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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Correctional Services (Miscellaneous) Amendment
Bill 2017
A BILL FOR
An Act to amend the
Correctional
Services Act 1982
; and to make related amendments to the
Public
Sector Act 2009
.
Contents
Part 2—Amendment of Correctional
Services Act 1982
3Objects and guiding
principles
6Amendment of section
4—Interpretation
7Amendment of section 7—Power of Minister
and CE to delegate
8Substitution of Part 3 Division 2
Division 2—Official
inspectors
20DFunctions of official
inspectors
20EUse and
obtaining of information
20FRequests to
contact official inspector
20GReporting
obligations of official inspector
20HConfidentiality
of information
9Amendment of section 22—Assignment of
prisoners to particular correctional institutions
10Amendment of section 29—Work by
prisoners
11Amendment of section 33—Prisoners'
mail
12Amendment of section
34—Prisoners' rights to have visitors
13Amendment of section 35A—Power to
monitor or record prisoner communication
36ARestraints to be
used on prisoners in certain circumstances
15Amendment of section 37A—Release on home
detention
16Insertion of Part 5 Division 3
49Possession of
certain items by prisoners
17Amendment of section 51—Offences by
persons other than prisoners
18Amendment of section 55—Continuation of
Parole Board
19Amendment of section 57—Allowances and
expenses
20Amendment of section 60—Proceedings of
the Board
21Amendment of section 64—Reports by
Board
22Amendment of section 66—Automatic
release on parole for certain prisoners
23Amendment of section
67—Release on parole by application to Board
24Amendment of section 68—Conditions of
release on parole
25Amendment of section 74—Board may take
action for breach of parole conditions
27Amendment of section 74AA—Board may
impose community service for breach of conditions
28Amendment of section 77—Proceedings
before the Board
29Amendment of heading to Part 6 Division
4
30Amendment of section
77A—Interpretation
31Amendment of section 81L—Payments out of
fund where legal proceedings notified
32Amendment of section 81M—Payments out of
fund where notice from creditor received
33Amendment of section 81O—Payments out of
fund where no notice given
Part 7A—Management of officers,
employees of Department etc
81UCommissioner of
Police may object to certain applications for engagement or
appointment
Division 3—Drug and alcohol testing
of officers, employees etc
81WDrug and alcohol testing of
officers and employees
81XDrug and alcohol
testing of applicants to Department
81YProcedures for
drug and alcohol testing
81ZBiological
samples, test results etc not to be used for other purposes
35Amendment of section 83—CE may make
rules
36Amendment of section
85C—Confidentiality
37Amendment of section 85D—Release of
information to eligible persons
85EConfidentiality of biometric
data
39Amendment of section 86B—Use of
correctional services dogs
40Insertion of sections 87A and
87B
87AOperation of unmanned
aircraft
87BUnmanned
aircraft—special powers
Schedule 1—Related amendments and
transitional provisions
Part 1—Amendment of Public Sector
Act 2009
1Amendment of section 59—Right of
review
Part 2—Transitional
provisions
2Transitional provision—allowances and
expenses of members of Parole Board to continue
3Transitional provision—review of release
on parole relating to prisoners of a prescribed class
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Correctional Services (Miscellaneous)
Amendment Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Correctional Services
Act 1982
Long title—after "care;" insert:
to provide for certain powers relating to the management of correctional
services officers and employees;
Before section 4 insert:
3—Objects and guiding
principles
(1) The primary object of this Act is the promotion of community
safety.
(2) The other objects of this Act are—
(a) to provide mechanisms for the establishment and proper administration
of correctional institutions, probation and parole hostels and other facilities
and services relating to persons who offend against the criminal law;
and
(b) to provide for the safe and secure management of prisoners held in
correctional institutions in the State; and
(c) to promote the rehabilitation of prisoners, probationers and
parolees—
(i) by providing the necessary correction, guidance and management to
assist in their reintegration into the community; and
(ii) by providing for effective, planned and individualised management
plans for prisoners, probationers and parolees, including by providing for the
assessment of the risks they pose to the community, their needs and the
development, implementation and review of management plans based on such
assessments; and
(d) to have regard to the rights of victims of crime; and
(e) to have regard to the particular needs and circumstances relevant to
the cultural identity and linguistic background of prisoners, probationers and
parolees; and
(f) to recognise the importance of family and community involvement and
participation in the rehabilitation of prisoners, probationers and parolees;
and
(g) to support the reintegration of prisoners, probationers and parolees
with the community as part of their rehabilitation; and
(h) to make provision in relation to the management of officers and
employees.
(3) The Minister,
the CE, the Department and other persons and bodies involved in the
administration of this Act are to be guided by the following principles in the
exercise of their functions:
(a) in exercising powers under this Act, the paramount consideration must
be the safety of the community;
(b) prisoners, probationers and parolees should be made aware of their
obligations under the law, of the consequences of any breach of the law and of
the importance of individual responsibility;
(c) the management of prisoners, probationers and parolees should be
designed to assist in their rehabilitation and reintegration into the
community;
(d) facilities and programs developed for the care, rehabilitation,
imprisonment, training, therapeutic treatment or other treatment of prisoners,
probationers and parolees should—
(i) be evidence based; and
(ii) be individually designed as much as reasonably
practicable—
(A) to take account of the prisoner, probationer or parolee's age, gender,
gender identity, sexuality or sexual identity, cultural identity, developmental
and cognitive capacity, ability or disability, and any special needs;
and
(B) to address offending behaviours; and
(C) to address the physical and mental health of the prisoner, probationer
or parolee; and
(D) to address the educational and vocational training needs of the
prisoner, probationer or parolee; and
(iii) be governed by a comprehensive assessment and case plan developed in
a multidisciplinary framework; and
(iv) support a focus on connecting and reintegrating with the community;
and
(v) take into consideration the different traditions, cultural values and
religious beliefs of ethnic or racial groups within the prisoner, probationer or
parolee's community.
