HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-02 Daily Xml
Contents
Pdf Xml

Bills

Correctional Services (Accountability and Other Measures) Amendment Bill

Committee Stage

In committee.

(Continued from 1 December 2020.)

Clause 1 passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 5, lines 11 to 14 [clause 5, inserted section 3(2)(g)(ii)]—Delete:

in relation to regional transfers where the person will be 200km or further from the correctional institution they are being transferred from

This in effect gives better effect to recommendation 168 of the 1991 Royal Commission into Aboriginal Deaths in Custody, which states:

That Correctional Services effect the placement and transfer of Aboriginal prisoners according to the principle that, where possible, an Aboriginal prisoner should be placed in an institution as close as possible to the place of residence of his or her family. Where an Aboriginal prisoner is subject to a transfer to an institution further away from his or her family the prisoner should be given the right to appeal that decision.

By way of amendments in the House of Assembly, effect was given to this recommendation. However, the recommendation is modified by saying that in relation to a regional transfer: where the person will be 200 kilometres further from the correctional institution they are being transferred from. We do not think this gives proper effect to recommendation 168. Therefore, our amendment removes that 200-kilometre principle that is being placed in.

I would be interested, maybe, for the Treasurer on behalf of the government to let us know where the 200-kilometre figure came from. Is that part of a recommendation that we have not seen from the Royal Commission into Aboriginal Deaths in Custody? How is the 200-kilometre figure arrived at, and does that then depart further from that particular recommendation?

The Hon. R.I. LUCAS: I rise on behalf of the government to indicate the government will be opposing the member's amendments, and I will outline the reasons why. Firstly, the government acknowledges recommendation 168 of the Royal Commission into Aboriginal Deaths in Custody, which states, and I quote:

That Corrective Services effect the placement and transfer of Aboriginal prisoners according to the principle that, where possible, an Aboriginal prisoner should be placed in an institution as close as possible to the place of residence of his or her family. Where an Aboriginal prisoner is subject to a transfer to an institution further away from his or her family the prisoner should be given the right to appeal that decision.

The usual place of residence for much of the South Australian prisoner population and their families is within the bounds of metropolitan Adelaide. This is also true for the Aboriginal prisoner population. I note that for those Aboriginal prisoners from remote areas most South Australians prisons are located some distance away from country.

The government's provision in clause 5 as it stands acknowledges the fact that transferring an Aboriginal prisoner from one of the state's regional prisons to another correctional institution may result in an Aboriginal prisoner being transferred to an institution further away from his or her family. Accordingly, they are given the right to appeal such a decision.

The 200-kilometre provision, however, is important as it creates a radius between metropolitan correctional institutions, the Adelaide Remand Centre, Northfield precinct sites, Mobilong Prison and Cadell Training Centre, allowing for transfers between these sites without review. The Adelaide Remand Centre is the primary point of prisoner admission in South Australia. Following admission in most instances the first transfer from the Remand Centre is either the Yatala Labour Prison or to Mobilong Prison.

The frequency of transfers within the 200-kilometre radius is far greater when compared with transfers outside of that area. The removal of the 200-kilometre radius from this provision would unduly grind the prison system to a halt. The current provision ensures that a right of appeal exists for Aboriginal prisoners placed outside the metropolitan zone, while being practical from an operational perspective.

The opposition has failed to recognise that, for most prisoners, access to a placement at Mobilong Prison or Cadell Training Centre from another correctional facility within the 200-kilometre radius would be welcomed and would allow for positive progression in their case management and greater access to vocational education opportunities.

DCS is committed to successfully reducing the rate of Aboriginal prisoners returning to custody, in line with the 10by20 strategy and Closing the Gap. Aboriginal prisoners, therefore, must have access to rehabilitation programs, culturally appropriate support, education and employment to build skills, as well as access to lower security prisons, which may not be located near family or homelands.

Family connection is also essential to prisoner rehabilitation. All sites within the 200-kilometre radius are connected to Adelaide and serviced by regular public transport links, and visits to those sites would still be accessible for family members. I am also advised that both Cadell Training Centre and Mobilong Prison provide a bus service to prisoner families to assist with visitor access.

You may also be aware that as a result of the COVID-19 public health emergency, the department has needed to put in place virtual visit arrangements. These visits have been well received and have enhanced the capability of family connections. For the reasons now outlined, the government does not support this amendment.

