Crimes (Administration Of Sentences) Amendment Bill
The Hon. EDDIE OBEID (Minister for Mineral Resources, and Minister for Fisheries) [5.43 p.m.]: I move:
I seek leave to have the second reading speech incorporated in Hansard.
That this bill be now read a second time.
The Hon. JOHN JOBLING [5.43 p.m.]: The Opposition does not oppose the Crimes (Administration of Sentences) Amendment Bill, which introduces a number of potentially advantageous changes, such as the incorporation of new technology to enable the Department of Corrective Services to administer court-imposed sentences. The main purpose of the bill is to enable the Parole Board and the Serious Offenders Review Council to use audio and audiovisual link-ups in their proceedings. Obviously, the bill makes minor amendments to overcome technical problems in the administration of the Act.
The Crimes (Administration of Sentences) Act 1999 is the principal Act that governs how the Department of Corrective Services administers the sentences imposed upon offenders by the courts. The Act is kept under review in order to embrace new technologies and to facilitate the administration of justice.
This bill will amend the Crimes (Administration of Sentences) Act 1999 to extend the use of audio and audiovisual technology in the correctional system to proceedings before the Parole Board and the Serious Offenders Review Council. Audio and audiovisual facilities are already being used in relation to bail applications made by people who are remanded in full-time custody.
The principal function of the Parole Board is to determine whether an inmate with a sentence of more than three years, whose non-parole period is about to expire, may be released on parole. The Parole Board also determines applications for revocation of parole orders, periodic detention orders, and home detention orders, as well as carrying out other functions of a more minor nature.
An offender has the right to appear in person at a hearing of the Parole Board or to be represented at such a hearing. Currently, when an offender appearing before the board is a full-time inmate, the Department of Corrective Services must transport the inmate from a correctional centre to the place where the Parole Board is conducting its proceedings.
Such transport arrangements are expensive and, more importantly, might pose a security risk. That is why new clause 11A in Schedule 1 to the Act will provide that, where an audiovisual link is available, a person in custody must appear before the Parole Board by audiovisual link. The person may also give evidence or make submissions to the board by audiovisual link. However, when it is considered to be in the interests of justice to do so, the Parole Board may direct that a person appear physically before the Board.
New clause 11A also enables the Parole Board to direct that a person who is not in custody give evidence or make a submission by audio link or audiovisual link. For example, the Parole Board may direct that a probation and parole officer appear before the board by way of audiovisual link, rather than in person. However, if a party to the proceedings opposes such a direction, the Parole Board must not make the direction unless it is satisfied that it is in the interests of justice to do so.
In order to ensure that a person is not disadvantaged in any way when audiovisual links are used in proceedings before the Parole Board, new clause 11A provides that facilities are to be made available for private communication between the person who is the subject of the proceedings and the person's representative in the proceedings.
The principal function of the Serious Offenders Review Council is to provide advice and make recommendations to the Commissioner of Corrective Services on various matters—particularly in relation to the management of serious offenders. The Review Council may also review segregated custody directions and protective custody directions. When such matters are being considered, an inmate may be required to appear in person before the Review Council before the Council prepares advice or recommendations for the Commissioner. In line with the provisions I have just outlined, a new clause 11A in Schedule 2 to the Act will extend the use of audio links and audiovisual links into proceedings before the Serious Offenders Review Council.
I turn now to the other changes contained in the bill.
The Corrections Health Service has advised that, as section 236A (c) of the Crimes (Administration of Sentences) Act 1999 uses the term an infectious disease, in order to be consistent, sections 23 (b) and 91 (2) of the Act should also use the term. Therefore, the Bill deletes the words "a contagious or" from sections 23 (b) and 91 (2) of the Act.
A breach of discipline within the correctional system may be categorised as either a major or a minor offence. For example, behaviour that is considered to be a major correctional centre offence includes possession or administration of a drug and participating in a riot; while behaviour that is considered to be a minor correctional centre offence includes failure to clean yards or failure to attend musters.
Section 26 of the repealed Correctional Centres Act 1952 imposed an obligation on the governor of a correctional centre to refer to a Visiting Justice any charge that was not a minor correctional centre offence. It also gave the governor discretion to refer to a Visiting Justice a minor correctional centre offence of a serious nature. In contrast, section 54 (1) of the Crimes (Administration of Sentences) Act 1999 gives a governor the discretion to decide whether major or minor offences should be referred to a Visiting Justice for hearing and determination. New section 54 (1) will conform to the repealed section 26, ensuring that a governor must refer major offences, and minor offences of a serious nature, to a Visiting Justice.
Section 79 (v) of the Crimes (Administration of Sentences) Act 1999 provides the power to make regulations in relation to drug and alcohol testing. The regulation-making power is to be clarified under section 79 (v1) of the Act to ensure that a certificate that relates to the results of drug and/or alcohol analyses may be accepted as prima facie evidence in proceedings against an inmate who is charged with a correctional centre offence.