6—Amendment
of section 4—Interpretation
(1) Section 4(1)—before the definition of alcotest
insert:
Aboriginal or Torres Strait Islander person means a person
who—
(a) is descended from an Aboriginal or Torres Strait Islander;
and
(b) regards themself as an Aboriginal or Torres Strait Islander;
and
(c) is accepted as an Aboriginal or Torres Strait Islander by an
Aboriginal or Torres Strait Islander community;
(2) Section 4(1), definition of Department—delete ",
under the Minister, responsible for" and substitute:
responsible for assisting a Minister in
(3) Section 4(1), definition of immediate
family—delete "of a victim"
7—Amendment
of section 7—Power of Minister and CE to delegate
Section 7(2) and (2a)—delete ", with the approval of the Minister,"
wherever occurring
8—Substitution
of Part 3 Division 2
Part 3 Division 2—delete Division 2 and substitute:
Division 2—Official inspectors
20—Official inspectors
(1) The Governor may appoint for each correctional institution such number
of official inspectors as the Governor thinks necessary or desirable.
(2) The Governor must, in making appointments under this section, ensure
that—
(a) at least 1 official inspector for each correctional institution is an
Aboriginal or Torres Strait Islander person; and
(b) at least 1 official inspector for each correctional institution is a
legal practitioner; and
(c) at least 1 official inspector for each correctional institution is a
woman.
(3) A person who constitutes a Visiting Tribunal for a correctional
institution cannot be appointed as an official inspector for the correctional
institution.
(4) An official inspector will be appointed on conditions determined by
the Governor and for a term, not exceeding 3 years, specified in the
instrument of appointment and, at the expiration of a term of appointment, will
be eligible for reappointment.
(5) The Governor
may remove an official inspector from office—
(a) for breach of, or noncompliance with, a condition of appointment;
or
(b) for misconduct; or
(c) for failure or incapacity to carry out official duties
satisfactorily.
(6) The position of an official inspector becomes vacant if the official
inspector—
(a) dies; or
(b) resigns by written notice given to the Minister; or
(c) completes a term of appointment and is not reappointed; or
(d) is removed from the position by the Governor under
subsection (5)
; or
(e) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) becomes a member of the Parliament of this State or any other State of
the Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth.
(7) Nothing in this section is to be taken to prevent the appointment of a
person as an official inspector for more than 1 correctional
institution.
20A—Independence
(1) In exercising functions and powers under this Act, an official
inspector must act independently, impartially and in the public
interest.
(2) Neither the Minister nor the CE can—
(a) control how an official inspector is to exercise the inspector's
statutory functions and powers; or
(b) give any direction with respect to the content of any report prepared
by an official inspector.
Note—
This provision does not derogate from any express power of the Minister or
CE under this Act.
20B—Remuneration
An official inspector is entitled to remuneration, allowances and expenses
determined by the CE.
20C—Staff and resources
The Minister must provide official inspectors with the resources reasonably
required for exercising their functions.
20D—Functions of official
inspectors
(1) The functions
of an official inspector in relation to the correctional institution in respect
of which the inspector is appointed include the following:
(a) to receive and investigate any complaint of a prisoner in the
correctional institution;
(b) to act as an advocate for prisoners in the correctional institution to
promote the proper resolution of issues relating to the care, treatment or
control of the prisoners;
(c) to inquire into, and provide advice to, the Minister and the CE in
relation to any systemic reform necessary to improve—
(i) the quality of care, treatment or control of prisoners in the
correctional institution; or
(ii) the management of the correctional institution;
(d) to conduct visits to the correctional institution as required or
authorised under this Division;
(e) to conduct inspections of the correctional institution as required or
authorised under this Division;
(f) to promote the best interests of prisoners in the correctional
institution;
(g) to inquire into
and investigate any matter referred to the official inspector by the Minister or
the CE;
(h) any other functions assigned to the official inspector by this or any
other Act.
(2) In exercising functions under this Division, an official
inspector—
(a) must encourage prisoners in the correctional institution to express
their own views and give proper weight to those views; and
(b) must have regard to relevant legislation and other material, including
international conventions and treaties, with a view to promoting the high
quality care, treatment and control of prisoners in the correctional
institution; and
(c) must pay particular attention to the needs and circumstances of
prisoners in the correctional institution who—
(i) are Aboriginal or Torres Strait Islander persons; or
(ii) have a physical, psychological or intellectual disability;
and
(d) may receive and consider information, reports and materials relevant
to exercising the official inspector's statutory functions.
20E—Use and obtaining of
information
(1) A government or non-government organisation that is involved in the
provision of services under this or any other Act must, at an official
inspector's request, provide the official inspector with information relevant to
the exercise of the official inspector's functions.
(2) If an official
inspector has reason to believe that a person is capable of providing
information or producing a document that may be relevant to the exercise of the
official inspector's functions, the official inspector may, by notice in writing
provided to the person, require the person to do 1 or more of the
following:
(a) to provide that information to the official inspector in writing
signed by that person or, in the case of a body corporate, by an officer of the
body corporate;
(b) to produce that document to the official inspector;
(c) to attend before a person specified in the notice and answer relevant
questions or produce relevant documents.