The Hon. K.J. MAHER: Just so I am clear, the 200-kilometre radius includes metropolitan prisons and Cadell and Mobilong; is that correct?

The Hon. R.I. LUCAS: Yes.

The Hon. K.J. MAHER: I note that the Treasurer has changed or used the term 'metropolitan prisons' for the ones that the prisoners could be transferred to without having appeal rights, but then went on to talk about Cadell and Mobilong. Does that mean that a Ngarrindjeri person in Mobilong Prison whose entire family and support structures are in the Murray Bridge or Meningie area and who is proposed to be transferred from Mobilong to a metropolitan prison would have no rights of appeal under what the government is proposing; is that correct?

The Hon. R.I. LUCAS: Yes, that's accurate.

The Hon. T.A. FRANKS: For the sake of the record and the ability to count numbers, I note that the Greens will be supporting this amendment.

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

The Hon. C. BONAROS: For the record, I indicate that SA-Best will be supporting the amendment.

Amendment carried; clause as amended passed.

Clauses 6 to 8 passed.

Clause 9.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–2]—

Page 7, after line 33—Insert:

19A—Preliminary

For the purposes of this Division, a reference to a correctional institution includes a reference to—

(a) a vehicle (including a police vehicle)—

(i) on the grounds of a correctional institution; or

(ii) used to transport prisoners to or from correctional institutions; and

(b) a cell at a court.

This expands the definition of 'correctional institution' so that visitors can look into places such as police vehicles and court cells as well. I note more broadly—and I will speak to this just the once—that the Greens put a range of amendments forward and we did so in consultation with Change the Record. I draw members' attention to a piece of correspondence that we circulated yesterday, 1 February, from the executive officer of Change the Record, Sophie Trevitt, which reads:

Dear Members of the Legislative Council,

As you are aware, Change the Record has a strong interest in the Correctional Services Bill before the South Australian parliament.

We have been heartened to see the amendments put forward by SA Best and the SA Greens to strengthen the government's Correctional Services (Accountability and Other Measures) Amendment Bill 2020 (the Bill), and we are writing to lend our support to these amendments and to urge the government to support their passage through the Legislative Council.

The Bill is an important step forward to fulfilling every state and territory's obligations under OPCAT to prevent the torture and mistreatment of people in places of detention in South Australia, and around the country. It is our view that these amendments are essential in strengthening the independence, accountability and protections under the legislation. Without these amendments, it is our view that the Bill would not fulfill South Australia's obligations under OPCAT.

I note that Change the Record has had the opportunity to input into these amendments. I note that the Greens will be supporting our amendments, obviously, but also the SA-Best amendments.

The Hon. R.I. LUCAS: I am advised that this amendment seeks to amend the definition of 'correctional institution' to include vehicles. This was already implied in the government bill. As such, there are no objections to having this specific provision included. The government supports the amendment.

The Hon. C. BONAROS: For the record, we also support the amendment.

The Hon. K.J. MAHER: The opposition will be supporting the amendment. It might be worth for the ease of how we conduct this, because there are quite a lot of amendments that go to similar sorts of areas, to check with the mover of this amendment and the Hon. Ms Bonaros, are all the amendments as filed being moved by both SA-Best and the Greens?

The Hon. C. Bonaros interjecting:

The Hon. K.J. MAHER: I might indicate, for the ease of how we proceed, that the opposition will be supporting this amendment. We will be supporting [Franks-1] Nos 1 to 3. We will also be supporting [Bonaros-1] Nos 1 to 8. As we go through this, for the sake of ease, they are the amendments that the opposition will be supporting in this first tranche.

The ACTING CHAIR (Hon. D.G.E. Hood): I will call on you at each amendment as they come just to confirm that, though, the Hon. Mr Maher, if I can.

The Hon. K.J. Maher: But I just told you.

The ACTING CHAIR (Hon. D.G.E. Hood): Yes, in case I forget, that is all. There are quite a few.

Amendment carried.

The ACTING CHAIR (Hon. D.G.E. Hood): We have two amendments to clause 9, page 8, line 9. One is in the name of the Hon. Ms Bonaros and one is in the name of the Treasurer. I will call on the Hon. Ms Bonaros first and then I will call the Treasurer.

