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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-12-01 Daily Xml
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Correctional Services (Accountability and Other Measures) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2020.)

The Hon. C. BONAROS (16:55): I rise to speak on the Correctional Services (Accountability and Other Measures) Amendment Bill 2020. The bill, as we know, seeks to introduce a raft of changes to the Correctional Services Act and the Public Sector Act and largely replicates the bill introduced by the former Labor government in 2017. It is a very substantial bill with a plethora of amendments to Corrections and the Parole Board, and the creation of new offences, amongst other things.

My office has requested copies of stakeholder submissions to ensure our support is warranted and the appropriate consultations have taken place in this bill. We have taken it upon ourselves to consult with experts in this area. I keep repeating myself in this way, but as has become a habit of the current government we have been provided with very little in terms of that stakeholder feedback.

Apparently, there has been broad consultation with the Commissioner for Victims' Rights, the Presiding Member of the Parole Board, the Legal Services Commission, the Australian Criminal Intelligence Commission, the Aboriginal Legal Rights Movement, the Public Service Association, Offenders Aid and Rehabilitation Services and the Law Society of South Australia. The Law Society, thankfully, does have a habit of publishing its submissions online, which is most helpful, but we have not been privy to many of those other submissions that I have just listed. We have had discussions with some of those bodies, because I think it is important that that takes place.

We are told the relevant aspects of the bill are fully supported by the Parole Board which, I guess, is somewhat comforting, but as a member of the crossbench I think it is not our role to rubberstamp bills of the government or indeed bills that are agreed to by the two major parties, especially when it does not land where it should, as is the case here.

This bill appears to be a rehash of Labor's bill, which predates the federal government's 2017 ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). I think it is only fair that I give credit to the opposition for introducing the bill that they did at the time that they did, prior to the signing of that convention, but by the same token I am disappointed that the current government did not see fit to then look at our requirements under that OPCAT convention and seek to amend this bill to ensure that it does take into account those additional obligations that we have signed up to. Article 1 of that instrument states:

The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

National preventative mechanisms (NPMs) are intended to complement the international inspectorate. Quite frankly, and despite assurances to the contrary, it is very clear from the feedback that we have received that the government has not gone anywhere near far enough to satisfy our present day obligations.

In his 2019 report on the implementation of the OPCAT Baseline Assessment of Australia's OPCAT Readiness, the Commonwealth Ombudsman, Michael Manthorpe, identified the Western Australian scheme as the model NPM for accountability, transparency and independence. The amendments that I am proposing seek to mirror that model to establish a more robust scheme in South Australia, a scheme which is more likely to withstand the inevitable international scrutiny.

The overwhelming feedback we have received from very eminent speakers and leaders in this space is that South Australia will become an absolute laughing stock in that regard if we do not make substantial changes to this piece of legislation. They have made it abundantly clear that the precedent has been set in terms of what that international scrutiny looks like, and if they were to come here and see us operating under this we would not even rate a mention in terms of our compliance with those obligations.

That is something I find quite alarming, and it is something I have certainly related to the government and the two ministers, the Attorney and the Minister for Police in this instance. It still leaves me puzzled in terms of some of the responses we have received.

What has also been made clear is that standalone legislation may be an even better long-term solution, a natural progression now found in some other Australian jurisdictions. What is clear is that without improvements to the bill experts are telling us that we are exposing ourselves to ridicule and embarrassment when international inspections by the Subcommittee on Prevention of Torture resume.

Those visits were intended to take place in March and April of this year, but the visit was postponed due to COVID-19. In some ways we have saved ourselves that ridicule for the time being, but if we go down the path the government is proposing then we know what is coming.

Dr Laura Grenfell, Associate Professor of Law at the University of Adelaide, has described parts of the proposed legislation as ill considered. In a recently published article Dr Grenfell wrote:

It is a disservice to South Australians that the government chose not to undertake any consultation with key stakeholders on this important mechanism…Instead of allowing the government to [push] through this half-baked scheme in the hope that problems can be corrected later, it is worth the upper house giving this mechanism some proper attention so the state does not introduce yet another inadequate scheme and then need to fund a string of inquiries as well as defend costly litigation.

