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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-30 Daily Xml
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CORRECTIONAL SERVICES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

Clause 41.

The Hon. A. BRESSINGTON: I move:

Page 15, after line 13—Insert:

(3) Section 67—after subsection (10) insert:

(11) If the Board, in notifying a prisoner of a matter that might assist the prisoner in making any further application for parole, recommends that the prisoner undertake specified activities or programs for the purposes of such an application, the CE must ensure so far as is reasonably practicable that the prisoner is given an opportunity to comply with the recommendation.

As I explained in my second reading contribution, this amendment seeks to make recommendations by the Parole Board that inmates participate in rehabilitation or resocialisation programs binding on the Department for Correctional Services. This is a further measure to address the catch 22 and was suggested to me by Mr Chris Charles, Senior Counsel of the Aboriginal Legal Rights Movement, and it is supported by the head of the Parole Board, Ms Frances Nelson QC.

Numerous constituents have had their parole applications denied and received a recommendation that they participate in resocialisation and offender programs, yet the department has been unwilling to offer these services because it foresees that the executive will ultimately deny the inmate parole. Earlier I gave the example of Mr Derek Bromley. In such cases my amendment will require the department to offer programs recommended by the Parole Board.

I am sure that the Parole Board will exercise this power sparingly and, for this reason, I am not overly concerned that there will be undue resource implications for the department. Regardless, corrections will only be required to offer recommended programs where reasonably practicable. At present, the department in second-guessing the executive (as I have mentioned over and over during the course of this bill) is essentially ignoring express recommendations of the Parole Board.

As I said (and this was actually confirmed, again, by Mr Severin, Chief Executive of Correctional Services), while the department's position is understandable, such an amendment would make clear that the department's role is to give effect to recommendations of the Parole Board and actually not second-guess the decision of the executive. I commend the amendment to the committee.

The Hon. G.E. GAGO: The government opposes this amendment. The new subsection will compel the CE to ensure that a recommendation by the Parole Board is undertaken that relates to a prisoner undertaking certain activity or programs for the purpose of a future application for parole. Obviously, we do not support this. The undertaking of activities and programs by prisoners nearly always requires prisoners to be placed at certain locations. The placement of prisoners appropriately rests with the chief executive.

Placement is complex and requires the consideration of a great deal of information. The duty of care of prisoners is taken very seriously, and in this regard it simply may not be possible to place a prisoner in a certain location or into a certain program upon the request of the Parole Board. Many prisoners have enemies in the system and enemy issues must be considered when placing prisoners at locations or in programs.

Recommendations by the Parole Board will continue to be considered, obviously, as part of the overall individual placement and development plans for prisoners. They clearly are very important and highly regarded. Additional legislative provision, however, we do not believe is required.

The Hon. S.G. WADE: Whilst the opposition is sympathetic to the concerns that have led to the honourable member moving this amendment, it is our view that it is best to allow normal accountability processes for such departmental decisions rather than allowing a quasi-judicious body such as the Parole Board to determine priorities for the delivery of departmental resources without full information as to competing priorities and factors. We will not be supporting the amendment either.

The Hon. A. BRESSINGTON: First of all, I will remind members that the bill states 'where practicable', so, where reasonable. It does not mean that every recommendation made by the Parole Board has to be taken up where it is not in the best interest of the inmate to do so. If he or she has enemies in certain areas, or whatever, that would be taken into consideration, obviously. I remind the Hon. Stephen Wade that the Parole Board already makes these recommendations, and that is the problem.

These recommendations are being made and being ignored because Corrections are second-guessing the decision of the executive that parole will not be granted. Not that it is not already a duty of the Parole Board, and it should already be the responsibility of Corrections to follow through on those recommendations; but it is that catch-22 that my amendment earlier would have fixed, but people have chosen to ignore this—bury our head in sand and pretend that this situation actually does not exist even though Mr Severin himself admitted it does and the head of the Parole Board has requested these changes.

Amendment negatived; clause as amended passed.

Clauses 42 to 45 passed.

Clause 46.

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

Page 17, lines 12 to 15 [clause 46(1), inserted subsection (1)]—Delete:

'the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed' and substitute:

the sentence, or sentences, of imprisonment in respect of which the person was on parole for such period as the board thinks appropriate, but not exceeding—

(a) the period between the day on which the breach occurred and the date of expiry of the parole; or

(b) such lesser period as the board thinks fit.

