of inmates serving life imprisonment and make sure parole applications are determined solely by our independent Parole Board. As each amendment in this set is conditional, if not consequential, on the other, this amendment can stand as a test for all my Bressington [4] amendments.

South Australia is the only Australian jurisdiction that has retained the executive's right to veto a parole application. Whilst other state jurisdictions have historically had such powers, all have removed them from their statute book when establishing independent parole boards. Presumably, they recognise that to continue such power undermines their parole board's independence, the confidence of the citizens in the parole system, and that most fundamental principle of the separation of powers. It is time we did the same.

Prior to 2002, no South Australian government had ever exercised the power, but this Labor government soon saw the opportunity to beat its law and order chest, as I have detailed, and now fewer than 50 per cent of parole applications by lifers are successful. I commend this amendment to the house.

The Hon. S.G. WADE: As the honourable member has outlined, this clause relates to Executive Council's oversight of parole for life prisoners. Prisoners sentenced to life imprisonment apply for parole, as do other prisoners; however, unlike other prisoners, parole for prisoners serving a life sentence must be endorsed by Executive Council (cabinet sitting formally as advisers to the Governor, with the Governor in the chair).

As the member has indicated, prior to 2002 I understand that no government has exercised the power to deny parole to an inmate. I think that is significant. We have had governments of both persuasions over many years, and no government has exercised this power. Reportedly, since 2002 the Rann Labor government has refused to approve more than 50 per cent of otherwise eligible parolees granted parole.

We believe the government's lack of consistency in parole decisions, and failure to give reasons, undermines the parole system. It leaves the prisoner in the dark as to what they need to do to be released and undermines the incentives for prisoners serving a life sentence to address their offending behaviour. It wastes the time and resources of the Parole Board and undermines safety in the prison environment. It makes the release of prisoners serving a life sentence a political issue, rather than a matter of public safety, and thereby undermines community confidence in the objectivity of the criminal justice system.

The honourable member's response to that is to remove that discretion altogether, in the sense that the Executive Council decision would be reviewable—and this is, as she said, part of a set. We believe that this discretionary power has been abused by this government, but we believe that the fact that one government abuses a power that governments over many years have not abused is not the basis for withdrawing that discretion.

The opposition is very concerned about the abuse of Executive Council discretion. We oppose the politicisation of the parole process by the Rann Labor government; however, we are not inclined to remove Executive Council from the process. It is conceivable that some confidential information beyond that which is available to the Parole Board may justify any ongoing detention of a person otherwise suitable for parole, and we do believe that it is appropriate that the Parole Board responds to requests.

As it has previously come up in debate—I think it was in the second reading stage—it is not that Parole Board decisions are beyond questioning. A number of people have conveyed to me their understanding that Executive Council and cabinet have often asked questions of the Parole Board, held them accountable, and ensured quality assurance.

We believe it is desirable to respond to the abuse of this power by this government, to introduce a requirement for reasons—and I will be moving an amendment in that ilk later—but we do not believe that just because this government has abused the power it should therefore be abolished. I move:

Page 15, after line 13—after subclause (2) insert:

(3) Section 67—after subsection (7) insert:

(7a) The Governor must, not more than 30 days after refusing to order that a prisoner be released from prison on parole, notify the prisoner in writing of—

(a) the refusal; and

(b) the reasons for the refusal; and

(c) any matters that might assist the prisoner in making any further application for parole.

(7b) Despite subsection (7a)(b) and (c), the Governor is not required to disclose to the prisoner any reason or matter if any such disclosure is likely to give rise to a significant risk to public safety.

The Hon. G.E. GAGO: The government opposes the amendment of the Hon. Ann Bressington. To save time, I think the Hon. Stephen Wade has outlined the reasons for our opposition well, so I do not need to repeat those. It is for those same reasons that we oppose it.