I hope that all members who are of a mind not to support the amendments that go a long way to addressing the concerns that have been raised by experts like Dr Laura Grenfell, take that warning seriously. Again, we are dealing with the people who do this work every day. They are in this space and they know what the expectations are, and we are failing massively to meet those objectives.

In October I hosted a parliamentary briefing on the amendments and on the OPCAT generally, and we were really fortunate to have Dr Grenfell there, joined by the Western Australian Inspector of Custodial Services Eamon Ryan, and the coordinator of the Australia OPCAT Network Steven Caruana, in cohosting that briefing. They did so because they felt so passionately about the importance of getting this right in South Australia.

Mr Ryan was appointed Inspector of Custodial Services in May 2019 and has over 30 years of experience in senior roles involving integrity, risk, governance and accountability. The Australia OPCAT Network consists of over 90 individuals, non-government agencies, academics, statutory and oversight authorities who share a common objective to promote the implementation of OPCAT in Australia.

The hosts brought considerable experience and knowledge to the table. The minister himself, I am saddened to say, did not attend the briefing; in fact, despite requests I am yet to see the minister or hear from him on this matter, other than through his staff. For future reference, I suggest it would be advisable for the minister to make himself available on important matters such as these.

I do not file amendments, and SA-Best does not file amendments, for fun or to waste precious time. This is not a frivolous exercise. There are real consequences when legislation does not land where it should, not to mention missed opportunities. If this bill proceeds the way it is currently drafted, then not only will it be a missed opportunity but we will also face the prospect of international ridicule based on the convention we have signed up to and the inspectorate's role when they finally come here after delaying the last visit.

The proposed new scheme that replaces the current volunteer monitoring does have some strengths—it is not all bad news—such as the appointment of a diverse group of remunerated visitors, but the fact is that it does not go far enough to enshrine proper independence, both financial and functional independence.

A question has to be asked as to how the official visitor can be considered truly independent when the position, for one, is remunerated by the Department for Correctional Services. How can the role be truly independent when the department's resources are allocated by the minister? How can it be truly independent when the role is to have oversight over the chief executive of the very department that hands out remuneration allowances and expenses? The government clearly recognises the value in conferring jurisdiction on that tribunal for Parole Board allowances and expenses in this bill. It is somewhat perplexing why the government did not follow the same logic in remunerating the official visitor role.

The amendments that I will be moving seek to further bolster independence by extending the appointment term to a maximum of seven years and introducing new conflict of interest provisions. I note at this stage that the Hon. Tammy Franks has also heard the same concerns that we have heard and taken those on board and filed amendments in the same vein. The government's proposed scheme requires the official visitor to investigate prisoner complaints and this is consistent with the design of OPCAT as a proactive and preventative mechanism. To also perform the investigative function simply muddies the waters.

Handling individual complaints would bog down valuable resources when the object of the role is to consider systematic issues. It burdens the scheme with a reactive function for individual complaint handling, which by all accounts is already well handled in this jurisdiction by the Ombudsman. Whereas the Ombudsman may conduct a series of brief reactive inspections, an OPCAT-style visit is lengthy—often spanning seven to 10 days at an institution—more comprehensive and, as I said, proactive.

These are unannounced visits where this inspectorate body walks into one of these facilities and says, 'This is what we are here to do and this is the role that we are here to undertake.' The purpose of that is to ensure that we do not have those facilities trying to clean things up before the inspectorate gets there. It gives them access to real-time scenarios in those facilities.

The inspectorate is then well placed to make systemwide recommendations which should be directed to parliament. Reporting to parliament, of course, bolsters the scheme's independence and is consistent with the Western Australian model. Reporting to the minister, as the government scheme provides for, according to the experts we have spoken to, misses the mark of our OPCAT obligations. The international spotlight could be shone on our failures to provide free and unfettered access to information.

The government would have you believe it is satisfying this requirement. Putting in a written request is simply not the same thing. It undermines one of the key aims of the OPCAT mechanism, as I just said, to increase transparency. Its monitors should be able to arrive at a correctional institution and access all information, including databases, without notice to tidy up. This is an important part of this scheme and it is important to remember that the benefits of a fully independent scheme would also flow on to employees.