(3) A notice under
subsection (2)
is to specify the period within which, or the time, day and place at
which, the person is required to provide the information or document, or to
attend.
(4) A notice under
subsection (2)
must provide a period of time for compliance with a requirement under that
subsection that has been determined by the official inspector to be reasonable
in the circumstances.
(5) A person must comply with a requirement under
subsection (2)
.
Maximum penalty: $5 000.
(6) If a document is produced in accordance with a requirement under this
section, the official inspector may take possession of, make copies of, or take
extracts from, the document.
20F—Requests to contact official
inspector
(1) A prisoner in a correctional institution, a relative of a prisoner or
any person who is providing support to a prisoner in a correctional institution
may make a request to contact an official inspector in respect of the
correctional institution.
(2) If such a request is made to the CE, the CE must advise a relevant
official inspector of the request within 2 days after receipt of the
request.
20G—Reporting obligations of official
inspector
(1) An official inspector may, at any time, provide a report to the
Minister on any matter arising out of the performance of the official
inspector's functions.
(2) An official
inspector must, at the end of each successive 2 year period after their
appointment as an official inspector, provide a report to the Minister on any
relevant matters arising out of the performance of the official inspector's
functions during the relevant period.
(3) The Minister
must, within 6 sitting days after receiving a report under
subsection (2)
, have copies of the report laid before both Houses of
Parliament.
20H—Confidentiality of
information
Information about individual cases disclosed to an official inspector is to
be kept confidential and is not liable to disclosure under the
Freedom
of Information Act 1991
.
9—Amendment
of section 22—Assignment of prisoners to particular correctional
institutions
Section 22(3)—delete subsection (3)
10—Amendment
of section 29—Work by prisoners
(1) Section 29(1)—delete "(other than a remand prisoner)"
(2) Section 29(2)—delete subsection (2)
11—Amendment
of section 33—Prisoners' mail
(1) Section 33(3)—after paragraph (j) insert:
or
(k) material of a kind prohibited by—
(i) the regulations; or
(ii) the CE.
(2) Section 33(7)(ca)—delete "inspector" and substitute:
official inspector
(3) Section 33(7)(d)—delete "legal practitioner" and
substitute:
nominated legal practitioner of the prisoner
(4) Section 33(8)—delete "inspector" and substitute:
official inspector
(5) Section 33(8)—delete "legal practitioner" and
substitute:
nominated legal practitioner of the prisoner sent from the practitioner's
business address
(6) Section 33(14)—after the definition of authorised
officer insert:
nominated legal practitioner, in relation to a prisoner,
means a legal practitioner that the prisoner has, by notice in writing given to
the CE, nominated as a legal practitioner that represents the prisoner, provided
that a prisoner may only have up to 4 nominated legal practitioners at any
particular time.
12—Amendment
of section 34—Prisoners' rights to have visitors
(1) Section 34(4)(d)—delete "if any part of the imprisonment for
which the prisoner was sentenced is in relation to a child sexual offence" and
substitute:
who has ever been found guilty of a child sexual offence
(2) Section 34—after subsection (4) insert:
(5) The restriction under subsection (4)(d) applies to a
prisoner—
(a) whether the offence was committed before or after the commencement of
the
Correctional
Services (Miscellaneous) Amendment Act 2017
; and
(b) whether the finding of guilt was made before or after the commencement
of the
Correctional
Services (Miscellaneous) Amendment Act 2017
.
13—Amendment
of section 35A—Power to monitor or record prisoner
communication
(1) Section 35A(2)—delete subsection (2) and substitute:
(2) The regulations may, in relation to a communication of a kind
prescribed by the regulations that may be monitored or recorded, provide that
the parties to the communication must, at the commencement of the communication,
be informed of that fact.
(2) Section 35A(3)(f)—delete "inspector" and substitute:
official inspector
(3) Section 35A—after subsection (5) insert:
(5a) Despite any other
Act or law (but without limiting subsection (5)), a communication monitored or
recorded under this section or evidence or information revealed by such a
communication may be provided to, and may be received and used
by—
(a) —
(i) law enforcement agencies; and
(ii) prosecution authorities; and
(iii) any other person or body prescribed by the regulations,
for the purposes of—
(iv) any criminal investigation or proceedings; or
(v) proceedings for the imposition of a penalty; or
(vi) national security (within the meaning of the National Security
Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth);
and
(b) the Independent Commissioner Against Corruption and the Office for
Public Integrity for the purposes of any investigation or action in relation to
suspected corruption, misconduct or maladministration in public
administration.
(5b) Terms and expressions used in
subsection (5a)
and in the
Independent
Commissioner Against Corruption Act 2012
have the same respective meanings in that subsection as they do in that
Act.
After section 36 insert:
36A—Restraints to be used on prisoners in certain
circumstances
(1) An officer or employee of the Department or a police officer employed
in a correctional institution may use restraints on a prisoner—
(a) if the prisoner is being transferred from the place in which the
prisoner is being detained to a place where the prisoner is to be detained;
or
(b) if the prisoner is on leave of absence and is required to be in the
custody of, and be supervised by, 1 or more officers or employees of the
Department authorised by the Minister under section 27(2)(a)(i); or
(c) in any other circumstances determined by the CE.