The Crimes (Administration of Sentences) Act 1999 provides that an application may be made to have a community service order revoked if an offender fails to meet his or her obligations under the community service order without reasonable excuse. Courts have determined that, even though an application to have a community service order revoked has been submitted in accordance with the requirements of the Act, the application must be dismissed if it comes before the court after the relevant maximum period of the community service order has expired. The adoption of this approach by the courts means that it is possible for offenders who have failed to comply with the terms of their community service orders to escape sanction. In order to avoid this outcome, new section 115 (2B) will provide that a community service order will be taken to be in force whether or not the relevant maximum period has expired.
Section 173 (1) of the Crimes (Administration of Sentences) Act 1999 provides that, when a periodic detention order, a home detention order or a parole order has been revoked, the Parole Board must arrange for a revocation notice to be served on the offender as soon as practicable. In order to ensure that offenders who breach such orders are dealt with quickly, it is usual for the Parole Board to issue a warrant for the arrest of the offender and, when he or she is in a correctional centre serving the remainder of their sentence, to issue the revocation notice. A new section 173 (1) will remove any uncertainty about the period covered by the term "as soon as practicable". The section will provide that the Parole Board must arrange for a revocation notice to be served on the offender either: as soon as practicable after the relevant order has been revoked or as soon as practicable after the warrant for the offender's arrest has been executed.
The Commissioner of Corrective Services or a governor of a correctional centre may direct that an inmate be held in segregated custody if the inmate poses a threat to the personal safety of another person, or to the security or the good order of the correctional centre.
Similarly, an inmate may be held in protective custody if their personal safety is likely to be jeopardised if they are allowed to associate with other inmates. An inmate may apply to the Serious Offenders Review Council for a review of a segregated custody direction or a protective custody direction. In order to ensure that such a review is carried out quickly, a new subsection (3) is to be inserted into section 197. The new provision allows the Review Council to delegate certain judicial functions—that do not require the participation of non-judicial members—to the Chairperson of the Review Council or a judicial member. This will ensure that reviews of segregated and protective custody directions can be conducted without delay.
Part 10 of the Crimes (Administration of Sentences) Act 1999 provides for the position of Inspector-General of Corrective Services. The Inspector-General has an extensive range of functions that includes: investigating the operations of the Department of Corrective Services and the conduct of the Department's officers; investigating and attempting to resolve complaints relating to matters within the Department's administration; training Official Visitors; and monitoring and auditing contracts between the Department and private contractors.
The Parole Board and the Serious Offenders Review Council are independent statutory bodies under the Crimes (Administration of Sentences) Act 1999 and, as such, each publishes a separate annual report.
Although the Inspector-General of Corrective Services is a statutory office, the Inspector-General is currently required to include his annual report with that of the Department of Corrective Services. New subsections in section 220 of the Act will bring the reporting requirements of the Inspector-General into line with those of the Parole Board and the Serious Offenders Review Council. In future, the Inspector-General will publish a separate annual report.
Sections 10 (2) and 11 (3) of the Crimes (Administration of Sentences) Act 1999 respectively confer upon the governor of a correctional centre some of the Commissioner's functions in relation to the segregated custody of inmates and the protective custody of inmates. A new subsection (4) is being inserted in section 232 of the Act to clarify that the Commissioner may delegate his functions to other persons.
Finally, when officers of the Department of Corrective Services are performing court security and escort functions across the State, they are required to prevent the escape of inmates, and to maintain the security, good order and discipline of people in their custody. However, there have been times when correctional officers have been called upon to assist in restraining people in the lawful custody of police or Juvenile Justice officers. In such situations, correctional officers should be viewed as acting within the scope of their duties. Section 252A is being inserted into the Act to provide correctional officers with a clear statutory power to provide such assistance to a police officer or a Juvenile Justice officer when asked to do so. It will provide certainty and protection for workers who are simply—and appropriately—carrying out their jobs.
I commend the bill to the House.
The bill amends section 54 of the Crimes (Administration of Sentences) Act 1999 to require the governor of a correctional centre to refer charges of alleged breaches of major correctional centre offences and alleged serious breaches of minor correctional centre offences to a visiting justice or a magistrate, as the case may be. Although the governor currently has sole discretion, it could be argued that such referral could reduce and restrict the discretion of the governor. It could be argued further that governors should retain such discretion because they are the managers and operators of the correctional centres. However, the amendments, if agreed to, will provide greater consistency.
New section 252A will enable a correctional officer, if requested by a police officer or an officer of the Department of Juvenile Justice, to provide assistance to restrain, convey or detain any person in lawful custody. The bill clarifies the regulations pertaining to the admission into evidence of certificates in proceedings against inmates in relation to alcohol or illicit drug charges. These provisions are desirable. The bill will amend section 115 of the Crimes (Administration of Sentences) Act to ensure that when the court sets a date for hearing of an application for revocation of a community service order after the order has expired the court must hear the application expeditiously. The amendment is reasonable, and will clarify the argument by certain courts that such an application cannot be heard for various reasons.