The bill removes the distinction between standard and designated conditions. All breaches of parole will potentially leave a prisoner liable to serving the remainder of their sentence in prison. The Law Society has proposed that clarification of the changes will still allow the Parole Board to exercise the discretion of the length of further periods of custody. This opposition amendment provides that clarity.

For the benefit of honourable members, I will read the relevant excerpt from the Law Society letter to me, referring to section 74(I)—clause 46:

We do not support this proposal. It appears to give no discretion to the Board other than between not acting and requiring the parolee to serve the balance of the unexpired term. The Board should have the discretion to require the parolee to serve a portion of the unexpired term commensurate with the breach of condition. Parolees will breach conditions of parole. A large majority of those breaches will not justify the imposition of the balance of the unexpired term.

The less important conditions should not be elevated in importance to designated conditions. For the less important conditions, serving up to an extra six months imprisonment is a harsh enough consequence for breaching a condition not considered important enough to be a designated condition.

If any amendment is necessary, it could be along the lines of empowering the Parole Board to refer the matter to a court where the Parole Board is of the view that six months imprisonment is not sufficient for the breach.

In consideration of that advice, I move the amendment.

The Hon. G.E. GAGO: The government opposes this amendment. The bill provides for parolees to serve the remainder of their sentence in cases where the Parole Board has cancelled the parole order. The member has proposed to alter the wording to specifically provide that the Parole Board can sentence a parolee to serve a lesser period. The bill as drafted provides that the board may cancel parole and order the parolee to serve the remainder of a sentence or sentences in prison.

In essence, it removes the six-month maximum imprisonment in the current act, so let me be quite clear that the government will continue to be tough on crime and to ensure that those who breach parole face the consequences of their actions accordingly. The bill is drafted in accordance with the original intention of being tougher. That is, if a parole is cancelled then the offender should be required to serve the full remaining period of the original sentence and be subject to a board decision about further release to parole.

The board, however, will still have flexibility. It can impose community services under section 74A(a) if it does not wish to exercise powers under section 74, that is, to return the parolee to prison. For those reasons, the government does not support this amendment.

Amendment negatived, clause passed.

Clauses 47 and 48 passed.

Clause 49.

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

Page 19, line 1 to page 20, line 5 [clause 49, inserted sections 76A and 76B]—

Delete sections 76A and 76B and substitute:

76A—Apprehension etc of parolees on application of CE or police officer

(1) If the CE or a police officer suspects on reasonable grounds that a person who has been released on parole may have breached a condition of parole, the CE or police officer may apply to—

(a) the presiding member or deputy presiding member of the Board; or

(b) if, after making reasonable efforts to contact the presiding member and deputy presiding member, neither is available—to a magistrate,

for the issue of a warrant for the arrest of the person.

(2) A warrant issued under this section authorises the detention of the person in custody pending appearance before the Board.

(3) A magistrate must, on application under this section, issue a warrant for the arrest of a person or for the arrest and return to prison of a person (as the case may require) unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.

(4) If a warrant is issued by a magistrate under this section—

(a) the CE or police officer (as the case requires) must, within 1 working day of the warrant being issued, provide the Board with a written report on the matter; and

(b) the warrant will expire at the end of the period of 2 working days after the day on which the report is provided to the Board; and

(c) the presiding member or deputy presiding member of the Board must consider the report within 2 working days after receipt and—

(i) issue a fresh warrant for the continued detention of the person pending appearance before the Board; or

(ii) cancel the warrant, order that the person be released from custody and, if appearance before the Board is required, issue a summons for the person to appear before the Board.

(5) If a warrant expires under subsection (4)(b) or a fresh warrant is not issued under subsection (4)(c)(i), the person must be released from detention.

(6) The Board may, if it thinks there is good reason to do so, by order, cancel a warrant issued under this section that has not been executed.

I indicate to honourable members that this is perhaps one of the most substantial amendments that we have had to consider in relation to this bill. I also highlight that in the one amendment it deals with two separate proposals in the bill: one in relation to the chief executive of the department dealing with breaches of parole and another in relation to police. Given that the opposition considers that the appropriate model would be the same for both even though the government is suggesting a different model for both, our one amendment would deliver commonality for both. I will explain in more detail.