(2) An officer or employee of the Department or a police officer employed
in a correctional institution who uses restraints on a prisoner under this
section must comply with any requirements determined by the CE.
15—Amendment
of section 37A—Release on home detention
Section 37A(6), definition of residence—after
"Aboriginal" insert:
or Torres Strait Islander
16—Insertion
of Part 5 Division 3
Part 5—after Division 2 insert:
Division 3—Criminal offences
49—Possession of certain items by
prisoners
A prisoner who has possession of—
(a) a controlled drug (within the meaning of the
Controlled
Substances Act 1984
); or
(b) an item prescribed by the regulations for the purposes of this
paragraph,
in a correctional institution without the permission of the CE is guilty of
an offence.
Maximum penalty: Imprisonment for 5 years.
17—Amendment
of section 51—Offences by persons other than
prisoners
(1) Section 51(1)(b)—after "introduces into" insert:
, or has possession of in,
(2) Section 51(1), penalty provision, (a)—delete paragraph (a) and
substitute:
(a) in the case of an offence against paragraph (b) of this subsection
where the prohibited item is a controlled drug (within the meaning of the
Controlled
Substances Act 1984
)—imprisonment for 10 years;
(ab) in the case of an offence against paragraph (b) of this subsection
where the prohibited item is an item of a kind prescribed by the regulations for
the purposes of this paragraph—imprisonment for 5 years;
(3) Section 51—after subsection (1) insert:
(2) A person who, without the permission of the CE or without lawful
excuse, has possession of a controlled drug (within the meaning of the
Controlled
Substances Act 1984
) in a correctional institution buffer zone is guilty of an
offence.
Maximum penalty: Imprisonment for 10 years.
(3) A person who, without the permission of the CE or without lawful
excuse, has possession of a prohibited item of a kind prescribed by the
regulations for the purposes of this subsection in a correctional institution
buffer zone is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(4) In this section—
correctional institution buffer zone—see
subsection (5)
.
(5) The Minister may,
by notice published in the Gazette, declare an area surrounding the boundary of
a correctional institution to be the correctional institution buffer zone for
the correctional institution.
(6) The Minister may, by notice published in the Gazette, revoke or vary a
declaration under
subsection (5)
.
18—Amendment
of section 55—Continuation of Parole Board
Section 55(3)(f)—delete "a person of Aboriginal descent" and
substitute:
an Aboriginal or Torres Strait Islander person
19—Amendment
of section 57—Allowances and expenses
(1) Section 57—delete "is entitled to receive such allowances and
expenses as the Governor may from time to time determine" and
substitute:
will be paid the allowances and expenses determined by the Remuneration
Tribunal
(2) Section 57—after its present contents as amended by this section
(now to be designated as subsection (1)) 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.
(3) The Remuneration Tribunal may make different provision according to
the member of the Board or the circumstances to which the determination is to
apply and may vary an amount payable according to any other factor that the
Remuneration Tribunal considers relevant.
(4) The Remuneration Tribunal must, at least once in each prescribed
period, review the allowances and expenses referred to in subsection (1)
and may, if it considers it appropriate to do so, determine to increase any such
amount payable by a specified amount.
(5) The regulations may make further provision in relation to a
determination of the Remuneration Tribunal for the purposes of this
Act.
20—Amendment
of section 60—Proceedings of the Board
(1) Section 60(3)—after paragraph (c) insert:
(d) another member of the Board nominated by the presiding member and 2
other members of the Board.
(2) Section 60(5)(a)—delete "or first or second deputy presiding
member" and substitute:
, the first or second deputy presiding member, or the member nominated
under subsection (3)(d),
21—Amendment
of section 64—Reports by Board
(1) Section 64(2)—delete "year" first occurring and
substitute:
designated period
(2) Section 64—after subsection (5) insert:
(6) In this section—
designated period means the period of time (which must be 5
years or less) designated by the presiding member of the Board for the purposes
of subsection (2).
22—Amendment
of section 66—Automatic release on parole for certain
prisoners
(1) Section 66(1)—delete subsection (1) and substitute:
(1) Subject to this section, the Board must order that a prisoner who is
liable to serve a total period of imprisonment of less than 5 years and for whom
a non-parole period has been fixed be released from prison or home detention on
parole on the day on which the non-parole period expires.
(1a) However, if, because the commencement of a prisoner's non-parole
period has been back dated, the non-parole period expires prior to the date on
which it is fixed, the Board must order that the prisoner be released from
prison or home detention on parole not later than 30 days after the day on
which the non-parole period is fixed.
(2) Section 66(2)—after paragraph (ab) insert:
(aba) a prisoner if any part of the imprisonment for which the prisoner
was sentenced is in respect of a serious drug offence (within the meaning of
Part 3 Division 4 of the
Sentencing
Act 2017
); or
(3) Section 66(2)(ad)—after "section 74" insert:
or 74AAA
23—Amendment
of section 67—Release on parole by application to
Board
(1) Section 67(7a)—delete "who is serving a sentence of life
imprisonment" and substitute:
of a prescribed class
(2) Section 67—after subsection (7a) insert:
(7ab) The Board must not, in providing reasons to a prisoner under
subsection (7a)(a)(ii), disclose to the prisoner information relating to a
victim of an offence for which the prisoner is serving a sentence of
imprisonment or a member of the victim's immediate family.