The Hon. C. BONAROS: I will not be moving the amendment and will instead support the amendment that has been proposed by the Treasurer, so I apologise for that to the Leader of the Opposition. But the government has indicated, if you like, a halfway point between what we were proposing and what they were initially proposing. I think it is fair to say that we accept the government's proposition to change the appointment time from three to five years, as opposed to three to seven years which is what SA-Best has proposed. For the record, we will not be moving ours but we will be supporting the government's amendment in place of ours.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–2]—

Page 8, line 9 [clause 9, inserted section 20(4)]—Delete '3 years' and substitute:

5 years

This amendment extends the tenure of the official visitor to a term not exceeding five years. This is consistent with the tenure of an official visitor under the Youth Justice Administration Act 2016. The government notes that the Hon. Ms Bonaros had filed an amendment seeking to extend the tenure to seven years. This would be inconsistent with the youth justice scheme and is not supported by the government. I think the Hon. Ms Bonaros has now indicated that she is not persisting with that.

There is nothing preventing an official visitor from being reappointed following the completion of their appointed term. It is considered that this amendment provides an appropriate tenure consistent with the youth justice official visitor scheme as well as our obligations under the Optional Protocol to the Convention against Torture (OPCAT).

The Hon. T.A. FRANKS: The Greens will be supporting the Treasurer's amendment and we thank the government for working so cooperatively with the crossbenchers.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–1]—

Page 9, line 1 [clause 9, inserted section 20A(2)(b)]—After 'direction' insert:

in relation to the exercise of powers or functions under this Division by an official visitor, including

The reason we are moving this amendment is because it would strengthen the independence of the official visitor. Many of the amendments that we are moving are aimed at doing just that. Currently, section 20A states:

This provision does not derogate from any express power of the Minister or CE under this Act.

In this note that has been added, concerns have been raised that it has the potential to undermine safeguards put in place by section 20A, so this amendment seeks to clarify or strengthen those provisions in relation to independence and make it clear what we are intending to do.

The Hon. R.I. LUCAS: The government supports the amendment. The bill already provides in explicit terms that the official visitor must act independently and neither the chief executive nor the minister can exercise any control over how the official visitor exercises its powers and functions. The proposed amendment is concerned about the details. Whilst it only adds a little by way of substance to the provision, the government nevertheless is prepared to support the amendment.

Amendment carried.

The ACTING CHAIR (Hon. D.G.E. Hood): Next, we have a series of identical amendments also to clause 9, one in the name of the Hon. Ms Franks and one in the name of the Hon. Ms Bonaros. For the Hon. Ms Franks, it is amendment No. 1 [Franks-1], and for the Hon. Ms Bonaros it is amendment No. 3 [Bonaros-1]. I will call the Hon. Ms Franks first.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 9, line 8 [clause 9, inserted section 20B]—Delete 'CE' and substitute 'Remuneration Tribunal'

This amendment removes funding responsibility from the department so that official visitors are independent from the department and the minister. Funding and resourcing decisions would be therefore undertaken by the Remuneration Tribunal. This is in compliance with OPCAT requirements.

The Hon. R.I. LUCAS: I am advised this amendment confers jurisdiction to set the official visitors on the remuneration board, and the government supports the amendment.

The Hon. C. BONAROS: We support the amendment, given that we have an identical one. It goes towards establishing the independence of the official visitor scheme, and that is what we are trying to achieve.

The ACTING CHAIR (Hon. D.G.E. Hood): Am I to take it that you will not proceed with your amendment then?

The Hon. C. BONAROS: I will not be proceeding with my amendment.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Amendment No 2 [Franks–1]—

Page 9, after line 8 [clause 9, inserted section 20B]—Insert:

(2) Jurisdiction is, by force of this section, conferred on the Remuneration Tribunal to make a determination or perform any other functions required by this section.

This amendment removes the funding responsibility from the department so that official visitors are independent from the department and again ensures that resourcing decisions are made by the Remuneration Tribunal. So it does a very similar thing and I would take it as a consequential amendment.

The ACTING CHAIR (Hon. D.G.E. Hood): For the clarity of the chamber, there is an identical amendment in the name of the Hon. Ms Bonaros. The reason that we called the Hon. Ms Franks is because her amendment was filed first.

The Hon. R.I. LUCAS: I am advised that we support the amendment.