I filed another amendment which is seeking to establish new criminal offences for hindering, resisting or threatening an official visitor and this would reassure both employees and those in custody that retribution will not be tolerated. An improved scheme would also create a safer workplace. I understand in New Zealand, for example, complaints from staff about tie-down beds had the flow-on effect of increased government resourcing.

Western Australian inspector Eamon Ryan told attendees at the briefing that a 2019 review of routine strip searching considered five years of data and around 900,000 strip searches, with a finding that one in 10 staff members had been assaulted, yet only 0.06 per cent of searches resulted in positive findings. The identification of this type of systemic issue highlights how a truly independent inspectorate can ultimately contribute to a safer workplace. Again, I urge all members in this place to recognise the shortcomings of the government's proposed design before it costs us our reputation and, indeed, our money. As Associate Professor Grenfell wrote:

Overall there is likely to be savings to government if it can get the design right from the start. We can see this by looking north: the many inadequacies in the Northern Territory’s youth justice detention system has led to much harm, expensive inquiries and avoidable costly litigation. In June the High Court found in Brindaris v NT that four youth detainees in the Don Dale Youth Detention Centre had been subjected to the use of tear gas and were entitled to damages on the basis that it constituted battery. The case, one of a series, indicates that the relevant NT authorities had unlawfully used weapons on youth detainees. The Court held that corporal punishment is not a permitted 'use of force' under the NT youth justice legislation.

Such systemic problems in places of detention could be proactively identified via external monitoring by independent and qualified experts conducting regular visits with full powers of access. Leaving these systemic problems to be resourced by a Minister and their department which has other, sometimes competing, priorities can lead to personal harm, expensive litigation and potentially hefty damages. This year South Australia became the last Australian jurisdiction to end the use of spithoods in youth detention—it was slow to act even after a finding by the NT Supreme Court that placing a spithood on a youth detainee is an act of battery. Similarly, South Australia's Department of Correctional Services has been slow to adopt soft shackles for prisoners in hospital, even for women in childbirth. South Australia needs to devise smarter methods of dealing with problematic behaviour, by finding methods that do not constitute cruel, inhuman and degrading treatment—or lead to expensive litigation and payouts. Resourcing this external monitoring and ensuring it is independent and rigorous will pay off.

I read that because it is important in the context of what we are debating. This is the plea from those experts in this space who are saying to us, 'Please take note of the advice that we are giving you.' I certainly could not have said it any better myself.

I look forward to the support of this place in safeguarding the independence and the improved functioning of the official visitor scheme, improvements which will go a long way in ensuring the effective implementation of our international obligations. If we have no intention of complying with those obligations then we should never have signed up to the convention; that is the bottom line. With those words, I look forward to the next stages of the bill.

The Hon. T.A. FRANKS (17:12): I sought leave to conclude my comments. I have already spoken on the bill and I will speak briefly at clause 1.

The Hon. R.I. LUCAS (Treasurer) (17:12): I thank honourable members for their contributions to the second reading and look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I wish to add to my second reading contribution of some time ago now, because since that time my office, and I believe other crossbenchers and the government and the opposition, has had correspondence, particularly from Change the Record. I want to put on record my thanks to Sophie Trevitt, the Executive Officer of Change the Record. The correspondence from her and Cheryl Axleby, the Co-Chair of Change the Record, who is also the Chief Executive of the ALRM, has drawn attention to practical ways the crossbenchers, this council and the new Minister for Correctional Services can ensure that we do indeed have better adherence to the provisions of OPCAT and the requirements under our United Nations obligations.

Indeed, those will be the subject of some of the Greens' amendments to this bill. I particularly wanted to thank the new minister's office, the new minister himself and Dr Anna Finizio, his new adviser, for their cooperation in ensuring, hopefully, a bill that was reasonably progressive and productive and welcomed by the Greens to take that further step to ensure that those OPCAT requirements are adhered to by our state.

Progress reported; committee to sit again.

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