(3) Section 67(7b)—delete "who is serving a sentence of life
imprisonment" and substitute:
of a prescribed class
(4) Section 67(11)—delete "this section" and substitute:
subsection (6)
(5) Section 67—after subsection (11) insert:
(12) In this section—
prisoner of a prescribed class has the same meaning as in
Division 4.
24—Amendment
of section 68—Conditions of release on parole
(1) Section 68(1aa)(b)—delete paragraph (b) and
substitute:
(b) —
(i) in the case of a prisoner released under section 66—is subject
to the prescribed conditions; and
(ii) in all cases—may be subject to any other condition (including a
condition that the prisoner be monitored by use of an electronic device) to be
effective until the expiration of the period of parole (or such earlier date as
is specified by the Board).
(2) Section 68(2a)—delete subsection (2a)
(3) Section 68(4)—delete "Notwithstanding any other provision of
this Division" and substitute:
Despite any other provision of this Division but subject to subsection
(4a)
(4) Section 68(4)—delete "he or she" and substitute:
the prisoner
(5) Section 68—after subsection (4) insert:
(4a) If, in the opinion of the CE, a prisoner is unreasonably refusing to
accept the conditions to which the prisoner's parole will be subject, or is
unable to accept them due to a physical or cognitive impairment—
(a) the CE may accept the conditions on behalf of the prisoner;
and
(b) the prisoner will be taken to have accepted the conditions from the
date of acceptance by the CE.
(6) Section 68(5)—delete "a prisoner who is to be released under
section 66 does not accept the conditions of parole" and substitute:
the parole conditions of a prisoner who is to be released under section 66
are not accepted by or on behalf of the prisoner
(7) Section 68(5)(b)—delete paragraph (b) and substitute:
(b) may, if the parole conditions will now be accepted by or on behalf of
the prisoner, order the release of the prisoner on that acceptance.
(8) Section 68—after subsection (5) insert:
(6) For the purposes of
subsection (1aa)(b)(i), the presiding member of the Board must determine from
time to time a set of conditions to which release on parole under section 66
will be subject.
(7) The presiding member of the Board must ensure that an up to date copy
of the prescribed conditions is published in the Gazette and on a website
determined by the presiding member.
(8) In this section—
prescribed conditions means the conditions determined by the
presiding member of the Board under
subsection (6)
.
25—Amendment
of section 74—Board may take action for breach of parole
conditions
Section 74(1)—after "condition of the parole" insert:
that is constituted by the commission of an offence or that is, in the
opinion of the Board, a serious breach
After section 74 insert:
74AAA—Board may suspend release on parole or take
other action for certain breaches of parole conditions
(1) If the Board is
satisfied that a person who has been released on parole has, while on parole,
breached a condition of the parole (other than a breach of a kind referred to in
section 74(1)), the Board may, by order—
(a) direct that the
person serve in prison a period of their remaining balance that the Board
considers appropriate, but not exceeding—
(i) the period between the day on which the breach occurred and the date
of expiry of the parole; or
(ii) 3 months,
whichever is the lesser; or
(b) vary the
conditions of, or impose further conditions on, the person's release on
parole.
applies despite the fact that, at the time of finding the breach proved,
the parole has expired or been discharged.
(3) Without limiting the generality of
paragraph (b)
, a condition imposed under that paragraph may require the
person—
(a) to reside at specified premises (including premises declared under
this Act to be a probation and parole hostel); and
(b) to undertake at specified places such activities and programs as are
determined by the Board from time to time.
(4) The Board cannot make an order under this section in relation to a
person who is under the supervision of a community corrections officer unless it
has obtained and considered a report from the CE.
(5) If a person who
has been returned to prison pursuant to this section commits an offence while in
prison and a sentence of imprisonment is imposed for the offence, the person is
liable to serve in prison the balance of the sentence, or sentences, unexpired
as at the day on which the offence was committed.
(6) The following
provisions apply to the parole of a person in respect of whom the Board makes an
order under
subsection (1)(a)
:
(a) the parole is suspended for the duration of the period served in
prison under the order;
(b) on release from
prison, the suspension of parole ceases (so that the person will be on parole
under the order of the Board in force immediately prior to the return of the
person to prison).
(7) Despite
subsection (6)(b)
, the release of a person from prison will not be release on parole if the
period of their parole has expired.
(8) For the purposes of this section, a person's parole will be taken to
expire if the date of expiry of the parole occurs while the person is in prison
in accordance with an order made under
subsection (1)(a)
(despite the suspension of the parole under this section).
(9) Any period for which the person is detained in custody or in prison
after breaching a condition of parole is to be counted as or towards the period
that the person is liable to serve in prison under this section (and any date on
which the period to be served is to be taken to have commenced will be fixed
accordingly).
(10) In this section—
remaining balance, in relation to a person who has breached a
condition of parole, means the balance of the sentence, or sentences, of
imprisonment in respect of which the person was on parole (being the balance
unexpired as at the day on which the breach was committed).
27—Amendment
of section 74AA—Board may impose community service for breach of
conditions
Section 74AA(1)—after "section 74" insert:
or 74AAA
28—Amendment
of section 77—Proceedings before the Board
(1) Section 77(3)—after "practitioner" insert:
but, if the person is a prisoner, the person is not entitled to be
physically present in those proceedings before the Board (and the Board may deal
with the proceedings in the person's absence).
(2) Section 77—after subsection (3) insert:
(3a) Despite subsection (3), the Board may, in proceedings before the
Board, if the Board considers it appropriate to do so in a particular
case—
(a) receive evidence or submissions from a prisoner who is not physically
present before the Board by means of an audio visual link or an audio link;
or
(b) allow the prisoner to appear or be physically present before the
Board.