The Hon. C. BONAROS: I indicate that we will not be moving our amendment but we will be supporting this amendment.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Amendment No 3 [Franks–1]—

Page 9, line 10 [clause 9, inserted section 20C]—Delete 'The Minister must provide official visitors' and substitute 'Official visitors must be provided'

The Hon. R.I. LUCAS: The government supports the amendment.

The Hon. C. BONAROS: SA-Best supports the amendment.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 5 [Bonaros–1]—

Page 9, line 16 [clause 9, inserted section 20D(1)(a)]—Delete 'and investigate'

The amendment seeks to delete the words 'and investigate'. It seeks to remedy the problem that the new proposed scheme requires the official visitor to investigate prisoner complaints. In doing so, the present scheme pays insufficient attention to the careful design of the OPCAT system as a proactive and preventative mechanism whereby the official visitor conducts regular and comprehensive visits, both announced and unannounced.

The SA proposed mechanism muddles this careful design by requiring that the official visitors double up effectively on existing functions. A complaint handling role is a reactive role and is currently well covered by the Ombudsman SA. What we are trying to do here is proactive and preventative. The amendment aims to ensure that functions of monitoring and complaint handling are not mixed.

It is true that the Ombudsman may conduct a brief inspection of a correction institution to follow up on a complaint of ill treatment, but this contrasts with a lengthy, comprehensive and proactive OPCAT-style visit in order to make institutions and system-wide recommendations to parliament as to how changes to policies and laws could prevent or reduce the risk of cruel, inhumane and degrading treatment or torture.

Unless amended, the new scheme will burden official visitors with too many functions, particularly those already covered by existing bodies, such as the Ombudsman, and it will dilute the role of the official officer and impede their ability to monitor effectively our correctional institutions. These are not my views, these are the views of very eminent experts in this space, who work in the OPCAT space and who have provided this feedback to us and indicated that one of the major faults they see in the bill that has been presented to us is this effectively muddying the waters between two roles. It is abundantly clear from those eminent experts that the proactive and preventative mechanism should be completely separate to the reactive role, which is that currently fulfilled by the Ombudsman.

The Hon. R.I. LUCAS: The government does not support this amendment as it does seek to water down the powers of an official visitor, who may wish to investigate a complaint, particularly where it may give rise to systemic issues, and it is for those reasons we oppose the amendment.

The Hon. K.J. MAHER: We support the amendment.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 6 [Bonaros–1]—

Page 9, after line 37 [clause 9, inserted section 20D]—After subsection (1) insert:

(1a) An official visitor has power to do all things necessary or convenient to be done for or in connection with the performance of the official visitor's functions and may have free and unfettered access to a correctional institution in respect of which the visitor is appointed, prisoners in the correctional institution and vehicles used to transport those prisoners (including prisoners in, and persons whose work is concerned with, such vehicles).

(1b) It is not necessary for any person to be given notice of an official visitor's intention to perform any of their functions.

(1c) In connection with subsection (1)(a), an official visitor may refer a complaint concerning a particular individual to the Ombudsman or any other government agency having a function to deal with the matter but it is not a function of the official visitor to deal with the matter other than—

(a) to inform the complainant of the role of the official visitor; and

(b) to deal with the matter in the context of an inspection of a correctional institution.

The main part of this amendment seeks to ensure that the official inspector has all the powers required under OPCAT. It mirrors what exists in the WA scheme. Under the present scheme in the bill the official visitor does not have adequate powers to fulfil their monitoring function. The bill's proposed scheme sets out the functions of the official visitors, but it does not explicitly articulate their powers.

Under OPCAT it is expected that visitors' monitors have the power to access all places of detention on an unannounced and immediate basis if they wish. The second part of this amendment seeks to clarify that the official visitor has no role in receiving, investigating or resolving prisoner complaints, which is the role again of the Ombudsman.

The government has indicated in discussions with me that it thinks this amendment is overly prescriptive and that the Ombudsman can still investigate now. I again remind the government that these amendments were drafted in consultation with experts in this place, people who work in this space already who know what our obligations are under OPCAT schemes and know what we should expect when those visits actually start here. Based on the views of those experts, they do not think it is overly prescriptive. They think it is entirely necessary and, for those reasons, I commend the amendment to the chamber.

The Hon. R.I. LUCAS: The government again opposes this amendment. The advice provided by the Attorney-General's Department, which is the lead department in relation to the OPCAT, is that this amendment is too prescriptive and may in operation limit the powers and functions of official visitors.