The government also opposes the amendment of the Hon. Stephen Wade. This amendment seeks to compel the Governor in Executive Council to advise the prisoner of reasons for the refusal and provide any further information that might assist the prisoner in making a further application to parole.

The Governor should not have to disclose reasons nor provide further information about a decision reached. As an opposition member pointed out in another place, the Chief Justice in a case of refused parole acknowledged that it was never intended that the Executive Council would give reasons, which is, in fact, the model now being proposed.

The Hon. A. BRESSINGTON: I would just like to remind members in this place that this particular amendment was requested by the head of the Parole Board herself, Frances Nelson QC. I discussed this in a meeting with Chief Executive of Corrections, Peter Severin, who admitted that we have a catch 22 situation for life prisoners. Many lifers are not being moved into prerelease programs or resocialisation programs because Corrections are basically pre-empting the decision that will be made by executive government, and that is not to grant parole.

I do not accept the arguments that the Hon. Stephen Wade used not to support this amendment. He talked about not wanting centralised power—here we have it. We have a parole board; we have a judiciary. The judiciary lays down the sentence. The Parole Board is there to make judgements on a person's fitness. This, in no way, removes any power of the government to oppose or to appeal the decision of the Parole Board. If the government feels strongly about it, it can do that through a judicial process, which, I believe, is real openness and transparency of these decision-making powers that, right now, are all under the carpet and behind closed doors and nobody ever knows.

I know that people who have a life sentence do not have much sympathy out there, but we have some people in there who have done eight years over their sentence and still do not know when they are going to be released, if ever. If that is the case, why do we not just do away with the judiciary being able to put sentences on prisoners and let the government do it all?

The Hon. T.A. FRANKS: I indicate the Greens will be supporting the amendment in the name of the Hon. Ann Bressington. We think she has put a very valid point before this place for debate. In the opinion of the Greens, there should not be a role for Executive Council in the way that currently exists. The fact that it was not used prior to 2002, and that it has been used since, is obviously to the disgrace of one particular government; however, let us not forget that the opportunity being there will, no doubt, always ensure that, in the current political climate, there will be the temptation to politically point score out of these particular situations.

I draw members' attention to the advertisements that were run in the last election campaign saying that Redmond would release certain prisoners. We know that this is a government famed for the rack 'em, stack 'em and pack 'em language. We are becoming more and more familiar with the law and order rhetoric and playing politics with prisoners in this state. I think the old slippery slope comes to mind.

Certainly, we acknowledge that there is not support for the Hon. Ann Bressington's amendment. Despite the Greens supporting it, the numbers will not be here today, so we are open to the further amendments made by the Hon. Stephen Wade. With those few words, I commend the amendment.

The Hon. D.G.E. HOOD: Obviously the Hon. Ms Bressington's amendment will be defeated as the government and the opposition are opposing it, but I would like to ask a question of the Hon. Stephen Wade regarding his amendment. I am somewhat attracted to it, but I want to be exactly sure what we are voting for. What does the member envisage the format would take and can he point to other jurisdictions that require reasons to be published by government in the cases where they decide to intervene?

The Hon. A. Bressington: Other jurisdictions don't have this power.

The Hon. D.G.E. HOOD: That is other Australian jurisdictions. What about any other jurisdictions?

The Hon. S.G. WADE: As the Hon. Ann Bressington interjected, other Australian jurisdictions do not have this power. I am not aware of jurisdictions beyond Australia that have this power.

The Hon. A. Bressington: South Australia; jurisdictions beyond South Australia that have this power.

The Hon. S.G. WADE: Yes. The Hon. Ann Bressington and I are both of the understanding that South Australia is unique in having this provision. Therefore, if this bolt-on was put, it would be a unique bolt-on as well.

The Hon. A. BRESSINGTON: I still do not understand what the Hon. Stephen Wade believes is going to be achieved by his amendment. It is going to be very easy for the written explanation to be 'this prisoner is seen to be a risk to the public', full stop—no reason given. It is not really going to achieve anything at all.