29—Amendment
of heading to Part 6 Division 4
Heading to Part 6 Division 4—delete "life" and
substitute:
certain
30—Amendment
of section 77A—Interpretation
(1) Section 77A—before the definition of Australian
Parliament insert:
accessory has the same meaning as in section 241(1) of the
Criminal
Law Consolidation Act 1935
;
(2) Section 77A—after the definition of prescribed reviewable
decision insert:
principal offender has the same meaning as in section 241(1)
of the
Criminal
Law Consolidation Act 1935
;
prisoner of a prescribed class means—
(a) a prisoner who is serving a sentence of life imprisonment for an
offence; or
(b) a prisoner who is serving a sentence of imprisonment for an offence
against section 12 of the
Criminal
Law Consolidation Act 1935
; or
(c) a prisoner who is serving a sentence of imprisonment for an offence
against section 241(1) of the
Criminal
Law Consolidation Act 1935
as an accessory if—
(i) the offence established as having been committed by the principal
offender is the offence of murder; and
(ii) the principal offender committed the offence of murder in prescribed
circumstances;
(3) Section 77A, definition of reviewable
decision—delete "serving a sentence of life imprisonment" and
substitute:
of a prescribed class
(4) Section 77A—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) For the
purposes of this Division—
(a) an offence of murder will be taken to have been committed in
prescribed circumstances if, in the opinion of the
Commissioner—
(i) the offence was committed in the course of deliberately and
systematically inflicting severe pain on the victim; or
(ii) there are reasonable grounds to believe that the offender also
committed a serious sexual offence against or in relation to the victim of the
offence in the course of, or as part of the events surrounding, the commission
of the offence (whether or not the offender was also convicted of the serious
sexual offence); and
(b) a reference to an offence of murder
includes—
(i) an offence of conspiracy to murder; and
(ii) an offence of aiding, abetting, counselling or procuring the
commission of murder.
31—Amendment
of section 81L—Payments out of fund where legal proceedings
notified
Section 81L(5)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) pay half of the remaining amount into the Victims of Crime Fund under
the
Victims
of Crime Act 2001
; and
(b) credit the other half of the remaining amount—
(i) to the resettlement account kept in the prisoner's name in accordance
with section 31; or
(ii) if the prisoner has been discharged from prison—to an account
nominated by the former prisoner.
32—Amendment
of section 81M—Payments out of fund where notice from creditor
received
Section 81M(5)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) pay half of the remaining amount into the Victims of Crime Fund under
the
Victims
of Crime Act 2001
; and
(b) credit the other half of the remaining amount—
(i) to the resettlement account kept in the prisoner's name in accordance
with section 31; or
(ii) if the prisoner has been discharged from prison—to an account
nominated by the former prisoner.
33—Amendment
of section 81O—Payments out of fund where no notice
given
Section 81O(2)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) pay half of the remaining amount into the Victims of Crime Fund under
the
Victims
of Crime Act 2001
; and
(b) credit the other half of the remaining amount—
(i) to the resettlement account kept in the prisoner's name in accordance
with section 31; or
(ii) if the prisoner has been discharged from prison—to an account
nominated by the former prisoner.
After Part 7 insert:
Part 7A—Management of officers, employees of
Department etc
Division 1—Preliminary
81S—Interpretation
In this Part—
designated position means an appointment to a position in the
Department designated by the CE for the purposes of this Part.
Division 2—General
81T—Investigative powers of CE
(1) The CE may, for the purposes of the review or investigation of any
matter relevant to the CE's powers, functions, duties or responsibilities under
this or any other Act—
(a) by notice in writing—
(i) require an officer or employee of the Department to appear at a
specified time and place; or
(ii) require an officer or employee of the Department to produce a
specified document or object that is relevant to the subject matter of the
review or investigation; and
(b) require an officer or employee of the Department to answer truthfully
questions put by the CE that are relevant to the subject matter of the review or
investigation.
(2) An officer or employee of the Department who fails to comply with a
requirement under this section or hinders the exercise of powers under this
section is guilty of misconduct for the purposes of the
Public
Sector Act 2009
and any other Act.
(3) A person is not obliged to answer a question or to produce a document
or object (other than a document or object of the Government) under this section
if to do so would tend to incriminate the person of an offence.
81U—Commissioner of Police may object to certain
applications for engagement or appointment
(1) The CE may refer an
application of a person to whom this subsection applies to the Commissioner of
Police.
(2) The Commissioner of Police may object to an application referred to
the Commissioner under
subsection (1)
if the Commissioner considers that it would not be in the public interest
for the applicant to be appointed as an officer or employee of the Department or
appointed to a designated position (as the case requires).
(3) If the Commissioner of Police objects to an application referred to
the Commissioner under
subsection (1)
, the CE may refuse the application.
(4) The CE is not required to provide to the applicant any grounds or
reasons for refusing an application under this section.
(5)
Subsection (1)
applies to—
(a) a person applying for appointment as an officer or employee of the
Department; and
(b) an officer or employee of the Department applying for appointment to a
designated position.
