Crimes (Administration of Sentences) Amendment Bill; Summary Offences Amendment (Places of Detention) Bill
CRIMES (ADMINISTRATION OF SENTENCES) AMENDMENT BILL
SUMMARY OFFENCES AMENDMENT (PLACES OF DETENTION) BILL
Page: 3016
In Committee
The CHAIRMAN: Order! The Committee will first consider the Crimes (Administration of Sentences) Amendment Bill.
Clauses 1 to 3 agreed to.
New clause 4
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.58 p.m.]: I move:
Page 2. Insert after line 10:
4 Monitoring of amendments by Ombudsman
(1) In this section:
the relevant provisions means:
(a) the provisions of the Crimes (Administration of Sentences) Act 1999 amended by this Act, and
(b) the provisions of the Summary Offences Act 1988 amended or inserted by the Summary Offences Amendment (Places of Detention) Act 2002.
(2) For the period of 2 years after the commencement of this section, the Ombudsman is to keep under scrutiny the operation of the relevant provisions.
(3) For that purpose, the Ombudsman may require the Department of Corrective Services or the Attorney General's Department to provide information concerning the Department's participation in the operation of the relevant provisions.
(4) The Ombudsman must, as soon as practicable after the expiration of that 2 year period, prepare a report as to the operation and effect of the relevant provisions and furnish a copy of the report to the Minister for Corrective Services and the Attorney General.
(5) The Ombudsman may identify, and include recommendations in the report to be considered by the Minister for Corrective Services and the Attorney General about, amendments that might appropriately be made to the relevant provisions with respect to the operation of those provisions.
(6) The Minister for Corrective Services is to lay (or cause to be laid) a copy of any report made or furnished to the Minister under this section before both Houses of Parliament as soon as practicable after the Minister receives the report.
(7) If a House of Parliament is not sitting when the Minister for Corrective Services seeks to furnish a report to it, the Minister may present copies of the report to the Clerk of the House concerned.
(8) The report:
(a) on presentation and for all purposes is taken to have been laid before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if printed by authority of the Clerk is for all purposes taken to be a document published by or under the authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council, in the Minutes of the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by the Clerk.
As I said during the second reading debate, I do not support the Crimes (Administration of Sentences) Bill. The amendment proposes that the bill be monitored by the Ombudsman, particularly with regard to civil liberties, and that the Ombudsman report on the bill's operation and effect within two years. In short, given the nature of the bill, the amendment provides a feedback loop, which I believe is good practice in bills that affect civil liberties and set precedents. I commend the amendment to the Committee.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.59 p.m.]: The Government does not support the amendment moved by the Hon. Dr Arthur Chesterfield-Evans. The amendment largely replicates provisions already contained in section 121 of the Crimes (Forensic Procedures) Act 2000. Although the amendment will mean more work for the Ombudsman the Government does not intend to oppose it.
The Hon. GREG PEARCE [5.01 p.m.]: The bill deals with some important issues that can impact on the rights of people who are visiting prisons and people who are incarcerated in prisons. The Opposition did not see the need for this amendment because of the oversight of Corrective Services by the Ombudsman. However, the Opposition is concerned in particular about the number of accidental releases from custody in the past year. There is a need for continued oversight of Corrective Services. The Opposition will support the amendment.
Amendment agreed to.
New clause 4 agreed to.
Schedule 1 agreed to.
Title agreed to.
CHAIR: Order! The Committee will now consider the Summary Offences Amendment (Places of Detention) Bill.
Clauses 1 to 3 agreed to.
Schedule 1
The Hon. RICHARD JONES [5.02 p.m.]: I move my amendment No. 1:
No. 1 Page 5, schedule 1 [7], proposed section 27F. Insert after line 19:
(8) Nothing in this section prevents the powers that may be exercised in relation to a person from being exercised in relation to a correctional officer.
This amendment provides that all the powers to stop, detain and search persons in the immediate vicinity of a place of detention will also apply to correctional officers. Quite clearly, we need to adopt thorough measures to combat illicit drugs in prisons. If correctional officers and visitors are searched we will attack the problem of contraband in prisons from every possible angle, including one of the key sources of contraband drugs in prisons.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.03 p.m.]: The Government does not oppose the Hon. Richard Jones' amendment No. 1. However, the Government views his amendment as unnecessary because new section 27F refers to a correctional officer being able to stop, detain and search a person without qualification. Obviously, that does not preclude a fellow correctional officer.
The Hon. GREG PEARCE [5.03 p.m.]: The Opposition does not see the need for this amendment, and it accepts the explanation of the Minister in relation to it.
Amendment agreed to.
The Hon. RICHARD JONES [5.03 p.m.]: I move my amendment No. 2:
No. 2 Page 7, schedule 1 [7], proposed section 27H. Insert after line 18:
(4) If:
(a) a dog is used to conduct a search under section 27F for the purpose of detecting an offence under section 27B (4), and
(b) the search fails to detect any prohibited drugs or plants in the possession or control of the person, the State is liable to compensate the person for any loss or damage incurred by the person as a consequence of the search.