The Hon. S.G. WADE: If I may, I might give more flesh to my amendment. We have indicated our significant disquiet about the abuse of this power by this government. I thought that the Hon. Tammy Franks was going to use the word 'shame' for this government. I think it is.

The Hon. T.A. Franks: Didn't I use that word?

The Hon. S.G. WADE: Did you? Anyway, I think it would be a good word to use, because I—

The Hon. T.A. Franks: Disgrace.

The Hon. S.G. WADE: Disgrace or shame; whatever it is, I cannot imagine someone like Len King or Don Dunstan calling this government a Labor government after the way it has behaved on law and order.

The CHAIR: That is not discussing your amendment.

The Hon. S.G. WADE: Well, I think it actually does highlight the point that an executive power needs to be seen in a political context. In that regard, we believe that, in a return to a responsible government—in the broader sense of the word—the responsible government would see no reason to exercise the Executive Council power prior to 2002—

Members interjecting:

The Hon. S.G. WADE: I am not sure whether the minister is raising a point of order or merely just trying to talk me down, but I will persist—

Members interjecting:

The CHAIR: Order! It is getting close to too long.

The Hon. S.G. WADE: Sorry, Mr Chairman, I have only just started explaining, and I do not believe that the explanation of my amendment is time limited. We believe—

The CHAIR: Order! I would not push questioning the chair if I were you. I would get on with explaining your amendment. That is what you were asked to do.

The Hon. S.G. WADE: The amendment standing in my name—

The CHAIR: You have already moved it.

The Hon. S.G. WADE: I am not trying to move it again. I am actually trying to explain it. What I am trying to explain is that it would not be necessary if this government had persisted in the practice prior to 2002. I fully understand the frustration that the Hon. Ann Bressington and the Hon. Tammy Franks have highlighted and I believe that, in my remarks, I have also identified with them. I think it is shameful the way this Labor government has abused the Executive Council power that was used appropriately up until 2002.

We believe that just because a government has abused a power does not mean that future governments should not have access to it. We look forward to the day when a responsible government is elected to the benches in this state and we can return to a more orderly use of what I would describe as a reserve power.

What my amendment—and I should say the opposition's amendment—seeks to do is put an onus on the government to notify the prisoner in writing within 30 days of a refusal the reasons for the refusal and any matters that might assist the prisoner in making any further application for parole.

The Hon. Ann Bressington, particularly through the media, highlighted a case where the judge himself had cause to write to the then minister and highlight the huge injustice. The Parole Board chair could not see any significant difference between the two prisoners: one who was released on parole and one who was not.

The Hon. A. Bressington: Judge Debelle.

The Hon. S.G. WADE: It was Judge Debelle who wrote to complain, but I think it was the Parole Board chair in the Today Tonight program who said that she did know of any reason—

The CHAIR: The Hon. Mr Wade should direct his remarks through the chair and not to Ms Bressington.

The Hon. S.G. WADE: I was, Mr Chair; my point being that Justice Debelle in relation to a case, I think in the early 2000s, while this government was in power—I am not sure about the timing.

The Hon. A. Bressington interjecting:

The Hon. S.G. WADE: Yes, it was the Hay and Webb case. Justice Debelle had cause to write to a minister and express his concern. That is extraordinary that a member of the bench should be so concerned about the exercise of executive power that they write to the minister. Frances Nelson , the current chair of the Parole Board, as I understand it in a recent Today Tonight program, said in that case she could see no significant difference between the two exercises of power. The opposition shares the crossbench concern about this government's use of the power. We do not believe that future governments should be assumed to act as irresponsibly as this government has, but we do believe that there would be a benefit from enhancing the accountability. After all, the Hon. Ann Bressington is right—the government could do a shorthand statement, simply that it is not in the public interest or—

The Hon. A. Bressington: And welcome.