Division 3—Drug and alcohol testing of
officers, employees etc
81V—Interpretation
alcotest means a test by means of an apparatus of a kind
approved for the conduct of alcotests under the
Road
Traffic Act 1961
;
biological sample means a sample of blood, urine or oral
fluid;
breath analysing instrument means an apparatus of a kind
approved as a breath analysing instrument under the
Road
Traffic Act 1961
;
breath analysis means an analysis of breath by a breath
analysing instrument;
critical incident means—
(a) an incident where a person is killed or suffers serious bodily injury
in a correctional institution or probation and parole hostel; or
(b) an incident, or a class of incident, in a correctional institution or
probation and parole hostel determined by the CE to be a critical
incident;
drug means a substance that is a controlled drug under the
Controlled
Substances Act 1984
;
drug and alcohol testing—see
section 81W(1)
;
drug screening test means a test by means of an apparatus of
a kind approved by the regulations for the conduct of drug screening
tests;
forensic material means any human material from which the
person from whom the material was taken could be identified;
oral fluid includes saliva;
oral fluid analysis means the analysis of a person's oral
fluid to determine whether a drug is present in the oral fluid;
rules means the rules made under section 83 for the purposes
of this Division.
(2) For the purposes of this Division, a person uses a drug
if the person—
(a) consumes, smokes or administers the drug to themself; or
(b) permits another person to administer the drug to them.
81W—Drug and alcohol testing of officers and
employees
(1) An officer or
employee of the Department may, in accordance with this section, be required to
do any of the following:
(a) to submit to an alcotest or breath analysis, or both, for the purpose
of testing for the presence of alcohol;
(b) to submit to a drug screening test for the purpose of testing for the
presence of drugs;
(c) to provide a biological sample for the purpose of a blood test,
urinalysis or an oral fluid analysis to test for the presence of alcohol or
drugs,
(drug and alcohol testing).
(2) An officer or
employee of the Department may be required to undergo drug and alcohol testing,
in accordance with the rules, in any of the following circumstances:
(a) if the officer
or employee has, while on duty, been involved in a critical incident;
(b) if there is a reasonable cause to believe that the officer or employee
has recently consumed alcohol or used a drug;
(c) if the officer or employee is applying for appointment to a designated
position;
(d) if the CE considers that the officer or employee should undergo drug
and alcohol testing.
81X—Drug and alcohol testing of applicants to
Department
(1) A person to
whom this subsection applies will, in accordance with the rules, be required to
do any of the following:
(a) to submit to an alcotest or breath analysis, or both, for the purpose
of testing for the presence of alcohol;
(b) to submit to a drug screening test for the purpose of testing for the
presence of drugs;
(c) to provide a biological sample for the purpose of a blood test,
urinalysis or an oral fluid analysis to test for the presence of alcohol or
drugs.
(2)
Subsection
(1)
applies to a person applying for appointment as an officer or employee of
the Department.
81Y—Procedures for drug and alcohol
testing
(1) The Governor
may make such regulations as are contemplated by, or as are necessary or
expedient for the purposes of, this Division.
(2) Without
limiting the generality of
subsection (1)
, the regulations may—
(a) prescribe procedures for drug and alcohol testing; and
(b) provide for the authorisation of persons to conduct drug and alcohol
testing and operate equipment for that purpose; and
(c) regulate the collection of biological samples taken from persons for
the purposes of drug and alcohol testing under this Division; and
(d) provide for the analysis of test results, including the accreditation
of persons conducting the analysis; and
(e) provide for the approval of devices used in carrying out drug and
alcohol testing and analysis; and
(f) provide for the use of results from any testing or analysis, or the
steps that may be taken on account of any testing or any evidence or information
produced as a result of testing; and
(g) prescribe the circumstances that amount to a defence to disciplinary
proceedings under the
Public
Sector Act 2009
relating to drug and alcohol testing or proceedings for a breach of the
regulations; and
(h) prescribe evidentiary provisions to facilitate proof of matters for
the purposes of disciplinary proceedings under the
Public
Sector Act 2009
relating to drug and alcohol testing and proceedings relating to a breach
of the regulations; and
(i) provide for the confidentiality of test results; and
(j) regulate the destruction of biological samples collected for testing;
and
(k) provide for the protection of persons involved in taking or conducting
testing from liability for acts or omissions done in good faith and in
accordance with this Division.
81Z—Biological samples, test results etc not to be
used for other purposes
(1) A biological sample (and any other forensic material taken
incidentally in the course of testing a person for the presence of drugs or
alcohol) taken under this Division must not be used for any purpose other
than—
(a) for a purpose contemplated by this Division; or
(b) in connection with the control and management of officers and
employees of the Department; or
(c) for the purpose of disciplinary proceedings under the
Public
Sector Act 2009
.
(2) The results of any drug and alcohol testing or analysis conducted
under this Division, or an admission or a statement made by a person relating to
such drug and alcohol testing, is not admissible in any proceedings other than
disciplinary proceedings under the
Public
Sector Act 2009
.
35—Amendment
of section 83—CE may make rules
(1) Section 83—after subsection (1) insert:
(1a) The CE may make rules for the purposes of Part 7A Division
3.
(2) Section 83(2)—after "subsection (1)" insert:
or (1a)
(3) Section 83(4)—after "prisoners" insert:
and officers and employees of, and applicants for employment with, the
Department
36—Amendment
of section 85C—Confidentiality
(1) Section 85C—before subsection (1) insert:
(a1) A person must not disclose—
(a) protected information; or
(b) information the disclosure of which the person reasonably believes
would give rise to a serious risk to the life or safety of a person,
unless authorised to do so by the CE.
Maximum penalty: $20 000.