My previous amendment made sure that we had some consistency. If these dogs are going to be used they should be used only in places where there is a real problem—where the problem is self-evident. They should not be used in public places, such as on trains and buses and at railway stations. My amendment No. 2 provides that if a person is subject to a search by a sniffer dog and the search fails to detect any prohibited drugs the State is liable to pay compensation for any loss or damage incurred by the person as a consequence of that search. The use of a dog to conduct a search can be a traumatic experience. It is an invasion of civil liberties and, as a result, many people are frightened and humiliated. In the past the Government has not supported these types of amendments and the common law has always allowed for compensation for persons who suffer civil law consequences or actions that are wrongful.
There is no reason, in every case where new criminal laws are created, to specify some civil remedy that may be available. In anticipation that there will be a similar response from members in this instance, I would like to point out a few things. For 15 months during 2000 and 2001 the Police Service used drug detection dogs to detect illicit drugs in nightclubs, hotels, railway stations and streets throughout the State. However, under the law at the time police officers did not have the power to use sniffer dogs in public places. It was in this context that the decision in Police v. Darby was handed down by the Deputy Chief Magistrate in the Local Court. In that case the magistrate found that the actions of a sniffer dog in detecting an illicit substance on a man on a city street constituted an illegal search because it was conducted without reasonable suspicion.
As honourable members would know, the Drug Misuse and Trafficking Act 1985 allows a police officer to stop and search a person if the officer has a reasonable suspicion that the person is in possession of a prohibited substance. As a consequence of that decision, there has been much uncertainty surrounding the use of sniffer dogs. The Deputy Chief Magistrate found that a search by a sniffer dog was a breach of international civil liberties. The magistrate referred specifically to article 17 of the International Covenant on Civil and Political Rights, which provides that:
1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, at home or correspondence, nor to unlawful attacks on his honour and reputation, and
2. Everyone has the right to protection of the law against such interference or attacks.
We have debated this matter in considerable detail. Suffice to say, sniffer dogs in public places are offensive to many people, particularly those who are innocent and have never used drugs but are stopped and searched—it has happened a number of times—and those who have the smell of cannabis about them, who may have used the drug. If these dogs are to be used they should be used in places where there is a serious problem, such as prisons.
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.06 p.m.]: The Government opposes this amendment. There is no need for it. It applies only to loss or damage incurred as a consequence of a search conducted using a dog. Any such loss or damage is likely to be minor and would be dealt with by the Department of Corrective Services in the same manner as any other claim arising out of the department's operations search or otherwise. That is, if the department has been negligent it will accept responsibility for any reasonable claim. The Government opposes the Hon. Richard Jones' amendment No 2.
The Hon. GREG PEARCE [5.08 p.m.]: This is a backdoor approach to try to re-open the issue of dogs being used in relation to police work. If it was something to be opposed it should have been opposed when the powers were debated, not through this backdoor route. In the investigation and enforcement of the law, people's rights are going to be interfered with to some extent. However, it has never been the case that the State is liable for that sort of interference. Other remedies—including trespass and common law remedies—are available to people who are in some way interfered with. This amendment does not add anything; it is a backdoor attempt to change the use of sniffer dogs in these circumstances. The Opposition opposes the amendment.
Reverend the Hon. FRED NILE [5.09 p.m.]: The Christian Democratic Party opposes the amendment. If it were accepted it would open up the possibility that people could receive compensation if they were stopped for random drug and alcohol testing by a police unit. They could receive compensation because of the delay, interference and so on. As the Hon. Greg Pearce said, the amendment is a backdoor way to try to undermine the effectiveness of sniffer dogs.
Amendment negatived.
Schedule 1 as amended agreed to.
Title agreed to.
Bills reported from Committee with amendments and report adopted.
Third Reading
The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.11 p.m.]: I move:
That these bills be now read a third time.
The DEPUTY-PRESIDENT (The Hon. Janelle Saffin): Order! I have a certificate from the Chairman that the bills are in accordance with the bills as reported from the Committee of the Whole. The question is: that these bills be now read a third time. All those of that opinion say aye, to the contrary no. I think the ayes have it. The ayes have it.
The Hon. Dr Arthur Chesterfield-Evans: No, the noes have it.
The DEPUTY-PRESIDENT: Order! Too late.
The Hon. Dr Arthur Chesterfield-Evans: No, we can divide on the third reading. That is all right. There were two voices.
The DEPUTY-PRESIDENT: Order! I only heard one.
Ms Lee Rhiannon: We have had this all day.
The DEPUTY-PRESIDENT: Order! I heard one "No", and when I announced the result I heard a second "No". It was too late. You will have to get organised to state "Aye" or "No" at the time the question is put.
Motion agreed to.
Bills read a third time.