The Hon. S.G. WADE: Well, I would hope that if a government does feel in the future it is necessary to exercise the reserved discretion—as we have said, we are not aware of a case before 2002—they would have sufficient respect for the public to give a credible response. In the context of the security environment that Australia faces, it may be that the statement is relatively bald, and the government will have to handle the public consequences of that statement, but it may well be that in the context of accountability the statement is actually very useful to the prisoner. In this context I am reminded of a statement by Chief Justice Doyle in the Watson case. This might have been the section that the minister is referring to. He said:

As things stand, Mr Watson has no idea why the Governor has refused to release him on parole, and he is left contemplating a blank wall.

It may well be that the government is taking a different view to the Parole Board in how best this person can be rehabilitated, how best public safety can be managed, but if it is a matter the prisoner can address, why not engage them? Why not give them guidance as to what they can do to make it more likely that their parole recommendation will be supported? It might also be appropriate at this point to address the furphy launched by the minister in another place where he asserted that the—

The CHAIR: I think you should stick to your amendment.

The Hon. S.G. WADE: This is actually directly relating to the minister's objections in the other place to the amendment, so it is directly on point. The minister in the other place said that to give reasons would open the door to judicial review or words to that effect. The advice I have is that this decision is already open to judicial review. After all, the fact that Chief Justice Doyle was even discussing the issue in the Watson case in the Supreme Court suggests that it is. What Chief Justice Doyle was highlighting in the Watson case is not that it is not subject to judicial review, but he was highlighting the practical difficulties with undertaking judicial review in the context of cabinet solidarity, collective decision-making and so forth. We do not believe that these reasons increase the scope for judicial review. Whilst I appreciate that some members would be more comfortable if the power was removed with an appeal provision, as the Hon. Ann Bressington has foreshadowed, the opposition is not comfortable with that approach and suggests a modified approach by way of giving reasons.

The Hon. D.G.E. HOOD: In light of the defeat of the Hon. Ms Bressington's amendment, we are focused on the Hon. Mr Wade's amendment. In reading his amendment carefully, he simply asks that once a prisoner has been refused an application for parole, within 30 days, for the prisoner to receive in writing the reason for the refusal—first of all confirming the refusal, which I think is not unreasonable as it is not unreasonable for someone to be told that something is or is not going to happen, and secondly, the reasons for that.

Again, it is hard to understand why that is unreasonable. Surely, somebody who is seeking to achieve a particular outcome should be given the reasons why it is being denied and then how they might go about achieving it in the future. I do not think anyone would ever accuse Family First of being soft on crime, but that is, I think, not an unreasonable requirement. I think even more so because if you look at (7b) of the amendment, it states:

...the Governor—

or the government, I guess, in real terms—

is not required to disclose to the prisoner any reason or matter if any such disclosure is likely to give rise to a significant risk to public safety.

So, there is an out for the government. If this particular parolee has been declined parole and the government deems that giving that information to that person would in some way risk public safety, then it does have an out, in very exceptional circumstances, I would imagine, but nonetheless it is there and if we pass this amendment it will be enshrined in law. I am inclined to support the amendment, I think it is not unreasonable. I am happy to listen to the government's argument if it has a strongly held view or some persuading arguments as to why we should not support it, but at this stage, in the absence of that, we will be supporting the amendment.

The committee divided on the Hon. Ms Bressington's amendment:

AYES (3)
Bressington, A. (teller) Franks, T.A. Parnell, M.
NOES (16)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Finnigan, B.V. Gago, G.E. (teller) Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.

Majority of 13 for the noes.

Amendment thus negatived.

The committee divided on the Hon. Mr Wade's amendment:

AYES (12)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
NOES (7)
Bressington, A. Finnigan, B.V. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Wortley, R.P.
Zollo, C.
PAIRS (2)
Lensink, J.M.A. Gazzola, J.M.

Majority of 5 for the ayes.

Amendment thus carried.

Progress reported; committee to sit again.


[Sitting suspended from 13:05 to 14:18]


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