Currently, a member of the Parole Board may apply to a justice of the peace for a warrant for the arrest of a parolee for the purpose of bringing them before a hearing of the Parole Board. A warrant may also be issued by two members of the Parole Board. The bill proposes to allow both the presiding member and the deputy presiding member of the Parole Board to issue warrants, one without the concurrence of the other. Other changes in the bill would require any other member of the Parole Board to apply to a magistrate rather than a justice of the peace for a warrant if required. All warrants can only be issued if a reasonable suspicion of a breach of parole exists.

The bill proposes that the Chief Executive of the Department for Correctional Services would also have the power to issue a warrant if they have a reasonable suspicion that a parolee has breached a condition of parole. The Parole Board, the Law Society and the Aboriginal Legal Rights Movement are all opposed to these changes.

To summarise the objections that have been raised, allowing the issue of a warrant by the chief executive would involve the following detriments. Firstly, it would fragment the coordination of parole by the Parole Board. Secondly, it would involve the chief executive in a quasi-judicial function, which is in conflict with the role of the chief executive as a gaoler. Thirdly, it creates a conflict of interest for the chief executive, given the challenges of bed management in a chronically overcrowded prison system. Fourthly, it promotes forum shopping amongst the Parole Board, the chief executive and the police. Fifthly, it provides unnecessarily extended periods of detention.

The Parole Board has indicated to the opposition that two working days for a review of a warrant issued by the chief executive would be sufficient, with the chief executive being required to report to the Parole Board within one working day of the issue of the warrant. In relation to police and arrests, the bill also proposes to give the police the power to arrest a parolee without a warrant if a person is suspected of breaching a parole condition, and if that person presents an imminent and serious risk to public safety.

A person detained under the bill provisions could be held for up to 12 hours before the Parole Board is notified. I stress to the council that the police already have the power under section 75 of the Summary Offences Act to:

...without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.

The police also have a range of public disorder provisions available to them. I am advised by the head of the Parole Board and independent lawyers that they cannot conceive of a situation where a person represents an imminent and serious risk to public safety and would not be able to be arrested under current police powers without the need to access parole information or to reference a breach in parole conditions.

The proposed police involvement has all the detriments of the proposed chief executive involvement but also puts police at significant risk of accusations of false imprisonment. In saying 'accusations', it goes without saying that false imprisonment can involve significant civil liability if proven. The opposition appreciates that the current process can and should be made more efficient; on that, the government and the opposition agrees. But our amendment proposes what we believe is a more reasonable measured response and one which maintains the integrity of the parole system under the Parole Board.

Our amendment proposes that the chief executive or the police be able to apply to a magistrate for a warrant to arrest a parolee when the Presiding Member and the Deputy Presiding Member are not available, where the chief executive or the police needing to provide a report to the Parole Board within one working day, with the Parole Board having two working days to respond. As members know, magistrates are readily available.

We understand from the Parole Board that the Parole Board is readily available, but we appreciate that from time to time it is not possible to access appropriate members of the Parole Board and believe that this access to a magistrate as an alternative is a much better way of dealing with the issues rather than the rather cumbersome proposals in relation to the chief executive and the police. I commend the amendment to the committee.

The Hon. G.E. GAGO: The government opposes this amendment. The honourable member is quite right: this is one of the most serious changes to this bill that this chamber has dealt with. I cannot express strongly enough how much the government opposes this and is concerned about the prospect of the honourable member's amendment gaining support. It is felt that including the chief executive to be able to issue a warrant is sufficient for warrant-issuing purposes. The bill provides for the arrest of a parolee by a police officer when there is a breach of parole conditions and the parolee is presenting a risk to public safety. The Commissioner of Police requested this power, and the community has a reasonable expectation that the police should be able to intervene to maintain safety and to defuse dangerous situations before they escalate.

The government appreciates very much that the honourable member has a differing view about this, but there are safeguards within the bill that we believe more than adequately ensure the Parole Board has a timely review of any such arrest under the new proposed section. Therefore, the government opposes this amendment and strongly urges honourable members to do the same.

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 50 to 57 passed.

Clause 58.