They consider the amendment to be inconsistent with the principals of the OPCAT. It is already explicit in the bill that the chief executive and the minister cannot control how an official visitor exercises his or her functions and powers, nor is there a requirement for notice of an inspection to be provided. This amendment is also at odds with the amendment of the Hon. Ms Franks [Franks-2] which provides that official visitors may inspect any correctional facility, not just the facility they were appointed to. The Ombudsman already undertakes investigations in relation to prisoners and this will remain the case. There is nothing prohibiting an official visitor from referring a matter to the Ombudsman under the current bill.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Amendment No 2 [Franks–2]—

Page 10, after line 12 [clause 9, inserted section 20D]—Insert:

(2a) Despite any other provision of this Division, an official visitor may conduct a visit to or inspection of any correctional institution (whether or not the official visitor is appointed in respect of the institution) if the official visitor considers it necessary to do so to investigate systemic issues relating to prisoners or the provision of correctional services.

This ensures that there is no requirement that the official visitor only visits or conducts inspections with respect to one correctional institution if they believe that visiting other institutions is actually necessary to explore any systemic issues. Currently, there are provisions that limit them to only one institution which we found quite confusing and bamboozling, and so this seeks to remedy that.

The Hon. R.I. LUCAS: I am advised that the government supports the amendment.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 7 [Bonaros–1]—

Page 10, lines 17 to 20 [clause 9, inserted section 20E(1)]—Delete subsection (1) and substitute:

(1) An official visitor may have free and unfettered access to information relevant to the exercise of the official visitor's functions in the possession of a government or non-government organisation that is involved in the provision of services relating to correctional institutions under this or any other Act.

The amendment seeks to ensure that the SA scheme is compliant with OPCAT. Under OPCAT it is expected that visitors and monitors have the power to access all databases on an unannounced and immediate basis if they wish. This means that they should be able to arrive at a correctional institution and, without delay, commence an inspection which includes all parts of the institution as well as its databases. That is, in effect, what we have signed up to under OPCAT.

Section 20E, entitled 'Provision of information to official visitors', is presently clumsily drafted in providing that the official visitor may by notice in writing require the provision of information from a government or non-government organisation. This indicates an impractical approach which would give correctional institutions time to tidy up their territory before an inspection of documents and/or an institution takes place. It is completely at odds with everything we have been discussing in terms of our obligations under an OPCAT scheme. It undermines one of the key aims of the OPCAT mechanism which is to increase transparency and reduce the cover-up culture which can thrive in our places of detention because they are out of public sight.

For those reasons, I remind members again that we have received advice on this. These are the amendments that stakeholders have asked us to move in this place to ensure that we are fully compliant with our obligations under OPCAT, and that is what this amendment intends to ensure.

The Hon. R.I. LUCAS: The government, I am advised, opposes the amendment. The bill, as it stands, compels a government or non-government body involved in the provision of correctional services to provide an official visitor with information they need to exercise the role and functions as required under the OPCAT.

We are advised by the Attorney-General's Department that they have concerns around potential breaches of confidentiality, noting the requirements under the Correctional Services Act as well as the ICAC act if this amendment were to pass. I am advised that the Department for Correctional Services sought advice from the former ICAC commissioner in relation to the drafting of this particular provision.

The Hon. C. BONAROS: In relation to the last point the Treasurer made, there is a subsequent amendment I had intended that would be consequential in nature, if you like, depending on the outcome of this one. It is intended to address precisely the sort of issue the Treasurer has just raised in relation to compliance with ICAC.

The CHAIR: I understand the Greens are supporting the amendment and I will just confirm the opposition's position, also supporting.

Amendment carried.

The Hon. C. BONAROS: I move:

Amendment No 8 [Bonaros–1]—

Page 11, lines 1 and 2 [clause 9, inserted section 20E(6)]—Delete 'a request cannot be made to an organisation under this section if compliance with the request' and substitute:

information or a document is not required to be provided or produced under this section if to do so

This is intended to ensure compliance with ICAC, and is consequential in nature.

The Hon. R.I. LUCAS: The government opposes this, as it is consequential on the previous amendment.

Amendment carried.

The CHAIR: We have two identical amendments, one in the name of the Hon. Ms Franks and the other in the name of the Hon. Ms Bonaros. Again, the Hon. Ms Franks moved hers first, so we will deal with that.