The bill will amend section 173 of the Act to enable the Parole Board, when revoking an offender's periodic detention order, home detention order or community service order and issuing a warrant for the offender's apprehension, to delay giving notice of revocation to the offender until the warrant has been executed. New subsections (2) and (3) of section 220 provide that the annual report of the Inspector-General of Corrective Services will be a separate report and not included as a line item or a small annotation in the annual report of the Department of Corrective Services. Clearly, people reading the report will have those matters drawn to their attention.
Currently, when an offender who is a full-time inmate appears before the board the Department of Corrective Services must transport that inmate from a correctional centre to wherever the Parole Board is conducting its proceedings. Such transportation is expensive, and involves a potential security risk. As I said, the Act is to be amended to enable the Parole Board and the Serious Offenders Review Council to use audio and audiovisual link. The use of such equipment will, in most cases, overcome the necessity for an inmate to appear in person before either the Parole Board or the Serious Offenders Review Council. However, there are some exceptions to this procedure.
Whilst the Opposition accepts that there are arguments for and against serious offenders not appearing in person before either tribunal, it believes that the relatives of the victims have certain rights in such cases. On previous occasions they have expressed concern that an offender is not obliged to appear in person, and they do not have the right to express their views prior to the offender's possible release. Some relatives have expressed the view that a skilful offender might be able to put a more compelling case to the board or the council by way of audio or audiovisual link than might be the case if that offender were to appear in person. To that end the Opposition takes the view that serious and violent offenders should not be released unless they have appeared in person before either the Parole Board or the Serious Offenders Review Council. With those few comments, the Opposition does not oppose the bill.
Reverend the Hon. FRED NILE [5.52 p.m.]: The Christian Democratic Party supports the Crimes (Administration of Sentences) Amendment Bill, which provides for the introduction of audio and audiovisual links in proceedings before the Parole Board and the Serious Offenders Review Council. We believe that the use of this modern technology is important and will only improve the operation of the Parole Board. We support the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.53 p.m.]: This bill contains various amendments relating to the use of audio and audiovisual links in proceedings before the Parole Board and the Serious Offenders Review Council. Among other things the bill implements the revocation of periodic and home detention orders, and the referral of correctional centre offences to a magistrate. It will also amend section 23 of the Act, which outlines the circumstances in which a governor can transfer a prisoner. The amendment will remove the provision that an inmate cannot be transferred if there is an outbreak or threat of contagious disease. Under this amendment, inmates can be moved if there is an outbreak of infectious disease.
A similar provision applies in respect of an offender in periodic detention or serving out an order. Item  of schedule 1 to the bill will amend section 23 of the Act to provide that an offender can take leave of absence if the commissioner is of the opinion that the inmate suffers a disease that may place his or her safety or the health and safety of others at risk. Item  will amend section 54 to remove the governor's discretion in referring an inmate's breach in respect of offence to a visiting justice. This may give inmates an opportunity to have their cases heard by an independent body, instead of being subject to the possible vindictiveness of a guard or the governor of the gaol. Item  will amend the regulation section of the Act to provide regulation-making powers in relation to the taking of blood samples from inmates for drug and alcohol consumption, and their use as evidence in proceedings.
Item  will amend section 173 to provide that the Parole Board must serve a revocation notice on an offender as soon as practicable if the offender's parole, or periodic or home detention order, has been revoked. Item  of schedule 1 will amend section 220 of the Act to require the inspector-general to furnish annual reports for tabling in both Houses of Parliament. Item  will insert a new section 252A in to the Act, which will provide that a correctional officer may, if requested, assist special constables in the transportation and restraint of people in custody. The amendment is designed to address a loophole whereby, under the status quo, Corrective Services officers are not empowered by law to prevent prisoners from escaping while attending court hearings. Items  and  will insert new clauses in schedules 1 and 2 to the Act relating to the use of audio and audiovisual links in proceedings before the Parole Board and the Serious Offenders Review Council.
The Democrats believe that the provisions relating to the movement of prisoners and the use of audio and audiovisual links are indications that the State's gaols are so full that often, when an offender is moved for the purposes of a court hearing, someone has to be moved in the opposite direction. It is a little like the board game solitaire, where every hole in the board is full and if one peg is moved another peg has to be moved into the same hole. This is part of the problem with having too many prisoners in the State's gaols, an issue referred to on other occasions by the Australian Democrats. We do not have any objection per se to the use of audio and audiovisual links, provided the rights of prisoners are respected. We are, however, somewhat concerned that prisoners who may wish to appear in person may be intimidated because they feel that if they demand to appear in person it will cause inconvenience, raise the ire of those involved and prejudice their case. They are in a powerless position so far as stating their case is concerned.
Given the difficulty of moving people within a system that is so appallingly overcrowded, there will be pressure to use these audio and audiovisual links more and more often. We believe their use has to be monitored extremely closely. The proposed legislation envisages this happening only in relatively non-contentious cases, but the Democrats will be watching closely to ensure this does not become the normal course of events in all serious cases, with consequent prejudice to the rights of prisoners receiving a fair hearing. Although we do not oppose the legislation, we want our concerns put on the record.
The Hon. EDDIE OBEID (Minister for Mineral Resources, and Minister for Fisheries) [5.57 p.m.], in reply: I thank honourable members for their contributions and support, and commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.