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

Page 30, line 30 to page 31, line 6 [clause 58(3) and (4)]—Delete subclauses (3) and (4)

We regard this clause as fundamentally unnecessary now; we will not call it consequential, but it is certainly related to the amendment that was just supported. The bill proposes to compel the Parole Board to notify the Commissioner of Police of the place of residence of a parolee and the conditions to which the release on parole is subject. We believe this provision would only be necessary if the new breaching arrangements had been in place. The bill's proposal is not supported by the Parole Board or the ALRM, and the opposition amendment removes it.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The community has a reasonable expectation that police, correctional services, other government agencies and NGOs work together to keep our community safe and help parolees stay out of prison. It makes sense that police should be notified of parolees' approved addresses and conditions of parole in order to provide proper management of parolees in the community.

A good example might be a parolee who is subject to a condition that prohibits him from, for instance, being on licensed premises. Alcohol may have been a significant contribution to their previous offending. If police were aware of the condition immediate notification to the Department for Correctional Services and the Parole Board could be undertaken to enable appropriate, timely action.

The sharing of information is intended to enhance the monitoring and supervision of parolees in the community. Without this provision other key reforms in this legislation, including improvements to the issuing of warrants, the enhancement of police powers and the strengthening of the role of the Parole Board are, quite simply, diminished. The member's proposed amendment to remove the provisions in the bill are therefore strongly opposed.

The Hon. S.G. WADE: I appreciate that the minister may need to edit her notes, but the diminution of the warrant provisions is hardly a good argument to maintain this provision, considering we have already deleted the warrant provisions.

The Hon. T.A. FRANKS: I indicate that the Greens will not support the Wade amendment.

Amendment negatived; clause passed.

Clause 59.

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

Page 31, after line 19 [clause 59, inserted section 85CA]—After subsection (1) insert:

(1a) However, a Chief Executive is not required to disclose any such personal information unless the Chief Executive believes on the balance of probabilities that the information is correct.

Clause 59 of the bill compels the chief executives responsible for the administration of the Health Care Act 2008 and the Mental Health Act 2009 to disclose 'personal information about a prisoner as is reasonably required for the treatment, care or rehabilitation of the prisoner.' However, personal information is defined as being information or opinion whether true or not. The ALRM has raised the issue that the definition in the section should only allow truthful information to be provided; we need to have checks and balances in place.

The opposition supports that logic, and our amendment reflects that view. So the amendment would provide that prisoner information could only be disclosed between chief executives where the chief executive believes, on the balance of probabilities, that the information provided is true. It is not requiring the chief executives to go to any great onerous burden to establish the truth, but just not be in the business of transferring information which they believe is untrue. We do not believe that is good public administration; it is certainly not good health care. We believe that this provision should be amended.

The Hon. G.E. GAGO: Based on very good advice from parliamentary counsel is the simple answer. The government rises to oppose this amendment based on very sound advice. The wording that the honourable member proposes is based entirely on the associated health legislation—section 93(6) of the Health Care Act 2008, and section 106(5) of the Mental Health Act 2009—and should remain as drafted. As I said, this was defeated in the lower house based on sound advice from parliamentary counsel. Their view is that it has to remain drafted as is, and we are adhering to their advice.

The Hon. S.G. WADE: I am bemused, because parliamentary counsel certainly did not give us that advice in drafting our amendments.

The Hon. G.E. Gago: Pop over and—

The Hon. S.G. WADE: I am happy to do that. If the Chair is agreeable, I am happy to consult.

The CHAIR: While you are doing that, I will ask the Hon. Ms Franks to make a contribution. You can whip over there and ask.

The Hon. T.A. FRANKS: The Greens will not be supporting this amendment. If the chief executive does not believe the information to be truthful or accurate, the chief executive would indicate that when the chief executive conveyed the information.

The Hon. D.G.E. HOOD: I am of a different view. I am inclined to support the amendment. Again, just on a brief reading of the amendment, it says plainly, 'However, a Chief Executive is not required'—being the crucial words, I think—'to disclose any such personal information unless the Chief Executive believes on the balance of probabilities that the information is correct.' I think that is only going to add some certainty to the decision-making. I understand the Hon. Mr Wade is going to consult, so I will reserve our final position until he has done that but, on the balance of probabilities, I believe it is worth supporting.

The Hon. A. BRESSINGTON: Maybe the minister can clarify this for me: when we are talking about the chief executive passing on information that may or may not be true or believed to be true—whatever it is—that could be someone claiming to have a mental illness. The chief executive may think the person does not have a mental illness, but it is not up to him to be able to diagnose that sort of thing, so he would still need to put that in his report that these are the signs and symptoms and the claims that are being made. Is that where we are going with this?