The Hon. T.A. FRANKS: I move:

Amendment No 4 [Franks–1]—

Page 11, line 14 [clause 9, inserted section 20G(1)]—Delete 'provide a report to the Minister' and substitute 'prepare a report'

This amendment ensures that official visitors must report to the parliament rather than the minister to ensure their independence.

The Hon. R.I. LUCAS: I am advised the government opposes the amendment. The provision, as it stands in the bill, requires the minister to table the annual report of the Official Visitor within six sitting days. The government reviewed this provision following its discussions with the Hon. Ms Franks and the Hon. Ms Bonaros and has filed its own amendment to ensure every report prepared by the Official Visitor is tabled before the parliament, and that the minister must report to the parliament as to action taken and response to recommendations made. This is consistent with current practice in relation to independent bodies such as the Coroner and the Ombudsman.

The Hon. K.J. MAHER: I was following where we are. This amendment is the [Franks-2] set, isn't it?

The CHAIR: Amendment No. 4 [Franks-1], clause 9, page 11, line 14.

The Hon. K.J. MAHER: I indicate that the opposition will not be supporting amendments Nos 4 to 6 [Franks-1]. As I indicated earlier, we will be supporting [Franks-1] amendments Nos 1 to 3 and [Bonaros-1] amendments Nos 1 to 8. We are not supporting [Franks-1] 4 to 6 nor [Bonaros-1] 9 to 11, but we will be supporting [Bonaros-1] amendment No. 12.

The Hon. T.A. FRANKS: To assist the government, we will also be supporting your amendment to this area.

The Hon. C. BONAROS: I will just clarify that we will also support the alternative amendment proposed by the Treasurer in relation to this, if he moves it.

The CHAIR: That is handy, but we will deal with what is before us first, and that is [Franks-1] amendment No. 1.

Amendment negatived.

The Hon. C. BONAROS: I will not be moving mine.

The CHAIR: Thank you. The Hon. Ms Bonaros's amendment is not going to be moved, so we will move on to the next amendment in order, which is amendment No. 5 [Franks-1], which is identical to amendment No. 10 [Bonaros-1]. Again, the Hon. Ms Franks filed hers first, so I call the Hon. Ms Franks.

The Hon. T.A. FRANKS: I move:

Amendment No 5 [Franks–1]—

Page 11, line 18 [clause 9, inserted section 20G(2)]—Delete 'provide a report to the Minister' and substitute 'prepare a report'

Again, this ensures that official visitors must report to the parliament rather than to the minister to ensure their independence.

The Hon. R.I. LUCAS: We are opposed to this particular amendment for the same reasons that were just given. I assume, if the Hon. Ms Bonaros and the Hon. Ms Franks are now supporting the government's position—

The Hon. T.A. Franks: We prefer ours.

The Hon. R.I. LUCAS: I beg your pardon.

The Hon. C. Bonaros: We prefer ours, but if they are not going to get up then we will take yours.

The Hon. R.I. LUCAS: So you are going to keep moving them?

The Hon. C. Bonaros: No, I have indicated I will not move mine.

The Hon. R.I. LUCAS: This amendment has been moved. We oppose it.

The CHAIR: And the opposition has indicated they oppose the amendment.

The Hon. K.J. MAHER: Yes.

Amendment negatived.

The Hon. T.A. FRANKS: I move:

Amendment No 3 [Franks–2]—

Page 11, after line 19 [clause 9, inserted section 20G]—Insert:

(2a) If an official visitor considers that the management of a correctional institution, or the care, treatment or control of prisoners at the correctional institution, is not in accordance with standards prescribed or adopted under the regulations, the official visitor must prepare a report on the matter and include in the report any recommendations directed at compliance with the standards.

The Hon. R.I. LUCAS: The government is opposing this amendment.

The Hon. C. BONAROS: I rise to indicate on behalf of SA-Best that we will be supporting the amendment. I think it is really important to point out here that, if we are serious about establishing an independent official visitor scheme, then it is also critical that we have the right reporting mechanisms in place. That goes to the heart of this amendment, and therefore we will be supporting it.

The CHAIR: Can I just get some clarity from the opposition, please? There are a lot of numbers flying around here. I just want to be clear if they are supporting or opposing this amendment.

The Hon. K.J. MAHER: For the sake of clarity, again, we support Ms Bonaros's amendments Nos 1 to 8. We do not support Ms Bonaros' amendments Nos 9 to 11, and not [Franks-1] amendments Nos 4 to 6.