(2) Section 85C(1)—delete "A person must not disclose information
relating to" and substitute:
Without limiting subsection (a1), a person must not disclose information
relating to a person who is or has been
(3) Section 85C—after subsection (2) insert:
(3) In this section—
health practitioner means a person who practises a health
profession (within the meaning of the Health Practitioner Regulation National
Law (South Australia));
protected information means information—
(a) contained in a report prepared by a health practitioner for the
purposes of assisting the Department in the assessment, placement or management
of a prisoner; or
(b) relating to the safety or security of a correctional institution;
or
(c) the disclosure of which could reasonably be expected to prejudice a
criminal investigation or national security (within the meaning of the
National Security Information (Criminal and Civil Proceedings) Act 2004
of the Commonwealth).
37—Amendment
of section 85D—Release of information to eligible
persons
(1) Section 85D(1)—delete "in writing"
(2) Section 85D(2)(b)—delete "family or a close associate of the
prisoner" and substitute:
immediate family
After section 85D insert:
85E—Confidentiality of biometric
data
(1) A person must not use or disclose biometric data derived from a
biometric identification procedure relating to a visitor to a prison except as
is reasonably required for the purposes of carrying out the biometric
identification procedure.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A person must not use or disclose biometric data derived from a
biometric identification procedure relating to a prisoner except as is
reasonably required—
(a) for the purposes of carrying out the biometric identification
procedure; or
(b) in connection with the control and management of a correctional
institution; or
(c) for any other purpose contemplated by this Act.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) In this section—
biometric data means fingerprint data, iris scan data, or any
other prescribed data or data of a prescribed kind that describes physical
characteristics of a person or part of a person that may be used to identify the
person;
biometric identification procedure means a procedure in which
biometric data relating to a person is obtained by means of photograph or scan
and compared with other biometric data for the purposes of identifying the
person.
39—Amendment
of section 86B—Use of correctional services dogs
Section 86B(2)(a)—after "hostel" insert:
(including a search of an officer or employee of the Department)
40—Insertion
of sections 87A and 87B
After section 87 insert:
87A—Operation of unmanned
aircraft
(1) A person must
not operate an unmanned aircraft within 100 metres of a correctional
institution except with the permission of the CE.
Maximum penalty: $10 000 or imprisonment for 2 years.
aircraft has the same meaning as in the Civil Aviation
Act 1988 of the Commonwealth but does not include an aircraft of a
prescribed kind.
87B—Unmanned aircraft—special
powers
(1) The CE may
cause an unmanned aircraft to be seized and retained if the CE reasonably
suspects that the unmanned aircraft has been operated in contravention of
section 87A
or affords evidence as to the commission of an offence against that
section.
(2) If the
Magistrates Court, on application by the CE, or any court hearing proceedings
for an offence against
section 87A
, finds that an unmanned aircraft seized under
subsection (1)
(a seized unmanned aircraft) was the subject of an offence
against
section 87A
, the court may, by order, forfeit the unmanned aircraft to the
Crown.
(3) A seized unmanned aircraft that is the subject of an order for
forfeiture under this section may be sold, destroyed or otherwise disposed of as
the CE directs.
(4) Subject to
subsection (5)
, if a seized unmanned aircraft has not been forfeited to the Crown in
proceedings commenced within the prescribed period after its seizure, a person
from whose lawful possession the unmanned aircraft was seized, or a person with
legal title to it, is entitled to recover the unmanned aircraft from the CE (if
necessary, by action in a court of competent jurisdiction).
(5) Despite
subsection (4)
, a court hearing proceedings under that subsection in relation to a seized
unmanned aircraft may, if it thinks fit, make an order under
subsection (2)
for forfeiture of the seized unmanned aircraft to the Crown.
(6) Nothing in this section affects the operation of the
Criminal
Assets Confiscation Act 2005
.
(7) In this section—
aircraft has the meaning given by
section 87A(2)
;
prescribed period means 2 years or such longer period as the
Magistrates Court may, on application by the CE, allow.
Schedule 1—Related
amendments and transitional provisions
Part 1—Amendment of Public Sector
Act 2009
1—Amendment
of section 59—Right of review
Section 59(2)—after paragraph (b) insert:
(ba) to a decision by the CE under the
Correctional
Services Act 1982
to refuse an application under section 81U of that Act (to the extent that
the refusal of the application involves an employment decision for the purposes
of this Act); or
Part 2—Transitional
provisions
2—Transitional
provision—allowances and expenses of members of Parole Board to
continue
On the commencement of this clause, the allowances and expenses payable to
a member of the Parole Board will continue to be determined in accordance with
the
Correctional
Services Act 1982
as if this Act had not been enacted until any required determinations of
the Remuneration Tribunal have come into operation.
3—Transitional
provision—review of release on parole relating to prisoners of a
prescribed class
(1) The amendments to the
Correctional
Services Act 1982
made by
sections 23
and
30
of this Act do not apply to a prisoner of a prescribed class if, prior to
the commencement of this clause, the prisoner has been released on
parole.
(2) However, if, after the commencement of this clause, the release on
parole of a prisoner of a prescribed class is cancelled, the amendments to the
Correctional
Services Act 1982
made by
sections 23
and
30
of this Act will apply to the prisoner (including any application for
release on parole made by the prisoner after that commencement).
(3) For the purposes of this clause—
prisoner of a prescribed class has the same meaning as in
Part 6 Division 4 of the
Correctional
Services Act 1982
(as amended by
section 30
of this Act).