The CHAIR: Is the Hon. Mr Wade going to consult?

The Hon. S.G. WADE: I have no intention of leaving the discussion the chamber is having, and I would interpose with a comment that the Hon. Ann Bressington has made in that I think one of the real risks with this proposal—and what the intent seems to me—is that the Department for Correctional Services is trying to get access to a fuller set of information so that it can make its own judgement.

With all due respect to the Prison Health Service, which supports the Department for Correctional Services, I would have more confidence in Health SA and the mental health services than feeling that DCS can second-guess the judgement of, if you like, the original healthcare provider as to the truth or otherwise of the information. I believe that we should not be forcing medical practitioners to provide information that they do not believe is true and is helpful for the diagnosis and the treatment of the person.

Parliamentary counsel has highlighted that it might be an onerous duty to put a balance of probabilities requirement on the person providing the information, so the government has agreed that the opposition will consult parliamentary counsel over the next 24 hours to explore the possibility of the chief executive not being required to provide information which they consider is not true, in other words, remove the balance of probabilities.

They are the sort of issues that we will discuss with parliamentary counsel and I invite any other members who have a view that they would like to feed into that discussion. I thank the minister for indicating that she would be happy for this to be dealt with as a recommittal matter as we already have one recommittal matter which we will need to deal with tomorrow.

The Hon. D.G.E. HOOD: I think that is a sensible outcome. I just want to clarify that we reserve our position. We are inclined to support the amendment but we reserve our final position until we have had clarification.

The Hon. A. BRESSINGTON: I actually want an answer to my question.

The Hon. G.E. GAGO: Yes, I am happy to answer your question. The issue for the government is, first, that we have a consistent provision throughout legislation and this is congruent with acts elsewhere; the other issue is that this is information that has been passed on by the healthcare executive to Correctional Services to help with the management and rehabilitation of a prisoner.

The issue is that we are saying that it is impossible. The opposition is saying words to the effect—and we are going to work on these words tomorrow—that health professionals should not hand over any information they know to be untrue or that they believe on the balance of probabilities is not true. What we are saying is that that is an impossible ask because there is no way that a chief executive is necessarily going to know what elements of that information are absolutely true, might probably be true, are likely to be untrue or absolutely not true. That is an impossible ask.

We are saying the onus (and what occurs in other legislation) is that they provide the advice that they have, the expertise that they have, but hand over all the relevant information to Correctional Services, and they should not have discretion to make judgements about information that they may well not have the expertise or be equipped to make judgements about. That is the thrust of it.

The opposition clearly has a very different view. Our view comes from a more cautionary approach, and that is, if in doubt then hand everything over as is. The opposition is saying no, you only hand over that information that is believed to be true, to one degree or another, and we will work on the actual words of that overnight.

The Hon. A. BRESSINGTON: What we are basically talking about here is the handing over of medical files, and the Hon. Stephen Wade's amendment would mean that the chief executive would have to pick through those files and make determinations of what information is handed over and what is not.

The Hon. G.E. Gago: Yes; whether it is likely to be true or untrue.

The Hon. A. BRESSINGTON: Okay.

The Hon. S.G. WADE: If I could speak on my own behalf, it is just that the minister is explaining the amendment that we have indicated that we do not intend to move, so that may be relatively helpful. Following the discussions, what we are currently suggesting—which is what I thought I had explained to the council briefly a minute ago—is that, to avoid the need for the chief executive to make an active judgement that everything is true on the balance of probabilities, at least not to require them to hand over information which they know not be true.

Members interjecting:

The Hon. S.G. WADE: No, I am sorry, I have the call. The minister is suggesting: how would the chief executive know? The fact of the matter is that the chief executive who has custody of the Health Care Act and the Mental Health Care Act has the mental health practitioners under them. That is where the advice comes from. It is not some bureaucrat who makes these judgements.

Members interjecting:

The PRESIDENT: Order! I thought the Hon. Ann Bressington described it pretty well. I understood that part.

The Hon. A. Bressington: Thank you.

The CHAIR: The Hon. Mr Wade has moved this amendment. We should deal with it and then recommit the clause tomorrow.

Progress reported; committee to sit again.

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