The CHAIR: This is amendment No. 3 [Franks-2]. It is none of those.

The Hon. K.J. MAHER: Can I just check whether this is one where the government has a different scheme that goes to all this?

The Hon. C. Bonaros: No, this is saying that the visitor has to prepare a report.

The Hon. K.J. MAHER: We will be opposing that.

The committee divided on the amendment:

Ayes 4

Noes 16

Majority 12

AYES
Bonaros, C. Franks, T.A. (teller) Pangallo, F.
Parnell, M.C.
NOES
Bourke, E.S. Centofanti, N.J. Darley, J.A.
Hanson, J.E. Hood, D.G.E. Hunter, I.K.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Maher, K.J. Ngo, T.T. Pnevmatikos, I.
Ridgway, D.W. Scriven, C.M. Stephens, T.J.
Wade, S.G.

Amendment thus negatived.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 11, line 21 [clause 9, inserted section 20G(3)]—Delete 'subsection (2)' and substitute:

this section

Amendment No 2 [Treasurer–1]—

Page 11, after line 22 [clause 9, inserted section 20G]—After subsection (3) insert:

(4) If a report laid before Parliament under this section includes recommendations on any matter relating to the management of a correctional institution or for the purposes of improving the quality of care, treatment or control of prisoners, the Minister must, within 8 sitting days of the expiration of 6 months after the report was laid before Parliament, cause a report to be laid before each House of Parliament giving details of any action taken or proposed to be taken in consequence of those recommendations.

We have discussed this before.

The Hon. C. BONAROS: We support the amendments.

Amendments carried.

The Hon. C. BONAROS: I move:

Amendment No 12 [Bonaros–1]—

Page 11, after line 26 [clause 9, after inserted section 20H]—Insert:

20I—Offences

(1) A person must not hinder, resist or threaten an official visitor in the exercise of powers or functions under this Division.

Maximum penalty: $10,000.

(2) A person must not make a statement that the person knows to be false or misleading in a material particular to an official visitor in the provision of information under this Division.

Maximum penalty: $10,000.

(3) A person must not deliberately mislead or attempt to mislead an official visitor in relation to the exercise of powers or functions under this Division by the official visitor.

Maximum penalty: $10,000.

(4) A person must not—

(a) prejudice, or threaten to prejudice, the safety or career of; or

(b) intimidate or harass, or threaten to intimidate or harass; or

(c) do any act that is, or is likely to be, to the detriment of,

either of the following:

(d) another person because the other person has provided, is providing or will or may in the future provide information to an official visitor in the exercise of powers or functions under this Division;

(e) an official visitor in relation to the exercise of powers or functions under this Division by the official visitor.

20J—Conflict of interest

(1) An official visitor must inform the Minister in writing of any direct or indirect interest that the official visitor has or acquires that conflicts or may conflict with the official visitor's functions under this Division (including, for example, if the official visitor has been an officer or employee of the Department).

(2) An official visitor must comply with any written directions given by the Minister to resolve a conflict between the official visitor's functions and a direct or indirect interest.

This amendment deals with 20I, which deals with offences. It mirrors, in effect, what WA has in its scheme. It seeks to ensure, first, that the official visitor is not impeded in their monitoring function, including by threats, intimidation or false or misleading information, and that those persons who interact with the official visitor, be they prisoners or prison staff, do not face any form of retribution in the form of threats, intimidation, harassment and so forth. These are not far-fetched possibilities. The criminal offences will go some way in ensuring again the independence of the official visitor scheme and in reassuring both prisoners and prison staff that any acts of retribution will be addressed and addressed appropriately.

The Hon. R.I. LUCAS: The government opposes this particular amendment. The bill already provides a penalty of $5,000 for a person who refuses to provide information or produce a document that may be relevant to the official visitor's functions. There are also penalties within the bill and in other relevant legislation that would apply in such circumstances, e.g. the Public Sector Act or the ICAC Act, etc. It is noted that section 20I of the amendment does not have a penalty attached to it.

The CHAIR: The Hon. Ms Franks, do you wish to make some remarks now about your amendment to 20I in relation to conflict of interest? You are proceeding with that?

