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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-12-01 Daily Xml
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Parliamentary Committees

Legislative Review Committee: Correctional Services (Miscellaneous) Variation Regulations 2021

The Hon. N.J. CENTOFANTI (16:02): I move:

That the report of the committee, on the Correctional Services ( Miscellaneous) Variation Regulations 2021, be noted.

The Correctional Services (Miscellaneous) Variation Regulations 2021 were made on 3 June 2021 and tabled in the parliament on 8 June 2021. The variation regulations inserted, amongst other matters, paragraph (ca) into regulation 8(1) of the Correctional Services Regulations 2016.

The effect of the new paragraph made 'tobacco and any product associated with smoking tobacco (including a cigarette paper, lighter or filter)' a prohibited item for the purposes of sections of the Correctional Services Act 1982, including section 51(1)(b) of that act. Section 51(1)(b) of the Correctional Services Act 1982 sets a maximum penalty of imprisonment for five years for delivering or introducing into a correctional institution or possessing in a correctional institution any items prescribed by the regulations for the purposes of that section without the permission of the chief executive.

The variation regulations also ensure the maximum penalty of five years' imprisonment extends to a person in possession of tobacco, or a tobacco associated product, in a correctional institution buffer zone without the permission of the chief executive or without lawful excuse. The committee raised concern that the maximum penalty applied to the prohibited item was excessive and disproportionate to offences under the act for the possession of prescription or controlled drugs.

The committee noted the potential for a prisoner, who is found in possession of tobacco or tobacco-related product, to be sentenced to a higher penalty than that for which they have been imprisoned. Likewise, a visitor who brings tobacco or a tobacco-related product into a correctional institution or within the correctional institution buffer zone may receive a longer term of imprisonment than the sentence of the person they are visiting.

Concerns about the maximum penalty were echoed in comments from the CEO of the South Australian Council of Social Service, Mr Ross Womersley, including concern that the variation regulations could exacerbate the already high incarceration rate, especially the Aboriginal incarceration rate. Mr Womersley suggested an emphasis on non-punitive responses would be more appropriate.

The committee received correspondence from the minister, which noted that the variation regulations support an election commitment of the Marshall Liberal government to make all department sites smoke-free. The minister informed the committee that the same penalty applies to all items in regulation 8 that are prescribed for the purposes of 49A(b) and 51(1)(b) of the act and that most of the items currently prescribed would be considered legal items in the community; for example, alcohol, mobile phones, cameras and data storage devices.

Whilst these items would usually create no cause for concern in the community, the minister argued that if introduced to a correctional environment the items pose a significant risk to the potential disruption to the security and good order of our prisons. Whilst the committee acknowledges the regulations prescribed other legal items, its concern with the application of the same maximum penalty rate to tobacco and tobacco-associated products as prescribed items that are illegal in the community, including illicit drugs such as heroin or methamphetamine.

The committee also raised concern with the consultation that occurred in relation to the variation regulation. The Department for Correctional Services advised the committee that consultation on the variation regulations occurred with South Australia Police and, regarding regulation 5 of the variation regulations, with the presiding member of the Parole Board. In the committee's view, consultation ought to have been extended to groups that represent prisoners.

The CEO of OARS Community Transitions, Mr Leigh Garrett, advised the committee that OARS were virtually never consulted about changes to the Correctional Services Act or regulations, stating, and I quote, 'Perhaps once or twice' in his 'nearly 28 years at OARS'. The committee tabled its report into the variation regulations to provide an opportunity for the parliament to consider the matters raised within it and for the minister to review the proportionality of maximum sentences applied to prohibited items set out in the regulations made in connection with sections 49A and 51 of the Correctional Services Act 1982.

I would like to thank the other members of the Legislative Review Committee for their work on this report: in the House of Assembly, Mr Peter Treloar MP, Mr Nick McBride MP and the Hon. Zoe Bettison MP and, in this place, the Hon. Connie Bonaros MLC and the Hon. Irene Pnevmatikos MLC. In addition, I would like to thank the committee secretary, Mr Matt Balfour, and the committee's research officer, Ms Maureen Affleck, for their assistance with the report.

Debate adjourned on motion of Hon. T.T. Ngo.

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