The Hon. T.A. FRANKS: Chair, I actually made an omnibus statement at the beginning in terms of the OPCAT requirements, and that was the suite of amendments. So in terms of ensuring we do not have conflicts of interest, we simply seek to do that with amendment No. 4 [Franks–2]. Are you asking me to move that officially?

The CHAIR: There is some clash between your amendment and that of the Hon. Ms Bonaros.

The Hon. C. BONAROS: I can clarify. The Hon. Tammy Franks has removed the conflict of interest provision into a separate amendment, whereas mine is one entire amendment. We are proposing that the Hon. Tammy Franks would move the conflict of interest amendment.

The CHAIR: We can put the part of your amendment, the Hon. Ms Bonaros, in relation to offences as a separate question. If the committee is happy to do that, then I think that is what we will do. Are there any other contributions? The Hon. Ms Bonaros.

The Hon. C. BONAROS: I assume that the Chair is suggesting that we move the offences part separately to the conflict of interest part and then deal with the conflict of interest component.

The Hon. R.I. LUCAS: My understanding of where the Chair is is that the Hon. Ms Bonaros's offences provision has been called. The government's position is that we are opposing that particular one. The separate issue of conflict of interest, which is a tail end of the Hon. Ms Bonaros's amendment, can be addressed—it is really in your hands—as a separate amendment from the Hon. Ms Bonaros's or as an amendment from the Hon. Ms Franks.

We are indicating our support, when it is moved, for the Hon. Ms Franks' amendment, which is the conflict of interest provision. We are in your hands as to how you move it, but at this stage, as we understand your position, you are moving that section of the Bonaros amendment which relates to offences, and we will address the issue of conflict of interest however you wish to do that.

The Hon. K.J. MAHER: As I understand how we are proceeding with this, we will be supporting both the Bonaros and the Franks amendments if it is the case, as I understand it, that the Bonaros amendment is being moved insofar as it relates to the offences, and the parts of the Bonaros amendment that cover conflicts of interest will not be moved but will be covered by the Franks amendment. That being the case, we will support both of those.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Amendment No 4 [Franks–2]—

Page 11, after line 26 [clause 9, after inserted section 20H]—Insert:

20I—Conflict of interest

(1) An official visitor must inform the Minister in writing of any direct or indirect interest that the official visitor has or acquires that conflicts or may conflict with the official visitor's functions under this Division (including, for example, if the official visitor has been an officer or employee of the Department or another public sector agency, or a member of a Minister's staff).

(2) An official visitor must take steps to resolve a conflict or possible conflict between a direct or indirect interest and the official visitor's functions in relation to a particular matter and, unless the conflict is resolved to the Minister's satisfaction, the official visitor is disqualified from acting in relation to the matter.

So it simply goes to the conflict of interest matter that seems to have widespread support.

The Hon. R.I. LUCAS: The government supports the amendment.

The Hon. C. BONAROS: We will be supporting this amendment.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Amendment No 6 [Franks–1]—

Page 11, lines 20 to 22 [clause 9, inserted section 20G(3)]—Delete subsection (3) and substitute:

(3) A copy of a report prepared under this section must be delivered to the President of the Legislative Council and the Speaker of the House of Assembly.

(4) The President of the Legislative Council and the Speaker of the House of Assembly must, on the first sitting day after receiving a report, lay it before their respective Houses.

(5) If a report laid before Parliament under this section includes recommendations on any matter relating to the management of a correctional institution or for the purposes of improving the quality of care, treatment or control of prisoners, the Minister must, within 8 sitting days of the expiration of 6 months after the report was laid before Parliament, cause a report to be laid before each House of Parliament giving details of any action taken or proposed to be taken in consequence of those recommendations.

This ensures that the official visitors report to the parliament rather than to the minister, to ensure their independence. It also ensures that the minister responds to those recommendations.

The Hon. R.I. LUCAS: I am advised that this is consequential on an earlier vote where the mass numbers of the government and the opposition opposed it, so we are opposing this particular amendment consistent with our previous vote.

The CHAIR: The Hon. Ms Bonaros also has a similar but shorter amendment in the same place in the bill, amendment No. 11 [Bonaros-1].

The Hon. T.A. FRANKS: Chair, if it helps, I am willing to withdraw my amendment, given we have actually covered the field elsewhere. I imagine it will be helpful for the process, so I seek leave to withdraw my amendment.

Leave granted; amendment withdrawn.

Clause as amended passed.

Remaining clauses (10 to 47), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT